Molloy v Secretary, Department of Education [2022] NSWIRComm 1100

Industrial Relations Commission New South Wales Medium Neutral Citation: Molloy v Secretary, Department of Education [2022] NSWIRComm 1100 Hearing dates: 6 May 2022 Decision date: 17 November 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Appeal disallowed Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL – casual school teacher – sustained allegations of misconduct – name placed the list of people not to be employed by the Department of Education (the NTBE list) – whether placement of name on NTBE list constitutes dismissal – whether placement of name on NTBE list is an appealable decision Legislation Cited: Industrial Relations Act 1996 Teaching Service Act 1980 Cases Cited: Douglas v Secretary, Department of Education [2021] NSWIRComm 1044 Francois v Industrial Relations Secretary (Department of Corrective Services) [2019] NSWIRComm 1058 Pacific Waste Management Pty Limited v Saley (1993) 51 IR 339 Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385 Texts Cited: Nil Category: Principal judgment Parties: Andrew Molloy (Appellant) Secretary, Department of Education (Respondent) Representation: Appellant was self represented Mr T McDonald, solicitor, McCabes (Respondent) File Number(s): 2021/00322224 Publication restriction: Nil

decision 1. Before the Commission is a public sector disciplinary appeal filed on 12 November 2021 by the appellant, Andrew Molloy, a former high school teacher employed by the respondent, the Secretary, Department of Education ("Department"). 2. In his Notice of Appeal – Public Sector Discipline, the appellant has nominated his type of employment as casual, the date he started work with the employer as 6 June 2018 and the date he received notice of the decision he is appealing against as 17 October 2021. The appellant nominated "Dismissal" and "Suspension" as the type of discipline decision being appealed against. He stated that the outcome of the appeal that he is seeking is: a. Removal "Do Not Employ" list b. Compensation 1. The appellant made reference in the Notice of Appeal to "unconscionable conduct of various Picnic Point High School staff before, during and after both EPAC / PES matters" as well as to other matters apparently connected to a disciplinary process to which the appellant had been subjected. Attached to the Notice of Appeal was a copy of a letter dated 17 October 2021 to the appellant from Daryl Currie, Executive Director, Professional and Ethical Standards, Department of Education. That letter contained a number of sustained findings in relation allegations of misconduct against the appellant. The nature of the alleged misconduct was not identified in the letter and I have found it unnecessary to further canvass those matters in this decision. 2. The letter contained Mr Currie's determination with respect to the misconduct findings against the appellant in the following terms: On this occasion I have determined to: Permanently place your name on the list of people not to be employed by the Department of Education (the NTBE list). 1. This appeal is brought pursuant to s 98 of the Industrial Relations Act 1996 ("Act"). Decisions which may be the subject of a public sector disciplinary appeal are set out in s 97 of the Act, which is in the following terms: 97 Notice of certain decisions etc (1) This section applies to the following decisions made by a public sector employer in relation to a public sector employee— (a) a decision to defer, for a period in excess of 6 months, the payment of an increment to the employee, (b) a decision to reduce the rank, classification, position, grade or pay of the employee, (c) a decision to impose a fine or forfeit pay, (d) a decision to annul the appointment of an employee appointed on probation, (e) a decision to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer, (f) a decision to dismiss the employee, (g) a decision to direct or to require the employee to resign. (2) A public sector employer who makes a decision to which this section applies in relation to an employee must give the employee notice, in writing, of the decision as soon as practicable after the decision is made, except as otherwise provided by an order made under subsection (4). (3) If the employer is unable to give the employee notice of the decision within 14 days after it is made, the employer may apply to the Commission for an order as to the giving of the notice. (4) On receipt of an application under subsection (3), the Commission may make such order as the Commission thinks fit as to the giving of the notice or may make an order dispensing with the giving of the notice. (5) A notice may be given, or the giving of a notice may be dispensed with, in accordance with an order made under subsection (4). (6) In subsection (1) (f)— dismiss includes dispensing with the services of an employee (including under any right or power of the Crown to dispense with the services of an employee). (7) For the purposes of this Division— (a) a decision of a kind referred to in subsection (1) (d), (f) or (g) is a decision that may, subject to this Act, be appealed against under section 98 regardless of whether the decision was made for disciplinary reasons, and (b) a reference to a public sector employer making a decision of a kind referred to in subsection (1) includes a reference to any other person (including the Crown) who is authorised by or under any law to make that decision or to carry it into effect. 1. In the Employer's Response filed on 29 November 2021, the Department raised a number of jurisdictional objections to the appeal which can be summarised as follows: a. As at 17 October 2021, the appellant was not employed by the respondent and had not worked for the respondent since 19 November 2020. He was, therefore, nether dismissed nor suspended by the respondent. b. Placement of the appellant's name on the NTBE list is not an appealable decision. c. As a former casual employee, the appellant is precluded from bringing a public sector disciplinary appeal by s 98(3)(c) of the Act. Subsection 98(3)(c) is in the following terms: 98 Right of appeal … (3) However, employees of the following classes cannot appeal to the Commission against an appealable decision referred to in section 97 (1) (d), (f) or (g)— … (c) employees engaged on a casual basis for a short period except those who— (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and (ii) would, but for the decision of the employer, have had a reasonable expectation of continuing employment with the employer. d. To the extent that the appellant may be characterised as a temporary employee, he is precluded from pursuing this appeal by s 50(7) of the Teaching Service Act 1980. Subsection 50(7) of the Teaching Service Act is in the following terms: 50 Temporary employees … (7) A temporary employee whose employment is terminated is not, despite any other Act or law, entitled to any other compensation or entitlement for the termination of employment other than superannuation entitlements. 1. The Department's jurisdictional objections to the appellant's Notice of Appeal were listed for hearing before me on 6 May 2022.