Industrial Relations Commission of New South Wales CITATION: Appeal by Tim Moyes against the appointment by NSW Commission for Children and Young People of Michele Neathercote to position of manager, media and Communications [2010] NSWIRComm 1055 APPELLANT PARTIES: Tim Moyes APPOINTEE Michele Neathercote FILE NUMBER(S): 613 of 2010 CORAM: Tabbaa C Jurisdiction; s.95(e) of Industrial Relations Act 1996; maximum salary of vacant position exceeds that paid to Appellant in relation to the office he held; Displaced officer; Did not hold an office; Section did not exclude his right of appeal. CATCHWORDS: Jurisdiction: Position not filled; not a Promotion appeal; Priority assessment; Not entitled to appeal. LEGISLATION CITED: Industrial Relations Act 1996 GREAT Act 1980 CASES CITED: Kuskis v The Director-General of the Dept. of Commerce (31.10.06) Kuskis v Director-General of the Dept. of Ageing, Disability & Home Care (28.12.07) HEARING DATES: 06/10/2010 DATE OF JUDGMENT: 6 October 2010 APPELLANT LEGAL REPRESENTATIVES: RESPONDENT DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Tabbaa C 6 October 2010 IRC 613 of 2010 Appeal by Tim Moyes against the appointment by NSW Commission for Children and Young People of Michele Neathercote to position of Manager, Media and Communications IRC 614 OF 2010 Appeal by Tim Moyes against the decision of the NSW Commission for Children and Young People not to appoint him to the position of Manager, Child Safe Organisations JUDGMENT [2010] NSWIRComm 1055 IRC 613 of 2010 Chronology 1 The Appellant was appointed as Manager, Communications and Community Development in April 2008. 2 In April 2009, the Respondent divided his substantive position into two roles - that of Manager, Communications and Manager, Community Development. The Appellant continued to hold the position of Manager, Communications. 3 In January 2010, the organisation went through a Ministerial re-organisation which altered its structure. As a result, the Respondent attempted, in March 2010, to displace the Appellant's position, to declare him as an excess Officer and to proceed with a priority assessment for the vacant position. 4 The PSA intervened on behalf of the Appellant and argued that the Appellant and Ms Neathercote not be declared as excess officers until assessments had been undertaken. 5 The assessments were undertaken and on 17 May 2010 both the Appellant and Ms Neathercote were advised, in writing, that they were deemed to be excess officers. 6 On 18 May 2010, the Appellant and Ms Neathercote were forwarded emails in which their views were sought as to whether they wished to participate in assessments for the vacant positions. Both Officers agreed to participate in the assessments. 7 A panel was set up for the position of Manager, Communications. The Appellant and Ms Neathercote were the only two officers assessed. At the jurisdiction hearing today, the Commission was advised that Ms Neathercote was the successful applicant and the decision had been made on merit. The appointment has not, as yet, been gazetted. 8 Mr Moyes appealed against the appointment of Ms Neathercote to the position of Manager, Media and Communications. Submission 9 The Respondent referred to section 21 (1)(e) of the GREAT Act 1980 which provides as follows: "21 Excluded circumstances (1) An employee is not entitled to appeal under section 20 in respect of the decision of an employer relating to a vacant office: ... (e) unless the maximum salary applicable to the vacant office is greater than the salary paid, at the date of the decision of the employer, to the appellant in relation to the office held by the appellant at that date. 10 The Respondent contended that the Appellant was in receipt of annual remuneration equivalent to the maximum salary applicable to a Grade 12 officer and both positions were Grade 11/12 positions. The Respondent agreed that the Appellant, given the chronology set out above, was a displaced officer at the relevant time. 11 The Appellant pointed out that the above provision was replicated in Section 95 (e) of the Industrial Relations Act 1996. Previous decisions of the GREAT Tribunal had established that the section cannot apply to exclude an appellant's right to appeal in circumstances where the unsuccessful applicant did not hold an office as at the date of the employer's decision as a result of the displacement [31.10.06 - Kuskis v The Director-General of the Department of Commerce (Senior Chairperson Lynch); 28.12.07 Kuskis v Director-General of the Department of Ageing, Disability and Home Care (Chairperson Oakman) as confirmed by later decisions.] 12 The Respondent further raised a jurisdiction issue in relation to section 95 (f) of the Industrial Relations Act 1996. 13 I have had the opportunity to read those decisions and confirm and adopt the reasons provided for in those decisions. There was no dispute that the Appellant and Ms Neathercote were receiving the maximum salary for Grade 12 and were both displaced employees. In addition, there was no evidence before the Commission of either the Appellant or Ms Neathercote holding an office at the relevant time. On that basis, I find neither section 95 (e) nor (f) of the Industrial Relations Act 1996 can apply to exclude his right of appeal. IRC 614 of 2010 14 Mr Moyes also expressed interest in being assessed for the position of Manager, Child Safe Organisations. 15 Another panel was set up to interview him. There were no other applicants. The Appellant was unsuccessful in that interview. The position has not been filled nor has it been externally advertised. 16 Section 94 (2) of the Industrial Relations Act 1996, requires a promotion appeal to be one in relation to which the Appellant holds that he/she is more entitled to be appointed to the vacant office than the employee in whose favour the decision was made. 17 That is not the case in the present circumstances. The Panel did not select another applicant above the Appellant on the basis of merit. The Appellant, therefore, is not able to appeal the decision of the Respondent in Matter No IRC 614 of 2010 as it is not a promotions appeal but rather, a priority assessment that he failed to satisfy. Order 18 The Commission has jurisdiction to hear the appeal in matter no. IRC 613 of 2010. Mr Moyes' appeal is to be listed by the Registry for a hearing on its merits at the earliest opportunity. 19 The Commission has no jurisdiction to hear the appeal in matter no. IRC 614 of 2010 for the reasons outlined above. Matter No. IRC 614 of 2010 is hereby dismissed for want of jurisdiction. I Tabbaa 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.