Industrial Relations Commission New South Wales Medium Neutral Citation: Secretary of the Department of Education v Williams [2023] NSWIRComm 1098 Hearing dates: 30 August 2023 Date of orders: 5 October 2023 Decision date: 05 October 2023 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir Decision: 1. Leave to appeal is granted in respect of ground 1 of the Appeal and is otherwise refused. 2. The Appeal is dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – whether order of Commissioner at first instance requiring person's name to be removed from "not to be employed list" was beyond power – whether Commissioner erred in finding that allegation of misconduct could not be sustained – whether matters arising on appeal warranted the grant of leave Legislation Cited: Government and Related Employees Appeals Tribunal Act 1980 Pt 3 Div 2, ss 24, 48 Industrial Relations Act 1996 Pt 7 Div 3, ss 91, 97, 98, 100C, 100D, 164A, 188, 191 Teaching Service Act 1980 ss 5A, 7, 44, Pt 4A, ss 93B, 93F Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60 Denise McKay v Department of Family and Community Services (No 2) [2018] NSWIRComm 1069 Douglas v Secretary, Department of Education [2021] NSWIRComm 1044 Francois v Industrial Relations Secretary (Department of Corrective Services) [2019] NSWIRComm 1058 Frank Cunningham and Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) [2017] NSWIRComm 1063 Greig v Director-General, Department of Education and Communities [2013] NSWIRComm 1025 Maritime Services Board v Murray (1993) 52 IR 455 Marroun v State Transit Authority (2017) 96 NSWLR 295; [2017] NSWCA 273 Molloy v Secretary, Department of Education [2022] NSWIRComm 1100 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (2022) 320 IR 249; [2022] NSWSC 1178 Williams v Secretary of the Department of Education [2023] NSWIRComm 1032 Texts Cited: Nil Category: Principal judgment Parties: Secretary of the Department of Education (Appellant) Vita Bernadetta Williams (Respondent) Representation: Counsel: A Britt (Appellant) S Steele SC with S Hanscomb (Respondent) Solicitors: Kennedys Law (Respondent) File Number(s): 2023/00144271 Publication restriction: 1. An order pursuant to s 164A(1)(a) of the Industrial Relations Act 1996, prohibiting: a. the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, or the doing of any other thing that identifies, or may lead to the identification of: i. [name redacted]; ii. [name redacted]; iii. [name redacted]; or iv. [name redacted]. b. the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of any other student or the doing of any other thing that identifies, or may lead to the identification of any other student. 2. An order pursuant to s 164A(1)(c) of the Industrial Relations Act 1996, that publication of evidence given before the Commission or matters contained in the documents lodged with the Commission or received in evidence by the Commission is restricted to the extent that it may lead to the identification of: i. [name redacted]; ii. [name redacted]; iii. [name redacted]; iv. [name redacted]; or v. Any other student. 3. An order pursuant to s 164A(1)(a) of the Industrial Relations Act 1996, that access to the Commission file in the matter of Secretary, New South Wales Department of Education v Vita Bernadetta Williams (file no. 2023/00144271) is restricted such that the parties will be consulted by the Industrial Relations Registrar to determine whether there is any objection before any person (other than the parties) may be granted access. 4. Orders 1, 2 and 3 may be varied or revoked pursuant to s 164A(4) of the Industrial Relations Act 1996 by a single Commissioner. 5. Orders 1, 2 and 3 remain in force for 30 years unless varied or revoked sooner. Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: Williams v Secretary of the Department of Education [2023] NSWIRComm 1032 Date of Decision: 14 April 2023 Before: Commissioner Webster File Number(s): 2020/00282137 DECISION 1. The Secretary of the Department of Education ("Secretary") has applied for leave to appeal and, if leave is granted, appeals from the decision of Commissioner Webster in Williams v Secretary of the Department of Education [2023] NSWIRComm 1032 ("Decision"). The Decision determined proceedings which had been brought by Vita Williams under Pt 7 of the Industrial Relations Act 1996. 2. For the purposes of the appeal it is not necessary to traverse the background to the proceedings at any great length. It suffices to say that Ms Williams was employed in the Teaching Service (as defined s 44 of the Teaching Service Act 1980) as an Assistant Principal at the Hills School. In January 2020 she was informed that an investigation was being conducted into five allegations of misconduct against her. At the conclusion of that investigation, all of the allegations were sustained, with four being determined as amounting to misconduct. On 1 September 2020 Ms Williams was informed that as a consequence of the findings, she was dismissed from the Teaching Service with effect that day. She was also informed that her name was to be placed on the list of persons not to be employed by the Department, which the Secretary is required to maintain under s 7 of the Teaching Service Act ("NTBE List"). 3. In the Decision, Commissioner Webster determined that the Secretary had been unable to prove that Ms Williams had engaged in the misconduct alleged against her. The Commissioner made orders to the effect that: 1. the decision to dismiss Ms Williams from the Teaching Service be set aside; 2. Ms Williams' employment in the Teaching Service be deemed not to have been broken by the decision to terminate her employment; and 3. the Secretary remove Ms Williams' name from the NTBE List. The allegation the subject of the appeal 1. The Secretary challenges the Commissioner's findings only in respect of one of the allegations against Ms Williams which had been found by the Secretary to have been substantiated. That allegation was in the following terms: "Allegation 4 Around mid-Term 2, 2018, while conducting a Wednesday (mentor) meeting with several classroom teachers in your office, you improperly instructed staff in using coercive physical contact towards students when you: a) Demonstrated an unapproved physical technique to apply force to students by pinching or pushing into their upper neck or shoulder area with your thumb or finger if they failed to comply with your direction… b) Told teachers that they 'should not let anyone else see them do this' in respect of the demonstrated physical technique." (Emphasis in original) ("Allegation 4") 1. Commissioner Webster concluded (at [113] of the Decision) that the Secretary had not discharged his onus of establishing that the conduct alleged in Allegation 4 had occurred. That conclusion came after the Commissioner had explored the evidence which had been led by the Secretary in support of Allegation 4. This included affidavit and oral evidence from Angela Corfield, Trisha Dass and Peter Dawson, all of whom were at the relevant time teachers at the Hills School and allegedly present at the meeting referred to in Allegation 4. The Appeal 1. The Secretary seeks leave to appeal and, if leave is granted, appeals from the Decision on the following grounds: "APPEAL GROUNDS 1 The Commission erred in ordering the appellant to remove the respondent's name from the appellant's 'Do Not Employ List' where the Commission had no power to make such an order pursuant to s 100C(2) or 100D of the Industrial Relations Act or otherwise. 2 The Commission erred in failing to properly consider the evidence of Ms Dass and then find that Allegation 4(a) was established on this evidence. 3 The Commission erred in failing to find that the respondent had committed an act of misconduct on the basis of Allegation 4(a). 4 The Commissioner erred in determining whether Allegation 4 was established by considering in the absence of evidence: (a) that as a general proposition it is improbable that people working in the public education system would conduct themselves in this manner, yet alone openly, and in concert with each other and by the of the nature [sic] of the alleged conduct, it would be reasonable to expect that there would be others at the School who would be able to verify the abuse alleged was occurring; and (b) if the respondent had said the things, attributed to her this would not have gone unnoticed by Mr Dawson and Ms Dass and it is inherently unlikely that Mr Dawson and Ms Dass would forget if the Appellant stated in the meeting that they 'should not let anyone see them do this'; (c) if the respondent had said this as a matter of common sense, the respondent would be taking an extraordinary risk making this statement in front of three work colleagues. 5 The Commissioner erred in finding that Allegation 4 was not made out by not accepting the evidence of Mr Dawson." (Emphasis in original) Principles to apply on appeal 1. Pursuant to s 188 of the Industrial Relations Act, an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. 2. The principles governing the granting of leave to appeal were summarised by the Full Bench in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 ("RMS Case") at [10]-[11] and by Walton J in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (2022) 320 IR 249; [2022] NSWSC 1178 at [21]. We will not reproduce those passages. 3. If leave to appeal is granted, an appeal to a Full Bench "is not by way of a new hearing": s 191(1) of the Industrial Relations Act. The Full Bench "cannot merely substitute its decision on the matter but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received": s 191(3). 4. The Decision involved the exercise by Commissioner Webster of the discretion conferred on the Commission by ss 100C and 100D of the Industrial Relations Act. For the appeal to succeed, it is not enough that the Full Bench might have exercised that discretion differently. The Secretary must show that the Commissioner failed to properly exercise the discretion committed to her: RMS Case at [10]. Leave to appeal 1. In his Application for Leave to Appeal and Appeal, the Secretary set out the basis on which he contended that leave to appeal should be granted, as follows: "REASONS WHY LEAVE TO APPEAL SHOULD BE GRANTED 1 The appeal concerns the engagement of a teacher and there is a need for the Commission to give paramount consideration to the protection of children pursuant to s 5A of the Teaching Service Act 1980. 2 The appeal raises issues as to power of the Commission to make orders pursuant to s 100C(2) of the Act and in particular whether the Commission has the power to make an order that the appellant remove the respondent's name from the appellant's 'Do Not Employ List'. 3 The appeal raises issues as to the application of the Briginshaw principles. 4 The appeal raises issues as to whether a Commissioner can rely on their own 'common sense' when determining whether misconduct has been established. 5 The appeal raises questions as whether the Commissioner must consider all of the evidence in order to determine whether misconduct has been established. 6 The appeal raises questions as to what is meant by a complaint of misconduct. 7 All of the above matters are of significance and effect [sic] persons other than parties to this appeal." (Emphasis in original) 1. Ms Williams submitted on appeal that ground 1 of the appeal was a "discrete factual issue which does not have widespread practical application". We do not agree. 2. Ground 1 of the appeal goes to the Commission's powers to make orders in proceedings brought under Pt 7 of the Industrial Relations Act, having regard in particular to the terms of ss 100C(2) and 100D. This is a significant issue that has wider implications for the jurisprudence of the Commission beyond the interests of the immediate parties. For these reasons and having regard to the authorities referred to at [8] above, we have determined that ground 1 of the appeal raises issues of such importance that, in the public interest, leave to appeal should be granted in respect of that ground. 3. For the reasons which follow, however, we are not persuaded that leave should be granted in respect of the remaining grounds of appeal. 4. Grounds 2 to 5 of the appeal relate to Commissioner Webster's findings in respect of Allegation 4. The appeal centred on the facts alleged in par (a) of Allegation 4. At the hearing of the appeal, the Secretary conceded that there was no evidence to support the facts alleged in par (b) of Allegation 4. 5. Distilled to their essence, grounds 2 and 3 of the appeal rest on the contention that the facts alleged in par (a) of Allegation 4 could have been made out on Ms Dass' evidence alone, and that the Commissioner erred "by considering Allegation 4 only through the prism of Ms Corfield's evidence". As Anthony Britt of counsel, who appeared for the Secretary, submitted at the hearing of the appeal: "Commissioner Webster, in her decision, accepts that Ms [Dass] was an honest witness. Commissioner Webster, in her decision, sets out the evidence of Ms [Dass] at its highest. As we say in our submissions in reply, we don't make a submission that the [C]ommissioner erred in the findings that she made in respect of Ms [Dass'] evidence. In essence, as we say, we embrace those findings. The error of the [C]ommission is that having made those findings as to Ms [Dass'] evidence the [C]ommission then failed to consider whether, on the basis of that evidence, some of the particulars of complaint 4 were made out, and in particular [4(a)]. And the [C]ommission should have done that, and then should have considered whether those particulars as made out on the evidence of Ms [Dass] amounted to misconduct, and that is what we say she is required to do…" 1. On appeal, Ms Williams submitted that the Secretary was advancing a case that was not run below – that is, the Secretary did not squarely put to Commissioner Webster that Allegation 4 might be maintained solely on the basis of Ms Dass' evidence and that she should consider that in her determination of the matter. There is force to that submission. 2. In the proceedings before Commissioner Webster, the Secretary placed most reliance on the evidence of Ms Corfield, as supported (it was contended) by the evidence of Ms Dass and Mr Dawson. This can be seen in the Secretary's written submissions in the proceedings below, and in the following contentions advanced by Mr Britt in his closing oral submissions to the Commissioner: "Commissioner, you have to ask yourself what is the motive for Ms [Corfield] to come forward with what the appellant says are false and baseless allegations and then submit herself to a difficult process in being interviewed, preparing for a hearing, attending the hearing and being cross-examined? In relation to allegation 4, the central features of her complaint against the appellant are actually supported by the evidence of Mr Dawson and Ms Dass as to the demonstration of inappropriate holds on Ms [Corfield]." "…the allegations made by Ms [Corfield] in relation to allegation 4 is supported, we say, by the evidence of both Ms Dass and Mr Dawson, and there is no basis for this Commission not to accept the evidence of those three individuals." (Emphasis added) 1. The only instance that we have identified of the suggestion being made that Allegation 4 might be sustained in the absence of Ms Corfield's evidence is in the following exchange between Commissioner Webster and Mr Britt: "COMMISSIONER: Correct, but focusing on allegation 4, you're specifically asking me to accept the version of events of one of your three witnesses. BRITT: Yes, we are, but it's open to you to find that matters were misconduct and not accept all of Ms [Corfield's] evidence; that is, the hold, the pinch, the grab, the pressure point pinch. COMMISSIONER: What would happen if I made a finding that something happen[ed] but I can't really know exactly what that is because I have three different versions of events from your witnesses as to what happened? Given Marroun and the fact that my job is to go into the shoes of the decision maker and determine if the allegations as they were made occurred? BRITT: The allegation is these are the matters and they're a breach of the code of conduct. COMMISSIONER: Yep but that's very broad though, right? BRITT: It is but that's the allegation." (Emphasis added) 1. However, whether or not the Secretary positively advanced the proposition that Allegation 4 could be made out on Ms Dass' evidence alone, a fair and proper reading of the Decision reveals that Commissioner Webster considered that issue. It is apparent from [60]-[70] of the Decision that the Commissioner considered closely and carefully the evidence of Ms Dass, and the Secretary's submissions as to the effect of that evidence. Having done so she concluded: "93. Neither Mr Dawson, nor Ms Dass gave evidence that corroborated Ms Corfield's account of the meeting. As stated above, I am of the view that Ms Dass was a truthful witness…. She was candid in stating that she did not recall the demonstration until she was approached by Ms Corfield about it. The high point of Ms Dass' evidence in support of the demonstration allegation was that in the context of discussing how she could manage a difficult student, the appellant said to her, 'You could do this' and she then demonstrated using two of her fingers and applying pressure into the shoulder. Although she gave evidence that she felt the demonstrated technique was 'wrong' she did not explain why or how she formed that belief. Her evidence under cross-examination was that she would not have thought of the demonstration again, were it not for Ms Corfield raising it… 94. Ms Dass' evidence was that the appellant did not demonstrate this on the other participants – just her… She did not give evidence of the physical contact causing her pain or suggest that the appellant was demonstrating a process of applying 'coercive physical contact' to manage a child's behaviour." (Emphasis in original) 1. Allegation 4 contended that Ms Williams "improperly instructed staff in using coercive physical contact towards students" by engaging in the conduct described in pars (a) and (b). It is clear to us that in referring to the "high point" of Ms Dass' evidence at [93] and determining that this evidence did not establish that Ms Williams demonstrated "a process of applying 'coercive physical contact' to manage a child's behaviour" at [94] the Commissioner had not only turned her attention to the terms of Allegation 4 but had concluded that it could not be made out on Ms Dass' evidence. 2. It follows that grounds 2 and 3 of the appeal disclose no error. 3. It is convenient to deal with ground 5 of the appeal next. That ground asserts that Commissioner Webster erred by not accepting the evidence of Mr Dawson to find that Allegation 4 had been made out. In short, the Secretary's contention is that Mr Dawson's evidence corroborated, and was corroborated by, that of Ms Dass. Consequently, it should have been accepted by Commissioner Webster as demonstrating that the conduct described at par (a) of Allegation 4 had been made out. 4. Commissioner Webster, as she had done in respect of Ms Dass' evidence, extensively analysed Mr Dawson's evidence at [71]-[84] of the Decision. At [78], the Commissioner described Mr Dawson's evidence as being that "restraints were shown in the context of discussing how to deal with being attacked by a student", although he did not recall what specific restraints were shown. 5. As she was required to do, Commissioner Webster considered this evidence in light of the allegation against Ms Williams. This is made clear in the passage from the transcript of proceedings before the Commissioner reproduced at [19] above. Further, in the Decision the Commissioner observed: "88. The respondent conceded there were differences between the recollections and evidence of Ms Corfield, Ms Dass and Mr Dawson. However, it was submitted that the Commission should be satisfied that the appellant did demonstrate 'certain holds to be used on students as a way to control them' and the Commission should find made out [Allegation 4]…The findings the respondent submitted the Commission should make are not the same as the findings required to establish [Allegation 4]." 1. The conclusion that the evidence did not support a finding of the misconduct established by the employer against Ms Williams in Allegation 4, and that this alleged misconduct was reframed in the proceedings before her, was one that was open to Commissioner Webster. The Commissioner correctly identified that to the extent that Mr Dawson was able to recollect Ms Williams demonstrating a "restraint", it was not of the kind alleged in par (a) of Allegation 4. 2. It follows that ground 5 discloses no error. 3. Ground 4 of the appeal challenges the following observations of the Commissioner in the Decision: "[51] Ms Corfield demonstrates a lack of objectivity in the PES Complaint. For example, Ms Corfield imports her assumption of the reasons for the appellant's actions in the context of preparing a report for a psychiatrist about a student, as though it were fact. If the content of the PES Complaint were true in its entirety, Ms Corfield was effectively blowing the whistle on wide-spread and systemic abuse of vulnerable children at the School. The complaint alleges abuse was known by the Principal and Deputy Principal of the School, who were not acting on allegations when these were brought forward. On its face, the allegations seem inherently unlikely, and worthy of close scrutiny. As a general proposition it is improbable that people working in the public education system would conduct themselves in this manner, yet alone openly, and in concert with each other. By the of the nature of the alleged conduct [sic], it would be reasonable to expect that there would be others at the School who would be able to verify the abuse alleged was occurring. … [97] It is inherently unlikely that Mr Dawson and Ms Dass would forget if the appellant stated in the meeting that they 'should not let anyone see them do this' in respect of the alleged demonstrated technique. The remark would be memorable and alarming. The comment points to the appellant knowing that what she was demonstrating was inappropriate and wrong, such that it needed to be hidden from the view of others. As a matter of common sense, the appellant would be taking an extraordinary risk making this statement in front of three work colleagues." (Emphasis in original) 1. The Secretary submitted that "[w]hilst each of these matters are a basis as to why the Commission should apply a Briginshaw approach to a consideration of the evidence, they are not a basis for finding that the alleged misconduct in Allegation 4 is not made out". He further contended that "[i]n failing to properly consider the evidence and then to have regard to extraneous matters such as those at [51] and [97] of the Decision, the Commission fell into error in considering whether Allegation 4(a) was established". 2. The Secretary's reference only to par (a) of Allegation 4 is significant. It calls into question the utility of the appeal in respect of grounds 4(b) and (c) of the appeal, both of which seem to relate to the matters alleged in par (b) of Allegation 4, which the Secretary conceded could not be made out on the evidence. 3. That aside, at [51] and [97] of the Decision, the Commissioner used the term "inherently unlikely". It is clear to us that in doing so she was referencing an extract from the decision of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 which is reproduced as [23] of the Decision. In that extract, his Honour observed that "[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal". At [51] and [97] of the Decision, Commissioner Webster was explaining that she would consider the evidence led by the Secretary in respect of Allegation 4 by reference to the guidance in Briginshaw. She proceeded to do so extensively and in detail. 4. Read in the context of the Decision as a whole, there is no basis to assert that the Commissioner considered that the matters identified by her at [51] and [97] of the Decision in and of themselves warranted a finding Allegation 4 had not been made out, nor that she decided the matter on that basis. For the reasons set out in this decision in respect of grounds 2, 3 and 5 of the appeal, we do not accept the contention that the Commissioner "failed to properly consider the evidence". 5. Having regard to these matters, and other than in respect of ground 1 of the appeal, we are not persuaded that the reasons for which leave to appeal ought to be granted, as set out in the Application for Leave to Appeal and Appeal, have been established. 6. In relation to the Secretary's reliance on s 5A of the Teaching Service Act, we acknowledge that the need to give paramount consideration to the protection of children would be a relevant consideration were we to be satisfied that Commissioner Webster erred in finding that Allegation 4 had not been made out. However, that is not the case. Ground 1 1. In the proceedings before Commissioner Webster, Ms Williams sought an order that her name be removed from the NTBE List. The Secretary contended that the Commission did not have the power to make such an order. 2. For context, ss 100C and 100D of the Industrial Relations Act relevantly provide as follows: 100C Decisions with respect to appeals … (2) The Commission, in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. … 100D Orders by Commission with respect to payment of salary and continuity of employment (1) Without limiting section 100C, if the Commission decides to allow a disciplinary appeal, the Commission may: … (b) order the employer to pay the employee an amount stated in the order that does not exceed the remuneration the employee would, but for the decision of the employer, have received from the employer, and (c) order that any period of employment of the employee with the employer is taken not to have been broken by the decision of the employer. (2) Any such order by the Commission must be given effect to by the employer. … 1. In the Decision, Commissioner Webster observed: "178. There is some ambiguity in the way in which ss 100C and 100D are drafted. Section 100C(2) refers to 'decisions' that may be made, while s 100D speaks to 'orders' by the Commission 'with respect to payment of salary and continuity of employment'. A decision to place a person on the NTBE List is not a disciplinary decision from which a person can appeal pursuant to Pt 7 of the Act: see s 97(1) and Molloy v Secretary, Department of Education [2022] NSWIRComm 1100. However, s 100D(1) is express in its terms that it does not intend to limit s 100C, which in my view, is indicative that by s 100C, the legislature intended that the Commission has power to make orders with respect to a public sector disciplinary appeal. 179. The intention of the Act is to provide a framework for the conduct of industrial relation that is fair and just. I consider that the respondent placed the appellant's name on the NTBE List as a direct consequence of the respondent's dismissal. Given my finding that the appeal from the decision should be upheld, the order sought will do justice between the parties in reversing the consequence of the respondent's decision. While the respondent will be required to employ the appellant by operation of the appeal being upheld, the order sought is directly ancillary or incidental to the order upholding the appeal. It would be contrary to the clear intention of the Act, to repose the Commission with the jurisdiction to conduct public disciplinary appeals, if it could not make an order requiring the respondent to remove the appellant's name from the NTBE List. 180. As a matter of discretion, I will make the order requiring the appellant's name to be removed from the NTBE List because it is necessary to do so to do justice between the parties, given the findings I have made in this decision. Whilst the effect of upholding the appeal is that the appellant will be employed by the respondent, without the removal of the appellant's name from the NTBE List, the effects of the respondent's decision may continue to impact upon her future employment with the respondent." 1. On appeal, the Secretary submitted: "35. Section 100D provides no source of power to make an order. Section 100D is not a separate power given to the Commission to make any general orders but to make three particular orders only. 36. Therefore any source of power needs to be found in s100C. Section 100C(2) in relation to a disciplinary appeal provides that the Commission, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. Any other 'decision' needs to be in respect to the appeal which in this case was the dismissal of the Respondent. This section does not give the Commission a general power to make orders/decisions other than what was appealed i.e. the dismissal. That is, this subsection gives the Commission the power to make facilitative orders that implement any order made in allowing or disallowing the appeal. 37. Section 100C(2) confers powers on the Commission in relation to a disciplinary appeal and is not power at large. The powers in s 100C(2) must be exercised in deciding the disciplinary appeal before the Commission. The subject matter of the appeal, and thus the matter to be determined by the Commission, is the decision of the public sector employer to take specific disciplinary action. The powers conferred on the Commission were therefore limited to the exercise of that jurisdiction and to the disposal of the appeal. There is no legitimate reading of s 100C(2) which expands the jurisdiction of the Commission. 38. If this were not correct it would be open to the Commission to dismiss an appeal but then also order the Department to remove an appellant's name from the NTBE List by reason of the fact that the respondent placed the appellant's name on the NTBE List as a direct consequence of the dismissal. 39. Further, the Commission does not possess any inherent powers to make substantive orders to remedy conduct the subject of proceedings under Part 7 of Chapter 2 of the Act. Rather, the Commission is confined in proceedings under Part 7 of Chapter 2 of the Act to the remedies, or powers of enforcement, set out in s 100C and 100D of the IR Act. 40. Further s 100C(2) is not a general source of power enabling the Commission to do whatever it thinks is fair and/or reasonable but limited to the appealable decision the subject of proceedings. The objects of the Act provide a framework for the conduct of industrial relation that is fair and just is not a source of power to make any orders [sic]. 41. The Commission fell into error in its finding at [180] of the Decision." 1. In his oral submissions on appeal, Mr Britt further contended that the removal of Ms Williams' name from the NTBE List was not required for her to be restored to her employment. That would be the necessary outcome of her disciplinary appeal being upheld. However, Ms Williams' name would remain on the NTBE List unless she successfully applied to have it removed. It was said that this would not impede her continuing employment, including transferring to other positions, but might prevent her future employment if for any reason she left the Teaching Service and later sought to return to it. 2. Ms Williams submitted on appeal that the decision made on 1 September 2020 to dismiss her from the Teaching Service and to place her name on the NTBE List constituted a single decision. It followed that were the disciplinary appeal to be allowed, all of the consequences of that decision had to be reversed. 3. In her oral submissions on appeal, Jodi Steele SC who appeared for Ms Williams, submitted that once the Commission's jurisdiction had properly been invoked under s 98 of the Industrial Relations Act, the powers conferred by s 100C(2) should be read beneficially and broadly. These powers would extend to an order for an employee's name to be removed from the NTBE List as "the whole purpose of bringing an appeal and succeeding on an appeal is to effectively put the employee back in the same position as if their employment had not been terminated". Ms Steele likened such an order to those expressly provided for in s 100D(1)(b) and (c). 4. An "appealable decision" for the purposes of Pt 7 of the Industrial Relations Act is defined in s 91(1) as a decision of the kind referred to in s 97(1). The latter section does not include a decision to place a person on the NTBE List. It follows that the Commission would have no jurisdiction to deal with an appeal brought solely against such a decision: Francois v Industrial Relations Secretary (Department of Corrective Services) [2019] NSWIRComm 1058 at [70]. 5. However, once the Commission's jurisdiction is properly invoked, the Commission's powers under s 100C(2) are enlivened. The question which arises is whether the power to make "such other decision with respect to the appeal as it thinks fit" extends to permit an order requiring the Secretary to remove a person's name from the NTBE List. 6. As observed by Chief Commissioner Kite in Denise McKay v Department of Family and Community Services (No 2) [2018] NSWIRComm 1069 at [30], s 100C(2) "clearly vests a broad discretion in the Commission". Consistent with that view, in Greig v Director-General, Department of Education and Communities [2013] NSWIRComm 1025 Commissioner Newall expressed a tentative view (at [27]) that, given the terms of s 100C(2) of the Act, the Commission was not confined to the "punishments" for which s 93B of the Teaching Service Act provide. 7. To a similar effect, in Frank Cunningham and Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) [2017] NSWIRComm 1063 Commissioner Seymour observed: "128. In my view, in making 'such other decision…as it sees fit' under s 100C(2) of the IR Act, the Commission is not restricted in the exercise of its discretion by s 97 of the IR Act, or by extension of reasoning s 68 of the GSE Act. The express words of s 100C(2) are broad and the Commission's discretion fettered only by the requirement that the Commission make such decision 'as it thinks fit' in the context of a hearing de novo. I also consider that interpreting s 100C(2) restrictively would prevent the Commission properly carrying out its protective function in public sector disciplinary appeals." 1. Despite the apparent breadth of the terms of s 100C(2), the Secretary drew our attention to two cases of the Commission which cast doubt on the provision empowering the Commission to order the removal of a person's name from the NTBE List. In Douglas v Secretary, Department of Education [2021] NSWIRComm 1044 ("Douglas") Commissioner Murphy expressed the view that such relief "would also appear to be beyond the Commission's power, although a reinstatement order would presumably override the Department's NTBE list" (at [27], our emphasis). 2. In Molloy v Secretary, Department of Education [2022] NSWIRComm 1100 Commissioner Murphy observed: "24. 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." 1. With respect, we disagree that no power exists under s 100C(2) to order that a person's name be removed from the NTBE List. It is an order that the Commission is empowered to make in certain circumstances, but which we emphasise is not one which the Commission has the power to make "at large". Our reasons for this view follow. 2. The Commission's jurisdiction under Pt 7 of the Industrial Relations Act was considered in Marroun v State Transit Authority (2017) 96 NSWLR 295; [2017] NSWCA 273 ("Marroun"). The Court of Appeal, applying Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60, observed: "35. Before turning to the manner in which the Commission purported to exercise its powers, it is convenient to consider further what follows from the characterisation of the process identified in Calman. In colloquial terms, an appeal by way of fresh hearing means that the appellate body 'stands in the shoes of' the original decision-maker. Where there is, as here, a specific charge or complaint before the employer, which has resulted in particular disciplinary action, it will be necessary for the Commission to consider that charge or complaint and, if it be upheld, determine what disciplinary action should be imposed. Generally, it is assumed that the appellate body has the same powers as the original decision-maker, no more and no fewer. One basis for that inference is the use of the term 'appeal' to describe what is in substance a fresh hearing. … 47. It is correct to say that s 100C(2) confers powers on the Commission in relation to a disciplinary appeal. Those powers are not at large; they must be exercised in deciding the disciplinary appeal before the Commission. The subject matter of the appeal, and thus the matter to be determined by the Commission, is the decision of the public sector employer to take specific disciplinary action. In Schoeman, the Public Sector Act, s 46(2), was unambiguous and unequivocal. It conferred power on the department head to take disciplinary action if the officer had engaged in misconduct. The employer had no power to take disciplinary action unless the officer had engaged in misconduct. It was the exercise of that power which was the subject of a disciplinary appeal and thus the subject matter with respect to which 'jurisdiction' was conferred on the Commission. The powers conferred on the Commission were therefore limited to the exercise of that jurisdiction and to the disposal of the appeal. There is no legitimate reading of s 100C(2) which expands the jurisdiction of the Commission. 48. To hold otherwise is inconsistent with the reasoning in Calman, where the High Court succinctly identified the function of the Tribunal hearing an appeal as 'a fresh exercise of administrative power'. It is not the exercise of a different power for the first time; so much is inherent in the description of the function as an 'appeal'." (Emphasis in original, footnote omitted) 1. Part 4A of the Teaching Service Act is titled "Management of conduct and performance". Section 93F relevantly provides: 93F Dealing with an allegation of misconduct (1) If an allegation is made to the Secretary that an officer may have engaged in any misconduct, the Secretary may do either or both of the following: (a) deal with the allegation as a disciplinary matter in accordance with the procedural guidelines, (b) take remedial action with respect to the officer. (2) After dealing with an allegation of misconduct as a disciplinary matter in accordance with this Part and the procedural guidelines, the Secretary may, if the Secretary is of the opinion that the officer has engaged in any misconduct, decide to take disciplinary action with respect to the officer. … 1. Each of the terms "disciplinary action" and "remedial action" are defined in s 93B(1) of the Teaching Service Act. It is not necessary to reproduce those definitions; it suffices to observe that neither contemplate a person's name being placed on the NTBE List. Such an outcome would be as a consequence of s 7(1)(e) of the Teaching Service Act, which provides that one of the Secretary's functions is to "prepare and maintain a list of persons who the Secretary determines are not to be employed in the Teaching Service". 2. To adopt the language of Marroun, the Commission "stands in the shoes of" the original decision-maker, with "the same powers as the original decision-maker, no more and no fewer". The position advanced by the Secretary on appeal was that, on the reasoning in Marroun, the relevant powers of the original decision-maker which were available to Commissioner Webster were those arising under s 93F of the Teaching Service Act. That is, that s 100C(2) of the Industrial Relations Act empowered her to allow the appeal (without making any other order), to disallow the appeal, or to allow the appeal but order a different form of "disciplinary action" and/or "remedial action" (as defined in s 93B(1) of the Teaching Service Act) to that which the Secretary had sought to impose on Ms Williams. 3. We do not accept that the Commission's powers under s 100C(2) of the Industrial Relations Act are so constrained. 4. The Industrial Relations Act first allowed for public sector disciplinary appeals from 1 July 2010, with the enactment of Pt 7 Div 3 of the Industrial Relations Act. Prior to that time, such appeals were governed by the (now-repealed) Government and Related Employees Appeals Tribunal Act 1980 ("GREAT Act"). Part 3 Div 2 of that Act was titled "Disciplinary Appeals". Section 24 allowed for appeals to the Tribunal against certain decisions, which are relevantly the same as those appearing in s 97(1) of the Industrial Relations Act. Section 48(2) of the GREAT Act provided that the Tribunal "in relation to an appeal under section 24, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit". The coincidence in language between s 48(2) of the GREAT Act and s 100C(2) of the Industrial Relations Act is apparent. 5. In Maritime Services Board v Murray (1993) 52 IR 455 ("Maritime Services Board") the Court of Appeal considered the provisions of the GREAT Act. In relation to the words "'make such other decision with respect to the appeal as it thinks fit" appearing in s 48(2), Kirby P, with whom Handley and Sheller JJA agreed, observed (at 463-464): "The width of this expression derives from the phrase 'with respect to'. These are words of the widest connection. So much was observed by this Court in Smith v Allen (Secretary, Treasury of New South Wales) (1993) 48 IR 469 (NSWCA) at 477-478: 'The Tribunal has been afforded the differential power in respect of disciplinary appeals when compared to promotion appeals. Under s 48(2) of the Act, Parliament has provided the Tribunal with the additional power to "make such other decision with respect to the appeal as it thinks fit". The words "with respect to" are words of the widest possible connection. See eg Grannall v Marrickville Margarine Pty Limited (1955) 93 CLR 55. 77; Warner v Public Service Board of New South Wales (1988) 13 NSWLR 263 (CA) 268; Henderson v Pioneer Homes Pty Limited (1980) 20 ALR 597 (FFC), 610f. They should not be narrowly construed. … Those words are more than sufficient to allow the Tribunal to make other decisions which provide for eg the deployment of the employee in question pending the making of a lawful "decision" by the primary decision-maker and any appeal which might then be brought against that decision by the Head of Department if still disaffected.' For like reasons the words are wide enough, in the appropriate case, to sustain an order that the dismissed employee be reinstated. That this is so is confirmed by provisions of s 23(1)(f) of the Act. That paragraph makes it clear that disciplinary appeals were to include appeal against a decision to dismiss an employee. A simple order allowing the appeal would leave the employee dismissed. It is doubtless for that reason that, in disciplinary appeals, the Tribunal was given a wider mandate and provided with larger powers. Those powers could not easily be exercised without regard to events which had occurred since the dismissal. Therefore, to the extent that the Tribunal referred to those events, in determining how it would make its 'other decision', it committed no error. …" 1. A part of this extract was reproduced in Marroun at [55]. At [56] the Court of Appeal referred to the reasoning in Maritime Services Board as having "identified the power to make 'any other decision it thought fit' as providing for consequential orders to give effect to the basis on which the appeal has been allowed". 2. Commissioner Webster found at [179] of the Decision that the Secretary placed Ms Williams' name on the NTBE List "as a direct consequence of" her dismissal. That finding was not challenged in the Secretary's appeal, although at the hearing of the appeal the Secretary contended that the placement of Ms Williams' name on the NTBE List was a result of the findings of misconduct, not her dismissal. 3. In any event, Commissioner Webster determined that Ms Williams had not engaged in the misconduct which had been alleged against her. She set aside the Secretary's decision to dismiss Ms Williams from the Teaching Service. She ordered that Ms Williams' employment with the Department be deemed not to have been broken by the Secretary's decision to dismiss her. The effect of the Commissioner's orders was to restore Ms Williams to her employment. 4. In light of the Commissioner's findings and orders, there is an inherent illogicality in Ms Williams' name remaining on the NTBE List. She will be employed in the Teaching Service despite appearing on a list required to be kept under the Teaching Service Act declaring that she is not be so employed. 5. We accept Ms Steele's submissions that there is some correlation between an order requiring a person's name to be removed from the NTBE List and the orders permitted by s 100D(1)(b) and (c) of the Industrial Relations Act, in that they permit an employee to be restored to the position they would have been in had their employment not been terminated. We do not accept Ms Steele's contention that this is "the whole purpose of bringing an appeal and succeeding on an appeal", having regard, in particular, to the fact that any orders are at the discretion of the Commission. We do, however, consider that having her name on the NTBE List is a blemish on Ms Williams' record, with a potentially significant impact, for which there is no justification. 6. In light of these matters, we consider that Commissioner Webster's order that Ms Williams' name be removed from the NTBE List was a "consequential order to give effect to the basis on which the appeal has been allowed", to adopt the language of Marroun. We do not accept the Secretary's contention that the order was beyond power. 7. It follows that we are not persuaded that ground 1 of the appeal discloses error in the Decision. 8. We emphasise that this finding is not to suggest that the Commission's powers under s 100C(2) are "at large". It is clear from Marroun that this is not the case. 9. In his written submissions on the appeal, the Secretary submitted that were s 100C(2) not confined in the manner for which he contended, "it would be open to the Commission to dismiss an appeal but then also order the Department to remove an appellant's name from the NTBE List by reason of the fact that the respondent placed the appellant's name on the NTBE List as a direct consequence of the dismissal". He further submitted that if the Commission could order a person's name to be removed from the NTBE List, "nothing would stop the Commission in future proceedings ordering an employer to public[ly] apologise to an employee, to pay the employee damages for medical expenses or injuries arising from a dismissal and to transfer an employee to a different role etc.". 10. The short answer to these submissions is that such orders would not be "consequential" in the sense used in Marroun. We have difficulty envisaging any circumstances in which the Commission could properly and consistent with our reasoning above order the removal of a name from the NTBE List where the appeal was otherwise disallowed. 11. This decision does not establish a foundation that in every case in which a person's name has been placed on the NTBE List the Commission is empowered under s 100C(2) to order that the name be removed. Whether such an order can be made will depend on the basis on which the appeal is allowed. 12. At the same time, we do not intend to delimit the Commission's powers under s 100C(2) or to attempt to articulate an exhaustive list of the orders which the provision might empower the Commission to make. The terms of the legislation speak for themselves. The power that they confer on the Commission in any given case will depend on the circumstances and outcome of that case. Orders 1. For the reasons set out above, we make the following orders: 1. Leave to appeal is granted in respect of ground 1 of the appeal and is otherwise refused. 2. The appeal is dismissed. ********** 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: 05 October 2023