Lichi v Industrial Relations Secretary on behalf of Department of Communities and Justice (No. 2) [2022] NSWIRComm 1030

Industrial Relations Commission New South Wales Medium Neutral Citation: Lichi v Industrial Relations Secretary on behalf of Department of Communities and Justice (No. 2) [2022] NSWIRComm 1030 Hearing dates: Determined on the papers Date of orders: 22 April 2022 Decision date: 22 April 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Costs order made in favour of applicant Catchwords: UNFAIR DISMISSAL – respondent unreasonably failed to agree to a settlement of the claim – costs awarded Legislation Cited: Industrial Relations Act 1996 Cases Cited: Bankstown City Council v Paris (1999) 93 IR 209 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Dul v Health Secretary, in respect of Sydney Local Health District (No. 2) [2021] NSWIRComm 1024 Four Sons Pty Limited v Sakchai Limsiripothong (No 2) (2000) 100 IR 400 IGA Distribution Pty Ltd v Moses (No 3) (2003) 150 IR 145 Texts Cited: Nil Category: Costs Parties: Vanessa Lichi (Applicant) Industrial Relations Secretary on behalf of Department of Communities and Justice (Respondent) Representation: Counsel: Mr J Polese (Applicant) Mr A Joseph (Respondent)

Solicitors: Mr S Banga, Banga Legal (Applicant) Mr S Bridgeford, Department of Communities and Justice (Respondent) File Number(s): 2021/00275001 Publication restriction: Nil

decision 1. The matter before the Commission for determination is an application for a costs order pursuant to ss 181(2)(c) of the Industrial Relations Act 1996 ("Act") by the applicant, Vanessa Lichi, a former Child Protection Caseworker with the Department of Communities and Justice ("Department"). The applicant commenced in that employment in January 2019. 2. The applicant had her employment terminated with effect from 6 September 2021 for misconduct, being her attendance at a "World Freedom Rally" on 24 July 2021 in breach of a Public Health Order in place at that time, as well as posting on her private Facebook page "several posts which are highly derogatory towards the decisions of the NSW Government around the actions taken regarding the Covid 19 pandemic and are also derogatory in nature towards senior NSW Government officials". The decision to dismiss the applicant was made by Paul Vevers, Deputy Secretary for Housing, Disability and District Services with the Department. 3. The applicant filed an Application for Relief in relation to Unfair Dismissal on 24 September 2021. That application was heard by me on 10 February 2022. At the conclusion of the hearing on that day, I issued the following Statement and Orders: Having considered all of the written evidence and documentation that has been filed by the parties, as well as the oral evidence that has been given by the witnesses today, the applicant herself and Mr Vevers on behalf of the respondent, in cross-examination, as well as the oral and written submissions that are relied upon by counsel for both parties, I have formed the view that the respondent did have a valid reason to dismiss the applicant from her employment, being her attendance at the rally on 24 July 2021 in breach of public health orders banning such public gatherings at that time, and the offensive material that had been posted on her Facebook page. On that basis, it is my determination that the applicant's dismissal was neither unjust nor unreasonable. However, given the applicant's personal circumstances, I have formed the view that her dismissal was, nevertheless, harsh. I, therefore, order the respondent to pay to the applicant, as monetary compensation, the equivalent of 12 weeks' full pay within 21 days of the date of this order, which is today, 10 February 2022. I propose to issue full reasons in due course. I will do that as soon as I can, given other pressing commitments. I indicate, for the benefit of the parties, that I have considered the question of the further 14 weeks' compensation that has been claimed, as I understand, to represent the difference between the applicant's previous income and her current income. I decline to make any order in relation to that aspect of the relief that has been sought by the applicant. The question of costs has been raised by the applicant in the written submissions that have been filed on her behalf. I would expect that the parties would not be in a position to further consider that issue until such time as I am able to publish full reasons for my decision, but I direct both parties to the limitations that are imposed on the Commission with respect to the question of costs in unfair dismissal matters. These are set out at s 181(2) of the Industrial Relations Act 1996. I draw these provisions to the attention of both counsel and the legal representatives of the parties because I would be concerned that further costs be incurred by the parties in the preparation of submissions going to the question of costs. 1. On 10 March 2022, I published my reasons for decision which contained the following: Determination 44. As I stated in my ex tempore Statement and Orders on 10 February 2022, I had determined that the dismissal of the applicant was neither unjust nor unreasonable. I made this determination on the basis of the applicant's attendance at the protest rally on 24 July 2021 in breach of the Public Health Order and the two Facebook posts... 45. Contrary to the submission put on behalf of the applicant, her attendance at the rally was a clear breach of the Public Health Order banning participation in an outdoor public gathering in Greater Sydney of more than two persons... Staff at the Lakemba Community Service Centre had, on the day before the rally, 23 July 2021, been requested by their manager to continue to follow public health orders and were directed to the Department's website where they could obtain some "more info on the orders"... The Code, at Clause 8.10, makes it clear that employees are required, even when off duty, to act in accordance with the law... 46. It was put by counsel for the applicant to Mr Vevers in cross-examination that the applicant's attendance at the rally on 24 July 2021 was not a breach of the Public Health Order. It was further put that, for an employee to be dismissed for serious misconduct, there had to have been a conviction or a finding of guilt. Reliance was placed on s 69 of the GSE Act which is in the following terms: 69 Misconduct—Public Service and other prescribed government sector employees (1) In this section— government sector agency means— (a) a Public Service agency, and (a1) that part of the NSW Police Force comprising administrative employees under the Police Act 1990, and (b) any other government sector agency prescribed by the regulations for the purposes of this section. misconduct extends to the following— (a) a contravention of this Act or an instrument made under this Act, (b) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act, (c) taking any action against another employee of a government sector agency that is substantially in reprisal for a disclosure made by that employee of the alleged misconduct of the employee taking that action, (d) a conviction or finding of guilt for a serious offence. The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment. serious offence means an offence punishable by imprisonment for life or for 12 months or more (including an offence committed outside New South Wales that would be an offence so punishable if committed in New South Wales). (2) The person who exercises employer functions in relation to an employee of a government sector agency is responsible for dealing with any misconduct by that employee in accordance with this section. (3) The government sector employment rules may deal with the following— (a) misconduct by employees of government sector agencies, (b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness). (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions— (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), (c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee), (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee. (5) Proceedings and actions under this section may be taken or continued despite the employee resigning or otherwise ceasing to be an employee of the agency concerned. Any such action may be expressed to be a termination of employment even if the person has ceased to be an employee. (6) This section does not apply to that part of the NSW Police Force comprising police officers or to any employees of a government sector agency excluded from this section by the regulations. 47. During the cross-examination of Mr Vevers, the following exchanges occurred: Q. Mr Vevers, I'm just going to ask you a few questions now and, just to clarify, you're a deputy secretary? Regardless of what department you're in, you're classified as the deputy secretary, that's correct? A. Yes, that's correct. Q. And your background and qualifications is as a social worker? A. I started as a social worker and then I have a qualification in management. Q. And it'd be fair to say, Mr Vevers, you're not a police officer, are you? A. No. Q. And it's fair to say that you have no legal training? A. No. Sorry, it is fair to say that. Q. And if I can ..(fault in audio visual link).. referring to the document, you do recall that one of the breaches that the respondent asserts to is a breach of the public health order, is that correct? A. Yes. Q. And if I was to suggest that it wasn't a breach of the public health order, would that change the department's view of the conduct? A. In part but the breach of the public health order was only part of my considerations and probably the lesser part. … Q. …If the conduct was not a breach of the public health orders, would it have been considered as part of the applicant's termination? A. The termination arose from public health - from a breach of the public health orders and the social media posts. In my mind, the latter carried more weight than the former. Q. Certainly. What I'm asking you is that if the former was no longer a breach, would it have still formed part of your consideration for termination? A. Well, I don't think it could have because if it wasn't a breach there wouldn't have been - that bit of it wouldn't have broken the code of conduct. If it was lawful - if I can be clear, if it was lawful to attend the rally, then that wouldn't have constituted a breach of the code of conduct. Q. Certainly, and is it correct to say that in your understanding the applicant hasn't been charged or convicted with any offence in relation to that rally? A. As far as I understand. Q. And in saying that, would it be fair to say that the determination of whether or not it was lawful or unlawful has come from the respondent and not from a charge, a police officer or an authorised health officer? A. So it's come from advice or it's come to me on advice from within the Department of Communities and Justice. Q. But that person is not a judge, a police officer or an authorised health officer, are they? A. No. Q. So it's correct to say, isn't it, that the department made their own determination about whether or not the applicant had breached the public health orders? A. Yes, although in my conversation with - may I call her Vanessa? In my conversation with Vanessa, she didn't disagree with that. … Q. The decision to determine that there was a breach and that rally was unlawful is a decision that's made by the department? A. It's - yes, I think that would be true, that the department investigated whether there was a public health order in place, determined that there was, and Vanessa herself said that she attended the rally. Q. Yes, and only on that basis have you made the decision that she's breached the public health order? A. Yes. Q. And if I was to suggest to you, sir, that she wasn't in breach of the public health order, would you agree or disagree with that? A. That wouldn't make sense to me because we checked that there was a public health order in existence and she's made no secret to me that she, in a premeditated way, attended that rally. Q. But you would agree, wouldn't you, that you have no legal training and your training is as a social worker and in management, correct? A. Yes, that is correct. Q. And even if you received advice within the department, you haven't received advice from a police officer, an authorised health officer or a judge, have you? A. No. … Q. And with this question, you don't necessarily have to tell me if there were - what the advice was and I don't wish to touch on any sort of privilege but you didn't receive any legal advice, did you? A. I personally received advice from our human resources department. I'm not aware of what legal advice they took. Q. And, sir, if I was to suggest to you that similar rallies have gone to the Supreme Court and been deemed lawful, would that surprise you? JOSEPH: I'm sorry, I'm going to object. I'm going to object, Commissioner. COMMISSIONER: Yes. JOSEPH: It's misleading. It's irrelevant. In light of the evidence that's already been given today, I'm not entirely sure, particularly given we're short of time, how far any of these questions can assist you or the answers-- COMMISSIONER: Where is this going, Mr Polese? What are you saying, that this was not an unlawful rally? POLESE: Yes, that's correct. There's been no determination at all, Commissioner. COMMISSIONER: Whether there's been a determination or not, that's not the test. You're-- POLESE: Under the Public Health Act and the orders, that's definitely the test, but I'll move on. COMMISSIONER: I just want to know where you're going with this because it's troubling me. Mr Joseph took Ms Lichi to cl 23 of the public health order which is fairly clear. "The minister directs that a person must not participate in an outdoor public gathering in greater Sydney of more than two persons." Now, are you going to say that this was not a gathering caught by that clause? POLESE: Yes, certainly, and there's been no determination at all from anyone to say that she's breached any of the public health orders. COMMISSIONER: Whether there's been a determination or not, she participated in an outdoor public gathering of more than two persons. That's conceded. So are you going to say because some judge somewhere hasn't said that was an unlawful gathering, therefore there's no breach? POLESE: Well, Commissioner, respectfully, to be serious misconduct there has to be a conviction or a finding of guilt. COMMISSIONER: Where did you get that from? JOSEPH: No, that's not - sorry, that's just not correct, Commissioner. COMMISSIONER: Mr Joseph, I don't think I need your assistance right now. JOSEPH: Sorry. POLESE: That's pursuant to s 69 of the Government Sector Employment Act. COMMISSIONER: I'm afraid that doesn't define the limits of what can be regarded as misconduct, Mr Polese. 48. I note that there was nothing put on behalf of the applicant that would support a finding that those who participated in the protest rally on 24 July 2021, including the applicant, were not acting in breach of the Public Health Order which banned participation in an outdoor public gathering in Greater Sydney of more than two persons... 49. There is provision in Clause 23 of the Public Health Order for a gathering to be "an exempted gathering" (Clause 23(3)(a)). A list of the types of gathering which fell within the definition of "exempted gathering" in Clause 3(1) is set out in Schedule 2 to the Public Health Order. It was not put on behalf of the applicant that the protest rally which she attended on 24 July 2021 was a gathering of the sort listed in Schedule 2. Further to this, nothing was put before the Commission to support a submission that the protest rally was, in some other way, not caught by Clause 23 and, as a consequence, was not unlawful. 50. The proposition that determination as to whether the applicant had breached the Public Health Order can only be made by "a police officer, an authorised health officer or a judge" for the purpose of supporting a finding of misconduct is plainly wrong. The Department, as do employers generally, regularly makes findings of misconduct by employees based on unlawful activity without the necessity for such findings to be confirmed by a police officer, an authorised health officer, a judge or any other external agency. The further proposition that, for there "to be serious misconduct there has to be a conviction or a finding of guilt", is also misconceived. Section 69 of the GSE Act does not support such a proposition. Whilst s 69(1)(d) "extends" the concept of misconduct to "a conviction or finding of guilt for a serious offence", the section does not prohibit a finding of misconduct where there has been no such conviction or finding of guilt for a serious offence or, indeed, a finding with respect to any of the other matters listed in s 69(1) of the GSE Act. 51. Government sector agencies, such as the Department, regularly make findings of misconduct by employees in accordance with the procedures set out in Part 8 Misconduct – procedural requirements of the Government Sector Employment (General) Rules 2014, and proceed to implement disciplinary action pursuant to s 69(4) of the GSE Act, in circumstances where, for example, an employee has engaged in unlawful conduct, such as the assault of another employee, but where no criminal charge has been laid, let alone any conviction or finding of guilt made. 52. Whilst the applicant claimed that she was, to some extent, unsure as to the legality of her participation in the protest rally on 24 July 2021, her responses to questions in the following passage from the transcript of her cross-examination disclose that she was sufficiently aware that such participation would be unlawful, but she chose to participate anyway: Q. What I want to put to you was that as an employee of the department, you were obliged to uphold the law? A. Yes. Q. And that would include adhering to public health orders? A. Yes. Q. And prior to - and just to clarify your evidence from before, you were aware of the existence of public health orders prior to attending or the existence of a public health order restricting outdoor gatherings prior to attending on 24 July? A. Yes. Q. And were you aware - you knew before you attended the gathering that there would be quite a few people attending? A. I didn't-- Q. Or you expected there would be quite a few people attending? A. I didn't know how many people were attending. Q. Did you think that there would be nobody attending? A. I thought it could go either way. Q. So it was possible that there might be a gathering of hundreds or perhaps more people? A. I honestly didn't know how many people were going. I don't know if there was going to be ten people, I don't know if there was going to be 50,000 people. I didn't know. Q. And did it cross your-- A. I'd never been to a rally. Q. Yes, and did it cross your mind to consider whether or not attendance at that rally would be in breach of the existing public health order? A. At the time I thought that the rights to participate in a rally would outweigh that. Q. Sorry, so are you saying that you formed an opinion yourself that you had some right to attend the rally that would outweigh or overrule any require to comply with a public health order? Is that what you're saying? A. … I thought that the rights to attend a rally would outweigh the public health orders at the time. Q. On what basis did you form that view? A. Well, I had no basis. This is - I've never been to a rally. I don't know what the process is to have a rally approved. All that was very new to me at the time and my understanding was that it would outweigh that. … Q. On what basis did you form that view? … Q. Did you read something somewhere? A. I understand that I don't understand the law very well when it comes to constitution laws but at that time I thought that that would outweigh the directions. Q. Is it possible that you read this online from the same sources that we were - where you read about the military in the United States possibly, you know, taking children from their families and homes? Was it that sort of - did you read something in one of those sites? A. There was a lot of information. Whether that was in social media or whether that was in an article, there was a lot of information about that you have a right to protest and that, yeah, that's where I got it from. Q. And you took no steps - sorry, you were aware that there was a public health order in place at the time? A. Yes. Q. And you were aware that there were restrictions in place that had been placed by the New South Wales government in relation to outdoor gatherings? A. Yeah. Q. And you chose to ignore those requirements? … Q. You chose to ignore - you knew that there were health orders in place. You knew that there were health orders that restricted outdoor gatherings and you chose to ignore those orders? A. I didn't - I don't think I purposely tried to ignore them. I thought that I had a right to protest, even with when there is a directive. So I didn't ignore it. I'm not sure if I'm explaining myself properly. Q. Well, you took no steps, put another way, you took no steps to establish that this opinion that you had had a basis in fact or law, about a right to attend? A. I was trying to read up on different laws. They don't always make sense but I was trying to read about the constitution and what this means in Australia and about our, you know, right to protest. So my understanding was that at the time I thought that that would override a directive. Q. So with respect Ms Lichi, you agree that you'd received emails through work? A. Mm hm. Q. Referring to public health orders? A. Yes. Q. And we've got on here from - that's back at page 79, from Mr Pinchbeck, the Acting Manager, Client Services at Lakemba? A. Mm hm. Q. Sent on 23 July, "Please continue to follow the public health orders"? A. Yeah. Q. There was no doubt what your employer required you to do, is there? A. Sorry, what was the question? Q. There is no doubt that your employer required you to follow the public health orders? A. Correct. Q. And you chose not to? A. (No verbal reply) Q. You chose not to? A. I chose to participate in the rally to uphold my rights. Q. Well - and put another way, you chose not to - you chose to - you chose not to follow the public health order, as you'd been requested to do by your employer? A. Sure, yes. 53. I find that, by participating in the protest rally on 24 July 2021, the applicant was acting contrary to Clause 23 of the Public Health Order and also in breach of Clause 8.10 of the Code... I agree with Mr Vevers' finding that this conduct by the applicant constituted misconduct such as to warrant disciplinary action being taken against the applicant pursuant to s 69(4) of the GSE Act. Whether this act of misconduct of itself was sufficiently serious to warrant the termination of the applicant's employment is a moot point. As Mr Vevers made clear in his evidence, he regarded the postings on the applicant's Facebook page…, as constituting the more serious misconduct by the applicant... I agree with Mr Vevers in this respect. 54. The reposting of an image of the then Premier's face, defaced to make her resemble Adolf Hitler, juxtaposed next to an actual image of the man who is the personification of pure evil, was an appalling act of disrespectfulness and unfairness to the then Premier, and a clear breach of Clause 7 of the Code... 55. A submission was put on behalf of the applicant to the effect that the "government as a whole and NSW government officials", presumably including the Premier, "are not 'colleagues, clients, their families and members of the public' nor are they 'Inmates, offenders and detainees'. Thus clearly any alleged misconduct has not been against or affected any person within the clause specifically identifies. There has been no breach under this rule". I regard this submission as a mere quibble. The logical extension of this argument is that the Code only requires that employees treat the classes of persons identified in Clause 7 of the Code with respect and fairness, and everyone else, including the Premier, is fair game for disrespectful and unfair vilification by employees of the Department such as the applicant. Such a proposition is patently absurd and I soundly reject it. 56. The Facebook post which contained the words "By the end of August the military will be knocking on your door if you haven't had a jab or they will take your kids off you! Wake the fk up Australia!" constitutes a further act of misconduct by the applicant... The spreading of fear mongering rubbish about the prospect of children being removed from non-vaccinated parents was always likely to cause significant upset and resentment amongst other Child Protection Caseworkers given the highly sensitive nature of the work that they do with vulnerable children and families. In this respect, I agree with the sentiments expressed by Mr Vevers… 57. To the applicant's credit, she did express what I regard to be genuine remorse for her misconduct with regard to her social media postings... Nevertheless, it is my determination that, when considered together with the applicant's participation in the protest rally on 24 July 2021 in breach of the Public Health Order which was in place at that time, the applicant's misconduct was serious enough and sufficiently connected to her employment with the Department such as to warrant her dismissal from that employment (see Hansen v Secretary of the Department of Transport – as head of the Transport Service and exercising the employer function of staff of Roads and Maritime Services [2016] NSWIRComm 1011 and the authorities cited at [28]-[72]). 58. The disciplinary process which led to the dismissal of the applicant was procedurally fair to her. She was given ample opportunity to respond to the allegations against her, which she did. 59. The applicant disclosed her personal and financial circumstances and the impact that the loss of her job would have on herself and her family... I am satisfied that, in coming to his decision to dismiss the applicant, Mr Vevers took into account all of the mitigating factors put to the Department by the applicant and I reject the proposition that he did not, which proposition was repeatedly put to him in cross-examination. 60. Based on all of the material that was put before the Commission in this matter, I determined that the dismissal of the applicant was neither unreasonable nor unjust. This determination, however, leaves open the question as to whether the dismissal was, nevertheless, harsh. 61. In Byrne v Australian Airlines Ltd (1995) 185 CLR 410, the High Court stated (per McHugh and Gummow JJ at 465): It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 62. The issue of harshness in the context of a dismissal from employment was considered by a Full Bench of the Commission (Walton J Vice-President; Haylen J; Bishop C) in Department of Health v Perihan Kaplan [2010] NSWIRComm 65. In that matter the Full Bench stated: 25 The appellant sought leave to appeal upon the basis of certain errors which were said to attend upon a finding by Ritchie C that the dismissal of the respondent was harsh. That finding was made pursuant to s 84(1) of the Act and involved mixed questions of fact and law: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [4] ('Burge') (also applying Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at [181 - 182] and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at [59]. 26 One ground relied upon for this challenge was predicated upon a legal proposition that a dismissal which was based upon conduct by an employee, which constituted a breach of a fundamental and essential term of the contract of employment, "would necessarily not be harsh". No authority was given in support of that proposition except for an authority which was said to demonstrate that, in the contemporary common law of employment, an implied term may be found in every employment contract that the employee owes the employer a duty not to act in a manner likely to destroy or seriously damage the relationship of trust and confidence between them: Russell v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2007) 69 NSWLR 198. The appellant's contention would appear to be that a finding of harshness under s 84(1) could not be made in circumstances where an employee had been lawfully dismissed for breach of such a term. It was also suggested that that approach was mandated because the employee's conduct in that context would be a repudiation of the contract. 27 The difficulty with this approach, as opposed to one which would have the nature of an employee's misconduct weighed against mitigating factors to determine, inter alia, whether a dismissal was harsh, is that it stands in the face of the statutory scheme which requires the Commission to consider whether the dismissal was harsh, unreasonable or unjust. There is a long established authority in this Commission and its predecessors, extending at least from the decision of Sheldon J in Re Loty & Holloway v Australian Workers' Union [1971] AR (NSW) 95 at [99] ('Loty'), that the exercise of the Commission's powers in relation to unfair dismissals (now found in Part 6 of Ch 2 of the Act) requires a determination as to whether a dismissal was harsh, unreasonable or unjust, even though "it was perfectly legal" (Loty at 99). In Beahan v Bush Boake Allen Australia Pty Ltd (1999) 47 NSWLR 648 at [26], a Full Bench identified that "as Loty makes clear, the power of the Commission to order reinstatement or the other remedies in the case of an unfair dismissal is exercised regardless of the legal right of an employer to dismiss an employee". To similar effect, a Full Bench in Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [71] ('Little') stated: The mere conclusion that a dismissal has been effected in accordance with common law or statutory requirements, or has adequate "justification" in the sense of there being proper grounds given for dismissal, does not remove from account in such proceedings a consideration of the severity of punishment and mitigating circumstances where those matters properly arise for consideration upon the material before the Commission. No different approach is to be applied in review proceedings under the Police Service Act. 28 This conclusion must also follow from the very meaning of the concept of "harshness" within s 84(1). The words "harsh, unreasonable or unjust" in s 84(1) are "ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated": Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [467] ("Byrne"), per McHugh and Gummow JJ, (applying Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 at [28]). The appellant's acceptance that the expression 'harsh' would bear the meaning "disproportionate to the gravity of the misconduct" (see Byrne at [465]), necessarily brings with it the conclusion that a breach of an employment contract or even a repudiation of it will not be determinative of a finding under s 84(1) of the Act as to whether the dismissal was harsh. So, too, does an acceptance (see Byrne at 465) that the personal circumstances of a dismissed employee may be also brought into account. 29 We would add to the discussion of the meaning of the expression 'harsh' (for the purposes of s 84(1)), our agreement with the Full Bench in Little [at 70] that, in order to illuminate the meaning of the concept of "harshness" it is unnecessary to go beyond the statement of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 at [233] where his Honour stated as follows: In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 63. Reinstatement or re-employment of the applicant to a position with the Department does not arise as an issue to be considered in this case. As stated previously, originally the applicant, in the Application as filed, was seeking re-employment to another position with the Department and monetary compensation... However, since her dismissal the applicant has gained alternative employment commencing on 1 December 2021, albeit on a lower rate of pay than she received as an employee with the Department. 64. In the written submissions filed on her behalf, it was stated that the applicant was seeking monetary compensation in a total amount equivalent to 26 weeks pay... However, in opening her case on 10 February 2022, counsel for the applicant put the following: In light of those submissions, the applicant respectfully submits that termination was harsh, unjust or unreasonable. The conduct was not serious misconduct and it did not warrant dismissal and, therefore, the applicant is entitled to compensation and the applicant also submits that, if the applicant is successful and the applicant would like an opportunity to resign, put a letter of resignation and the termination be set aside or withdrawn. If there's any questions from the Commission, those are my opening submissions. 65. Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47 was a case in which the employer, the Director General, New South Wales Department of Health, challenged an order made by a Full Bench of the Commission to the effect that a dismissed employee, Carlos Casari, be re-employed but then immediately resign. 66. The Court of Appeal (Spigelman CJ; Tobias JA; Handley AJA) held as follows (per Spigelman CJ at [11]-[23]): 11 The order of the Full Bench which is challenged in this Court was: "(4) The appellant is re-employed in his former position effective from the date of this decision on the following terms and conditions: (i) the appellant will not return to work and he shall resign in writing effective from the day immediately following the date of this decision; (ii) for the period from 30 July 2007 to the day immediately following the date of this decision the respondent shall pay to the appellant within 14 days the wages he would have received if he had not been summarily dismissed, together with any benefits, such as annual leave, long service leave and superannuation, that would have accrued to the appellant from 30 July 2007 if he had not been summarily dismissed." … 16 The focus of the submissions is upon the order made by the Full Bench that Mr Casari is re-employed in his former position on the condition that he would not return to work, but resign immediately. The practical effect of this order was that Mr Casari would receive his full pay for the period from 30 July 2007 to 3 July 2009 being the day after the decision of the Full Bench. As a matter of substance this gave him compensation for a period of just under two years which, notably, is substantially more than an order for compensation that could have been made under s 89(5) of the Act. 17 The focus of the submissions on the part of the applicant in this Court is on the fundamental inconsistency between the power which the Full Bench purported to exercise and the condition which it imposed requiring immediate resignation by Mr Casari. This is a manifestation of the express finding of fact in [74] of the Full Bench judgment set out at [10] above, which, to repeat, was: "We consider that reinstatement for the purpose of future employment with the employer is impracticable." 18 This finding reflects the introductory words of s 89(2), to repeat: "If the Commission considers that it would be impracticable to reinstate the applicant …" 19 Section 89(2) authorises the Commission to make an order for re-employment. This is what the order set out at [11] above purports to do. However, s 89(2), to repeat, authorises the Commission to make an order of re-employment "in another position that the employer has available". The actual order made by the Commission was that "the appellant is re-employed in his former position …". Section 89(2) provides no statutory basis for an order of this character. This is an order of 'reinstatement' which requires the exercise of the power in s 89(1), a power which the Commission expressly abjured. 20 Furthermore, the Full Bench made no findings of the character required by s 89(2). It did not identify "another position" which the employer had "available" and about which the Commission had formed the opinion that it was "suitable". Indeed, the finding that Mr Casari could not be reinstated "for the purpose of future employment" is, in substance, a finding that no other "position" would be "suitable". The power to order re-employment cannot be exercised unless such findings are made. 21 Finally, the condition imposed by the Full Bench's order to the effect that "the appellant will not return to work and he shall resign" is also on its face inconsistent with the concept of an order to "re-employ the applicant" within the meaning of s 89(2). The idea of 're-employment' necessarily requires a return to work. There is no power to order 're-employment' which involves no return to work at all. (Cf Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 esp at [13]-[15], [33]-[34], [43]-[44], [65], [69].) 22 This is, in my opinion, both jurisdictional error and error of law on the face of the record (even if confined to the order itself) for each of three alternative reasons. First, the power which the Commission purported to exercise did not authorise an order that Mr Casari be re-employed "in his former position". Secondly, the Full Bench failed to make findings which were an essential precondition to the exercise of the statutory power. Thirdly, a condition requiring a person to resign and not return to work is outside the permissible sphere of any order capable of answering the description of an order "to re-employ". 23 Pursuant to s 89(8) of the Act, the Commission can impose "terms and conditions" on "an order under this section". The conditions able to be imposed pursuant to this power must be attached to something capable of constituting an "order" within s 89(1)-(5). There was no such order. Section 89(8) is not a power enabling the Commission to do whatever it thinks is fair and/or reasonable. The "conditions" identified as 4(i) and (ii) are not conditions within s 89(8). 67. This authority disposes of the proposition that, if I were minded to order that the applicant be reinstated or re-employed in another position with the Department, which I am not, I could do so on the condition that she then resign. 68. On the question as to whether the dismissal of the applicant was harsh, the authorities cited above direct the Commission to a consideration of mitigating factors such as the "consequences for the personal and economic situation of the employee" and past good conduct (Byrne at 464; Perihan Kaplan at [28]-[29]). 69. Nothing adverse about the applicant's past conduct was raised by the Department in the proceedings. Mr Vevers positively stated that the applicant's work performance was not a factor in the decision to dismiss her from employment... I infer from this that the applicant's past conduct and performance as an employee with the Department was good. 70. I have also taken into account the personal circumstances of the applicant during the period leading up to her dismissal. 71. In June 2020, the applicant gave birth to her daughter... This was during the initial period of the COVID-19 pandemic and the restrictions that were imposed on personal freedoms at that time. Her partner's work was severely impacted and the family income significantly reduced... The applicant stated that she developed post-natal depression and this was not disputed in the proceedings... Her psychologist described the applicant as having been "influenced by longer term contributing factors including factors including perinatal mood disorder and significant stressors"... The applicant's ability to provide care and assistance to her mother and stepfather had been severely affected... The period leading up to 24 July 2021 was a time of confusing and conflicting information circulating in society about the efficacy of vaccines that had been developed and the legality of public health orders... 72. None of these matters excuses the misconduct of the applicant which led to her dismissal, but these are factors which impacted on the personal circumstances of the applicant and which, in the exercise of its discretion in relation to the issue of relief, the Commission may take into account on the issue of harshness. 73. At the time of, and immediately following, her dismissal, the applicant and her family were facing dire financial circumstances which would not generally have been the case in pre-pandemic times. For a period of approximately three months after her dismissal, the applicant was virtually without income... 74. As previously stated, I have determined that the dismissal of the applicant was neither unreasonable nor unjust. However, in all the circumstances of this case, I determined that her dismissal was harsh. 75. For the reasons set out above, an order for reinstatement or re-employment of the applicant to a position with the Department is impracticable. I determined, in the exercise of my discretion pursuant to s 89(5) of the Act, to order payment to the applicant of an amount of compensation. 76. The maximum amount of compensation that may be ordered pursuant to s 89(5) is an amount equivalent to six months' pay. The applicant's relatively short period of employment with the Department would not support an order for payment to her of the maximum amount permissible, or any amount approaching that maximum. Taking into account all of the matters which support the finding that her dismissal was harsh, in particular the applicant's personal circumstances, I determined that a fair amount of compensation that the applicant should receive is 12 weeks' pay. 77. I confirm the order that I made in these proceedings on 10 February 2022... I reserve the question of costs but refer the parties to the remarks that I made on this issue when I made the order. 1. On 24 March 2022, the legal representatives of the applicant filed the following written submissions in support of an application for a costs order in favour of the applicant: WRITTEN SUBMISSIONS ON BEHALF OF THE APPLICANT IN RELATION TO COSTS 1. Before the commission was an application for unfair dismissal pursuant to s 84 (2) Industrial Relations Act 1996 (NSW) (the Act), filed on 24 September 2021. (Application) 2. The Hearing of the Application was held on 10 February 2022. 3. The Commission found that the dismissal was harsh and awarded compensation. 4. On 10 March 2022, the decision of the Commission was published. 5. The Applicant now makes an application for costs. AUTHORITIES 6. The Applicant seeks its costs of preparation, appearance and incidental to the Hearing, pursuant to s 181 (2)(c) Industrial Relations Act. 7. The principles for determining an application for costs pursuant to s 181(2)(c) were considered in Paris and Four Sons Pty Limited v Sakchai Limsiripothong (No 2) [2000] NSWIRComm 131; (2000) 100 IR 400 ("Four Sons (No 2)"). 8. The Full Bench in Paris at 219 expressed the relevant test in respect of s 181(2)(c) in these terms: "Construing the relevant part of s 181(2)(c) in its overall statutory context, we conclude that the evident purpose of the provision is to encourage the settlement of proceedings to which it applies. The criterion set out in the provision is to be applied objectively and requires a consideration of the whole of the conduct of the party against whom the order is sought, or some discrete part of that party's conduct, with a view to ascertaining whether it unreasonably failed to agree to a settlement of the claim .We also consider that on the proper construction of the provision, an affirmative conclusion may be reached on at least two bases. First, where there was a proposal put by a party which could be described as a reasonable settlement of the claim and that was not agreed by the other party. The second situation in which the criterion could be satisfied is where the course of conduct of the party over a relevant period could be said to amount to conduct inconsistent with an intention to settle the proceedings on any basis that could be considered reasonable. We emphasise that, although the legislature has clearly intended that there be strict limits on the power of the Commission to award costs in unfair dismissal proceedings, the legislature has also evinced a clear intention that costs orders be available in circumstances where there has been a failure on the part of a party to properly conciliate proceedings to the extent that they have failed reasonably to facilitate a potential settlement of them. Further, the Commission is obliged to consider all relevant circumstances in deciding whether such failure has occurred. Once the statutory criterion has been met, the Commission's broad powers and discretions under s 181(1) are available for exercise." 9. A party may be found on one of two bases to have unreasonably failed to agree to a settlement of the claim: firstly, by not accepting a reasonable settlement offer put by the other party; or, secondly, by engaging in conduct inconsistent with an intention to settle the proceedings on any basis that could be considered reasonable. Moore v North Sydney Council [2019] NSWIRComm 1021. CORROSPONDENCE 10. On 9 February 2022, by email, the Applicant made an offer to the respondent as follows: Without Prejudice save as to costs Dear Paul and Samuel We have updated instructions in the matter. Our client wishes to propose the following offer to resolve the proceedings, in full and final settlement: 1. Her termination of employment is withdrawn, and she is given an opportunity to resign. In which she will provide a letter of resignation on the same date as the purported termination; 2. A letter of recommendation is given to her by her supervisor Joanne Spring; 3. On the basis of acceptance of this offer, we will withdraw the matter and there is no need to go to a hearing tomorrow; and 4. Parties enter into terms of settlement reflecting the above, carving out clauses for confidentiality, non disparagement and release. This offer is open for acceptance until 9am, tomorrow, Thursday 10 February 2022. This offer is made in accordance with the principles of Calderbank. As you are aware this foregoes our client claim for compensation and removes all risk for the department. Our view is that this offer is extremely reasonable and the commission will take the same view. We appreciate the timing of this offer and we have tried to call your respective numbers. if you wish to discuss this offer, please call 043197558. In the absence of acceptance, we are instructed to proceed based on the original claim for relief, plus the above. We await your urgent response." 11. On 10 February 2022, the offer was formally rejected by the respondent, in the following terms: "Dear Tiffany, I refer to your email below. The offer is rejected. Regards, Sam" SUBMISSIONS 12. The Applicant submits that the above offer, was unreasonably rejected because: a) The Applicant would have withdrawn their claim and would not have sought any compensation; b) It would have done away with the need to prepare and appear at the Hearing; c) The offer was non economic and would have been of limited cost and effort for the Respondent; d) It would have avoided a determination and publication from the Commission; e) The offer was made in accordance with the principles of Calderbank; f) Given the ultimate decision of the Commission; i. the Respondent would have been in a better position if they accepted the offer; and ii. The Applicant has bettered the offer, by being awarded compensation. 13. The Respondent was on notice of the Applicant's position as early as the Application and as late as the Applicant's submissions being filed and served on 9 November 2021. 14. Despite the decision of the Commission rejecting the Applicant's contentions that the dismissal was unjust or unreasonable, it ultimately agreed with the Applicant's contentions that the dismissal was harsh, arguably accepting the Applicant's submissions in that regard… 15. Further, there was no formal offer put by the Respondent at all throughout the proceedings. By this, it is submitted that the Commission can infer a lack of motivation or interest in settlement from the Respondent. 16. Also, the Respondent's failure to settle at conciliation, and also rejecting the remedy of reinstatement adds to the failure of the respondent to entertain settlement. ORDERS AND DISPOSITION OF THE DEFENDANT'S MOTION 17. For the reasons set out in these submissions, the Applicant submits that; a) The Respondent to pay the Applicant's costs of and incidental to the preparation and appearance at the Hearing on the indemnity basis; or b) The Respondent to pay the Applicant's costs of and incidental to the preparation and appearance at the Hearing, in a fixed sum of $8,522.16 (incl GST) broken down as follows: i. Counsel $2,750.00; ii. Solicitor - $5,500.00; iii. Disbursements - $272.16. 1. On 4 April 2022, the respondent, the Industrial Relations Secretary on behalf of the Department, filed the following written submissions in response to the application for a costs order in favour of the applicant: