Phillips v NSW Roads and Traffic Authority

Phillips v NSW Roads and Traffic Authority - [2007] NSWIRComm 258 - NSWIRComm 2007 case summary — Zoe

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(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,

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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

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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.

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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.

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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:

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(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:

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