Grant v Industrial Relations Secretary - Service NSW [2024] NSWIRComm 1007

Industrial Relations Commission New South Wales Medium Neutral Citation: Grant v Industrial Relations Secretary - Service NSW [2024] NSWIRComm 1007 Hearing dates: 16 February 2024 Date of orders: 16 February 2024 Decision date: 16 February 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: The Respondent's Notice of Motion is dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Public Sector Disciplinary Appeal - Procedure— Late application for witness to give evidence by AVL due to her being away on holiday with her parents and she is caring for her injured father and breast feeding her four-month-old baby — No evidence of steps taken to ensure witness' attendance or to explain that the late application was not wholly due to conduct of the witness — Application dismissed Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58 Government Sector Employment (General) Rules 2014 (NSW), r 41A Uniform Civil Procedure Rules 2005 (NSW), rr 1.5, 31.3(1), Sch 1 Cases Cited: Dey v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Community Services) [2023] NSWIRComm 1025 Category: Procedural rulings Parties: Carly Grant (Appellant) Industrial Relations Secretary – Service NSW (Respondent) Representation: Solicitors: Flame Tree Legal (Appellant) Minter Ellison (Respondent) File Number(s): 2023/00300951 Publication restriction: Nil

Ex tempore DECISION (Revised from transcript) 1. The appellant, Ms Carly Grant, filed an application for public sector disciplinary appeal on 21 September 2023. The appellant in this proceeding works at the Service NSW Miranda Service Centre. She appeals against a decision contained in a letter dated 24 August 2023 to reduce her classification from clerk class 6 under the Service NSW Salaries Award to clerk grade 3/4 year 1, with effect from 8 June 2024. 2. She is currently on maternity leave and then I understand is to take some long service leave, hence the reason why her demotion will not take effect until later this year. 3. The demotion was the result of the respondent having determined that the appellant had engaged in misconduct under r 41A of the Government Sector Employment (General) Rules 2014 by not complying with the respondent's policies and procedures when she allegedly, without authorisation or legitimate business reason: 1. accessed CCTV footage of cameras positioned in the Centre Manager's office and the Centre leader zone of the Miranda Service Centre on 10 March 2023, between 4.48pm and 6.03pm; and 2. the Centre Manager's office on 16 March 2023, between 11.24am and 11.26am. 1. The matter came before me on 11 October 2023 for conciliation. Unfortunately, the matter was not able to be resolved, so on that day I made directions to prepare the matter for an arbitrated hearing and set the matter down for hearing on 22 and 23 February 2024. 2. The respondent, being the statutory employer of the appellant, has applied by notice of motion filed on 15 February 2024, that is, three business days before the hearing is due to commence, for an order pursuant to r 31.3(1) of the Uniform Civil Procedure Rules 2005 (NSW), for leave to be granted for Catherine Spinelli to give evidence in the proceedings by way of video link. The application is opposed by the appellant. 3. Given the proximity of the hearing, I listed the motion for return on 16 February 2024 at 10am. At that time the respondent moved on its motion and read the supporting affidavit affirmed by the respondent's solicitor, Kathleen Plowman, on 14 February 2024. It also tendered, for the purpose of demonstrating the nature of Ms Spinelli's evidence, Ms Spinelli's statements of 8 November 2023 and 13 February 2024, which have been filed in the proceedings. 4. The appellant tendered an email of Ms Rooney of the respondent's solicitor's office, to the appellant's solicitor, dated 12 February 2024, sent at 3.33pm, requesting consent to Ms Spinelli giving evidence by way of AVL as she "will be away on a long planned family holiday for the duration of the hearing next week and will be unavailable to attend the Commission in person to give evidence." 5. Before hearing from both parties, I indicated to them that I was available to hear the matter, or further hear the matter, the week after the scheduled hearing dates and, indeed, on other dates in April or May and the parties had some discussions in an endeavour to come to a consent position in respect of an adjournment of the hearing in order to accommodate Ms Spinelli. Those discussions were not fruitful.