• The Applicant was inconsistent to her attitude to exploring a wide range of agencies. At times open to leaving the Department of Education due her perceived damaged reputation, but at other times would not consider jobs outside of the Department of Education, claiming she had friends and networks within and she wanted to stay.

• The Applicant at times would also decline to apply for certain identified positions due the position being backfilled (someone acting in it), or a good pool of applicants had applied for it, or she was not sure if she was interested in the role.

[294] Ms Stewart said that in order to try and overcome these challenges she recommended the Applicant consider applying for positions at a lower level in order to broaden her chances of securing an ongoing position and increase the chances of her referees supporting her applications (securing an ongoing position in the first instance was paramount) and then apply for higher level positions. Ms Stewart said that the Applicant was not open to this strategy, and maintained that her skills and experience were at a Senior Administration 1 (SAOl) level, and she should be considered for positions at this level.

[295] Ms Stewart's evidence was that coaching with an external provider Ms Kate McTaggart, Executive Coach, Kate McTaggart Consulting, was arranged for the Applicant in order to help the Applicant with her employment prospects.

[296] Ms Stewart submitted that it was evident that the Applicant was becoming frustrated with not being found suitable for the positions that she was referred to for consideration. Ms Stewart said in her view, the Applicant was not accepting of the limitations of her situation in relation to her referees and was not willing to alter her strategy or approach to her recruitment process in order to overcome this. She stated that the Applicant would often simply place blame on panels not contacting the correct referees, referee's not providing the correct information, or not supporting her claims in regards to skill, experience and achievements.

[297] At the end of 2019, Ms Stewart said that herself and the Applicant increased their meetings to a weekly basis. She stated that at this stage the Applicant was becoming more open to lower level positions such as AO6's, however would not consider anything below (at times Ms Stewart tabled AO5's).

[298] Ms Stewart said that in response to the position of Manager Compliance and Celebrations was a SAOl level position that the Applicant had identified in her statement, this position was above the Applicant's nominal therefore she was unable to be referred to it.

[299] Ms Stewart stated that the Applicant was provided on the job training within every placement. With each placement the Applicant had a manager to report to, and colleagues to engage and network with. The purpose of the Agency funding placement at 'other agency's was for the Applicant to upskill, learn, build relationships, find mentors to assist, and guide her into an ongoing role.

[300] Ms Stewarts evidence was that the responsibility of both the redeployee and the case manager to actively identify positions. Throughout the Applicant's redeployment period she was referred to positions by her case managers and supporting staff.

[301] Ms Stewart noted that she was not aware of the Applicant being placed into a lower level position.

[302] Ms Stewart submitted that she arranged for the Applicant to be placed into Engagement and Partnerships reporting to Mr Wayne Avard, Senior Director, Student Engagement. The Applicant did not commence in this role until June 2019 however was advised of the vacancy in March 2019. The Applicant's responded 'It sounds interesting'.

[303] Ms Stewart submitted that in her view, the Applicant was provided with many opportunities to find other suitable employment within the NTPS both during her time as an unattached officer, and subsequently as a redeployee. Further she was supported through the entire process by dedicated HR Case Managers who only had her best interests in mind, and made every effort to find her alternative employment.

[304] Ms Stewarts evidence was that from a personal perspective although her and Applicant did not always see eye to eye, she found that in the last 12-18 months they had a good working relationship, and shared a mutual goal of getting her into an ongoing position.

[305] Following the initial hearing of the matter, the Respondent advised that they intended to provide the annexures to Ms Stewart's witness statement, prior to the hearing of Ms Barnes' evidence. Directions were issued to allow these documents to be provided, and the documents were subsequently provided. Upon receipt of these documents, the Applicant advised that she sought an opportunity to make written submissions in response to these documents.

[306] In response to the Applicant's request, correspondence was sent to the Applicant asking her to outline the nature of the submissions that she sought to make, and to set out why those matters could not have been addressed in cross-examination. The Applicant provided a response to this correspondence, setting out that she had sought to make submissions on the documents.

[307] The Applicant provided the following email on the documents in issue:

"My initial response, over the weekend, was to take the opportunity to make submissions because many of these additional documents I had never seen before and from my perspective they appear to support my case.

However after receiving your email I have had the chance to confer and reconsider. I understand now the extra steps required procedurally if I were to make a separate written submission.

I'm cognisant of the fact that the Respondent had ten weeks to prepare their material and had access to email systems and filing systems that I don't have access to anymore.

On the whole I have welcomed the submission of the Respondent's material. However the documents marked as Annexure B were compiled by a witness who was not my case manager at the time therefore not privy to most of the matters contained in them which makes it hearsay in my view. Moreover I now realise it presents a difficulty in terms of me being able to cross-examine her about them. On this basis I would like to object to them.

Under the circumstances I have decided it would be easier all round if I don't make any separate submissions about these additional documents."

[308] It has not been necessary to place weight on 'the compilation table' of the jobs and meetings that the Applicant objected to. The assessment has focused on the direct evidence.

SUMMARY OF THE APPLICANT'S SUBMISSIONS IN REPLY

[309] In response to the Respondent's submissions and evidence, the Applicant argued that the Respondent continued to assert that its own Enterprise Agreement was of no effect, because the Employment Instruction Number 14 - Redeployment and Redundancy Procedures (EI14), is a Northern Territory Public Sector Employment Law. This assertion had been previously comprehensively addressed in the Applicant's submissions. The Applicant had argued that EI14 does not cover the field with respect to redeployment and redundancy, otherwise the entire redundancy clause in the Agreement would be otiose. The Applicant further argued that the Respondent's submissions failed at the threshold issue, because there was just no inconsistency.

[310] In addition, the Applicant argued that the Respondent's submission was misconceived because it failed to take into consideration Part 6 - Right of Review (Part 6) of EI14, which provides (emphasis added):

A redeployee has a right of review in respect of actions and decisions relating to the redeployment and redundancy process under:

a) his or her agency's internal complaints procedures;

b) section 59 of the Act; and

c) the dispute settling clause of the relevant Agreement."

[311] The Applicant submitted that it was plainly apparent that Part 6 contemplated an employee's ability to raise a dispute in accordance with the dispute settling clause of the relevant Enterprise Agreement, in addition to the internal complaint's procedures and section 59 of the PSEM Act. The Applicant argued that as much was obvious, through the use of the conjuncture "and" instead of "or".

[312] In response to the witness statement of Ms Barnes the Applicant denied that she ever sought to increase the incentivised offer to $1.6M. She stated that what really happened was that she said to Ms Barnes words to the effect of:

"I want to stay in the public service. If I stay my future earnings will be around $1.6M. I want to stay. I enjoy being a public servant. What you are offering me will cover me for a year and then I will suffer financial stress because I will only be able to get a basic and low paid job."

[313] In response to Ms Barnes' statement that the Applicant had said that she would seek a settlement amount "in the millions", the Applicant denied that this ever happened.

[314] In response to Ms Barnes' statement that the Applicant's self-assessment was not supported by her referees, based on their observations of her performance, the Applicant provided a referee report from Mr Rob Picton, in relation to an AO7 position of Prosecutions Manager. Within that report, Mr Picton stated that he would have kept the Applicant in the position if the incumbent had not returned. The Applicant also provided positive referee reports from Ms Susan Bowden and Ron Greaves.

[315] The Applicant further noted that Ms Barnes had failed to include the very first assessment report that related to the Applicant after she was declared a redeployee, which was for the position of Senior Consultant, Employee Relations, Officer of the Commissioner for Public Employment, and the first panel report for the position of Senior Operations Officer.

[316] In response to the statement of Ms Kirstie Bryan, the Applicant stated that the meetings referred to, were not established nor conducted in a manner that was focused on the Applicant's career development or redeployment. The Applicant argued that, if anything, those meetings were a form of performance management without a performance management plan in place.

[317] In relation to Ms Bryan's assertion in her statement that the Applicant declined an offer to meet with the panel chair, the Applicant denied this. The panel chair was Lee Williams, Executive Director of the Local Government and Community Development Division. The document annexed to Ms Bryan's statement and marked as "Document 55" demonstrated that the Applicant accepted Ms Williams' invitation to meet with her. The Applicant agreed that at that time she believed that the process was flawed.

[318] The Applicant stated that she met with Ms Williams at 2.00pm on 15 June 2018 as they needed to wait until after Easter, when they had both returned from annual leave. The Applicant stated that while she met with Ms Williams, she took her on a tour of the office and introduced her to the team members and said words to the effect of "Sharon might be working with us soon in the future."

[319] The Applicant further stated that she was routinely discouraged after meetings with the panel to withdraw her application. For the position referred to in Ms Bryan's statement, the Applicant was told by the panel that:

(c) they would not support her if she was in the position.

[320] In response to Ms Stewart's statement, the Applicant argued that it is not true that Ms Stewart was assigned as the Applicant's case manager in July 2018. The Applicant stated that she was first assigned as her case manager on 2 May 2017, soon after the Applicant sent the email correspondence to Paula Ridge seeking a new case manager.

[321] The Applicant stated that she met with Ms Stewart on 18 May 2017 and expressed concern with her being the Applicant's case manager, because she felt that she did not support her when she reported the bullying by Ms Garrigan at the TRB in early 2014. The Applicant stated that Ms Stewart was unapologetic towards her and when the meeting concluded the Applicant did not have a case manager until Ms Bryan was assigned to her on 6 December 2017. Ms Stewart was then allocated as the Applicant's case manager again from July 2018 until the end of her employment on 17 March 2020.

[322] In response to Ms Stewart's statement, the Applicant submitted that the Christmas shutdown was in late-2019 and she accessed some annual leave in January 2020 and for a week in March 2020. Further, the Applicant's employment ended on 17 March 2020 and not 10 March 2020 as Ms Stewart had stated. The Applicant stated that when her employment ended, she still had a personal leave accrual which totalled several weeks.

[323] The Applicant also responded to the statement of Ms Stewart's and stated that when she contacted her referees, they told the Applicant that the panel did not accurately reflect their reports about her. An example was that the panel report for the role of Senior Operations Officer for Department of Education who stated that the Applicant's writing skills met the criteria of demonstrated high level interpersonal and communication skills, but were recorded by the panel as only being satisfactory which was then relied on to say that the Applicant was unsuitable for the role. Further, when the Applicant asked Ms Stewart about training opportunities, she told the Applicant that she was not entitled to any training.

[324] The Applicant also disagreed with Ms Stewart's statement that she had a 'strained relationship' with the Chief Executive of Territory Families at the time. The Applicant stated that she had never met the Chief Executive of Territory Families. However, she did have reservations about applying for positions within the Chief Executive of Territory Families' agency given that he had oversighted several adverse decisions against the Applicant when he had been Chief Executive of the Department of Education.

[325] The Applicant, in response to Ms Stewart's statement, submitted that the role that she was referring to was with Fisheries. The Applicant was required to have a working knowledge of the Fisheries legislation and a computer system called Oracle, which she did not have which meant that she was not suitable for the role. However, the Respondent had made it clear that training in such could be provided.

[326] The Applicant also stated that Ms McTaggart's focus was on encouraging her to find a role outside the public service, not within it. This was opposed by the Respondent, and it was argued that this additional process, was another endeavour to assist the Applicant.

[327] The Applicant was seeking as a remedy in relation to the matter, to be reinstated to her the Respondent's employment and to receive back pay for the interim period. The Respondent raised a jurisdictional objection to the Commission's capacity pursuant to a s.739 awarding such a remedy. They considered that such an outcome was beyond jurisdiction and not warranted, given the process had been complied, and further, that the outcome was not available to the Commission. The Commission's powers to deal with a s.739 dispute are derived from the Agreements disputes procedure. The matter is not an unfair dismissal with the accompanying jurisdiction. The Applicant in her application sought that an order be issued quashing or rescinding the notice of redundancy; that the Respondent make every endeavour to actively place the Applicant into a new suitable position and that the Respondent refrain from terminating the Applicant's employment during that process.6F[7]

[328] The Applicant argued that the application and remedy sought were within jurisdiction and that at the time of filing the application, the status quo position should have been observed. The status quo provision from the Agreement stated that 'whilst a dispute is being dealt with in accordance with this clause, work must continue in accordance with usual practice prior to the dispute arising.7F[8] The Applicant argued by virtue of this status quo provision, the process should have been halted and corrected to place her in an ongoing role. The Respondent considered this application was beyond the power of the Commission and that no clear evidence of deficiencies in the process, nor the relevant provision to be appointed to.

[329] In summary terms, the Applicant argued that her jurisdictional case that her application was not confined to those matters that formed the subject of the review under the PSEM Act. It was not able to be conclusively considered (at the outset of the matter) whether the review undertaken at that time (under the PSEM Act) had considered the scope of the matters over the breadth of the period later argued by the Applicant. Accordingly, the jurisdictional and merits matters (as set out) were joined. Having received and assessed all the arguments and the related evidence during the course of the hearing, it is clear that the review was predominantly undertaken on the same basis and the same outcome has been reviewed during the current process before the FWC. The Application is jurisdictionally barred. On the basis of affording procedural fairness the confirmation of such, could not easily have been reached at the outset given the volume of material.

[330] Having undertaken the task now, it is clear that the Applicant has had the opportunity to conduct their whole case. It is also clear that this mirrors the matter reviewed initially by the Commissioner for Public Employment. It is also clear (that whilst the Respondent somewhat generously allowed for this process to be conducted whilst maintaining their jurisdictional objection) the outcome has confirmed the outcome of the review. It is also clear that having considered all of the Applicant's case that it has traversed, on the same grounds. It is an application that was jurisdictionally barred by virtue of the 'review' under the PSEM Act, already undertaken that corresponds to the current case. The conclusions however are the same. The Applicant's case is one of a number of complaints with the process, which do not disturb the outcome of such.

[331] The Applicant alleged that she had been blacklisted and this is why she was not able to obtain an ongoing position. She submitted that the process was flawed; and she was not being offered some positions in education, that some positions were not being listed on the redeployment list, (which should occur for all ongoing jobs longer than 6 months). Ms Stewart explained that the recruitment process that had been used and developed into a simplified recruitment process,8F[9] which was heavily weighted on the references of an employee, rather than placing greater reliance on the resume and a comparison with the criteria, she explained.

[332] The Applicant stated that she had experienced problems with referee reports in comparison to the required criteria of positions. The Applicant had expressed her continuing disappointment at being placed in supernumerary positions and had sought an ongoing position with a job number and job description in a team of employees. However, Ms Stewart contended that to assist with referee reports, for this reason, she and the other case managers had been organising the new placements to allow the Applicant to secure new networks and referees. However, her evidence is that this had been difficult to achieve with the Applicant. For example, the Applicant put impediments to positions in place, for example, the various job vacancies that the Respondent had referred to, such as the proposed position with the Fisheries Department. The Applicant ruled out the position on the basis that she did not have the knowledge of the data base, although the employer had indicated that the relevant training would be provided. It is noted that the Applicant held significant positions undertaking research and using databases and that this was not a relevant reason to rule out the position.

[333] These examples are important in the context that where the employer was to make every endeavour to find alternative employment, the Applicant was providing limitations to the positions that she would consider.

[334] The case managers all gave their evidence of this in a measured way. They were credible in the approach they had taken and the comprehensive steps to genuinely assist the Applicant to achieve an ongoing position. They did however, individually in their evidence, express frustration at the Applicant limiting the positions she would apply for. For example, the Applicant did not want to apply for the position with the Anti-discrimination Commission, as she stated they didn't share her values. The following exchange was indicative of the Applicant's responses in relation to a range of these vacancies that the Respondent has referred the Applicant to:

"THE COMMISSIONER: That you didn't share the code of values in terms of a - was that the child safety - the discrimination position? I don't have that.

MS S SCURR: Anti-discrimination (indistinct) the position (indistinct).

THE COMMISSIONER: Those particular arguments in relation to cutting across some of the positions that were offered where the employer's saying, well, we're trying to exhaust all reasonable endeavours, that there is some obviation or negation of those opportunities in relation to other particular subjective views.

MS S SCURR: So that's where that personal view of things came in. I can't remember what the terminology was. Something about my desires, or something like that. But in terms of the other positions it was about the - they were all professional reasons. It was because I didn't have the experience that they wanted, I didn't have the knowledge that they wanted. And in terms of the Antidiscrimination Commissioner, that was because I'd attended a forum and I knew the direction that they wanted to head with their legislation. And I'd advised the Antidiscrimination Commissioner that I had a different view and I just knew that it wouldn't have worked. You know, I wouldn't be able to, you know, give my 100 per cent commitment to that role. Nothing about the Antidiscrimination Commissioner personally, she's actually a friend of mine. We know each other. And I don't think that would have - - -"9F[10]

[335] The case managers would have to get the Applicant's approval to be referred for positions and she often refused to allow to be considered for jobs the case managers had nominated, thus limiting the scope of opportunities for consideration. In circumstances where the Applicant was aware that the time frame for the redeployment process was expiring, this selective approach on her part, was reducing her opportunities. The Respondent was escalating their efforts, the Applicant did not demonstrate any similar urgency.

[336] The Applicant should have optimised her redeployment opportunities, by broadening the positions she would apply for. The frustration experienced by her case managers in this regard was evident. The Applicant was critical of the employer's approach to the redeployment exercise and was disappointed by the comparison of this process to the process that she had undertaken in the 1990's with her former employer, a Bank, and how that compared to the current process undertaken with her. No comparative detail of any legislative or Agreement obligations relevant to that process were provided.

[337] The Applicant was encouraged by each of the case managers to broaden her job search to allow them to refer her for a greater range of jobs. The Applicant was critical of the roles that she was offered; being she stated for jobs that were of a temporary or supernumerary basis. Ms Stewart, as one of the Applicant's case managers, considered that a number of the proposed roles allowed the Applicant to enlarge her network and gain further referees. The Applicant explained that she considered that the referees (on the feedback she had sought from the selection panels) had compromised her being successful, in the selection process. However, there was no direct evidence of this presented.

[338] The evidence of Ms Stewart was that the Applicant would not agree to be referred for the full scope of potential jobs that she sought to refer the Applicant for. The Applicant considered she needed in considering potential jobs, to take into account her own interests and wellbeing, based on the nature of the work, or the department, or whether particular training would be required or provided. This attitude reduced her redeployment opportunities. These assessments by the Applicant on the evidence were based on her considerations of the outcomes.

[339] The Applicant alleged that there were deficiencies in the process. She noted that she had been continually referred to the Commissioner's guidelines for the redeployment process and that this document was no longer effective, and that Employment Instruction 14 was the relevant document. The Respondent's representative argued however that they had applied Employment Instruction 14.

[340] In scrutinising the process used, the evidence of each of the case managers in discharging the redeployment was provided in a measured, credible manner, that demonstrated that they had been devoted to the process. They were willing to make concessions, when necessary, in regard to the use of the Commissioner's guidelines or that, (whilst not all specific jobs were referred to in their proposals) and that not all jobs may have appeared on the redeployee page. In assisting the Applicant with the process, each of the case managers that gave evidence was involved in the search for the Applicant but was also clearly accommodating of the Applicant's wishes when she preferred not to be referred for certain positions they proposed. However, they were quietly tenacious, encouraging the Applicant to apply for other positions. They clearly wanted to achieve a successful outcome.

[341] In addition, each of the jobs that the Applicant has applied for, has been assessed. No finding can be made that there was an improper process, or that the Employer failed to make any additional endeavour that the Employer was required to make in accordance with the process.

[342] I make no 'Jones v Dunkel' inference (as suggested) regarding the failure to call the other case manager Ms Paula Ridges. She was based in Tennant Creek, some distance from Darwin and she was the case manager from 2014, prior to the process relevant to the Enterprise Agreement. The three other case managers were called and there was a genuine agreement between the nature of their process involvement, given they all undertook similar roles and engaged with similar discussions with the Applicant at separate times.

[343] The Applicant stated that the employer ended her employment very abruptly, however she had been on the prescribed notice of the redundancy and was fully aware of the timeframe. She was aware that without an alternative position, the employment would end. Whilst additional steps were initiated by the case manager and from the employer to assist the process as the date drew closer, I detected no such urgency on the part of the Applicant. The Employer had engaged an external consultant Ms McTaggart to discuss employment strategies and possible training plans with the Applicant to secure a way forward with the Applicant. No urgency was seen in the Applicant's actions as the redundancy date drew closer. At that stage, the broadest possible range of referred jobs should have been acceptable.

[344] At the final hearing in the matter, the Applicant provided a brief summary of the matter and referred to the remedy she was seeking in relation to the application. The Applicant confirmed that she had commenced in new employment in the week prior to the final hearing. On that basis, and because the Applicant identified that as a result of the redeployment process, she submitted that she had lost trust and confidence in the employer and had considered that if she was reinstated, this would ultimately not be a satisfactory outcome.

[345] The Applicant stated that given this, and her recent employment she was now seeking compensation for the lost wages and future lost wages. a specific quantum was not put forward. However, she suggested an amount of compensation (taking into account the 12 weeks redundancy payment made on termination), and what she set out were the lost wages between the end date of employment and now, based on her annual salary of approximately $114,000. The claim also included a quantum for future lost wages.

[346] The Applicant also submitted at the final hearing that she had instructed a new lawyer to send correspondence that in line with the legal opinion she had received the manner in which the redundancy or termination was effected was unlawful, on an 'ultra vires' basis. The Respondent confirmed this correspondence had been received. The parties clarified that they did not intend to put this document before the Commission and further that this argument was not being made for the purposes of a determination before the Commission. It has been agreed the detail of this matter was not being argued before the Commission. No failure on the Employer's part having been found., no remedy was determined. Further, having heard the whole matter it was, on review, jurisdictionally barred.

[347] The Applicant filed approximately 200 new documents with her final submissions. The Respondent objected to such a significant volume of new material, and particularly in circumstances where the documentation had not been previously addressed in the proceedings. The material has been considered; however, it has not been clear regarding the relevance of a number of the documents. The Applicant submitted that in filing these documents at the end of the proceedings, she considered she was acting in line with a process set up to allow her to do so. She explained that she had interpreted the process afforded her the right to file new material.

[348] It is concluded that in countering some matters provided by other witnesses, the Applicant on her explanation, genuinely concluded the provision of these documents was a course open to her. The Applicant conceded that she had been in communication throughout the proceedings with her lawyers and that they had assisted with the preparation of the final submissions but that she had added to these and provided the final additional documents. There is no criticism of the Applicant for seeking such assistance. She had been initially granted permission pursuant to s.596 of the Act for legal representation and jurisdictional and merits submissions had been prepared by her legal representative. The Applicant had been transparent throughout the proceedings that there were matters she referred to that she wanted to discuss with her lawyers. It is also recognised that she was mindful of the costs of such and that she was endeavouring to represent herself where she could. The Respondent did not raise objection this course when advised by the Applicant throughout the proceedings. However the Respondent did not object to the new material, given that procedural fairness could not have been provided, the new material has not been considered.

[349] The evidence of all of the witnesses in relation to the redundancy and redeployment process has been considered as have the submissions. It is recognised that the Applicant makes various complaints about the series of unsuccessful outcomes in terms of the redeployment process. It is recognised that in this matter there has been the intersection of some matters that relate to recruitment actions undertaken in accordance with the Northern Territory Public Sector employment laws and also matters that fall within the provisions of the Enterprise Agreement. The separation between the statutory codes is respected, in particular the Commissioner for Public Employment pursuant to section 59 of the Public Sector Employment and Management Act 1993 has powers of review, in relation to those matters regulated by that Act.

[350] This is an application whereby there is commonality to the matters that are under review pursuant to s.59 PSEM and the matters that formed a consideration pursuant to the provisions of the Agreement. However, the application is comprised of matters of the complaints about the process, some that have formed the basis of the review, pursuant to section 59. The section 59 review under the PSEM Act was narrower than the dispute lodged in relation to the redeployment process under the Enterprise Agreement. Whilst the current application has been considered, the employer's submissions in terms of the placement of the provisions that deal with procedural matters related to redeployment, (being placed in Employment Instruction 14), are persuasive, and that this division of matters on this basis, would inform any future similar jurisdictional matters and provide a jurisdictional impediment.

[351] Given the inconsistencies pointed to, the redundancy and redeployment procedures set out in the Employment Instruction 14 prevails over Schedule 10 of the Agreement. Further, the Respondent's submissions that the s.739 dispute lacked precision, as to what additional support or steps were sought. That is, the parameters or remedy for the dispute, were never clearly argued or set out. It is recognised that from the 5th of February, more particularised elements of the complaint were received, however these still do not substantiate a s.739 dispute.

[352] However, it was arguable that the redeployment process under the Agreement formed a broader consideration of the matters than was reviewed under the PSEM Act and those matters that came within the scope of the provisions of the Enterprise Agreement. Accordingly, it was considered that there was jurisdiction for the Fair work Commission to proceed to consider the matter. Therefore, there has been an assessment of the merits of the Applicant's complaints regarding the process. However, the complaints do not demonstrate that the employer did not provide an appropriate process in accordance with the required terms. It has not been demonstrated that the employer failed to comply with Schedule 10 to the Agreement, nor Employment Instruction 14. It is recognised on review, that the Applicant has been considerably aggrieved at the outcome of the stages of the redeployment process, however the criticisms do not elevate to non-compliance with the required steps and provisions. On that basis Question 1 is answered in the positive, in that the Respondent has complied with the requirements under Schedule 10 of the Agreement in relation to the Applicant. and due to this, it is not necessary to answer the second question. Therefore, the application as set out, is jurisdictionally barred and further on a merits consideration, is dismissed.

[353] I Order accordingly.

[1] Paragraph [4] to [9] Applicant's outline of submissions, dated 12 March 2021.

[2] [2013] FWCFB 8557.

[3] See the Full Bench in Auld v Teekay Shipping [2019] FWCFB 6047 at [82].

[5] Victoria v Commonwealth [1937] HCA 82; (1937) 58 CLR 618 (the Kakariki case) Dixon J at 630.

[6] [2012] FWA 162 at [34].

[7] 3.1 of the Applicant's Form F10 application.

[8] Clause 12.2 (c) of the Northern Territory Public Sector 2017 - 2021 Enterprise Agreement.

[10] PN2869 to PN2876 of the transcript.

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