Industrial Relations Commission of New South Wales CITATION: NSW Fire Brigade Union v NSW Fire Brigades. [2010] NSWIRComm 1058 APPLICANT PARTIES: New South Wales Fire Brigade Employees Union RESPONDENT NSW Fire Brigades FILE NUMBER(S): 768 of 2010 CORAM: Ritchie C Section 130 Industrial Dispute. Employee merit promotion transfer to country Sold house in Sydney and bought house in country. In accordance with award had four years to make applicatiion for reimbursement of associted costs. CATCHWORDS: Advised by officers of respondent had an extra six months. Award allowed extension on approval. Provided a document to that effect for signature. Prior to moving in application rejected. Applicant sought order for reimbursement of costs based on failure of respondent to provide accurate information. Found that respondent had failed to provide accurate information to employee. Order made for respondent to reimburse employee for costs associted with the sale and purchase of properties. LEGISLATION CITED: Industrial Relations Act,1996 CASES CITED: Hedley Byrne & Co Ltd. v Heller & Partners Ltd (1964) AC 465 Caparo Industries plc v Dickman (1990) 2 AC HEARING DATES: 26/10/10 DATE OF JUDGMENT: 8 November 2010 Applicant Mr J Nolan of Counsel LEGAL REPRESENTATIVES: Mr G Maniatis of the Union Respondent. Ms L Iacumin of the NSW Fire Brigades DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: RITCHIE C 8 November 2010 Matter No IRC 768 of 2010 IN THE MATTER OF: Notification under section 130 by the New South Wales Fire Brigade Employees' Union of a dispute with NSW Fire Brigades re reimbursement of expenses. DECISION [2010] NSWIRComm 1058 1 The New South Wales Fire Brigade Employees' Union ( the applicant) filed a dispute notification under section 130 of the Industrial relations Act,1996 (the Act) on 6 August 2010 against the NSW Fire Brigades (the respondent). 2 The dispute notification was expressed in the following terms: (a) Station Officer John Edwards, a member of the Union, has submitted a claim for reimbursement of expenses incurred as a consequence of his transfer from Sydney to Orange under sub clauses 29.10, 29.11 and 29.12 of the Award. (b) Initially, he was advised by relevant officers of the Department that his claim would be approved, and that the 4 year period specified in the award for the sale and purchase of residences (cl 29.10.3) from the date of transfer would be extended for another six months. This is confirmed in a document headed Transferred Officers Compensation Award-Undertaking (Attachment A). Mr Edwards made his plans with respect to his residence on the basis of this advice, and advice received from the Department dating back to August 2009. (c) Subsequently, he received an email from Mr D Husdell, Director Employee Relations advising he was not entitled to reimbursement (Attachment B) (d)The Union believes our member is entitled to reimbursement and seeks the Commission's assistance to resolve this dispute. 5. The award which applies to the employees etc is Crown Employees (NSW Fire Brigades Permanent Firefighting Staff) Award 2008. 3 A compulsory conference was held on 11 August 2010 and 24 August when the dispute was set for a Hearing, with directions for the filing of evidence being given and a Certificate of Attempted Conciliation raised. Applicant's case. 4 Relieving Station Officer (SO) John Edwards filed an affidavit and an affidavit in reply. He stated that he commenced with the respondent in 1978 and over the years has progressed by promotion to the position of Relieving Station Officer at the Orange and Bathurst stations which he took up on 14 April 2006. 5 In October 2007 he purchased a house in Orange after renting (subsidised in accordance with the Crown Employees ( NSW FIRE Brigades Permanent Firefighting Staff) Award 2008) for the previous 18 months. In February 2009 he received after requesting from the Fire Brigade's Personnel Department an Information Package including an "Undertaking" Document, Reimbursable and Non Reimbursable costs and a check list of other required documents for his perusal. 6 On 10 July 2009 he sold his property in Redfern, Sydney. 7 On 4 August 2009 he phoned Ms Smith of the Personnel Department regarding the process and time frame of making a claim under clause 29 of the award. He was advised he had 4 years and six months. He queried that as he had only seen 4 years written in the award. He stated that Ms Smith told him that at times an extension is required by individuals, so all applicants have a six month extension but nothing after that time. He was also advised to speak to the Industrial Relations Department. He did and spoke to Ms Langford and stated that he would send all details to her concerning the selling of his Sydney property and the purchase of his Orange property. On 6 August 2009 he sent an email to Ms Langford. 8 He had hoped that renovations on his Orange property would have commenced by then and be completed by the end of the current lease agreement totalling 4 years, however he stated he could have relocated at any time if required. 9 On 10 August 2009 he received an email from Ms Langford stating he was eligible to claim under the award. 10 In January 2010 the Orange property became vacant. 11 On 23 February 2010 he travelled to Sydney and met with Ms Smith and Ms Langford. This meeting was held so Mr Edwards could confirm what he was seeking to do were correct. He advised that he was going overseas on holidays and would not be back until after the Lease agreement expired. He was told that the 6 months extension was assured and he was doing everything correctly and was shown the "Undertaking Document" 12 On 16 June 2010 he again met with Ms Smith in Sydney and provided all the documents required by the respondent as per the check list. Copies were taken by Ms Smith and he signed the "Undertakings Document". During the meeting he sought from Ms Smith as to what would occur when the six months expires as to would he have to start to pay rent or vacate the premises. He was advised to speak to Superintendent Levitt ( Manager Operational Personnel). Superintendent Levitt was not in his office. 13 When back in Orange he spoke with Ms Melissa Peacock at the NSWFB Properties Section and asked her the same question and was advised that she would contact Personnel Section and get back to him. 14 On 24 June2010 at the request of Ms Smith he submitted Miscellaneous Vouchers for the sale and purchase of the properties. 15 On 5 July 2010 he received a phone call from Superintendent Levitt stating he was seeking further advice from the Industrial Relations Department. Later he was advised by Superintendent Levitt to contact Mr Darren Husdell from the Industrial Relations Department. 16 On 18 July 2010 he phoned Mr Husdell and left a message. On the same day he again spoke with Ms Smith who advised that the IR Department had an issue with S/O Edwards not moving in to the purchased residence sooner. He also again spoke to Ms Langford and also to Ms Peacock from the Properties Department but did not have the matter clarified. 17 On 22 July 2010 he spoke to Mr Husdell who stated that he had concerns about the validity of the claim. SO Edwards said that he had been speaking with Ms Langford who had indicated that there were no issues. Mr Husdell stated that Ms Langford had advised information based on what she had been told and that he could not believe that the organisation allowed the purchase of a house and claim the rental subsidy. SO Edwards stated that he objected to be told how he invested his money and that this was a separate issue. 18 On 23 July 2010 SO Edwards emailed to Mr Husdell seeking his determination. 19 On 27 July 2010 Mr Husdell emailed to SO Edwards his determination, rejecting his claim. The reason stated for the rejection was that SO Edwards had not taken up residency not more than four years after such transfer ( in accordance with clause 29 of the award). 20 In his affidavit in reply SO Edwards stated that he was unaware that Ms Smith was acting outside of her responsibilities. When he visited Sydney to discuss his general concerns including rental payments after the six months, he was told to speak to Superintendent Levett who was not in his office at that time. He said he later rang Properties. 21 He stated that both Personnel and IR were aware early on as to why he had not occupied the Orange property and no person had advised him that he had to make an application for exceptional circumstances. Renewing the rental lease was as a consequence of the current dispute. He wanted to be sure that his reimbursement costs would be paid prior to forgoing the subsidised rental property. 22 In written Brief Outline of Submissions the applicant stated that SO Edwards had acted in accordance with the advice he had received from relevant officers of the respondent. He had expressly sought to confirm that he had four years and six months to finalise his move. That the respondent has refused to honour the undertakings/approvals was unconscionable, unfair and will if not reversed, result in a significant financial impost being placed on him and his family. The relevant clauses of the award were clause 29 and 30. Clause 29 should be read in conjunction with clause 13.7 of the Crown Employees (Transferred Employees Compensation ) Award 2009. Whilst this clause stipulated a four year period, it also allowed for a exception by the department head where 'good reason' exists to extend the time period. It would seem no one at the respondent has been made aware that the period has been shortened to two years in 2009. Respondent's Case 23 Superintendent Peter Levett filed an affidavit and was required for cross examination. He stated that he commenced with the respondent in August 1985 and had over 20 years in operational areas. He currently holds the rank of Superintendent and the position of Manager Operational Personnel. He is principally in charge of administration of transfer registers, transferred employees compensation and rental of premises. He is the approving officer in these areas. 24 He stated that when SO Edwards came to Sydney on 23 February 2010 and saw Ms Smith and Ms Langford he should have met with himself concerning any queries in relation to his claim pursuant to the NSW Fire Brigade Delegations Manual which he has an obligation to know. 25 Superintendent Levitt stated that he was unaware of the documentation and the advice that was provided to SO Edwards, in that claims under clause 29 of the award would be automatically extended by six months, in order to make a total of four years and six months in which to make a claim for compensation. 26 He stated that the role of Ms Smith with regard to Clause 29 Transferred Employee's Compensation is to process applications for reimbursement. The provision of advice as given by Ms Smith (ie he had four years and six months to make a claim) was outside her area of responsibilities and in fact lay with Superintendent Levett and Industrial Relations. 27 When he did check SO Edwards claim, he found that the appropriate forms had not been filed. Superintendent Levett informed Ms Smith and directed Ms Smith to inform SO Edwards to submit his claim on 'Miscellaneous Vouchers'. 28 In cross examination Superintendent advised that he had not spoken to Ms Smith about this matter prior to giving evidence but acknowledged that Ms Smith had given out wrong advice to SO Edwards. 29 Superintendent Levett stated that when he received SO Edwards "Miscellaneous Vouchers' and supporting documentation, he carried out a check in accordance with the award requirements. After checking SO Edwards current rental subsidy, which he knew he was receiving, Superintendent Levett concluded that SO Edwards had not occupied the residence in Orange that he had purchased in 2007 which took him outside the provisions for compensation for transferred employees under clause 29 of the award. Also SO Edwards had not provided an application for exceptional circumstances as provided for in clause 29.10.3 of the award. 30 Because of his concerns Superintendent Levett then sought advice from the Director of Employee Relations and advised SO Edwards of this by email. 31 Superintendent Levett stated that he understood that SO Edwards continues to occupy rental accommodation on a month by month basis since March 2010 and has recently sought a 12 month lease for rental accommodation. This knowledge is based on Superintendent Levett approving the rental subsidy being extended by 12 months. Consideration and Decision. 32 Under the award clauses 29.10 Conveyancing and Other Costs and clause 29.11 Stamp Duty and other Charges are expressed as follows: Conveyancing and Other Costs A transferred employee who, as a consequence of the transfer to a new location, sells a residence at the former location and buys a residence or land upon which to erect a residence at the new location shall be entitled to reimbursement of expenses incurred in such transactions subject to the following: 29.10.1 Where a solicitor or a registered conveyancing company has been engaged to act on behalf of the employee in those transactions, the professional costs and disbursements by the solicitor or a registered conveyancing company in respect of such transactions. 29.10.2 Where an employee is entitled to reimbursement, the following expenses shall be covered: 29.10.2.1 Stamp Duty; 29.10.2.2 Where the employee has engaged a Real Estate Agent to sell the residence at the former location, the commission due to the Estate Agent. 29.10.3 Reimbursement of expenses shall be made where the sale of the employee's former residence and the purchase of either a residence or land is effected within a period commencing not earlier than six (6) months prior to the employee's transfer and ending not more than four (4) years after such transfer. The Department will be prepared to consider individual cases where the four (4) year period has been exceeded but will require full details of why sale and/or purchase of the transferred employee's residence could not be completed in the four (4) year period. 29.10.4 Where a transferred employee owns a residence at a former location and has taken up rented accommodation on transfer, the employee shall be regarded as covered by these provisions relating to the reimbursement of conveyancing and incidental costs on the current transfer or on a subsequent transfer provided the period of not more than four (4) years has elapsed since the employee's immediately preceding transfer. 29.10.5 Where it is not practicable for the transferred employee to purchase residence in the new location and such employee has disposed of the former residence, such employee is not to be excluded from the benefit of this clause when subsequently purchasing a residence in the new location on a current or subsequent transfer within the four (4) year period. 29.10.6 There is an upper ceiling, as set at Item 21 of Table 4 of Part C, on prices of the properties involved in either the sale or the purchase. This limit applies where employees are relocated from a Metropolitan Area to the country irrespective of the size, the value and the commerciality of the property being purchased provided transferred employees are not entitled to the reimbursement of costs involved in transactions where the sale or purchase of a large rural property or commercial premises might be involved. 29.10.7 Where a transferred employee dies before completion of either or both the sale or purchase transactions, the expenses incurred in such transactions, up to and including the finalisation of such transactions shall be payable by the Department and the family of the deceased employee is not required to reimburse the Department such expenses. 29.11 Stamp Duty and Other Charges A transferred employee, who, as a consequence of the transfer, sells a residence at the former location and buys a residence or land upon which to erect a residence at the new location is entitled to be reimbursed: 29.11.1 Stamp Duty in respect of the purchase of the residence or the land and the house erected thereon at the new location; 29.11.2 Stamp Duty paid in respect of any mortgage entered into or the discharge of a mortgage in connection with the sale or purchase; 29.11.3 Registration fees on transfers and mortgages on the residence or the land and the house erected on the land on the following basis - 29.11.3.1 where the purchase is completed and the employee enters into occupation of the residence within 15 months of transfer, the reimbursement of Stamp Duty in full; 29.11.3.2 where the occupation of the residence purchased or erected is not completed within fifteen (15) months but is completed within four years of transfer, reimbursement of Stamp Duty is not to exceed the amount which would have been payable had the sale and purchase prices of the properties been the amount set at Item 21 of Table 4 of Part C, in each case. 29.11.4 A transferred employee who, as a consequence of the transfer to a new location, does not sell a residence at the former location but buys a residence or land upon which to erect a residence at a new location, is entitled to be reimbursed: 29.11.4.1 Stamp Duty in respect of the purchase of the residence or the land and a house erected on that land; 29.11.4.2 Stamp Duty paid on any mortgage entered into in connection with the purchase; and 29.11.4.3 Registration fees on transfer and mortgages on the residence or the land and a house erected on the land, provided the employee enters into occupation of the residence within fifteen (15) months of transfer to the new location. 33 The basic facts in this case for the transfer out of Sydney and the sale and purchase of properties are : 1. SO Edwards took up his position as Relieving Station Officer Orange/Bathurst on 14 April 2006. 2. SO Edwards bought a house in Orange in October 2007. 3. SO Edwards sold his house in Sydney on 10 July 2009. 34 The applicant 's submission was that SO Edwards sought and was given advice as to what he was required to do with respect to the sale of his Sydney home and the purchase of a property in Orange. Trips to Sydney took place to confirm this advice. His concern centred on the maximum elapsed time for finalising the claim. In accordance with sub clause 29.10.3 of the award he had until 14 April 2010. On contacting Sydney in August 2009 by phone he was advised by an officer of the respondent ( Ms Vicki Smith) that he could have a further six months extension making a total of four years and six months. At a visit to Sydney in February 2010 he met with Ms Smith and Ms Langford and during that meeting it was confirmed that he had the six month extension. He was shown an " Undertaking Document" that expressed the period of four years and six months. 35 On 14 June 2010 he signed and was witnessed by Ms Smith, two of the "Undertaking Documents" that are headed, TRANSFERRED OFFICER'S COMPENSATION AWARD. One document covered the purchase of the Orange property and the other the sale of the Sydney property. Expressed in this document is the statement: Within the period of four years and six months as specified in 11 (ii) of the Crown Employees (Transferred Officer's Compensation Award), the Transferred Officer will immediately refund the Amount to the Employer at the end of the period ( underlining added). Included in the form are the printed words: NSW Fire Brigades It was the applicant's submission that this document clarified SO Edwards mind and reinforced his view that he had four years and six months to finalise his claim 36 Ms Smith was not called to give evidence by the respondent. As a consequence of the respondent not calling any counter evidence, I must accept the evidence of SO Edwards as being an accurate summary of what occurred between himself and Ms Smith. The Commission was advised by the respondent that Ms Langford was unavailable as she was on leave and was overseas. The applicant stated that if the evidence that would have been given by Ms Langford was so critical to their case, then an application to have this hearing delayed until her return should have been made to the Commission. No application was made therefore one could strongly infer that her evidence would not have been helpful to the respondent's case. 37 In Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465, was created the rule of "reasonable reliance" by the claimant on the skills of the defendant. "Where a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, and a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise." Actions nominally based on Hedley Byrne by definition include negligent acts or omissions, even though the ratio decidendi of Hedley Byrne was cast in terms of liability for statements. In Caparo Industries plc. v Dickman (1990) 2 AC 605 the criteria for a duty of care in giving advice were stated in more restricted terms: "What can be deduced from the Hedley Byrne case, therefore, is that the necessary relationship between the maker of a statement or giver of advice (the adviser) and the recipient who acts in reliance on it (the advisee) may typically be held to exist where (1) the advice is required for a purpose, whether particularly specified or generally described, which is made known, either actually or inferentially, to the adviser at the time when the advice is given, (2) the adviser knows, either actually or inferentially, that his advice will be communicated to the advisee, either specifically or as a member of an ascertainable class, in order that it should be used by the advisee for that purpose, (3) it is known, either actually or inferentially, that the advice so communicated is likely to be acted on by the advisee for that purpose without independent inquiry and (4) it is so acted on by the advisee to his detriment." 38 As a consequence of what Ms Smith advised SO Edwards and the assurances given by Ms Langford, he relied upon this information and organised his life accordingly. He was unaware at the time of the respondent's view as expressed in this hearing, that Ms Smith was acting outside of her area of responsibilities. 39 The respondent submitted that SO Edwards would not be entitled to reimbursement of any costs because he had yet to occupy his Orange property. 40 Mr Nolan for the applicant stated that his failure to occupy his Orange property was as a direct result of this dispute and its resultant uncertainity. 41 SO Edwards had acted in good faith based on the information provided to him yet his application for reimbursement of costs had been rejected on the one hand and the subsidised rental he would loose if he moved in on the other hand. 42 I have noted the ability for the respondent to extend the period of claim by an appropriate officer beyond the period of four years as found in clause 29.10.3 of the Award. A similiar type sub clause can found in the Crown Employees (Transferred Employees Compensation)Award in clause 11(ii)(d). It is my view that this case would seem to be appropriate for such an extension to have taken place.I note that neither sub clause expresses the word "exceptional" in describing an individual case. It was also clear that the respondent at no time suggested to SO Edwards that an application for extension should be submitted, taking into consideration what had occurred. 43 It is my finding that I do not see why SO Edwards should have to financially suffer by the non payment of his reimbursement costs by the respondent in the sale of his house in Sydney and the purchase of a property in Orange when it was the respondent who failed to provide the correct information to SO Edwards on which he had acted upon in good faith. 44 A failure that has been acknowledged by the respondent's witness. 45 In such circumstances it is my finding that it would be unfair not to make an Order as requested by the applicant in favour of SO Edwards in settlement of this dispuite. 46 For the reasons expressed, I consider that the New South Wales Fire Brigades should reimburse SO Edwards an amount of $37,736.60 pursuant to clause 29 of the Crown Employees(NSW Fire Brigades Permanent Firefighting Staff) Award 2008 .This order must be complied with within 14 days of the date of this decision. I so order. D.RITCHIE 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.