As set out in the applicant's Outline of Submission, this is an application by Notice of Motion seeking to restrain the respondent from effecting the dismissal of the applicant pending a final hearing of the unfair dismissal application of the applicant.
The applicant submitted from para 3 of his Outline that it was:
"… beyond argument that the respondent, the Department of Corrective Services, had threatened to dismiss the applicant from his employment."
I note that in para 17 of the respondent's Outline of Submissions the respondent agreed:
"CSNSW has made a decision to dismiss the applicant and it is accepted that the applicant is threatened with dismissal. The question is whether the Commission should exercise its power under 89(7) of the Act to intervene."
In his Outline, the applicant submitted that the principles to be applied were:
"7. The principles regarding 89(7) of the Industrial Relations Act were succinctly distilled by Boland J … in Australian Salaried Medical Officers' Federation (New South Wales) on behalf of Professor Bruce Hall v South Western Sydney Area Health Service [2003] NSWIRComm 8."
The applicant conceded that, as his Honour said at para 28 of that decision:
"The exercise of the power to make interlocutory orders under s 89(7) is obviously discretionary, however, as Schmidt J pointed out in Hill the Commission will not lightly interfere with an employer's contractual or statutory right to terminate the employment of an employee."
The applicant submitted that his Honour then cited Mason ACJ in Castlemaine Tooheys Ltd & Ors v State of South Australia (1986) 161 CLR 148 at 153:
"In order to secure such an injunction the plaintiff must show (1) there is a serious question to be tried or that the plaintiff has made out a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) the balance of convenience favours the granting of an injunction."
The respondent agreed with the applicant to the extent that the Commission would not lightly interfere with the employer's exercise of a statutory or contractual right to dismiss an employee, but it submitted that a two-step process was to be preferred.
At para 18, citing Boland J in Public Service Association and Professional Officers Association Amalgamated Unions of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney-General and Justice - Corrective Services NSW [2012] NSWIRComm 33, the respondent submitted that the applicant needed to establish:
"(a) there is a sufficient likelihood of success in his substantive claim to justify restraining CSNSW from exercising its right to dismiss (that is, that he has a prima facie case)
(b) the inconvenience or injury he would be likely to suffer if his dismissal is given effect outweighs the injury CSNSW would suffer if it is restrained from dismissing him (that is, the balance of convenience test)."
The respondent also submitted in para 20:
"It should be noted for completeness that the three part test identified in the applicant's outline of submission is no longer accepted, and it is not strictly necessary for the applicant to show that it is more probable than not that he would succeed at trial. The prima facie strength of his case is however relevant to the merits of the application for interim relief, with a weak prima facie case requiring that the balance of convenience strongly favour the interim relief."
It seems to me that the test pressed by the respondent is less onerous for the applicant to meet. I proceed on the following basis:
1. The applicant needs to establish a prima face case, and
2. The balance of convenience favours making the order and this includes the question of irreparable injury.
I adopt the submissions of the respondent as to the issues involved in the establishment of a prima facie case. I do not consider that the applicant needs to go so far as to establish that on his version of events, absent challenging or rebutting evidence, that he would succeed.
It is for the applicant to show that he has a sufficient likelihood of success that it warrants restraining the respondent from exercising its statutory rights or contractual rights to dismiss. Probably this is a lower bar, but in most cases the difference will not be material.
I also agree that the strength of the prima facie case may be relevant to be balanced against the prejudice to be suffered by either party. That is to be weighed against the balance of convenience.
I also want to address the submission that s 89(7) of the Industrial Relations Act 1996 (the Act) is a discretion, as set out in the section, as is the rest of s 89 repeatedly, without express constraints. Previous decisions of the Commission have repeatedly held that the Commission will not lightly intervene to restrain an employer from exercising its statutory or contractual rights. I adopt that as a constraint on the exercise of the discretion particularly on a preliminary basis.
[2]
Prima facie case
The applicant says at para 10 of his submissions:
"The affidavit of the applicant makes clear that the conduct said to found the dismissal is largely admitted. What is important however is context. Context is everything. The applicant was simply retrieving his backpack after a meeting with the Governor so he could go home after his shift. He was not going to re-enter the gaol nor would he interact with any inmates. If it is a breach of policy, which is not admitted at this stage, then it is at the lowest end of such a breach."
And at para 12:
"Also the applicant has 23 years' service. That is a significant amount of time as a corrections officer. He is a SCO."
The respondent says it is a lot more complex than that. That there is a long history of misconduct and that indeed, properly understood, the applicant was on notice that his job was at risk if there was more misconduct. In this respect the respondent took me to a letter dated 1 August 2022 at p 13 of R1 and to two paragraphs in particular where the letter says:
"I have extended leniency towards you which is unlikely to be repeated should you again come to notice for misconduct."
And a little further down the page:
"You should use your time whilst demoted to reflect on the standard of conduct and professionalism required of a Senior Correctional Officer and to strive to become an officer who is a positive leader and who always models good conduct."
The respondent says that prior letter was dated 1 August 2022 and then on 17 August 2022 the applicant was demoted for the reasons set out in that letter and that the final incident was on 26 August, all within a month and within nine days of the demotion.
The respondent also took the Commission through previous findings of misconduct by the respondent against the applicant. For today's purposes this was a strong counterpoint to the applicant's submission on the events of 26 August 2022.
The Commission agrees the applicant has raised a serious claim which is capable of persuading the Commission that he was dismissed unfairly. That said, it relies on him establishing his misconduct in not following security procedures was customarily not adhered to and to some extent on the applicant's exchange with AMOS Dolling being of a particular character. The fact he breached that security procedure is agreed and so to some extent the legal burden borne by an employer would appear to have been met.
Ultimately, there will be a clash of evidence as to whether there was such a pervasive custom to bypass the security procedure and whether the interaction between the applicant and the Acting Manager of Security was banter. Today that cannot be resolved. Witnesses will need to be heard.
[3]
Balance of Convenience
The applicant says given he is on workers' compensation and is not in the workplace there will be no prejudice occasioned to the respondent should he not be terminated until such time as a final determination is made by the Commission. There was an added undertaking not to actually re-enter the workplace if indeed such an order was made.
The applicant also pointed to being a senior prison officer of 23 years who is facing allegations which are between innocuous and trivial and that being removed from his employment will expose him to further harm to his mental health should the termination be brought into effect.
The respondent is correct that no evidence of this potential harm to his mental health was before the Commission although it is not a huge stretch to expect some exacerbation would flow.
The applicant also pointed to taxation consequences which would be complex to unwind.
The applicant pointed to there being no obligation on the employer under the Work Injury Management and Workers Compensation Act 1998 should the dismissal proceed.
The respondent says that:
1. As noted, there was no basis to put the medical exacerbation;
2. Fundamentally the applicant's conduct is serious; and
3. The applicant's seniority weighs against him.
[4]
Outcome
In totality I find that the applicant has not persuaded me that the Commission should, in the usual words, interfere with the employer's rights to exercise a statutory or contractual right to dismiss the applicant.
The prima facie case is not as clear as set out in the applicant's submissions. While the applicant has set out a rational basis and a case which is clearly capable of success, it is not obvious it will succeed.
The balance of convenience does not sufficiently favour the applicant. There are tax complications which no doubt will take some effort to unwind if the applicant succeeds.
There is obviously the risk of aggravation of the applicant's health issues if he is dismissed, but I do not have much more to rely on than what might be termed "common sense".
Self-evidently the applicant loses something valuable if I do not make the order he seeks, but that is not a sufficient basis to intervene.
I have not been persuaded the circumstances warrant the Commission interfering with the respondent's contractual or statutory rights to dismiss the applicant.
[5]
Orders
The applicant's motion that the Commission order the applicant not to be dismissed pending hearing of the substantive claim is therefore dismissed.
C Muir
Commissioner
[6]
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 April 2023
Parties
Applicant/Plaintiff:
Sutherland
Respondent/Defendant:
Industrial Relations Secretary in respect of Department of Communities and Justice