X v Secretary, Department of Education

Evidence

1. Statements, each in the form of affidavits, were read and admitted into evidence from David Currie, Executive Director Professional and Ethical Standards Directorate of the respondent and Amanda Harvey, solicitor for the applicant. In Ms Harvey's case, three separate affidavits were read. Only Mr Currie was cross examined.
2. Ms Harvey's evidence was voluminous and covered matters largely related to the substantive proceeding. It did helpfully put properly into evidence some background leading to the 15 February letter, the full contents of that letter and the attachments to that letter.
3. Mr Currie's evidence was largely concerned with how the letter of 15 February should be understood given his position as the decision maker in relation to the applicant's employment.
4. Relevant parts of the respondent's letter of 15 February 2022 were in the following terms: Dear [X], The investigation into the allegations about your conduct has been completed. I have considered the investigation report and related materials. Findings My findings are:  [The letter set out various allegations, identified by number, which were not sustained.]  [The letter set out various allegations, identified by number, which were sustained.]  [The letter set out various sustained allegations, identified by number, which were found not to amount to misconduct.]  [The letter set out various sustained allegations, identified by number, which were found to amount to misconduct.] I consider that the sustained conduct at allegations [various allegations, identified by number] amount to reportable conduct under the Children's Guardian Act 2019. To assist you to understand the decisions I have enclosed a copy of my written findings dated 10 January 2022, together with a full copy of the investigation material I considered. … Disciplinary Action I am required to determine appropriate action with respect to my findings of misconduct. There are five (5) disciplinary possible options ranging from a caution or reprimand to dismissal. These are:  A caution or reprimand;  The imposition of a fine;  Reduction of the officer's salary or demotion to a lower position;  Directing the officer to resign, or be allowed to resign within a specified period;  Dismissal In relation to this matter the severest disciplinary action I am contemplating imposing is: Dismissing you from the Teaching Service. I also intend placing your name on the list of persons not to be employed by the department (NTBE list). This is a confidential database available to school leaders when people apply for employment with the department. You will be prevented from seeking the reconsideration of this decision for 2 years. Submissions You may make a submission in relation to the proposed action. You have 14 days from the receipt of this letter to make the submission and to provide any additional information which you consider should be taken into account before I make a final decision. Your union or legal representative may make your submission on your behalf. Your submission may address such matters as my documented findings, the Investigation Report, or any extenuating and mitigating circumstances. Before making a final decision on the appropriate disciplinary action, I will consider the following: 1. The investigation report 2. Any submission you make 3. The protection of children 4. The objectives of Part 4A of the Teaching Service Act 1980 which are as follows: a. to maintain appropriate standards of conduct and work-related performance for officers in the Teaching Service, b. to protect and enhance the integrity and reputation of the Teaching Service, c. to ensure that the public interest is protected. 5. The Additional Information Report [and/or other information you have considered] [1] You also have an opportunity to have an interview with me before a final decision is made. You may be accompanied by a support person, legal or union representative, but they may not act as an advocate during the interview. Should you wish to have an interview the request should be made within seven (7) days of receipt of this letter. Please contact [named person] on [telephone number] who will arrange the interview.
5. Mr Currie's evidence, from his statement, in respect of the letter was that: Disciplinary action 10 On 15 February 2022 I wrote to the applicant advising [them] of my preliminary findings, that I am required to determine appropriate action with respect to any findings of misconduct and that there a number of possible actions I can take. I invited the applicant to provide me with submissions on the preliminary misconduct findings, the proposed disciplinary action and any mitigating or extenuating circumstances, before I make a final decision. To assist [them] with [their] submission, I provided [them] with the investigation report, my preliminary findings in relation to the specific allegations of misconduct and a post-findings report (that was created by the investigator after I provided her with my preliminary findings) (Show Cause Letter). … 11 I am required to provide the Show Cause Letter to the applicant pursuant to part 7.4.3.9 of the Guidelines. In such a letter, the Guidelines require me to outline the disciplinary action that can be imposed, including the severest action that can be imposed. 12 The severest disciplinary action that I am delegated to take under the Teaching Act in respect of the applicant's misconduct was dismissal. 13 When I consider disciplinary action such as a direction to resign or dismissal, I also consider whether or not to place the individual's name on the Department's Not to be Employed List (NTBE List). Such decision can only be made after relevant disciplinary action is taken. 14 Placing an individual's name on the NTBE List is a risk management action. I am delegated to place or remove an individual's name on the NTBE List pursuant to section 7(1)(e) of the Teaching Act. 15 To the extent that I referred to the NTBE List in the Show Cause Letter, it was a reference to action that is a component of the severest disciplinary action that I can take, and is not intended to be read in isolation. My intention in the Show Cause Letter is clear, that is, if dismissal is my final proposed disciplinary action, (after considering the applicant's submissions to the Show Cause Letter) then I may also intend to place the applicant on the NTBE list. I have clearly not made a decision to dismiss the applicant or place the applicant on the NTBE List. Disciplinary action 16 On 27 June 2022 the applicant provided [their] submissions to my Show Cause letter, on the same day that [they] brought these proceedings. 17 I have not read this response to date. 18 I have not made a final decision as to the appropriate disciplinary action to be imposed, if any, in respect of the applicant. I cannot make this decision until I have read and considered the applicant's submissions.
6. During cross examination, Mr Currie was pressed on whether the respondent had made its final determination on the facts of the alleged misconduct, and only the consequences which should flow from those findings of fact were in issue.
7. Mr Currie was consistent in describing his findings as to facts as his "preliminary" findings. He maintained that he was open to reconsidering those findings if matters were raised which warranted reconsideration, and gave evidence that reconsideration had sometimes occurred at this stage of past investigations.
8. From his evidence and cross examination on this Notice of Motion, Mr Currie was a witness whose answers to questions were direct and without a basis for criticism as to his credit. He properly identified that even in circumstances where he had reached a finding as to facts, which he denied reaching in this matter to date, he was and should be open to reconsideration when material was put to him which required re-examination of his findings.
9. Having heard his evidence I am satisfied, at least for the current purposes, that Mr Currie intended that the applicant could respond challenging the findings of fact, as well as making submissions to the respondent as to the possible consequences of the findings as they stood.
10. The letter expressly provides that the applicant's response " … may address such matters as my documented findings, the Investigation Report, or any extenuating and mitigating circumstances."
11. It is understandable that the applicant may have regarded the 15 February letter as being fundamentally directed to the consequences which should flow from already determined findings as to fact.
12. The letter begins with a recitation of findings, which are not qualified, and not expressly as "preliminary". The letter further sets outs an unqualified finding that Mr Currie considered some of the " … sustained conduct … [amounted] to reportable conduct under the Children's Guardian Act 2019."
13. The fact that the letter expressly stated that the respondent was open to receiving submissions from the applicant about the underlying facts may have been lost in the overall context of the letter.
14. I do not consider it is necessary for this issue to be resolved for the purposes of the Notice of Motion.

Consideration

1. In my view the letter plainly amounts to a threat to dismiss the applicant as contemplated by Part 6 of Chapter 2 of the Act.
2. The respondent referenced decided cases on the issue of what could amount to a threat of dismissal. I address the ordinary meaning of a "threat" first and will return to the decisions cited by the respondent below.
3. On the respondent's view of the 15 February letter, there are preliminary findings of facts amounting to not only misconduct, but misconduct which requires reporting " … under the Children's Guardian Act 2019."
4. Left unaltered, those findings of fact clearly warrant consideration, at the least, of dismissal. The letter explicitly states this is so. It cannot be that the nature of the misconduct is irrelevant; indeed, it is of fundamental relevance as to whether even preliminary findings suggest a "threat" of dismissal.
5. Moreover, the letter of 15 February expressly sets out that the respondent has, at the least, turned its mind to consideration of outcomes based on the preliminary findings as to facts. Its consideration has reached the point where it can say that dismissal is an option it is considering.
6. Plainly at this point, in the absence of a response from the applicant, the respondent would likely proceed to dismiss the applicant. Mr Currie, properly in my view, conceded this during cross examination.
7. The respondent submitted that there was no jurisdiction, as there was no threatened dismissal. The respondent's position can be summarised as: 1. There has been no decision to dismiss the applicant. Indeed, the respondent's decision maker has not yet read the applicant's response; 2. Dismissal is only one of the possible outcomes, even if the respondent does not change its preliminary findings as to facts; 3. It would undermine the respondent's established disciplinary process, and make an employee's participation in that process effectively voluntary, if the letter is held to constitute a threat to dismiss an employee; and 4. Employers will be put in the position of defending a decision to dismiss which they might in fact never make, if the letter is held to constitute a threat to dismiss an employee.
8. The respondent referred to two decisions of this Commission in which a letter in substantially the same terms as the 15 February letter were found not to constitute a threat of dismissal [2] .
9. The respondent submitted that the Commission as currently constituted should only depart from those earlier decisions if I found them plainly wrong.
10. The decision in Hallab was ex tempore and expressly made on the basis of the letter being identical to the letter in Barnier. The Hallab decision, given that context, provides little information about the substance of the allegations or any surrounding facts.
11. The decision in Barnier deals with allegations different in nature from those in issue here, and about which the Commissioner found (at [39]) that she did not have an evidentiary basis to conclude that a non-response from that applicant would necessarily lead to the dismissal of that applicant. In the current proceeding the evidence exists and is clear as to the probable outcome; the applicant here would likely be dismissed.
12. That alone should be enough to distinguish the decision in Barnier. As Commissioner Webster held in in Barnier, "[c]learly, whether there is a threat of dismissal is a factual matter that will turn upon the facts and circumstances of the case."
13. Undoubtedly there needs to be some sense in which a "threat" of dismissal is real and temporally in prospect before the jurisdiction of the Commission is invoked. A policy that an employee might be dismissed if they were to sexually harass another employee, in circumstances where there has been no suggestion such harassment has actually occurred, cannot have been the kind of threat contemplated by the Act.
14. Commissioner Webster was clearly addressing the issue of where this line should be drawn in Barnier.
15. To the extent that the decision in Barnier is advanced to support a submission that only a concluded decision to dismiss an employee is sufficient to constitute a threat to dismiss that employee, I cannot agree. The matters which I have set out above at [36] give the decision in Barnier context which differentiates it from the current matter.
16. To the extent that the test of a dismissal needing to be "certain, imminent and unconditional" has been advanced as a basis for determining whether a threat to dismiss an employee invokes the jurisdiction of the Commission, I also cannot agree. The Act provides that a dismissal includes a threat to dismiss, and it is not appropriate to attempt to define the word threat in a way which substitutes other words. The test is whether there is a threat to dismiss.
17. The phrase "certain, imminent and unconditional" does seem apposite to consideration of whether an interim order not to dismiss should be granted. However, that is not a matter for consideration now.
18. Mr Fagir for the respondent submitted that to allow an employee to make an application in relation to a "threatened" dismissal prior to the employer making a firm decision to dismiss that employee has two unsatisfactory consequences.
19. Firstly, it forces an employer to defend a decision it may never make, and secondly it effectively allows an employee to opt out of an employer's established disciplinary process.
20. The first of these points may be correct as articulated by the applicant. Nevertheless, given the foregoing consideration, this is the jurisdiction granted to the Commission by Part 6 of Chapter 2 of the Act.
21. Further, to some extent this concern is also addressed by the available remedy being discretionary, which in my view is also the proper answer to the second concern.
22. It seems obvious, where an employer has a fair disciplinary process, and especially one which is substantially one dictated by an external regulatory requirement, that the Commission would be unlikely to intervene in such a process where an employee seeks to avoid or opt out of that process.
23. There is nevertheless force to the respondent's submission that additional complexity and complications might arise for an employer from the interpretation of the Act pressed for by the applicant. And there are legitimate reasons of public policy why this might not be desirable. However, these reasons and difficulties cannot overcome the ordinary meaning of the Act.
24. Mr Goot SC for the applicant submitted that the wording of the letter as to placement of the applicant on the "Not To Be Employed" list ("NTBE list") of the respondent indicated that the respondent had made up its mind to dismiss the applicant, further adding to the "threat" to dismiss the applicant.
25. While the wording of the letter as to the NTBE list is not expressed to be conditional, in context, and given Mr Currie's evidence, I do not consider this part of the letter goes as far as was put by the applicant. It reinforces the existing seriousness of the allegations but does not create a separate basis for the threat of a dismissal.
26. During the proceedings, the applicant advanced two further submission which require addressing.
27. The first of these was that in interlocutory proceedings such as the present one, the Commission should only dismiss a proceeding where the case for summary dismissal is clearly demonstrated.
28. Mr Goot SC referred the Commission to the decision in General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125, at page 129, where Barwick CJ said: The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless", "so manifestly faulty that it does not admit of argument"; discloses a case whish the court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow [the proceedings] to stand would involve useless expense".
29. Mr Fagir for the respondent submitted that there is a distinction between the case which the applicant cited and the matter now before the Commission. In the case cited, the issue was being determined on the basis solely of the pleadings, whereas here the respondent says the Commission is determining a discrete issue in the proceeding, but substantively.
30. In this proceeding, evidence which each party wished to adduce on the question before the Commission was admitted. It is difficult to see that further evidence could exist, and so there is force to the respondent's submission.
31. In my view one of the distinctions to be drawn between this proceeding and the decision in Barnier is the more extensive evidence before the Commission. It is apparent from the decision in Barnier that Commissioner Webster was satisfied, on the material before her, to the standard set out in General Steel that the Commission lacked jurisdiction.
32. In this proceeding, to the contrary, I am satisfied that the Commission's jurisdiction is properly invoked.
33. The second matter raised by the applicant was that if they were dismissed, they would suffer irreparable damage. This was advanced on the basis that any dismissal would precipitate the respondent reporting the applicant to the Children's Guardian.
34. During the hearing of the respondent's motion, the Commission pressed the applicant to articulate how this was relevant to the issue of jurisdiction, as it was not clear to the Commission how this issue impacted the motion moved by the respondent.
35. The applicant was given leave to file further written submissions outlining why concerns about reporting to the Children's Guardian were relevant to the question of jurisdiction. In the event, the applicant advised the Commission that it did not wish to be further heard on this issue in relation to the question of jurisdiction.
36. The applicant did make further written submissions, but as those were outside the leave granted, I do not consider they are relevant to the issue now before the Commission.
37. Given the foregoing, it follows that I am not persuaded that there is no threat to dismiss the applicant. Indeed, I find positively that such a threat does exist.
38. Accordingly, I dismiss the respondent's Motion. C Muir COMMISSIONER

Endnotes

1. It is noted that the material in square brackets are redactions or summaries made by the Commission in reproducing the letter, save for the material in square brackets, italicised and marked with an asterisk (*). The square brackets marked with an asterisk appears in the original letter as set out above.
2. Barnier v Secretary, Department of Education [2021] NSWIRComm 1045; Hallab v Secretary, Department of Education [2022] NSWIRComm 1019

Amendments 26 October 2022 - Amendment to the Cover Sheet 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: 26 October 2022