Hallab v Secretary, Department of Education [2022] NSWIRComm 1019

Industrial Relations Commission New South Wales Medium Neutral Citation: Hallab v Secretary, Department of Education [2022] NSWIRComm 1019 Hearing dates: 18 March 2022 Date of orders: 18 March 2022 Decision date: 18 March 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: The respondents' strike out application is upheld and accordingly the application by the applicant under section 84 of the Industrial Relations Act 1996 is dismissed. Catchwords: UNFAIR DISMISSAL-jurisdiction-meaning of threatened dismissal Legislation Cited: Industrial Relations Act 1996 (NSW) section 84 Cases Cited: Barnier v Secretary, Department of Education [2021] NSWIRComm 1045 Texts Cited: Nil Category: Procedural rulings Parties: Andrew Hallab (applicant)

Secretary, Department of Education (respondent) Representation: Counsel:

T Dixon (respondent)

Solicitors:

Self-represented (applicant) Minter Ellison (respondent) File Number(s): 2022/25453 Publication restriction: Nil

decision The following decision is taken from transcript: 1. In this matter Mr Hallab, by way of unfair dismissal application filed on 27 January 2022, seeks relief from the Commission by way of s 84 of the Industrial Relations Act 1996 (the 'Act"). 2. The respondent, both in its reply and then later by way of notice of motion filed after some conciliation conferences, seeks to strike the unfair dismissal application filed by the applicant out on the basis that there has not been a dismissal for the purposes of the Act. 3. The respondent, in both written submissions and supplemented orally today, has relied upon an affidavit of Kathleen Ann Plowman and in that document there is reference to what is best called a show cause letter. In that show cause letter the applicant was put on notice that some allegations of misconduct had not been found, unsubstantiated, but some had been substantiated. Mr Dixon correctly submitted after this finding of fact and it is accepted by the Commission, that all allegations of misconduct were actually substantiated. 4. The show cause letter, after putting the applicant on notice of the findings of several allegations amounting to misconduct, was informed that there were five possible disciplinary options which range from a caution or reprimand to dismissal and specifically these are, firstly, a caution or reprimand; secondly, the imposition of a fine; thirdly, reduction of the officer's salary or demotion to a lower position; fourthly, directing the officer to resign or be allowed to resign within a specified period; finally, dismissal. The letter then goes on to say: "In relation to this matter, the severest disciplinary action I am contemplating imposing is dismissing you from your employment with the New South Wales Department of Education." 1. Counsel for the respondent helpfully took the Commission to a more recent decision of Webster C in Barnier v Secretary, Department of Education [2021] NSWIRComm 1045 and in that matter the nature of the allegations of misconduct found against the applicant were somewhat different, however, the applicant in that matter was provided with a show cause letter as well and at para 8 the Commissioner sets out parts of that letter. 2. But importantly for the sake of this matter, the show cause letter in the Barnier matter states there are five possible disciplinary actions and lists those five possible disciplinary actions which are identical to those set out in the show cause letter provided to the applicant. It then goes on to make the same statement about "in relation to this matter, the severest disciplinary action I am contemplating imposing is dismissing you" from the teaching service. 3. The learned Commissioner deals with the definition of dismissal for the purpose of the Act and refers to various authorities throughout the course of her decision. She then ultimately finds at para 38 that in relation to a threat of dismissal, in the third sentence states: "In my view, for there to be a threatened termination, at the very least, there needs to have been a more decisive statement of an intention to terminate than there has been in this case before it can be said that there is a threatened termination." 1. I have heard nothing from the applicant to dissuade me that the approach taken by Webster C in the decision of Barnier is not correct and I accept Webster C's decision as being a proper determination or finding as to the application of dismissal for the purpose of s 83 subs (5) of the Act. 2. In this matter, given the identical nature of the show cause letters provided to the applicant in Barnier and Mr Hallab in this matter, it is my view that following the decision of Webster C in Barnier that there has not been a dismissal for the purpose of the Act. 3. I note that the applicant referred to a telephone conversation he allegedly had with a member of the registry of this Commission which indicated that he could file an application for relief from unfair dismissal. However, he also stated that the letter had not been provided to the member of the registry. Firstly, I have severe reservations that a member of the registry of this Commission would provide advice of that nature to the applicant, but even if that advice had been provided, it would have been done so in circumstances where that alleged member of the registry had not seen the contents of that letter. 4. In terms of the effluxion of time also raised by the applicant, I note the submissions of Mr Dixon that there is a dispute which is currently before this Commission, of which I am intimately aware, which may provide some background to why there has not been any movement with respect to disciplinary matters of this nature. 5. In those circumstances the respondent's notice of motion is successful. The application filed by Mr Hallab on 27 January 2022 for relief in relation to unfair dismissal is dismissed. Daniel O'Sullivan Commissioner