Dhillon v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1050

Industrial Relations Commission New South Wales Medium Neutral Citation: Dhillon v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1050 Hearing dates: 26 June 2020 Date of orders: 14 July 2020 Decision date: 14 July 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Application dismissed Catchwords: UNFAIR DISMISSAL – jurisdictional objection – applicant engaged on a temporary contract for a specified period of two years – employment terminated by effluxion of time – no dismissal by employer – application dismissed Legislation Cited: Government Sector Employment Act 2013 (NSW) Texts Cited: Nil Category: Principal judgment Parties: Nechaldeep Dhillon (Applicant)

Industrial Relations Secretary on behalf of the Department of Customer Service (Respondent) Representation: The applicant represented herself

Ms L Shanahan, Kingston Reid (Respondent) File Number(s): 2020/00076668 Publication restriction: Nil

DECISION 1. On 10 March 2020, the applicant, Nechaldeep Dhillon, filed in the Office of the Industrial Registrar an Application for Relief in relation to Unfair Dismissal ("Application") seeking monetary compensation for the termination of her employment with the Department of Customer Service ("Department") which is represented in these proceedings by the respondent, the Industrial Relations Secretary. 2. The applicant commenced employment with the Department in the role of Manager, Client Services, at the Parramatta Registry of Births, Deaths and Marriages on 19 February 2018. She was employed in a full-time capacity pursuant to a document entitled "CONFIRMATION OF ACCEPTANCE". That document, which I characterise as a contract of employment, was signed by the applicant on 1 February 2018. It contained the following: I, Nechaldeep Dhillon, hereby accept the offer of temporary employment within NSW Birth Death and Marriages, Department of Justice based on the following conditions of employment. Classification: Clerk Grade 7/8 Commencing salary: $92,470.00 pa Increment 1 Hours per week: 35 Entry on duty: 19 February 2018 End date: 18 February 2020 I understand that I will be assigned to the role specified below. Role: Parramatta Manager Role Number: 50000754 Commencing Location: Parramatta I understand that this offer of temporary employment does not constitute ongoing employment, and my employment will cease effective from the above mentioned end date unless otherwise notified. My temporary employment may also be terminated at an earlier date at the discretion of the agency head, including for example where: - work is no longer available - funds are no longer available - performance of duties are unsatisfactory 1. The applicant was employed pursuant to subsection 43(1)(b) of the Government Sector Employment Act 2013 (NSW). Section 43 is in the following terms: 43 Kinds of employment (1) Employment as a Public Service non-executive employee may be any one of the following kinds of employment— (a) ongoing employment, (b) temporary employment, (c) casual employment. (2) Ongoing employment is employment that continues until the employee resigns or his or her employment is terminated. (3) Temporary employment is employment for a temporary purpose. (4) Casual employment is employment to carry out irregular, intermittent, short-term, urgent or other work as and when required. (5) An employee who is employed to assist a specified judicial officer (or other specified officer of a kind prescribed by the regulations) may be employed on the basis that the person's employment may be terminated when the officer ceases to hold office. 1. The applicant's employment came to an end on 19 February 2020 which date was nominated by her in the Application as the contract end date, whereas the contract of employment stipulated that the end date was 18 February 2020. Ultimately, nothing turns on point. 2. It is the position of the respondent that the applicant was not dismissed. Her employment came to an end through the effluxion of time. As there was no dismissal, the Commission lacks the jurisdiction to hear and determine the Application. 3. In the Application, the applicant stated as follows: On Friday, 6 December 2019 I was being placed on "special leave" effective immediately. Fact finding investigation into concerns raised by another employee about my conduct was to be undertaken. On 3 February 2020 I emailed Mr Pete Cherry, Senior Employee Relations Advisor seeking advice in relation to my contract end date of 19 February 2020. Mr Cherry responded that the contract end date is an HR issue and he would have an appropriate HR officer get in touch with me. On 6 February 2020 I received a phone call from Mr Cherry and Effie Serena, Senior HR Advisor in relation to my contract. Ms Serena advised me that a decision had been taken that my contract with the Department will end on 19 February 2020. I requested reasons for this decision. Mr Cherry responded that it was due to cost savings and part of the MOG changes and that across the Department temporary employments were being reviewed. I challenged these reasons as 1. Since being placed on special leave another staff member has been acting in the Parramatta Manager position. 2. The Registry has large number of employees on temporary employment contracts and each one of them has had their contracts extended on each occasion for a period of 6 months. Ms Serena simply responded that my contract end date is 19 February and she would commence the "offboarding" proceedings. The decision not to extend my contract on 19 February 2020 is unfair, unjust and harsh. The verbal reasons provided for not renewing my contract are not applicable to my situation. The misconduct proceedings have not been finalised. The delegate/s pre­empted the outcome of the misconduct proceedings in coming to a decision not to extend my contact. Since commencing employment with the Registry I have not had any performance issues or complaints made against me. There are no valid reasons for ending my temporary employment. I have not received a letter from the Department confirming its verbal advice that my temporary employment was to end on 19 February 2020; I have not received a separation certificate; and the Department failed to pay my final entitlements and only realised that they my final entitlements had not been paid when I brought it the Department's attention on 5 March 2020.