Before the Commission is an application to dismiss an appeal lodged pursuant to s100A of the Industrial Relations Act 1996 (NSW) (the Act) (Appeal) by Ms Felicity Lyndon (the appellant) on 22 July 2021, in respect of a decision of her employer, the Commissioner of Police (the respondent) to defer an incremental pay increase for a period of 12 months.
After attempts to resolve the Appeal through conciliation were unsuccessful, the Commission made directions towards an arbitration of two jurisdictional issues raised by the respondent. The respondent submitted that the Commission does not have jurisdiction to determine the Appeal and consider the deferment of the appellant's increment for two reasons:
1. no appealable decision for the purpose of Chapter 2, Part 7 of the Act is disclosed in the Appeal; and
2. the Appeal has been filed more than 28 days after the purported decision and the Commission does not have the power to extend the time limit.
The matter was listed for hearing on 3 November 2021.
The parties usefully relied upon an agreed statement of facts filed on 11 October 2021 (ASOF) (Ex 1) setting out the key facts for the purposes of the jurisdictional hearing. The ASOF was in the following terms:
"1. The Appellant commenced employment with the Respondent as an Administrative Officer on 12 July 2018.
2. The Appellant's employment is subject to, relevantly:
a. the Police Act 1990
b. the Government Sector Employment Act 2013
c. the Government Sector Employment (NSW Police Force) Rules 2017
d. the Crown Employees (NSW Police Force Administrative Officers and Temporary Employees) Award 2009
3. The Respondent regularly communicated with the Appellant via email using the Appellants NSWPF provided email address.
4. On 22 January 2021, the Respondent issued a letter to the Appellant setting out four allegations of misconduct (Four Allegation Letter).
5. On 22 January 2021, the Respondent issued a letter to the Appellant setting out three allegations of misconduct (Three Allegation Letter).
6. 26 February 2021, the Appellant provided a response to the Four Allegation Letter.
7. The Appellant provided a response to the Three Allegation Letter.
8. On 6 March 2021, the Respondent issued a letter to the Appellant setting out the misconduct findings in respect of the Four Allegation Letter (First Findings Letter).
9. On 8 April 2021, the Respondent issued a letter to the Appellant setting out the misconduct findings in respect of the Three Allegation Letter (Second Findings Letter).
10. On 30 April 2021, the Appellant provided a submission to the Respondent in response to the First Findings Letter and the Second Findings Letter.
11. On 17 May 2021, the Respondent advised the Appellant of the action to be taken in response to the misconduct findings, being:
a. a Reprimand pursuant to s69(4) of the Government Sector Employment Act 2013; and
b. 12 months Conduct Monitoring pursuant to r46(3) and (4) of the GSE (NSWPF) Rules 2017 (Conduct Monitoring Plan) (collectively, the "Disciplinary Action").
12. On 20 May 2021, the Appellant commenced a Conduct Monitoring Plan.
13. On 23 June 2021, the Respondent notified the Appellant, via email and orally, that the Appellant would not progress to the next increment for a period of 12 months while the Conduct Monitoring Plan took place (Increment Deferral). The Respondent advised the Appellant that, upon successful completion of the Conduct Monitoring Plan, and subject to no other relevant issues arising, her increment would be backdated to the original incremental progression date.
14. On 22 July 2021, the Appellant filed a notice of appeal pursuant to s100A of the Industrial Relations Act 1996 (Appeal).
15. The Appeal was filed 29 days after the Appellant was advised of the Increment Deferral and 67 days after the Appellant was advised of the Disciplinary Action.
16. On 4 August 2021, the Respondent filed a response to the Appeal."
In evidence was the letter titled "Final Decision" dated 17 May 2021 from Mr Paul Simpkins, Detective Acting Superintendent Commander, Investigations Professional Standards Command to the appellant which conveyed the outcome of the decision in respect of disciplinary proceedings as referred to in the ASOF at [11](the Final Decision letter)(Ex R1). The Final Decision letter included the following terms:
"I refer to the previous correspondence dated 6 March 2021 and 8 April 2021, in which Detective Acting Superintendent Darrin Batchelor, Commander, Investigations Unit, Professional Standards Command informed you he had made findings that you had engaged in misconduct and invited you to make a submission in response to the proposed actions against you pursuant to the Government Sector Employment Act 2013.
I have carefully considered all the information available to me including your submission dated 30 April 2021, and I am of the view you have engaged in misconduct.
However, I have taken into consideration the points raised by you and concur the original sanctions proposed against you are excessive. I have now made a final decision on the action to be taken in relation to your proven misconduct.
In respect of the unauthorised RMS accesses:
Reprimand pursuant to section 69(4) of the Government Sector Employment Act 2013.
In respect of the Breach of Service Standards:
12 months Conduct Monitoring pursuant to r46(3) and (4) of the GSE (NSWPF) Rules 2017.
The Reprimand and commencement of the Conduct Monitoring will take place during a meeting with the Group Director, Shared Services who will make arrangements for this to occur. In addition let this letter serve as a warning against your misconduct and be advised that any similar incidents in the future would likely result in more serious action being taken against you, up to and including termination of your employment.
I would like to remind you of the support networks available to you including through the employee assistance programme should you wish to use this service.
…. "
Also in evidence was the email of 23 June 2021 referred to above at [13] of the ASOF (Ex R2) (the delay of increment email). The delay of increment email was from Duncan Eddington, HRM - Chief Inspector, Corporate Business Service Centre - Shared Services to the appellant and was in the following terms:
"Good afternoon Felicity,
As discussed today, as set out at section 14 of the Government Sector Employment Regulation 2014, the payment of an increment to an administrative employee is subject to the satisfactory performance of duties and also satisfactory conduct of that employee.
On the 17th May 2021, you were advised by A/Superintendent Paul Simpkins from Professional Standards Command that he determined that you had engaged in misconduct.
The result of that finding is that your conduct is now subject to monitoring for a period of 12 months.
Your salary increments to your next Next Pay Scale: CK-GRADE02-02 is due on the 12 July 2021.
As I informed you today, in the above context, we have determined it appropriate to defer your next increment for the duration of the Monitoring Plan that commenced on the 20th May 2021. This means in accordance with section 14(5) of the Government Sector Employment Regulation 2014 you increment will be deferred for a period of 12 months to allow for the Conduct Management Plan to take place.
Upon successful completion of the Monitoring Plan, and subject to no other relevant issues arising, your increment will be backdated to the original increment date.
…."
The appellant relied upon two written statements in the proceedings:
1. Statement of Ms Felicity Virginia Lydon (the appellant) dated 27 October 2021 (the appellant's statement) (Ex A1).
2. Statement of Mr Andrew Wright date 27 October 2021 (the Wright statement) (Ex A2).
The witness statements are short and it is convenient to set them out in full. The Wright statement was tendered without objection from the respondent and was in the following terms:
"1. I am an Industrial Officer working in the Justice Team of the Public Service Association of NSW.
2. I was assisting and advising Felicity Lyndon regarding a number of misconduct matters.
3. On or shortly after the 23 June 2021, Ms Lyndon advised me that she had received an email advising her that her increment had been deferred for 12 months while she was on a conduct monitoring plan implemented as a result of an earlier finding of misconduct.
4. I considered the matter and formed a view that this was potentially an appealable decision under s98 of the Industrial Relations Act. I made a note to file an appeal by 21 July 2021, which is 21 days after the date the email was sent and received.
5. During the weeks which followed, I was in regular contact with Ms Lyndon. She told me that she had been selected as the preferred candidate for a number of promotional positions at the Department of Education. We agreed that, if she was appointed to any of these positions, there would be no need to file an appeal against the incremental decision.
6. On 25 June 2021, as a resident of Randwick LGA, I was subject to stay at home Public Health Orders. The stay at home orders were extended to the whole of the Greater Metropolitan Area the following day. I commenced working from home on 25 June and remained working from home at all relevant times. This requirement to stay away from the office was sudden and disruptive.
7. Some time shortly before 21 July, Felicity advised me that she had been denied appointment to all of the positions for which she had successfully applied because the employer had learned that she was on a Conduct Management Plan with NSW Police. We resolved to file the disciplinary appeal by 21 July.
8. On 20 July at 9.40 AM, I sent an email to Meredith Best, the Justice Team's Administrative Assistant, containing a form, text and attachments with a request that she prepare the Public Sector Disciplinary Appeal and file it. A copy of this email is annexed to this statement, marked as Annexure A.
9. Unbeknownst to me, Ms Best was not at work, having been placed on leave together with most of the other PSA administrative staff the day before, owing to the lockdown. This had been conveyed to other staff at an on-line staff meeting on 19 July, which I had been unable to attend owing to appearing in a two day IRC matter on 19 and 20 July.
10. I only became aware of a problem on the morning of 22 July, when I emailed my manager to enquire why I had not received a copy of the filed appeal. Upon learning that the appeal had not been filed, my manager quickly recalled Ms Best from leave and we got the appeal filed in a few hours.
11. I was aware that there had been a later email from payroll. I put the date of that email, 8/7/2021, as the date of notice of the decision, on the basis that, valid notice not having been given, the notice from payroll corresponded to the crystallisation of the earlier decision into an action by the employer."
The appellant's statement was also tendered into evidence without objection and was in the following terms:
"1. I have never at any time consented, either in writing or by word or action, to accept via electronic communication notices from my employer which are required by law to be in writing.
2. In the course of various proceedings against me for misconduct, I have always been personally served with printed notices by managers. None of these notices were served on me by email. It is my understanding that such notices are normally, as they were with me, delivered to an employee in printed form under signature.
3. Formal action by an employer against an employee is a serious matter. I have not and would not have consented to receiving such notices in the form of an email because of the importance I place on proper process in such matters."
The appellant was cross-examined during the hearing of the matter by the respondent's representative. The appellant was un-cooperative while giving her evidence and was counselled to answer questions and cease advocating her case from the witness box.
I have considered the evidence in the context of the parties written and oral submissions in this matter further below.
[2]
Relevant legislation and legal principles
Chapter 2 Part 7 of the Act provides for appeals in respect of public sector disciplinary decisions. Section 91 of the Act is entitled "Interpretation" and relevant to these proceedings provides:
(1) In this Part -
appeal means a disciplinary appeal.
appealable decision means a decision of a kind referred to in section 97 (1).
disciplinary appeal means an appeal under section 98.
Section 97 of the Act relevantly provides:
"97 Notice of certain decisions etc
(1) This section applies to the following decisions made by a public sector employer in relation to a public sector employee -
(a) a decision to defer, for a period in excess of 6 months, the payment of an increment to the employee,
(b) a decision to reduce the rank, classification, position, grade or pay of the employee,
(c) a decision to impose a fine or forfeit pay,
(d) a decision to annul the appointment of an employee appointed on probation,
(e) a decision to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer,
(f) a decision to dismiss the employee,
(g) a decision to direct or to require the employee to resign.
(2) A public sector employer who makes a decision to which this section applies in relation to an employee must give the employee notice, in writing, of the decision as soon as practicable after the decision is made, except as otherwise provided by an order made under subsection (4).
(3) If the employer is unable to give the employee notice of the decision within 14 days after it is made, the employer may apply to the Commission for an order as to the giving of the notice.
(4) On receipt of an application under subsection (3), the Commission may make such order as the Commission thinks fit as to the giving of the notice or may make an order dispensing with the giving of the notice.
(5) A notice may be given, or the giving of a notice may be dispensed with, in accordance with an order made under subsection (4).
…
(7) For the purposes of this Division -
(a) a decision of a kind referred to in subsection (1) (d), (f) or (g) is a decision that may, subject to this Act, be appealed against under section 98 regardless of whether the decision was made for disciplinary reasons, and
(b) a reference to a public sector employer making a decision of a kind referred to in subsection (1) includes a reference to any other person (including the Crown) who is authorised by or under any law to make that decision or to carry it into effect.
(emphasis added)
Section 100B(1) of the Act provides:
"(2) Notice of a disciplinary appeal must be lodged within 28 days after the public sector employee is notified of the decision against which the appeal is to be made."
There is no discretion conferred upon the Commission in the Act to extend the time within which to lodge a disciplinary appeal: Singh v Legal Aid New South Wales [2014] NSWIRComm 1016 at [30]-[40]; Beavan v Industrial Relations Secretary [2016] NSWIC 1 at [156]; see also Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Industrial Relations Secretary [2017] NSWIRComm 1075 at [38]-[40].
In these proceedings, the parties agreed that for there to be a right of appeal pursuant to Chapter 2 Part 7 of the Act, the appellant must establish that the decision was disciplinary in nature. This is because of the words contained in s 97(7) which provides that a decision of a kind in s 97(1)(d), (f) or (g) may be appealed against regardless of whether the decision was made for disciplinary reasons. Subsection 97(1)(a) is not included in the type of decisions that may be appealed against even if such a decision is made for non-disciplinary reasons. It follows that for a decision to defer an increment to be appealed under Chapter 2, Part 7 of the Act, it must have been made for disciplinary reasons.
In support of its contention that the decision was not disciplinary, the respondent pointed to the different legislative contexts within which the disciplinary decision (as conveyed in the Final Decision letter) and the decision to delay the incremental increase (as conveyed in the delay of increment email) occurred. I turn to those provisions now.
Part 6A of the Police Act 1990 (NSW) (Police Act) contains provisions relating to non-executive administrative employees, such as the appellant. The Government Sector Employment (NSW Police Force) Rules 2017 (GSE (NSWPF) Rules) is made in accordance with s 81F of the Police Act and the Government Sector Employment Act 2013 (NSW) (GSE Act) apply.
Part 6 of the GSE (NSWPF) Rules provides that the respondent may take action under sub-s 69(4) of the GSE Act where a finding of misconduct has been made against an administrative employee. Sub-s 69(4) of the GSE Act provides:
(4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions -
(a) terminate the employment of the employee (without giving the employee an opportunity to resign),
(b) terminate the employment of the employee (after giving the employee an opportunity to resign),
(c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee),
(d) reduce the remuneration payable to the employee,
(e) reduce the classification or grade of the employee,
(f) assign the employee to a different role,
(g) caution or reprimand the employee.
Notably, a decision to defer an employee's increment is not an action permitted under sub-s 69(4) of the GSE Act.
The respondent submitted that its decision to defer the appellant's increment was made within power pursuant to r 36 of the GSE (NSWPF) Rules which deals specifically with the issue of increments.
Rule 36 is contained within Part 4 of the GSE (NSWPF) Rules which is entitled "Administrative employees - initial engagement, conditions of employment and other provisions". In addition to providing for the administration of Increments, Part 4 provides for a range of other matters relating to the employment of administrative employees including:
Probation period;
Formal qualification;
Security and other clearances;
Health assessment;
Reporting charges and conviction for serious offences;
Reporting of bankruptcy;
Public holidays;
Absence from duty;
Fitness for duty;
Excess non-executive administrative employees; and
Termination of employment of non-executive administrative employees.
Rule 36 of the GSE (NSWPF) Rules is in the following terms:
"36 Increments
(1) The payment to a non-executive administrative employee of an increment in accordance with any State industrial instrument is, unless otherwise provided by the instrument, to be made only with the prior approval of the Commissioner.
(2) The payment of an increment to a non-executive administrative employee (including any decision by the Commissioner to accelerate the progression of a non-executive administrative employee through the increment scale applying to the employee) is subject to:
(a) performance requirements under the NSW Police Force's performance management system, and
(b) the satisfactory conduct of the employee as determined by the Commissioner.
(3) The payment of an increment to a non-executive administrative employee is subject to the satisfactory performance of duties by, and the satisfactory conduct of, the employee as determined by the Commissioner.
(4) The payment of an increment may be deferred from time to time, but may not be deferred for more than 12 months at any one time.
(5) A non-executive administrative employee must be promptly notified in writing by the Commissioner of any decision to defer payment of an increment. The notice must include the reasons for the decision.
Accordingly, the GSE (NSWPF) Rules provide that the payment of an increment to a nonexecutive administrative employee is subject to the satisfactory conduct and performance of the particular employee. Where an administrative employee's conduct and/or performance is not satisfactory, the administrative employee is not eligible for the payment of the increment.
Further, payment of the increment may be deferred from time to time, but not for longer than 12 months at any one time. If payment is deferred, the administrative employee must be notified in writing including the reasons for the decision.
Both parties referred to the instructive decision of former Chief Commissioner Kite SC in Francois v Industrial Relations Secretary (Department of Corrective Services) [2019] NSWIRComm 1058 (Francois) where consideration was given to a deferral of an increment for failing to meet satisfactory performance and conduct standards and the appeal provisions contained in Chapter 2, Part 7 of the Act in strikingly similar circumstances to this matter. At [43]-[59] of Francois, Chief Commissioner Kite SC stated:
"43. A review of the legislation indicates that deferral of an increment is not an action this employer may take in the event of finding misconduct. The permissible actions are listed in s 69(4) of the GSE Act and have their parallels in s 97(1) of the Act. Similarly s 68(2) of the GSE Act lists the actions available to an employer once it is determined an employee's performance is unsatisfactory. Deferring an increment for more than 6 months is not included.
44. The authority to defer an increment is found in cl 14(5) of the GSE Regulation. Although the subclause does not prescribe reasons why such a decision may be taken, subcll (2) and (3) provide guidance. It is clear the employer needs to be satisfied that the employee's performance and conduct are satisfactory before authorising payment of an increment.
45. The considerations of satisfactory performance and conduct mean that there is much to be said for the proposition that the right to appeal under s 97(1)(a) is not dependent on the taking of a discrete decision to defer the increment for more than 6 months. In other words, if deferral continues for a period in excess of 6 months as a matter of fact, an appeal may be available.
46. Against that proposition it may be said that the other decisions listed in s 97(1), subject to the qualification in s 97(7)(a), are all of a kind representing discrete decisions to impose, following a determination of unsatisfactory performance or finding of misconduct, a disciplinary punishment. Why would the decision in s 97(1)(a) be different?
47. Further, failure to be satisfied as to satisfactory performance or conduct is qualitatively different from findings of unsatisfactory performance or misconduct. The latter involves a positive decision whereas the former does not, save in so far as it may be described as a decision of being failed to be satisfied. There is scope to argue that deferral of an increment following a finding of misconduct may fall within the requisite category of disciplinary decisions, notwithstanding it is not included in ss 68 or 69 of the GSE Act. In view of my findings I do not need to decide whether that is so in this case.
…
52. The effect of s 97(7)(a) is that, although those nominated decisions need not be disciplinary, the legislative intention is that the remainder, by reason of the fact they are not to be so treated by s 97(7)(a), must be disciplinary decisions. That is consistent with the Commissioner's analysis (as explained in [51]) in Vernon and the decision in Marroun.
…
57. These considerations each support the submission of the respondent that Ch 2, Pt 7 is, save for the explicit exceptions, about disciplinary appeals from disciplinary decisions. That proposition is reinforced by the express reference in many sections of Ch 2, Pt 7 to "disciplinary appeals" as exampled in s 100C (2) and (3) at [53].
58. In accordance with that construction the decision to defer an increment referred to in s 97(1)(a) must be a disciplinary decision. It is to be remembered that Ch 2, Pt 7 applies to several government employers and their employees. So much is apparent from s 91(1) of the Act. In Marroun, for example, the State Transit Authority was the employer and the employee was a member of the Transport Service. As the Court of Appeal noted at [24] the powers of the employer with respect to disciplinary action were found in the Transport Administration (Staff) Regulation 2012 (NSW). The Court set out the relevant provisions. Included in the list of "disciplinary actions" available to the employer was "deferral of the payment of an increment".
59. Bearing in mind Ch 2, Pt 7 applies to a variety of employers who have different disciplinary powers it is understandable that the scope of s 97(1) may be broader or narrower than the scope of disciplinary actions available to a particular employer.
60. I conclude therefore that the decisions listed in s 97(1), other than those identified in s 97(7), must be disciplinary decisions.
61. In view of my finding that the deferral of the increment was not a disciplinary decision, and therefore not a decision within the meaning of the section, it is not appealable."
[3]
Consideration
It is necessary to determine whether the decision to defer the increment for the duration of the Monitoring Plan was an appealable decision. The appellant argued that the decision to delay the increment was taken for disciplinary reasons and therefore is appealable. She submitted that this is so because there is explicit reference to the Conduct Monitoring Plan in the delay of increment email which was imposed following a finding of misconduct against her. Accordingly, it was argued that the finding of misconduct was the operative reason for the deferral of the increment and therefore a disciplinary decision.
The purpose of the Public Sector Disciplinary Appeals as contained in Chapter 2, Part 7 of the Act is to provide for an opportunity for public sector employees to appeal particular actions and have them reviewed by the Commission. It is protective legislation which confers a benefit upon the relevant employees and therefore it is appropriate that the principles of beneficial interpretation are applied.
The task before the Commission is to determine whether the decision to delay the increment was a "disciplinary decision". This requires an objective evaluation of the characterisation of the decision.
In Francois, the decision to defer an increment was also not a permitted disciplinary outcome pursuant to the legation applying to the parties, namely ss 68 and 69 of the GSE Act. I take note of, and agree with, the statement of Chief Commissioner Kite SC at [47] in Francois:
"There is scope to argue that deferral of an increment following a finding of misconduct may fall within the requisite category of disciplinary decisions, notwithstanding it is not included in ss 68 or 69 of the GSE Act."
I also agree with the appellant that if it were the case that the decision had been taken for disciplinary reasons, the Commission would have jurisdiction to hear the appeal pursuant to Chapter 2, Part 7 of the Act. Thus, while the respondent's characterisation of the decision is relevant, it is not necessarily determinative.
The Macquarie Online Dictionary relevantly defines "disciplinary" as, "of or for discipline; promoting discipline", while "discipline" is relevantly defined as:
"1. training to act in accordance with rules; drill: military discipline.
2. instruction and exercise designed to train to proper conduct or action.
3. punishment inflicted by way of correction and training.
…
5. subjection to rules of conduct of behaviour; a state of order maintained by training and control: good discipline in an army."
In my view, the ordinary meaning to the words "disciplinary decision" in the context of Chapter 2, Part 7, is an intentional and coercive action of the employer designed to bring about a correction in conduct or behaviour.
It is clear from the terms of the delay of increment email and the Final Decision letter that the process of deciding to defer the incremental increase was separate and distinct from the decision to impose a disciplinary outcome consequent upon the findings of misconduct against the appellant. There is nothing in the delay of increment email which indicates an intention to impose a further punishment upon the appellant for the misconduct found against her, nor bring about a correction in her conduct and behaviour and this is consistent with the terms of the Final Decision letter which expressly purports to conclude the disciplinary process with the imposition of the punishments referred to therein. The reasons for the respondent's decision to delay the increment are contained in the delay of increment email, namely the finding of misconduct of 17 May 2021 and the imposition of the Monitoring Plan.
The separate nature of the decision to delay the incremental increase is consistent with the statutory scheme applying to the distinct processes of administering increments and disciplinary outcomes. As already stated, it is not open to the respondent to take such action in the context of disciplinary outcomes and yet, the Rules as they relate to incremental increases provide that the payment of an increment is subject to "the satisfactory conduct of the employee as determined by the Commissioner." The decision is administrative in nature, requiring certain matters to be taken into account including whether the employee's conduct has been satisfactory. Such a process is unable to be characterised as an intentional and coercive action of the employer designed to bring about a correction in conduct or behaviour.
In support of her case, the appellant referred to [11] of the decision of Macfarlan JA in the Court of Appeal decision in Police Association of New South Wales v State of New South Wales [2020] NSWCA 3 as set out above at [28]. While I have considered the financial impact upon the appellant, being a delay of receipt of approximately $2,000 gross in wages, I note that it was open to the respondent to deny the incremental increase at all in view of the findings of misconduct. The deferral of the evaluation of whether the appellant is entitled to the increase until the conclusion of the Monitoring Plan is potentially a decision from which the appellant may benefit. I am not persuaded that the decision is in fact, a negative one for the appellant.
The appellant perhaps ought to have known that the consequence of the Final Decision letter might be that she was found to be ineligible for an incremental increase as the findings underpinning the decision may form the basis for the determination that her conduct had not been satisfactory. She had an opportunity to appeal from the Final Decision letter, but did not. I note, as an aside, there may have been some utility in the respondent articulating in the Final Decision letter its intent to rely upon the findings in the investigation in determining her eligibility for an incremental increase to highlight the consequences of the findings beyond the disciplinary sanctions imposed.
However, for these reasons, I have decided that the decision to delay the incremental increase for the duration of the Monitoring Plan was not a disciplinary decision and there is no jurisdiction for the Commission pursuant to s 97(1)(a) of the Act.
If I am wrong with respect to this finding, I am also of the view that the appellant is out of time and I will briefly state my reasons for this conclusion.
It was an agreed fact that the Appeal was lodged 29 days after the decision to delay the increment was conveyed to the appellant orally and by email on 23 June 2021. Had the decision been a disciplinary decision, written notice would have been required pursuant to sub-s 97(2) and in any case sub-s 36(5) of the GSE (NSWPF) Rules.
The appellant argued that proper notice was not given to the appellant on that date as she did not expressly, or by implication, consent to being given notice of the decision by way of email.
The appellant relied upon s 8 of the Electronic Transactions Act 2000 (NSW) (the ET Act) which provides:
"8 Writing
(1) If, under a law of this jurisdiction, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, where -
(a) at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference, and
(b) the person to whom the information is required to be given consents to the information being given by means of an electronic communication.
(2) If, under a law of this jurisdiction, a person is permitted to give information in writing, the person may give the information by means of an electronic communication, where -
(a) at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference, and
(b) the person to whom the information is permitted to be given consents to the information being given by means of an electronic communication."
Section 5 of the ET Act defines consent as follows:
"consent includes consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with."
I am of the view that the evidence demonstrates that at all relevant times, consent to receive the communication by email could be reasonably inferred from the appellant's conduct. In this regard, I note that the appellant was on notice, from a practical perspective, on and from 23 June 2021 of the respondent's decision to delay the increment and there is no evidence of complaint about this at the time she was informed, or shortly thereafter.
Although the appellant denied that she would have accepted the notice other than in written form, this is inconsistent with her actions upon receipt of the email and I do not accept this aspect of her evidence. In any event, the question is about the reasonableness of the respondent's assumption and the appellant was unable to point to any evidence that her conduct, prior to 23 June 2021, would support the conclusion that she would not have accepted the communication by email.
By the appellant's admission, this issue had been raised because of an unfortunate administrative error which led to the late filing of the Appeal. The delay of increment email, whilst significant to the appellant, was not of the same gravity or importance as a letter of termination or outcome of investigation letter, where perhaps consent could not reasonably have been inferred. In this regard I note that the appellant relied upon the letters delivered to the appellant in the context of the disciplinary process. It is reasonable in the circumstances for the respondent to infer the appellant's consent given the ongoing nature of the employment relationship and use of emails as a means of communicating matters in writing, though electronically.
For these reasons, I have decided that the Appeal must be dismissed for want of jurisdiction.
[4]
Orders
I make the following Order:
1. The application in 2021/213059 is dismissed.
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 10 November 2021
Parties
Applicant/Plaintiff:
Lyndon
Respondent/Defendant:
Commissioner of Police
Legislation Cited (5)
Transport Administration (Staff) Regulation 2012(NSW)
The respondent relied upon the decision in Police Association of New South Wales v State of New South Wales [2020] NSWCA 3. In that matter, the Court of Appeal, by majority (Macfarlan JA and Barrett AJA with White JA dissenting), allowed an appeal against a decision of a Judge of the Supreme Court finding that an order made by the Commissioner of Police to transfer a Police Officer from his position as a surveillance operative within the State Surveillance Branch to a general duties position at Chatswood Police Station was not a "non-disciplinary transfer."
The majority held that the transfer order was disciplinary in nature because, in the case of Macflarlan JA, the purpose and effect of the transfer order was to punish the officer for allegations arising from the misconduct investigation by causing significant prejudice to the Police Officer: see [5]. Macfarlan JA held that the question of whether the transfer was disciplinary in nature requires an objective evaluation and that a reduction in remuneration may be relevant at [10]-[11]:
"In the absence of any indication in the legislation that the correct characterisation of a transfer is to be determined by ascertaining the Commissioner's subjective purpose in making it, its purpose and effect, and hence its characterisation, is in my opinion to be determined objectively, based upon all the circumstances, including as a factor, although not a determinative one, the Commissioner's characterisation, if any, of the transfer. In this respect, I therefore respectfully disagree with the primary judge's view that the characterisation is "a matter for evaluative judgment for the Commissioner" (Judgment at [89]). It follows that the question for the Supreme Court on a judicial review application is not, as the primary judge found, whether it was "open to the Commissioner to treat the action as a 'non-disciplinary'" transfer (Judgment at [92]) but rather whether the transfer was in fact "non-disciplinary" in character.
In characterising the objective purpose and effect of a transfer, the impact on the officer's remuneration will in my view be of significance, although again not necessarily determinative. Where the impact is adverse and considerable, the prejudicial effect of the transfer may be obvious. A minor, incidental impact on remuneration may lead to a different result."
(emphasis added)
Barrett AJA held at [114]:
"In the police context, "discipline" is a process through which coercive correction is exerted for the purpose of promoting efficiency, morale and attention to duty so that public confidence in the ability of the police force to protect the public may be maintained. Disciplinary measures are corrective in nature. They may, but need not, involve punishment or chastisement of the individual officer."
(emphasis added)
While the observations of the Court of Appeal in this decision are instructive, it is important to reflect that they were made in the context of a different legislative scheme, applying to Police Officers, namely s 173 of the Police Act which provides for the respondent to take action with respect to Police Officers' misconduct or unsatisfactory performance. The Court of Appeal clearly considered the context of the legislation in interpretation of the concept of "disciplinary transfer", including with reference to relevant extrinsic materials to that legislation.