Phillips v NSW Roads and Traffic Authority

Industrial Relations Act 1996 Transport Administration Act 1988 LEGISLATION CITED: Public Sector Employment Legislation Amendment Act 2006 Public Sector Employment and Management Act 2002 Government and Related Employees Appeal Tribunal Act 1980

Antonic and Roads and Traffic Authority [2005] NSWIRComm 344 Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia (1999) 90 IR 211 CASES CITED: Charlton v Eastern Australian Airlines Pty Ltd (2006) 154 IR 239 Clark v Pittwater RSL Club Limited (1998) 84 IR 309 AWARD: Crown Employees (Roads and Traffic Authority of New South Wales - Wages Staff) Award 2005

Counsel Mr J Wormington LEGAL REPRESENTATIVES: RESPONDENT

• 17 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

MARK RICHARD PHILLIPS AND ROADS AND TRAFFIC AUTHORITY

Application by Mark Richard Phillips re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 Mr Mark Richard Phillips, the Applicant, seeks the intervention of the Commission as a consequence of disciplinary action taken by his employer, the NSW Roads and Traffic Authority (RTA). 2 Conciliation proceedings established that the RTA contested the capacity of Mr Phillips to bring an application pursuant to s 84 of the Industrial Relations Act 1996 ("the IR Act"). 3 Directions were issued to effect arbitration proceedings on the question of jurisdiction. The first proceedings were adjourned to allow the parties to provide evidence in order that the issue of jurisdiction be considered in the appropriate factual context. 4 Mr Warren of Counsel, appearing on behalf of the RTA, tendered affidavits from Ms E Cvetkovic, Manager Workplace Conduct, RTA; Mr P Collins, Director, Regional Operations and Engineering Services, RTA; and Mr D Coates, Senior Industrial Officer, RTA. 5 Mr Wormington of Counsel, tendered the affidavit of Mr Phillips. 6 No witnesses were required for cross examination. The Evidence 7 Mr Phillips has been employed by the RTA from early 1989, a period of approximately 18 years. 8 The RTA is a statutory corporation constituted by s 46 of the Transport Administration Act 1988. 9 In March 2006 the Public Sector Employment Legislation Amendment Act 2006 ("the PSELA Act") effected transfer of employees of a number of statutory corporations, including those of the RTA, to employment by the Government of New South Wales in service of the Crown. 10 The effect of this legislation continues a delegated authority to the Chief Executive Officer of the RTA to: · "Employ staff" by virtue of Chapter 1A subsection 4B(1) of the Public Sector Employment and Management Act 2002 ("the PSEM Act"); and · "Fix the salary, wages and conditions of employment of staff in so far as they are not fixed by or under any other law" by virtue of Chapter 1A section 4E(1) of the PSEM Act.

11 Mr Phillips' employment is regulated by the Crown Employees (Roads and Traffic Authority of New South Wales - Wages Staff) Award 2005 357 IG 641 ("the Award"). 12 On 9 March 2007 Mr Phillips was demoted from the position of Carpenter Team Leader to Carpenter Grade 3. 13 The evidence establishes that disciplinary action was taken on a finding by the Respondent, subsequent to investigation in accordance with its disciplinary policy, that, as a supervisor, Mr Phillips failed to prevent an incident of harassment and bullying by Mr Geoffrey Payne upon another member of the work group supervised by Mr Phillips. The incident is alleged to have taken place after working hours during a period when the crew were working away from headquarters in the upper Hunter Valley and residing in temporary accommodation. 14 On demotion Mr Phillips' rate of pay was reduced from $964.50 to $934.10 p.w.; he no longer has use of an RTA vehicle and mobile phone for work related purposes; and he is not required to be on call on weekends. 15 All Award provisions continue to apply to his employment and there is no break in the continuity of service for accrual of entitlements. 16 Mr Phillips denies the allegations. 17 Mr Phillips is a member of the Australian Workers' Union, New South Wales (AWU) which notified a dispute pursuant to s 130 of the IR Act in accordance with Cl 8.7 Grievance Resolution and Dispute Settlement of the Award. The notification was subject to conciliation by Commissioner Stanton in Matter No IRC 156 of 2007 which resulted in an alteration of the penalty imposed from demotion for a period of two years to demotion for a period of six months in settlement of those proceedings. 18 Mr Phillips will resume the position of Team Leader on 9 September 2007. 19 In the instant application Mr Phillips asserts that there is no basis in fact for disciplinary action and that the demotion, attended by loss of remuneration and benefits, is a termination of employment.

20 Mr Payne denies the allegation for which he has also been subject to disciplinary action. Mr Payne has made a separate application for relief from unfair dismissal (Matter No IRC 361 of 2007) which was heard concurrently with this matter. The Argument Against Jurisdiction 21 Mr Warren submitted that the disciplinary action taken against Mr Phillips was not a dismissal or threatened dismissal within the meaning of those terms found in Part 6, Unfair Dismissals of the IR Act. 22 Section 83 of the IR Act provides: (1) This Part applies to the dismissal of: (a) any public sector employee, or

(b) any other employee, except an employee for whom conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than $62,200 (or such greater amount as is prescribed by the regulations). …… (5) In this Part: dismissal includes: (a) 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. 23 The pre-requisite of dismissal is reinforced by s 84, Application for remedy by dismissed employee, which states: (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. 24 Mr Warren put that Mr Phillips is a public sector employee and subject to the specific provisions of s 83 (5)(b) of the IR Act which closely defines the meaning of the term "dismissal". 25 Mr Warren noted that there is no argument that Mr Phillips has worked for the RTA for a number of years prior to his demotion and continues in employment. Mr Warren submitted that in these circumstances the essential pre-requisite of dismissal is not met and accordingly Mr Phillips does not have a right to bring an application. 26 Mr Phillips' employment falls within the provisions of the PSEM Act which, amongst other things, authorises the disciplinary policy applied in this matter. 27 The evidence of Ms Cvetkovic (Ex 5), details the relevant disciplinary policy (Annex. A) which sets out the sanctions which may be imposed by the employer in the following terms: Breaches Where a breach of discipline is established, disciplinary action that may be taken includes: · Reprimand and warning. · Deferral of increment. · Transfer. · Demotion and/or reclassification. · Termination of services. Breaches of the Code of Conduct and Ethics that allegedly involve criminal conduct may be referred to the Police. Allegations against staff that involve corrupt conduct may be referred to the Independent Commission Against Corruption. 28 Mr Warren emphasised that the policy allows for a range of sanctions, including termination of employment. Mr Warren submitted that it is clear that the option of demotion, not termination, was applied in this matter. 29 The evidence of Mr Collins (Ex 6) details the action taken by the RTA in application of the disciplinary policy in respect to the allegation against Mr Phillips. 30 Mr Warren noted that this evidence reveals a series of suspensions from duty on pay, an investigation process followed by a review and significant reduction in penalty. 31 Mr Warren submitted that, as a Public Sector employee, the Government and Related Employees Appeal Tribunal Act 1980 ("the GREAT Act") also applies to Mr Phillips. 32 Mr Warren referred to s 23 of the GREAT Act 23 Notice of certain decisions etc (1) Where, in relation to an employee, an employer makes a decision : (a) to defer, for a period in excess of 6 months, the payment of an increment to the employee,

(b) to reduce the rank, classification, position, grade or pay of the employee ,

(d) to annul the appointment of an employee appointed on probation ,

(e) 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,

( g) to direct or to require the employee to resign , the employer shall, except as may be otherwise provided by an order made under subsection (3), give the employee notice, in writing, of the decision as soon as practicable after the decision is made. (2) Where an employer is unable to give an employee notice, under subsection (1) , of a decision within 14 days after the decision is made, the employer may apply to the Senior Chairperson for an order as to the giving of the notice. (3) On receipt of an application under subsection (2), the Senior Chairperson may make such order as the Senior Chairperson thinks fit as to the giving of the notice or may make an order dispensing with the giving of the notice.

(4) A notice may be given, or the giving of a notice may be dispensed with, in accordance with an order made under subsection (3).

(5) In subsection (1) (f): dismiss includes dispensing with the services of an employee (including under any right or power of the Crown to dispense with the services of an employee). (6) For the purposes of this Division: (a) a decision of a kind referred to in subsection (1) (d), (f) or (g) is a decision that may, subject to this Act, be appealed against under section 24 regardless of whether the decision was made for disciplinary reasons, and

(b) a reference to an employer making a decision of a kind referred to in subsection (1) includes a reference to any other person (including the Crown) who is authorised by or under any law to make that decision or to carry it into effect.

[emphasis added] 33 Mr Warren further noted the distinction in this legislation between demotion and dismissal, which he put is supported by the definition of "dismissal" in s 83(5) of the IR Act. 34 Mr Warren noted that Mr Phillips had a right of appeal pursuant to s 24 of the GREAT Act which he had not pursued.

35 Mr Warren referred to the decision of Sams DP in Antonic and Roads and Traffic Authority [2005] NSWIRComm 344 where it was held that an employee of the RTA, albeit covered by a different industrial award, had no right of access to the unfair dismissal provisions of the IR Act. Mr Warren contended that Antonic was properly decided and is persuasive of a similar consideration in this matter. 36 Mr Warren submitted that the decision of the Supreme Court of South Australia in Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia (1999) 90 IR 211, relied upon by Mr Wormington, is of no assistance in this matter. Mr Warren put that in the Advertiser case the Court dealt with circumstances where the employer had repudiated the employee's contract of employment, which has not occurred in this case; and in any event does not deal with application of the IR Act, nor a NSW public sector employee. 37 Mr Warren submitted that the RTA has not repudiated Mr Phillips' contract of employment; it has in fact demoted him in his employment in a manner allowed by the contract of employment. 38 Mr Warren submitted that the decision of a Full Bench of the Australian Industrial Relations Commission in Charlton v Eastern Australian Airlines Pty Ltd (2006) 154 IR 239, also relied upon by Mr Wormington, which applied the principles held in the Advertiser case, was equally unhelpful in this matter for the same reasons. 39 Mr Warren submitted that the decision in Clark v Pittwater RSL Club Limited (1998) 84 IR 309, also relied upon by Mr Wormington, was not apposite to these proceedings as in that matter the employee was not a public sector employee and had refused to accept a transfer from a position of doorman in a registered club to one of picking up ashtrays. Mr Clark had refused to undertake the duties of the alternate position. Mr Warren further submitted that the change in nature of the duties required of Mr Phillips is not so significant as was the case in Clark. The Case for Jurisdiction

40 Mr Wormington relied firstly on the disciplinary guidelines of the RTA (Ex 4, Annex. C) which informs employees in the following terms: Disciplinary Appeals Staff have the right to appeal disciplinary action taken by the RTA before the Government and Related Employees Appeal Tribunal (GREAT) or the NSW or Australian Industrial Relations Commissions, as appropriate. Staff may wish to consult their union or obtain independent legal advice prior to lodging an appeal. An appeal to GREAT must be lodged within 28 days of the date of the RTA's decision and to either Industrial Relations Commission within 21 days of the date of decision. Further information on lodging an appeal with GREAT is contained in the GREAT Appeals Policy at 10.6 of the Human Resources Manual.

41 Mr Wormington submitted that the policy affords the employee a choice of tribunal which includes this Commission. Mr Wormington put that Mr Phillips was precluded from application to GREAT as the RTA's decision was taken on 9 March 2007 and the issue of jurisdiction not raised in these proceedings until 10 April 2007, which is beyond the 28 day time limit for an application to GREAT. The inference from this submission is that, had the RTA raised the jurisdictional question within 28 days Mr Phillips could have lodged an application to GREAT. 42 Mr Wormington put that it is open to Mr Phillips to bring a disciplinary matter to this Commission. 43 Mr Wormington submitted that the demotion of Mr Phillips was, at law, annulment of his employment and initiation of a new contract which amounts to a termination of employment for the purposes of s 83(5) of the IR Act. Mr Wormington relied upon Clark, Advertiser Newspapers and Antonic. 44 Mr Wormington submitted that Clark's case is authority for the proposition that demotion can amount to a dismissal in circumstances where the employee refuses to accept the demotion and leaves employment as a result. 45 Mr Wormington put that continuing in employment in the alternate position to which he was demoted whilst the current proceedings are resolved should not prejudice Mr Phillips as he is merely mitigating his loss, the amount to be paid by the employer in the event of success, and to avoid reliance upon the Australian taxpayer by claiming payments resulting from unemployment. 46 Mr Wormington submitted that on conclusion of these proceedings Mr Phillips will either be reinstated to his former position or take an informed decision as to whether he will continue in employment under a new contract of employment in the inferior position. 47 Mr Wormington submitted that in Clark the Full Bench directed consideration to the actual employment (84 IR 309 at 311): In determining whether or not, there has been a dismissal from employment. It is necessary to determine what the employment is. The evidence before the Commission 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 provisions permitted the club to unilaterally vary the incidents of employment. 48 Mr Wormington submitted that the concept of demotion pursuant to a disciplinary policy was not "even remotely within the contemplation of the Full Bench". 49 Mr Wormington noted that Mr Phillips was employed as a Carpenter Team Leader pursuant to the Award and so was not contractually obliged to carry out other duties. 50 Mr Wormington submitted that the Award does not allow the employer to unilaterally vary the contract of employment, a position supported by the decision in Advertiser Newspapers. 51 Mr Wormington submitted that the decision in Antonic is distinguished from the present case as the conduct relied upon in Antonic was during the course of duty in working hours whereas the allegations against Mr Phillips are in respect to events said to have occurred outside working hours. Mr Wormington put the following submissions (Ex 3, paras 20-23): 20. The conduct in Antonic occurred during the course of the Applicant's employment. Whereas the alleged misconduct in the present case, occurred outside of work hours. Briefly stated, the facts were that the Applicant was staying in Muswellbrook (on a work assignment). On completion of the days work, the Applicant and three colleagues went to a local hotel for dinner. Following dinner, they each had about six beers, while playing a number of games of pool. About 11:30 p.m. the group including the applicant walked back to the motel. The Applicant went back to one of his colleagues rooms, where the alleged misconduct is said to have occurred. It is submitted on behalf of the Applicant that, because the incident did not occur "in the workplace" or "during the course of his employment". The incident even if admitted, which it is not, would not be caught by the employer's policies even if the policy had been incorporated into the contract of employment.

21. The second ground relied upon by the Respondent, is the finding by Deputy President Sams, that in Antonic , because the contract of employment included procedures allowing for the temporary or permanent demotion of an employee for disciplinary reasons. The demotion did not constitute a repudiation by the employer, of an essential term of the contract of employment and consequently could not constitute a dismissal for the purposes of Part 6, chapter 2 of the Industrial Relations Act 1996.

22. His Honour in Antonic (paragraph 105-107), found support for his finding. Under clause 17 of the Crown Employees (Roads & Traffic Authority of NSW-Salaried Staff conditions of employment) Award, which provides for an appeal mechanism where an employee expresses dissatisfaction with being demoted to a lower grade or classification. The Applicant in the present case is not a party to that Award. The Award governing his employment is the Crown Employees (Roads & Traffic Authority of New South Wales-Wages Staff) Award 2005. This Award does not contain a clause that allows the Applicant to challenge the demotion.

23. His Honour in Antonic, in paragraphs 112 and 142 expressed some doubt as to whether his jurisdictional finding was correct. Having decided the matter in favour of the Respondent on the basis of the jurisdictional challenge, there was no need to go on and consider the merits of the application. In our submission, his Honour had formed a very strong view as to the credit and character of the applicant and gave a decision on the merits, in order to nullify the prospects of an appeal. In our submission had his Honour not given a decision on the merits, any appeal flowing from the jurisdictional decision by the Applicant; would have been likely to have been successful. 52 Mr Wormington submitted that whilst the employer's policy provides for sanction in the event of misconduct (or breach of discipline) by the employee, he put that there is no evidence to establish that Mr Phillips is guilty of any act or omission which would give rise to disciplinary action. 53 Mr Wormington accepted that the Respondent has legislative power to set conditions of employment (including policies) for its staff, provided they do not conflict with any other law. 54 In the written submissions (Ex 3) relied upon by Mr Wormington it is contended that the disciplinary policy does not apply to Mr Phillips as the Respondent failed to make him aware of it, and failed to provide adequate training to ensure that the employee understands his rights and obligations under the policy. 55 Mr Phillips brought a challenge to his demotion in proceedings instituted pursuant to s 130 of the Act. The dispute was dealt with by Commissioner Stanton in Matter No IRC 156 of 2007. 56 The Commissioner made a recommendation on 12 February 2007 in the following terms: 1 This matter concerns the suspension of Mr M Phillips from his position of Team Leader with the Roads and Traffic Authority ('RTA') Hunter Region Bridge Crew following an incident in Muswellbrook during August 2006. Depending on the outcome of an RTA investigation of the incident, Mr Phillips faces the prospect of demotion to Carpenter Grade 2.

2 During the course of a. private conference today, Mr P Sullivan for the Australian Workers Union, Newcastle and Northern Regions Branch, expressed concern that Mr Phillips had not received a reply to correspondence dated 20 December 2006, requesting a meeting with the RTA's Director, Regional Operations and Engineering Services of the Roads and Traffic Authority to plead his case with the assistance of Mr Sullivan.

3 Mr P Coates for the RTA informed the Commission that the incident had been investigated and a final decision concerning the fate of Mr Phillips would be made shortly, Mr Coates also informed the Commission that the incident had been subject to an independent investigation consistent with the relevant and applicable RTA policies.

4 Mr Sullivan 's concerns are relevant to the application of procedural and substantive fairness towards Mr Phillips. Accordingly, the Commission recommends that the Director, Regional Operations and Engineering Services convenes a meeting with Mr Sullivan and Mr Phillips at the earliest convenient opportunity.

5 This matter is set down for report back at 10.00am on Thursday, 22 February 2007.

57 In report back proceedings on 8 March 2007 the parties advised the Commissioner that the matter was resolved, which he recorded in a decision of that date concluding the matter. 58 Stanton C said: This matter was listed for report back today and during the proceedings the parties advised the Commission that the dispute has been resolved. Both parties consent to discontinue the proceedings. The matter is therefore concluded with the notifier being given 14 days to file a Notice of Discontinuance. Accordingly the file is closed. 59 Mr Wormington submitted that those proceedings did not resolve the substantial issue, putting that the notification of dispute was made in the face of Mr Collins refusal to discuss the matter so as to engage him in dialogue to address the objections of Mr Phillips. 60 Mr Wormington submitted that agreement to conclude those proceedings was on the basis that the purpose of engaging Mr Collins in the matter had been achieved and exhausted without satisfaction. 61 Mr Wormington put that the transcript of proceedings recording Mr Phillips' agreement with the outcome, which was a reduction in the period of demotion from two years to six months, was not acceptance of this conclusion but agreement with the Commissioner's observations concerning the utility of resolution and concentration of effort on future prospects. 62 Mr Warren relied upon the evidence of Mr Coates contained in exhibit 7 to refute this assertion. 63 Mr Coates' evidence is that consequent upon the Commissioner's recommendation of 12 February 2007 the RTA gave earnest consideration to the issues raised therein and proposed the reduction in suspension to Mr Phillips, which was accepted. 64 Mr Coates details the negotiation between himself and Mr Sullivan, an official of the AWU representing Mr Phillips, in reaching an agreed position in the following terms (Ex 7, para 8): 8 The dispute was listed for report back on 8 March 2007. Prior to the report back commencing, I discussed with Mr Sullivan an amended proposed disciplinary course. I said to Mr Sullivan words to the following effect:

COATES: The Director is prepared to reduce the penalty on Mr Phillips to a six month demotion to Carpenter Grade 3 in lieu of a two year demotion to Carpenter Grade 2. He will only reduce the penalty to this extent if we can reach agreement that resolves the dispute.

Mr Sullivan called Mr Phillips aside and spoke with him for a period of time. I was then approach by Mr Sullivan who informed me, in words to the following effect:

SULLIVAN: My member will reluctantly agree to your proposal.

I then said to Mr Sullivan words to the following effect:

COATES: We will go back on record and inform the Commission of our agreement.

(Transcript of the report back before Commissioner Stanton on 8 March 2007 has been sought). The Commission was advised that the parties had agreed to discontinue the proceedings. Annexed to this Affidavit and marked "C" is a copy of the Decision of Commissioner Stanton dated 8 March 2007. 65 Mr Coates' evidence is that consequent to this outcome the penalty imposed upon Mr Payne, who had made representations through Turnbull Hill Lawyers, was also reduced and his legal representatives informed. 66 It is appropriate to note that the terms of the notification made by the AWU went directly to the question of reinstatement. The notification described the dispute in the following terms: 4. The question, dispute or difficulty concerns the following industrial matters: 1. A request by the AWU that the RTA reinstate Mr Mark Phillips, RTA Bridge Crew Hunter Region, to his position of Team Leader and be reimbursed for lost wages in overtime, shift allowance and travel allowances since his suspension on 20th September 2006 and that he not be demoted to Carpenter Grade 2, $518.40, for two years being a loss of $46,394.40. 2. The AWU believes that Mr Phillips has been treated harshly, unjust and unreasonably by the RTA during its investigations into a complaint of sexual harassment against another employee. Mr Phillips replied to the allegations that were raised about his part in the incident in a letter dated 20th December 2006 (copy attached) requesting a meeting and received another 30 day letter of suspension. Consideration 67 It is beyond doubt that Mr Phillips was and remains a public sector employee with specific rights and obligations arising from that employment status. 68 Mr Phillips was subject to disciplinary action conducted in accordance with a statutory regime which afforded rights and obligations upon the employer as well as Mr Phillips. 69 The disciplinary guidelines referred to by Mr Wormington above do refer to GREAT, the Industrial Relations Commission of New South Wales, and the Australian Industrial Relations Commission. It cannot follow, as contended, that this affords an employee a choice of tribunal. The jurisdiction of each institution is discrete and prescribed by the relevant legislation in each case, and can only be available where the jurisdictional pre-requisites are met. 70 Mr Phillips sought review in dispute proceedings instituted on his behalf by the AWU, a registered industrial organisation with a right to do so. 71 A settlement was reached by agreement. It was open to Mr Phillips to refuse the settlement and, within the scheme of the IR Act, pursue a determination of the facts and consequential actions of the Respondent in arbitration. He did not. 72 The assertion that Mr Phillips was acknowledging some obiter comments of the Commissioner and was not accepting the substance of the resolution is not supported by the evidence. 73 Mr Phillips exercised a statutory right to challenge the disciplinary action in dispute proceedings in this Commission. Settlement of that matter by agreement between Mr Phillips and the RTA binds both to the outcome. 74 Mr Phillips' assertion that he was unaware of the Respondent's policy and his obligations thereunder is equally unsupportable. 75 Access to the provisions of Part 6 Unfair Dismissals of the IR Act by a public sector employee is constrained to the circumstances described by s 83(5); other matters of dispute may, where the employee is a member of a registered industrial organisation, be brought pursuant to Chapter 3, Industrial disputes. The AWU exercised this right on behalf of Mr Phillips. 76 Mr Phillips had access to GREAT or this Commission in dispute proceedings from the time the review of suspension was advised to him on 9 March 2007. Mr Phillips exercised his right of review and accepted the outcome of that process. 77 There is no serious challenge to the manner in which the employer discharged its obligations pursuant to the relevant disciplinary policy, the evidence supporting a conclusion that the employer acted in a measured and careful manner to ensure that the investigation and deliberation processes properly afforded Mr Phillips the right to representation and appeal. 78 The argument advanced that the disciplinary policy does not apply to Mr Phillips as he was unaware of it is not sustainable. The disciplinary policy forms an active part of the matrix of statutory and administrative regulation applicable in the present case, aptly referred to by Deputy President Sams at para 99 of Antonic as a "suite of arrangements involving legislation, award and policies". 79 The decisions in Clark, Antonic, and Advertiser Newspapers are distinguished from the present proceedings as those matters did not involve consideration of the particular rights and obligations afforded a NSW public sector employee by the aforementioned matrix of legislation, award, and statutorily endorsed policy. 80 Mr Wormington's submission that Mr Phillips was employed as a Carpenter Team Leader and accordingly could not be required to carry out other work overlooks cl 4.1(f) of the Award which states: As an RTA employee, you must carry out duties that:

you have the skills, competence and training to undertake and are safe to perform

are within the classification structure of this Award

do not promote de-skilling 81 It was not contested that the work required of Mr Phillips in the position to which he is temporarily demoted falls within that so described. 82 I find that Mr Phillips was not dismissed from his employment; that the demotion for disciplinary purposes is permitted by the contract of employment; and that he is excluded from access to Chapter 6, Unfair Dismissal of the IR Act on the basis that he has not been dismissed as defined by s 85(3) of the IR Act. 83 The application is dismissed for want of jurisdiction. 84 Matter No IRC 368 of 2007 is so concluded. oo0oo

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.