Industrial Relations Commission of New South Wales CITATION: Mullins v Dept. of Education and Training [2006] NSWIRComm 1136 APPLICANT: PARTIES: Mr. Keith Mullins RESPONDENT: Dept. of Education and Training FILE NUMBER(S): 5948 of 2005; 2784 of 2006 of CORAM: Ritchie C Application for unfair dismissal-constructive dismissal Application for reinstatement of injured employee Applications joined, to hear threshold jurisdictional argument by respondent. CATCHWORDS: Respondent stated that applicant had neither been terminated nor had he resigned. Applicant confirmed that he had not been terminated nor had he resigned. Sought from the Commission to investigate particular work issues. Commission found that as there had neither been a termination by the respondent nor had there been a resignation by the applicant ,the applicant was not an eligible employee to bring action under s.84 and or s. 92 of the Act. Applications dismissed. LEGISLATION CITED: Industrial Relations Act, 1996 CASES CITED: Allison v Bega Valley Council 63IR 68 HEARING DATES: 06/09/06 DATE OF JUDGMENT: 09/08/2006 APPLICANT Mr K Mullens LEGAL REPRESENTATIVES: RESPONDENT: Mr P. Newall of Counsel Mr P. Quinn of the respondent. DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C. 8 September 2006 Matter No IRC 5948 of 2005 IN THE MATTER OF: Keith Roy Mullins and Director-General of Education & Training. Application by Keith Roy Mullins re unfair dismissal pursuant to section 84 of the Industrial Relations Act, 1996 Matter No IRC 2784 of 2006 IN THE MATTER OF: Keith Mullins and Department of Education and Training. Application by Keith Mullins for reinstatement for reinstatement of an injured employee pursuant to section 93 of the Industrial Act, 1996 DECISION [2006] NSWIRComm 1136 1 Mr Keith Mullins (the applicant) commenced employment with the Department of Education and Training (the respondent) in early 2000 at the Moree Secondary College. He then transferred to the Young High School. The applicant holds a full time position as a teacher in Industrial Arts and VET. 2 On 24 November 2004, the applicant was approached by Ms. Jillian Marie Hyland, the Principal of the Young High School and advised that she wished to meet with the applicant the following day to discuss the implementation of a support programme as he had been identified as experiencing difficulties with his teaching performance. 3 On the following day the applicant sustained an injury to his back at work and had to proceed home, therefore the planned meeting did not take place. The applicant has not returned to work since that day. 4 On 18 November 2005 the applicant filed an unfair dismissal application stating that on 24 November 2004 he had been constructively dismissed. 5 On 20 July 2006, the applicant filed an application for reinstatement of an injured employee under section 93 of the Industrial Relations Act, 1996. 6 On 19 July 2006, the respondent filed a Notice of Motion stating that Matter No 5948 of 2005 proceedings should be dismissed for want of jurisdiction. 7 On 26 July 2006, Matter No 2784 of 2006 was listed for conciliation. At that time the respondent's legal representative applied for Matter No 5948 of 2005 to be joined so as argument with respect to their Notice of Motion could be heard as the jurisdictional argument would be the same for both. That application was granted by the Commission. 8 Conciliation was held on that day seeking to settle the matter and a further telephone conference on 4 August 2006 took place. Conciliation was not successful. 9 The two applications were joined only to hear the respondent's jurisdictional argument. Both parties filed affidavits to support their submission. 10 On the hearing of the Notice of Motion, the hearing took place on 6 September 2006 with the applicant representing himself and Mr P. Newall of Counsel representing the respondent with Mr P. Quinn of the respondent. 11 The applicant did not require the three witnesses for the respondent to be present for cross-examination. The applicant himself was subject to short cross-examination. 12 In cross-examination the applicant confirmed that he had neither been terminated by the respondent nor had he resigned from the services of the respondent. He was quite clear that he remained a full-time employee of the respondent. 13 The witness statement of Ms Hyland, Principal of Young High School, stated in short that she had at no time dismissed the applicant nor did she have the authority to dismiss a permanent teacher from the respondent. The statement of Ms Lynda Shearer, Assistant Director of Staffing Service for the respondent, highlighted the employment history of the applicant and indicated, that the applicant was a current employee of the respondent and had been since 2000. 14 It was the submission of Mr Newall that be it under sect. 84 or sect. 92 of the Industrial Relations Act 1996, both sections required that a dismissal has to have had taken place for the Commission to have jurisdiction. For a claim of constructive dismissal to exist there has to have been a severing of the contract of employment by the applicant. As the applicant continues to be a full-time employee of the respondent, then neither sect. 84 nor sect. 92 can be used by the applicant. 15 The unfair dismissal claim was filed nearly one year late and no evidence was provided by the applicant to justify his claim. Mr Newall submitted that without evidence to support his out-of-time claim, the claim should be rejected. A decision with respect to the out of time claim would only have to be made by the Commission, if the preliminary jurisdictional question raised by the respondent was not upheld by the Commission. 16 The applicant in his submissions accepted that he had not resigned and he agreed that the respondent had not terminated his permanent employment. The applicant's submissions centred on what he perceived as wrong doings by various officers of the respondent. He sought for the Commission to assist in correcting these perceived wrong doings. 17 The applicant's submission with respect to the out-of- time issue was that his claim had already been accepted by the Commission and the Commission had the power to accept an out- of-time claim. Considerations and Decision. 18 Sect. 84 (1) of the Industrial Relations Act 1996 (the Act) is expressed in the following form: "If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. Sect.92 (1) of the same Act is expressed in the following form : "If an injured employee is dismissed because he or she is not fit for employment as a result of the injury received, the employee may apply to the employer for reinstatement to employment of a kind specified in the application." 19 In both of the above sections of the Act, the essential feature is the requirement of the employer to terminate the services of the employee. Where there has been a termination of the employee by the employer then such an employee may be eligible to file an application to seek relief. 20 I am satisfied that in the two matters before this Commission there has not been a termination by the respondent of the employee. The evidence is clear and overwhelming that the applicant remains a permanent employee of the respondent. 21 The applicant has claimed that there exists a case of constructive dismissal. I note the comments of the Full Bench in Allison v Bega Valley Council 63IR68 at p.72 : " Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employers' conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation ?" (emphasis added). 22 As was stated by the applicant, in evidence and from the bar table on a number of occasions, he has never resigned from the services of the respondent nor does he intend to. 23 Without resigning I do not see how the applicant can state that a constructive dismissal has taken place and that he therefore in some fashion, becomes an eligible employee for the purposes of either sect.84 or sect. 92 of the Act. 24 In summary it is my finding that because there has neither been a termination by the respondent nor a resignation by the applicant then the Commission lacks jurisdiction to hear these two cases. 25 As a consequence of this finding it is not necessary to make a finding in the out-of-time application by the respondent with respect to matter No. IRC 2005/5948. 26 I therefore dismiss matter No IRC 2005/5948 and matter No IRC 2006/2784. 27 These matters are therefore now concluded. D. 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