Industrial Relations Commission of New South Wales CITATION: Amanda Cush and Public Employment Office (Department of Infrastructure, Planning and Natural Resources – now Department of Natural Resources) [2006] NSWIRComm 1115 APPLICANT Amanda Cush PARTIES: RESPONDENT Public Employment Office (Department of Infrastructure, Planning and Natural Resources – now Department of Natural Resources) FILE NUMBER(S): IRC 5160 of 2005 CORAM: McKenna C CATCHWORDS: Unfair dismissal – temporary public sector employee – general manager – range of grievances and allegations against applicant by employees and union – independent investigator appointed to investigate allegations – some findings adverse to applicant by investigator – employer found misconduct involved - decision to caution and performance manage the applicant - insufficient evidence to disturb finding of investigation or misconduct - evidence did not support any improper targeting of applicant – subsequent decision made to redeploy/dismiss on management-related grounds rather than misconduct grounds – process concerning decision to redeploy/dismiss procedurally unfair to applicant - dismissal harsh, unreasonable, unjust – reinstatement and re-employment impracticable - compensation ordered LEGISLATION CITED: Industrial Relations Act 1996 s84, 89(6) Public Sector Employment and Management Act 2002 s27, 30 CASES CITED: Smith v Director General of School Education (1993) 51 IR 204 HEARING DATES: 27/06/2006 DATE OF JUDGMENT: 07/18/2006 APPLICANT Mr M Easton of counsel Etheringtons, solicitors LEGAL REPRESENTATIVES: RESPONDENT Ms E Brus of counsel DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES McKENNA C 18 July 2006 Matter No IRC 5160 of 2005 AMANDA CUSH AND PUBLIC EMPLOYMENT OFFICE (DEPT OF INFRASTRUCTURE, PLANNING AND NATURAL RESOURCES – NOW DEPT OF NATURAL RESOURCES) Application by Amanda Cush re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1115 1 This is an application under s84 of the Industrial Relations Act 1996 in which the applicant, Amanda Cush, alleged her termination of employment with the Department of Infrastructure, Planning and Natural Resources (now reconstituted as the Department of Natural Resources) ("the Department") amounted to a dismissal that was harsh, unreasonable and unjust. The Public Employment Office ("PEO"), which was the statutory employer of the applicant, and hence the respondent to the application, submitted it was a "grey area" whether the circumstances of the termination of employment amounted to a dismissal but, if a dismissal was involved, it was not harsh, unreasonable or unjust. BACKGROUND 2 The applicant's employment background was in the private sector, principally in the high technology industry. On 5 October 2004, the applicant commenced employment with the Department as General Manager of the Border Rivers-Gwydir Catchment Management Authority ("BRG CMA"). The position, which was located in Inverell, carried a grading of Senior Officer Grade 1. It was a temporary appointment under s27 of the Public Sector Employment and Management Act 2002 ("PSEM Act"). The letter offering employment stated that the period of temporary employment would be up to three years, unless services were dispensed with at an earlier time under s30 of the PSEM Act. The letter of offer also stated: It is appropriate I draw your attention to the following matters: 1. Temporary employment does not constitute an appointment to a "position" nor does it constitute permanent employment within the meaning of the Public Sector Employment and Management Act 2002. 2. Section 30 of the Public Sector Employment and Management Act 2002 provides that your service may be dispensed with at any time. 3. Circumstances for dispensing with services include misconduct; poor performance; reason/purpose for employment is no longer necessary such as specified task or project completed, the position is no longer temporarily vacant, additional assistance is no longer required, or budget constraints including the termination of funding for the work. 4. There is no guarantee of employment beyond the expiration of three (3) years. The allegations 3 On 13 December 2004, an employee of the BRG CMA filed a grievance letter regarding the applicant's conduct in a recruitment process. The grievance letter set off "a train of events" that led to an investigation of the allegations in the job applicant's grievance as well as other, subsequent allegations. The Department is required investigate employees' grievances. To that end, the Department appointed an independent body, Internal Audit Bureau Services ("IAB"), to investigate the grievance, which, in turn, selected Helen Colbey, Senior Consultant, Risk Management and Consulting Services, to conduct the investigation. 4 On 16 March 2005, the Department referred certain matters to the Independent Commission Against Corruption ("ICAC") concerning possible corrupt conduct involving falsification of a selection committee report. The Department may have referred other matters relating to the applicant to ICAC, but the evidence was unclear in that respect. The status of the referral/s to ICAC was indeterminate on the evidence. 5 On 6 April 2005, Jennifer Westacott, Director General of the Department, sent a letter to the applicant advising, among other matters, that Ms Colbey had been appointed to conduct the investigation into the grievance. The letter read: Dear Ms Cush I have received an allegation that you may have engaged in misconduct. The alleged misconduct is as set out in a letter dated 13 December 2004 from [an unsuccessful job applicant] relating to the filling of the position of Catchment Officer Indigenous grade 7/8, Border Rivers/Gwydir CMA. The alleged misconduct includes but is not limited to the following: [alleged misconduct set out]. I have decided to deal with this allegation as a disciplinary matter. I have requested Ms Helen Colbey of the Internal Audit Bureau to undertake an investigation into the allegation and prepare an Investigation Report for me on these matters (copy of letter attached). Ms Colbey will interview you as part of the investigation process and give you an opportunity to respond to the allegations. Ms Colbey will interview you separately to make arrangements. You should be aware that by treating this matter as a disciplinary matter, once I have received and considered the Investigation Report, if I form the opinion that you have engaged in misconduct I may take disciplinary action against you. Below is a list of the possible disciplinary actions that can be applied in this situation. . Caution; . Reprimand; . Fine; . Reduction in salary; . To be allowed to resign, or, . Termination of Employment Contract. Any enquiries in relation to this matter should be referred to Mike Barry on [telephone number]. Yours sincerely Jennifer Westacott Director General 6 Further allegations about the applicant subsequently came to light. For her part, the applicant considered that each time she attempted to raise a contentious matter with an employee, the investigation would be expanded to include additional allegations. The Department advised the applicant one of the further referrals was based on a letter from the Public Service Association of New South Wales ("PSA") concerning formal representations from members employed at the BRG CMA. The Department expanded the investigation's terms of reference to include the additional allegations and advised the applicant accordingly in writing. 7 On 12 July 2005, Ms Colbey provided to the Department a 72-page report and three volumes of attachments ("the IAB Report") concerning the findings and recommendations arising from her investigation. Response to the IAB Report 8 On 26 July 2005, Damian Furlong, the Department's Director People and Performance, telephoned the applicant. Mr Furlong informally suggested to the applicant she may wish to resign, given the findings in the IAB Report and its potential ramifications in terms of the Department referring matters to ICAC and to the police. The applicant replied she proposed to obtain legal advice. Mr Furlong subsequently emailed to the applicant the IAB Report's executive summary and forwarded the full text by express post. The applicant did not resign from her position. 9 On 27 July 2005, Sam Haddad, the Acting Director General of the Department, wrote to the applicant in the following terms advising he had formed the opinion the applicant had engaged in misconduct: Dear Ms Cush The investigation into the allegation that you may have engaged in misconduct has now been completed. I have considered the Investigation Report, a full copy including attachments is provided to you with this letter and I have formed the opinion that you have engaged in misconduct as outlined in the report and summarised below: Inappropriate Travel Claims (breach of DIPNR Code of Ethics and Conduct, the Personnel Handbook and possibly the ICAC Act, Ombudsman Act, Crimes Act and Crown Employees Public Service Conditions of Employment Award 2002) . Made travel claims for expenses which had been paid by the CMA . Approved a travel claim for yourself contrary to procedures . Claimed $3,380 for business use of a private vehicle despite a departmental vehicle being available . Informed staff to claim actual expenses for travel as a means of reducing CMA costs while claiming mileage allowances at the highest business rate for yourself. Flawed Selection Process (breach of the Personnel Handbook, Merit Selection Guide for NSW Public Sector Panels, DIPNR Selection Committee Resource Kit and possibly the Ombudsman Act) . Informed an applicant that she was the only applicant and advised that she "had the job" . Consulted an applicant on membership of the selection committee . Discussed with an applicant another officer who may also have been an applicant . Arranged for selection committee members to sign a blank selection committee report form . Did not ask relevant questions of referees . Failed to provide feedback to other committee members on referee checks and to arrange for the whole selection committee to make a determination . Inappropriately exercised delegation to review a selection committee recommendation Inadequate Management of Staff Relationships and Grievances Actions have escalated workplace disharmony (apparent failure to satisfactorily meet the key objective of your position: Lead, direct, manage and control the operations of the Authority through the efficient use of financial, human and information resources). Arranged for the computer passwords of staff on leave to be changed and accessing their emails. I am now considering imposing disciplinary action. As previously advised on 6 April 2005 there are 6 possible disciplinary actions ranging from a caution or reprimand to termination of employment contract. In relation to this matter the severest penalty I would conceivably impose is termination of employment contract or allowing you to resign. You should be aware that if you are asked to resign and you do not resign within the time allowed, the consequence will be termination. You have 14 days from the receipt of this letter to make a submission and to provide any additional information which you consider should be taken into account in relation to the disciplinary action being considered before I make a final decision. Your submission may address such matters including my opinion that you have engaged in misconduct, the Investigation Report, or any extenuating and mitigating circumstances. Before making a final decision on the appropriate action, I will consider the following: 1. the Investigation Report 2. the objectives of Part 2.7 of the Public Sector Employment and Management Act 2002 as stated in section 41 (copy attached) 3. your submission if made. You also have the opportunity to have an interview with me, accompanied by a union or other representative (not a legal practitioner) before a final decision is made. Your representative may speak on your behalf at the interview but may not attempt to cross examine me. Should you wish to have an interview the request should be made within 5 days of receipt of this letter. Please contact Mike Barry on [telephone number] who will make arrangements for this interview. Yours sincerely Sam Haddad Acting Director General 10 The applicant availed herself of the opportunity given in Mr Haddad's letter to provide a written response before any decision was made concerning disciplinary action. On 2 August 2005, the applicant apparently responded to the IAB Report generally, but only part of that response was in evidence, and there was no evidence to suggest it was received by the Department. On 19 August 2005, the applicant sent a 14-page response to the Department's letter dated 27 July 2005. Among other matters, the applicant submitted in the response: . the investigation process was so seriously flawed that reliance on its findings would be a gross injustice; . the factual findings in the IAB Report were wrong in a number of key areas; . the investigation did not examine matters she (the applicant) had raised and selective interviewing raised questions about impartiality; . the investigation did not take relevant matters into consideration; . the findings related largely to administrative errors; . the allegations and findings needed to be viewed in proper context, such as motivation of complainants, her own inexperience, the lack of training, the lack of support from the Department, and the overall working environment at the BRG CMA. 11 The applicant acknowledged responsibility for areas where she may have been remiss with respect to proper procedures and highlighted areas where, she submitted, she had made significant achievements. The applicant also made her own allegations about various individuals within the organisation, including comments about a campaign being conducted against her by "repeat offenders" who, she alleged, had subjected others to such campaigns in concert with the PSA. The applicant also complained about alleged condonation or interference by a regional director, the alleged lack of due process and confidentiality, and the lack of equity of the allegations based on her understanding that no action was being taken against the other members of the selection panel. In concluding, the applicant submitted as follows: In short, I find the actions of the department have clearly identified me as a "scapegoat" to be used to appease the inappropriate actions of a number of staff within the department. Rather than addressing the real issues, the department wishes to make a token gesture and sweep the remainder of the issues under the carpet, which make the concerns of staff about their own risk of being subjected to similar treatment very valid. The sheer lack of equity and basic courtesy is abhorrent and one that I intend to progress to the highest level of public accountability. If I am terminated on the basis of the recommendations and findings of the investigator's report, I place the Department on notice that I have sought legal advice, and will file for the appropriate relief. 12 In addition to submitting this written response, the applicant availed herself of the opportunity provided by Mr Haddad to have an interview before a final decision was made. Either Mr Haddad or Ms Westacott delegated the task of conducting the interview to Glenn Smith, Executive Director Corporate Services. 13 The interview was arranged for 22 August 2005. Peter Rochfort, an industrial agent of the consultancy IR Australia Pty Ltd, accompanied the applicant at the interview as her representative. Mr Smith asked the applicant a number of questions about four main areas, namely, travel expenses; the recruitment process grievance; motor vehicle issues; and the general work environment. The applicant provided explanations concerning the matters raised by Mr Smith. 14 The Department filed an affidavit by Mr Smith on 14 June 2006, but he did not give evidence in the proceedings. Mr Smith was unavailable on the day of the hearing, but the reason for the unavailability was not elaborated. The Department did not file any evidence from the Department's Corporate Counsel, who is recorded as having acted as an observer during the interview on 22 August 2005. The applicant did not adduce evidence from Mr Rochfort, who was also at the interview. Hence, the only evidence before the Commission as to the discussions between the applicant and Mr Smith at the interview on 22 August 2005 (and in later discussions) is that of the applicant herself. 15 According to the applicant's unchallenged evidence, Mr Smith commented sympathetically to the applicant that he was aware she had been managing very difficult people in a very difficult environment, and there was a history within the organisation of individuals being targeted. He gave assurances to the applicant proper process was being followed, despite the applicant's criticisms of human resources personnel. He also opined the PSA had been "targeting" three general managers of Catchment Management Authorities and ventured his further opinion that the PSA "will not be happy until one is fired", but stated he did not know the reasons for the targeting. He added the Department had not foreseen the problems that would be encountered and did not provide an appropriate level of support to the general managers, but he intended to rectify the situation in 2006. 16 Mr Smith documented his decision concerning the applicant that same day, 22 August 2005. The decision read: Investigation into alleged misconduct by Amanda Cush, General Manager, Border River Gwydir CMA Decision On the attached papers, matters related to allegations of misconduct by Amanda Cush, GM Border Rivers Gwydir CMA have been detailed and documented. On 27th July 2005, the A/DG Mr Haddad, wrote to Ms Cush advising her that he had formed the opinion that she had engaged in misconduct. Mr Haddad's letter also invited Ms Cush to raise through submission and personal interview, matters which might be taken into consideration in deciding what disciplinary action, if any, to be imposed on her. I was delegated by the Director General, the responsibility of deciding on the matter and in so doing, review any submission lodged by Ms Cush and personally meet with her and her representative. I met with Ms Cush at 11am on Monday 22nd August 2005 at the Department's Bridge Street Office. Mr Peter Rochfort (PR), IR Australia accompanied Ms Cush (AC) and made some comments at the meeting. Susan Teasey, DIPNR Corporate Counsel acted as an observer. AC and PR spoke to AC's submission of 19th August and expanded a number of matters. The main points made by AC in her document of 19th August and in her discussion were as follows- . AC admitted that she had made errors in travel claims but these were not intentional nor designed to obtain any financial benefit. When AC became aware the claims had been made inappropriately she repaid the amounts received. AC explained how she made the errors and the circumstances leading to the claims including the other expenses she had covered herself. . On the issue of claims for official use of her private vehicle, AC outlined what advice she had been given on procedure for use of her own vehicle and the CMA Chairman's agreement to her use of her car on official business. The arrangements outlined by AC are identical to those that apply to public servants and SES Officers who use their own vehicles, including those acquired through Departmental novated lease arrangements, for official business. . AC challenged the findings of the investigator as reported in relation to her interaction with [the job applicant who filed the original grievance] and the selection committee process which involved [the complainant's] application and interview. AC did not specifically indicate she had made a error [sic] in management of the process but did indicate her then, inexperience with public sector recruitment processes should have been overcome by better advice from [another member of the selection panel]. The fact that [the selection panel member] signed a blank Selection Committee Report indicates she was not provided with this advice. AC further explained how two different selection Committee Reports were prepared, one as a draft, and how this may have been used against her. . AC spoke broadly about the problems she had in managing difficult staff and the lack of support she had from the Department. AC cited examples of being bullied by staff. I have given careful consideration to the matters raised by Ms Cush in her submission and in her discussion with me. I am of the view that Ms Cush has engaged in misconduct but this misconduct has arisen from error and in experience [sic] and not made by design on her part nor was it intentional. Ms Cush has acknowledged that she has made mistakes and had taken action to rectify these when she became aware of them. Ms Cush also acknowledged her limited experience in public sector management but she had not been able to gain any strong support to assist her. It appears to me that there are instances of poor management of certain issues by Amanda, such as the selection process and some staffing matters could have been managed more effectively. While this may be the case, these matters are indicative of limited public sector management experience and are not as serious as those that relate to the use and management of public funds. I accept the submission and comments made by Ms Cush that she did make mistakes in travel claims but these were rectified and there were circumstances that related to those claims. I also accept that she did not seek to gain from her claims. In regard to her use of her motor vehicle, this was not inappropriate in the circumstances. My decision in regard to the matter is as follows: 1. The penalty to be applied to Ms Cush is that she is to receive a formal caution. 2. Ms Cush is to work with the Executive Director Corporate Services in the development of a management support and mentoring program to assist her to more effectively manage the Border River Gwydir CMA. This program to be subject to the approval of the Chairman of the CMA. 3. Ms Cush is to work directly with a departmental staff member, appointed by the Executive Director Corporate Services, to resolve outstanding staffing and management issues and enhance sound staff processes. Glenn Smith EXECUTIVE DIRECTOR CORPORATE SERVICES 17 On 22 August 2005, Mr Smith left a voice mail message for the applicant which was to the following effect: "A decision has been made. I believe that you will be happy with the outcome". Mr Smith advised the applicant in a subsequent telephone conversation that the Department was going to give her a formal caution and put a management plan in place, with full support to address the issues and work towards a harmonious work environment. Mr Smith reiterated his opinion that the applicant had been targeted. Mr Smith promised to provide the paperwork to the applicant by the end of the week. He stated the Director General supported his decision, but there is no documentary record to support this comment in the nature of a formal approval (if approval was needed given that Mr Smith was acting on delegation). Mr Smith asked the applicant to treat the matter confidentially until formalities were completed to avoid staff "feeding frenzies". 18 The following day, 23 August 2005, Mr Smith sent a letter to the applicant formally advising of his decision. The letter read: Dear Ms Cush I refer to the letter of 27 July 2005 from the Acting Director General who advised you that he had formed the opinion that you had engaged in misconduct and he was considering imposing disciplinary action. I have now considered the submissions and additional information provided by you and I have decided, with effect from 24 August 2005 to take disciplinary action as follows: 1. Issue a formal caution. 2. Executive Director Corporate Services to work with you in the development of a management support and mentoring program to assist you to more effectively manage the Border River Gwydir CMA. This program is to be the subject to the approval of the Chairman of the CMA. 3. Executive Director Corporate Services to appoint a departmental staff member to work directly with you to resolve outstanding staffing and management issues and enhance sound staff processes. Yours sincerely Glenn Smith Executive Director Corporate Services 19 On 23 August 2005, Mr Smith telephoned the applicant. Mr Smith said he had received a telephone call from an official of the PSA inquiring about the outcome of actions against the applicant. Mr Smith said he advised the official the matter had been completed, and that the outcome was a private matter – and advised the applicant to provide the same advice if asked. Mr Smith reported to the applicant that the employee who had filed the original grievance had also made several calls to the Department. Mr Smith advised the applicant "to be prepared for the PSA to take further action against you", adding that the Department would represent her if that occurred. He stated the positive thing was that a full investigation had been completed and due diligence was maintained. 20 On 24 August 2005, Mr Smith again telephoned the applicant. Mr Smith said he had instructed personnel from the Department's human resources section to advise the matter had been finalised, and not to provide any other advice. He added that "we" (presumably the Department) will need to wait to see the PSA's reaction. Mr Smith speculated, in pejorative terms, that the PSA may initiate proceedings in the Commission or another forum, but the Department would support the applicant. 21 On 25 August 2005, Mr Smith once again telephoned the applicant. He advised the applicant arrangements had been made to provide advice simultaneously to a number of employees about the outcome of the process, namely it was a private matter. Mr Smith agreed to the applicant's suggestion that two other employees also simultaneously be advised. He added that Ms Westacott would be advising the PSA of the outcome at a meeting that same day. The applicant later heard that an employee, upon being advised of the outcome, had stated the matter would be taken further. 22 On 26 August 2005, the applicant attended a meeting of the Board of the BRG CMA. After she had given a report, a member of the Board stated she had the Board's full support. The dismissal 23 Although Mr Smith documented his decision concerning the applicant on 22 August 2005 and formally advised the applicant of that decision on 23 August 2005, Mr Smith subsequently submitted a report on 26 August 2005 to Ms Westacott seeking approval to redeploy the applicant or terminate her employment if there was no suitable position for redeployment. Mr Smith's report read: REDEPLOYMENT OR TERMINATION OF TEMPORARY EMPLOYMENT – MS AMANDA CUSH, GENERAL MANAGER, BORDER RIVERS-GWYDIR CMA Purpose To seek the Director General's approval to the redeployment of Ms Amanda Cush, General Manager, Border Rivers-Gwydir CMA (BRG CMA) or Termination of temporary employment if no opportunity exists for redeployment. Background . The attached paper details the process that has been undertaken to deal with allegation of corrupt conduct and maladministration by Ms Cush. The process has involved the completion of an investigation by Ms Helen Colbey, IAB and a copy of the Executive Summary from Ms Colbey's report is also attached. . As a result of the investigation, the A/DG formed the opinion that Ms Cush had engaged in misconduct and advised Ms Cush that in considering any disciplinary action that might be taken as a consequence, she had the opportunity to lodge a submission and meet the Director General. . Ms Cush lodged a submission and requested an interview with the Director General. The Director General delegated the decision on the matter to myself and requested that I review her submission and meet with her. . Attached to these papers are my notes on 22nd August 2005 outlining the outcome of the meeting with Ms Cush and the review of her submission. In summary, based on the submission, interview and advice from Corporate Counsel and the Director, Governance, Risk and Audit I decided to take disciplinary action in the form of a formal caution and to implement a number of staff management improvements. . My decision was based on all the information available to me especially the circumstances surrounding the more serious issues of travel allowance claims and claims for private vehicle use. Comment . Notwithstanding my decision not to terminate Ms Cush's temporary employment in relation to the matters considered to constitute misconduct, I do not believe the management and efficient operation of the BRG CMA is sustainable if Ms Cush remains as General Manager. . My discussions with BRG Staff, the complainants and the Public Service Association who has represented the interests of a number of BRG staff lead me to the clear view that Ms Cush's ongoing employment as General Manager is untenable. . Contributing to this view are many complaints from staff of the BRG CMA in respect of Ms Cush's staff and advice from DIPNR staff on their difficulties in dealing with Ms Cush. . I presented this matter to the DIPNR Investigations Committee on 26 August 2005. The Committee agreed that while the technical issues surrounding the finding of misconduct were not of themselves sufficient to warrant Ms Cush's termination of temporary employment. Her performance and management capability were deficient and she could not effectively perform the role of BRG CMA General Manager. . Ms Cush is a temporary employee and her services may be terminated by the Director General at any time during her temporary employment. Ms Cush would be entitled to 5 days notice as a temporary employee. . While the efficient management of the BRG CMA will not be sustainable with Ms Cush in the role of General Manager she may be able to be employed in another role in the new Departments of Natural Resources or Planning ie. Redeployed. Redeployment opportunites at Ms Cush's current level are limited however. . In the event that no redeployment opportunities are found for Ms Cush it would be necessary to terminate her temporary employment. Recommendation It is recommended the Director General approve the removal of Ms Amanda Cush from the position of General Manager Border Rivers-Gwydir CMA through redeployment to a suitable position in the department or termination of employment if no redeployment options are available. Glenn Smith Executive Director Corporate Services 24 Ms Westacott noted a handwritten approval concerning the recommendation on Mr Smith's report on 26 August 2005, which read: Approved. This situation is unsustainable. We must allow the staff and board of the CMA to move forward. This is my view based on my extensive involvement with the matter and reading Ms Colbey's report. Staffing issues aside the recommendations and findings of the disciplinary inquiry raise serious questions about Ms Cush's judgement and I believe the best solution to this problem is redeployment. 25 On 29 August 2005, Mr Smith telephoned the applicant. Mr Smith informed the applicant her temporary employment was being terminated, but redeployment was going to be offered. Mr Smith confirmed his advice in writing later the same day. The letter read: Dear Ms Cush RE: Status of employment I am writing to advise you that the Director General has formed a view that the management and efficient operation of the Border Rivers-Gwydir Catchment Management Authority (BRG CMA) is not sustainable if you continue as General Manager. Contributing to this view are many complaints from staff of the BRG CMA, considered opinions by colleagues and corporate management, representation from the Public Service Association on behalf of concerned staff and advice from DIPNR staff on their dealings with you. This view is supported by the DIPNR Investigations Committee which met on 26 August 2005. They agreed that while the technical issues surrounding the recent findings of misconduct were not of themselves sufficient to warrant termination, your performance and management capability has been deficient and that you are not in a position to effectively perform the role of General Manager. As a temporary employee your services may be terminated under s30 of the Public Sector Employment & Management Act at any time with an entitlement to five days notice of termination. The Director General has asked that opportunities that may exist for you to be redeployed within the Department of Natural Resources be examined and this would be canvassed with you during your meeting tomorrow. Should redeployment not be possible, section 30 of the Act would then apply. Yours sincerely Glenn Smith Executive Director Corporate Services 26 Mr Smith also directed the applicant by email to attend a meeting on 30 August 2005. On 30 August 2005, the applicant and her representative, Mr Rochfort, attended a meeting with Ms Westacott and Mr Smith. The applicant understood the purpose of the meeting was to canvass the issues of redeployment. She was not aware the decision had already been made to terminate her employment as General Manager of the BRG CMA. Ms Westacott's opening words to the applicant were as follows: Firstly, I am aware that you have been targeted, you must have been through a terrible time. You have been critical in your response to the [IAB Report] that I have personally interviewed complainants and that I have refused to meet with you. So you're here now. What do you want? 27 Mr Rochfort then asked the reason the Department had sent the applicant the letter dated 29 August 2005 advising of redeployment the Department had earlier advised that she would be cautioned. Ms Westacott replied: I have returned from leave and read the summary of the [IAB Report] report. I have decided to overrule Mr Smith. I have read the report and Ms Cush's response and I agreed with some of her responses, but not all. 28 Ms Westacott did not respond to Mr Rochfort's request for advice about Ms Westacott's areas of disagreement concerning the IAB Report, indicating she wanted to discuss redeployment. However, at some point in the discussion, Ms Westacott said "Your management style", and then rolled her eyes; the applicant says she wishes now she had asked for elaboration. Ms Westacott also commented negatively on a statement by the applicant that she had a successful career in relationship management. Among other matters, the applicant complained she had not been given an opportunity to adequately address issues. Discussion ensued around the topic of redeployment. The applicant nominated Orange as an appropriate location for redeployment and understood from Ms Westacott the period would be six months. 29 On 1 September 2005, the applicant sent a letter to Ms Westacott to clarify several issues she felt were not adequately addressed in the meeting on 30 August 2005. Among other matters, the letter: . opened with a note of appreciation of Ms Westacott's handling of the matter; . queried whether there were any other investigations concerning alleged fraud; . noted Mr Smith appeared to have been satisfied with her explanations and he had finalised the matter in writing on 23 August 2005; . expressed uncertainty about the nature of the allegations concerning motor vehicle expenses; . cavilled with certain findings in the IAB Report concerning the recruitment process and her managerial aptitude; . demanded that if action was being taken against her in relation to the recruitment process that equal action be taken against the other two members of the selection committee, and also submitted "the actions taken against those two individuals should, reasonably, be more severe than against me"; . formally requested further advice as to what issues may have been considered by Ms Westacott concerning the employee who filed the grievance; . suggested that comments made to her indicated that the IAB Report had not been read or considered properly; . submitted certain individuals should not be allowed to "win" their campaign and removing her would send a message to the community "that the bureaucrats have won their campaign"; . complained the investigative process was not balanced or fair; . expressed concern about workplace hostility; . made miscellaneous other comments about future directions for the organisation, personal considerations and her commitment to the organisation; . expressed concern she was being held to a different level of accountability and annexed a list of matters titled "Items that require Investigation"; . urged Ms Westacott to consider the views of all the members of the Board of the BRG CMA, not just those of the chairman; . requested any additional concerns be put in writing so they could be addressed appropriately. 30 The Department did not provide any response to the applicant to any of the matters she raised in the letter dated 1 September 2005. 31 On 2 September 2005, Mr Furlong sent a memorandum to Mr Smith, Ms Westacott (then Acting Director General of the Department of Planning) and Richard Sheldrake, Acting Director General of the Department of Natural Resources, to seek formal concurrence of both Directors General on the following recommendation: That the Director General of Planning and the Director General of Natural Resources jointly approve the following:- 1. Either Ms Cush accepts the offer of redeployment for a period of three months to Orange under the direction of the Regional Director Central West Region, or 2. the services of Ms Cush as a temporary employee under section 27 of the Public Sector Employment & Management Act be terminated forthwith. 32 The need for concurrence of the Directors General arose as a result of the restructuring of the Department. Dr Sheldrake and Ms Westacott apparently concurred on the recommendation, albeit there was no documentary evidence as to the nature of the approval. 33 On 8 September 2005, Mr Smith sent a letter to the applicant advising her services were no longer required as General Manager of the BRG CMA and offering redeployment. The letter read: Dear Ms Cush RE: Status of Employment I am writing further to my previous correspondence and to your meeting with the Director General on 30 August 2005. This letter will confirm to you that the Acting Director General, Department of Natural Resources Dr Richard Sheldrake has concurred with the determination of the former Director General of the Department of Infrastructure, Planning & Natural Resources, namely that your services as General Manager of the Border Rivers Gwydir Catchment Management Authority are no longer required. Your last day of service with the CMA will be 9 September 2005. Dr Sheldrake has determined that an option of redeployment for a period of three months, shall be available to you but must be accepted within five days, as required under section 30 of the Public Sector Employment & Management Act 2002, or your services as a temporary employee under section 27 shall be terminated. Your redeployment would mean that your salary would continue to be met for a period of three months commencing 12 September 2005, and that you would be attached to the Central West Region of the Department, located in Orange, under the management of the Regional Director to whom you would report. This would enable you to source alternative employment during that period whilst you were engaged in project work for the Region. Arrangements for commencement in the Central West Region should be made with Damian Furlong on [telephone number] or Erica Stafford on [telephone number]. Yours sincerely Glenn Smith Executive Director Corporate Services 34 The applicant said it was only when she read the words about sourcing alternative employment during the redeployment period did she have her "first point of understanding" about what was occurring. Around this time, the applicant also heard that rumours were going around about her dismissal. She asked Mr Smith for an investigation concerning confidentiality, but Mr Smith did not respond. The redeployment offer 35 On 16 September 2005, Daniel Houlihan of IR Australia, emailed the Department on behalf of the applicant advising his client accepted the offer of relocation to Orange, subject to the provision of certain information concerning relocation expenses, the duties of the position in Orange, and confirmation of a starting date of 15 October 2005. The letter read: Dear Damian [Furlong] I refer to our telephone conversations of yesterday in regards to the offer of relocating Ms Amanda Cush from Inverell to Orange. My client accepts the offer of relocation subject to the following information being provided: 1. The extent of relocation assistance on offer, and the process that my client is to follow for accessing this assistance. My client is requesting that the Department meet the costs of removals plus mileage. 2. The range of duties that my client will be expected to undertake including any requirements to attend the Offices in Orange. 3. Confirmation that my client is to report for duties from 15 October 2005. As per our conversation could you please confirm the Department's acceptance of the above at your earliest opportunity. Yours faithfully Daniel Houlihan 36 Mr Furlong replied to Mr Houlihan by email that same day, agreeing to the three conditions sought by the applicant in the email dated 16 September 2005, advising: Dear Mr Houlihan As discussed with your Mr Rochfort today:- 1. The redeployment offer of 12 weeks is to be regarded as having commenced in 12 September, concluding on Friday 3 December 2005. 2. If Ms Cush wishes to commence duty on 15 October 2005 at Orange regional office of Department of Natural Resources, this is acceptable. Recreation leave may be used (as available) until 15 October but shall not extend the finish date. 3. Duties will be at the direction of Mr Axel Tennie, regional director Central West region. They will include several days per week attendance at the Cowra Research Station to assist with administrative matters, and a departmental vehicle will be available for the daily Orange/Cowra/Orange travel. On other days attendance will be at the Orange office with consideration for job search activity, as agreed with Mr Tennie. Mr Tennie's contact number is [telephone number]. 4. Relocation expenses should be arranged with Ms Rwida Nissan, telephone [telephone number]. It would be anticipated that this should be less than $1000, plus casual rate for private motor vehicle usage for the initial Inverell/Orange journey. Three quotes should be obtained for removal expenses and be approved by Ms Nissan in advance of the event. Please ensure that this is understood by your client and agreed, as soon as possible. Regards Damian Furlong Director, Strategic Business Development 37 Between 16 and 21 September 2005, Mr Fulong liaised with Mr Houlihan on a number of occasions to ascertain whether the applicant would actually commence at Orange. On 21 September 2005, Mr Houlihan advised Mr Furlong his client rejected the offer of redeployment and requested payment of her termination monies. In the proceedings, the applicant elaborated some reasons for that rejection, but indicated the rejection was principally because she intended to take legal action against the Department and, as such, did not consider it would be ethical to accept the offer. 38 Mr Furlong proceeded to implement the administrative arrangements to conclude Ms Cush's employment, effective 22 September 2005. 39 The applicant applied for a variety of positions following the termination of employment. The applicant started work in a new job on 31 January 2006. The applicant now earns less remuneration than in her former position with the Department. CONSIDERATION Dismissal 40 There were suggestions in the PEO's case that the termination of employment amounted to a "neutral termination of the employment relationship", or a resignation, given the applicant's rejection of the redeployment offer. I am satisfied, however, the applicant's termination of employment amounted to a dismissal within the meaning of Ch 2 Pt 6 of the Industrial Relations Act (see s83(5) as to the definition of dismissal public sector employees and Smith v The Director General of School Education (1993) 51 IR 204). That is, the Department dismissed the applicant from her position as General Manager of the BRG CMA, effective 9 September 2005. Once the applicant was dismissed from her substantive position, the applicant's employment status was something akin to an unattached officer. Following the applicant's rejection of the redeployment to Orange, the Department subsequently dismissed the applicant from her employment with the Department on 22 September 2005, consistently with: (a) the approval by Ms Westacott on 26 August 2005; and (b) the apparent approval of Ms Westacott and Dr Sheldrake as referred to in correspondence dated 8 September 2005. Moreover, the fact the applicant's employment contract had a statutory underpinning which permitted dismissal at any time does not preclude examination by the Commission of whether any such dismissal was harsh, unreasonable or unjust. Harsh, unreasonable or unjust 41 Procedural Issues: Certain issues first arose in December 2004 by way of a formal grievance concerning the applicant in relation to alleged recruitment procedure irregularities. The Department was duty-bound to investigate the initial grievance as well as the subsequent allegations made about the applicant. The procedures adopted by the Department concerning the investigation into the allegations seemed conventional and unremarkable, except for the delay between the initial allegation and the commencement of the investigation. 42 Following on from the finding of misconduct by Mr Haddad, Mr Smith then made his delegated decision on 22 August 2005 about the disciplinary action to be imposed by the Department on the applicant arising from the IAB Report. The disciplinary action Mr Smith decided to impose was a formal caution accompanied by, compendiously described, performance management measures. The Department informed the applicant of this outcome in writing on 23 August 2005. So far as the matters in the IAB Report were concerned, the advice in the letter dated 23 August 2005 concerning the formal caution and performance management should have been the end of the matter. The applicant was reasonably entitled to consider that the decision to issue a formal caution and to implement performance management measures concluded the matters that had been the subject of investigation and recommendation in the IAB Report. 43 However, things began to go procedurally awry sometime on or after 23 August 2005. There is no evidence about what occurred between 23 August 2005 and 26 August 2005, when Mr Smith recommended the removal of the applicant from her substantive position by redeployment or, failing that, dismissal of the applicant. The applicant wanted an explanation why there had been such a "radical turnaround" from Mr Smith's decision to issue a caution and assist with performance management. No real explanation or details were provided to the applicant in August 2005. Moreover, the only material before the Commission as to that turnaround was the evidence of the text of Mr Smith's recommendation on 26 August 2005 and a comment by Ms Westacott to the applicant on 30 August 2005. That is, in his recommendation, Mr Smith wrote: Notwithstanding my decision not to terminate Ms Cush's temporary employment in relation to the matters considered to constitute misconduct, I do not believe the management and efficient operation of the BRG CMA is sustainable if Ms Cush remains as General Manager. [My emphasis] 44 Mr Smith noted certain matters in support of his recommendation - namely his discussions with employees, the complainants and the PSA. Contributing factors were complaints from BRG CMA employees and advice from DIPNR employees on their own difficulties in dealings with the applicant. There was no evidence about the discussions Mr Smith had with these various people and no evidence as to the nature of the complaints or difficulties to which Mr Smith alluded in the recommendation. 45 Mr Smith's recommendation also noted that the Department's Investigations Committee had considered the applicant on 26 August 2005. There was nothing before the Commission as to the matters considered by the Investigations Committee. Mr Smith's advice in the recommendation did note, however, the Committee agreed the technical issues surrounding the finding of misconduct were insufficient to warrant dismissal, but also agreed the applicant's performance and management capabilities were so deficient that she could not effectively function as General Manager of the BRG CMA. 46 The only other insight into what may have caused the turnaround is something Ms Westacott said to the applicant during their meeting on 30 August 2005 - namely she read the IAB Report upon her return from leave and "decided to overrule Mr Smith". There was no challenge in the Department's case that Ms Westacott made this comment to the applicant – although as Ms Westacott herself did not give evidence. 47 There was nothing in the evidence or submissions to indicate Mr Smith's initial decision could not be personally reconsidered by him or overruled by Ms Westacott. One possibility is that Ms Westacott, in overruling Mr Smith's decision, may have asked or directed him to submit the revised recommendation. Nonetheless, questions of fair treatment self-evidently arise here. It is important to bear in mind that the PEO submitted the applicant was not dismissed on the basis of the misconduct findings arising from the IAB Report. There is a vacuum in the evidence about the specific matters, if the matters were not derived from the IAB Report, that led Ms Westacott to form the view that the management and efficient operation of the BRG CMA was not sustainable if the applicant continued as General Manager. If Ms Westacott was acting solely or principally on Mr Smith's recommendation concerning redeployment/dismissal, the fact remains there was neither advice to the applicant nor evidence in the proceedings as to the nature of the matters specified in the Department's letter dated 29 August 2005. That is, there was no evidence, apart from the matters investigated by Ms Colbey, concerning the "many complaints from staff of the BRG CMA, considered opinions by colleagues and corporate management, representations from the PSA on behalf of concerned staff and advice from DIPNR staff on their dealings" with the applicant; and nor was there any advice to the applicant or evidence in the proceedings concerning the deliberations of the Investigations Committee as adverted to in the same letter. 48 It appears from Mr Smith's recommendation dated 26 August 2005 and letter dated 29 August 2005 that matters other than those in the IAB Report led to the dismissal - namely (undisclosed) discussions by Mr Smith with a range of (unidentified) people and (undisclosed) committee deliberations. 49 In approving Mr Smith's recommendation on 26 August 2005, Ms Westacott's wrote: "the best solution to this problem is redeployment". Ms Westacott also wrote that she had extensive involvement with the matter and had read either the IAB Report or its executive summary. She noted that apart from any staffing issues, "the recommendations and findings of the disciplinary inquiry raise serious questions about Ms Cush's judgement". At the meeting on 30 August 2005, Ms Westacott also indicated to the applicant she had (undisclosed) areas of disagreement with the applicant's responses to the IAB Report and (unarticulated) concerns about the applicant's management style. 50 There was no evidence at all about Dr Sheldrake's role in the matter, apart from advice in the Department's letter to the applicant dated 8 September 2005 that: (a) he concurred with the Ms Westacott's determination that the applicant's services were no longer required as General Manager of the BRG CMA; and (b) he determined that an option of redeployment for a period of three months would be available to the applicant on the proviso that if redeployment was not accepted within five days the applicant's services as a temporary employee would be terminated. As submitted counsel for the applicant, Mr M Easton, Dr Sheldrake appeared to do no more than finalise the decision made by Ms Westacott when she was the Director General of the pre-restructure Department. 51 There was, and remains, a vacuum concerning the reasons that led to the turnaround from the decision to caution as against a decision to redeploy/dismiss. I accept the submission by Mr Easton that the procedure adopted by the Department after 23 August 2005 in relation to the redeployment/dismissal was so unsatisfactory as to compel a finding of unfairness. 52 Substantive Issues: The applicant's case squarely contended that the applicant had been the subject of targeting by disgruntled employees and their union. In this respect, the applicant gave unchallenged evidence that Mr Smith and Ms Westacott commented to her that she had been "targeted". The comments to the applicant about targeting were, of course, hearsay. Nonetheless, those comments gave the applicant cause to believe that she was being targeted, or reinforced her own existing perceptions in that respect. Mr Smith also voiced certain opinions about the PSA, but there was no evidence to substantiate those opinions concerning the alleged motivations and actions of the employees or the PSA. In any event, if the applicant, Mr Smith or Ms Westacott had cause to consider that the applicant was targeted the evidence would not support a conclusion that she was targeted unfairly or improperly by employees or the PSA. 53 Unfair targeting: As noted earlier in this decision, the applicant disagreed with the overall investigative process, as well as many findings and recommendations in the IAB Report. The applicant was concerned about the investigative process, but it appeared comprehensive and above-board. Although the applicant was unhappy with the process and some of the outcomes, there is nothing whatsoever to suggest that IAB was somehow part of the collusive targeting of the applicant. Moreover, there were undoubted irregularities in relation to, for example, the recruitment process and expenses claims (since repaid); and the applicant's own evidence underscored the findings she had difficulties in managing rather than supporting a conclusion she was managing effectively. The Department would have had reasonable grounds to take some form of action concerning the applicant even in relation to matters she admitted, particularly given the role and responsibilities accompanying the post of general manager and notwithstanding the blame-shifting that permeated some of the applicant's responses to Ms Colbey and the Department. 54 The parties' evidence did not, in any comprehensive sense, directly address the matters in the IAB Report. For instance, there was no direct evidence from those whose grievances and allegations gave rise to the investigation and there was no direct evidence about what contributed to bypassing the caution in favour of redeployment/dismissal. The parties did not adduce evidence from any witnesses other than the applicant and Mr Furlong. The principal evidentiary focus in the applicant's case was recounting the applicant's dealings with local and senior departmental employees as well as members of the Board of the BRG CMA, and highlighting her responses to the Department; and the applicant's evidence in support of targeting and the like was all hearsay. Mr Furlong's evidence was similar to a solicitor's affidavit sworn on knowledge and belief, with documents annexed; he had only peripheral involvement in any decision-making, as outlined in his evidence. 55 Given the style of evidentiary cases presented by the parties, there was insufficient material by way of direct evidence before the Commission to contradict the findings and recommendations of the IAB Report and the Department's findings the applicant had engaged in misconduct. The IAB Report's findings concerning the allegations against the applicant were adverse in a number of respects - but those findings were, apparently, reasonably open to Ms Colbey. Mr Haddad formed the view that the applicant had engaged in misconduct as outlined in the IAB Report and as summarised in his letter dated 27 July 2005. Even with the benefit of a personal interview and written submission from the applicant, Mr Smith similarly concluded that the applicant had engaged in misconduct. Mr Smith accepted the applicant's explanations about inexperience and unintentional errors and noted there were instances of poor management of certain issues and staffing matters. Again, those findings were reasonably open. 56 Against this background, it is difficult to see the basis for claims of unfair targeting. The evidence would not satisfactorily support a conclusion there was unfair or improper targeting, notwithstanding the submissions by Mr Easton concerning the evidentiary inferences to be drawn given the absence of evidence from key personnel such as Mr Smith and Ms Westacott. As submitted by Ms E Brus of counsel, the PEO does not have to disprove a conspiracy. This is so even when considering matters such as a telephone call the applicant received from an associate of the original complainant and the alleged failure by the IAB and the Department to, for instance, investigate or respond to the applicant's own complaints or allegations about people other than herself. (It is possible the Department has taken action concerning such matters, but, as with the grievances and allegations concerning the applicant, the outcome has been kept private – but this remains speculative given the absence of evidence.) 57 The evidence does not establish the applicant was the subject of unfair or improper targeting in her employment by employees or the PSA. What the evidence does establish is that action was taken around the allegations against the applicant, being allegations the Department was bound to investigate. The independent investigator found there was substance to some allegations and made recommendations accordingly. Mr Haddad and Mr Smith both found misconduct was involved and Mr Smith made a delegated decision that a caution and performance management were appropriate. There is then a vacuum about what occurred after 23 August 2005, but the decision to dismiss seems likely to have arisen from a more prosaic reason than a conspiracy, for example, Ms Westacott overruled Mr Smith because she disagreed with his original decision or she otherwise formed the view it was untenable for the applicant to continue to occupy the role of General Manger. Based on my consideration of the materials before the Commission, I am bound to say it was open to Ms Westacott to form the view recorded in the first paragraph of the letter dated 29 August 2005 about the sustainability of the applicant managing the BRG CMA, albeit that may have been addressed by implementing clauses 2 and 3 of Mr Smith's decision on 22 August 2005 in relation to performance management. Looked at another way, if the Department had handled this matter in a more procedurally appropriate way there may have been no cause for a claim of harsh, unreasonable or unjust dismissal. Nonetheless, as I have concluded earlier, the process involved in the decision-making after 23 August 2005 leading to the redeployment/dismissal was certainly procedurally unfair to the applicant (and, as in most cases of procedural unfairness, this resulted in collateral aspects of substantive unfairness). 58 Targeting - the employees and PSA: Mr Furlong understood the PSA made representations to Ms Westacott about having an investigation into the original employee grievance. Although there was no direct evidence to support that understanding on the part of Mr Furlong, the Department would have been obliged to investigate an employee grievance irrespective of any representations by a union. 59 On 20 May 2005 the Department received a letter from the PSA concerning formal representations from members employed by the BRG CMA. The Department expanded the IAB's terms of reference to include the matters raised by the PSA. The Department advised the applicant in writing of this fact. 60 The Department was in receipt of formal grievances, allegations and representations about the applicant and an independent investigation was conducted by the IAB involving interviews with more than a dozen people. The Department decided to keep private the outcome of the process; Mr Smith instructed staff and advised the applicant to respond to inquiries accordingly, and several employees received that advice simultaneously. An employee such as the original complainant was probably entitled to be given better information than that the outcome of her formal grievance was a "private matter". In all the circumstances, it is not surprising the applicant heard that employees or the PSA, or both, intended to take the matter further. 61 It is clear from the evidence the PSA made formal representations to the Department and, almost certainly, also had discussions with corporate management around those representations - as might be expected in circumstances where there were employee grievances and allegations concerned a general manager. Although the applicant was concerned about the PSA's allegations, there is nothing unusual about unions making representations to corporate management about grievances and allegations on behalf of members, and there was nothing to suggest there was anything irregular about the PSA's representations. Given the findings of the independent investigator, it appears that matters had been reported appropriately and it is difficult, as such, to accept that complaints and allegations from employees and the PSA could be viewed as vexatious. Remedy 62 The applicant said she disagreed with the process by which the decision to redeploy/dismiss was made. The applicant said that just as the Department was entitled to make that decision, she was entitled to be informed as to how the decision was made and what influenced it. In accepting the applicant's view of the matter in this respect, I am satisfied the dismissal was harsh, unreasonable and unjust for the reason that it was bereft of procedural fairness. 63 The applicant sought reinstatement to her former position as Manager of the BRG CMA. Reinstatement, which is the primary remedy under the Industrial Relations Act, would, however, be impracticable in this matter. As Ms Brus submitted, one only has to consider the applicant's own evidence about the nature of the work-related relationships to conclude that reinstatement would be impracticable; and relevant in that respect also was the evidence of the applicant's perceptions about the motivations of those who raised allegations, including allegations which were found by the IAB to substantiated and found by the Department to have amounted to misconduct. The applicant rejected the position in Orange for a range of reasons apart from the ethical concerns described in her evidence, which leads me to conclude it would be impracticable to re-employ her in that position. 64 I am satisfied the applicant should have an order for monetary compensation given the finding that the dismissal was harsh, unreasonable and unjust. The unfairness of the dismissal of the applicant from her position as General Manager of the BRG CMA was modified by the offer of the redeployment for a period of three months. The applicant appeared, initially at least, to have accepted redeployment, albeit she had only Hobson's choice in the matter. She suggested Orange as a suitable location for redeployment (and in fact now lives in that locality). The applicant received professional advice that accepting the position in Orange would not negate any legal remedies otherwise available to her. The applicant explained that she ultimately declined what amounted to three months' paid notice working at Orange, coupled with relocation expenses, because she considered it would be unethical to continue to work for the Department in circumstances where she intended to initiate legal proceedings against the Department. 65 The applicant was a comparatively short-term employee, having less than a year of service. The applicant's employment contract permitted dismissal at any time within the period of her temporary employment - albeit the applicant expected, absent any other considerations, to work at least the full term of the contract if not beyond. The employment could be terminated on giving five days' notice; the Department determined to offer the applicant redeployment. The Department's offer would have had the effect of giving three months' notice commencing on 12 September 2005 and concluding on 3 December 2005. The applicant did not want to commence duties at Orange until 15 October 2005; the Department was prepared to accommodate a deferred start on the basis the applicant accessed available annual leave for that purpose and that it did not extend the finish date. It is unclear from the evidence whether the applicant actually worked in any capacity for the Department after her removal from the position of General Manager of the BRG CMA to 22 September 2005, or whether she was on some form of paid or unpaid leave. 66 The applicant decided, for her own reasons, to reject the offer of redeployment to Orange. It is common ground that it was intended the period of redeployment could have been used by the applicant for seeking alternative employment. In rejecting three months' redeployment on her substantive salary, the applicant decided to forego not only the potential mitigation of income losses to 3 December 2005 but also assistance with relocation expenses to Orange, where she now lives. In the circumstances of this case, which involves a case of procedural unfairness to a temporary employee with less than a year of service, I would not have been minded to order compensation of a high order to compensate her for income losses while applying for alternative employment etcetera. This renders it difficult to determine compensation given that the applicant did not mitigate her losses by accepting the three months' redeployment that was offered to her. 67 In determining the compensation amount, I have taken into account the fact the applicant earns less than in her former employment. The applicant applied for a number of jobs and also explored self-employment options, and I have considered this in the context of s89(6) of the Industrial Relations Act. The evidence indicated that the applicant applied for only one position in the six-figure salary range, and that position was in Dubbo. The applicant appears to have concentrated most of her job-seeking in Orange, and none of the positions in Orange was remunerated at a level approximating her former salary. It may well be that the lack of applications by the applicant for positions in her former salary range is attributable to the job-seeking focus on vacancies in Orange coupled, with the small pool of senior job opportunities in regional cities; or it may be the applicant has decided to seek a less senior role after her experiences as a general manager. There may be other reasons; there was no evidence one way or the other. Nonetheless, given the evidence indicated the applicant has not, with one exception, actually applied for positions in the same salary range as her former position, I do not consider a basis has been established for compensation with respect to the drop in income additional to the compensation ordered. 68 Given the applicant's rejection of the redeployment offer which would have operated as three months' notice on full pay, coupled with the findings in this matter which involved a finding of procedural unfairness to a temporary employee with less than a year of service, I am satisfied it is appropriate to order the Department to pay to the applicant $6,000 or approximately three weeks' remuneration. 69 Leave is granted to seek a relisting to formalise any orders, should that be necessary. 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.