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. Case for the Department 1. On 13 January 2022, the Department filed a written outline of submissions in support of its jurisdictional objections to the appeal, supported by a witness statement by Mr Currie. According to payroll records annexed to Mr Currie's witness statement, the appellant's pattern of work with the respondent was as follows: a. In 1994, he worked between 21 February and 12 August, with a mix of 3 hour shifts and day engagements. b. In 1997, he worked 7 shifts between June and August. c. In 2012, he worked 1 shift on 17 August. d. In 2015, he worked 3 shifts, in June and September. e. In 2018, he worked 47 shifts from 7 June to 22 November. f. In 2019, between 17 June and 30 August he worked at Picnic Point High School. Prior to those casual engagements at Picnic Point High School, between 27 February and 14 June he worked days at Menai High School, Picnic Point High School and Holsworthy High School, replacing some 17 different teachers on temporary absences. g. In 2020, he was engaged by Picnic Point High School between 30 January and 14 May replacing 6 different teachers on temporary absences. He was then not employed again for some two months until his next engagement on 28 July at Menai High School until 19 November. 1. It later emerged through a second witness statement by Mr Currie filed on 22 February 2022 that the appellant had performed three temporary contracts with the Department from 22 July to 18 August 2019; from 30 August to 20 October 2019; and from 21 October 2019 to 27 January 2020. Each of the temporary contracts was performed at Picnic Point High School and each contained terms of engagement acknowledged by the appellant which contained the following: This notice confirms an offer and acceptance of engagement as a temporary teacher only for the period specified above. There is not guarantee or expectation of any further or ongoing temporary employment beyond the end date specified. 1. The Department's outline of submissions concluded as follows: 18. Given Mr Molloy had not been engaged to perform any casual engagements for the Department for some 11 months, and was already on notice that allegations of misconduct had been substantiated against him, Mr Molloy could not have had a reasonable expectation of continuing casual employment with the Department, but for the decision communicated to him on 17 October 2021, and therefore cannot satisfy section 98(3)(c) of the IR Act, in order to bring the application. 19. Mr Molloy was not engaged on a regular or systematic basis by the Department, nor did he have a reasonable expectation of continuing employment. As such is unable to appeal to the IRC under s 98(3) of the IR Act, even if in fact he was "dismissed" on 17 October 2021. 1. At the hearing on 6 May 2022, the Department was represented by Mr Tim McDonald, solicitor of McCabes. 2. Mr McDonald referred the Commission to a number of authorities, including Francois v Industrial Relations Secretary (Department of Corrective Services) [2019] NSWIRComm 1058 from which he cited the following passage from the decision of the then Chief Commissioner Kite SC: 70. The two subject matters in s 97(1) are the public sector employee and the decisions listed in the section. Decisions which may be incidental or in some way related to a decision listed in the section are not themselves appealable decisions. Only the decisions listed in s 97(1)(a) may be appealed. So much is clear from the opening words to s 97(1) which limit the operation of the section to the specific decisions which follow. In short, to have a right of appeal a public sector employee must identify a decision, listed in s 97(1), made by his or her employer which relates to her as an employee. 1. Mr McDonald then submitted that in s 97(1) of the Act there is no reference to the Department's NTBE list. 2. Mr McDonald cited my decision in Douglas v Secretary, Department of Education [2021] NSWIRComm 1044 where I stated as follows: 47. In her Notice of Appeal – Public Sector Discipline filed on 23 September 2020, the appellant listed the relief that she is seeking as follows: (1) Reinstatement (2) Removal from Not To Be Employed (NTBE) list (3) Withdrawal of referral to Office of the Children's Guardian (4) Formal apology (5) Compensation for lost income 48. Nothing that has been put on behalf of the appellant in these proceedings would warrant the Commission granting the form of relief set out at (3) and (4) both of which would appear to be beyond the Commission's power. The form of relief sought at (2) would also appear to be beyond the Commission's power, although a reinstatement order would presumably override the Department's NTBE list. The submissions put on behalf of the appellant did not specifically address these issues but, instead, focussed on reinstatement and compensation for lost income. 1. The decision of the Full Bench (Cullen and Schmidt JJ, Tabbaa CC) in Pacific Waste Management Pty Limited v Saley (1993) 51 IR 339 was cited in support of the proposition that a dismissal cannot occur where it has not been established that there was a relationship of employer and employee at the relevant time, in that case the date on which it was indicated that the appellant was not prepared to offer further casual employment to the respondent (at 346). This proposition was not disturbed by the subsequent decision of the Full Bench (Bauer and Hungerford JJ, Murphy CC) in Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385 at 393. 2. Mr McDonald then stated that the Department did not press its jurisdictional objection based on s 50 of the Teaching Service Act 1980. Case for the appellant 1. On 15 February 2022, the appellant filed his own comprehensive written submissions which were later supplemented by further documentary material filed on 8 April 2022. 2. In his first written submissions, the appellant submitted that the effect the decision to place his name on the Department's NTBE list was a dismissal. He further claimed that he had been employed by the Department on regular occasions on an ongoing and systematic basis for more than six months. 3. The appellant provided explanations for "what might appear a shallow depth of employment" between 1994 and 2018 but submitted that between 2018 and 2020 he "was engaged on a regular and systematic basis for a period of 6 Months prior to the disciplinary actions and decisions…". 4. The appellant then stated that he had been denied regular casual work at Picnic Point High School in 2018/2019 after he "urged four girls to report a boy who threatened to get those four girls bashed". The appellant claimed that he worked regularly as a Casual Classroom Teacher at Picnic Point and Menai High Schools from 13 March to 20 June 2019 and then filled a maths block at Picnic Point High School from 21 June to 20 December 2019. 5. From weeks one to nine inclusive of Term One 2020, according to the appellant, he did a four day a week, Monday to Thursday, English block at Picnic Point High School. However, after 14 May 2020, the appellant performed no work until 31 July 2020 when he performed casual work at Menai High School until 19 November 2020. Since that date the appellant has performed no work for the Department. 6. Much of the appellant's two written submissions and the oral submissions he made at the hearing on 6 May 2022 were taken up with the disciplinary issues which led to his name being placed on the NTBE list, about which he was advised on 17 October 2021. The appellant also claimed through the production of various emails, through references to phone calls with senior school staff and through various other matters, such as being asked by a Head Teacher to do a Performance and Development Plan, that he had a "substantial relationship" with the schools where he worked, "more than a day to day Casual…". Determination 1. I have carefully considered and taken into to account all of the material placed before the Commission by the parties as well as the oral submissions made at the hearing of the matter on 6 May 2022. 2. This decision does not deal with the disciplinary issues which led to the appellant's name being placed on the Department's NTBE list. This decision deals only with the question as to whether the appellant has a right of appeal under s 98 of the Act against the decision of the Department to place his name on the NTBE list. The short answer to that question is that he does not have such a right. Placement of a name on the NTBE list is not an appealable decision of the kind listed in s 97(1) of the Act. This Commission has no power under s 100C to order the Department to remove a person's name from the NTBE list. 3. The appellant has attempted to characterise the placement of his name on the NTBE list as a dismissal. It is not, but even if it were, he would still be excluded from pursuing a public sector disciplinary appeal by virtue of s 98(3)(c) of the Act. 4. As at 17 October 2021, when the appellant was advised of Mr Currie's determination to place his name on the NTBE list, the appellant was not engaged by the Department on a casual basis on a regular and systematic basis for a sequence of periods during a period of at least 6 months and could not have had a reasonable expectation of continuing employment with the Department. 5. For s 98(3)(c)(i) and (ii) of the Act to operate in accordance with the clear intendment of the provision, the engagement of an employee on a casual basis on a regular and systematic basis for a sequence of periods during a period of at least 6 months, must have some temporal proximity to the "dismissal" of the employee which is the subject of a public sector disciplinary appeal under s 98(1) of the Act. If it were it otherwise, a dismissed casual employee who had recently been engaged by an employer on an irregular and non-systematic basis, but who had at some time, perhaps even years, in the past, worked for the same employer as a casual employee but on a regular and systematic basis for a sequence of periods during a period of at least 6 months, would have a right of appeal under s 98(1) of the Act. That cannot be the legislative intention behind s 98(3)(c). 6. In this case, the appellant had not been engaged as a teacher on any basis by the Department for a period of 11 months at the time he was advised of the decision to place his name on the Department's NTBE list. 7. In his submissions, the appellant referred to a phone call he received from an unnamed Head Teacher on 15 December 2020 in which, according to the appellant, the Head Teacher said "Your work will be cut off at Menai high school…They will put things on you so you won't mentally be able to work". Subsequently, on 3 February 2021, the appellant was advised that he was subject to a disciplinary investigation into allegations of misconduct. Even if either of these dates was taken to be the date of "dismissal" of the appellant, he would still have no right of appeal against such "dismissal". 8. Between 28 July and 19 November 2020, a period of less than 6 months, the appellant worked on a casual basis at Menai High School. Prior to that he had performed no work for the Department since 14 May 2020, a gap of over 2 months. Prior to 14 May 2020, the appellant's work pattern comprised a mixture of casual engagements and short term temporary contracts as set out at [8]-[9] above. 9. As at 15 December 2020, or 3 February 2021, it could not be said that the appellant was engaged by the Department on a casual basis on a regular and systematic basis for a sequence of periods during a period of at least 6 months and would, but for the "decision" of the Department (whatever that "decision" was – presumably the failure of the Department to provide the appellant with any further work after 19 November 2020) have had a reasonable expectation of continuing employment with the Department. 10. Further, even if 15 December 2020 or 3 February 2021 were taken to be the date of the appellant's "dismissal", because the appellant's Notice of Appeal was not lodged until 12 November 2021, his appeal is outside the 28 day time limit for lodging a disciplinary appeal as set out in s 100B(2) of the Act and the Commission has no discretion to extend that time limit. 11. For the reasons set out above, the appellant's public sector disciplinary appeal must be disallowed. Order 1. I make the following order: The Notice of Appeal – Public Sector Discipline filed by Andrew Molloy in the Office of the Industrial Registrar on 12 November 2021 is disallowed. John Murphy Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2022