Public Employment Office, Department of Corrective Services v Sarolta Boda

Government and Related Employees Appeal Tribunal Act 1980 LEGISLATION CITED: Industrial Relations Act 1991 s 254 Industrial Relations Act 1996 ss 86 89 90 169

Johnston v Department of Mineral Resources (1997) 73 IR 267 Owens v NSW Police Service [1998] NSWIR Comm 227 CASES CITED: Public Service Association of New South Wales v New South Wales Crime Commission and other matters (1993) 48 IR 363 Sebastian v Roads and Traffic Authority of NSW (1995) 62 IR 190 Skelly v Prouds Jewellers (1993) 53 IR 3 Tasovac n NSW Police Service (1998) 83 IR 410

APPELLANT Ms T Anderson of Counsel

Ms A Katrib, Solicitor Department of Corrective Services

LEGAL REPRESENTATIVES: RESPONDENT Ms S McKinnon IR Australia Pty Ltd

• 14 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Walton J, Vice-President Grayson DP McLeay C

Public Employment Office, Department of Corrective Services and Sarolta Boda

Application by Public Employment Office for leave to appeal and appeal against an interim decision of Commissioner Ritchie given on 22 July 2005 in matter No 1827 of 2005

1 The Public Employment Office, Department of Corrective Services (the appellant) seeks leave to appeal and should leave be granted, appeals from a decision of Commissioner Ritchie given on 22 July 2005 in Matter No IRC 1827 of 2005. 2 In that decision, the Commissioner determined as an interlocutory matter, that Ms Sarolta Boda (the respondent on appeal) was not precluded by the operation of s 90 of the Industrial Relations Act 1996 (the Act) from seeking and if appropriate, obtaining relief under Chapter 2, Part 6 Unfair Dismissals and in particular, under s 89 of the Act. 3 The provisions of s 90 of the Act are as follows: EFFECT OF AVAILABILITY OF OTHER REMEDIES

90 The Commission must not determine an applicant's claim by making an order under section 89 if:

(a) another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and

(b) the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument. Background 4 At the time of her dismissal from employment with the appellant on 24 January 2005, the respondent occupied a position of Overseer, Metropolitan Special Programs Centre, Long Bay Correctional Complex in the south eastern part of Sydney. The dismissal ended almost eleven years of employment with the appellant and is said to be based on grounds of misconduct. 5 On 31 January 2005, the respondent appealed against the dismissal by lodging the prerequisite Notice of Appeal under s 28 of the Government and Related Employees Appeal Tribunal Act 1980 (the GREAT Act). 6 On 8 April 2005 following an unsuccessful conciliation before the Government and Related Employees Appeal Tribunal, the respondent withdrew her appeal. Thus, by reason of s 47 of the GREAT Act she caused the proceedings before the Tribunal to lapse. It is common ground that the provisions of the GREAT Act which impose a strict limit of 28 days for lodging appeals (following notification of the decision appealed against) thereafter act as a bar to the bringing of fresh proceedings before the Tribunal. 7 On 11 April 2005, proceedings were commenced in the Commission seeking relief in relation to alleged unfair dismissal. On 5 May 2005, Ritchie C endeavoured to settle the proceedings by conciliation albeit without success. The matter was then programmed for hearing as to the jurisdictional issue and in the result, the impugned decision was given on 22 July 2005. Leave to Appeal 8 We are comfortably satisfied that the questions now raised on appeal, being questions as to the proper construction of s 90 of the Act are of such importance that, in the public interest, leave should be granted. The issue is one of general importance to the unfair dismissal jurisdiction of the Commission. We grant leave accordingly. Submissions of the Parties 9 The appellant contended for a construction of s 90 of the Act which precludes the bringing of proceedings in the Commission whenever and at the point that proceedings have been commenced under another Act or statutory instrument. Thus, it was submitted that the mere initiation of proceedings under the GREAT Act, deprives the Commission of jurisdiction with respect to a later unfair dismissal application by the operation of s 90 of the Act. 10 This submission proceeds upon the basis that the GREAT Act provides redress to the respondent in relation to the dismissal as contemplated by s 90(a) of the Act and that proceedings were "commenced" by the respondent under the GREAT Act by the bringing of an appeal under that Act. This conclusion was available on a literal and purposive reading of the Act. It was submitted that any contrary conclusion would result in an absurd result where the respondent could effectively bring proceedings in two forums and proceed with the one which was considered more favourable. 11 It was submitted on Ms Boda's behalf, however, that s 90 when properly construed requires that the alternative remedy or redress referred to under s 90(a) must exist at the time an applicant seeks to enliven the Commission's jurisdiction and it is that temporal element which is an essential element in the proper construction of s 90. 12 In this case, as the respondent's argument was advanced, Ms Boda's action in withdrawing the GREAT appeal and thereby causing those proceedings to lapse had the legal effect of rendering any redress under the GREAT Act non-existent. Absent any such redress and whilstsoever Ms Boda was and remains willing to give the undertaking required by s 90(b) in relation to other Acts or instruments, there is jurisdiction to entertain her application under this Act. We note the written undertaking required by s 90(b) was signed by Ms Boda on 24 May 2005 and filed in the Commission on 26 May 2005 (Appeal Book 49). 13 In the course of argument, the appellant acknowledged that the scheme of arrangement contemplated by s 90 had no application to the Commission's conciliation function under s 86 of the Act and conversely, that it operated only to preclude the determination of a claim by the making of orders under s 89. Thus an employer could be joined in proceedings in more than one jurisdiction albeit only up to a certain point. 14 Further in the course of argument we were taken to earlier decisions of the Commission which dealt with the proper construction of s 90 and its statutory predecessors at least insofar as certain elements of s 90 are concerned. We propose to briefly discuss those authorities at this juncture in the light of the parties' submissions. 15 In Public Service Association of New South Wales v New South Wales Crime Commission and other matters (1993) 48 IR 363, the Full Commission was concerned with the principal question whether the prerequisite written undertaking not to proceed under an Act or statutory instrument other than the Industrial Relations Act must be lodged at precisely the same time as the application for relief. 16 It may be observed that the Full Commission was there dealing with the provisions of s 254 of the Industrial Relations Act 1991 (the predecessor Act) which were expressed as follows: EFFECT OF AVAILABILITY OF OTHER REMEDIES 254. The Commission is required to reject an application relating to the dismissal, or threatened dismissal, of a person who is an employee if: (a) another Act or statutory instrument provides for redress to the person, or for the holding of an inquiry, in relation to the dismissal or threatened dismissal; and (b) the person has commenced proceedings under the other Act or instrument or has not lodged with the application under this Act a written undertaking not to proceed under the other Act or instrument. (emphasis added) 17 As may be seen the phrase "with the application under this Act" no longer appears at s 90 of the current Act and it was that phrase which was at the heart of the proposition for which the employer in Public Service Association (NSW) v NSW Crime Commission contended namely, that failure to file the prerequisite undertaking at the same time as the application for relief imposed a fatal jurisdictional barrier to the application. 18 In that case, the Full Commission concluded as follows at p 368: However having regard to the purpose of s 254(b), that being the avoidance of the possibility of two (or more) courses being available to access a remedy in relation to the same event, there does not seem to be any reason to read the section as being any more than a requirement that, at the relevant time, there be provided a waiver to secure against duality of proceedings. To read the preposition "with" as imposing a fatal jurisdictional barrier is to give beneficial legislation a restrictive operation which could not have been intended. Further, the ordinary meaning of "with" includes "in relation to", a meaning which in context lacks the temporal restriction referred to. The purpose of s 254 of the 1991 Act is the prevention of the duality of proceedings - and this purpose is not defeated or diminished by an applicant's failure to lodge the unfair dismissal application and written undertaking with the Industrial Registrar at a precisely coincidental moment in time. In view of the foregoing, we find that s 254 of the 1991 Act should not be read so as to jurisdictionally require a contemporaneous lodging of the written undertaking with the unfair dismissal application. 19 In Tasovac n NSW Police Service (1998) 83 IR 410 the Full Bench reaffirmed the observations in Public Service Association (NSW) v NSW Crime Commission that the intention and effect of s 254 of the predecessor Act was relevantly indistinguishable from s 90 of the present Act namely, to ensure that there was no duplication or duality of proceedings before the Industrial Relations Commission and the alternative tribunal (p 412-413). 20 In that case, and it is not contested here, it was made clear that two or more statutes may operate together in that concurrent proceedings may be permitted but only insofar as those concurrent proceedings do not replicate the remedies available under the Act. In Tasovac at p 413, the Full Bench said: The concept of a duplication of proceedings raises the need for the respective proceedings to be concerned, either in whole or in part, with the same issue. From the point of view of s 90 that issue is one of reinstatement in employment. From the point of view of the Anti-Discrimination Act the relevant issues include not only reinstatement but other matters relating to discrimination. In our view it must follow that so long as a duplication of the issue of reinstatement does not arise, the two statutes may operate together.

Section 95A of the Anti-Discrimination Act provides as follows: "95A. Leave of Tribunal required for inquiry into certain industrial issues (1) An issue that is the subject of proceedings before the Industrial Relations Commission may not be the subject of proceedings before the Tribunal without the leave of the Tribunal. (2) This section does not affect the operation of section 107 in relation to evidence given before, or findings made by, the Industrial Relations Commission." Thus it is that the operation of an appropriate s 90 undertaking will work against the interests of the applicant under the Anti-Discrimination Act if she were to seek there a remedy by way of reinstatement in employment. There is no inherent value that we can perceive in the idea that the meaning and effect of s 90, where a dismissal action is commenced under the 1996 Act, is to vitiate a quite different remedy which relates to some form of discrimination and does not itself relate to reinstatement.

21 In Johnston v Department of Mineral Resources (1997) 73 IR 267, Schmidt J held that the applicant who was also pursuing reinstatement before the Equal Opportunity Tribunal (now the Administrative Decisions Tribunal) under the Anti-Discrimination Act 1977 was precluded by the operation of s 90 of the Act from obtaining the same relief from the Commission. Her Honour also considered in Johnston that the grant of leave under s 169 of the Act would not diminish the effect of s 90 in that, even with leave of the Commission, the applicant having first raised the issue of reinstatement under the Anti-Discrimination Act could thereafter take her concurrent application for reinstatement before the Commission only as far as but not beyond the conciliation phase. 22 Johnston is relied upon by the respondent to these proceedings, to support a proposition said to be consistent with the authorities generally that s 90 is to be construed as preventing a duality of approach. The respondent argued that Johnston is authority for the further proposition that consideration of s 90 does not arise until immediately prior to arbitration commencing and it is at that precise time that the commencement of other proceedings seeking the same redress or failure to lodge the prerequisite written undertaking will be fatal to the jurisdiction here. 23 The following extract from pp 11, 12 of transcript conveniently sets out the respondent's argument in that regard: McKINNON: Johnston was a matter of an individual seeking relief and at the same time had proceedings running in the Equal Opportunity Tribunal. The issues that were sought to be pursued in the Equal Opportunity Tribunal were crystallised at the same time as the matter was before the Industrial Relations Commission, as being the same issues. It was a matter in relation to a dismissal. When you read the wording in Johnston v Department of Mineral Resources , there is a discussion about matters proceeding at the same time, and a finding of her Honour in that decision was that consistent with the authorities, section 90 has to be construed as preventing a duality of approach. In Johnston there was a possibility that there would be a duality of approach because there were two proceedings on at the same time, and both available to the individual seeking relief.

WALTON VP: Returning to this case, you say, applying Johnston , or in any event as a matter of law, if the proceedings in GREAT had been extinguished by a determination in this case by virtue of discontinuing of those proceedings by the applicant, then the condition in (a) is not met?

WALTON VP: It would lead to a rather curious provision if that were the way it was to be read, because (b) would seem to extinguish the proceedings by virtue of those proceedings having been commenced.

McKINNON: Yes, and I think the wording "commenced proceedings" is the difficultly, but I think it has to be read in that way that it means the proceedings proper. In other words, you cannot have an intention for section 90 if there is no possibility of duality of approach. Section 90 is aimed at preventing that duality so there must be the possibility that duality could arise.

WALTON VP: The other reading of (a) is that it simply asks the question: is there a jurisdictional basis or a jurisdictional eligibility in the other jurisdiction, and then ask the further question, whether proceedings have been commenced.

McKINNON: On that point I would submit that the words "provides for redress" must be read in the way that the redress is available to the individual seeking relief. 24 We were also taken by Ms Anderson for the appellant (against herself), to the Commission's decision in Owens v NSW Police Service [1998] NSWIR Comm 227 an ex-tempore decision of Schmidt J going essentially to the question of whether time to file an unfair dismissal application should be extended beyond the pre-requisite 21 days prescribed by the Act. Mr Owens had been dismissed on 19 December 1997 and had lodged an appeal with GREAT on 22 December 1997. Jurisdictional arguments raised against him in GREAT prompted him to file an application the Commission on 11 March 1998 some twelve weeks out of time. 25 Her Honour considered and applied the various authorities going to the discretion to extend time (see Skelly v Prouds Jewellers (1993) 53 IR 3 and Sebastian v Roads and Traffic Authority of NSW (1995) 62 IR 190) and in the result, granted the extension thus enabling Mr Owens to bring his application under the Act notwithstanding that he had first commenced proceedings under the GREAT Act. Her Honour again with respect correctly observed that a written undertaking as to other remedies need not be given prior to arbitration (Public Service Association (NSW) v NSW Crime Commission). She further by implication carried over and applied the temporal element from Johnston namely, that consideration of s 90 generally and s 90(a) in particular does not arise until immediately prior to arbitration commencing. The correctness or otherwise of that aspect of the decision will be discussed shortly.

26 In reaching her conclusions in Owens, her Honour said:

At the end of the day the Commission must endeavour to do justice between the parties having regard to the statutory requirements.

That, in my view, must in this case compel the application for leave to be granted. The applicant brought his complaint about dismissal to GREAT where he was advised a jurisdictional point was to be pursued, given a view of the reasons for dismissal taken by the Police Service of which the applicant was not previously aware. Upon becoming aware of the point, he promptly approached the Commission where a review of the merits of the dismissal was not so limited. The actions of the applicant and the Police Service as to those matters compels the extension of time, as does the consequence of refusal. If the Police Service be correct about the jurisdiction of GREAT, it would be likely the applicant would be denied any opportunity to have the circumstances of his dismissal reviewed. The respective hardships which would be suffered by both parties again compels the extension of time. In accordance with s 85(3) of the Act, therefore, the s 84 application is accepted out of time by the Commission. That then raises for consideration the question of the s 90 certificate. Section 86 of the Act requires the Commission to conciliate. This has not yet occurred, of course, but it will. I do not accept that the issues which bring the parties to the Commission make that a futile endeavour. I see no merit in the submissions advanced by the Police Service as to the construction of s 90 of the Act. I adhere to the view which I took in Johnston and Department of Mineral Resources (1996) 73 IR 267, that the certificate must be given before arbitration commences. In this instance I am satisfied that the written undertaking addresses the underlying purpose of s 90. Nevertheless, before any arbitration commences, the proceedings before GREAT must be discontinued and the certificate, executed in the ordinary way, must be provided. If this does not occur this application will, of course, be dismissed - as s 90 requires. 27 In the course of argument, Ms. Anderson submitted that there is no indication from the decision in Owens' case that Schmidt J considered the question raised here namely, whether the commencement of proceedings under the GREAT Act was of itself, a preclusion to the commencement of proceedings here and to the extent that her Honour by extending time, permitted Mr. Owens to commence proceedings here after he had commenced proceedings in GREAT then the conclusion which ought be reached in these proceedings is that Owens was wrongly decided and cannot assist with the determination of the issue raised on appeal here. 28 Ms McKinnon for the respondent submitted, to the contrary, that the decision in Owens lends further support to the appellant's argument as to the proper construction of s 90 and was correctly decided. Her submissions in this respect appear from the following part of the transcript of the proceedings: McKINNON: Yes, and it is consistent with the other authority that my friend has handed up in Owen v Police Service . In that case we have a matter where an appeal is commenced before GREAT. The time for the appeal to be lodged is elapsed between the time it is commenced and the time it is withdrawn. By the time the appeal from GREAT is withdrawn, and subsequently proceedings commenced in the Industrial Relations Commission, there is no longer an alternative remedy available to GREAT, because GREAT no longer provides for redress.

Her Honour did not address the question specifically, but it may have been because in her view there was no alternative remedy available under the GREAT Act. So under section 90, if we can accept that it is the time immediately prior to arbitration that we consider whether it has any application, then in Owen v Police Service her Honour accepted that the certificate could be filed just before the arbitration commenced.

WALTON VP: I cannot see what the temporal aspect has to do with it. On the construction you are arguing for in (a), the remedy is either available or not for whatever reason, and that renders a further consideration under (b) to then be otiose. So it does not matter really, on that analysis, whether at the stage of conciliation or arbitration or decision, when you compare it to the remedy in GREAT or some other jurisdiction.

McKINNON: Taking section 90 as a whole, as we say in our submission, "Section 90 is aimed..." It is the submission of the respondent that section 90 does not prevent arbitration orders being made under 90. If there is a matter that is sought to be brought before the Commission, where those issues have not been dealt with, where there has been no litigation of the matters in dispute, there is simply no possibility that there can be a duality. Section 90 does not need to be enlivened, because the matters have not been dealt with at first instance. Consideration

29 We agree with the observations of the Full Commission in Public Service Association (NSW) v NSW Crime Commission quoted above that the purpose of s 254 of the Industrial Relations Act 1991 (which preceded and is equivalent in all relevant respects to s 90 - see Tasovac v New South Wales Police Service) was the avoidance of the possibility of two (or more) courses being available to access a remedy in relation to the same event - in short, the prevention of duality of proceedings. Each subsequent case cited above revealed a similar reluctance on the part of the Commission to limit remedial jurisdiction fatally unless this would be necessary to preclude duality of proceedings. 30 The manner in which dual proceedings can arise has been explored in different contexts in several cases. In Tasovac, the Full Bench observed that there could be no duplication of proceedings unless the respective proceedings were concerned in whole or in part with the same issue: in the case of s 90, that is the issue of reinstatement of employment. In Johnston and Owens v NSW Police Schmidt J considered the manner in which temporal aspects affected the prospect of duality of proceedings. We respectfully agree with her Honour's implicit conclusions that the question of whether there are dual proceedings (so as to preclude jurisdiction under by the operation of s 90) must be assessed immediately prior to the arbitration commencing. This is consistent with Tasovac, because until that time, there can be no prospect of dual remedies of reinstatement employment. 31 When s 90 is read in that context, and with the purpose of preventing duality of proceedings in mind, we accept Ms McKinnon's submissions that sub-section (a) does not apply to this case. There is no dispute that, following an unsuccessful conciliation, as at the date of the impugned decision, the respondent was (and continues to be) barred from bringing fresh proceedings before the Government and Related Employees Appeal Tribunal. In those circumstances, it can not be said that, at the relevant time, the Government and Related Employees Appeal Tribunal Act 1980 "provides for redress" to the respondent in relation to the dismissal. 32 Our conclusion that sub-section (a) does not apply effectively determines the appeal. However, we consider that it is appropriate to record our view that subsection (b) does not apply either. For the same reasons the Full Commission in Public Service Association (NSW) v NSW Crime Commission read the second alternative of s 254(b) as a requirement that, at the relevant time, there be provided a waiver to secure against duality of proceedings, we consider that the first alternative in s 90(b) must be read in the context of duality of proceedings at the relevant time. In other words, the proceedings which have been commenced must be dual proceedings as described in the cases referred to above. 33 If this were not the case, the result would be to restrict beneficial legislation in a manner which cannot have been intended. The appellant conceded in written submissions that in determining the proper construction of the Act a purposive approach should be adopted, and acknowledged Commissioner Ritchie's observation (with which we agree) that the mischief sought to be remedied is the duplication of proceedings. Here, there is no prospect of dual proceedings, and the Commission now represents the only opportunity for the respondent to have the circumstances of her dismissal reviewed. As Schmidt J tacitly observed in Owens v NSW Police Service, one of the objects of the Act is to provide a framework for the conduct of industrial relations which is fair and just. We do not consider that it would be fair or just for the respondent to be denied this opportunity, and nor do we accept the appellant's submission that sub-section (b) should be read literally, without reference to temporal considerations, in order to produce such a result. To accept Ms Anderson's submission that the mere initiation of alternative proceedings (regardless of their status) deprives the Commission of jurisdiction would be to accept an interpretation prone to arbitrary and inequitable results, as this case illustrates. Although we acknowledge Ms Anderson's submissions that the appellant expended time, costs and resources in the original proceedings before GREAT, we do not accept that the legislature intended these matters to prevail, unequivocally, over the policy considerations discussed above. This view is reinforced by the undisputed fact that the Act tolerates duplication of proceedings at least until immediately before an arbitration commences. Orders

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