Maher v Department of Corrective Services of New South Wales

Industrial Relations Commission (NSW)|2006-03-31|Before: Wright J, Staff J, Mr J

CITATION: Maher v Department of Corrective Services of New South Wales [2006] NSWIRComm 110

APPELLANT John Martin Maher PARTIES: RESPONDENT Department of Corrective Services of New South Wales

CORAM: Wright J President; Staff J; Stanton C

LEGISLATION CITED: Freedom of Information Act 1989 Industrial Relations Act 1996

Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Allison v Bega Valley Council (1995) 63 IR 68 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Austin v NF Importers Pty Limited & Anor (2005) 146 IR 113 Box Valley Pty Ltd v Price (2000) 97 IR 484 Broken Hill Chamber of Commerce Inc v Barrier Industrial Council (2003) 146 IR 373 Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264 CASES CITED: CCH Australia Ltd v Bowen (1998) 79 IR 206 De Simone Consulting Pty Limited v Ison (2000) 97 IR 478 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Maher v Department of Corrective Services of New South Wales [2005] NSWIRComm 1127 National Union of Workers (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 Nevidal v Allworth Construction Pty Limited [2005] NSWIRComm 1123 Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 Strathfield Group Ltd v Hall (2002) 121 IR 158

APPELLANT Mr J Maher In person LEGAL REPRESENTATIVES: RESPONDENT Ms T Anderson of counsel Solicitor: Ms L Ball Department of Corrective Services of New South Wales

1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

JOHN MARTIN MAHER v DEPARTMENT OF CORRECTIVE SERVICES OF NEW SOUTH WALES

Application by John Martin Maher for leave to appeal and appeal against the decision of Commissioner Connor given on 24 August 2005 in Matter No IRC 7124 of 2004

1 This is an application for leave to appeal and, if leave be granted, an appeal from a decision of Commissioner Connor given on 24 August 2005: Maher v Department of Corrective Services of New South Wales [2005] NSWIRComm 1127. The Commissioner dismissed an application by Mr John Martin Maher ("the appellant") for relief from an alleged unfair dismissal by the New South Wales Department of Corrective Services, the respondent in these proceedings. Background 2 The appellant commenced employment with the respondent on 30 June 1965 and remained in employment until his resignation on 19 November 2004. The appellant claimed his resignation was a constructive dismissal and subsequently lodged an application seeking monetary compensation under Pt 6, ch 2, Unfair Dismissals, of the Industrial Relations Act 1996 ("the Act"). At the time of his resignation, the appellant was District Manager of the respondent's Probation and Parole Service, Fairfield District Office. Reasons for Resignation 3 The appellant alleged that certain actions of Mr Peter McDonald, Executive Director, Sydney Metropolitan Region, Community Offender Services of the respondent, had adversely impacted on the Fairfield District Office and his role as District Manager. The allegations included that Mr McDonald had made threats over staffing issues and had used "informers" to undermine the appellant and his staff. Although the appellant recognised the prerogatives of Mr McDonald in a senior position to direct and make changes to the deployment of staff for which he is ultimately responsible, he nevertheless complained of Mr McDonald's "…improper intrusions into the work domain …". 4 The appellant also claimed that there was a refusal by the respondent to investigate allegations of misconduct by Mr McDonald. The allegations included criticism of Mr McDonald attending two staff meetings, commenting on, or directing deployment of staff within the office and making changes to the agenda of a staff meeting, bullying the appellant and on one occasion pushing the appellant. 5 The various allegations made by the appellant were set out in a letter dated 12 July 2004 to Ms C McComish, Senior Assistant Commissioner of the respondent. A copy this letter was also forwarded to Mr D H Huskins, Director, Human Resources Division of the respondent and the Public Service Association of New South Wales. 6 Ms McComish, replied to the appellant's letter on 26 August 2004, observing that the actions of Mr McDonald in attending staff meetings were within the prerogative of an executive director as he is responsible for the operations, resources and staffing of District Offices. Ms McComish observed the appellant may have been disturbed more by the manner and circumstances in which comments and responses were made by Mr McDonald and that he may have felt that he was being undermined in his role as District Manager. Ms McComish further observed that Mr McDonald had assured her that he always treated the appellant with respect and dignity, supporting him in his role as District Manager and acknowledged his experience and the value of his work in Probation and Parole over many years. 7 Ms McComish suggested that the appellant may have felt embarrassed before his colleagues and staff by the process of management and supervision, suggesting that the appellant would be better to give Mr McDonald feedback directly and that it should be possible to find a solution whereby issues and responses could be dealt with in a more private situation. Ms McComish stated that Mr McDonald strongly denied ever pushing or touching the appellant in a threatening or aggressive manner. Ms McComish's letter concluded as follows: I am sorry that you have felt you needed to write to me and others about your distress in regard to your relationship with your Executive Director rather than make a time to speak directly with him. I believe that this action indicates that you do not feel confident on your own of resolving the issues with him. So I suggest that a time is made for the two of you to meet with a mediator to resolve the issues and to establish the basis for a good working relationship. Please let me know if you would like me to organise such a meeting or if there is (an) alternative approach that would better address your concerns. 8 On 15 September 2004, the appellant wrote to Ms McComish rejecting her proposal of a mediation as a way of dealing with the matter. The appellant sought that the matters be referred to the Professional Conduct Management Committee. The respondent's Management of Professional Conduct Policy provides that allegations of serious misconduct or minor matters that appear to form a pattern of misconduct that cannot otherwise be dealt with in accordance with the Grievance Policy or the Managing of Work Related Bullying and Harassment Policy must be referred to the Professional Conduct Management Committee ("PCMC"). 9 One of the principles upon which the Department's Professional Conduct Management System is predicated is: The institution of the formal disciplinary process under the Public Sector Employment and Management Act 2002 (or, prior to September 2002, the Public Sector Management Act 1998) is always an action of last resort. Alternatives to such action are to be considered first, and reasons given why they are inappropriate, before the formal disciplinary process is commenced. 10 Ms McComish advised the appellant that she did not agree that the matter should be referred to the PCMC, noting that this decision did not mean that she considered the issue a minor one. 11 Ms McComish recognised that there was clearly a breakdown in the relationship between the appellant and Mr McDonald, which was necessary to address. Ms McComish observed that there needed to be a forum where the appellant's concerns could be raised, responded to, and an agreed way of working together negotiated. Ms McComish proposed, using the expertise of the Department's Restorative Justice Unit, to conduct such a session. As an alternative, Ms McComish suggested that separate interviews could be conducted where each of the appellant's concerns could be raised and dealt with and an agreed solution found. Ms McComish advised that she proposed to proceed with mediation, but would leave the way in which the process was conducted to the appellant. 12 On 12 October 2004, the appellant signed a notice of resignation, giving the reason for resignation as "constructive dismissal". The appellant attached the correspondence he had forwarded to Ms McComish. The appellant stated that there had been no resolution of the matters raised in his correspondence and that "a 'decision' by the SAC (Ms McComish) is not a resolution." The Commissioner's Decision 13 It appears the Commissioner proceeded in the face of an application by the respondent to determine the issue of jurisdiction as a preliminary issue. The Commissioner observed that he would only deal with the merits of the application if he found there was jurisdiction. The issue in the appeal is, therefore, was the approach adopted by the Commissioner erroneous, or was it open to him to adopt the approach he did? Having found that the appellant resigned, the Commissioner concluded there had been no dismissal and that there was therefore no jurisdiction under s 84 of the Act for the Commission to deal with the matter. 14 After setting out the factual matrix, the Commissioner referred to the law governing the issue of constructive dismissal and relied on the Full Bench decision of Allison v Bega Valley Council (1995) 63 IR 68 at 72 where it was held that: Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employer appears to have given his or her resignation? It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue. 15 The Commissioner also relied on his own decision in Nevidal v Allworth Construction Pty Limited [2005] NSWIRComm 1123 where reference was made to the following three examples of situations where an ostensible resignation could give rise to a constructive dismissal: (i) where the resignation is forced by duress [ Mohazab v. Dick Smith Electronics Pty Limited (No 2) (1995) 62 IR 200];

(ii) where the resignation constitutes a refusal of an employer to accept a unilateral decision of his employer to demote him or act to the detriment of his employment [ Russian v. Woolworths (South Australia) Pty Limited (1995) 64 IR 169]; or

(iii) where the resignation is a "squeezing out", ie making an employee's position so intolerable that he is forced to resign [ Nettlefold v. Kym Smoker Pty Limited (1996) 69 IR 370]. 16 The Commissioner noted that the appellant based his argument on the "squeezing out" situation referred to in (iii) above and acknowledged that while the applicant experienced significant difficulties in his employment, which were supported by comprehensive documentary evidence, his claim for constructive dismissal could not ultimately be made out. 17 The Commissioner concluded that the appellant had in fact retired or resigned on his own volition holding, at [12]: As the Full Bench confirmed in Allison v. Bega Valley Council , to establish a constructive dismissal from Mr Maher's resignation, Mr Maher carries the onus of establishing to my satisfaction that his resignation was something which the Department had, in fact, engineered, ie that it gave him no choice but to resign. The last word from the Department was its offer of mediation which Mr Maher declined - hardly evidence that it was creating such difficulties for Mr Maher that he was forced to resign, no matter what Mr Maher may think. I share with Ms Anderson the view that Mr Maher's decision to resign or retire was, in the end, taken on his own volition. Leave to Appeal

18 Section 188(1) of the Act provides that an appeal from a member of the Commission may only be made with leave of the Full Bench. Section 188(2) provides that leave will be granted if the Full Bench is of the opinion that the matter is of such importance that, in the public interest, leave should be granted. Section 188(3) provides that the Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. However, as we have heard all of the parties' submissions, we have reviewed all that material in determining the issue of leave to appeal. 19 The appellant, who appeared in person, submitted the reasons why leave to appeal should be granted are: (a) that the Commissioner's decision makes no reference to evidence before him on a key issue, namely the alleged failure by the Department to apply its policy entitled "The Management of Professional Conduct in the Department of Corrective Services". (b) that the Commissioner denied the appellant procedural fairness, through restricting the answers given by the appellant in cross-examination. (c) that the respondent did not comply with the Commission's procedural guidelines requiring the respondent to adequately foreshadow the evidence it would seek to rely on. Respondent's Submissions on Leave to Appeal 20 The respondent submitted that the appeal did not raise any matter that is of such importance that, in the public interest, leave to appeal should be granted. In response to the appellant's contention that the Commissioner did not address a submission alleging serial bullying in the workplace, the respondent contends that the Commissioner specifically refers to the appellant's submission to that effect and notes with regret that his role is limited to hearing the application brought pursuant to Pt 6 of ch 2 of the Act. 21 Furthermore, the respondent submitted that the claim made by the appellant that he was denied procedural fairness, is false and points to various examples in the transcript where the appellant had ample opportunity to put forth his submissions at first instance. The respondent also referred to the Commissioner's comments with respect to the relevance of some of the evidence submitted by the appellant. 22 The respondent submitted that the appellant's claim that the Department refused to adequately investigate serious workplace misconducts, is false. The respondent referred to the mediation offered to the appellant and options provided by the Department to ventilate the concerns of the appellant. The respondent also disputed claims made by the appellant that there was a life-threatening incident in relation to any staff member prior to the appellant making his decision to submit his resignation. 23 In relation to the appellant's claim that a forced retirement may amount to a constructive dismissal, the respondent contended that the appellant's real complaint was that the Commissioner decided that the Department had not acted in such a manner as to place the appellant in a situation where he needed to terminate his employment. 24 The respondent submitted that leave should be refused on all grounds submitted by the appellant. Principles concerning leave to appeal

25 Leave will not be lightly or automatically granted: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265. The legislative intention is to restrict access to appeals to cases that meet the public interest test stated clearly in s 188(2) of the Act.

26 Leave would ordinarily be refused where an appeal raises arguments which were not squarely raised at first instance, that is, where the appellant has brought, in substance, a new or materially different case on appeal: Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264. In appeal proceedings, the Full Bench is not engaged in a rehearing of the proceedings at first instance, but is focused upon the correction of error: Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420; Strathfield Group Ltd v Hall (2002) 121 IR 158 at [45].

27 An appeal should usually raise substantial and important considerations, and any public interest considerations need to be evaluated in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application.

28 Leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Ltd (2005) 146 IR 113. The Appeal 29 The grounds of appeal are: 1. That evidence before the Commissioner of: (i) repeated refusals by the Department to determine the truth or otherwise of alleged serious workplace misconducts; and (ii) the lack of discharge of a duty of care towards the Applicant by Corrective Services' Human Resources Division and other departmental units (such that the department would not even effectively respond when alerted to a life-threatening incident arising from work-related stress) should have resulted in a finding of Unfair Dismissal. 2. A truncation of the hearing prejudicial to the Applicant. 3. Failures of the Respondent to adhere to procedural guidelines, placing the Applicant at a disadvantage. 4. That employees eligible for retirement with superannuation should not be excluded from legal provisions governing Unfair Dismissal. 30 The questions raised by the appeal in the appellant's submissions can be summarised as follows: (a) whether on the proper application of s 89(6) of the Act, employees eligible for retirement with superannuation are excluded from remedies available in unfair dismissal applications; (b) whether unfair dismissal legislation extends to cover situations where the employee was forced to resign, that is, a constructive dismissal; (c) whether the introduction of new evidence obtained by the appellant since the first instance decision will alter the findings made by Commissioner Connor . 31 As part of the appeal, the appellant also sought leave, pursuant to s 191(2) of the Act, that certain evidence obtained under the Freedom of Information Act 1989 be admitted. This evidence was available, but not relied upon by the appellant in the proceedings before the Commissioner. On 29 September 2005, the appellant was directed to file a separate application concerning the admission of this material. 32 After hearing submissions from the parties, the Full Bench rejected the application to admit further evidence. The reasons for this ruling are set out later in this decision.

Appellant's Submissions on Appeal 33 The appellant's core argument is "whether repeated refusals by an employer to apply the employer's policy governing serious misconducts and to provide a safe workplace is of relevance to unfair dismissal proceedings". 34 The essence of the appellant's submissions is that he was subject to an unfair dismissal as his employer's failure to properly address reports of misconduct forced his resignation. The appellant outlines several instances where serious grievances at work were not dealt with effectively, taken seriously or dealt with in accordance with various Departmental policy guidelines. 35 It is also submitted that the actions of the appellant's employer, including disregard for the rules governing serious misconduct and failure to provide adequate measures for re-dress, made the appellant's resignation unavoidable. While the appellant rejected the Department's offer of mediation to settle his concerns, the appellant did submit that the only course of action acceptable to him was the dismissal of his manager, Mr McDonald. 36 The appellant outlined "other devious conduct by the appellant's supervisor" and pressed his claim that the offer of mediation was inappropriate and ineffective. 37 In addition, the appellant argued that s 89(6) of the Act should not preclude substantial compensation for unfair dismissal applications where the applicant in question is eligible for retirement with superannuation. The appellant further submitted that compensation should be calculated to take into effect a recent Public Sector pay rise, loss of promotional opportunities, reduced income, loss of financial advantages and physical illness brought on by the stress of his situation. The appellant also claimed that he was forced into a resignation by the Department, whose main intent was to terminate the employment contract. 38 Finally, the appellant contended that he was denied procedural fairness on two grounds: firstly, material produced by the respondent at the hearing placed the appellant at a disadvantage, and secondly, the refusal by the Commissioner to allow into evidence material on which the appellant had hoped to rely.

Respondent's Submissions on Appeal 39 The respondent submitted that in the event leave to appeal is granted, it: (a) repeats and relies upon its submissions with respect to the appellant's application for leave to appeal;

(b) opposes the admission of further evidence on the basis that, on the appellant's own admission, the material in question was supplied to him no later than 10 July 2005 (that is, some three and a half weeks before the proceedings at first instance). 40 Further, the respondent submitted that: [T]he suggestion that an employee who occupies a supervisory position has been forced to resign/retire in circumstances where that supervisory employee has chosen to resign/retire because his/her employer decides to attempt to resolve complaints made by that employee against his/her own supervisor by mediation rather than by means of a disciplinary investigation is untenable.

41 The respondent submitted that the only conclusion that can result from the appellant's submissions is that it was the conduct in relation to the method adopted by the Department as a means of dealing with the appellant's complaints, as opposed to the conduct in relation to which the appellant complained, which caused the appellant to retire. 42 The respondent pressed its submission that the appellant misled the Commissioner during the hearing through unreliable statements and misinterpretation of comments made by persons other than himself. The respondent also submitted that the arguments advanced by the appellant regarding his inability to protect his staff are unsupported by affidavit evidence supplied by the appellant. Furthermore, there is little evidence to support the appellant's contention that the only means of dealing with the appellant's complaints was by disciplinary investigation. 43 In relation to the issue of procedural fairness, the respondent submitted that all of the material that the appellant wanted to tender into evidence was admitted at the hearing without objection. 44 The respondent noted that the appellant did not seek re-instatement or re-employment, but monetary compensation. In this regard the respondent noted in its written submissions: On his own admission, subsequent to his retirement, the Appellant had not made any attempt to find other employment. In other words, the Appellant made no attempt to mitigate any alleged loss. In this regard, the appellant was aware that he was entitled to obtain other employment.

In addition, by choosing the option of retirement [which he informed the Superannuation Board was a "normal retirement"] the appellant obtained the benefit of a concessional tax rate on the monetary value of the annual leave and long service leave that was due to him at the time of his retirement.

Appellant's Submissions in Reply 45 In respect to the respondent's objection to the admission of further evidence, the appellant submits that information obtained under the Freedom of Information Act from the WorkCover Authority of New South Wales and the Department of Corrective Services: addresses issues central to his case and asks the Industrial Relations Commission to admit the new evidence on either or both of the grounds provided by legislation. 46 Further, the appellant submitted that it was the totality of his situation as an unsupported district manager of Probation and Parole that led to his forced resignation. The appellant further submitted that he had no alternative but to resign as he was constantly undermined in the discharge of his duties over a substantial time period. 47 The appellant disputed the claims that he misled the Commission. The appellant contended that the submissions made are factually correct and are not a trivialisation of events which took place. The appellant disputed the claim made by the respondent regarding the way in which the Department addressed the appellant's complaints. 48 The appellant repeated his submission that he was denied procedural fairness in not being able to refer to particular material at the hearing following the Commissioner's decision concerning the relevance of that material to the hearing. 49 Finally, the appellant submitted that an application for monetary compensation was the only option available to him. Moreover, the appellant claimed that, as the appeal raised matters of social importance to the application of unfair dismissal proceedings and concerned the operation and effectiveness of workplace dispute management practices, leave should be granted and the appeal allowed. Admission of Further Evidence 50 The most authoritative exposition by the Commission on the issue of the admission of further evidence is the Full Bench decision in CCH Australia Ltd v Bowen (1998) 79 IR 206 where, at 211, it was held: As Dixon J said in Orr v Holmes [(1948) 76 CLR 632] at 642 - "But the evident purpose (of the applicable tests) is to ensure that new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue" (emphasis added). Given that each case requires consideration in light of its own particular circumstances, it seems to us only open to hold, as the Full Commission did in Donato [(1994) 58 IR 239] at 243, that the purpose of fresh evidence is to avoid "a miscarriage of justice" and, as Northrop J said in Turner v Jupiters Management Ltd [(1989) 29 IR 276] at 277, that the power to allow further evidence on appeal "is exercised rarely and in exceptional circumstances only". 51 We have applied the approach in CCH Australia in determining the appellant's application to admit the further evidence. The additional material obtained by the appellant under the Freedom of Information legislation does not, prima facie, contain information that "places such a different complexion" on the appeal that leave should be granted under s 191(2) of the Act. Furthermore, such evidence was available to the appellant prior to the commencement of the hearing. In our view, had such evidence been considered by the Commissioner, it would not have brought about a different result. Accordingly, we rejected the application for leave to introduce further evidence pursuant to s 191(2) of the Act. Conclusion

52 We consider this appeal does not raise a matter or matters of such importance that in the public interest we should grant leave. We do not therefore propose to grant leave to appeal.

53 It is a well established principle in this jurisdiction that leave will not generally be granted where the issues in the appeal have already been the subject of authoritative pronouncement: De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 at 482. On the material before us, we are not convinced that the present appeal raises substantial or important issues of practice, procedure or principle beyond those which are already settled. The case law in respect of constructive dismissal is clear. In our view, no issue of principle arises warranting the granting of leave to appeal: Broken Hill Chamber of Commerce Inc v Barrier Industrial Council (2003) 146 IR 373.

54 We are satisfied that the Commissioner has undertaken a proper and balanced approach in his consideration of the evidence put before him on behalf of the appellant and respondent in the proceedings at first instance. 55 We do not accept that the appellant has suffered procedural unfairness or a denial of natural justice. We are similarly unconvinced by the appellant's submissions regarding the remaining grounds of appeal.

56 What remains is largely a factual controversy. It is not appropriate that leave to appeal be granted to enable the appellant to re-argue his case on the facts. In this regard, we concur with the findings of the Full Bench of the Commission in Austin v NF Importers at [5]: If an appeal seeks, by and large, to challenge findings of fact or the exercise of discretion of a member of the Commission, it will face a significant hurdle obtaining leave to appeal. In Box Valley Pty Ltd v Price (2000) 97 IR 484, the Full Bench stated at [4]: In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave.

57 Although we may not have approached the matter in the same way as the Commissioner, we can discern no error. 58 The factual circumstances of the applicant's alleged constructive dismissal were, to say the least, quite unusual. Nevertheless, the Commissioner's procedural approach in the particular circumstances before him and his finding that the appellant was not constructively dismissed were reasonably open to him on the evidence. The Commissioner identified a proper basis for his conclusions. In that regard, authorities such as Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 at 392 - 393 and National Union of Workers (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 at [63] emphasise the primacy that must be given to first instance decisions in cases such as the present. Leave to appeal should be refused. ORDERS 59 Accordingly, we refuse leave to appeal and make the following orders: 1. Leave to appeal is refused;

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.

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