Chu v Secretary, NSW Department of Education [2021] NSWIRComm 1019

Industrial Relations Commission New South Wales Medium Neutral Citation: Chu v Secretary, NSW Department of Education [2021] NSWIRComm 1019 Hearing dates: 24 September 2020. Final documentation from applicant received 21 October 2020. Date of orders: 19 March 2021 Decision date: 19 March 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Application dismissed Catchwords: UNFAIR DISMISSAL – School Learning Support Officer – allegations of misconduct – unnecessary physical contact with a year 1 student – misconduct admitted – dismissal not harsh unreasonable or unjust Legislation Cited: Education (School Administrative and Support Staff) Act 1987 Industrial Relations Act 1996 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Ony Chu (Applicant)

Secretary, Department of Education (Respondent) Representation: Applicant was self-represented

Mr A Britt of counsel (Respondent) File Number(s): 2020/00207006 Publication restriction: Names and locations suppressed in accordance with Orders made on 24 September 2020 pursuant to s 164A of the Industrial Relations Act 1996

DECISION 1. This is an Application for Relief in relation to Unfair Dismissal ("Application") by Ony Chu, a former employee of the NSW Department of Education ("Department") who was employed, up until the time of her dismissal, as a School Learning Support Officer ("SLSO") at various public schools conducted by the Department. 2. The applicant commenced employment with the respondent, the Secretary of the Department, on 17 September 2014. She was employed as a "temporary employee" pursuant to section 21 of the Education (School Administrative and Support Staff) Act 1987 ("SASS Act"). 3. By letter dated 15 May 2020, Jane Thorpe, Executive Director, Employee Performance and Conduct Directorate ("EPAC") of the Department, advised the applicant that her casual approval to work for the Department had been withdrawn and her name had been permanently placed on the list of persons not to be employed by the Department ("NTBE list"). The applicant was provided with this letter on 18 May 2020. The stated reasons for taking this action were sustained findings of misconduct by the applicant arising from her having engaged in unnecessary physical contact with a year 1 student at a school where she worked. 4. The Application was filed with the Commission on 14 July 2020, some 57 days after the applicant was notified of the termination of her employment with the Department or 36 days outside the 21 day time limit for filing unfair dismissal applications provided for in subsection 85(1) of the Industrial Relations Act 1996 ("Act"). The respondent takes a jurisdictional objection to the Application on this basis. I propose to exercise my discretion under subsection 85(3) of the Act to accept the Application out of time. The applicant is unrepresented. After she was notified of the termination of her employment she made further written representations to Ms Thorpe who, by letter dated 23 June 2020, confirmed that the decision to withdraw the applicant's casual approval and place her name on the NTBE list stood. The applicant has mistakenly taken 23 June 2020 to be the date of the termination of her employment which, had this been the case, would have meant that the Application had been filed within the 21 day time limit. However, acceptance of the Application out of time will have no bearing on the ultimate outcome of this matter.