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[2003] NSWIRComm 309
plaintiff. The Commission found that Chami-Rafiqi had been unfairly dismissed on 14 January 2003. Under s 89(1), it ordered reinstatement as Deputy Principal. Under s 89(3), it ordered payment equivalent to...
The Commission rejected the College's claim that the employee had brought her employment to an end herself. It found she had been dismissed and that the College did not properly put its allegations to her or give her a fair chance to respond. Because the alleged shortcomings might have had innocent explanations, the Commission considered the process and dismissal unfair. It ordered her return to her substantive Deputy Principal role, payment for remuneration lost with casual teaching income deducted, and continuity of service. It also dealt with a separate possible pay shortfall and allowed the parties to return to the Commission if that issue was not resolved.
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2,115 words · generated 30/09/2026
This decision concerns an unfair dismissal application brought under s 84 of the Industrial Relations Act 1996 by the New South Wales Independent Education Union on behalf of Samira Chami-Rafiqi. The application sought reinstatement to her Deputy Principal position at King Abdul Aziz College (KAAC) in Rooty Hill ([1]).
No linked legislation citations have been extracted yet.
Chami-Rafiqi started at KAAC in May 2002 while on leave without pay from her teaching position in the NSW Department of Education and Training ([2]). From about late July 2002, she also acted as Principal ([6]). The Commission described her relationship with the Board Chairman, Dr Akbar Khan, as less than harmonious from relatively early in the employment relationship ([3]).
Several disputes concerned her conduct in carrying out school functions. During building works, she wrote to the Association of Independent Schools' Block Grants Authority about the commencement of the work. The Commission accepted her account that the Treasurer had instructed her to write the letter, that she had expressed reservations, and that she was later criticised by Dr Khan without proper basis ([6]–[8]). It also considered accusations about invitations and material distributed at a public meeting in October 2002. The Commission found that the evidentiary basis for suspecting or accusing her of sending an offending invitation was extremely weak, and accepted her denial of responsibility for both that invitation and the distribution of material ([9]–[14]).
The judgment describes increasing conflict and criticism at Board level, including the employee's concern about interference in the school's day-to-day running and what she perceived as the undermining of her Acting Principal role ([15]). She was absent through illness from 28 November 2002 ([18]). The union had also begun separate industrial dispute proceedings, addressing broader workplace issues. The Commission referred to those complaints to describe the industrial climate, not to determine all of them in this application ([19]–[20]).
KAAC contended that Chami-Rafiqi had repudiated or abandoned her employment. The Commission rejected that account and found that she was dismissed on 14 January 2003 ([4]–[5], [17], [21]–[23], [28]–[29]). It held that the dismissal was harsh, unreasonable and unjust because the employee had been denied procedural fairness and was not given a proper chance to answer allegations that could have innocent explanations ([24], [28]). The Commission ordered reinstatement as Deputy Principal, lost remuneration subject to an offset for casual teaching income, and continuity of service ([33]–[35]).
The first question was whether the employment relationship ended through the employee's own conduct or through dismissal. The Commission did not accept the College's characterisation of events as resignation, repudiation or abandonment. It noted that a letter sent on the College's behalf after earlier dispute proceedings confirmed that her employment had been terminated ([4]). It also relied on the employee's and union's consistent rejection of the assertion that she had resigned or otherwise ended the relationship ([5]).
The Commission found the abandonment or resignation theory lacked objective merit. It accepted evidence that Chami-Rafiqi had wanted to continue as Deputy Principal, even if she relinquished the Acting Principal role. Her arrangements to extend leave without pay from the Department of Education and Training supported that account, despite the adverse effect those arrangements had on her ability to return to her former school ([16]–[17]). The judgment's finding that she was dismissed was therefore based on the evidence and the circumstances, including the College's own confirmation of termination, rather than on a general test for abandonment ([4]–[5], [17], [21]–[23]).
The procedural fairness issue was central. The Commission said the Board should have fairly put the nature and basis of alleged wrongdoing or unsatisfactory performance to the employee and then given her an opportunity to respond ([24]). Instead, it found that the Board, particularly Dr Khan, reached adverse conclusions without serious attempts to establish the objective facts and without involving the employee in that process. She was left to defend herself after conclusions had already been presented to her ([24]). The Commission also considered it unfair that allegations had been publicised beyond the College Board in a way that was distressing for her ([24]).
The Commission then considered whether those procedural shortcomings supported a finding under s 84 that the dismissal was harsh, unreasonable or unjust. It relied on Antonakopoulos v State Bank of NSW, which it quoted for the proposition that unfair procedure is relevant to the statutory assessment and may, in a suitable case, itself result in such a finding ([26]). The Commission's own application was specific: the alleged shortcomings for which the employee was held accountable were amenable to innocent explanation if she had been given a proper opportunity to respond ([28]). It also noted that the College advanced no termination reason other than abandonment or repudiation, depriving the employee and union of the opportunity to raise a defence before the relationship ended ([28]).
For remedy, the Commission treated reinstatement as the primary remedy unless impracticable. It stated that compensation is available when it is adjudged impracticable to restore the employment relationship ([30]). The evidence had not canvassed impracticability ([31]). While the Commission acknowledged that reinstatement might initially involve difficulty or embarrassment, it considered those difficulties likely to be transient ([31]). It also set out the passage from Perkins v Grace Worldwide about the need to scrutinise an employer's claim that loss of confidence makes reinstatement impracticable, and about the capacity of employment relationships to withstand some friction ([32]). Applying its remedial approach, the Commission ordered reinstatement to Chami-Rafiqi's substantive Deputy Principal position, rather than her Acting Principal role ([33]).
This judgment applies, rather than purports to create, the legal approach it describes. For the s 84 issue, it quotes Antonakopoulos for the proposition that procedural fairness matters as part of the assessment of whether a dismissal was harsh, unreasonable or unjust. The quoted passage also cautions that the Commission must consider all relevant circumstances, not procedure alone ([26]). The decision's contribution is its application of that approach to the facts before Grayson DP, particularly the failure to offer an opportunity to answer potentially innocent explanations ([24], [28]).
On remedy, the decision states that reinstatement is the primary and most appropriate remedy unless impracticable, with monetary compensation available when restoration cannot practicably occur ([30]). It refers to Commonwealth Steel Company v Word and IGA Distribution Pty Ltd v Moses (No. 2) in support of that remedial approach ([30]). It also uses Perkins v Grace Worldwide to explain why employer discomfort or some loss of confidence does not necessarily make reinstatement impracticable ([32]).
The judgment does not describe a “before and after” change to the law. It does not purport to alter the statutory test or overrule prior decisions. Instead, it applies the cited principles to a case where the employee had not been fairly confronted with the allegations and where the Commission found the allegations capable of innocent explanation ([26]–[30]).
At [24], the Commission says the employee “was merely presented” with conclusions adverse to her and left to defend herself. In plain English, the problem was not simply that the Board reached a view she disagreed with. The Commission found that she was not given a fair process to understand and answer the allegations before the College acted.
At [28], the Commission explains that the alleged shortcomings “were amenable to innocent explanation” if the employee had received the proper opportunity. This means the Commission considered that hearing her explanation could have affected the employer's understanding of what happened. The judgment does not say that an employee's explanation must always be accepted; it identifies the absence of an opportunity to provide one as a significant feature in this case.
At [24], the Commission also notes that the allegations were publicised beyond the Board in a way that was unfair and distressing. This observation contributes to the factual picture of how the process affected the employee, but the central procedural finding was the failure to put the allegations fairly and allow a response.
At [30], the Commission states that reinstatement is the primary and most appropriate remedy unless it is found impracticable. In plain English, the Commission's starting point after finding an unfair dismissal was restoration of the employment relationship, not immediate substitution of a compensation-only remedy. It then considered whether reinstatement could practically work in these circumstances ([31]–[33]).
At [34], it ordered payment equivalent to remuneration lost because of the dismissal, while requiring deduction of remuneration earned through casual teaching. At [35], it ordered that the period of employment be treated as unbroken by the dismissal. These orders addressed lost income and continuity of service separately from reinstatement.
The reasoning is most directly relevant to disputes where an employer says there was no dismissal because the employee resigned, abandoned work or repudiated the relationship, but the surrounding evidence may support a finding that the employer actually terminated employment. In this case, the Commission considered the employer's written confirmation of termination, the employee's consistent denial of resignation and evidence that she intended to continue as Deputy Principal ([4]–[5], [16]–[17]).
The procedural fairness analysis is relevant to cases where adverse conclusions are reached about alleged misconduct or poor performance without fairly identifying the allegations and allowing the employee to answer them. The point is especially significant on this judgment's facts because the Commission considered that the alleged shortcomings were capable of innocent explanation ([24], [28]). The decision also illustrates how an employer's reliance on an account of abandonment or repudiation, if it is the only asserted reason for ending employment, may leave the employee without a proper pre-dismissal opportunity to respond to the actual concerns ([28]).
For remedy, the judgment is relevant where reinstatement is sought and the employer relies on anticipated friction or loss of confidence. The Commission's account of the cited Perkins approach was that such concerns need careful assessment and do not automatically establish impracticability ([31]–[33]). The decision does not establish that reinstatement is appropriate in every unfair dismissal case; it records a fact-specific finding that impracticability was not established on the evidence before it.
The judgment is dated 3 October 2003 and does not discuss later treatment of its own decision. The supplied judgment text therefore does not establish whether subsequent courts or tribunals followed, distinguished, criticised or otherwise treated New South Wales Independent Education Union v King Abdul Aziz College.
The decision does explain how it used earlier authorities. It relied on Antonakopoulos for the s 84 approach to procedural fairness and on Commonwealth Steel Company v Word and IGA Distribution Pty Ltd v Moses (No. 2) for the primacy of reinstatement unless impracticable ([26], [30]). It discussed Perkins v Grace Worldwide in relation to loss of confidence and practicability, and noted that the passage had been cited with approval in CCH Australia Ltd v Bowen and Oswald v New South Wales Police Service ([32]–[33]). Those references describe authorities available to the Commission when it decided this case, not the later treatment of the 2003 decision itself.
The judgment does not set out a general test for deciding when conduct amounts to repudiation or abandonment of employment. Its conclusion rests on the specific evidence, including the College's termination correspondence and the employee's demonstrated wish to continue in her substantive role ([4]–[5], [16]–[17]).
Nor does it establish that every denial of procedural fairness, by itself, makes a dismissal harsh, unreasonable or unjust. The Commission referred to the need to consider all relevant circumstances and relied particularly on the fact that the alleged shortcomings were amenable to innocent explanation ([26], [28]). The decision does not specify how the result might differ if the employee had already been given a meaningful opportunity to respond, or if the allegations were not capable of an innocent explanation.
On reinstatement, the Commission noted that impracticability had not been canvassed in the evidence ([31]). Its order therefore does not resolve how a differently developed record about workplace viability, duties, or operational circumstances might affect the remedy. The judgment also does not quantify the remuneration order, since it directs calculation by reference to lost remuneration and deduction of casual teaching income ([34]).
Finally, the separate shortfall issue was not fully determined. The Commission recorded the College's undertaking and the existence of pay records produced in response to subpoena but not tendered in evidence. It directed the College to attend to the matter and allowed the parties to apply if it remained unresolved ([37]).
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CITATION : New South Wales Independent Education Union (on behalf of Chami-Rafiqi) v King Abdul Aziz College [2003] NSWIRComm 309 PARTIES : New South Wales Independent Education Union King Abdul Aziz College FILE NUMBER: 514 of 2003 CORAM: Grayson DP Alleged unfair dismissal, repudiation and/or abandonment of employment, alleged misconduct, procedural fairness, intervention in day to day running of school, disharmony between applicant and school board, industrial dispute, whether employment was of an ongoing nature, small claim. CATCHWORDS : Held, allegations of repudiation and/or abandonment devoid of objective merit, applicant wrongly accused of misconduct, applicant denied procedural fairness, failure to afford oppurtunity to explain alleged misconduct where amenable to innocent explanation, dimissal harsh unreasonable and unjust, reinsatement ordered, amount equal to lost remuneration ordered, continuity of service ordered, liberty to apply in respect of unresolved small claim. LEGISLATION CITED : Industrial Relations Act 1996 Antonakopoulos -v- State Bank of NSW [1999] 91 IR 385 Mason -v- Electricity Commision of NSW [1995] 62 IR 436 McCabe -v- New South Wales Police Service [1996] unreported, IRC3112 of 1994, 3 July 1996 Bigg -v- New South Wales Police Service [1998] 80 IR 434 CASES CITED : Oswald -v- New South Wales Police Service [1990] 90 IR 42 Johnson -v- Catholic Education Office, Diocese of Parramatta [1998] 87 IR 57 Commonwealth Steel Company -v- Word [1994] unreported, IRC 3144 of 1993, 16 December 1994 IGA Distribution Pty Ltd -v- Moses (No. 2) [2002] NSWIRComm 96 Perkins -v- Grace Worldwide (Australia) pty Ltd [1997] 72 IR 186 CCH Australia Ltd -v- Bowen [1998] 79 IR 206 HEARING DATES: 03/07/2003; 07/22/2003; 07/29/2003; 07/30/2003; 09/09/2003 DATE OF JUDGMENT: 10/03/2003
Ms C Matthews, Industrial Officer New South Wales Independent Education Union LEGAL REPRESENTATIVES: Mr J Elder, Agent John Elder Consultancy Services
JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES Coram: Grayson DP
NEW SOUTH WALES INDEPENDENT EDUCATION UNION (on behalf of Samira Chami-Rafiqi) AND KING ABDUL AZIZ COLLEGE
Application by New South Wales Education Union (on behalf of Samira Chami-Rafiqi) re unfair dismissal pursuant to s84 of the Industrial Relations Act 1996 DECISION [2003] NSWIRComm 309
1 This matter concerns an application by Samira Chami-Rafiqi for reinstatement to the position of Deputy Principal at King Abdul Aziz College, Rooty Hill (KAAC).
2 The applicant commenced employment in the subject position in May 2002 having taken leave without pay from her teaching position within the NSW Department of Education and Training.
3 From a time shortly after it commenced the employment relationship and in particular the applicant's relationship with the Chairman of the College Board, Dr. Akbar Khan, were less than harmonious and on the applicant's case, she was dismissed on 14 January 2003 in both a procedurally and substantively unfair manner.
4 I say on the applicant's case because it is the respondent's contention that the applicant by her actions, repudiated and/or abandoned the employment relationship. As to that, I am far from persuaded that the ending of the employment relationship came about in any way other than dismissal and for support in that regard, I note among other things, the letter written on the respondent's behalf to the IEU following dispute proceedings before Kavanagh J the previous business day (Matter No. IRC 6821 of 2002). The letter, which accompanied the application for relief in these proceedings, relevantly states as follows: The fact that the employment of Mrs Chami-Rafiqi has been terminated was confirmed to you and to her Honour last Friday in the presence of the Chairman of the Board of King Abdul Aziz College.
5 Such that more is required, it is clear from the events which transpired prior to the above letter being sent, that the applicant and the IEU on her behalf steadfastly refuted the respondent's assertion that she had resigned or by her conduct had in some way brought about an end of the employment relationship. It is equally clear that the respondent had placed the applicant on notice that she may be dismissed from employment if certain alleged shortcomings in her work performance and conduct were not addressed.
6 The evidence revealed that the applicant was appointed as Acting Principal of KAAC from or about Term 3 in late July 2002. The college was involved in substantial building work in the process of which grant funding was being sought from the Block Grants Authority of the Association of Independent Schools (AIS). There was some pressure to commence and I infer, complete the building work quickly and on the version of events I prefer, the applicant was instructed by the college Treasurer Mr. Abbas Chelat, to write to the AIS Block Grants Authority on behalf of KAAC with advice that building work would commence immediately without waiting for grant approval.
7 The applicant said and I accept that she expressed reservations about being asked to write such a letter knowing as she and the KAAC Board members did that the communication of such a decision to the AIS Block Grants Authority would put at significant risk, the then current grant funding application made on behalf of the college. She asked whether Mr. Chelat's instructions in that regard were consistent with the wishes of Dr. Khan and the KAAC Board. She was told by Mr. Chelat that they were and accordingly she wrote the letter.
8 To the extent that the applicant was later roundly rebuked by Dr. Khan for so doing, it seems to me that she did nothing less than she was instructed to by the college Treasurer Mr. Chelat, and to the extent that Mr. Chelat when taken to the matter in cross-examination, attempted to extricate himself from responsibility for the terms in which the letter was written, his evidence is not only inconsistent with the applicant's evidence but also with the evidence of the AIS Block Grant Authority who corroborated the applicant's version. I accept the applicant's evidence in this regard to the exclusion of Mr. Chelat's evidence and find that Dr. Khan's criticism of the applicant was hasty and without proper basis. The applicant said from that time on, however, her working relationship with Dr. Khan was soured.
9 Towards the end of October 2002, a public meeting was organised for the purpose of promoting harmonious community relations. The applicant was asked by Dr. Khan to carry out certain functions such as sending letters of invitation to politicians and other VIP's. The evidence makes it reasonably clear that Dr. Khan wanted certain prominence in the organisation of the public meeting to be given to the Islamic Association Western Suburbs Sydney (IAWSS), an entity with which he was closely associated.
10 Dr. Khan discussed with the applicant and authorised her to sign and send written invitations on IAWSS letterhead albeit on behalf of not only IAWSS but also an entity named Australian Forum as well as the Supreme Islamic Council of NSW. Another participating entity, Blacktown City Community Services Network, independently arranged its own invitations. The sequence of events that followed further demonstrates wrongful conduct on Dr. Khan's part towards the applicant. The events may be briefly described in the following way although they were until very late in the evidence, attended by a considerable degree of obscurity and misunderstanding.
11 Mr. Gabr Elgafi, Chairman of the Supreme Islamic Council of NSW received an invitation to the public meeting on the letterhead of Australian Forum. Mr Elgafi was concerned that invitations under the Australian Forum banner were being sent out inconsistently with his understanding that by prior arrangement between those concerned, such invitations were to be sent out under the IAWSS banner. Mr. Elgafi forwarded a copy of the offending invitation to Dr. Kirmani who preceded Dr. Khan as chairman of the KAAC Board and who maintains an apparently close interest in the affairs of KAAC. Dr. Kirmani informed Dr. Khan about the offending invitation and each of those three persons concluded, I am bound to say on a most inadequate evidentiary basis, that it was the applicant who sent the offending invitation.
12 The applicant was then contacted by Dr. Khan who remonstrated with her. It is clear from the later exchange of correspondence between them that the applicant initially thought she was being taken to task for some meeting notes having been mistakenly circulated by Mrs. Amina Iqbal, a parent assisting in the college office at the time. This and other things given in evidence demonstrate the imperfect nature of communication between Dr. Khan and the applicant as to the alleged shortcomings. At all events, the applicant attempted to explain the mistake to Dr. Khan and then later received a letter from him alleging firstly, that she was responsible for sending the offending invitation and secondly, misrepresenting her position as having admitted her wrongdoing in that regard. The applicant asserts and in the circumstances, I have no difficulty accepting, that she made no such admission, that she sent only the invitations which had been authorised by Dr. Khan and that she was again being blamed by Dr. Khan for something she had not done.
13 The basis for which Mr. Elgafi, then Dr. Kirmani and ultimately Dr. Khan concluded that the applicant had sent the offending invitation is so flimsy as to be virtually non-existent and when each of them were taken to the matter in cross-examination, it became abundantly clear that there was no reasonable basis for suspicion let alone accusation in that regard.
14 The applicant was also blamed for the distribution of Australian Forum material on the actual day of the public meeting and as with the offending invitation, I accept her denial in that regard which is best described in the extract of transcript below: HIS HONOUR: Had you to the best of your knowledge and belief, ever seen an invitation in the name of the Australian Forum and Blacktown City Community Services organisation? A: Absolutely not your Honour. The only invitation I had is the one I used in my statement.
Q: Which is annexure 9 to your statement, is that right? A: The one I will have to look, it is the one with the response on the bottom, and the reason why it is that one is an example that was the one that was sent and that was the one that was responded to. I had never seen anything else. Q: Do you say that is the only invitation you sent or the invitation in those terms with that letterhead? A: Absolutely. I did not have anything to do with the Australian Forum in that sense. I did not have their letterhead, their logo and the only thing I was focused on that day was annexure 8 that is the only other thing. Q: Very well. You have heard evidence to the effect that a bundle of documentary material was distributed on the day, that is 25 October 2002 at this function. I think if I don't misquote Dr. Khan it has been suggested that you may have responsible in part for the distribution of that material. What do you say to that proposition? A: I know the bundle was organised by the Australian Forum and they [were] very late in delivering it, so they arrived with it halfway or a quarter of the way through and everyone saw they arrived and distributed it, and I saw it for the first time and it was said this came from the school. We did not even had such a letterhead like that in the school. It was completely organised outside of the school and brought on the day quite late so everyone saw that. However, the Treasurer had located, with Dr. Kirmani's assistance some information that most of the visitors would be non Muslim and maybe interested in some information so I asked my husband, because my husband has an interest in books and lectures, so they asked my husband if he was aware of some suitable documents that could be given out on the day and that is how that discussion arose with my husband finding some brochures that were generally about Islam which were used on that day. That is how that came about. All the documents in the folder were brought in from outside very late and no one at the school ever denied that they were given out.
HIS HONOUR: You had no part personally in doing that? A: Absolutely not. In fact, until now I have never ever seen them. I saw the folders, the white folders but never looked in [them] and actually seen what they actually produced and put together for that day.
15 Throughout the course of her employment as Acting Principal, the applicant was plainly the subject of criticism at KAAC Board level in respect of the matters to which I have alluded above and also in respect of other matters given in evidence which need not be recited for the purpose of this decision. Equally plainly, the applicant became increasingly concerned by what she regarded as the unreasonable and unwarranted intrusion by Dr. Khan and others into the day to day running of the college and by what she perceived as the systematic undermining of her position as Acting Principal. She said and it was not challenged, that she was approached by parents of students at KAAC who had become aware of these issues and she felt compelled to defend herself publicly when matters had clearly gone beyond discussion at Board level. She became aware, for example, that she had been the subject of adverse comment by Dr. Khan at the mosque and was greatly distressed thereby. The applicant wrote an open letter to the school community as follows: Dear Brothers and Sisters, I wish to clarify certain accusations made publicly to a group of parents, on the 16th [of] November, and privately to various members of the community. I have clarified all allegations in numerous detailed responses to the board previously. In my role as Principal/Deputy Principal, I have sought to comply with all legislation and regulations and acted honestly on all occasions. I have also carried out all instructions given to me by the school board to the best of my abilities (even those beyond the scope of my role as deputy principal/acting principal) except those deemed unethical. Accusations 1. Sent out invitations not in the name of the Association of Western Sydney. Please see copy of invitation provided to verify that this is false. 2. Wrote to AIS re BGA grant on my on accord almost losing the school $300000. Please see a copy of letter from AIS to verify that this is false. 3. I demanded additional $20000 in salary, two weeks into my job. Please see copy of my letter to the board confirming my availability and insisting on being paid minimum award wages , before appointment , to verify that this is false.
Samira Chami-Rafiqi Acting Principal King Abdul Aziz College
16 Although lacking absolute clarity in this regard, the evidence indicates a proposal or expressed willingness on the applicant's part to accept that it would be better for all concerned if she relinquished the role of Acting Principal in favour of the role of Deputy Principal to which she was appointed in May 2002 and in which she wished to continue. Evidence of such a wish was the extension of leave without pay arrangements which she made with the Department of Education and Training in late 2002. This was done by the applicant to facilitate her continuing employment at KAAC on the one hand notwithstanding that it had the adverse effect on the other hand of closing off her right of return to the Hassal Grove school where she had been teaching prior to commencement with KAAC. There seems no basis as Mr. Elder for KAAC submitted, to doubt the applicant's evidence in this regard and I accept it accordingly. It was certainly never put to the applicant that she had manufactured her evidence in this regard and in such circumstances, it is inappropriate as I am disposed, to then bring that evidence into question by way of submissions.
17 At all events, these matters together with her specific denials in this regard, militate heavily against the proposition for which KAAC contends namely, that the applicant at various stages throughout her period of Acting Principal purported to resign her employment with KAAC. It is a proposition that was put to her and rebutted by her and by the IEU and it is a proposition devoid of objective merit as I view the evidence.
18 Be that as it may and whatever may have been the result of the applicant vacating the role of Acting Principal, it transpired that illness caused her to be absent from the workplace from 28 November 2002. It seems from the evidence that she may have been hospitalised on a number of occasions in early December 2002.
19 During that period, dispute proceedings were commenced by the IEU against KAAC which were before the Commission at various times and variously constituted throughout the Christmas/New Year period and into the new law term 2003 (IRC6821 of 2002). In commencing those proceedings, the IEU raised the following concerns: • The management structure of the school. There is ongoing tension between the school Board and the staff as the Board constantly undermines made by the Acting Principal and the staff. This not only damages the professional reputation of our members but constantly leaves the operation of the school in a most difficult state. • A number of Award breaches including, underpayment of wages, avoidance of basic conditions and occupational health and safety standards and an unwillingness to appoint or employ teachers for positions that are specified in the Award. • Evidence of bullying, harassment and pressure upon staff to undertake the requests of the board, even where requests involve illegal activities. • Ongoing resistance of the board to follow responsible procedures in relation to dispute settlement including a disregard for normal protocols in relation to the Award and the Industrial Relations Commission itself. • Vexatious and unprincipled attacks by the Board upon the Acting Principal which seem designed to force her exit from the school.
20 I cite these concerns which self evidently extend well beyond the scope of the present proceedings, not with the intention of necessarily giving currency to the IEU complaints but more as a demonstration of the industrial climate from which the present proceedings emerged.
21 In the course of the dispute proceedings, KAAC advertised for and recruited a new College Principal, Dr. Patterson. They also dismissed the applicant thus giving rise to these proceedings. The applicant's ultimate dismissal followed what can only be described as a series of strained attempts on the part of KAAC by its industrial representative, to characterise the ending of the employment relationship as something other than a dismissal. Correspondence exchanged between the parties which is appended to these reasons indicates the extent of those attempts and the firmness with which they were resisted.
22 That KAAC would persist in their endeavours to characterise the ending of the employment relationship as something other than a dismissal leaves open the inference urged upon the Commission by the IEU namely, that it is a thinly disguised strategy to avoid the task of defending the indefensible.
23 The IEU contends and I am bound to say with some persuasive force in this case, that the evidence not only permits but compels a finding that the applicant was denied procedural fairness.
24 I have little hesitation in reaching such a conclusion and in so doing, note that the KAAC Board and in particular Dr. Khan would have been well served at the outset by advice as to their duties and obligations to the applicant and any other employee for that matter. In that regard the KAAC Board was obliged to fairly put to the applicant the nature and basis of any alleged wrongdoing or unsatisfactory performance on her part and to then afford her an opportunity to respond. Without in any way wishing to be unduly critical, it must be said that the Board did not do this and it is clear enough on the evidence as I view it, that the Board and in particular Dr. Khan as Chairman reached their own conclusions independently of any serious attempts to discover the objective facts and independently of any involvement of the applicant in that regard. Simply put, the applicant was merely presented by Dr. Khan and the KAAC Board with conclusions adverse to her and was then left to her own devices in terms of defending herself. Moreover, her alleged shortcomings were as I have observed, publicised beyond the College Board in a way which was unfair to and distressing for her.
25 Having concluded that the applicant was dismissed and that she was not afforded procedural fairness, I turn to the authorities relevant to the issue as to whether of itself the failure to afford procedural fairness should, as the IEU contends, lead to a conclusion that the dismissal was harsh, unjust or unreasonable.
26 In Antonakopoulos -v- State Bank of NSW (1999) 91 IR 385, the Commission described the relevant principles thus: It is now well established that the exercise of the discretion of the Commission pursuant to s 84 of the Act must be directed to a determination as to whether a dismissal was harsh, unreasonable or unjust. A consideration of unfair procedures will be relevant to the determination of that question. It was stated by a Full Bench in Burke v McGirr (1995) 87 IR 56, that: "the discretionary basis for reinstatement resides in terms of the statute … A consideration of the procedures followed in implementing a dismissal may be relevant in a particular case. Nevertheless, all the relevant circumstances must be considered by the Commission in determining whether a dismissal was harsh, unreasonable or unjust, not merely such procedures alone." However, in our view, the adoption of, or application of, an unfair procedure, may, in itself, result in a dismissal being harsh, unjust or unreasonable. Authority for this approach is clear. For example, in the joint judgment of Brennan CJ, Dawson and Toohey JJ in Byrne v Australian Airlines (1995) 185 CLR 410 at 430; 61 IR 32 at 43, their Honours described the circumstances in which the adoption by an employer of an unfair procedure in the termination of an employee may appropriately give rise to a finding that a dismissal was harsh, unjust or unreasonable as follows: " Save for the prescription of periods of notice, cl 11 does not require the adoption of any particular procedure for the dismissal of an employee. However, it is clear that the use of an unfair procedure may result in a dismissal being harsh, unjust or unreasonable. For example, the failure to afford an employee the opportunity to explain apparent misconduct where there is an innocent explanation available would result in the dismissal of the employee being in breach of cl 11 (a): see Gregory v Phillip Morris Ltd (1988) 24 IR 397 at 412-413, 414-415; 80 ALR 455 at 471, 473 per Wilcox and Ryan JJ; Wheeler v Phillip Morris Ltd (1989) 32 IR 323 at 346-347; 97 ALR 282 at 306-307, per Gray J.
27 In addition to the cases cited above, the Full Bench in Antonakopoulos also considered Mason v Electricity Commission of NSW (1995) 62 IR 436; McCabe v New South Wales Police Service (unreported, Cahill J, Vice-President, Hill J and Connor C, IRC3112 of 1994, 3 July 1996); Bigg v New South Wales Police Service (1998) 80 IR 434; Oswald v New South Wales Police Service (1990) 90 IR 42 and Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57.
28 In this case if for no reason other than that each of the perceived shortcomings for which the applicant was held accountable were amenable to innocent explanation had the proper opportunity been afforded her, there are sufficient grounds to find that the dismissal was harsh unreasonable and unjust and I so find. Additionally and as Ms Matthews for the IEU correctly submitted, it is not disputed by KAAC that no reasons were advanced for the termination of employment other than the allegations of abandonment and/or repudiation to which earlier reference has been made. This clearly deprived the applicant and her union the opportunity to raise a defence prior to the ending of the employment relationship.
29 I do not conclude as I am asked to by Mr Elder for KAAC that the evidence given by the applicant was anything but reliable and I have no reason to doubt that she was in all respects a candid and credible witness.
30 Having found that the applicant was unfairly dismissed on 14 January 2003, it is necessary to consider from the statutory options, what form of relief she should be granted. It is well settled that the primary and most appropriate remedy of reinstatement should be granted unless it is found to be impracticable. It is the restoration of the employment relationship unfairly ended with which the statute is primarily concerned and the remedy of monetary compensation is available only when it is adjudged impracticable to restore the employment relationship (see for example Commonwealth Steel Company v Word, unreported IRC3144 of 1993, 16 December 1994 followed more recently by the Full Bench in IGA Distribution Pty Ltd v Moses (No. 2) [2002] NSWIRComm 96.
31 Impracticability as such was not canvassed in the evidence and whilst one may readily anticipate certain degrees of difficulty or embarrassment in the initial stages of a restored employment relationship, there seems to me no reason why such things should be other than transient.
32 In Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186 the matter was summarised in this way by the Industrial Court of Australia (Wilcox CJ, Marshall and North JJ): If the Court were to adopt a general attitude that such reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of an employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether the standard is reached in any particular case must depend on the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.
33 That passage was extracted and cited with approval by this Commission in CCH Australia Ltd v Bowen (1998) 79 IR 206 and later in Oswald v New South Wales Police Service (1999) 90 IR 42. It seems to me in the circumstances of this case, that the restoration of the employment relationship by way of reinstatement to the substantive position to which the applicant was appointed in May 2002 namely, the position of Deputy Principal, is the appropriate remedy and I so order pursuant to s 89 (1) of the Act.
34 I further order pursuant to s 89 (3) that the applicant be paid an amount equating to the remuneration lost by reason of her dismissal. I note in that regard the applicant's evidence that since being dismissed, she has managed to obtain some but not a great deal of casual teaching and remuneration thus received should be deducted from the amount calculated as remuneration for the purposes of s 89 (3).
35 The Commission finally orders pursuant to s 89 (4) of the Act the period of the applicant's employment with KAAC is taken not to have been broken by the dismissal.
36 KAAC is to comply with the above orders within 21 days of this decision.
37 Before leaving the matter, I note the respondent's undertaking in answer to the claim brought by the IEU pursuant to s 379 (Small Claims Procedure) to remedy any shortfall in the applicant's remuneration in the fortnight ending 13 December 2002 and the week ending 20 December 2002. The Commission directs that KAAC attend to that matter within 21 days of the date of this decision. The Commission is advised by the IEU in its written submissions that pay records demonstrating such a shortfall have been produced in response to subpoena but were not tendered in evidence. There is liberty to apply in respect of that matter should there be no resolution of it within the 21 day period prescribed.
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.
New South Wales Independent Education Union (on behalf of Chami-Rafiqi)
King Abdul Aziz College
(1999) 91 IR 385
(1995) 87 IR 56
(1995) 185 CLR 410
(1988) 24 IR 397
(1989) 32 IR 323
(1995) 62 IR 436
(1998) 80 IR 434
(1990) 90 IR 42
(1998) 87 IR 57
(1997) 72 IR 186
(1998) 79 IR 206
(1999) 90 IR 42
The Commission found that Chami-Rafiqi had been unfairly dismissed on 14 January 2003. Under s 89(1), it ordered reinstatement as Deputy Principal. Under s 89(3), it ordered payment equivalent to remuneration lost because of the dismissal, less remuneration from casual teaching. Under s 89(4), it ordered that her employment be treated as unbroken by the dismissal. The College was to comply within 21 days. It was also directed to attend to the identified remuneration shortfall within 21 days, with liberty to apply if that matter was not resolved ([28]–[37]).