Mikhail Karem-Al Fidawy v The Sydney Opera House Trust

Industrial Relations Commission (NSW)|2017-10-27

Solicitors: Green & Associates (Applicant) Lander and Rogers (Respondent) File Number(s): 2017/194200

Judgment

The applicant alleges he was dismissed or threatened with dismissal from his employment in the Public Service of New South Wales. He has made an application pursuant to section 84 of the Industrial Relations Act 1996 (NSW) ("the Act").
The respondent contends that there has been no dismissal and there is no ongoing threat of dismissal. The respondent has moved the Commission to dismiss the applicant's claim.

Background

The respondent read an affidavit of Kirsty Boyes, Acting Director, People and Culture at the Sydney Opera House. The applicant also swore an affidavit which was read on the motion. Neither witness was required for cross examination.

Principles to be applied

There was no dispute as to the approach the Commission should take to the consideration of the respondent's motion. Mr Woods, solicitor for the respondent, relied upon the Uniform Civil Procedure Rules 2005 (NSW) Pt 14 r 28(1)(a). He referred to the decision of the High Court in General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69. In particular he referred to the often quoted passage from the judgment of Barwick CJ at 129: The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".
Mr Woods also referred to Agar V Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57] (Gaudron, McHugh and Gummow JJ) and the decision of Newall C in this jurisdiction in Unuafe v Commissioner of Police [2015] NSWIRComm 1007 at [10].
In addition to those authorities Mr Britt, of counsel, for the applicant referred to a number of authorities applying these principles in the Commission. Many of those refer to the jurisdiction of the Industrial Court in which the questions raised as to jurisdiction required substantial investigation of factual matters to determine, for example, whether the matter concerned an arrangement by which work was performed in accordance with the terms of s 106 of the Act. In circumstances such as that the Industrial Court applied a test of determining whether it was an appropriate or convenient time to determine the question of jurisdiction: Nagle (t/as W.D. and J.L. Nagle & Sons) v Tilburg [1993] 51 IR 8 at 10-12; Virtue v NSW Department of Education (1999) 92 IR 447 at [28] and Australian Co-operative Foods Limited v SW & JD Reilly & Sons Pty Limited [2010] NSWIRComm 110 at [15].
Particularly in the light of those authorities Mr Britt submitted: Finally, in our submission, the authorities make clear that the proposition that whilst it is desirable for a case to be determined at an early stage it is only open to do so at the appropriate stage of the proceedings, that is, where the facts, either established by evidence or plainly agreed in terms, enable the Commission to determine what the contract or arrangement is or, at least, the parameters of the contract or arrangement.
It was in that context in particular that he relied on the description of the applicant's employment status as "Temporary" following the reduction in grade as raising a question of fact requiring determination. I will return to that point following a review of the legislative provisions.

Relevant Legislation

Employment and discipline in the Public Service is regulated by the GSE Act. Relevant provisions are: 43 Kinds of employment (1) Employment as a Public Service non-executive employee may be any one of the following kinds of employment: (a) ongoing employment, (b) temporary employment, (c) casual employment. (2) Ongoing employment is employment that continues until the employee resigns or his or her employment is terminated. (3) Temporary employment is employment for a temporary purpose. (4) Casual employment is employment to carry out irregular, intermittent, short-term, urgent or other work as and when required. … (Emphasis added) 45 Employment in classifications of work (1) Public Service non-executive employees are to be employed in a classification of work determined by the head of the Public Service agency in which the person is employed in accordance with this Act and any other Act or law. Note. See Division 6 in relation to classifications determined under industrial instruments. (2) A classification of work extends to any kind of work and any grade of that work. 46 Assignment to roles in work classifications (1) In this section: assign to a role includes assign to a different role. (2) The head of a Public Service agency may from time to time assign Public Service non-executive employees of the agency to roles in the agency in the classification of work in which the employees are employed. (3) Public Service non-executive employees may be assigned to roles to enable the flexible deployment of staff resources within the agency and to develop the capabilities of staff. (4) A Public Service non-executive employee is not to be assigned to a different role unless the employee has been consulted. The remuneration payable to the employee is not to be reduced because of the assignment to the different role without the consent of the employee. 47 Termination of employment (1) The head of a Public Service agency may, by instrument in writing, terminate the employment of a Public Service non-executive employee of the agency on any of the following grounds if the employment is ongoing employment: (a) the employee has failed to meet a condition of engagement as an employee under section 54, (b) the employee lacks, or has lost, an essential qualification for performing the duties of the role assigned to the employee, (c) the performance of the employee is determined under section 68 to be unsatisfactory, (d) the employee is unable to perform the duties of the role assigned to the employee because of physical or mental incapacity, (e) the employee is retired on medical grounds under section 56, (f) the employee has refused to perform the duties of the role assigned to the employee, (g) the employee has abandoned his or her employment, (h) a finding of misconduct has been made against the employee under section 69, (i) (Repealed) (j) the employee is determined in accordance with the regulations and the government sector employment rules to be excess to the requirements of the relevant part of the agency in which he or she is employed, (k) on any other ground prescribed by the regulations. The instrument is to set out the ground or grounds on which the employment is terminated. (2) The head of a Public Service agency may, by instrument in writing, terminate the employment of a Public Service non-executive employee of the agency at any time if the employment is not ongoing employment. (Emphasis added) 48 Matters that government sector employment rules may deal with The government sector employment rules may deal with any matter relating to the employment of Public Service non-executive employees, including (without limitation) the following matters: (a) the recruitment of any such employees (including the recruitment process and the application of the principle of employment on merit), (b) the circumstances in which any such employees may be employed in particular kinds of employment, (c) the conditions of engagement of any such employees, (d) work level standards for roles in classifications of work in which any such employees are employed, (e) methods of job evaluation for the roles of any such employees, (f) capabilities for the roles of any such employees, (g) the assignment of any such employees to roles (including temporary assignment to another role), (h) (Repealed) (i) the termination of employment of any such employees, (j) dealing with any such employees who are excess employees. 68 Unsatisfactory performance of government sector employees (1) The government sector employment rules may deal with the procedural requirements for dealing with unsatisfactory performance (consistently with procedural fairness). (2) If the performance of an employee of a government sector agency is determined to be unsatisfactory in accordance with those rules, the person who exercises employer functions in relation to the employee may (without limitation on relevant action) take any of the following actions: (a) terminate the employment of the employee (after giving the employee an opportunity to resign), (b) reduce the remuneration payable to the employee, (c) reduce the classification or grade of the employee, (d) assign the employee to a different role. (3) This section does not apply to that part of the NSW Police Force comprising police officers or to any employees of a government sector agency excluded from this section by the regulations. (Emphasis added) 69 Misconduct - Public Service and other prescribed government sector employees (1) In this section: government sector agency means: (a) a Public Service agency, and … misconduct extends to the following: (a) a contravention of this Act or an instrument made under this Act, (b) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act, (c) taking any action against another employee of a government sector agency that is substantially in reprisal for a disclosure made by that employee of the alleged misconduct of the employee taking that action, (d) a conviction or finding of guilt for a serious offence. The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment. … (2) The person who exercises employer functions in relation to an employee of a government sector agency is responsible for dealing with any misconduct by that employee in accordance with this section. (3) The government sector employment rules may deal with the following: (a) misconduct by employees of government sector agencies, (b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness). (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. (5) Proceedings and actions under this section may be taken or continued despite the employee resigning or otherwise ceasing to be an employee of the agency concerned. Any such action may be expressed to be a termination of employment even if the person has ceased to be an employee. (6) This section does not apply to that part of the NSW Police Force comprising police officers or to any employees of a government sector agency excluded from this section by the regulations. (Emphasis added)
The GSE Rules provide relevantly: 38 Initial stage for dealing with allegations of misconduct (1) An allegation of misconduct by an employee of a government sector agency may be made by any person to the person who exercises employer functions in relation to the employee. (1A) The employee in respect of whom the allegation is made is referred to in this Part as the relevant employee and the person who exercises employer functions in relation to the employee is referred to in this Part as the employer. (2) After making an initial assessment of the allegation, the employer may decide not to proceed with the matter if the employer is satisfied that: (a) the allegation is vexatious or trivial, or (b) the incident or conduct concerned does not amount to misconduct, or (c) there is likely to be difficulty in establishing the facts of the matter. (3) If, after making an initial assessment, the employer decides to proceed with the matter, the relevant employee is to be advised: (a) of the details of the allegation of misconduct, and (b) of the action that may be taken under section 69 (4) of the Act against the employee. (4) The relevant employee is to be given a reasonable opportunity to make a statement in relation to the allegation. (5) The employer may, as a result of any such statement by the relevant employee: (a) decide to proceed to deal with the matter in accordance with this Part, or (b) decide not to proceed any further with the matter. The relevant employee is to be notified of the employer's decision. (6) The person making an allegation of misconduct is to be informed of any decision by the employer under this rule not to proceed with the matter. 40 Findings by employer (1) The employer may, in dealing with an allegation of misconduct: (a) make a finding of misconduct by the relevant employee (in which case the employee is to be notified of the finding in writing), or (b) make a finding that misconduct by the relevant employee has not occurred (in which case the employer is to dismiss the allegation and advise the relevant employee in writing). (2) The employer may not take any action under section 69 (4) of the Act in relation to an employee unless: (a) the employee is notified of the proposed action to be taken, and (b) the employee is given a reasonable opportunity to make submissions in relation to the proposed action, and (c) if any such submissions are made, the employer has taken those submissions into consideration. (3) If the employer makes a finding of misconduct in relation to an employee, the employer may, instead of taking action under section 69 (4) of the Act, require the conduct of the employee to be monitored over a specified period notified to the employee. (4) If, during that specified period, the employer is satisfied that the employee has engaged in misconduct of the same or similar kind as the misconduct the subject of the previous finding, the employer may take any action under section 69 (4) of the Act in respect of the employee. (5) In that case, the employee is not required to be given an opportunity to make submissions in relation to the action proposed to be taken by the employer.
The following observations about the legislative scheme are relevant: 1. Employment may be ongoing, temporary or casual - GSE Act s 43(1); 2. Temporary employment is subject to specified limitations - GSE Act ss 10 and 43(3) and GSE Rules rr 21 and 22; 3. Termination of the employment of ongoing employees must be notified to the employee by instrument in writing and be based on a specified ground or grounds - GSE Act s 47(1) 4. If misconduct is alleged against an employee the GSE Rules specify the procedure to be followed - GSE Rules r 38; 5. If allegations of misconduct are sustained the employer may determine to take one of the actions specified in s 69(4) of the GSE Act but must not do so until advising the employee of the proposed action, inviting submissions as to that proposal and considering those submissions - r 40(2) GSE Rules.

Consideration

The actions taken by the employer in this case accord with the procedure outlined in the legislation and the GSE Rules and need to be seen in that context. The disciplinary procedure followed by the employer was necessary in relation to an employee engaged in ongoing employment. The letter dated 27 March 2017 was provided consistent with the requirements of r 38(3) of the GSE Rules. The letter dated 17 May 2017 was consistent with the requirements of r 40(2) of the GSE Rules. The decision conveyed by letter dated 31 May 2017 was consistent with that rule and s 69(4). Were the applicant not in ongoing employment action may have been taken in accordance with s 47(2) of the GSE Act.
The decision taken by the respondent at that time was not a decision to terminate the employment in accordance with s 69(4)(a) or (b) but a decision authorised by s 69(4)(e) and (f) (and possibly (d)). Did these actions constitute a dismissal or a threat of dismissal?

Demotion

Mr Britt submitted that the demotion (or reduction in grade) may be a dismissal for the purposes of s 83(5) of the Act. He referred in particular to the decision of a Full Bench of the Commission in Clarke v Pittwater RSL Club Limited (1998) 84 IR 309 at 311 where the Commission said: In determining whether or not there has been a dismissal from employment it is necessary to determine what that employment is. The evidence before the Commissioner was to the effect that the appellant at all times was employed as a receptionist/doorperson. There is no evidence that he was employed to carry out any other duties, that there was a contractual requirement to carry out any other duties, or that any applicable award provision permitted the Club to unilaterally vary the incidents of employment. In these circumstances the employment of the appellant was as a receptionist/doorperson. We distinguish, by way of example, circumstances where the appellant may have been employed by the respondent to perform certain duties or any other duties that the employer might require the employee to carry out from time to time, or where the employer has similar rights pursuant to an award provision. The determination or variation of the "employment" of the appellant in those hypothetical circumstances would require a different consideration and may result in a different answer.
In my view application of that authority in this case demands recognition of the statutory framework relating to this employment. In particular the clear distinction drawn between termination of employment and reduction in grade.
Other authorities referred to by Mr Britt included Buttigieg v Shoalhaven City Council [2009] NSWIRComm 1080 at [10] and on appeal in Buttigieg v Shoalhaven City Council at [2010] NSWIRComm 43 at [5]. He submitted that these authorities also supported the proposition that the determination of whether a demotion constituted a dismissal required an investigation of the factual circumstances. But the employment under consideration in those matters was not governed by an elaborate statutory scheme such as applies in the present matter.
For completeness it is appropriate to note that s 84 of the Act is found in Ch 2 Part 6 of the Act. Ch 2 Pt 7 provides in s 98 for appeals to the Commission against certain public sector disciplinary decisions. The section relevantly provides: 98 Right of appeal (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer. The term 'appealable decision is defined in s 91 as follows: appealable decision means a decision of a kind referred to in section 97 (1). In turn s 97(1) 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. (Emphasis added)
The parallels with s 69(4) of the GSE Act are evident.
Moreover, ss 83 and 84 of Ch 2 Pt 6 relevantly provide: 83 Application of Part (1) This Part applies to the dismissal of: (a) any public sector employee, or … 84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. … (5) In this Part: dismissal includes: (a) the threat of dismissal, and (b) in the case of a public sector employee - dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against, or the commission of an offence by, the employee or annulling the appointment of the employee.
The principles of statutory construction, recently revisited in Kaldas v Barbour [2017] NSWCA 275 (Bathurst CJ at [116]), include a requirement: that the statute must be read as a whole on the prima facie basis that its provisions are intended to give effect to harmonious goals: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70]; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; [2014] HCA 34 at [42].
There is no justification to construe "dismissal" in s 84 differently from the way that word is used in s 97(1) at least in relation to a public sector employee. I am reinforced in that view by the terms of s 84(5)(b) of the Act. Although the definition is expressed to be inclusive, in my view it is clear that the concept of dismissal for public sector employees is confined to termination of the employment.
I conclude therefore that a reduction in grade (or demotion) in accordance with s 69(4) of the GSE Act is not a dismissal within the meaning of s 84 of the Act.

Threat of Dismissal

Firstly, as noted above at [14], Mr Britt relied upon the reference to employment status as "Temporary" to support the proposition that there was a threat of dismissal, notwithstanding the evidence of Ms Boyes. As to her evidence Mr Britt submitted that it proved that the issue concerns a question of fact to be determined. Therefore, he submitted, the respondent cannot meet the standard required for a strike out or, in the alternative, it is not the appropriate time to determine the question of jurisdiction. But not every issue of fact requires a detailed consideration of competing evidence. That is particularly so in this case.
The course followed by the respondent and outlined at [6] - [9] above was consistent with the legislative requirements of the GSE Act and GSE Rules. That legislative framework does not permit the respondent simply to change the employment status of an ongoing employee. Section 43(2) of the GSE Act, set out above, defines ongoing employment as employment which continues until the employee resigns or the employment is terminated. There is no suggestion that the former has happened and, for the reasons given in relation to the issue of demotion, neither has the latter.
I conclude therefore that there is no threat of dismissal on the basis that the employment status is temporary. The evidence of Ms Boyes simply confirms my observations about the operation of the legislative scheme.
Secondly, it was submitted the letter dated 17 May 2017 constituted a threat of dismissal. As I have observed, that letter is to be seen in the context of the legislative scheme. In that scheme it complies with the requirements of r 40(2) of the GSE Rules. Even if it were accepted that it evidences that there was a threat (although I would prefer the word risk) of dismissal the decisions taken subsequently have removed that threat. There was certainly no ongoing threat by the time the case reached the Commission. By that time the respondent had made the decision to reduce the applicants grade and assign him to a new role.

Conclusions

I conclude therefore that the Commission lacks jurisdiction to deal with this matter as there is no dismissal within the meaning of s 84 or threat of dismissal within the meaning of s 84(5) of the Act. I therefore will make the first order sought in the motion.

Costs

The second order sought was for costs. There were no submissions on that point. In light of the terms of s 181 of the Act I am not presently minded to make any order as to costs. Any party seeking an alternative order should make a written submission in support of the order sought within 7 days of the publication of these reasons.

Order

I order that the proceedings be dismissed.

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: 12 December 2017

Government Sector Employment (General) Rules 2013(NSW)rr 21, 22, 38

Public Sector Employment and Management Act 2002(NSW)s 27

Government Sector Employment Act 2013(NSW)ss 10, 43, 45, 46, 47, 48, 68

Industrial Relations Act 1996(NSW)ss 83, 84, 91, 97, 98

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (5)

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Cited By (2)