X v Secretary, Department of Education (No 2) [2022] NSWIRComm 1092

Industrial Relations Commission New South Wales Medium Neutral Citation: X v Secretary, Department of Education (No 2) [2022] NSWIRComm 1092 Hearing dates: 7 September 2022 Date of orders: 26 October 2022 Decision date: 26 October 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: Motion dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Jurisdiction EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Threatened dismissal Legislation Cited: Industrial Relations Act 1996 (NSW), s 89(7) Cases Cited: Barnier v Secretary, Department of Education [2021] NSWIRComm 1045 Hallab v Secretary, Department of Education [2022] NSWIRComm 1019 General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 Category: Procedural rulings Parties: X (Applicant) Secretary, Department of Education (respondent) Representation: Counsel: R Goot SC with B Rauf (for the applicant) O Fagir (for the respondent)

Solicitors: Thrive Workplace Consulting & Legal (for the applicant) Clayton Utz (for the respondent) File Number(s): 2022/187168 Publication restriction: Interim Orders made pursuant to s 164A of the Industrial Relations Act 1996 (NSW)

decision 1. In the substantive proceeding the applicant seeks an order pursuant to s 89(7) of the Industrial Relations Act 1996 (NSW) ("the Act") that they not be dismissed. 2. By Notice of Motion, the respondent in the substantive proceeding seeks an order that the proceeding be dismissed for want of jurisdiction. It submits that the factual circumstances of the case do not amount to a threatened dismissal pursuant to Part 6 of Chapter 2 of the Act. 3. The applicant is a teacher employed by the respondent on an ongoing basis, pursuant to the Teaching Service Act 1980. They have been employed on an ongoing basis since late 2014. 4. The applicant's originating Application of 27 June 2022 states that in March of 2019, the respondent directed the applicant to undertake duties away from classroom teaching and commenced an investigation into allegations of misconduct. 5. In determining the respondent's Notice of Motion, it is not a matter for consideration whether the allegations are true, even in part. 6. Based in part on the originating Application, and on the evidence before the Commission to date, it is sufficiently clear that the respondent: 1. Has, at some level at least, investigated the factual background of the allegations; and 2. Exchanged correspondence with the applicant about the general nature of the allegations, including as to some details of the allegations. 1. It was common ground that on 15 February 2022, the respondent wrote to the applicant setting out some findings as to the factual substance of the allegations and as to the actions the respondent was considering taking based on those findings. On 27 June 2022, the applicant replied in writing to the respondent. 2. It appears that the details of most, if not all, of the steps taken to date will be contested should the proceeding continue. The Commission has not considered the details of the process, other than as expressly set out below. Consideration beyond that set out below is not relevant to determination of the respondent's Notice of Motion. 3. The effect of the respondent's letter of 27 June 2022 was contested, and indeed central to determining the Notice of Motion. 4. In summary, the applicant says that the letter sets out the respondent's findings as to the facts about the allegations and confines any response sought from the applicant to the action the respondent should take against the applicant based on those findings. In any event, the applicant says that the letter constitutes a threat to dismiss them. 5. The respondent characterises the letter as preliminary findings, adduced evidence that the respondent's decision maker has not read the applicant's response of 27 June 2022, and submits that, in effect, it is too early in the respondent's decision-making process for the possibility of the applicant being dismissed to constitute a threat of dismissal pursuant to the Act.