Fantoni v Secretary of the Department of Education; Secretary of the Department of Education v Fantoni [2023] NSWIRComm 1114

Industrial Relations Commission New South Wales Medium Neutral Citation: Fantoni v Secretary of the Department of Education; Secretary of the Department of Education v Fantoni [2023] NSWIRComm 1114 Hearing dates: 6 September 2023 Date of orders: 27 November 2023 Decision date: 27 November 2023 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir Decision: 1. Leave for Ms Fantoni to appeal the Interlocutory Decision is refused. 2. Leave for the Secretary to cross-appeal the Principal Decision is refused. 3. Leave to appeal is granted to Ms Fantoni in respect of grounds 6 and 7 of Ms Fantoni's Principal Appeal, but is otherwise refused. 4. Ms Fantoni's Principal Appeal is upheld. 5. Pursuant to s 192(1)(a) of the Industrial Relations Act 1996, the Principal Decision is varied so as to include the following further orders: (a) the Secretary is to pay Ms Fantoni the remuneration that she would, but for the decision to dismiss her from the Teaching Service, have received from the Secretary for the period 1 December 2020 to 15 December 2022, less income received by her from either or both of Youcare Disability Services Pty Ltd and Centre for Neurodiversity Pty Ltd, as set out in Annexures A6, A7 and A8 of the affidavit of Ms Fantoni sworn on 28 August 2023; and (b) the period of employment of Ms Fantoni with the Secretary is taken not to have been broken by the decision of the Secretary to dismiss her, and the period between 1 December 2020 and 15 December 2022 is to count as service for all purposes. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal from interlocutory decision to allow evidence to be adduced – evidence not called at hearing – whether utility in granting leave to appeal EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal against principal decision – challenges to findings of facts at first instance – whether appeal disclosed error in principal decision warranting grant of leave to appeal – whether failure to make orders for lost remuneration and continuity of service unreasonable and unjust – consideration of seriousness of findings of Commissioner at first instance and other orders made EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – cross-appeal against principal decision – challenges to findings of facts at first instance – whether appeal disclosed error in principal decision warranting grant of leave to appeal – whether the absence of evidence for a particular finding and a related denial of procedural fairness warrants the grant of leave to appeal Legislation Cited: Evidence Act 1995 ss 13-19 Industrial Relations Act 1996 Ch2 Pt 7, ss 98, 100C, 100D, 188, 191, 192 Interpretation Act 1987 s 9 Teaching Service Act 1980 ss 5A, 44, Pt 4A, ss 93B, 93C, 93F Cases Cited: Abboud v NSW Department of Education (1999) 92 IR 32 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Container Terminals Australia Pty Limited v Huseyin [2008] NSWCA 320 Denise McKay v Department of Family and Community Services (No 2) [2018] NSWIRComm 1069 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263; [2005] NSWIRComm 409 House v The King (1936) 55 CLR 499; [1936] HCA 40 Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37; [2003] NSWIRComm 211 Hussmann Australia Pty Ltd v Walker (1993) 31 NSWLR 189 at 201; (1993) 48 IR 396 Margaritte Joanne Colefax v Secretary, Department of Education (No. 3) [2019] NSWIRComm 1000 Marroun v State Transit Authority (2017) 96 NSWLR 295; [2017] NSWCA 273 Master Education Services Pty Ltd v Ferfolia [2009] NSWIRComm 132 Mifsud v Campbell (1991) 21 NSWLR 725 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 Secretary of the Department of Education v Williams [2023] NSWIRComm 1098 Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (2022) 320 IR 249; [2022] NSWSC 1178 Toshack v Commissioner of Police [2009] NSWIRComm 31 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 X (a pseudonym) v Secretary, Department of Education [2021] NSWIRComm 1089 X (a pseudonym) v Secretary, NSW Department of Education [2022] NSWIRComm 1113 Texts Cited: None Category: Principal judgment Parties: Linda Fantoni (Appellant/Cross-Respondent) Secretary of the Department of Education (Respondent/Cross-Appellant) Representation: Counsel: L Andelman (Appellant/Cross-Respondent) M Seck (Respondent/Cross-Appellant) Solicitors: Emery Partners (Appellant/Cross-Respondent) Kingston Reid (Respondent/Cross-Appellant) File Number(s): 2023/00007925, 2023/00020963, 2023/00021021 Publication restriction: 1. An order pursuant to s 164A(1)(a) of the Industrial Relations Act 1996 (NSW), prohibiting: a. the disclosure of the name, address, picture or any other material that identifies, or the doing of any other thing that identifies: i. [name redacted] ii. [name redacted] iii. [name redacted] iv. [name redacted] v. [name redacted] vi. [name redacted] vii. [name redacted] viii. [name redacted] 2. An order pursuant to s 164A(1)(c) of the Industrial Relations Act 1996 (NSW), 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] v. [name redacted] vi. [name redacted] vii. [name redacted] viii. [name redacted] 3. An order pursuant to s 164A(1)(a) of the Industrial Relations Act 1996 (NSW), that access to the Commission file in the matters 2023/7925, 2023/20963 and 2023/21021 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. Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: X (a pseudonym) v Secretary, Department of Education [2021] NSWIRComm 1089 X (a pseudonym) v Secretary, NSW Department of Education [2022] NSWIRComm 1113 Date of Decision: 18 November 2021 16 December 2022 Before: Commissioner Webster File Number(s): 2021/00009266