Industrial Court of New South Wales CITATION: Health Services Union (on behalf of Louise Hennessy) v The Director-General, NSW Department of Health in respect of NSW Health Service [2010] NSWIRComm 143 PARTIES: Health Services Union (Applicant) Director-General, NSW Department of Health (Respondent) FILE NUMBER(S): IRC366 of 2009 CORAM: Kavanagh J UNFAIR CONTRACT - s 106 of the Industrial Relations Act 1996 - allegations of unfair conduct in a contract of employment held by an award employee CATCHWORDS: JURISDICTION - Challenge to jurisdiction to hear claims - claim not statute barred under definition section of s 105 of the Act nor under Health Services Act - Award, by agreement, not incorporated nor inferred into contract of employment; relevant clause of award related to accommodation not inserted into contract of employment by agreement or by inference - Claim re failure to appeal GREAT decision to Supreme Court does not make claim statute barred FINDINGS - Finding on facts that conduct by the respondent led to loss of applicant's accommodation rent free - conduct made contract of employment unfair - unfair conduct which led to baseless findings of misconduct and poor performance impeded career progress - unfairness established - contract became unfair - employment contract varied - orders of compensation just in the circumstance LEGISLATION CITED: Health Services Act 1997 Industrial Relations Act 1996 Angelopoulos v Sabatino (1995) 65 SASR 1 Banker v National Distribution Services Ltd (1993) 50 IR 254, (1994) 53 IR 157 Barry v Incitec (1992) 45 IR 143 Burgess v Mount Thorley Operations Pty Ltd (2004) 132 IR 400, [2003] NSWIRComm 432 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 CASES CITED: Casey v Wentworthville Memorial RSL Club (1986) 16 IR 337 H&REA of New South Wales v The State of New South Wales (unreported decision of the Full Court of the Industrial Court of NSW Nos 510, 529 and 1991, 31 March 1993) Newton v Goodman Fielder Mills Ltd (1997) 81 IR 227 Pavey & Mathews Pty Ltd v Paul (1987) 162 CLR 221 Stonham v The Speaker of the Legislative Assembly of New South Wales (2009) 97 IR 325; [2000] NSWIRComm 69 Walker v Hussmann Australia Pty Ltd (1991) 38 IR 189 Walker v Industrial Court of NSW (1994) 53 IR 121 HEARING DATES: 08/02/10-11/02/10, 06/04/10-07/04/10, 08/06/10-09/06/10 DATE OF JUDGMENT: 22 November 2010 Mr J V Murphy of counsel (Applicant) Health Services Union LEGAL REPRESENTATIVES: Mr R S Warren of counsel (Respondent) Maddocks Lawyers JUDGMENT: - 71 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Kavanagh J Monday 22 November 2010 Matter No IRC 366 of 2009 HEALTH SERVICES UNION (on behalf of Louise Hennessy) v THE DIRECTOR-GENERAL, NSW DEPARTMENT OF HEALTH IN RESPECT OF NSW HEALTH SERVICE (AMBULANCE SERVICE OF NSW) Application under s 106 of the Industrial Relations Act 1996 JUDGMENT [2010] NSWIRComm 143 1 Ms Louise Hennessy ("Ms Hennessy" or "the applicant"), a senior officer in the New South Wales Ambulance Service (the Ambulance Service), through her union, the Health Services Union ("HSU"), seeks an order under s 106 of the Industrial Relations Act 1996 that her contract of employment is harsh, unfair and unconscionable and contrary to the public interest in its operation. 2 The applicant, as to the asserted unfairness, contends firstly, the Service failed to ensure she received her entitlement for suitable rent-free accommodation (for personally and directly providing ambulance services on nights and weekends which the Department referred to as "on call") in a circumstance where the Ambulance Service unfairly ignored her requests for such suitable accommodation. 3 Ms Hennessy contends as a consequence of the asserted unfairness her employment contract became unfair and should be varied and she should be compensated in accordance with Orders 2 and 3 of the Amended Summons in the following terms: 2. ... an order varying the Contract to require the respondent to provide Ms Hennessy with suitable quarters rent-free and to supply her without charge with light and fuel. 3. In the alternative, an order varying the Contract to require the respondent to pay Ms Hennessy the sum of $115,880 as compensation for the respondent's past failure to provide Ms Hennessy with suitable quarters rent-free and to supply her without charge with light and fuel plus the sum of $350 per week as compensation for the respondent's ongoing failure to provide Ms Hennessy with suitable quarters rent-free and to supply her without charge with light and fuel. 4 Secondly, Ms Hennessy contends the Service made a particular unfair finding of misconduct against her and baseless findings related to her management skills and those findings were used against her interest by senior management of the Ambulance Service to impede her career progress. As a consequence of that unfairness she contends her contract of employment was unfair and should be varied and she should be compensated in accordance with Orders 4 and 4A of the Amended Summons, as follows: 4. An order varying the Contract to require the respondent to refrain from victimisation and unfair treatment of Ms Hennessy whereby a baseless finding of misconduct was made against her by the management of the NSW Ambulance Service by way of a process in which she was denied procedural fairness, and then used unfairly against her to impede her career progress. 4A. An order that the respondent pay Ms Hennessy a sum of money, . . . in connection with the Contract so varied as compensation for the monetary loss suffered by Ms Hennessy, which is ongoing, as a direct result of the improper interference by the management of the NSW Ambulance Service in Ms Hennessy's attempts to advance her career. 5 In submissions, the particulars for 4A above were provided as follows: The difference in the rate of pay for the ADM position and that received by Ms Hennessy since June 2007 to the present, which represents the earnings lost by Ms Hennessy as a result of the unfair treatment of her by the Service, is $53,206. The ongoing loss is $1,211 per fortnight. 6 Mr J V Murphy of counsel appeared for the applicant. Mr R S Warren of counsel appeared for the respondent. The applicant gave evidence and was cross examined. She relied upon significant documentation in support of her claims. 7 The respondent relied upon evidence from the following officers of the Ambulance Service: Greg Rochford, Chief Executive Officer of the Ambulance Service of NSW (from August 1999); Denis Allan John Beavan, Divisional Manager, Southern Division (since 22 February 2002); Philip Keene, Director Workforce; Michael Willis, General Manager (since November 2005); Marian O'Connell, Director, Professional Standards and Conduct Unit (since May 2000) and Dianne Dawson, Assistant Director, Professional Standards and Conduct Unit. The Facts/History 8 Ms Hennessy joined the Ambulance Service on 25 July 1988 as an Ambulance Officer. In February 1993, she was promoted to Superintendent under the Ambulance Service Superintendent/Operational Managers (State) Award (now the Operational Ambulance Managers (State) Award). In 1996, Ms Hennessy was appointed as the District Superintendent, Macquarie Lachlan District, a position she held until 2001. 9 Ms Hennessy's duties required her to provide ambulance services at night and on weekends. Because of those duties Ms Hennessy was able to make application and received "quarters rent free" for her family in Dubbo. 10 This condition of her employment at the time of Ms Hennessy's appointment was in accordance with cl 26 of the then Ambulance Service Superintendent/Operational Managers (State) Award (now cl 32 of the new award, the Operational Ambulance Managers (State) Award). Relevantly, cl 26 of the award stated: 26. Accommodation (a) In addition to the salary levels prescribed in Table 1, Classification Structure, of Part B of this Award, Officers employed at the beginning of the first pay period which commenced on or after 25 September 1976 shall be entitled to quarters rent-free and shall be supplied without charge with light and fuel provided that Officers appointed to new positions created after 17 March, 1965 which do not require the occupant personally and directly to provide ambulance services at night or weekends, shall not necessarily be entitled to quarters rent-free or light and fuel without charge. 11 As to this condition of employment, while originally there was a dispute as to the payment of light and fuel to Ms Hennessy, it appears the Service is now providing Ms Hennessy with funds for light and fuel. The Award provision does not mention "on call" duties but recognises eligibility for quarters rent free is for particular senior Ambulance Service officers who personally and directly provide ambulance services at night or weekends. 12 Ms Hennessy then applied for the position of "Sector Manager - Dubbo" and on 23 January 1998 she received a letter confirming her appointment to the position. The letter of appointment to Sector Manager for Dubbo stated: The conditions of employment for this position are embodied in the proposed Superintendent/Operational Managers (State) Award. You may be required to sign a position description and enter into a Performance Agreement. The position also attracted rent free accommodation and she continued to occupy the same Service provided home she and her family already occupied because she was required again to personally and directly make herself available for night or weekend work. 13 When appointed Sector Manager, the Service contends Ms Hennessy was required to sign a document titled "Position Description Sector Manager". The document tendered is an updated document of August 2008. No signed original, or original at the date she was appointed to Dubbo (or was later transferred to Illawarra), is produced. The August 2008 five page document relevantly states: 7 KEY ACCOUNTABILITIES ... · Manage, monitor and report on key performance indicators as they relate to the position. · Support core NSW public sector values of cultural diversity, equity and ethical practice, and a healthy, safe and fair workplace. You also agree to abide by the Health Records and Information Privacy Act 2002, the Privacy and Personal Information Protection Act 1998 and the Ambulance Service of NSW Code of Conduct. 8 KNOWLEDGE, SKILLS AND EXPERIENCE · Demonstrated experience and current certification as an operational ambulance officer with a proven knowledge of Ambulance Service clinical policies, practices and protocols · High level analytical and problem-solving skills to achieve service delivery and business outcomes. ... 14 Given the history of this claim, it is necessary to note Ms Hennessy's personal circumstance. In January 2001, the applicant's Service house in Dubbo, which she occupied rent free, was assessed by a rehabilitation provider (delegated by the Service) because her husband, also an ambulance officer, had suffered a work related injury (he was later medically retired). Mr Shepherd was a Senior Operations Centre Officer at the Service's Western Division Operations Centre in Dubbo. The "Home Visit Assessment Report" dated 8 March 2001 relevantly stated: A Home Visit Assessment was conducted on 23 January 2001 at Mr Shepherd's residence at ... Dubbo ... The purpose for conducting a Home Visit Assessment is as follows. 1. To ensure pain management strategies are being implemented both in the workplace and generalised in the home environment effectively. 2. To increase Mr Shepherd's self-esteem by his being able to contribute to domestic activities of daily living and achieve his overall long-term goals in relation to returning to work. 3. To identify modifications to the physical environment in order to promote optimal body mechanics for Mr Shepherd to manage his pain effectively and implement functional education. This is to ensure his pain levels are maintained at a lower level prior to commencing work so that he can carry out these duties at a tolerable pain level. ... CONCLUSION It is recommended that Mr Shepherd is supplied with the materials to build a raised sink and bench area in his kitchen. This is the most cost-effective solution when considering costs for parts and labour by a builder to replace the existing sink and bench top areas. … Secondly, this will increase Mr Shepherd's self-esteem and sense of achievement. Thirdly, this will assist to maintain Mr Shepherd's pain levels at a tolerable level . . . Hence, a need for a change in housing was not specified, just an alteration to the kitchen area. Ms Hennessy's home was adapted to meet her needs to accommodate her husband. 15 In July 2001, Ms Hennessy was then appointed to the Illawarra region as Operation's Manager (based in Wollongong). She was transferred to the Illawarra Region under the same conditions she enjoyed in her second position at Dubbo but it was also noted: Your transfer is covered by the Transferred Officers' Award (copy enclosed - so that you are familiar with your entitlements). Please be aware that should you be selling or purchasing a residence as a result of this transfer, you must make contact with the undersigned to obtain the relevant forms and a copy of the Undertaking pursuant to Clause 11 or 12 of the Award prior to any action taking place. If you do not, you may not be entitled to any financial reimbursement. 16 The Illawarra position also required Ms Hennessy be available to perform ambulance services at nights and weekends. Once again, Ms Hennessy was provided with suitable Service accommodation. However, around the time she went to the Illawarra region, Ms Hennessy's husband, Richard Shepherd, was medically retired by the Service. Due to Mr Shepherd's medical condition, by August 2002 (which is at the end of the first year of her appointment to the Illawarra region), the Service accommodation that she had been provided with (a house in Keiraville, Wollongong) became unsuitable. Relevantly, Ms Hennessy states: 8. Whilst in the Service house at Keiraville my husband's condition became exacerbated and his specialist identified that the house was unsuitable as he had difficulties due to his disabilities. For example, he was unable to carry the grocery shopping up the stairs and we relied upon home delivery that was available at the time and the kitchen benches and sink were less (six) 900mm in height. 17 Ms Hennessy had a number of further complaints related to the Service owned home that was provided to her rent free: 5. The house in Keiraville had a set of stairs at both the front and rear entrances for access and was generally in a poor condition with plumbing and drainage issues. The house was repainted for me to move into. However the house was deficient in maintenance and repairs. For example, the taps in the bathroom and toilet were either missing or fitted with a spanner, the front and back doors did not lock and were off their hinges and the rear yard was inaccessible due to overgrowth and litter. A skip was hired to clean up the yard rubbish. I replaced the taps and hired a contractor for carpet cleaning. 6. The house had significant drainage issues and when it rained heavily the downstairs room and garage flooded. In very heavy rains, water leaked into the lounge room as the guttering was inefficient. … At the time of the water damage I was unable to get local plumbers to rectify the guttering due to the Service's restriction on funding for repairs to Superintendents' residences. The Accommodation Claim 18 On 14 August 2002, Ms Hennessy wrote to the State Superintendent of the Ambulance Service at the time, Stephen Whinfield. Relevantly, the letter states: Currently I am in a Service residence in Keiraville which I have been advised by my husband's treating specialist that is exaserbating (sic) his condition. We have recently purchased property in Wollongong that is without steps and in a flat area. I am willing to vacate the Keiraville residence on the provision that my rent entitlements under the Superintendents' award is paid to me. This request is made for my family's benefit and also the Service as my requested rent is less than the rental properties currently in the Illawarra being reviewed by Superintendent Elliott. Your consideration of my request would be appreciated. From this first complaint Ms Hennessy revealed she knew the Service provided rental accommodation as well as accommodation in Service owned properties. 19 Ms Hennessy sent a second letter, again to Mr Whinfield, on 24 April 2003, some eight months later. This letter reiterated her concerns for her husband's medical wellbeing, as well as mentioning a new medical concern related to Mrs Peggy Shepherd (Ms Hennessy's mother-in-law) who was then residing with Ms Hennessy. The letter states: This letter is further to my correspondence in August 2002 … My reasons for this request were put forward and these were genuine. To date I have received no reply and my personal circumstances are now forcing me to move. The main reason for the initial request was the difficulty in which my husband has in getting in and out of the house because of the stairs which results in an exacerbation of his condition. These stairs are at the front and rear of the house. The Ambulance Service is fully aware of these circumstances as he was medically retired by the Service in 2001 because of work related injuries to his back, knees and shoulder. My mother-in-law moved into our family in February and she suffered a fall in March on the front stairs of the Service's Keiraville residence, fracturing her leg. I now seek to notify the Service my intention to move from the Keiraville residence within the next 2 months and again I request financial compensation for my award entitlements, as my family cannot, through physical disabilities, live in the Service accommodation. I am disappointed at receiving no previous response and your earliest response to this request would be appreciated. 20 Again, Ms Hennessy did not receive a response to the letter. She continued living in the free accommodation with her husband, who had been medically retired, and now also an elderly mother-in-law. The accommodation was unsuitable to her family's needs and the Service had been on notice for some nine months. 21 Ms Hennessy proceeded to move her family into a house which the family had purchased in June 2003 (a different home to that referred to in the first letter). This was approximately two months after the second letter was sent and 11 months after notifying the Service of the unsuitability of the accommodation provided. 22 Ms Hennessy sent a third letter dated 1 December 2003 as follows: This letter is further to my correspondence of August 2002 and April 2003 … I have had no formal response to these letters and, as notified in my April letter, at the end of June I moved out of the Service residence to private accommodation that suited the disability needs of my family. Having had no reply I write again to request financial compensation for my award entitlements. I have attached copies of the two previous documents for your convenience. I would appreciate your earliest reply or by at least 19 December. 23 Therefore, from 1 July 2003, Ms Hennessy had moved out of the rent free Service provided accommodation into her own home. On 23 February 2004, Ms Hennessy wrote again to the Service. She had not received a reply to any of her previous letters. The letter relevantly reads: It is with great disappointment that I would have to write again regarding my own award entitlements for housing and pay. I have written to you on three separate occasions since 2002 regarding an alternate for the accommodation provisions under the Superintendents award … The second issue is that of my salary as an 'Health Services Manager' Level 2, which is still only 85% of the salary band, after eight years in the position. As a senior Operations Manager within the Ambulance Service the absence of any response to these issues is personally demoralising and sincerely disappointing. My capabilities and performance are, as you have remarked, of a high order and I take the lack of recognition as a personal attack. … I would appreciate a response by the Friday 12 March 2004. If you fail to respond again I feel I have no other choice but to refer these matters to both the ADB and the HSU for dispute. I consider my treatment by the Service to be discriminatory and unfair. 24 This letter secured a response from the Service via an email from the General Manager Operations dated 26 March 2004. The email was followed by a letter from Mr Whinfield dated 2 April 2004 addressing "Re: Award Entitlements". The letter confirmed part payment of her entitlement, namely, "light and fuel" entitlements of Ms Hennessy but denying her entitlement to rent compensation. The Service also agreed to address the issue of her salary as follows: 3. Compensation under the Transferred Officers Compensation Award. The issue will require further discussion. To assess your claim, the Service needs information as to when you actually vacated the Service's premises in Keiraville, which is not clear in your correspondence. Details are also needed in relation to when you acquired your property in Keiraville and what you are actually claiming under the Transferred Officers Compensation Award. 4. Payment of top range for Superintendent Level 2 backdated to 1999 (date not stated). I have reviewed your salary increments since in 1999 when you were appointed at 75% of the range from 1 March 1999. On 1 March 2000 you progressed to 80% of the range and on 1 March 2001 to 85%. As you are aware the Service has proposed a system of performance agreements with increments associated with performance. This matter has been referred to your Sub Branch and has been the subject of consultation for more than twelve months. At the time of the negotiation of the last Award all Superintendents with the exception of those on salary maintenance were progressed to 85% of the salary range for their individual classification. This was agreed between the parties to compensate for salary reviews that had not been conducted for a number of years. In view of the above I cannot agree to your claim. Your salary will be reviewed in line with the Performance Management System when implemented. . . . 25 Further, in that letter of 2 April 2004, the General Manager, Operations, Mr Whinfield, wrote further denying Ms Hennessy's request for rental compensation. The letter relevantly states: … I refer to copies of your … letters … I have summarised your requests as follows: - · Compensation for loss of award entitlements for rent, light and fuel. · Compensation under the Transferred Officers Compensation Award for your move to your own premises. · Full payment of the Operations Manager Level 2 Band at the maximum level backdated to 1999, date not specified. I reviewed the claims in your correspondence and advise as follows:- 1. Compensation for rent. Clause 26 of the Superintendents Award contains provisions relating to the rent free quarters. The clause provides that officers shall be entitled to quarters rent-free. Where Service premises are rejected or vacated there is no requirement for the Service to provide compensation to an officer who chooses to live in alternate accommodation they privately own. Accordingly I am unable to agree to your request. ... 26 There is nothing in cl 26 or cl 32 which indicates, on rejection of unsuitable Service provided accommodation, the obligation to provide rent free quarters is waived if the employee continues to be available for night and weekend work. 27 On 21 February 2005, Ms Hennessy wrote to the Chief Executive Officer (CEO) of the Service, Gregory Rochford. In the letter Ms Hennessy summarised her position regarding her "need" to move house and attached her prior correspondence to Mr Stephen Whinfield, the Operations Manager, expressing her disappointment with how the issues raised with him were not dealt with. In the letter she notes: … Without being given any opportunity to change residence through the Service I then sought financial compensation for the loss of my award entitlements of rent, light and fuel. The only correspondence I have received is dated 2 April 2004 were (sic) the General Manager Operations has agreed to pay compensation for light and fuel. My claim for the rent component of this entitlement was not granted. As only part payment of this entitlement was granted the matter has become an agenda item at the Superintendent's Joint Consultative Committee meeting. I have also sought advice from the Anti-Discrimination Board as I am aware others have been afforded greater benefits than this. This is an unsatisfactory position for me as the entitlement matter remains outstanding and I am now also unable to take advantage of the Salary Packaging opportunities that the Service has to offer. I would be very appreciative to have this matter resolved in a professional manner within the Service and seek your assistance with this. 28 Ms Hennessy therefore notes it was in a circumstance that "without given an opportunity to change residence" she determined to seek compensation. 29 On 24 August 2005, the Health Services Union (HSU) became involved in the matter via an email sent by Mr Bob Morgan of the HSU to the CEO of the Ambulance Service. He wrote regarding Ms Hennessy's claim and requested an urgent review and calculation of her entitlements as follows: 13. . . . HSU is concerned that this matter has not been resolved, or even seriously addressed by the Service over the last three years. The service, by providing the Keiraville residence to Supt. Hennessy clearly did so to comply with its obligation under clause 26(a). When the quarters provided by the Service to Supt. Hennessy became unsuitable, HSU submits that there were two courses of action open to the Service: firstly to make sure alterations to the quarters to make them suitable for her, or, secondly, to provide her with alternative suitable quarters rent free. HSU does not accept the contention expressed in the Service's letter dated 2nd April 2004, that if or when the quarters provided by the Service are unsuitable, that its obligation to provide "quarters rent free" ceases. There is no reference in the Award to support that contention. Clause 26(a) provides for Officers to be "entitled to quarters rent-free and shall be provided without charge with light and fuel." The construction of the award clause makes the provision of rent-free quarters, light and fuel indivisible. The Service's acceptance that it has an ongoing commitment to provide light & fuel is, in HSU's view, indicative that there is an ongoing obligation to provide rent-free quarters. 30 Curiously, a response was received from the Secretary of the Superintendent's Sub-Branch. The offer was to relocate her to a suitable rental property in Wollongong. Importantly, this offer was in accordance with the Service's obligations under the Award. 31 This offer was rejected by Ms Hennessy as it was coming two years after her initial request, also, she had already purchased suitable living arrangements. Ms Hennessy also asserts that her family was incapable, both physically and emotionally, of moving house at the time. In response to what Ms Hennessy saw as an invalid offer, Mr Michael Williamson, secretary of the HSU sent a letter dated 10 November 2005, regarding the offer of a rental house in Wollongong. The letter officially declined the offer of the rental property on Ms Hennessy's behalf and a "without prejudice" request was made as follows: ... The offer by the Service to find suitable rental accommodation for Superintendent Hennessey(sic) has been referred to her. Following consideration of the Service's proposal, it has been declined as being inconsistent with her domestic responsibilities. Ms Hennessy advises that the condition of her mother in law, who lives with her has deteriorated, and that due to her continued confusion and lack of mobility any change to the current place of abode would be detrimental for health reasons. The HSU therefore requests that consideration be given on a "without prejudice" basis to subsidising her current arrangements with a payment equivalent to that provided to Superintendent Elliott who also resides in the Illawarra area. While HSU understands that the Service in considering the request may be concerned about creating a possible precedent, Ms Hennessey's (sic) circumstances together with her constant prosecution of the matter both personally and though (sic) appropriate Service channels distinguish this from any other known or likely situation, and accordingly HSU submits that to accommodate it would not prejudice the Service's rights in general, and could not be used by HSU as a precedent. 32 On 16 February 2006, Mr Morgan sent an email to the Service's Senior Industrial Relations Manager requesting a follow up response to the email of 10 November 2005. No response was received. On 12 June 2006, a notification of dispute was lodged by the HSU as there was no resolution of the request. The dispute notice read: 4. The question, dispute or difficulty concerns the following industrial matters: (i) The Ambulance Service has inappropriately classified Operations Managers employed by the Service to manage its operations in each of its Operational Sectors. (ii) The Ambulance Service has failed to apply the increase agreed to be applied to all HSU classifications in the Services Operations Centre to the Operations Centre Managers who manage those Centres. (iii) The Service has failed to apply clause 26, Accommodation to one of its Operations Managers. (iv) Extensive discussion between the parties has failed to resolve these matters. 33 The background to the matters, other than accommodation rent free, named in the notification of dispute is that during 2003 to 2006 the Service proposed a restructure of all Senior Operational positions. This restructure came under the heading "Realignment". Negotiations between the HSU and the Service regarding the realignment failed and a dispute was lodged before the Commission under Matter No IRC 275 of 2006. Ms Hennessy was one of the most senior position holders affected by the realignment and represented the Superintendents Sub-Branch of the HSU in the proceedings. The outcome after the notification was the withdrawal by the Ambulance Service of the realignment proposal but only for a short period of time. 34 On 19 June 2006, proceedings took place before Bishop C, in Matter No IRC 2509 of 2006, related to Ms Hennessy's claim to various entitlements (as particularised in 4(iii) of the HSU complaint (as above)). As a result of those proceedings Mr Mike Willis, now holding the position of General Manager Operations, wrote to Mr Williamson of the HSU on 30 June 2006, stating: ... Following the submissions of Mr Bob Morgan, HSU Industrial Officer, in relation to the rental assistance requested by Supt Louise Hennessy, the Service is prepared to look at assisting with her rental obligations on the home that she currently resides in. This assistance on her rent would be of the same amount as that provided to Mr Neil Elliott, Operations Centre Manager, Southern Operations Centre. To progress this matter the Service requires a copy of the rental agreement on the home that Supt Hennessy's currently resides in. Once this has been received I suggest that the parties meet to discuss the matter further so that a formal agreement is in place before any payments are made. This offer does not have a flow-on effect to other Superintendents/Operational Managers as it only relates to the particular circumstance of Supt Hennessy. The letter reveals a complete misunderstanding of the facts. 35 On 4 July 2006, Ms Hennessy sent a letter to the HSU regarding the offer of the Service to pay her "rent" under the Award. In her letter, Ms Hennessy details the past events regarding her accommodation claims, including her reasons for moving. She wrote: ... It was necessary to move into accommodation that could be significantly modified to meet the care needs of my mother in law. As the Service had not replied to any of my letters I felt I had no choice other than to move into my own premises. If I had pursued a rental property it would need to have met the care needs of my mother in law, which were significant. If the Service had made any reply to my correspondence I would have been in a position to perhaps take up a rental property as other Superintendents have. I did not "vacate" the Service's premises in a manner that could be interpreted by anyone to say that I did not want the benefits of the accommodation provision under the award. In the absence of any reply until April 2004 (just under 2 years since my request) I felt forced to progress and manage my own accommodation to suit my family needs but still continued in each correspondence to the Service to request that my accommodation entitlement be provided... 36 Two months later, in a letter dated 4 September 2006, the Chief Executive of the Service, Mr Rochford, wrote to Mr Williamson withdrawing the erroneous offer of assistance for "rent" given Ms Hennessy was occupying her own home. The letter noted the Service could not pay Ms Hennessy an allowance outside the Award provision, saying: In the past, Supts/Operational Managers have chosen not to live in Service accommodation for a variety of reasons including those in relation to family responsibilities. In these circumstances, staff have been provided with free light and fuel in their housing. This has been the accepted practice and takes into account that not all officers can or want to live in Service accommodation. The letter continued on to say that due to the history of the matter, Mr Rochford was willing to make an offer "without prejudice". The offer was to compensate Ms Hennessy under the Crown Employees (Transferred Employees Compensation) Award (CETECA). The details of the offer were stated as follows: · Supt Hennessy will be able to claim her entitlements for "purchase only" under CETECA for the purchase of her current residence... · It will be purchase only as I understand Supt Hennessy was in Service accommodation prior to moving to Wollongong in 2001. · Under the "purchase only" provisions of the Award she is entitled to claim: Government stamp duty, mortgage stamp duty, registration fee on transfer, registration fee on mortgage, telephone reconnection, electricity reconnection, gas reconnection and mail redirection (one month only). · To claim these she will need to provide: - A copy of the dated and stamped front page of the Contract for Sale of Land - re: Purchase, - Evidence from Bank (or lending agent) of Mortgage (ie stating Stamp Duty on mortgage, Registration Fee on Mortgage and address of the security property) and Loan Approval Letter amount. - Receipts/accounts for any monies laid out for reconnection of Telephone, Electricity, Gas or Mail Redirection. - Solicitor's Settlement statement (stating the date of settlement). - A statutory declaration, that the couple whose names differ on the contract are living in a genuine de facto relationship or are married. · Supt Hennessy will not be able to claim any other entitlements under CETECA as these have already been claimed on her move from Dubbo to Wollongong. · Supt Hennessy will continue to be able to claim for free light and fuel for her residence. · Supt Hennessy will be required to sign a Deed of Settlement. This will state the details of this settlement, states that the matter has now been resolved, that no further claims will be made on this matter and that the settlement is confidential and cannot be disclosed to others. 37 Ms Hennessy calculates the offer to equate to a maximum benefit of $20,632. As to the offer, more specifically, the "one off" payment, Ms Hennessy asserts she was unable to accept as it "made no provision to me for payment for past or future on call out duties or shift and weekend penalties." Ms Hennessy also asserts that the new Award for Superintendents was pending at the time and this circumstance hindered her acceptance of the offer. 38 In January 2007, Ms Hennessy obtained a secondment to the New South Wales Health Counter Disaster Unit as the Special Projects Officer for APEC, located in the Rozelle Ambulance Service State Headquarters. There Ms Hennessy was providing input as to the provision of Ambulance Services (for the Ambulance Service) in planning for APEC. 39 On 6 April 2007, after Ms Hennessy had commenced her secondment, her Operations Manager position in the Illawarra region was advertised. The proposed "Realignment" once stopped by agreement with the Union was now occurring. The job description relevantly reads: Position no : 95/07 Classification: Assistant Divisional Manager Illawarra Sector Southern Division Operations Manager Grade 3 Hours of Duty: 38 Hours per week Location: Goulburn, Southern Division This vacancy is a newly created position. Duties: Lead and direct the staff and resources of the sector to ensure the effective and efficient delivery of patient care services, consistent with Ambulance Service legislation, awards and policies. Selection criteria: · Knowledge of Ambulance Service clinical policies, practices and protocols. ... · Ability to interpret statistical data and key performance indicators for the sector operations. ... · Knowledge, understanding and demonstrated application of equal employment opportunity (EEO), ethical practice, Ethnic Affairs Priority Statement (EAPS) and service provision in a multicultural community and occupational health and safety (OHS) relating to the position. Employment Conditions: · The successful applicant will be required to take up residence in Goulburn to meet on call requirements for major incidents. · The successful applicant will be appointed under the terms and conditions of the Superintendent/Operational Managers (State) Award. ... 40 Ms Hennessy applied for this "realigned" position, a position which took up many of the existing responsibilities that she had held in the Illawarra. In the same week the position was advertised, Ms Hennessy received correspondence from the CEO of the Service revealing allegations of misconduct had been made against her by an officer in the Service and one by her superiors in the Service. The way these allegations were dealt with will be addressed later in this judgment. 41 Ms Hennessy failed to be appointed to the "realigned" position in the Illawarra. She appealed to the Government Related Appeals Tribunal (GREAT) but failed in her appeal. The Tribunal found Mr M. Bray was a better candidate. 42 After her APEC role, Ms Hennessy was seconded to the special unit preparing for World Youth Day. Again she provided advice and organisational skills on behalf of the Ambulance Service. After that completed secondment she returned to the Illawarra District but was required to report to Mr Bray, the successful applicant for the realigned senior officer position in the Illawarra. It is agreed that prior to the redesign and the creation of the "realignment" Ms Hennessy was in charge of the Illawarra region for the Ambulance Services. She now reports to Mr Bray. There has been some dispute as to the quality of her work and the type of work she has been asked to perform by Mr Bray but those are industrial issues and not the focus of this litigation. 43 The respondent raised as to this general outline of her employment history a number of factual issues which need to be determined before any consideration as to the asserted unfairness, namely: · whether Ms Hennessy's duties required her to be "on call". · whether there was an obligation in providing rent free accommodation to provide "suitable accommodation". · whether it was communicated to Ms Hennessy, the accommodation options the Service permitted. On Call 44 The respondent at one stage in the proceedings submitted that Ms Hennessy would not be entitled to any payment for accommodation as her duties did not require her to be "on call". The respondent advanced this proposition and in support of it proposed as Ms Hennessy had only been given an Ambulance vehicle which access was shared with another officer that fact provided proof she was in all her seconded and substantive positions, not required to be "on call". The union challenged the description "on call", asserting rather she was required to be directly, personally available for night and weekend work. 45 It was Mr Beavan, Divisional Manager, Southern Region, in his evidence who proposed she was not "on call" because she shared access to an Ambulance Service owned vehicle with a Mr McCarthy. However, he also conceded this "shared" vehicle had hardly ever been driven by Mr McCarthy, also a Superintendent. Other witnesses confirmed Ms Hennessy was required, in her substantive position, and even when on secondment, to be on call for night and weekend work. I find in all the positions she held, Ms Hennessy was required to make herself available directly and personally to provide ambulance services at night and on weekends. "Suitable" accommodation 46 Another fact, pressed by the applicant but challenged by the Ambulance Service, was the assertion the Service was obliged to provide Ms Hennessy with "suitable" accommodation. It was contended there was no obligation on the Service to provide "suitable" accommodation. However, Mr Beavan accepted that the entitlement to rent free accommodation meant "suitable rent free accommodation". I have no difficulty in inferring that where there is any rent free entitlement such an entitlement would require the provision of "suitable" accommodation. Alternatives 47 As to Ms Hennessy's claim for a payment in lieu of the provision of rent free accommodation, Mr Beavan argued he was aware in 2002 of Ms Hennessy's concern about the unsuitability of her accommodation but he did nothing about it because "the matter was sitting with the general manager of the Service" and because of "fairly significant budget restrictions ... we were not able to spend any money on the properties". Mr Beavan accepted the proposition that if Ms Hennessy knew of the Service's position that it would provide rent assistance to officers who found for themselves "suitable" accommodation, as an alternative to Service owned or Service rented accommodation, Ms Hennessy could have explored this other accommodation option before moving into her own property. 48 Ms Hennessy, over the 20 month period, when the Service failed to acknowledge her letters outlining her problems, should have been made aware of all the alternative opportunities available to her to obtain suitable rent free accommodation. She could then have sought in the market suitable rental accommodation. It was only after the Service ignored her approaches (that became pleas) that she purchased a suitable property. Ironically the evidence revealed Mr McCarthy (with whom the Service claimed she "shared" a car) is a Superintendent who is in rented premises and receives the amount of $350 per week as a rental subsidy. Further, if Ms Hennessy had been able to stay in the Keiraville property there is no suggestion that she would have been required to vacate those premises. The options available to Ms Hennessy should have been addressed with her by the Service. 49 I am satisfied on the evidence the Ambulance Service, in compliance with its obligation to provide accommodation rent free to the relevant officers, provides that accommodation in one of three alternative ways: through properties it owns; through the Service renting a property and through providing its officers with a rental subsidy. 50 What the evidence reveals is Ms Hennessy, given her personal circumstance, needed alternative suitable accommodation yet from her first letter to the Service she was ignored. While the problems she faced were immediate the circumstance remained for some 20 months. The Service then made an error and misunderstood her claim. It was only when the HSU involved itself on her behalf that there was a suggestion that alternative accommodation could be found. That appropriate offer came through the Superintendent Sub Branch sometime after August 2005. For three years there was a refusal to address her needs related to the unsuitability of accommodation provided, although during some of that period she continued to occupy rent free accommodation. The only reason given for this delay was the Service was under budgetary constraints. There was no attempt made by the Service to meet its obligations to Ms Hennessy. Further, there was not even basic consideration shown to Ms Hennessy by the Service such as reacting to her notified need and explaining to her the options under the alternative ways the Ambulance Service met its obligations. Ms Hennessy never had explained to her the third option available, namely, that the Service would allow a rental subsidy if she could find herself suitable rental accommodation. Loss of Promotion Opportunity 51 The second asserted unfairness relates to how the Service conducted an investigation into allegations of misconduct against Ms Hennessy and its reaction to that investigation. 52 In the correspondence dated 2 April 2007, four days before Ms Hennessy commenced her secondment to the APEC Security Committee, the Ambulance Service advised Ms Hennessy that four allegations of misconduct had been made against her. Relevantly, the letter notifying her of the allegations reads: NOTIFICATION OF DETERMINATION TO DEAL WITH ALLEGATIONS OF MISCONDUCT AS A DISCIPLINARY MATTER Clause 17(2)(a) of the Ambulance Services Regulation 2005 (NSW) I have received allegations that you may have engaged in misconduct. The alleged misconduct is as follows: 1. You did on 30 November 2006 at Wollongong NSW give improper advice and direction to Stewart Clarke concerning the writing of a report into his investigation of a Health Care Complaints Commission complaint. 2. You did on 30 November 2006 at Wollongong NSW remove pages from Stewart Clarke's draft investigation report and retain these. 3. You did between 27 November 2006 and 30 January 2007 telephone Stewart Clarke and in respect to the officers that had been interviewed say words to the effect: "If they were to come clean and give a proper account of events, [I] would be prepared to forget all about their initial statements". 4. You did between 29 October 2004 and 31 January 2007 not take effective action to ensure that staff in the Illawarra Sector complied with Standard Operating Procedure 2.3.2.6, particularly in respect to the required daily checks of operational vehicles, as instructed by the Divisional Manager in writing on 29 October 2004. I have decided to deal with these allegations as a disciplinary matter under clause 18(1)(a) of the Ambulance Services Regulation 2005 (NSW) (" the Regulation "). ... 53 In accordance with Ambulance Service procedures, the Independent Commission Against Corruption and the Director General of the NSW Department of Health were advised of this "possible corrupt conduct". 54 Ms Hennessy asserts that these were the first complaints as to misconduct she had received after 19 years of service with the Ambulance Service. The first three allegations of misconduct related to her management of an investigation into a complaint conducted by the Illawarra Ambulance Liaison Officer, Stewart Clarke. Mr Clarke had been asked by Ms Hennessy to investigate a complaint lodged by a relative of a patient against a number of ambulance officers. Ms Hennessy said of the allegations of misconduct made against her that she "understood them to infer I had behaved corruptly" by attempting to influence a report Mr Clarke was writing into the complaint. Ms Hennessy always contended all she did was give advice to Mr Clarke who was a junior officer. 55 The fourth allegation arose as a consequence firstly of an enquiry by the Southern Division Manager, Denis Beavan, into an incident which occurred on 30 July 2004 (some three years before the date of the allegation being made against her) where the batteries of all defibrillators used failed to deliver an unsynchronised shock. It was not an issue that arose in Ms Hennessy's Illawarra area. Mr Beavan wrote a report on the issue. As a result of his findings in that report Mr Beavan wrote on 29 October 2004, as Divisional Manager, to all his Operations Managers: in the Illawarra (Ms Hennessy); in the Greater Murray; in the Southern Operations; and in the South Eastern, as follows: ... In acknowledging the findings of the RCA, I draw your attention to the following comment: "An absence of effective and recorded operational procedures for application at station level contributed to the non-availability of serviceable defibrillator batteries. The procedures absent from the operational function of the station included: ambulance vehicle equipment checks; readiness for duty of ambulance vehicles not rostered for duty; defibrillator battery charging regimes; identification systems to distinguish between defibrillator batteries; and, effective rotation of defibrillators for operational duty". As a result of this statement, I draw your attention to Standing Operating Procedure (SOP) 2.3.2.6 , which clearly provides for daily, weekly and monthly checks and SOP 1.21.1 - 1.24.3 also provides for the correct management of equipment. Would you please ensure that all staff in your area of responsibility are reminded of their obligation to ensure that they undertake regular equipment and vehicle checks as described in the SOP's and that an audit of this process is maintained by each Operations Manager/Sector Office. 56 No charge had been laid against Ms Hennessy from October 2004 until 2 April 2007. No charges have ever been laid against any of the other area's operational managers related to the operation of SOP 2.3.2.6. Evidence revealed in March 2007, Mr Beavan's attention was again drawn to the issue of the SOP 2.3.2.6. He recorded this circumstance in a memorandum to Mr Bob Gray, Acting Operations Manager, Illawarra as follows: . . . Following a recent investigation into a matter in the Illawarra Sector and a request for copies of vehicle shift checking reports, the Division was advised that staff in the Illawarra Sector will not use the SOPs and have not done so since their introduction. You are instructed once again to ensure that all staff comply with Standard Operating Policy - Minimum Equipment Checks (SOP2006-067). Compliance to this policy directive is mandatory and there can be no variation to this or any policies or procedures, as this will ultimately compromise patient care. 57 Correspondence reveals the Divisional Manager, Southern Region, the A/Operations Manager and the General Manager Operations were all notified that the SOP 2.3.2.6 procedures were not fully operational in the Illawarra Region. Evidence revealed the full rewritten compliance with the SOP 2.3.2.6 was not adhered to by any Division of the Ambulance Service in the State of NSW as there was a Union ban on the paper demands from the SOPs introduction back to 1999. Each division ensured the vehicle checks were done on a daily, weekly and monthly basis. There was not however the full "paper work" recording under SOP 2.3.2.6 either in the Illawarra nor across the State from the inception of SOP 2.3.2.6 in 1999. 58 After Mr Clarke lodged his complaint that Ms Hennessy had sought to improperly influence the writing of a report into his investigation, Mr Graeme Willis recommended to the CEO charge Nos 1, 2 and 3 as recited in the letter to Ms Hennessy. There is no evidence as to why, when or how the SOP issue was added as charge No 4 and why that issue was included as a ground as asserted misconduct by Ms Hennessy. 59 The investigation of all the four misconduct allegations were given to an outside independent investigator, Ms Manuela Crouch, who was briefed the day after Ms Hennessy received notice of the allegations of misconduct. 60 Ms Hennessy co-operated fully with the investigator. She was called for an interview on 5 April 2007, only one day after receiving notification of the allegations and while seconded to APEC. Nonetheless, she attended and provided extensive documentation by way of written submissions and other documents. She defended herself against all four allegations. Many of the documents went particularly to the issue of the steps she had taken to ensure compliance, in the Illawarra Sector, with the requirement for vehicle checks (SOP 2.3.2.6). 61 In April 2007, by an Ambulance Service Newsletter while she was seconded to APEC, Ms Hennessy read her position in the Illawarra was to be advertised. The Service then sent a memorandum explaining this was a "Divisional Re-Alignment". She was interviewed on 4 May 2007 and advised on 5 May 2007 no applicant had been successful. 62 Ms Hennessy also continued throughout this time to travel to Rozelle and perform her role in the APEC event on behalf of the Service. The investigation into the complaints against her took 20 weeks. 63 The investigator reported on all four allegations on 30 May 2007 as follows: 1. Find that there is insufficient evidence that Louise Hennessy did on 30 November 2006 at Wollongong NSW give improper advice and direction to Stewart Clarke concerning the writing of a report into his investigation of a Health Care Complaints Commission complaint. 2. Find that there is insufficient evidence that Louise Hennessy did on 30 November 2006 at Wollongong NSW remove pages from Stewart Clarke's draft investigation report and retain these. 3. Find insufficient evidence that Louise Hennessey (sic) did between 27 November 2006 and 30 January 2007 telephone Stewart Clarke and in respect to the officers that had been interviewed say words to the effect: "If they were to come clean and give a proper account of events, [I] would be prepared to forget about their initial statements." 4. Find that, on the balance of probability, Louise Hennessy did between 20 October 2004 and 31 January 2007 take effective action to ensure that staff in the Illawarra sector complied with Standard Operating Procedures 2.3.2.6, particularly in respect to the required daily checks of operational vehicles, as instructed by the Divisional Manager in writing on 29 October 2004. 5. That Mr Stewart Clarke and Ms Louise Hennessy be encouraged to come together as parties to mediation to address unresolved matters and views and establish a common understanding for a future professional working relationship within the Ambulance Service of NSW. 6. That Ms Hennessy be provided feedback and review of her "team approach" to future investigation matters. 7. That the Ambulance Service address current unresolved industrial matters as they relate to SOPS 2.3.2.6. 64 However, Mr Rochford was not satisfied with the recommendations and the following letter on 12 June 2007 was sent to Ms Crouch: Dear Ms Crouch I write on behalf of the Chief Executive, Mr Greg Rochford, with respect to an investigation that you recently completed for the Ambulance Service of New South Wales, namely an investigation into allegations of misconduct with respect to Ms Louise Hennessey (sic). Mr Rochford has asked that further enquiries and analysis be undertaken with respect to this matter. In particular, he has noted: · Brian White apparently commented that the report "looked like a cover up" - Mr White was not questioned about this claim. · There was reference to an email from Stewart Clarke saying words to the effect that "everything was all right now" - but the email was not contained in the materials, nor put into any context. · Louise Hennessey (sic) apparently contacted a Union official twice (Mr Bartley) to "encourage the Officers to tell the truth". This behaviour must be considered to be extremely questionable. · Is the "second" report the same one as that submitted by Stewart Clarke - this question arises as Louise Hennessey (sic) said it looked different - had a lot of spaces in it etc. · Was CTO action taken as recommended - did Stewart Clarke or Louise Hennessey (sic) follow up? · On page 31 - Allegation 1 - why was there no comparison of the two reports? · Melissa Clark appears to be a witness but is not interviewed - why was this interview not carried out? · Is filling out check forms a current matter of dispute? · Please comment on the times of appointment and submission of Attachment 16 to PSCU. To further discuss Mr Rochford's concerns I propose that you and I meet at Rozelle. This will also enable you to pick up the investigation report previously prepared by you. In that regard, I ask that you contact me as soon as possible on . . . to arrange for this to occur. Yours sincerely Dianne Dawson Assistant Director Professional Standards and Conduct Unit 12 June 2007 65 Ms Crouch reviewed her findings and conducted further enquiries. She then wrote a second report and on 9 July 2007 made the following recommendations: Having considered all existing and new evidence, both oral and written, I conclude that my findings stand. These are; 1. Find that there is insufficient evidence that Louise Hennessy did on 30 November 2006 at Wollongong NSW give improper advice and direction to Stewart Clarke concerning the writing of a report into his investigation of a Health Care Complaints Commission complaint. 2. Find that there is insufficient evidence that Louise Hennessy did on 30 November 2006 at Wollongong NSW remove pages from Stewart Clarke's draft investigation report and retain these. 3. Find insufficient evidence that Louise Hennessey (sic) did between 27 November 2006 and 30 January 2007 telephone Stewart Clarke and in respect to the officers that had been interviewed say words to the effect: "If they were to come clean and give a proper account of events, [I] would be prepared to forget about their initial statements." 4. Find that, on the balance of probability, Louise Hennessy did between 20 October 2004 and 31 January 2007 take effective action to ensure that staff in the Illawarra sector complied with Standard Operating Procedures 2.3.2.6, particularly in respect to the required daily checks of operational vehicles, as instructed by the Divisional Manager in writing on 29 October 2004. The following Recommendations also remain for your consideration: 1. That Mr Stewart Clarke and Ms Louise Hennessy be encouraged to come together as parties to mediation to address unresolved matters and views and establish a common understanding for a future professional working relationship within the Ambulance Service of NSW 2. That Ms Hennessy be provided feedback and review of her "team approach" to future investigation matters 3. That the Ambulance Service address current unresolved industrial matters as they relate to SOPS 2.3.2.6 66 Therefore, Ms Crouch again found not one of the four allegations pressed against Ms Hennessy were sustained. 67 Mr Graeme T Willis, on 11 July 2007, the Senior Investigation Officer of the Ambulance Service, then wrote a briefing note to the Acting Assistant Director, Professional Standards and Conduct, Mr Michael Willis, now the General Manager Operations and the Chief Executive Officer, Mr Rochford, regarding Ms Crouch's response. On 20 July 2007, Mr Michael Willis wrote on the briefing note that went to Mr Rochford as follows: Suggest that the manager "has not engaged in misconduct but not performing her duties in a satisfactory manner". No reason was given by Mr Willis to give foundation to this "suggestion". This view was adopted by Mr Rochford as his own view. 68 By letter dated 22 August 2007, Ms Hennessy was advised that Mr Rochford had determined that allegations 1, 2 and 3 were not sustained but as to charges 1, 2 and 3 he was of the view that Ms Hennessy's: . . . performance as a manager in relation to this investigation falls far short of the skills and standards required of your position and is unsatisfactory. With respect to Allegation 4, I am of the opinion that you have engaged in misconduct. (emphasis added) I have decided that remedial action is appropriate. The remedial action I propose is: · Implementing a performance improvement plan. I have determined that the General Manager Operations, Mr Mike Willis, is to pursue the performance management matter with you. This will also address supervision of the investigation. Finally, I note Ms Crouch's recommendation that Mr Clarke and yourself "be encouraged to come together as parties to mediation to address unresolved matters and views and establish a common understanding for the future professional working relationship with the Ambulance Service of NSW" . I support such action and encourage you to seriously consider the benefits that might arise. Notwithstanding, I recognise that this is a personal decision for both you and Mr Clarke. Should you be willing to participate in the mediation process, I ask that you inform the General Manager Operations when you meet with him to discuss your performance plan. The General Manager will contact you separately to make arrangements. ... 69 Therefore, relying on advice from other officers and not accepting the independent assessor, Mr Rochford determined Ms Hennessy's performance, as a manager in her dealing with Mr Clarke, was unsatisfactory. No reason was given to Ms Hennessy at this time as to the basis on which Mr Rochford formed this adverse view. In relation to allegation 4 relating to her conduct of the vehicle checks in her area, Mr Rochford now expressed the opinion that Ms Hennessy, as to allegation 4, had engaged in misconduct. The proposed action was the implementation of a performance review plan for Ms Hennessy. 70 Meanwhile, the Illawarra realigned position was re-advertised. Ms Hennessy was not successful again after being interviewed on 21 June 2007 and Mr Bray was appointed. 71 Ms Hennessy then determined to appeal the decision of the Ambulance Service to appoint Mr Bray to the Illawarra position. She filed her appeal to GREAT against her non-appointment, to what she perceived (and senior officers agreed in evidence) was a position which incorporated basically all of her responsibilities in the Illawarra as its Senior Officer. 72 In the Service's documentary case before the Government Related Employee Administration Tribunal (GREAT), in support of the Service's position that Ms Hennessy was not the best candidate for the "realigned" Illawarra position, the disciplinary letter addressed to Ms Hennessy on August 2007, which contained a challenge both to her competence and the misconduct finding, was forwarded by the Service to GREAT. At that time Ms Hennessy was disputing the misconduct finding that had been made against her by Mr Rochford. She also challenged the view that she mishandled her dealings with Mr Clarke. 73 Ms Hennessy was unaware that the external investigator engaged by the Service had found that all four allegations of misconduct were unsubstantiated on both 30 May 2007 and 9 July 2007. She was unaware Ms Crouch had been asked by Mr Rochford to reconsider her initial findings and that Ms Crouch had written a second report where Ms Hennessy was again exonerated. She was unaware of the fact that twice Ms Crouch had found not one of the four allegations was sustained. The members of GREAT were not informed of the facts. They were not informed as to Ms Hennessy's challenge to the finding of lack of management skills. She was also arguing against the "misconduct" finding. Ms Hennessy did not know the details of her alleged "poor performance" and had requested particulars. GREAT was not informed of these challenges. 74 The GREAT Decision, issued on 19 November 2007, found: Findings 7. The issue to be determined in this appeal is not whether Louise Hennessy meets the selection criteria and/or is likely to be able to fulfil the key responsibilities of the subject position but whether she has greater (not equal) merit than Michael Bray. 8. The Tribunal does not accept Louise Hennessy's contention that she has greater merit than Michael Bray although she was competitive with Michael Bray. 9. It was difficult for the Tribunal to decide who had greater merit for the subject position as both contestants present as dedicated officers with a range of skills, knowledge, qualifications, experience and abilities relevant to the subject position. In the end the Tribunal decided Michael Bray was the candidate with the greatest merit for appointment to the subject position. 10. Michael Bray, for a period of four months, was acting in the position of Sector Manager, Illawarra. Prior to that, from March 2003 until March 2007, he has been an Executive Staff Officer and prior to that he performed duty in the Operations Centre as a Senior Operations Centre Officer. He was also an Operational Ambulance Officer with Level 3 qualifications. He has undertaken a range of relevant vocational courses and clinical studies. 11. Louise Hennessy is currently performing duties with the APEC Special Projects Officer, Counter-Disaster Unit NSW Health Department. Prior to that, from 2001 until 2007, she was the Sector Manager at Illawarra. During this period she was the acting Divisional Manager of the Southern Division. She has also been the Section Manager at Macquarie in the Far West Sector and during this period she was the acting Area Manager Macquarie, Mid and Far West Area, Dubbo. She has also performed roles as District Superintendent, Industrial Relations Officer, Employee Relations Officer and Ambulance Officer. She has a number of tertiary qualifications and clinical studies. 12. Both contestants have work histories that clearly demonstrate they met all the selection criteria for the subject position to a high standard and that they could competently carry out the duties of the subject position. 13. The conduct and service check results from the Professional Standards and Conduct Unit indicated that Louise Hennessy was undergoing the implementation of a performance improvement plan. This arose from an investigation into allegations of alleged misconduct. One of the allegations of misconduct was found proven. The Tribunal takes this into account in coming to its conclusion. 14. Michael Bray and Louise Hennessy are meritorious candidates for the subject position. Although their work histories are somewhat different, the comparative merit of the two officers is finely balanced. However, the Tribunal believes that Michael Bray's managerial experience is at a higher level than that possessed by Louise Hennessy. Michael Bray's experience as a strategic manager is of a higher level through his experience with various projects both within the service, across NSW Health and other outside agencies. 15. Based on their work histories, their applications and the submissions presented in relation to this appeal, the Tribunal considers Michael Bray to have demonstrated that he possesses greater merit for appointment to the subject position. 16. As such, the appeal of Louise Hennessy is disallowed. 75 Ms Hennessy meanwhile had engaged the service of solicitors who attempted, on her behalf over a protracted period, to obtain a copy of what she thought was the independent investigator's single report and any other documents which Mr Rochford had considered in coming to his determination as to her management skills and her misconduct. No documents were given to her by the Service. 76 Mr Rochford, on 22 October 2007, in reply to her solicitors pressing upon him her request for documentation, provided a "summary of concerns". He stated that in relation to allegations 1, 2 and 3, Ms Hennessy: . . . was unable to effectively manage, approach and engage Mr Clarke in a "team approach" to the investigation. When questioned at the hearing as to the basis of his finding that she did not adopt a "team approach" he contended Ms Hennessy should have sought advice external to the sector to ensure a transparent process which would have prevented the issues that arose between Mr Clarke and Ms Hennessy. This was the first time this ground for the findings in allegations 1, 2 and 3 had ever been raised with her. In relation to allegation 4 and the SOP inspection, Mr Rochford referred to the variety of instructions to staff from Ms Hennessy but stated: ... However, Ms Hennessy did not follow-through with ensuring compliance in relation to her directions. She was also criticised for not following: ... the Service's process by managing this industrial disputation in relation to the SOP 2.3.2.6 by escalating the issue to ensure compliance with this critical area. ... Again this was the first time the matters in this new form was raised with Ms Hennessy. 77 Ms Hennessy continued to press, through solicitors, for a copy of the investigator's report. On 19 September 2007, this request was denied on behalf of the CEO by Mr Mike Willis, General Manager Operations, as follows: ... The procedural guidelines provide for the employee to receive a copy of the investigation report where misconduct is established and disciplinary action is being considered. The guidelines do not provide for the report to be provided where disciplinary action is not being considered, as is the situation involving Ms Hennessy. Having regard to the procedural guidelines, I am unable to accede to your request that you be provided with a copy of the investigation report and, further, find no cogent reason to stay the implementation of the remedial action. Please note also that any failure by Ms Hennessy to participate in the remedial process already determined by the Chief Executive has the potential to give rise to a further allegation of misconduct. ... 78 At this stage, Ms Hennessy was still unaware that the independent investigator had found none of the four allegations had foundation, nor that Mr Rochford had referred matters back to the investigator and that there was a second report which again cleared her. Ms Hennessy, however, persisted in her attempts to obtain a copy of what she thought was one of the investigator's reports. 79 On 21 April 2008, Mr Rochford wrote to her solicitors: Dear Ms Briscoe, I refer to your letter concerning the disciplinary process involving Ms Louise Hennessy and the Service's decision to take remedial action. I regret the delay in replying. I note your request to be supplied with extracts of the investigation report. As previously advised, the procedural guidelines do not provide for the investigation report to be provided where disciplinary action is not being considered. As previously advised also, I decided to take remedial action with respect to Ms Hennessy. Remedial processes are used to support employees to meet the required standards and are an opportunity to enhance the relationship between an employee and their employer. The implementation of a performance improvement plan will provide an opportunity for the General Manager Operations and Ms Hennessy to discuss and work towards resolving performance and conduct issues. In the interests of further progressing this matter, I invite Ms Hennessy to meet with me so that we may discuss her concerns in person. Ms Hennessy may wish to bring an observer to the meeting. The role of this observer is a support person but not an advocate. I would anticipate that a successful meeting will enable the early implementation of a performance improvement plan and subsequent finalisation of the matter. ... 80 It was not until 22 October 2008 that Ms Hennessy was provided with a censored extract of the first report which dealt only with allegation 4. This was the first occasion on which she became aware that the investigator had found that allegation No 4 was not sustained and that it confirmed she had taken effective action to ensure that staff in the Illawarra had complied with SOP 2.3.2.6. 81 Following further exchanges between Ms Hennessy's legal representatives and the Service, the Service indicated it had decided not to proceed with Ms Hennessy's "performance improvement plan" but instead issued her with a "written warning" inferring further action would be taken if she failed to attend meetings. This was a curious threat as there was no indication Ms Hennessy would not attend any meeting required of her by the Service and had in fact attended all required of her. 82 Ms Hennessy then received a call from Ms O'Connell, Director of the Ambulance Service Conduct Unit, for the purpose of meeting with her and with the Acting General Manager Operations, Mr G McCarthy, in December 2007. The Service explains this was an attempt to bring the matters to a conclusion. Although Mr Rochford had agreed to meet Ms Hennessy earlier, this had not occurred. Ms Hennessy accepted and attended two "remedial" meetings. Ms O'Connell recorded that Ms Hennessy was "deeply disturbed by these events". Ms Hennessy thought at that stage the matter was finalised. 83 In April 2008, Ms Hennessy received a letter from Mr Rochford advising her that she had to meet with him. She accepted and attended a meeting which was not finally arranged until June 2008. At the meeting with Mr Rochford, Ms Hennessy raised the issue of widespread non-compliance with the SOPs. Mr Rochford repeatedly did not accept this proposition. 84 On 5 November 2008, Ms Hennessy received the following letter: Dear Ms Hennessy I refer to my letter dated 22 August 2007 about the investigation of 4 specific allegations of misconduct where I informed you of my opinion that you had engaged in misconduct and that I was considering imposing remedial action. In relation to allegations 1, 2 and 3 which dealt with your supervision of Stewart Clarke's Investigation, my determination remains that misconduct had not been established but that your supervision of the investigation fell short of the standard and skill expected of a senior manager in the Service and was found to be unsatisfactory. You will recall that the investigator recommended that you meet with Mr Clarke for the purpose of resolving any outstanding issues between you. In relation to allegation 4, I formed the view that you had engaged in misconduct in that: You did between 29 October 2004 and 31 January 2007 not take effective action to ensure that staff in the Illawarra Sector complied with Standard Operating Procedure 2.3.2.6, particularly in respect to the required daily checks of operational vehicles, as instructed by the Divisional Manager in writing on 29 October 2004. You will recall that I proposed remedial action in the form of meeting with the General Manager Operations to implement a performance improvement plan. I am aware that you do not accept these findings or the proposed action. Correspondence has subsequently been exchanged between your various legal representatives and the Service and you have expressed your views and raised procedural issues during meetings with Acting General Manager Operations and the Director, Professional Standards and Conduct Unit. I understand that no performance improvement plan has been developed and the concerns about the short comings identified about your management performance have not been discussed in any meaningful or constructive way. On 23 June 2008 I met with you and your legal representative Mr Tom Ellicott. Mr Graeme Willis, Senior Investigator, Professional Standards and Conduct Unit also attended this meeting. At that meeting we agreed that the Service would provide you with relevant documents from the Investigation Report and that you and Mr Ellicott would provide the Service with your ideas on a way forward within days of the meeting and prior to the events of World Youth Day. You were provided with the investigation documents promptly and on 27 October 2008. I received a letter from Mr Ellicott advising that he wished this matter to be finalised without any findings or further action. As I told you when we met, I am concerned that the bulk of the communications in this matter has focused on procedural issues and findings rather than the underlying issues that give rise to the concerns about your performance. The situation remains that efforts to have you meet with the General Manager of Operations to discuss issues relating to the discharge of your responsibilities as a senior ambulance manager and to develop a mutually acceptable outcome has been frustrated. I have noted the time that has elapsed since my letter of 22 August 2007, due to the approach you have adopted and to a certain extent, administrative delays on the part of the Service. I have also give (sic) consideration to the suggestions from Mr Ellicott in his letter of 27 October 2008, the fact that Mr Clarke has taken up a position in another Division and that your recent performance in seconded positions has been satisfactory. Accordingly, I have decided to finalise this matter by way of a written warning. As a senior Ambulance manager you are accountable and subject to review. You are expected to heed the directions and advice of your managers. Failure to attend meetings with senior managers to discuss concerns about your performance will be viewed most seriously. I offer the following as guidance to you regarding my expectations in matters such as these. Specifically, I remind you of the comments made in my letter dated 22 October 2007 to your previous legal representative in relation to allegation 4 which remain valid: 1. The Standard Operating Policies (SOPS) are an extensive set of procedures covering many aspects of the procedural requirements for Ambulance staff. 2. The SOP 2.3.2.6 is a critical procedure in the activities of an Ambulance Station. This procedure clearly provides for the daily, weekly and monthly checks of Ambulance vehicles, referring to the appropriate forms to be completed to ensure the checks have occurred. 3. As the Operations Manager in the Illawarra, Ms Hennessy stated she had undertaken a variety of instructions to staff in relation to the implementation of this SOP. However, Ms Hennessy did not follow-through with ensuring compliance in relation to her directions. 4. Ms Hennessy also stated at interview that "I don't believe that they (staff) fill out a form because they won't accept the SOPs as an authority document". Ms Hennessy accepted the Union's position and did not follow the Service's process by managing this industrial disputation in relation to the SOP 2.3.2.6 by escalating the issue to ensure compliance in this critical area. Such a managerial action is expected of a person in her senior position of Operations Manager. The above items outline the performance issues that have been raised during the investigation and the basis for my concerns regarding Ms Hennessy's ability as a senior manager in the Service. Should you wish to discuss this matter, or to make further inquiries you should contact your immediate supervisor, Mr Denis Beavan, Divisional Manager Southern Division. Yours sincerely Greg Rochford Chief Executive Cc Mr Tom Ellicott, Access Business Lawyers 85 On 17 December 2008, Ms Hennessy replied at length to this letter and reviewed the whole history of her dispute and particularly took issue with the continued finding of misconduct, saying as follows: ... You have however, maintained your decision of misconduct despite my exoneration from the formal investigation, and proceeded to issue me with a written warning regarding a new matter of which I have not been given any right of reply. To this extent, I refer you to clause 17 of the Ambulance Service Regulation 2005 (NSW) which provides that I am entitled to have an opportunity to respond to an allegation of misconduct. I am compelled to address these matters in accordance with the Ambulance Service's long standing operating principles of procedural fairness, and for the sake of restoring my professional reputation. Issue of a Written Warning Your letter of 5 November 2008 asserts that I have frustrated efforts to meet with the General Manager of Operations; engaged in conduct to delay the resolution process; improperly escalated an industrial dispute; and unsatisfactorily supervised an investigation. As a result of one, or a combination of these, you have issued me with a written warning penalty. I object to each of these assertions. In particular, I have always done my best to accommodate meeting requests with senior management, even when such meetings have been scheduled for the most inopportune and inconvenient times. Further, it is unreasonable for you to issue a written warning "due to the approach [I] have adopted;" that being my pursuit of proper representation and advice. I understand that I am accountable to senior management and I see no basis for your statement that "Failure to attend meeting with senior managers to discuss concerns about your performance will be viewed most seriously." Further I note that prior to your letter of 5 November, I received no formal notice of an allegation of misconduct involving the escalation of an industrial dispute. To this extent, I have had no knowledge of an investigation, and more importantly, no opportunity to reply. ... 86 In March 2009, the HSU filed a dispute notification in the Commission concerning the unfair treatment of Ms Hennessy. After hearing the parties and considering the documents provided to her, McKenna C issued a Statement to the effect that there appeared to be some substance to the matters raised, particularly on issues of procedural fairness and that there was an available view that Ms Hennessy had been subject to disciplinary action for conduct related to the SOP 2.3.2.6 which conduct was no more or no less than the conduct of other officers at her level. McKenna C formally recommended that the Service review all adverse findings made by Mr Rochford against Ms Hennessy. 87 Mr Rochford accepted the Commission's questioning and advised Ms Hennessy that he proposed to review his finding with respect to allegation 4 but then identified the "misconduct" alleged was: . . . that between 29 October 2004 and 31 January 2007 you did not take effective action to ensure that staff in the Illawarra Sector complied with Standard Operating Procedure 2.3.2.6 particularly in respect to the required daily checks of vehicles by maintaining an audit of this process as instructed by the Divisional Manager. ... This reframed the fourth allegation and it also raised an "audit" process which had not previously been raised with Ms Hennessy nor had the requirement to conduct an audit form any part of the investigations tasked to Ms Crouch. 88 The HSU provided to Mr Rochford a comprehensive submission dealing with the issue of the compliance with SOP 2.3.2.6. Mr Rochford finally sought and received information from around the State as to the conduct of other operational managers of vehicle checks. It became clear that Ms Hennessy's conduct was the same conduct as to that of other Operations Managers around the State. There was State-wide union action in not filling in all the forms required - but each area had kept records which gave an assurance the ambulance vehicle inspections across the State were being carried out. 89 Mr Rochford conceded that he had initially formed the view that Ms Hennessy's conduct was so far away from normal management practice in this area as to constitute misconduct. He formed this view in ignorance of what was happening around the State. Yet Mr Rochford conceded he was aware the issue of the SOPs was the subject of State-wide industrial disputation from 1999. It was only after the HSU brought the situation of Ms Hennessy before the Commission and McKenna C made her recommendation on 23 March 2009, that Mr Rochford took any steps to check what Ms Hennessy was claiming for the previous two years was correct. When he did the audit to assess the level of compliance with the same procedure across the State, the results made him realise that he was wrong and that: Ms Hennessy's conduct was not beyond - way outside the conduct of similar managers in the service so I rescinded the finding of misconduct based on this. 90 Mr Rochford had been alerted to the issue of widespread non-compliance, initially in 1999, and again by Ms Crouch's report in May 2007. In December 2007, Ms O'Connell was alive to the proposition that Ms Hennessy should not be punished for what was a State-wide deficiency and systematic analysis should be conducted of that issue. It was not. There was a failure by the Service to conduct an audit to ascertain what the true position was until that course was recommended by the Commission in March 2009. 91 Mr Rochford now accepts that non-compliance with the form filling requirement of the SOP was far more widespread. He gave the following evidence: Q. You were aware that that was being said by and on behalf of Miss Hennessy in 2007 aren't you? A. Yes but, I am not. Yes I was aware but at that time I did not accept it. I had formed a view about what was happening in relation to those checks which subsequently proved to be wrong and was corrected nut at that time Miss Hennessy had adopted a fairly and I don't mean anything disparaging - a fairly combative, oppositional approach to these issues, raising a lot of issues that had to be answered. I don't mean that as criticism. It is her right but at the time a number of positions were put that was not necessarily agreed with by me or the service and that may be one of them. Q. It may be that you have conceded on that particular one that you were wrong? A. Indeed and I have no hesitation. 92 On 6 July 2009, Mr Rochford wrote: Dear Ms Hennessy IRC 367/09 Notification of Revised Decision I refer to my letter to you dated 9 April 2009 concerning a recommendation made by Commissioner McKenna of the Industrial Relations Commission of New South Wales on 23 March 2009. In that letter I confirmed that the misconduct alleged is that between 29 October 2004 and 31 January 2007 you did not take effective action to ensure that staff in the Illawarra Sector complied with Standard Operating Procedure 2.3.2.6, particularly in respect of the required daily checks of vehicles, by maintaining an audit of this process as instructed by the Divisional Manager in writing on 29 October 2004 (the Allegation). I also informed you of my proposal to review my finding that you have engaged in misconduct giving consideration to compliance with the 290 October 2004 direction, and the SOP generally, by other management staff. I have since reviewed this matter and have determined to rescind the finding of misconduct. While I have rescinded the finding, I remain of the view that your conduct fell short of the standards expected of manager of your level and experience in that you failed to acknowledge and exercise the managerial responsibilities of your position. I consider that remedial action is, in all the circumstances, still warranted. Accordingly, I have decided to re-issue the warning and guidance as set out in my correspondence to you on 5 November 2008. (emphasis added) As a senior Ambulance manager you are accountable and subject to review. You are expected to heed the directions and advice of your managers. If you are unable to ensure compliance with those directions by staff for whom you have responsibility, then you are obliged to report this back to the Service. I offer the following as guidance to you regarding my expectations in matters such as these. Specifically, I remind you of the comments made in my letter dated 22 October 2007 to your previous legal representative in relation to the Allegation which remain valid: 1. The Standard Operating Policies (SOPS) are an extensive set of procedures covering many aspects of the procedural requirements for Ambulance staff. 2. The SOP 2.3.2.6 is a critical procedure in the activities of an Ambulance Station. This procedure clearly provides for the daily, weekly and monthly checks of Ambulance vehicles, referring to the appropriate forms to be completed to ensure the checks have occurred. 3. As the Operations Manager in the Illawarra, Ms Hennessy stated she had undertaken a variety of instructions to staff in relation to the implementation of this SOP. However, Ms Hennessy did not follow-through with ensuring compliance in relation to her directions [i.e. by maintaining an audit of this process as instructed by the Divisional Manager in writing on 29 October 2004]. 4. Ms Hennessy also stated at interview that "I don't believe that they (staff) fill out a form because they won't accept the SOPs as an authority document". Ms Hennessy accepted the Union's position and did not follow the Service's process by managing this industrial disputation in relation to the SOP 2.3.2.6 by escalating the issue to ensure compliance in this critical area. Such a managerial action is expected of a person in her senior position of Operations Manager. The above items outline the performance issues that have been raised during the investigation and the basis for my concerns regarding Ms Hennessy's ability as a senior manager in the Service. Should you wish to discuss this matter please contact Dianne Dawson, Acting Assistant Director, Professional Standards and Conduct Unit on ... Yours sincerely Greg Rochford Chief Executive 93 Mr Rochford therefore responded by rescinding his previous finding of misconduct against Ms Hennessy. He, however, continued to maintain that her conduct fell short of the standards expected of a senior officer of the Ambulance Service and that the proposed remedial action was still warranted. Mr Rochford then re-issued a warning but it was different in its terms to the warning he had previously issued. 94 Ms Hennessy who ran the Illawarra Sector for the Ambulance Service for six years, is now classified as an "extra" and given jobs with no consultation. Until the time of the allegations against Ms Hennessy, she had an unblemished career as a senior manager for the Service. Her continued diligence in performing her duties at a high level for the Service is evidenced by her successful completion of both the APEC and World Youth Day projects. Her recent secondment has been as Convenor for the Intensive Care Selection panel. The Service still relies upon her judgement but during these proceedings the Service has maintained that Ms Hennessy's performance is unsatisfactory. 95 This is how Ms Hennessy's personal record stands. Mr Rochford requires she still attend for remedial action. Challenge To Jurisdiction 96 The respondent challenges under s 106 of the Act the jurisdiction of the Industrial Court to hear these claims for compensation for asserted unfairness in the performance of Ms Hennessy's employment contract. 97 Mr Warren for the Service contends: · The Health Services Act (and associated legislative provisions) provide a legislative bar to any application for variation to an individual condition of employment under that Act. As a matter of public interest, Ms Hennessy should not a fortiori be able to claim a different individual benefit from there derived solely from Award terms. · Section 105 in the 1996 Industrial Relations Act provides no Award employee has access to the provisions of, or relief under, s 106 of the Act; under the definition of "contract" in s 105 of the Industrial Relations Act 1996 there is a statutory bar to any claim of unfairness related to "an industrial instrument". · The Award is the complete contract of employment of Ms Hennessy by agreement or by inference between the parties and there can be no finding of unfairness related to an Award provision as the Award, which has statutory force, cannot be held to be unfair; Alternatively: · Clause 32, the Accommodation Clause of the relevant award, has been incorporated into the contract of employment and any issue in relation to a clause in an industrial instrument is statute barred from a consideration of unfairness under s 106. Legislative Bar to Claims 98 The first challenge to the jurisdiction by the respondent is the assertion that there are public service legislative provisions which bar the Court from considering the employment circumstance of an individual employee in the health service area. Those legislative and regulatory limits trammel the respondent's capacity to enter into or vary any individual's conditions of employment (except for health executives as defined by the Health Services Act: s 116 and 116A; Part 3, Regulation 12 of the Public Sector Employment and Management (General) Regulation 1996 (NSW)). 99 Reliance is placed, in particular on sub-section 116A(4) of the Health Services Act, which it is asserted, binds the respondent in respect of collective employment arrangements and bars any applications by an individual to alter or amend any Award condition. 100 Relevantly the Act states: 116 Employment of staff generally (1) The Government of New South Wales may employ staff under this Part: (a) to enable area health services and statutory health corporations, and the public hospitals that they control, to exercise their functions, and (b) to enable declared affiliated health organisations to exercise their functions in relation to their recognised establishments and recognised services, and (c) to enable the Director-General to exercise his or her functions under Chapter 5A in relation to ambulance services, and (d) to enable the Director-General to exercise his or her functions under Part 1A of Chapter 10 in relation to the provision of health support services to public health organisations and the public hospitals that they control, and (e) to enable the Health Administration Corporation to exercise its functions under this or any other Act. (2) The employment of staff in the NSW Health Service, including the exercise of employer functions in relation to that staff, is subject to the requirements of this or any other Act relating to that staff. (3) The Director-General may, subject to subsection (2), exercise on behalf of the Government of New South Wales, the employer functions of the Government in relation to the staff employed in the NSW Health Service. Note: The Director-General's functions under this or any other Act may, under section 21 of the Health Administration Act 1982 , be delegated to any person. (4) The Director-General may create divisions (however described) of staff in the NSW Health Service. (emphasis added) (5) This section does not limit the purposes for which, or the manner in which, staff may be employed in the NSW Health Service. The Ambulance Service of NSW is such a Division created for the delivery of a health service in NSW under the Health Services Act 1997. 101 Under s 116A, the Director General can determine with the relevant union, on behalf of staff, the conditions of employment, as follows: 116A Salary, conditions etc of staff employed in the NSW Health Service (1) The Director-General may fix the salary, wages and conditions of employment of staff employed under this Part in so far as they are not fixed by or under any other law... (3) The Director-General may enter into an agreement with any association or organisation representing a group or class of members of the NSW Health Service with respect to the conditions of employment (including salaries, wages or remuneration) of that group or class. Any such agreement may (subject to Part 2) extend to conditions in respect of the employment of persons convicted of, or charged with, serious sex or violence offences. (4) An agreement under subsection (3) binds all members of staff in the group or class affected by the agreement, and no such member, whether a member of the association or organisation with which the agreement was entered into or not, has any right of appeal against the terms of the agreement ... (emphasis added) Therefore, under the relevant legislative provision and regulations, the Health Service is empowered to establish the Ambulance Service and the Ambulance Service is empowered to enter into an Agreement (in the terms of the Award) with the HSU for the payment of its staff. Accordingly, the Ambulance Service under s 116A(3) entered into an agreement with the HSU regarding the conditions of employment for persons employed of whom Ms Hennessy is but one officer. 102 Under s 116A(4), a member of staff cannot appeal against the terms of the agreed Award. However, I do not infer that the statutory bar under s 116A(4), which has the effect of stopping individual staff members from applying to change the terms of the Award (which recites the "conditions of employment" of an employee) should be read down to infer there is a statutory bar to a consideration of whether there was fairness in the conduct of the "contract of employment". 103 Further, I do not accept (and will later give further consideration to this submission) that an Award which determines the "conditions of employment" necessarily becomes "the employment contract". 104 I reject the proposition that the legislative bar in the relevant public service legislation operates as a statutory bar to the Industrial Court considering whether an award employee in the conduct of his/her contract of employment was treated unfairly such as to make the contract unfair. There are a number of avenues in which an employee can seek redress in a dispute against his or her employer under the law. The unfair contract provision under the Industrial Relations Act 1996 is but one avenue. It cannot be against the public interest to allow that an eligible employee has access to another legislative provision to seek relief. Nothing in the above legislative provisions would bar a consideration of an award employee's claim that his or her contract of employment was, in its performance, unfair. The only legislative bar to such an employee is to bar any application to alter or amend any term of the award. Section 105 definition in IR legislation: A Statutory Bar to a Claim under s 106 for an Award Employee Submissions 105 The respondent submits as a matter of principle, s 106 - and its previous statutory provisions s 88F and s 265 in prior NSW industrial legislation - were never legislated to be a springboard for award covered employees to start from an award base and pursue better overall benefits than those recited in the terms of that employee's award. A central purpose of s 106, the respondent submits, is to protect the integrity of award rates and conditions against diminution by non-employee contractors. Therefore, it is contended the provision is not intended to allow an award employee to seek a financial benefit under the award terms and conditions. This proposition, it was argued, is further strengthened by a consideration of the amendments to s 105 of the 1996 Act, which amendment emphasised that a challenged contract cannot include "an industrial instrument". 106 Mr Warren relies upon principles in law, and on the facts of the case, in support of his propositions. He contends Ms Hennessy's employment is governed only by Award conditions. He submits the Operational Ambulance Managers (State) Award 2008 regulates the terms and conditions of Ms Hennessy's present employment. 107 Mr Warren distinguished a line of authority of the Industrial Court where relief had been granted under s 106 but, he argued, that relief was given to applicants who were non-award employees seeking minimum award benefits not award employees. Mr Warren places reliance on the reasoning of Macken J in Casey v Wentworthville Memorial RSL Club (1986) 16 IR 337 where it was held there was no jurisdiction under the then s 88F of the 1940 Act for the Industrial Commission to determine that the contract of employment of an award covered employee was unfair. Later decisions of the Industrial Relations Commission (as the Industrial Court) considered either qualifying or rejecting Macken J's reasoning on this matter (such as in Barry v Incitec (1992) 45 IR 143 and Newton v Goodman Fielder Mills Ltd (1997) 81 IR 227) failed to address the award or the relevant industrial instrument provisions the respondent contends. Therefore, the proposition that there is jurisdictional exclusion to a consideration of a claim re an award provision or any claim by an award employee as found by Macken J in Casey is the applicable law. 108 The respondent therefore contends the amendments to the unfair contract jurisdiction excluded in the 1996 challenge to industrial instruments by the definition of contract in s 105 of the Act and that puts at an end any potential to challenge an award provision. In effect, Mr Warren submitted an award employee cannot have access to the benefits of relief under s 106 because an "industrial instrument" is excluded under the definition of s 105 and there can be no finding an award provision is unfair. Consideration 109 Section 105 states: 105 Definitions In this Part: contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument . (emphasis added) 110 In introducing this definition the Honourable J W Shaw QC, on 23 November 1995, said with respect to Part 9 - Unfair Contracts (see Hansard at pp 3850): Chapter 2 part 9 carries forward a revised version of section 275 of the 1991 Act, a section which makes special provision for the varying or setting-aside of contractual arrangements if a contract or collateral arrangement is found to be, for example, unfair, harsh, unconscionable or against the public interest. The effect of section 275 has been the subject of differing judicial approaches. The bill introduces some changes to give legislative direction broadly consistent with the comments about the scope of the section made by the Court of Appeal in Walker v Industrial Court of New South Wales and Anor. (1993) 53 IR 121. In general, the provisions have been redrafted in an attempt to give clearer legislative direction to effect the intended broad sweep of the jurisdiction. The Attorney General, in referring to the scope of the amendment in the 1996 legislation to the unfair contract provision, referred to comments made by the Court of Appeal in Walker v Industrial Court of NSW (1993) 53 IR 121. In that matter, the Full Bench of the Industrial Court had overturned relief granted at first instance to Mr Walker for the unfairness of his employment contract and rejected the Court's first instance order for payment of appropriate termination monies. The Court of Appeal upheld the minority judgment of the Full Bench which found there was discrimination afforded by the employer to Mr Walker in a comparison between the benefits on termination paid to other employees in the circumstance where no such equivalent monies were paid to Mr Walker. 111 However, as the Hon J.W. Shaw, Attorney General, said the purpose of the amendments to the section was to make clear the "scope of the section". In Walker, the Court of Appeal rejected the expressed view of the majority of the Full Bench of the Commission who concluded that conduct by the employer on termination, even if such conduct was unfair, did not alter the terms of the contract and therefore did not make the contract itself unfair. The Court of Appeal rejected this proposition and held (at 133): In determining whether "unfairness" in the contract or arrangement has been established, regard may be had not merely to the terms of the contract or arrangement, as originally negotiated, but also to the manner in which the contract or arrangement has ultimately worked out and operates as between the parties to it. ... 112 The scope of the legislative provision s 106 addressed in Walker therefore was whether "conduct" could be held to make a fair contract unfair, not that an award employee is barred from access to s 106 if under the contract of employment there is unfair conduct. The Court of Appeal directly rejected the proposition of the majority that conduct could not affect a term of an agreement in a consideration as to how that term "worked out such as to attract relief if the conduct made the contract unfair". 113 Simply because an award employee enjoys under the relevant award minimum "terms and conditions" of employment (which Award is an industrial instrument and is statue barred from attack under s 105) that employee is not thereby denied access to a consideration under s 106 of whether his/her "contract of employment" was fairly conducted so as to ensure, in its performance, the contract remained fair. 114 It is necessary, to give force to this conclusion, to recite the authorities of which this conclusion is reached. In Byrne v Australian Airlines Ltd (1995) 185 CLR 410 the High Court held the proposition that the obligation to observe an award arises by force of statute, not because the award was imported into a contract of employment. The provisions of the award are not an implied term of the contracts of employment, because such an implication is not necessary for the provisions to be reasonable and effective in all the circumstances. 115 In Burgess v Mount Thorley Operations Pty Ltd (2004) 132 IR 400, [2003] NSWIRComm 432, the Commission in Court Session considered applications brought after the amendment in s 105 brought under s 106 by miners who had been made redundant. While the essential issue in that case was whether the orders sought were inconsistent with provisions of the Federal Award, the Commission in Court Session also considered the application of the relevant principles to the jurisdiction of the Industrial Court to hear applications under s 106 by award employees. The Commission in its reasoning as to the applicable principles adopted the view of the High Court stating: 56 In Byrne v Australian Airlines (1995) 185 CLR 410 it was held that the terms of the relevant award were not incorporated into the contract of employment independently of the intention of the parties; that the award operated with statutory force and there was no need to convert statutory rights and obligations into contractual rights and obligations. 116 As said by Hungerford J, in Stonham v The Speaker of the Legislative Assembly of New South Wales (2009) 97 IR 325; [2000] NSWIRComm 69 who recently considered a similar submission to that made by Mr Warren. His Honour (in dealing with an interlocutory application to dismiss a claim under s 106) held at [34]: 34 I turn then to deal with the primary grounds of attack on the s 106 claims as advanced by Mr Menzies (for the Respondent). That challenge was mounted, as I have said, on two bases. The first was that no order could be made under the section which would have the effect of rendering any part of the enterprise agreement or the award void, either in whole or in part. Mr Ferrier (for the Applicant) conceded the force of that submission but met it with the submission that no part of the Applicant's claim sought to avoid or vary such enterprise agreement or award; rather, as he put, the challenge was to the contract of employment between the Applicant and the Respondent. In my view, Mr Ferrier's concession was properly made and this aspect of the argument need be taken no further as it misconceived the real character of the Applicant's claim. and as Hungerford J held in Stonham (adopting the view expressed in Byrne ) at [40]: In a system of industrial regulation as exists in this case where awards (and enterprise agreements) may be made to prescribe conditions of employment for employees generally in a particular industry, it has long been recognised, as I understand the position, that where a person is employed to perform work to which an award applies the parties are nonetheless bound by a contract being a contract of employment. In other words, the legal relations between them are determined in part by the contract and in part by the award but it is the existence of the contract creating the relationship of employer and employee which makes applicable the award to the extent the award controls or regulates the relationship as to the matters it covers: see generally Mallinson v The Scottish Australian Investment Co Ltd (1920) 28 CLR 66 at 73; Amalgamated Collieries of WA Ltd v True (1938) 59 CLR 417 at 423, 436-437, 438-439; True v Amalgamated Collieries of WA Ltd (1940) 62 CLR 451 at 454-455; and Re Waterside Workers Award [1957] 1 FLR 119 at 122-123. 117 The respondent contends Orders 2 and 3 of the Amended Summons (see [3] above) would have the effect of avoiding or varying the award to provide Ms Hennessy a greater benefit than that allowed under cl 32 of the award. In my view Order 2 simply requires that the respondent complies with cl 32 of the award. The award has statutory force. There is no need for such an order. Order 3 asks for just compensation for the unfair conduct of the respondent which conduct made, not the award or a term and condition of the award unfair, but the contract of employment unfair. Section 105 provides no bar to a consideration by the Industrial Court to such a question. 118 Further, I reject the submission that the principle adopted in authorities dealing with applications from non award employees under s 106 should be distinguished from the applicable principles relevant to an application by award employees when each application, to attract jurisdiction of the court under ss 105 and 106 must be an application directed to the fairness of the contract of employment. 119 The award has statutory force and should be complied with. I agree s 106 should not and is not an enforcement provision to ensure award employees are paid award entitlements. However, conduct in the performance of the contract of employment of an award employee can be given consideration in the Court's assessment as to whether such conduct unfairly affected the contract of employment. Incorporation of the Award/Clause of Award into the Contract of employment 120 The third submission pressed by the respondent, mounted expressly against the accommodation claim but also applicable to the loss of opportunity claim, is that the relevant award was incorporated and became the contract of employment and s 105 ensures the Industrial Court has no jurisdiction to give orders affecting award terms and conditions. Such a submission has been given much judicial consideration. 121 Mr Warren submitted: ... it is very clear that the applicant was well aware that she was employed in accordance with the terms of the Inspector Operational Manager's (State) Award. As that Award changed its title, it is specifically detailed in the advertisement to which she applied that the accommodation would be as per that Award. Indeed, so much is evident from the repleadings in this case. The reliance in the pleadings on that Award and the submissions of my learned friend with respect to the claim in Orders 2 and 3 we say is irrefutable, with respect. and: If there ever was a need to incorporate an Award into a contract for employment for the purposes of assessing whether it is challengeable under 106, the evidence is before this Court quite clearly. The Award has been incorporated into the contract of employment in quite specific terms. 122 The respondent is in this submission adopting the proposition posed by Hungerford J in Stonham at [44]: 44 At the least, for the respondent to succeed it would have to be shown that what the applicant has claimed as relief under s 106, or any similar order thereunder made by the Court, would derogate from the terms and conditions prescribed by the award. And, as it was developed, that was the thrust of Mr Menzies ' argument that effectively the orders sought under s 106 would be inconsistent with, contrary to or conferred a benefit greater than that allowed by the award so as to be barred by the exclusion of industrial instruments from the section's remedial scope. Mr Warren advances a similar argument but proposed further that the Award was the contract of employment. 123 It is necessary to consider the evidence related to Ms Hennessy's appointment as a Sector Manager to consider the submission of the respondent that the award became Ms Hennessy's contract of employment. Three documents are relied upon by the respondent who contends Ms Hennessy agreed to incorporate the award into her contract of employment. Those documents are: the advertisement; Ms Hennessy's letter of appointment and the Position Description document. 124 The advertisement noted: Conditions of Employment: · The successful applicant will be appointed under the terms and conditions of the Superintendent/Operational Manager (State) Award. · The provision of accommodation will be within the terms of the Superintendent/Operational Manager (State) Award. The letter of appointment noted: · the conditions of employment are embodied in the proposed Superintendent/Operational Managers (State) Award. It then refers to a salary range. The Position Description noted: · "Award or Contract" Section 8 - Knowledge, Skills and Experience noted: · the appointee had to have proven knowledge "of Ambulance Service policies, practices and protocols". 125 It is alleged Ms Hennessy would have signed this document, however, no signed document was produced. 126 Therefore, all documentary evidence relied upon by the Service refers to Ms Hennessy's "conditions of employment" were in accordance with the Superintendent/Operational Management (State) Award. The documents fall well short of stating that the award would form part of Ms Hennessy's "contract of employment". No document expressly stated the relevant award was incorporated into the contract of employment. There is no written agreement between the parties that the award was to be incorporated in the contract. The Full Court in Burgess v Mount Thorley Operations Pty Ltd (2004) 132 IR 400, [2003] NSWIRComm 432 considered Schmidt J was correct in her observation at first instance when considering a similar issue at [60]: [A]ll that the references in these letters to the applicable awards pointed to, was an appreciation of the fact that the applicable award attached to the employment which the parties had created by their contract, given the operation of the applicable statute and that as a result, the award conditions applied. From neither the applicants' point of view, nor that of the entity which employed them, was there any need to convert such award rights and obligations, into contractual rights and obligations. 127 The respondent contended alternatively that it could be "implied" the Superintendent Award formed the contract of employment because of the "presumed or imputed intention" of the parties. As the Full Court held in Burgess at [61]: We consider that implication of the Award terms was not necessary for the reasonable and effective operation of the employment contracts: See Byrne v Australian Airlines at 422-423 and BHP v AWU at 701. I find the same circumstance exists in the matter before me. 128 It was also contended because the advertisement for Ms Hennessy's position specifically mentioned the provision of accommodation (within the terms of the Award (then cl 26, now cl 32) that mention in the advertisement had the effect of incorporating specifically the accommodation clause (cl 26, now cl 32) into the contract of employment and Mr Warren contended that would then attract the statutory bar to jurisdiction. 129 The advertisement needs to be put in context. It was advertising a position in the Illawarra and the South East Area. It could alternatively be inferred the mention of the accommodation term of the award in the advertisement could have been used to attract applicants to the position. 130 There was no agreement between the parties to incorporate the provision into the contract of employment nor do I accept because the accommodation term is mentioned in the advertisement that reference is sufficient evidence for the Court to infer it was the intention of the parties the relevant provision by agreement became part of the contract of employment. Again there was no need. The fact that the accommodation clause was in the award gave it statutory force. It would have been unnecessary to incorporate it into the contract of employment. There is no evidence such incorporation was either agreed to by the parties or can be so inferred. 131 Further I reject the proposition if the clause is incorporated into the contract of employment there would be a statutory bar to such consideration of fairness. Burgess and Byrne were actually applications to incorporate clauses into the employment contract so as to attract jurisdiction of the particular clause. Conclusion as to Jurisdiction 132 As I understand the first claim: Ms Hennessy contends she has made herself available (and continues to so do) personally and directly for ambulance duty on nights and weekends and she is entitled, under the Award, to rent free accommodation for that service. She sought that suitable accommodation from the Ambulance Service but in the manner in which the Ambulance Service dealt with her application, that is, in their conduct in the performance of her contract of employment, there was an unfairness. She asks for no benefit different from or in conflict or greater than the benefit she is entitled to under the Award. She asks for compensation for the unfair conduct in the performance of her contract. Section 106 is not an enforcement provision. I have determined that cl 32 can be read to infer such accommodation has to be "suitable" rent free accommodation. There can never be a finding by the Court that cl 32, a clause in an award, is unfair nor is that the claim advanced. Clause 32 of the award is a fair clause. 133 Rather the Court is asked to consider whether there was an unfairness in the performance of the contract of employment such as to make the contract unfair. Order No 2 of the summons asks for a recitation of the award provision and then an order "requiring the Respondent" to comply. The award has the force of law. The respondent, if the applicable conditions are met, must comply with any request for suitable rent free accommodation. There is no need to give such an order. The award provision has statutory force once the conditions therein are met. 134 Order No 3, however, asks, for an order for variation of the contract of employment (not the award which recites terms and conditions of employment) requiring the respondent for its unfair conduct in ignoring a fair request from an employee to pay just compensation for the respondent's unfairness. The order contends compensation should be paid for "past failure to provide Ms Hennessy with suitable quarters rent-free." 135 There is nothing in this order which would give the applicant any benefit above and beyond the award provision. If the failure to provide the benefit was because of conduct by the respondent that was unfair in the performance of the contract then the Court can and should consider this application. I find the Court has jurisdiction to hear this claim. Claim for Loss of Promotional Opportunity 136 As to the challenge to the jurisdiction to hear the claim related to Ms Hennessy's loss of promotional opportunity, the respondent contended this claim is, in effect, an appeal from the decision of GREAT and therefore the claim under Orders 4 and 4A are out of the jurisdiction. The respondent submitted: The agitation of the issues the subject of Ms Hennessy's complaint, the resolution of which is sought in orders 4 and 4A before this Court have been the subject of a failed opportunity to appeal to the Supreme Court of New South Wales and considerable proceedings before this Industrial Relations Commission of New South Wales pursuant to Section 130 of the Act. In both cases Ms Hennessy has chosen not to pursue a legal outcome available to her in both jurisdictions. The respondent contends: The effect of granting the claimed order 4A would be to substitute the decision of the GREAT Tribunal to one in favour of Ms Hennessy by ordering, on an ongoing basis, Ms Hennessy be paid as if she had successfully appealed from the decision of the Respondent not to appoint her as Assistant Divisional Manager of the Illawarra region. It would be an improper use of Section 106 for this Court to vary, in the public interest, Ms Hennessy's contract in favour of an allegation of unfair treatment when her appeal proceedings before GREAT were unsuccessful and she failed to exercise her right of further appeal on the basis of the allegations here in pursued before this Court... . . . Claims 4 and 4A, the economic loss claim is in effect the resultant of a re-run of the Applicant's unsuccessful appeal to GREAT and untaken opportunity to appeal to the Supreme Court. 137 Order No 4 asks for a finding of conduct that was unfair in the performance of the contract, and that such conduct unfairly impeded Ms Hennessy's career progress. Associated orders for just compensation for that career interference are asked for in Order No 4A. 138 As I read the Order Nos 4 and 4A, Ms Hennessy is not re-agitating the GREAT decision but contends the asserted unfair conduct of the Service during and after the GREAT decision has had a deleterious affect on her career and her prospects and given the effect of that unfair conduct she asks for compensation. 139 The fact that Ms Hennessy did not pursue her right to go to the Supreme Court to appeal the GREAT decision does not as a fact therefore make her statute barred from seeking relief under s 106 related to an asserted unfairness in her contract of employment Further, Ms Hennessy in the pleadings relies upon the conduct of the respondent in the procedures adopted before GREAT rather than the GREAT decision and as well the respondent's conduct after the GREAT decision and the effect that conduct has had on her contract of employment as to the unfairness. 140 While the award has provisions which provide dispute procedures which can be followed and Ms Hennessy accessed dispute procedures in this matter as with her access to the Supreme Court to appeal the GREAT decision, Ms Hennessy has accessed a right under s 106, as contended, that her contract of employment became unfair given the respondent's conduct during and after a proper investigation. She contends such conduct impeded her promotion. 141 The Court has jurisdiction to hear this claim. 142 I am therefore persuaded there is jurisdiction to hear each claim pleaded. 143 Much of the respondent's objection as to jurisdiction related to the fashioning of orders just in the circumstance after there is an unfairness found and the Court determines the contract has become unfair and if the Court should vary the contract. As to the fashioning of orders "just in the circumstance" there must be further consideration. The Court must firstly determine whether the contract was unfair and whether it should be varied and there be an associated order just in the circumstances. Conclusions as to Unfairness The Accommodation Claim 144 The facts reveal the Service complies with its obligation to provide under cl 32 of the Award accommodation (and light and fuel costs) to the relevant officers eligible, that is: those who provide service night and weekends in one of three ways: firstly, through houses it owns; secondly through houses it rents and allocates or, thirdly, by paying the officer a fair rental subsidy for rental accommodation calculated from average rental accommodation in the particular district. For 20 months, that is, one year eight months, the Service ignored Ms Hennessy's entreaties. After misunderstanding her claim and offering her a rental subsidy in December 2004, the Service was forced to withdraw that offer as it realised she was not renting but living in her own home. She had always made clear her accommodation circumstance to the Service. It clearly misunderstood her circumstance. Then from 2004 until 2005 it made no further offer. It was not until December 2005 that the Service made an offer to Ms Hennessy to rent her suitable accommodation. She rejected that offer as she and her family were settled in their own home. 145 The applicant's case as I understand it is that the relevant unfairness arises as a result of the respondent's arbitrary determination to ignore her fair request (apart from the part of the provision dealing with free light and fuel which are now being paid to her) as a Superintendent in the Ambulance Service to provide her with suitable rent free accommodation. She receives minimal compensation for providing the Ambulance Service's work at night and on weekends. 146 This unfairness continued in two distinct periods. The first period was when she complained while occupying unsuitable accommodation. Then in the second period she occupied her own home. The respondent made no attempt to respond to her representations notwithstanding it was on notice she was occupying unsuitable accommodation. This conduct had the effect of denying her the opportunity to explore options which would have enabled her to retain the full financial benefit given her agreed availability to work at nights and on weekends. 147 At no time did the Service offer her alternative accommodation: neither by renting her "suitable" accommodation; nor offering her a rental subsidy, nor advising her as to her right to rent suitable accommodation (with a subsidy from the Service) up until December 2005. To say that there were financial constraints on the Service at the time is not an acceptable explanation. The Award is law. If an officer complies with the conditions under the Award they have entitlement under the law. 148 It is not a claim an Award provision is unfair, or even a claim that an Award clause should be varied, but a claim there should be a declaration as to unfairness in the conduct of the Ambulance Service in dealing with a request by her for an entitlement and that conduct led to her contract of employment becoming unfair. Therefore the contract should be varied and an order be given for just compensation for that unfairness. 149 It is because of the conduct of the Ambulance Service in dealing with Ms Hennessy's request for suitable accommodation that I find there was unfairness in the employment contract such as to make the contract unfair. The Promotion Claim 150 The applicant has identified a second issue in the litigation. She contends the Ambulance Service made false findings, both as to her management skills and a finding of misconduct, which findings were made because of a failure to give her procedural fairness when it provided GREAT with a letter against her interest (on an appeal from an Ambulance Service decision) and this conduct by the Service which continued after the GREAT decision has impeded her career within the Service. 151 Mr Rochford accepted that a sustained allegation of misconduct could have a negative impact upon someone in Ms Hennessy's position who was seeking appointment to the new position. He also accepted that any finding of misconduct would necessarily impact adversely on a person's prospects of being successful in a GREAT appeal. He agreed his letter containing his finding as to her poor performance and misconduct was forwarded to GREAT with a request that it be taken into account. This occurred, in circumstances where the view expressed as to Ms Hennessy's poor performance was based on matters that were never put to Ms Hennessy and Ms Hennessy had never been given the opportunity to respond. Mr Rochford further accepted that he failed to instruct that GREAT be advised Ms Hennessy was disputing both the misconduct and poor performance findings. Further, Mr Rochford conceded GREAT was not informed there had been an independent investigator who had made a finding to the contrary on two occasions in two separate reports. 152 Mr Rochford gave the following answer when he was asked whether procedural fairness required a later allegation of poor performance be put to a Service officer. He said he had reached the conclusion as to her poor performance on reading the investigator's report: Q. So you concluded that her performance was unsatisfactory? A. Yes. Q. You told her that in writing? A. Yes. Q. But you don't tell her why? A. No, not at that stage. 153 As to Mr Rochford's challenge to Ms Hennessy's performance, he was asked to recite examples. He expressed the view she should have advised Mr Clarke to seek guidance from the Professional Conduct Unit in the preparation of his report. Evidence revealed Ms Hennessy had in fact suggested to Mr Clarke that he contact the Professional Conduct Unit for assistance. This example does not substantiate a poor performance finding. The other example given by Mr Rochford was Ms Hennessy should not have proceeded to advise Mr Clarke. It is necessary to state, firstly, Mr Clarke's allegations were dismissed twice by the independent investigator. Further, it is difficult to see how Ms Hennessy could have both taken herself away from advising Mr Clarke (in her role as his supervisor) and yet ensure a better "team" approach be taken (as Mr Rochford thought was required). 154 While I accept a CEO who receives an independent investigation report is not obliged to accept all or even any of the findings of that report, I find in this particular matter, where the CEO chose to send the matter back to the investigator for further consideration, and where he raised other matters not particularised to the officer, and where in the second review there was again no allegation substantiated, yet the CEO again does not accept the findings, then there is a valid challenge as to the fairness of this process. This is especially so when, in rejecting the second finding of the independent investigator, the CEO raised a further challenge with the allegation of poor performance (not particularised). While the misconduct finding was finally withdrawn after the Commission ordered a review, in evidence Mr Rochford continued to press he was not satisfied with Ms Hennessy's management skills and he wanted her to be counselled. 155 Since 2002, Ms Hennessy has been pursuing her claim as to her unfair treatment by the Service in a most dogged manner. She has written letters, called in the union, notified two dispute applications and then litigated and appealed the Service's decision on promotion. I have no doubt this has caused serious aggravation to many senior officers of the Service. However, such a circumstance does not provide a valid explanation for what was a false finding of misconduct made against her. Nor has there been evidence led to substantiate the challenge to her performance before which, over a long period of time, she had achieved promotion and had given satisfactory leadership. Further, to simply propose that the finding of "poor performance" was only going to lead to counselling does not make the above circumstance fair. The Service has failed to provide evidence which could sustain the "poor performance" finding against Ms Hennessy. In making this finding, I make no credit finding against Mr Rochford, the CEO of the Ambulance Service. He appeared to me to be genuine in his assessment that Ms Hennessy's performance was not up to standard and he has clearly been informed by and accepted the advice of other officers. However, the very few examples relied upon do not stand up to scrutiny. 156 Further, the Ambulance Service's referral of the finding as to misconduct, without informing GREAT of her challenge to that finding was unfair (that finding was later rescinded). While I do not accept Ms Hennessy's suggestion the above information did affect the GREAT decision, I find the Ambulance Service's conduct in firstly making a finding of misconduct, belatedly withdrawing it and then raising a challenge to her performance (not particularised to Ms Hennessy and not substantiated on the evidence) leads the Court to the view there has been further unfair conduct related to the failure to provide Ms Hennessy with procedural fairness in the performance by this employment contract such as to make the contract unfair. Compensation 157 Under the Act, consideration must now be given to whether the contract of employment should be varied and whether there should be an order for compensation "just in the circumstance". It is at this stage of the proceedings the Court has serious difficulty. 158 As to the accommodation claim: the applicant is entitled under her award for making herself available (as the evidence revealed she does) for weekend and night work to rent free accommodation. The clause of the award is clear: an officer, providing such a service is entitled "to quarters rent free". Ms Hennessy is still entitled to Service provided suitable accommodation, be it a Service owned home or Service rented accommodation or (as the Service has read down the provision) subsidised rental accommodation. Ms Hennessy has pressed her claim for suitable accommodation since 2002. The first time the Service acknowledged she was entitled to a suitable rental property and made an offer to her to provide same was through negotiations with the HSU in December 2005. She rejected the offer. It was an offer in accordance with her entitlement. There was an unfairness in the conduct of the respondent in refusing to consider her request from June 2002 to December 2005. 159 From June 2002 to the end of June 2003, Ms Hennessy pressed the Service to provide her with suitable accommodation. During that period she met the requisite condition to be available for work at night and on weekends. However, in this period she was also occupying Service owned rent free accommodation. She moved into her own home in July 2003. 160 From July 2003 up to December 2005, the Service, although pressed by Ms Hennessy, continued to fail to offer her suitable accommodation in a circumstance where she also complied with the conditions necessary to obtain "quarters rent free". 161 However, in December 2005 the Service offered to provide her with suitable accommodation in accordance with their obligations. She rejected that offer. 162 While a quantum meruit action is a cause of action not available, the principle that a person is entitled to reasonable value for services rendered is still an applicable principle. As was said by Deane J in Pavey & Mathews Pty Ltd v Paul (1987) 162 CLR 221 (at 256-257): a unifying legal concept which explains why the law recognises, in a variety of distinct categories of case, an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff", see also Angelopoulos v Sabatino (1995) 65 SASR 1, King CJ at 9). 163 Ms Hennessy is therefore entitled to compensation, just in the circumstance for making herself available for service at night and weekends under the award. Her requests were ignored until December 2005. 164 Ms Hennessy after December 2005 has always had the entitlement to Service provided accommodation for making herself available to work nights and weekends. Ms Hennessy still holds that entitlement, that is: provided she meets the requisite condition. There is an obligation on the Service to provide her with quarters rent free for her service while the Ambulance Service still requires her to perform that duty she holds the right to rent free accommodation. 165 I find that there was unfairness in the Ambulance Service's conduct in ignoring her request from August 2002 to the end of June 2003 for rent free accommodation (during which time she occupied unsuitable rent free accommodation) and a further unfairness from July 2003 to December 2005 (during which time she occupied her own home) after which the Service made her a proper offer of suitable rent free accommodation. 166 I do not accept the contract should be varied in accordance with the terms reflected in Order No 2 of the Amended Summons, which Order in its terms would require the respondent to provide Ms Hennessy with suitable accommodation rent free. The award obliges the employer to so do. No such order is necessary. While the obligation of the Service if she meets the condition is to provide her with the benefit that obligation continues even though she once rejected a fair offer. 167 The alternative order (Order No 3) asks for just compensation for the past failure to provide rent free accommodation (light and fuel are now being paid) at $350 a week from 2002 to date and continuing. I do not accept such an order for continuing payment would be just compensation in a circumstance where Ms Hennessy still has the ongoing right to suitable rent free accommodation and where she has refused the offer of suitable accommodation in 2005. 168 I determine this contract of employment should be varied and that the applicant's proper request for suitable rent free accommodation for services rendered between June 2002 and the end of December 2005 should be compensated. 169 Two different circumstances are identified within this time frame. The respondent shall pay to the applicant just compensation for the period end of June 2002 to 1 July 2003 (notwithstanding she was in service provided accommodation but taking into account that accommodation was unsuitable and the Service was on notice as to its unsuitability) by way of the costs associated with her necessary alternative move into her own suitable accommodation in the sum of $20,000 (as per the Service offer on 4 September 2006). 170 For the period that she occupied her home but continued to provide personally and directly ambulance services at night and weekends from July 2003 to December 2005 and during which time the Service continued to reject her claim to suitable accommodation (after which time a proper offer of suitable accommodation was made by the Service but rejected by her), the respondent shall pay to the applicant the sum of $36,000. 171 As to the second claim for the unfair conduct of the respondent which caused Ms Hennessy's loss of promotion/loss of career opportunity, the applicant contends just compensation would be a payment of some $600 a week and continuing (based on the difference between her salary and that earned by Mr Bray). I have found there has been and is continuing procedural unfairness and some harassment of this employee such as to make the contract unfair so a payment of compensation is therefore fair. I do not however accept it can be quantified in any ongoing payment of a weekly amount for the loss of promotion as I do not accept she had an entitlement to Mr Bray's position. Rather, any just payment in the circumstances must reflect that there was unfair conduct by the respondent which had the effect of impeding her progression within the Ambulance Service (as acknowledged by Mr Rochford) between June 2007 (the date of Mr Rochford's letter to Ms Crouch) and the date of judgment. 172 It has been long held this is not a court of common law and there can be no compensation for general damages. However, unfair conduct by the Service in its handling of the follow up to the investigation of what was found to be an unsubstantiated complaint of misconduct which developed into a finding of poor performance has caused unfair interference in Ms Hennessy's career progress (as was conceded by the Service). I am satisfied Ms Hennessy has suffered a financial loss due to her lack of opportunity for promotion over a three year period but that interference/loss ceases upon judgment. The appellant is awarded for the interference over the three year period made to her career prospects the sum of $15,000. Ms Hennessy's voluminous correspondence which she directed to the Ambulance Service and others in an effort to defend herself against the persistent allegations she had to meet demonstrated she was motivated solely by this unfairness. Her determination to restore her reputation may have appeared to the Service as obsessive conduct. Her perseverance brought her great stress and struggle. The unfair conduct of the Service caused this hiatus in her career advancement. It is an employment unfairness which must be righted. 173 The personnel record of Ms Hennessy should have removed from it any evidence of a finding of poor performance, mismanagement or misconduct. All relevant authorities (ICAC, the Director General, NSW Department of Health) should be directly notified that there are no findings of misconduct or corrupt conduct made against Ms Hennessy. 174 Therefore, I find: 1. As to the Accommodation claim: the contract of employment of Ms Hennessy became unfair between 2002 and December 2005. The contract of Ms Hennessy should be varied and the Ambulance Service is ordered to pay Ms Hennessy the sum of $56,000 as just compensation. 2. As to the Promotion claim: the contract of employment of Ms Hennessy became unfair from June 2009 to date. The contract should be varied and the Ambulance Service is ordered: (i) To pay Ms Hennessy the sum of $15,000 as just compensation; and (ii) Is to ensure that Ms Hennessy's personnel record be cleared of any comments or recording related to the unfair finding of misconduct and any mention or suggestion of poor performance. The respondent is to cease all warnings, counselling, etc as to Ms Hennessy's performance. Her personnel record should, therefore, read that as of this date and in the past Ms Hennessy has an unblemished record of service. 3. By agreement, each party bear there own costs. 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.