Industrial Relations Commission of New South Wales CITATION: Williams v DET [2010] NSWIRComm 1063 APPLICANT PARTIES: Ms Helen Williams RESPONDENT Director-General of Education and Training FILE NUMBER(S): 439 of 2010 CORAM: Ritchie C Claim for unfair dismissal. Applicant was a teacher on a temporary contract. Applicant terminated by Principal. Termination occured without procedural fairness or natural justice. Applicant suffered emotionally as a consequence and a subsequent workers compensation claim was accepted. CATCHWORDS: Respondent accepted that termination was harsh.Offered re employment at another school. Commission found that termination was harsh, unreasonable and unjust. Applicant sought reinstatement, respondent sought re employment to another school. Found that reistatement was impractical and ordered re employment into another school with back pay. Applicant sought that IRC order that respondent offer a temporary contract for 2011. IRC found that it did not have the power to make such an order but strongly recommended that respondent do what possible to offer such a contract. Application for costs by applicant rejected as Commission found that respondent had not unreasonably failed to agree to a settlement. LEGISLATION CITED: Industrial Relations Act,1996 Teaching Services Act,1980 Burge v NSW BHP Steel Pty Ltd (2001) 105IR 325 CASES CITED: Bankstown City Council v Paris Four Seasons Pty Limited v Sakchai Limsiriipothang (No 2 ) (2000) 100IR 400. Van Huisstede v Commissioner of Police (No 2) HEARING DATES: 02/11/10,03/11/10,05/11/10 DATE OF JUDGMENT: 15 November 2010 Applicant: Mr O. Hughes Solicitor of Beesley & Hughes Mr Makarewicz LEGAL REPRESENTATIVES: Respondent Mr S Benson of Counsel Mr P Quinn of the DET DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C 15 November 2010 Matter No IRC 439 of 2010 IN THE MATTER OF : Helen Williams and Department of Education and Training Application by Helen Williams re unfair dismissal pursuant to section 84 of the Industrial Relations Act, 1996. DECISION [2010] NSWIRComm 1063 Background. 1 Ms Helen Williams (the applicant) filed a claim for unfair dismissal in accordance with section 84 of the Industrial Relations Act,1996 (the Act) on 7 June 2010 against the Director-General of Education and Training (the respondent). 2 The applicant had signed a contract for the position of a temporary teacher with the respondent based at The Pocket Public School located in the north east of New South Wales. This is a small rural school with approximately 82 students enrolled with four classes with four permanent teachers. The school enrols students from kindergarten to year 6. The school's teaching complement is also supplemented from time to time by casual teachers or temporary appointments where there is funding of a temporary nature for specific purposes. The Commission was advised that numbers at the school had been rising from around 50 students in 2007. 3 The applicant had signed a number of these TEMPORARY TEACHER ENGAGEMENT NOTICE covering the periods from 16 July 2007 to 21 December 2007; 29 January 2008 to 19 December 2008 ; 27 January 2008 to 18 December 2009 and 27 January 2010 to 17 December 2010. 4 The applicant had worked for the respondent as a casual teacher between 1999 and 2006 ranging in number of days worked each year from 11 to 101. 5 On 20 April 2010 the applicant was advised by the Principal of the Pocket Public School (Ms Annette Fairhall) that her temporary engagement had been terminated and was provided with four weeks notice with her last day of employment being 18 May 2010. She was advised that the termination was for the current period of engagement only and that her option to seek casual employment remained. The letter of termination signed by Ms Fairhall stated in part: "It has not been an easy decision but recent events, circumstances and school direction has influenced this decision." 6 The matter was listed for Conciliation and if necessary Directions on 8 July and 14 July 2010 by teleconference. On 8 July 2010 the applicant amended her application form in the RELIEF SOUGHT area by adding to the Reinstatement to your former position. During conciliation the respondent offered the applicant on a without prejudice basis the opportunity to complete her temporary contract at another school as a supernumerary teacher but this was later not accepted by the applicant. 7 Directions for the filing and serving of evidentiary material was provided to the parties which on application was amended a number of times. 8 The Hearing was held in Ballina on 2 and 3 November 2010 with part heard final submissions being given on 5 November 2010 by teleconference. 9 The applicant has been certified as unfit for work since 21 April 2010 and has been paid workers compensation at the relevant award rate since that date. The applicant stated in her evidence that she is currently on a return to work programme at a private school by increasing her days at work on a weekly basis. The expected timetable has the applicant back to full time work by the end of November 2010. 10 Mr Benson for the respondent stated that the respondent accepted that the termination of the applicant's temporary engagement was harsh and or unreasonable in the circumstances due to the non-compliance with departmental procedures by the Principal. He also stated that arising from the circumstances surrounding the termination and the reasons therefore, there had been a breakdown in the working relationship between the applicant and the principal which rendered reinstatement impractical. To address the situation the respondent offered the following undertakings: 1. To place the applicant at the Brunswick Heads Public School on a temporary teaching engagement terminating on 17 December 2010. 2. To compensate the applicant for any net loss of earning (adjusted for tax) (after deducting for workers compensation payments received) incurred by the applicant between the period of 18 May 2010 and 17 December 2010. 3. To take into account as service the period between 18 May 2010 and 17 December 2010 in the calculation of service for any purpose relevant to the employment of the applicant with the respondent. On the basis of those undertakings, the respondent submitted that there was no need to make any orders in the present proceedings. 11 It was the applicant's submission that her first request is to be reinstated back to the Pocket Public School. In correspondence dated 23 April 2010, directed to the School Education Director Mr Greg Cloak, the applicant made a complaint with respect to how she had been treated by the principal of the Pocket Public School when terminated on 20 April 2010. She at that time sought assistance in completing her contract in another school. A letter in response by Mr Cloak dated 3 May 2010 stated that her complaint was to be handled in accordance with the respondent's Complaints Handling Policy. It was advised in court by Mr Cloak that the investigation was suspended when the claim for unfair dismissal was lodged. It was the applicant's submission that when she wrote to Mr Cloak she was unwell at the time and therefore not thinking clearly with respect to where she wanted to work. Evidence. 12 The applicant stated that she had received no warnings from Ms Fairhall prior to her termination. No documentation was provided to the Commission by the respondent that showed any written warnings had been given to the applicant. 13 On 20 April 2010 when she was terminated the applicant was in shock as as there had been no warning as to what was to take place. She also stated that the Principal had never come up to her to speak to her about any negative performance or attitude issues. It was only at the time of termination was she told of concerns about her performance and attitude. 14 In giving evidence the applicant stated that she believed that she could work with the Principal again and that she believed she had a greater expectation of temporary work in 2011 if she was located at the Pocket Public School. 15 A number of witness statements were received by the Commission and made exhibits without the requirement for cross examination by the respondent. These statements came from parents of students who attend the school and fellow teachers. All stated in differing words that the applicant was a good teacher. The statements from the two teachers put their side of the story with respect to what was said in what context in the staff room, which was at odds with the evidence given by Ms Fairhall. 16 In her statement Ms Fairhall gave reasons as to why she had terminated the applicant. It was reported to Ms Fairhall by another teacher (Ms Moore) on 9 February 2010 that the applicant had made inappropriate comments about a particular student. The teacher stated that she had counselled the applicant. Ms Fairhall had not spoken to the applicant about the issue because she felt that the teacher had dealt with it adequately. On 23 February 2010 Ms Fairhall was shown a communication book by a teacher (Ms Mason), which is the basis of communications between the teacher and parents for a student with autism. Ms Mason believed that the comments written in the book by the applicant were of a negative nature. Ms Fairhall said that she counselled the applicant about this and asked her to let the class teacher complete the communication book in the future. On 9 March 2010 Ms Fairhall stated that she heard the applicant make a comment in the staffroom to another teacher (Ms Jordan) (discussing about mothers coming into the classroom and asking questions about their child), to the effect of "They should all be lined up and shot". Ms Fairhall stated that she immediately spoke to the applicant saying such a comment was inappropriate and that visiting parents could overhear such a comment. On 1 April 2010, Ms Mason reported to Ms Fairchild that a parent had approached the applicant about there being nothing written in the communication book about her child math's. Ms Mason reported that the applicant had spoken abruptly with the parent stating that she wasn't allowed to make any comments and to see the Principal. Ms Mason reported that the parent was embarrassed and reduced to tears. Ms Fairhall spoke to the applicant about the manner in which she had spoken to the parent. It was Ms Fairhall's view that the applicant had been quite dismissive about the issue. Ms Fairhall stated that her appointment to the Pocket Public School as Principal in January 2010 was her first in that role and this had been her first experience in handling a performance issue. She had not been fully aware of the Teacher Improvement Programme Guidelines being relevant to temporary teachers. She said that she had spoken with another more experienced Principal for advice on the issue. For the year 2011 Ms Fairhall anticipated that there would be 86 students and that she would be making a decision on what extra staff she would require on about the first day back from holidays late January 2011. It was her view that there would be a huge impact if the applicant was reinstated to the Pocket Public School. She stated that she believed that the applicant lacked compassion and that there would be an effect on both teachers and pupils. 17 Ms Alexis Malcolm gave brief evidence stating that she is employed with the respondent and currently holds the position of Injury Management Advisor for the North Coast Region. She advised that she received a phone call from the applicant seeking assistance as to why she had been terminated. Discussions took place with respect to a draft letter to be sent to the Principal and a proposed meeting with the Principal. A few days later Ms Malcolm became aware that the applicant had written to the School Education Director complaining of the Principal's actions. On 13 May Ms Malcolm received an email from the applicant seeking advice as to making a claim for workers compensation. She later received a medical certificate from the applicant which had the diagnosis of "acute grief stress reaction". On 29 June 2010 GIO sent the applicant a letter advising the applicant that her workers compensation had been accepted. 18 On 18 August 2010 Ms Malcolm received a continuing Workcover medical certificate that for the first time certified that the applicant was fit for suitable duties effective form 19 August 2010. This consisted of a gradual return to work starting with three half days per week. Ms Malcolm stated that the return to work programme is taking place at a non public school because as the applicant had been terminated she could not go back to a public school. 19 Mr Gregory Cloak stated that he has worked with the respondent since 1973 and has held his current position of School Education Director of the Southern Cross Network since 2003. The Pocket Public School is one of 30 schools within that network As the School Education Director his main responsibility is the efficient and effective management of those schools within the educational network with each school Principal reporting directly to him. Non-recurrent special funding is provided from year to year to schools that have students with special needs within their enrolment. This funding is reviewed from year to year and is totally dependent on the enrolment matrix of the school.. It was his view that it would be highly disruptive to return the applicant to her pre-termination role at The Pocket Public School. He stated that he was mindful that the Principal had concerns about the performance and conduct of the applicant and in the normal course a Teachers Improvement Program would be implemented. He believed that it would be most difficult to implement such a programme at that school. To facilitate a fresh start Mr Cloak stated that he has been and is still prepared to facilitate the applicant's return to teaching as a temporary teacher at another school within his district in 2010. Consideration and Decision. 20 The respondent submitted that the applicant's termination was harsh and or unreasonable. 21 In Byrne & Anor v Australian Airlines, the High Court, concluded that it is clear that the use of an unfair procedure may result in a dismissal being 'harsh, unreasonable or unjust.' To this authority may be added the weight of a number of Full Bench decisions of the Commission. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385, the Full Bench said at p389: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. and later, at page 390: While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust . 22 Taking into consideration the reasons for termination as expressed by Ms Fairhall, the limited evidence that came before the Commission to support those reasons, the response of the applicant and the statements of the two teachers, who were not required for cross examination and the lack of procedural fairness and natural justice, it is my finding that such a termination was harsh, unjust and unreasonable. When considering the incidents as described by Ms Fairhall and even if assuming the applicant was guilty, I do not believe the incidents be they considered individually or collectively should have resulted in the applicant's termination. In my view the effect on the applicant's employment and subsequently her health has been severe. 23 The actions of the Principal to terminate the applicant on 20 April 2010 by giving four weeks notice for termination of her temporary contract without going through the correct procedures as laid down by the respondent was clearly the wrong action. That it would seem she was guided to take such actions by another far more experienced Principal is somewhat disturbing. 24 The evidence from Mr Cloak was that in such circumstances the normal course should have been would be that a Teachers Improvement Programme be implemented by the Principal to address concerns. The program consists of an intensive process over a ten week period. 25 If after a more thorough investigation of the incidents that were the grounds for termination as expressed by Ms Fairhall, and if found to have substance and therefore remedial action is required, it would then seem appropriate for the Teachers Improvement Programme to be considered. 26 In a practical sense with the passage of time, it is just not possible for the respondent to incorporate such a programme within what little time is left of the school term year for 2010. 27 That it has been found that the termination of the applicant was harsh, unreasonable and unjust the next step is to determine remedy as found under section 89 of the Act. The applicant seeks reinstatement to her temporary position at the Pocket Public School. The respondent has stated that it wants the applicant to be re- employed to another school, that being the Brunswick Heads Public School. 28 The primary remedy provided for in section 84 applications is reinstatement. It is only when the Commission finds that reinstatement is impractical should an alternative be considered. In Burge v NSW BHP Steel Pty Ltd (2001) 105IR 325 a Full Bench of the Commission stated : In considering the practicability of reinstatement, we are very mindful of the approach adopted by a Full Court ( Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at pp 191-192 where their Honours observed that "each case must be decided on its own merits" but that "in most cases, the employment relationship is capable of withstanding some friction and doubts". As their Honours observed further, "what is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive" and that "if the employer is of even average fair-mindedness, (the problems) are likely to prove short-lived". There was evidence before the Commission that the applicant sought employment in another school both in her communication with the respondent and her original unfair dismissal application. The applicant stated that this was her attitude at the time but at that time she was not well. Now on the road to recovery she seeks to return to the Pocket Public School. The evidence of Ms Fairhall, Ms Malcolm and Mr Cloak spoke of the impracticality of re instatement back to the Pocket Public School. As expressed earlier in this Decision, the school in question is a small rural one with the Principal carrying out both a teaching role as well as administrative duties. I have taken into consideration the evidence attached to the statement of Ms Malcolm where the applicant's treating doctor Dr Rowe suggested that Ms Williams should commence her rehabilitation into another school. I have also strongly considered the evidence of Mr Cloak who presented himself as an experienced school administrator who because of his position had a wider view of the issues than the other witnesses. He was quite clear in his evidence concerning the placement of the applicant. It is my view that he had considered the wrongful actions of the respondent in terminating the applicant, the effect that it had on the applicant, what would be best for the applicant in the future and the effect it may have on the Pocket School teachers and students. It is my view that little would be gained and a great deal could be lost in re-instating the applicant back to the Pocket Public School for the very limited time left for the school year of 2010. 29 It is based on that evidence that I find that re-instatement would be impracticable for this year. 30 The applicant's current temporary contract continues up to the end of the school year on 17 December 2010. In final submissions the applicant sought an Order from the Commission that the applicant receive a further 12 month temporary teacher position in the region and at a school within reasonable commute of the applicant's residence. In the applicant's view, there was a legitimate expectation of another temporary contract of 12 months for 2011. 31 It was the respondent's submission that whilst the applicant had worked a series of separate temporary engagements at the Pocket Public School, these engagements were separate and not an extension of an existing temporary engagement. Extensions of a temporary contract beyond 12 months can only be made for a period of up to a further 12 months subject to certification that the extension is necessary in the public interest by the Director General or his or her delegate. The previous temporary offers of employment as shown in the various exhibits was for a set period of time. Mr Cloak in his statement said that there was no reasonable basis for any expectation on the applicant's part of ongoing employment at the Pocket School for 2011. He went so far as to say that based on the current enrolment projection for the Pocket School for 2011 indications are that it is unlikely that there will be a foundation for ongoing funding of students with special needs to the same level that has been the case in 2010. 32 Both parties made submissions with respect to legitimate expectation of the applicant for 2011. The applicant's expectation was that as long as she did her job without problems then an offer would be made. The respondent submitted that such legitimate expectation could be no higher than an expectation of a hearing in that regard as distinct from an expectation of an actual appointment. There is nothing in the Teaching Services Act, 1980 to give rise to an expectation of automatic extensions. With respect to the issue of legitimate expectation by the applicant I accept the submissions of the respondent that the Commission can not make an Order contrary to the statutory intent. 33 For the Commission to make an order in accordance with the applicant's wishes it would have to be clear that it has such powers to do so, and that there was evidence before the Commission that required a temporary teacher to be employed. Primarily I am not convinced that I have such a power. Whether a school has the need for a temporary teacher for 2011 can only be determined by the respondent when considering what extra requirements the individual student's needs are that have to be met. 34 It is my finding that I do not have the power to order the respondent to offer a 12 month temporary contract to the applicant for work in 2011. 35 The final issue to be considered is the application for costs made by the applicant during final submissions. 36 In accordance with the Act section 181(2) (c) states: "the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissal )who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or" 37 The principles for determining an application for costs pursuant to s 181(2)(c) were considered in Bankstown City Council v Paris and Four Sons Pty Limited v Sakchai Limsiripothong (No 2) (2000) 100 IR 400; see also Van Huisstede v Commissioner of Police (No 2). It is now well established that the approach to be adopted in s 181(2)(c) cases is for the Commission to determine whether the statutory criteria has been met or, using the terminology in Four Sons v Sakchai Limsiripothong (No 2), the jurisdictional gateway has been satisfied, before the exercise of the Commission's discretion powers under s 181(1) is considered: see Bankstown City Council v Paris at 219. The approach to be adopted to the construction and application of s 181(2)(c) was explained by the Full Bench in the latter case as follows: Construing the relevant part of s 181(2)(c) in its overall statutory context, we conclude that the evident purpose of the provision is to encourage the settlement of proceedings to which it applies. The criterion set out in the provision is to be applied objectively and requires a consideration of the whole of the conduct of the party against whom the order is sought, or some discrete part of that party's conduct, with a view to ascertaining whether it unreasonably failed to agree to a settlement of the claim. We also consider that on the proper construction of the provision, an affirmative conclusion may be reached on at least two bases. First, where there was a proposal put by a party which could be described as a reasonable settlement of the claim and that was not agreed by the other party. The second situation in which the criterion could be satisfied is where the course of conduct of the party over a relevant period could be said to amount to conduct inconsistent with an intention to settle the proceedings on any basis that could be considered reasonable. We emphasise that, although the legislature has clearly intended that there be strict limits on the power of the Commission to award costs in unfair dismissal proceedings, the legislature has also evinced a clear intention that costs orders be available in circumstances where there has been a failure on the part of a party to properly conciliate proceedings to the extent that they have failed reasonably to facilitate a potential settlement of them. Further, the Commission is obliged to consider all relevant circumstances in deciding whether such failure has occurred. Once the statutory criterion has been met, the Commission's broad powers and discretions under s 181(1) are available for exercise. 38 The Full Bench emphasised the risks which a party runs if it adopts a firm position or inflexible approach towards the settlement of the case, observing at 220: Far from indicating any retreat from the inflexible approach adopted by the appellant, its approach in relation to settlement on this occasion, served only to emphasise the consistent position that had been adopted. We emphasise that there will be many circumstances in which parties to litigation, including unfair dismissal proceedings, may appropriately take a firm position generally, including on the question of conciliation or settlement. Nevertheless, such a position runs significant risks in terms of the exercise of the power and discretion under s 181(2)(c). This is particularly so where such a position is assumed without due regard to the policy of the Act which requires parties to take seriously their obligation to attempt to settle the proceedings. That in turn involves an obligation to consider in an objective way the strengths or limits upon the case that they will be propounding should the matter proceed to arbitration. On the material before us, we consider that the appellant failed to give appropriate consideration to such matters before it adopted its inflexible position. We consider that, in the circumstances of this matter, the criterion in the relevant provision has been made out. It has been met as to the proceedings both at first instance and on appeal. 39 In Four Sons Pty Limited v Sakchai Limsiripothong (No 2) the Full Bench considered the issue of 'nominal offers' of settlement and observed at 403 - 404: The obligations imposed on parties to proceedings under s 84 of the Act, as identified in the Full Bench judgment in Bankstown City Council v Paris , require parties to such proceedings to undertake a responsible and careful assessment of the prospects of the litigation, in the absence of which an unsuccessful party may realistically face the prospects of a costs order being made against it. In those circumstances, it may often be appropriate for a party to consider making an offer to settle, even if the offer could be seen, either with the benefit of hindsight or otherwise, to be at a rather low level. However, the making of such an offer on "the low side" does not exhaust the responsibilities of a party to reasonably attempt to settle the claim. It is conceivable that if the respondent had responded to those offers in a more timely way, the proceedings may have settled. We doubt, however, that that is the appropriate finding on the evidence before us. Rather, the evidence as to further negotiations makes plain that the appellant had no realistic intention to make an offer which was likely to settle the proceedings before McKenna C. However, it would be inappropriate not to take into account the lack of a timely response from the respondent to the nominal offers of settlement which were made by the appellant in August and September 1999. 40 Did the respondent in this case, unreasonably fail to agree to a settlement. The applicant had written to Mr Cloak dated 23 April 2010 outlining her complaint of how she had been treated by Ms Fairhall on 20 April 2010. What she sought from Mr Cloak was to complete her contract at another school. As expressed earlier in this decision, the respondent made such an offer to the applicant on the first conciliation date of 8 July 2010. That offer was for the applicant to work at the Brunswick Heads Primary School with the same temporary contract ,pay and hours. A commencing date of 19 July 2010 was offered on the basis of providing a medical clearance. It was the applicant's position that she wished to return to the Pocket Public School. At the end of the conciliation on that day parties were advised by the Commission to consider their positions. 41 At the following conciliation on 14 July 2010 the applicant rejected the offer. The issue from the applicant's point of view was that there was a stronger likelihood of future temporary employment to be had at the Pocket School in 2011 and a greater chance to secure such a contract if she was at the Pocket School in 2010. No further offers from either party were brought to the Commission's attention. As has been previously expressed in this Decision, the expectation of the applicant of an offer of a temporary employment contract for 2011 can not be higher than an expectation of consideration as distinct from an expectation of an appointment. This concern by the applicant as to what will happen with respect to employment in 2011 would seem to me played a greater role in her consideration of the respondent's offer than the actual offer itself. That is to return to work for the respondent on the same working conditions albeit it at a different school. In summary it is my finding that the respondent did not unreasonably fail to agree to a settlement. The offer the respondent made was genuine in an endeavour to settle the matter. Costs as sought by the applicant are therefore rejected. 42 The applicant was critical of the respondent with respect to the handling of her complaint. The respondent replied to the applicant's letter of 23 April 2010 in correspondence dated 3 May 2010. It stated that her complaint would be handled in accordance with the Department's procedures: Complaints Handling Policy. The Commission was advised that the investigation of this complaint was suspended when the applicant lodged her complain for unfair dismissal. I can understand the respondent's reasoning in not continuing with the investigation when the matter was before this Commission. 43 Finally the applicant has as a consequence of this harsh, unjust and unreasonable termination of her temporary contract suffered both in her current employment and her health. What has happened to the applicant has clearly taken a toll on herself and no doubt her family. I have already found that the Commission does not have the power to Order the respondent to offer temporary work for the school education year of 2011. Notwithstanding that finding, I do strongly recommend that the respondent take the appropriate steps to re- engage the applicant if possible, on a temporary contract in 2011 in a school in reasonable proximity to where she resides. 44 I note that the applicant is still on a return to work programme with the number of days to work each week gradually increasing. Unless there are bone fide grounds not to, such return to work programme can continue at the Brunswick Heads Primary School in conjunction with the applicants re employment. 45 Taking into consideration all of the above I now make the following Orders: 1. In accordance with section 89(2) of the Act, the Director- General of Education and Training shall re-employ Ms Helen Williams on a temporary teaching contract at the Brunswick Heads Primary School until the 17 December 2010 within seven days of the date of this Decision. 2. In accordance with section 89(3) of the Act, that the Director-General compensate Ms Williams for any net loss of earnings (adjusted for tax) (less any workers compensation payments received) incurred by Ms Williams between the period of 18 May 2010 and 17 December 2010. 3. That the period between 18 May 2010 and the date of her re-employment is taken not to have been broken by her dismissal in accordance with section 89(4) of the Act. This matter is now concluded. D. RITCHIE COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.