Industrial Relations Commission New South Wales Medium Neutral Citation: Dey v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Community Services) (No 3) [2023] NSWIRComm 1111 Hearing dates: 3 November 2023 Date of orders: 3 November 2023 Decision date: 03 November 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: (1) Radhiga Dey is to be reinstated to the position of Senior Caseworker, Case Management and Parental Responsibility Team based in Parramatta, on terms not less favourable than those that would have been applicable but for her dismissal, effective from 23 November 2023. (2) Ms Dey's employment with the respondent is to be taken as not having been broken by virtue of her dismissal. (3) Ms Dey shall be paid remuneration equal to the amount she would have received but for being dismissed on and from 16 March 2022, through to 22 November 2023, less any amounts she has earned for the provision of her personal services during that period but not including money received for being a foster carer. (4) I direct Ms Dey to provide documentary evidence to the Respondent of the amounts she has earned for the provision of her personal services during the stated period, not including money received for being a foster carer, by no later than 10 November 2023. (5) I direct the Respondent to provides its assessment of the money to be paid to Ms Dey pursuant to Order 3 by not later than 17 November 2023. (6) I direct Ms Dey to respond to the Respondent's assessment by no later than 22 November 2023. (7) I direct the Respondent to pay the amounts ordered to be paid pursuant to Order 3 by no later than 28 November 2023. (8) I grant the parties liberty to apply to have the matter relisted in the event there is a dispute about the quantum to be paid to Ms Dey pursuant to Order 3 by no later than 23 November 2023. (9) If no application to re-list the matter is made on or before 23 November 2023, the Application will stand dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal – Granting of relief pursuant to s 89 of the Industrial Relations Act 1996 (NSW) Legislation Cited: Evidence Act 1995 (NSW) Government Sector Employment Act 2013 (NSW) Industrial Relations Act 1996 (NSW), s 89 Long Service Leave Act 1995 (NSW) Cases Cited: Dey v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Community Services) (No 2) [2023] NSWIRComm 1094 Director-General, NSW Health Department v Industrial Relations Commission of New South Wales [2010] NSWCA 47; 77 NSWLR 159 Category: Consequential orders Parties: Radhiga Dey (Applicant) Industrial Relations Secretary on behalf of the Department of Communities and Justice (Community Services) (Respondent) Representation: Applicant (Self-represented) L Molenaar (Respondent) File Number(s): 2022/268473 Publication restriction: Nil EX TEMPORE DECISION (REVISED FROM TRANSCRIPT) 1. On 11 September 2023, I delivered my substantive decision in respect of the applicant's claim for relief for unfair dismissal: Dey v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Community Services) (No 2) [2023] NSWIRComm 1094 (Decision). 2. I determined that the applicant's dismissal by the respondent had been harsh, unreasonable and unjust and indicated that I proposed to grant relief pursuant to s 89 of the Industrial Relations Act 1996 (NSW). 3. The applicant had sought re-employment in another public sector agency. However, for the reasons set out in my Decision, I indicated I did not consider that this was an order I could make. 4. In the circumstances, at [219] of the Decision, I said, "I propose to allow the parties an opportunity to confer and, if need be, file further evidence and submissions as to the appropriate remedy. Failing the parties reaching agreement or applying for different relief, I propose to make an order that Ms Dey be reinstated, that her employment be regarded as continuous and that she be paid remuneration to reflect the amount she would have received but for being dismissed, less any amount she has earned for the provision of her personal services from the period she was dismissed." 1. I made the following orders: 1. I direct the parties to confer on remedy in light of these reasons. 2. The parties are directed to advise the Commission by no later than 21 September 2023 whether agreement on remedy has been reached or whether the parties wish to be heard further in relation to remedy. 3. If the parties reach agreement as to remedy they should submit short minutes of order which I may make in chambers. 4. If the parties wish to be heard further in relation to remedy, I will list the matter for directions. 5. If the parties do not advise the Commission of their intentions pursuant to Order 2, I will make final orders in chambers as indicated in paragraph [219]. 1. Unfortunately, the parties were unable to reach agreement and the matter was listed for directions before me on 11 October 2023. 2. Pursuant to my directions, the respondent filed a statement of Mr Steven Doran dated 25 October 2023 and an outline of the respondent's position on remedy on 25 October 2023. The applicant filed her outline of applicant's position on remedy on 1 November 2023. 3. The matter came before me today for the making of final orders. 4. The statement of Mr Doran was admitted into evidence without objection. The outline of applicant's position on remedy contained a mixture of evidence and submissions. I admitted the outline into evidence on the basis that I would give limited weight to matters contained within the document which would not be admissible pursuant to the provisions of the Evidence Act 1995 (NSW). The Parties' Positions 1. The evidence shows that following the delivery of the Decision the applicant engaged a solicitor to assist her with respect to suitable final orders. Initially, the applicant made enquiries as to whether she could be re-employed in another suitable role within the Department of Communities and Justice (DCJ). Discussions ensued and the parties sought and obtained an extension of time in which to inform me whether or not agreement had been reached in respect of final orders. 2. On 18 October 2023, the respondent offered to return the applicant to the role of Senior Caseworker, Case Management and Parental Responsibility Team based in Parramatta, being the role she was performing before her dismissal. 3. The evidence discloses that this is the first time the respondent unequivocally offered to reinstate the applicant to this position at this location. The evidence also establishes that the respondent delayed in respect of agreeing to reinstate the applicant to her previous role at the same workplace and, suggests that at one stage, the respondent's Senior Adviser, Employee Relations wrongly suggested that the applicant could not be employed and remain a foster carer. The employer strongly refutes that suggestion. 4. The applicant states in her outline that reinstatement to the role of Senior Caseworker, Case Management and Parental Responsibility Team based in Parramatta is what she seeks. However, it seems because of various things that were said in communications between the parties during the period from my Decision to 18 October 2023, including that she needed to cease being a foster carer and because of the circumstances of her dismissal, the applicant also seeks a period of respite to recover from the process and to return to employment with the respondent in the second week of February, as she has planned to visit her parents overseas from 29 November 2023 to 30 January 2024. Consideration 1. There is now no dispute that prior to her dismissal the applicant was employed as a Senior Caseworker, Case Management and Parental Responsibility Team based in Parramatta. The respondent has no objection to her being reinstated to that position and has indicated that there is no impediment to the applicant being reinstated with effect from 23 November 2023. This being the case, I propose to make an order to this effect pursuant to s 89(1) of the Industrial Relations Act. 2. While I have the power under s 89(8) of the Industrial Relations Act to make an order for reinstatement on such terms and conditions as I may determine, it is not a power to enable the Commission to do whatever it thinks is fair and/or reasonable, or to impose conditions the basis for which are not well established on the evidence: Director-General, NSW Health Department v Industrial Relations Commission of New South Wales [2010] NSWCA 47; 77 NSWLR 159 at [23] (Spigelman CJ, Tobias JA and Handley AJA agreeing). 3. I do not propose to impose any term or condition on the applicant's reinstatement. 4. This is because the applicant has not led any medical evidence to support a view that she is not ready, willing and able to return to work. 5. The material before me indicates only that the applicant would prefer not to work until February 2024, in order to recover from the litigation process, including in relation to matters that occurred during negotiations with the respondent following my Decision. 6. Even if I accept that the respondent was slow to confirm that she would be reinstated to the role she enjoyed before her dismissal, and wrongly suggested to her that she could not be employed by DCJ and remain a foster carer, I do not consider this would justify my interfering with the respondent's right, as an employer, to manage the applicant's leave as it sees fit. This is a consequence of being employed. 7. While the applicant did indicate in her outline and in her oral submissions today that she has lost a degree of trust in the respondent, she did not ultimately submit that this made reinstatement impracticable and neither did the respondent. 8. As indicated in my decision, I propose to make an order that the applicant be paid remuneration to reflect the amount she would have received but for being dismissed, less any amount she has earned for the provision of her personal services during the period she was dismissed, but not including any money she has received as a foster carer. 9. The evidence in the substantive matter showed that the applicant was due to return to work from extended unpaid leave on 16 March 2022 and the applicant confirmed this was the case this morning. I consider this is the date from which she is entitled to remuneration. 10. For the reasons I have outlined, I make the following orders: 1. Radhiga Dey is to be reinstated to the position of Senior Caseworker, Case Management and Parental Responsibility Team based in Parramatta, on terms not less favourable than those that would have been applicable but for her dismissal, effective from 23 November 2023. 2. Ms Dey's employment with the respondent is to be taken as not having been broken by virtue of her dismissal. 3. Ms Dey shall be paid remuneration equal to the amount she would have received but for being dismissed on and from 16 March 2022, through to 22 November 2023, less any amounts she has earned for the provision of her personal services during that period but not including money received for being a foster carer. 4. The application is otherwise dismissed. Addendum 1. What is set out above constitutes a record of my ex tempore decision in respect of the relief to be granted to the applicant pursuant to s 89 of the Industrial Relations Act. 2. After making the above orders, both parties made further applications. The applicant stated that at the time she was dismissed her long service leave was paid out and she applied to have her long service leave "returned". This would involve the applicant having to repay the amount paid to her on her dismissal in respect of long service leave and to have such leave 're-credited' to her. The respondent, meanwhile, sought further directions "for complete clarity and avoidance of disputes" in respect of the payment required by Order 3. 3. I briefly heard from both parties in respect of each application. It became apparent during those exchanges that the leave to which the applicant referred was a combination of both long service leave, which is governed by the Long Service Leave Act 1995 (NSW), and extended leave, which according to the respondent's representative, is governed by the Government Sector Employment Act 2013 (NSW). 4. After hearing from the parties, I declined to make any order regarding the applicant's long service leave or extended leave on the basis that, while s 89(4) allows the Commission to make an order that the period of employment be taken not to have been broken by the employee's dismissal, there is no express power in s 89 of the Industrial Relations Act for the Commission to make orders to enable the parties to be returned entirely to the position they were in before the dismissal, which in this case would involve orders for the repayment of money to the employer. Further, while s 89(8) may allow for the imposition of terms and conditions to enable this to occur, I was not prepared to make such an order without the matter being fully argued and supported by evidence. 5. I considered, given the history of his matter, that there was merit in making further directions to facilitate the execution of Order 3. Accordingly, I withdrew Order 4 above and made the following further directions and orders: (4) I direct Ms Dey to provide documentary evidence to the Respondent of the amounts she has earned for the provision of her personal services during the stated period, not including money received for being a foster carer, by no later than 10 November 2023. (5) I direct the Respondent to provides its assessment of the money to be paid to Ms Dey pursuant to Order 3 by not later than 17 November 2023. (6) I direct Ms Dey to respond to the Respondent's assessment by no later than 22 November 2023. (7) I direct the Respondent to pay the amounts ordered to be paid pursuant to Order 3 by no later than 28 November 2023. (8) I grant the parties liberty to apply to have the matter relisted in the event there is a dispute about the quantum to be paid to Ms Dey pursuant to Order 3 by no later than 23 November 2023. (9) If no application to re-list the matter is made on or before 23 November 2023, the Application will stand dismissed. Janet McDonald 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: 06 November 2023