Industrial Relations Commission of New South Wales CITATION : Jones v Attorney General's Department NSW [2002] NSWIRComm 253 PARTIES : Jannette Jones Attorney General's Department NSW FILE NUMBER: IRC 1632 of 2002 CORAM: Grayson DP Contract of temporary employment - expressly acknowledged - terminable at earlier than final date on stated grounds - ongoing monitoring and review - measurement of effectiveness against desired outcomes - signs of tension and strain from outset - no imputation of wrongdoing per se - alleged representation of permanent employment - ignomonious accompaniment from workplace CATCHWORDS : Held, respondent conduct inappropriate - more compassionate approach called for - procedural irregularity - dismissal harsh, unreasonable, unfair - compensation ordered LEGISLATION CITED : Industrial Relations Act 1996 Public Sector Management Act 1988 HEARING DATES: 10/01/2002 DATE OF JUDGMENT: 10/04/2002 APPLICANT Ms J Jones in person LEGAL REPRESENTATIVES: RESPONDENT Mr G de Courcey, solicitor Crown Solicitors Office JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES Friday, 4 October 2002 Matter No IRC 1632 of 2002 JANNETTE JONES v ATTORNEY GENERAL'S DEPARTMENT NSW Application by Jannette Jones re unfair dismissal pursuant to s 84 of the Industrial Relations Act 1996 DECISION [2002] NSWIRComm 253 1 The applicant in these proceedings, Ms Jones, alleges unfair dismissal and seeks compensation under s 89 (5) of the Industrial Relations Act 1996 (the Act). She does not seek reinstatement and she does not seek re-employment in a position other than the one she occupied albeit only briefly, with the respondent. 2 The circumstances leading to the termination of her employment on 8 March 2002 are of relatively narrow compass and may be conveniently set out as follows. 3 On 12 November 2001, the applicant was appointed to a position of Rehabilitation Officer and acknowledged that her employment was of a temporary nature pursuant to s 38 of the Public Sector Management Act 1988, for a period of 12 months. 4 She further acknowledged, as the evidence amply demonstrates, that her temporary employment was terminable at an earlier date on the grounds set out in the respondent's offer, namely: · Work is no longer available · Funds are no longer available · Performance of duties is considered unsatisfactory · It is not administratively justified to retain your services 5 I leave aside the question whether a broader power to dispense with the services of a temporary employee is to be found in s 38 of the Public Sector Management Act. 6 On 8 March 2002 the applicant was told that a decision had been made to abolish her position, that her services were no longer required and that she should vacate the workplace forthwith. She was shocked and upset and felt that the respondent's actions in providing plastic bags for her to gather up her belongings and then escorting her off the premises and out into the street, were undignified and humiliating. I am inclined to agree. 7 Having said that, there can be little doubt on the evidence as it stands, that the employment or working relationship between the applicant and those to whom she answered displayed signs of tension and strain from the outset. I do not impute wrongdoing in that regard to the applicant or to others concerned but it was clear that for whatever reason, the respondent did not see continued employment beyond 8 March 2002 as being administratively justified. 8 I am comfortably satisfied, and it is not suggested otherwise, that the applicant diligently applied herself to the given task of, broadly stated, managing the respondent's workers compensation claims portfolio in order to minimise the physical and economic impact of workplace injury, and that she brought to the temporary position of Rehabilitation Officer, appropriate tertiary qualifications and background experience in that regard. 9 There appeared to me however to be a difference of professional approach, if I could put it as neutrally as I can, between the applicant and her immediate supervisor Mr Conroy, as to the most effective way in which the applicant's given tasks should be carried out. 10 The applicant said, and this was steadfastly denied by the respondent's witnesses, that soon after accepting and commencing work in the temporary Rehabilitation Officer position, she was told her employment would be permanent. As I understood her, this alleged misrepresentation constituted with other things an element of unfairness in the respondent's decision to terminate her employment four months later. On the evidence as it stands, I could not be satisfied that the applicant was promised permanent employment for any such promise would appear to me to be inconsistent with the tensions to which earlier reference has been made. 11 At all events, it is the respondent's contention that the temporary position occupied by the applicant and another two such positions were created, with improvement in the respondent's management and processing of workers compensation claims in mind and were the subject of ongoing monitoring and review as to their effectiveness in delivering desired outcomes in the interests of justifying continued funding. 12 Simply put, it became apparent to the respondent that the desired outcomes were not being met and a decision was made to abolish the position the applicant occupied. In the event, the applicant was called in to see the respondent's Manger, Personnel, Ms V Grbevski and Mr G Conroy, Manager OHS, Workers Compensation and Rehabilitation on 8 March 2002 and was told in effect that her services could no longer be administratively justified. 13 I am seized of the fact that whilst this decision may have caused the applicant anguish and disappointment, it was nonetheless a decision made by the respondent based on objective review and mindful of the continuing need to justify funding for the position. 14 On balance, I resist the conclusion urged upon me by the applicant that it was the vindictive and capricious act of an employer or a number of its representatives who did not afford her adequate induction training or sufficiently clear direction in order that she might be more effective in her role. 15 With every respect to the applicant, the evidence simply does not permit such a conclusion and it was clearly open to the respondent by the terms of its offer of employment to satisfy itself as to the effectiveness of the position in question in order to justify the continued retention of the applicant's services. 16 Having said that, I am concerned at the manner and speed with which the respondent dispensed with the applicant's services on 8 March 2002 involving, as the applicant described it in cross-examination, the gathering of her personal property in plastic bags by Mr Conroy and the ignominious accompaniment off the premises to be left on the street in tears. This is not as I see it, even vaguely appropriate. 17 I have chosen strong words to use in describing the events of 8 March 2002 in order to reflect the feeling of indignity and humiliation displayed by the applicant in her evidence, and in order that minds may be relevantly directed in the future to more suitable and compassionate conduct in circumstances such as exist here. 18 The respondent's actions in failing to give appropriate warning of it's intentions and in then terminating the applicant's employment in the way it did, raise significant issues of procedural irregularity such as to render the dismissal unfair as I am disposed, and to thereby warrant the Commission's intervention. 19 As Mr de Courcey for the respondent rightly submitted, the applicant's claim for payment of the balance of the term of her 12 months contract is beyond jurisdiction. 20 Having regard however to the matters relevant to be taken into account in assessing compensation, as well as to the amount paid to the applicant in lieu of notice, I consider an amount equivalent to one month's salary to be appropriate in such circumstances. 21 The Commission finds for the foregoing reasons that the applicant's dismissal on 8 March 2002 was harsh and unreasonable and thereby unfair. 22 The respondent is ordered pursuant to s 89 (5) of the Act to pay to the applicant within 21 days of this decision an amount of $3575.92 being the equivalent of 4 weeks salary at the rate per week of $893.98 before tax. 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