Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary on behalf of the Department of Communities & Justice

Background

1. The parties have tendered jointly a Statement of Agreed Facts with 14 annexures and have not tendered any additional evidence. I rely on the Statement of Agreed Facts and its annexures in summarising the history of the matter and my determination.
2. Ms Mannix has held the position of Governor, or an equivalent position, at CSNSW correctional centres since 2009. On or about 1 March 2021, she commenced as Governor of the Centre.
3. The Centre was, and is, a correctional centre for the purposes of the Crimes (Administration of Sentences) Act 1999. This Act provides at s 233(1)(a) that the Governor is responsible for the care, direction, control and management of the Centre and is subject to the authority of the Commissioner of CSNSW. Additionally, s 231(b) of that Act provides that the Governor is an employee of the NSW Public Service under the GSE Act.
4. At approximately 12:05pm on 15 June 2021, Ms Mannix attended an inmate's cell in the Mum Shirl Unit of the Centre. The Inmate was a 19-year-old who was suffering from mental health issues and was engaging in acts of self-harm.
5. Precisely what happened next is contested, but it is common ground that Ms Mannix entered the cell with three Senior Assistant Superintendents and interacted with the Inmate between about 12:05pm and 12:07pm. During those interactions, Ms Mannix leaned in towards the Inmate's face and pushed the Inmate back against the cell wall with her right hand, and the right hand ended around the Inmate's throat ("Incident"): SOAF par 12. This incident was captured on CCTV but not with body-worn or hand-held video cameras.
6. The Incident was referred to the Corrective Services Investigation Unit ("CSIU").
7. On 6 July 2021, Ms Mannix was charged with one count of strangle another person without consent pursuant to s 37(1A) of the Crimes Act 1900, and one count of common assault pursuant to s 61 of the Crimes Act 1900.
8. On 7 July 2021, Commissioner Peter Severin wrote to Ms Mannix, suspending her from her employment with pay under s 70 of the GSE Act.
9. On 20 February 2023, the charge of strangle another person without consent was withdrawn and dismissed.
10. On 6 April 2023, Ms Mannix was convicted in the Local Court for common assault and sentenced to a two-year community correction order and a fine of $750. Ms Mannix appealed the conviction and provided fresh evidence going to good character: District Court Decision p 2.
11. On 7 April 2023, Deputy Commissioner Anne Marie Martin wrote to Ms Mannix referring to her conviction and determined "in accordance with sections 70(4) and 70(5) of the [GSE Act], that any salary payable with you while suspended from duty will be withheld".
12. On 12 April 2023, Ms Mannix's legal representative wrote to the Deputy Commissioner to seek that Ms Mannix's pay be reinstated.
13. On 27 April 2023, Commissioner Kevin Corcoran responded to Ms Mannix's legal representative to inform her that he had decided to continue Ms Mannix's suspension without pay. The Commissioner referred to Premier's Memorandum 1994-35 "Suspension of Public Employees from Duty" ("PM 1994-35").
14. On 9 May 2023, Acting Commissioner Leon Taylor wrote to Ms Mannix to give notice pursuant to Pt 8 of the Government Sector Employment (General) Rules 2014 ("GSE Rules") that he had received allegations of misconduct relating to the Incident, and was investigating the matter. As the allegations of misconduct are not the subject of these proceedings, I will not expand upon them. Ms Mannix did not provide a response due to the potential prejudice such a response might cause to her appeal against her conviction.
15. On 15 July 2023, Acting Commissioner Taylor informed Ms Mannix by letter that he was satisfied that the allegations of misconduct were substantiated and was proposing that Ms Mannix's employment be terminated pursuant to s 69(4) of the GSE Act.
16. On 24 July 2023, the Notifier wrote to Commissioner Corcoran requesting that the misconduct proceedings be paused while the criminal appeal proceedings were on foot. CSNSW assented to this pause.
17. On 12 April 2024, Judge Smith SC of the District Court set aside Ms Mannix's conviction.
18. On 1 May 2024, Deputy Commissioner Martin wrote to Ms Mannix to inform her that she was beginning the misconduct proceedings afresh, referring to the same allegations as those referred to in the 9 May 2023 letter and inviting Ms Mannix to make submissions in response. On the same day, the Notifier lodged a dispute notification with this Commission.
19. On 10 May 2024, Deputy Commissioner Martin informed Ms Mannix by letter that she had determined that the suspension from duty without pay would be revised to a suspension from duty with pay effective from 12 April 2024 in accordance with s 70(2) of the GSE Act.
20. On 7 June 2024, Ms Mannix responded to the allegations made on 1 May 2024.

Procedural history

1. A compulsory conciliation conference was held before me on 8 May 2024. The conciliation was unsuccessful. On that date, I made orders for the parties to file written submissions and evidence. The orders were varied on 6 June 2024 to alter the deadline for the filing of submissions and evidence. Subsequently, the following documents were filed with the Commission: 1. on 6 June 2024, the Notifier filed the questions it wished the Commission to determine ("Notifier's Questions"); 2. on 2 July 2024, the Notifier filed its submissions ("NS"); 3. on 20 June 2024, the parties filed a Statement of Agreed Facts ( "SOAF"), including the following annexures: 1. letter of 7 July 2021 from the Commissioner of CSNSW to Ms Mannix; 2. letter of 7 April 2023 from the Deputy Commissioner to Ms Mannix; 3. letter of 12 April 2023 from Ms Mannix's legal representative to the Deputy Commissioner; 4. letter of 27 April 2023 from the Commissioner of CSNSW to Ms Mannix's then solicitor Mr Danny Eid: Annexure 4; 5. letter of 9 May 2023 from the Acting Commissioner to Ms Mannix; 6. a copy of the Crown Employees (General Managers, Superintendents, Managers Security and Deputy Superintendents, Department of Justice - Corrective Services NSW) Award 2009 as in force at the time; 7. a copy of the Department of Communities and Justice Code of Ethical Conduct as in force at the time; 8. a copy of relevant sections of the Custodial Operations Policy and Procedures (COPP) as in force at the time; 9. letter of 15 July 2023 from the Commissioner to Ms Mannix; 10. letter of 24 July 2023 from the Notifier to the Commissioner; 11. a transcript of the ex tempore judgment of Smith SC J delivered in the District Count on 12 April 2024; 12. letter of 1 May 2024 from the Deputy Commissioner to Ms Mannix; 13. letter of 10 May 2024 from the Deputy Commissioner to Ms Mannix; 1. on 23 July 2024, the Respondent filed his submissions ("RS"); and 2. on 29 July 2024, the Notifier filed its submissions in reply.
2. A further unsuccessful conciliation took place before me on 29 August 2024.

What does the Notifier seek?

1. The Notifier seeks that the Commission make a recommendation pursuant to s 136(1) of the IR Act that the Respondent pay Ms Mannix for the period of her suspension without pay, being 7 April 2023 to 12 April 2024, and recredit her leave consumed during the period.
2. If the Respondent does not agree to comply with such a Recommendation, the Notifier seeks that the Commission then make an order, or make an award pursuant to its powers under s 10 of the IR Act, that Ms Mannix be paid a sum reflecting the loss suffered by the Respondent's failure to remunerate Ms Mannix during the relevant period.
3. The Respondent would not commit to accepting a recommendation by the Commission without knowing the contents of the recommendation and the Notifier accepted that this was an appropriate position for the Respondent to take: Tcpt pp 3-4.
4. The Notifier invited the Commission to make a recommendation and then give the Respondent a period of time to consider if he would comply.
5. The Notifier submits that there are three questions which arise in the resolution of the dispute which are in the following terms: "1. Is Premiers Memorandum M1994-35 Suspension of Public Employees from Duty, insofar as it purports to empower "the Chief Executive" to "suspend [an] employee from duty without pay", inconsistent with s 70 of the Government Sector Employment Act 2013 which merely empowers "any remuneration payable to an employee while the employee is suspended from duty under this section to be withheld". 2. Is the remuneration withheld from an employee who has been suspended in reliance upon s 70(2)(b) of the Government Sector Employment Act 2013 liable to be "forfeited" where the employee is not convicted of "the offence concerned". 3. Is it fair and reasonable for the remuneration withheld from an employee who has been suspended in reliance upon s 70(2)(b) of the Government Sector Employment Act 2013 to be reimbursed where the employee has been acquitted of the "serious offence" upon which the suspension was reliant." (emphasis in original) ("Notifier's Questions).
6. The Respondent says that the Notifier's Questions are not apt to address the central issue of whether Ms Mannix's suspension was properly withheld and able to be forfeited.
7. The Notifier seeks for the Commission, in resolving this dispute, to exercise its powers under s 175 of the IR Act to determine the interpretation, application and operation of s 70 of the GSE Act and PM 1994-35. Section 175 of the IR Act provides that: 175 Powers of interpretation The Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument)
8. The Respondent did not cavil with the Notifier's submissions that whether Ms Mannix is presently entitled to the remuneration withheld from her in respect of the suspension without pay period turns on the proper construction of s 70 of the GSE Act. The Respondent accepts that, pursuant to s 175 of the IR Act, the Commission may interpret s 70 of the GSE Act and the Premier's Memorandum to the extent necessary for resolving this dispute.
9. I agree that I may, and I intend to, interpret s 70 of the GSE Act and the Premier's Memorandum to the extent necessary for resolving this dispute.
10. Given the position that I have taken in [40], it is not necessary for me, nor is it appropriate for me sitting as a single member, to opine on the Notifier's submissions on whether the Commission can merely exercise discretion as to whether to determine the interpretation, application or operation of a provision, but may in some cases be required to do so in accordance with the Full Bench's comments in Davidson v Commissioner of Police (No 3) [2022] NSWIRComm 1102 at [36] - [41]: see NS at pars 9-10.

Commission's reasons for making a recommendation in arbitration

1. The Notifier has asked that in the first instance I make a recommendation pursuant to s 136(1)(a).
2. In Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431 , his Honour Justice Walton said: "199 In the absence of a recommendation in arbitration having any legal consequence, certiorari does not lie. 200 As I have noted above, a recommendation is a very broad power and it was deliberately designed to give the maximum latitude to the Commission to use its expertise, experience and knowledge to assist in resolving the industrial dispute. The terms of a recommendation may be such that the Commission would not be disposed to make an award, direction or order in those same terms. And a recommendation can be made to do something even if there is no legal requirement or entitlement to do it. Therefore, there is no requirement on the Commissioner to give reasons that sets out the legal basis for an entitlement for the allowance. 201 The full thought processes of the Commissioner have generally not been exposed when making a recommendation. I have noticed that there has now been a trend for the Commission to express its reasons for making or not making a recommendation in a formulaic way that creates an impression that it was a considered decision. It is usually undesirable for a Commissioner to create such an impression. 202 When an exposition of the basis for the giving of a recommendation is given, it is no more than a series of propositions which may support the recommendation that has been made which may encourage the parties to give serious consideration to the recommendation. But it should not be considered as a proper interlocutory or final decision that has legal effect. It should not be taken that the Commission would make or vary an award or make orders in the precise terms of the recommendation."
3. I have determined to make a recommendation in a form similar to that sought by the Notifier. I intend to express my reasoning for this recommendation as a series of propositions which support the recommendation. It should not be considered a final decision with legal effect and it cannot be assumed that I would necessarily make an award or order in the precise terms of, or similar terms to, the recommendation.
4. In order for me to set out my reasoning for the recommendation in a form consistent with his Honour Justice Walton's judgment, it is not necessary that I answer the Notifier's Questions at this time.
5. It is sufficient that I consider and address the content of the Statement of Agreed Facts and its annexures and the relevant legislation.
6. On 7 April 2023, Deputy Commissioner Martin wrote to Ms Mannix referring to her conviction and determined "in accordance with sections 70(4) and 70(5) of the [GSE Act], that any salary payable to you while suspended from duty will be withheld".
7. On 12 April 2023, Ms Mannix's legal representative wrote to the Deputy Commissioner to seek that Ms Mannix's pay be reinstated.
8. On 27 April 2023, Commissioner Kevin Corcoran responded to Ms Mannix's legal representative stating: "I … decided that Ms Mannix's suspension is to remain as without pay". The Commissioner referred to Premier's Memorandum 1994-35 "Suspension of Public Employees from Duty" ("PM 1994-35") but did not refer to the GSE Act.
9. Section 70 of the GSE Act provides: Suspension of employees from duty pending decision in relation to misconduct, criminal charge or corrupt conduct (1) In this section - government sector agency means - (a) a Public Service agency, and (a1) that part of the NSW Police Force comprising administrative employees under the Police Act 1990, and (b) any other government sector agency prescribed by the regulations for the purposes of this section. (2) If - (a) an allegation of misconduct by an employee of a government sector agency is being dealt with by the person who exercises employer functions in relation to the employee (the employer), or (b) an employee of a government sector agency is charged with a serious offence referred to in section 69, the employer may suspend the employee from duty until the allegation of misconduct or the criminal charge has been dealt with and any subsequent action has been taken by the employer. (3) If the Independent Commission Against Corruption - (a) has made a corrupt conduct finding against an employee of a government sector agency of a kind referred to in section 114A of the Independent Commission Against Corruption Act 1988, or (b) is conducting an investigation into the conduct of any such employee that may lead to such a finding, the employer may suspend the employee from duty until the completion of any such investigation and, in the case of any such finding, until any subsequent action has been taken by the employer. (4) The employer may direct that any remuneration payable to an employee while the employee is suspended from duty under this section is to be withheld. (5) If - (a) the employer takes action against the employee for the misconduct or the corrupt conduct finding, or (b) the employee is convicted of the offence concerned, any remuneration so withheld is forfeited to the State unless the employer otherwise directs or that remuneration was due to the employee in respect of a period before the suspension was imposed. (6) The employer may at any time remove a suspension under this section.
10. It is clear, on the plain words of the GSE Act, that from 6 July 2021 until 6 April 2023, the employer had the power pursuant to s 70(2)(b) to suspend Ms Mannix and, pursuant to s 70(4), it had the power to withhold remuneration during any period of suspension of Ms Mannix pursuant to s 70.
11. In the letter of 1 July 2021, Commissioner Severin relied on s 70 but did not specially refer to s 70(2)(a) or (b). It is reasonable to infer that the employer was relying on s 70(2)(b) given the reference to the charges in the paragraph of the letter of 1 July 2021, which precedes the paragraph notifying of the decision to suspend, and the reference to the serious nature of the matter in the letter. Commissioner Severin did not invoke, nor purport to invoke, the power to withhold remuneration during this period and referred to the action taken by the employer as "suspension with pay".
12. I accept that Ms Mannix was initially suspended with pay because she was charged "with a serious offence referred to in section 69" of the GSE Act, and no allegation of misconduct was notified or relied on for the suspension at that time. The suspension was necessarily reliant upon s 70(2)(b) of the GSE Act at that time.
13. On 7 April 2023, following Ms Mannix's conviction in the Local Court, Deputy Commissioner Dr Martin wrote to Ms Mannix on behalf of the employer stating that she had "reviewed [Ms Mannix's] suspension from duty" and "decided, in accordance with sections 70(4) and 70(5) of the [GSE Act], that any salary payable to [Ms Mannix] while suspended from duty will be withheld". This letter did not refer to any power of the employer to suspend Ms Mannix under the GSE Act or other legislation. Based on the material before the Commission, there was no misconduct investigation taking place at this time; thus s 70(2)(a) did not apply.
14. On 7 April 2023, following her conviction in the Local Court, Ms Mannix was advised that her suspension would continue but pay would be withheld. Again, no formal allegation of misconduct had been put to Ms Mannix at that time, nor was Ms Mannix informed that the suspension was on the basis of misconduct allegations being dealt with.
15. On 9 May 2023, Acting Commissioner Leon Taylor notified Ms Mannix that "[i]n accordance with Part 8 of the Government Sector Employment (General) Rules 2014, … [he had] received allegations of misconduct and … determined to proceed with the matter". As of this date, the Respondent had the power to suspend Ms Mannix pursuant to s 70(2)(a) of the GSE Act as a misconduct allegation was being dealt with by the person exercising the employer functions. However, this letter did not refer to the suspension of Ms Mannix nor to the withholding of her remuneration.
16. On 15 July 2023, Commissioner Corcoran wrote to Ms Mannix notifying her that he had made misconduct findings against her, setting out the basis of these findings, and notifying Ms Mannix that he was proposing to terminate her employment pursuant to section 69(4) of the GSE Act.
17. This letter also included a "suspension review" and referred to the Premier's Memorandum 1994-35 "Suspension of Public Employees from Duty" which states: "… the policy on suspension derives from guidelines attached to the Premier's Memorandum 1994-35 "Suspension of Public Employees from Duty". In matters where an employee is convicted of a crime, irrespective of an appeal, the policy states: Where an employee is convicted of a crime, notwithstanding the availability of an avenue of appeal against conviction, the Chief Executive* (pending final decisions on whether the employee is retained or dismissed) will suspend the employee from duty without pay, if the nature of the offence is such that this action is warranted in the public interest, having regard to the efficient operation of the agency or the maintenance of good order and /or discipline. The suspension decision should be reviewed at least every 30 clays. If the option to suspend without pay is not available, then suspension with pay should apply."
18. I accept that in the letter of 1 July 2023, the Respondent notified Ms Mannix that he had made findings in relation to the three allegations of misconduct against her, and "an allegation of misconduct [was] being dealt with by" the Respondent. Nevertheless, this letter did not, nor at any other time prior to the acquittal on 12 April 2024 the Respondent did not, notify Ms Mannix of a change to the basis of her suspension to being on the basis of s 70(2)(a), despite the allegations and findings of misconduct.
19. The Notifier submitted that the proper interpretation, application and operation of s 70 of the GSE Act is as follows: the scheme of the section is plain: if an officer is charged with a specified offence, then the Respondent may decide to suspend the officer from duty and may decide to withhold pay. If the officer is acquitted of the charge in respect of which the officer was suspended then their salary during the period of suspension is not forfeited and they are entitled to payment of it. On the Notifier's analysis, there is no decision to be made or discretion to be exercised by the Respondent when the employee is acquitted - the condition precedent to forfeiture did not arise. The Notifier says that this is plain from the use of the definite article "the" in s 70(5)(b). There is no element of discretion involved unless the officer is convicted of the offence, and then only as to whether the employee should be relieved of the forfeiture triggered by the employee being "convicted of the offence concerned".
20. I have not formed a conclusive view in respect of the submissions by the Notifier summarised in [60] nor in respect of the Notifier's Questions.
21. The Respondent submitted that the Crown's power to withhold remuneration under s 70(4) derives from the following: "28 .. to withhold remuneration depends only on the objective circumstance that 'the employee is suspended from duty under this section'. It does not depend on any identification made by the employer of the ground of suspension. This is reinforced by the general reference to 'this section', rather than the specific grounds of suspension under s 70(2). It follows that, for so long as Ms Mannix's suspension was supported by the objective existence of a ground under s 70(2) and continued under that subsection, the Respondent was empowered to withhold her remuneration under s 70(4)."
22. I have not formed a view as to whether the Respondent is legally correct. However, in my view, when the Crown decides to withhold remuneration, with the potential forfeiture of the withheld remuneration, the Crown should act as a responsible industrial party and employer, and should clearly stipulate the statutory underpinnings and powers for any action it takes.
23. It may be that the Respondent is legally correct that the power to withhold remuneration depends only the objective circumstances. Given the "very broad power" and "maximum latitude" afforded to me by the Parliament in s 130 of the IR Act, I am of the view, that in order for me to make a recommendation for the purposes of resolving the industrial dispute, it is not necessary to determine this question or the Notifier's Questions. I have not considered whether it would be fair and reasonable, or otherwise within power, for me to make an order or award for the payment of remuneration which was withheld during the suspension period. Nor have I formed a view about the consistency or inconsistency of the Premier's Memorandum M 1994-35 with s 70 of the GSE Act and the effect of any inconsistency.
24. Ms Mannix was ultimately acquitted of the charge of common assault. The suspension was, at least initially, founded on that charge and another withdrawn charge, and the Respondent did not at any time prior to Ms Mannix's successful appeal notify Ms Mannix that he was relying on s 70(2)(a) and (4) in order to withhold Ms Mannix's remuneration. Commissioner Corcoran invoked the Premier's Memorandum 1994-35 "Suspension of Public Employees from Duty" in his letter of 15 July 2023 as the reason for her "suspension without pay". In an industrial setting, with a sophisticated employer, it is expected that an employee is informed of all reasons as to why her pay is withheld or other sanctions are imposed upon her, regardless of whether the Respondent is legally correct that it is the objective circumstances that underpin its power to withhold.
25. Consequently, I have formed a view that it is appropriate that I make the following recommendation: The Respondent pay to Ms Tracey Mannix the remuneration withheld from Ms Mannix between 7 April 2023 and 12 April 2024, and otherwise recredit Ms Mannix's leave for any leave consumed or not accrued during this period ("Recommendation").

Next Steps

1. The Respondent must inform the Notifier, Ms Mannix and the Commission by 4pm on 7 January 2025 if he will comply with the Recommendation, and if so, by what date. If the Respondent does not confirm that he will comply, then the matter will be listed before me to allow the parties to inform the Commission if any steps should be taken prior to me determining the balance of the Notifier's application.

Orders, Recommendation and/or Directions

1. Pursuant to s 136(1), the Commission: 1. recommends that the Respondent pay to Ms Tracey Mannix the remuneration withheld from Ms Mannix between 7 April 2023 and 12 April 2024, and otherwise recredit Ms Mannix's leave for any leave consumed or not accrued during this period; 2. directs: 1. the Respondent must inform the Notifier, Ms Mannix and the Commission, by 4pm on 7 January 2025, if he will comply with the Recommendation in (1), and if so, by what date; and 2. the matter is listed for directions before me at 10 am on 9 January 2025 at a place to be notified to the parties by the Registrar. If in accordance with Direction (a), the Respondent affirms his intention to comply with the Recommendation in (1), then this listing will be vacated, and the Dispute file will be closed.

Amendments 18 December 2024 - Formatting correction 19 December 2024 - corrections made in paragraphs [9], [67], 68(a) and (b) 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: 19 December 2024