Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Rosanna Ganino) v Roads and Maritime Services

Industrial Relations Commission (NSW)|2014-02-20|Before: Boland AJ

Roads and Maritime Services (Respondent) Representation: P F Lowson of counsel (Applicant) K L Eastman of senior counsel (Respondent) Coyne Legal (Applicant) Minter Ellison (Respondent) File Number(s): IRC 1141 of 2009

Judgment 1This matter, the nature of which I am about to explain, was remitted to me by the Full Bench in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Rosanna Ganino) and Roads and Maritime Services [2013] NSWIRComm 106 to be dealt with expeditiously. The matter remitted concerned a question arising under s 89(3) of the Industrial Relations Act 1996 ("IR Act") of what amount an employee should be paid in respect of lost remuneration for the period following dismissal from employment until subsequent reinstatement by order of the Commission. Section 89(3) provides: (3) Remuneration If the Commission orders reinstatement or re-employment, it may order the employer to pay to the applicant an amount stated in the order that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed in accordance with the order. 2In particular, the matter concerned an exercise of discretion in relation to whether back pay owed to the employee under s 89(3) should be discounted in circumstances where the employer alleged that the employee was not sufficiently diligent in seeking alternative employment following dismissal in accordance with the employee's obligation to mitigate her losses. 3When the matter came on for hearing, the respondent advised that it largely agreed with orders proposed by the applicant to resolve the remitter and so the issue at the heart of the remitter had evaporated. However, three issues did arise from the applicant's proposed orders. Those issues concerned the payment of interest, continuity of service and costs, each of which I deal with below after addressing the background.

Background 4In Public Service Association and Professional Officers Association Amalgamated Union of NSW (on behalf of Rosanna Ganino) and Roads and Maritime Services [2012] NSWIRComm 1014, Tabbaa C determined that Ms Rosanna Ganino should be reinstated to her former position with Roads and Maritime Services ("the respondent") as Senior Solicitor, Liability Litigation, on terms no less favourable to her than those that would have been applicable if she had not been dismissed. The Commissioner ordered the respondent to pay Ms Ganino remuneration, the quantum yet to be determined, to compensate for the period during which she was off work. The amount of remuneration was subject to separate proceedings before Tabbaa C in order to determine the issue of mitigation of losses by Ms Ganino. 5Having received further evidence and submissions, Tabbaa C determined the question of lost remuneration and mitigation on the papers. Tabbaa C ordered the respondent to pay Ms Ganino her salary from 23 July 2009 to the date of her reinstatement, less the amounts earned by her during that period through alternative employment; and the amounts paid to her by the respondent in the period November 2011 to March 2012, less an amount equivalent to the amount she would have earned during nine calendar months of employment with the respondent. Tabbaa C's orders were that: [34] The Respondent shall pay to the Applicant her salary from 23 July 2009 to the date of her reinstatement as if she had been employed during that period less: (1) the amounts earned by her during that period in alternative employment; and (2) the amounts paid to her by the Respondent in the period November 2011 to March 2012; and (3) an amount equivalent to the amount she would have earned during nine (9) calendar months of employment with the Respondent. [35] The Respondent shall pay to the Applicant interest on the back pay calculated in paragraph 34 above pursuant to s 100 of the Civil Procedure Act 2005, to be paid at the Reserve Bank of Australia's cash rate plus 4%. [36] The payments are to be made within 28 days of the date of this decision. [37] Matter IRC 1141 of 2009 is hereby concluded. 6Ms Ganino appealed the Commissioner's decision. In its decision on the appeal, the Full Bench held that the issue to be determined by it was the "discrete issue of mitigation by the appellant, and whether she was entitled to lost remuneration between the period of dismissal and reinstatement" (at [29]). 7Two other matters addressed by the Full Bench relevant to my consideration on the remitter concerned, firstly, the catchwords used by Tabbaa C on the coversheet of her reasons for decision and, secondly, the issue of continuity of service. In relation to catchwords, the Full Bench stated: [49] The appellant seeks an order to correct the catchwords and/or the decision so as to reflect the findings made by Tabbaa C. In her decision of 24 May 2013, the catchwords included the words: "Exercise of discretion to decrease amount of back pay in recognition of finding of misconduct against the Applicant". [50] As we have already determined, no such finding was made by Tabbaa C in her decision of 24 May 2013. [51] However, in our view, the function of catchwords are to give a summary of the matters dealt with in a case: see Australian Institute of Judicial Administration; Guide to Uniform Production of Judgments, 2nd ed, 1999. Catchwords do not form part of the decision itself. They are indexing terms which describe the legal and factual subject matter of the case. [52] No appeal lies in respect of the formulation of catchwords. There is no foundation for this ground of appeal. It is dismissed. 8My Associate received advice from the applicant's solicitor that the respondent neither agreed to or opposed an application by the applicant under r 36.17 of the Uniform Civil Procedure Rules 2005 (the slip rule) to correct the catchwords on the coversheet of the first instance decision by removing the words "Exercise of discretion to decrease amount of back pay in recognition of finding of misconduct against the Applicant". I am satisfied the catchwords do not accurately reflect the decision of Tabbaa C. However, I am not sure the slip rule is the appropriate basis to remove the impugned words as the rule only applies to a judgment or order or certificate. The coversheet is none of these. Nevertheless, it seems to me there is nothing to prevent me acting administratively to remove the words and I do so. 9The second issue concerned continuity of service. In that respect, the Full Bench stated: [53] The appellant seeks an order for continuity of service. During oral submissions, Ms Lowson conceded that the question of continuity of service arose in relation to Tabbaa C's decision of 13 July 2012 and that it was not a question that arose in relation to Tabbaa C's decision of 24 May 2013. [54] It was for this reason that the appellant brought an application for an extension of time to appeal Tabbaa C's decision of 13 July 2012. [55] While it is correct that Tabbaa C did not give reasons in her decision of 13 July 2012 for not making an order for continuity of service under s 89(4) of the IR Act, and this may have constituted a basis for appellate intervention, no appeal was brought in respect of that decision. The decision under appeal does not deal with the question of continuity of service. It follows that no error in relation to that decision is therefore identifiable. This ground of appeal is therefore incompetent and is dismissed. I will deal with the continuity issue later in this decision. 10Returning to the issue of lost remuneration/mitigation, the Full Bench found that the only reason given by Tabbaa C for exercising her discretion to discount Ms Ganino's back pay by nine months' pay, was "the period of inaction" by the appellant in not seeking alternate employment during the period of her dismissal. However, the Full Bench held that the Commissioner "failed to provide adequate proper reasons for the exercising of her discretion under s 89(3) of the IR Act." At [43] and [47] the Full Bench stated: [43] As we have said, the sole basis for Tabbaa C's order to reduce the remuneration payable was that there were "significant periods of inaction" by the appellant (in pursuing alternate employment). The only material in the decision upon which the order could have been based consists of a submission to that effect by the respondent which is referred to by Tabbaa C at [18] of the Decision. The Commissioner appeared to accept the submission but there is no discernible basis as to why it was accepted or why that factor should have resulted in a reduction of any order otherwise properly made under s 89(3). Tabbaa C does not explain what constituted the inaction referred to in [33]. Nor does she explain why that should constitute a discount in remuneration. ... [47] In our view, there is no demonstrable basis for the conclusion reached by Tabbaa C. For the reasons we have set out, the inference is available that the Commissioner erred in failing properly to exercise her discretion when considering the issue of remuneration under s 89(3): see House v R at 505. By taking into account a factor, namely, the appellant's inaction, without properly connecting the subject matter to the discretion under s 89(3) of the IR Act Tabbaa C has arrived at a result that is so unreasonable, appellate intervention is required. The error is of the kind referred to in Australian Coal & Shale Employees' Federation. 11At [68]-[69] the Full Bench stated: [68] The parties contended, with good reason, that the Full Bench should hear and determine for itself the question of what orders should appropriately be made under s 89(3) of the Act having regard to the application at first instance brought by the appellant and the undisturbed determination by Tabbaa C regarding the reinstatement of the appellant. Unfortunately, this Full Bench will not be able to undertake that task. Nor does it seem appropriate to constitute another Full Bench for that purpose. With those considerations in mind, we have decided to adopt the alternative course of remitting the matter to a Member of the Commission to determine the application with expedition. The matter will be allocated to Boland J for that purpose. [69] We wish to make clear that the only issue that arises in respect of the remuneration is the quantum of remuneration to be awarded to Ms Ganino in light of her reinstatement. 12Relevantly, the Full Bench ordered that: (3)The orders of Tabbaa C of 24 May 2013 are quashed. (4)The matter is remitted to Boland J to determine any appropriate orders to be made in the first instance matter under s 89(3) of the Act in accordance with this decision. His Honour should have before him the evidence and submissions relied upon by the parties. 13On 16 January 2014, I made orders regarding the submissions and evidence the parties could rely upon on the remitter. Relevantly, it was ordered that: (1) The Commission will treat the following evidence and submissions filed by the parties in relation to the question of the quantum of remuneration to be awarded to Ms Ganino in light of her reinstatement in proceedings IRC 1141 of 2009 as submissions and evidence on the remitter: (a) Applicant's outline of submissions filed 25 July 2012. (b) Affidavits of Rosanna Ganino filed 19 July 2012 and 8 October 2012. (c) Respondent's submissions filed 10 August 2012. (d) Applicant's outline of submissions in reply filed 8 October 2012. (e) Parts of the transcript of proceedings relating to evidence and submissions on the question of the quantum of remuneration to be awarded to Ms Ganino in light of her reinstatement.

Consideration 14As I earlier mentioned, the issue at the heart of the remitter had evaporated to be replaced by three other issues arising from the applicant's proposed orders to resolve the remitter. The proposed orders were in the following terms: 1. The Respondent shall pay to the Applicant her gross salary from 23 July 2009 until the date of her reinstatement, 30 July 2012, as if she had been employed during that period, less: a. The gross amounts earned by her in alternative employment in the sum of $14,817; b. The gross amounts paid to her by the respondent in the period November 2011 to March 2012 being $41,662.27; c. The gross amount of salary paid to her as a consequence of orders made by Tabbaa C on 24 May 2013 (those orders having been subsequently quashed by the Full Bench in its decision delivered on 18 December 2013). 2. In the event that the parties cannot agree as to the amount in (1), the parties are to file within 14 days of these orders documents outlining their method of calculating the said amount, and the Commission will determine the amount payable under (1) without further reference to the parties. 3. The amount in (1) is to be paid to the applicant nett of income tax, if any, payable on that amount. 4. The respondent shall pay interest on the amount in (1) at the rates prescribed by s.100 of the Civil Procedure Act 2005 and as set out in the Uniform Civil Procedure Rules 2005, from 23 July 2009 up until the date of payment 5. Payment of the amounts in (1) and (4) to be made within 21 days of the date of the amount in (1) a. Being agreed by the parties; or b. Being ordered by the Commission. 6. Continuity of service for the period 23 July 2009 until the date of reinstatement, 30 July 2012. 7. The applicant file evidence and submissions on the question of the costs of the appeal and the remitter by no later than 14 days of the date of these Orders. 8. The respondent to file and serve evidence and submissions on the question of costs of the appeal and the remitter by no later than 14 days after the date of the applicant filing and serving its material. 9. The applicant to file and serve evidence and submissions in reply on the question of costs of the appeal and the remitter by no later than 7 days after the date of the respondent filing and serving its material. 10. Liberty to apply on 3 days notice. 15Orders (1), (2), (3) and (5) were agreed. Order (4) was not agreed to the extent the respondent submitted interest should become payable from 24 May 2013 (date of first instance decision) and not the date of Ms Ganino's dismissal, that being 23 July 2009. 16Section 100(1) of the Civil Procedure Act 2005 provides: (1) In proceedings for the recovery of money (including any debt or damages or the value of any goods), the court may include interest in the amount for which judgment is given, the interest to be calculated at such rate as the court thinks fit: (a) on the whole or any part of the money, and (b) for the whole or any part of the period from the time the cause of action arose until the time the judgment takes effect. 17An order for the payment of interest is discretionary. The purpose of the discretion is to permit a successful party to be properly compensated for the practical loss it has suffered: Ritchie's Uniform Civil Procedure NSW Vol 1 (2005, Lexis Nexus Butterworths) [s 100.10] at 2702 and the cases referred to therein. Successful applicants will generally be entitled to an award of interest: ibid. Interest will almost invariably be awarded: ibid. 18The respondent opposed interest being paid from 23 July 2009 on the ground that the issue of back pay did not arise until Tabbaa C addressed it in the first instance decision. In other words, back pay was not the cause of action. Rather it was the fairness or otherwise of the applicant's dismissal. 19Whilst the cause of action related to the circumstances of the applicant's dismissal, the IR Act provides that if the dismissal is found to be unfair and the Commission orders reinstatement, it may order the employer to pay to the dismissed employee an amount specified in s 89(3). That is, an amount that does not exceed the remuneration the employee would, but for being dismissed, have received before being reinstated in accordance with the Commission's order. 20Unless some proper reason exists to pay interest on only part of the amount contemplated by s 89(3), given the purpose of awarding interest I am unable to see why interest should not be paid on the whole amount. 21One reason for not awarding interest on the whole amount may be because the applicant rejected a reasonable offer to settle the matter. The respondent relied on the fact that it had made an offer to the applicant to settle on 25 November 2011. The offer, in addition to a number of other terms, included a term that the respondent would pay to the applicant back pay and accrued leave entitlements and the applicant would be deemed to have continuous service from the date of dismissal until acceptance of the offer. One of the other terms, however, was that the respondent would consent to reinstatement conditional upon the applicant resigning immediately. The applicant rejected the offer. 22Given the applicant was successful in making out her case that her dismissal was unfair and that relief was provided in the form of an order for reinstatement, the applicant's rejection of the settlement offer could not be regarded as unreasonable. In my opinion, interest should be paid from 23 July 2009. 23The next issue, as I earlier explained, concerned continuity of service. I am of the opinion that my remit does not permit me to make an order providing for continuity of service during the period between dismissal and reinstatement. First, the Full Bench dismissed the claim for continuity of service because the decision under appeal did not deal with that question. Secondly, the orders of the Full Bench regarding what was being remitted were quite specific in that I was directed to "determine any appropriate orders to be made in the first instance matter under s 89(3) of the Act in accordance with [the Full Bench's] decision." The issue of continuity of service and whether it should be ordered as a consequence of a reinstatement order is addressed under s 89(4) of the IR Act: a separate provision from s 89(3). I do not propose to make any order regarding continuity of service. 24The third issue I need to deal with is costs. The applicant seeks orders for the filing of further submissions on the question of costs of the appeal and costs on the remitter. As to the costs of the appeal, the Full Bench said nothing about costs in its reasons and made no orders in that respect. The remitter does not include the question of costs of the appeal. Accordingly, I do not regard costs of the appeal as a matter within my remit. 25In respect of the costs of the remitter, I will make orders for the filing of evidence and submissions. Unless a party wishes to be heard orally, costs of the remitter will be dealt with on the papers.

Orders 26The Commission makes the following orders: 1. The respondent shall pay to the applicant her gross salary from 23 July 2009 until the date of her reinstatement, 30 July 2012, as if she had been employed during that period, less: a. the gross amounts earned by her in alternative employment in the sum of $14,817, b. the gross amounts paid to her by the respondent in the period November 2011 to March 2012 being $41,662.27, c. the gross amount of salary paid to her as a consequence of orders made by Tabbaa C on 24 May 2013 (those orders having been subsequently quashed by the Full Bench in its decision delivered on 18 December 2013), resulting in an amount to be paid to the applicant of $79,111.43 2. The total of the amounts in (1) is to be paid to the applicant net of income tax, if any, payable on that amount. 3. The respondent shall pay interest on the total of the amounts in (1) at the rates prescribed by s 100 of the Civil Procedure Act 2005 and as set out in the Uniform Civil Procedure Rules 2005, from 23 July 2009 up until the date of payment. 4. Payment of the amounts in (1) and (3) to be made within 21 days of the date of these Orders. 5. The applicant file evidence and submissions on the question of costs of the remitter by no later than 14 days of the date of these Orders. 6. The respondent to file and serve evidence and submissions on the question of costs the remitter by no later than 14 days after the date of the applicant filing and serving its material. 7. The applicant to file and serve evidence and submissions in reply on the question of costs of the remitter by no later than 7 days after the date of the respondent filing and serving its material. 8. Unless a party indicates it wishes to be heard on costs of the remitter the matter will be dealt with on the papers. 9. Liberty to apply on reasonable notice. ooooo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 March 2014

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