Industrial Relations Commission New South Wales Medium Neutral Citation: Ganino v Road and Traffic Authority of NSW [2011] NSWIRComm 1008 Hearing dates: 18 March 2010; 14-16 April 2010; 19-22 April 2010; 4-5 May 2010; 12 May 2010; 17-18 May 2010; 31 May 2010; 2 June 2010; 18 June 2010 Decision date: 08 March 2011 Jurisdiction: Industrial Relations Commission Before: Tabbaa C Decision: 1. The delegation question needs to be dealt with as a threshold issue to determine validity of the dismissal; 2. Leave is granted to the Respondent to file evidence explaining the operation of the Delegation manual. Catchwords: UNFAIR DISMISSAL; Delegated Authority; Validity of the exercise of functions; Officers not authorised to conduct the various steps of the disciplinary process; Delegations not produced in relation to each step in the disciplinary process. Legislation Cited: Industrial Relations Act 1996 Transport Administration Act 1988 (NSW) Crown Employees (Road and Traffic Authority of New South Wales - Salaried Staff Conditions of Employment) Award Public Sector Employment Legislation Amendment Act 2006 Public Sector Employment and Management Act 2002 Transport Administration (Staff) Regulation 2005 Interpretation Act (NSW) 1987 Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 Project Blue Sky v The Australian Broadcasting Authority (1998) 194 CLR 355 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales and Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General [2010]NSWIRComm 36 R v Janceski [2005] NSWCCA 281 at [98] R v Halmi [2005] NSWCCA 2 R v Morais (1988) 87 Cr App R9 R v Jackson (1997) 2 Crim App R 497 B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 Parks Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCA 820 Perpetual Trustee Company (Canberra) Ltd v Lewis (1994) 119 FLR 38 O'Reilly v Commissioners of State Bank of Victoria (1982) 153 CLR 1 PSA and Professional Officers' Association Amalgamated Union of NSW (on behalf of Rosanna Ganino) and Roads and Traffic Authority of New South Wales Division of New South Wales Government Service [2009] NSWIRComm 181 (29 October 2009) Fonseka v Epic Hotels Pty Ltd (No 2) [2009] NSWIRComm 178 Category: Procedural and other rulings Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Rosanna Ganino) (Applicant) Road and Traffic Authority of NSW Division of NSW Government Service (Respondent) Representation: Ms P Lowson of counsel (Applicant) Ms K Eastman of counsel (Respondent) W G McNally Jones Staff (Applicant) Minter Ellison (Respondent) File Number(s): IRC 1141 of 2009 Decision 1The Public Service Association of New South Wales, on 4 August 2009 filed an application, pursuant to section 84 of the Industrial Relations Act 1996, seeking relief for the alleged unfair dismissal of its member, Ms Rosanna Ganino, by the Roads and Traffic Authority of New South Wales, a Division of the Government Service of New South Wales ("the RTA"), and a corporation constituted under section 46 of the Transport Administration Act 1988 (NSW). 2Ms Ganino had been employed by the RTA from 7 February 2002 until her dismissal as a Solicitor pursuant to the terms and conditions of the Crown Employees (Roads and Traffic Authority of New South Wales - Salaried Staff Conditions of Employment) Award . INTRODUCTION 3The RTA alleged that the Applicant had inappropriately accessed confidential documents and encouraged a junior staff member to access confidential documents. The RTA also alleged that the Applicant, amongst other things, failed to comply with directions lawfully and reasonably issued by her manager to return confidential documents and failed to treat her manager with courtesy and respect. 4In accordance with its policies and procedures, the RTA conducted fact-finding, and then disciplinary, investigations into those allegations during which the Applicant was interviewed. On each occasion she had read from a prepared statement. 5At the conclusion of the investigative process, the Applicant was advised, by letter dated 29 June 2009, that the allegations against her had been substantiated and that her conduct constituted serious breaches of the Respondent's Code of Conduct and Ethics. She was provided with an opportunity to respond to the proposed penalty of termination of employment. The Applicant's response, dated 6 July 2009, failed to convince the Respondent to do otherwise and her employment was terminated on 23 July 2009. 6Ms Ganino held the position of Senior Solicitor Liability Litigation at the time of her termination. She contended that her line manager was the Chief Executive Officer ("the CEO"). The Applicant contended that the dismissal was harsh, unfair and unreasonable for a number of reasons, including the fact that the termination of her services was determined by a Director who was not delegated by the CEO to make such a determination. 7The matter was the subject of two interlocutory hearings before Ritchie C and before her honour, Kavanagh J. The hearing before the Commission as currently constituted was conducted over 16 days from 18 March 2010 until 18 June 2010. Written submissions were later filed in relation to submissions on the delegations issue and the merits issue. LEGISLATIVE HISTORY 8Counsel for the Applicant provided a legislative history which is summarised below. 9The Public Sector Employment Legislation Amendment Act 2006 ("the PSELA Act") introduced amendments to NSW Statutes which had the effect of transferring the employment of staff from statutory corporations to the Government of New South Wales as those organisations, including the Roads and Traffic Authority, were vulnerable to coverage by the Work Choices legislation. 10Those amendments included the insertion of Chapter IA into the Public Sector Employment and Management Act 2002 ("the PSEM Act") which includes the following relevant provisions: s.4D(2) A Division Head may, subject to section 4B(2), exercise on behalf of the Government of New South Wales the employer functions of the Government in relation to the members of staff of the Division. s.4B(2) The employment of staff in the Government Service, including the exercise of employer functions in relation to that staff, is subject to the requirements of this or any other Act relating to that staff. 11The Applicant submitted that, not only were the provisions of ss 4B(2) obviously incorrect, but that the PSEM Act does not apply to staff employed by the Government of New South Wales under s.4B(1). 12The Applicant pointed out that section 57 of the Transport Administration Act (NSW) 1988 was inserted, in the same terms, in the PSELA Act 2006. That section provides as follows: 57 (1) The regulations may make provision for or with respect to the staff to which this Division applies, including the conditions of employment and the discipline of any such staff. (2) Any such regulations relating to the conditions of employment or the discipline of the staff to which this Division applies: (a) have effect subject to any State industrial instrument relating to that staff, and (b) have effect despite any determination under section 4E (1) of the Public Sector Employment and Management Act 2002, and (c) are subject to Part 3.1 of the Public Sector Employment and Management Act 2002, an d (d) in the case of staff employed in a Division of the Government Service to enable the State Transit Authority to exercise its functions may provide for appeals by members of staff in connection with their employment, including appeals to a Transport Appeal Board constituted under the Transport Appeal Boards Act 1980. 13Despite the fact that the section contemplates that Regulations would be made that apply to RTA staff, no such regulations have been promulgated. 14The Applicant concluded that the only provision relating to RTA staff is Clause 35 of the Transport Administration (Staff) Regulation 2005 which took effect from 1 September 2005 and which provides as follows: 35(1) An RTA officer may be temporarily suspended from duty by the RTA pending: (a) the institution or determination by the RTA of disciplinary action against the officer, or (b) the determination by a court of any charge against the officer for a serious criminal offence . 35(2) The RTA may remove a suspension at any time. 35(3) If: (a) disciplinary action is instituted by the RTA against an RTA officer, or (b) an RTA officer is charged with having committed a serious criminal offence , any salary payable to the officer while the officer is suspended from duty is (if the Chief Executive of the RTA so directs) to be withheld. 35(4) Salary so withheld may (if the Chief Executive so directs) be subsequently paid to the RTA officer whatever the result of the disciplinary action or charge. 35(5) In this clause : "disciplinary action" includes: (a) disciplinary interviews or inquiries in connection with the conduct of an officer of the RTA, and (b) disciplinary charges against an officer of the RTA, whether made orally or in writing. "serious criminal offence" means an offence committed in New South Wales that is punishable by imprisonment for 6 months or more or an offence committed elsewhere that, if it had been committed in New South Wales, would be an offence so punishable 15The Applicant submitted that, in the absence of any other legislation that applies to limit the extent or generality of s 4D of the PSEM Act in relation to employer functions, only the CEO of the RTA is authorised to exercise employer functions in relation to RTA staff, including the right to manage the discipline of staff employed to undertake RTA work, except to the extent the CEO delegates that function pursuant to s 4F of the PSEM Act which provides as follows: 4F(1) The Division Head of a Division may delegate to any member of staff of that or any other Division of the Government Service : (a) any of the Division Head 's functions under this Act (other than this power of delegation), and (b) any employment-related functions under any other Act that the Division Head exercises on behalf of the Government of New South Wales in relation to the staff in that Division . (2) If: (a) a function of a Division Head is delegated to a member of staff in accordance with subsection (1), and (b) the instrument of delegation authorises the sub-delegation of the function , then, subject to any conditions to which the delegation is subject, the person may sub-delegate the function to another member of staff of that or any other Division of the Government Service . (3) In this section: (a) a reference to the functions of a Division Head includes a reference to any functions delegated to the Division Head under this Act, and (b) a reference to a member of staff of a Division includes a reference to a person holding an appointment to or in a body or organisation in respect of which a Division of the Government Service is established to enable the body or organisation to exercise its functions . 16The Applicant also submitted that, in the absence of a definition of " employer functions " in the PSEM Act, then the words are to be given their ordinary meaning which would include, inter alia, the management of discipline. The Applicant further submitted that only the CEO can discipline staff unless that function or power has been validly delegated. The Applicant conceded that some of the documentation produced by the Respondent indicated that the CEO may have delegated some specific functions or powers in relation to disciplining of RTA staff, however, no documentary evidence has been produced to the Commission evidencing delegation of that function in relation to Ms Ganino. 17On that basis, the Applicant concluded that the following functions were invalid and had no effect as they were purportedly exercised by persons other than the CEO: i) the engagement of external providers; ii) issuing allegations; iii) authorising fact finding and disciplinary interviews; iv) finding the allegations proven; and v) suspending Ms Ganino with pay. SUBMISSIONS ON BEHALF OF THE APPLICANT 18The Respondent asserted that the issue of delegation should have been raised by the Applicant in her evidence in chief or in cross-examination. In rejecting that assertion, the Applicant pointed out that the issue did not fall within her employment responsibilities but rather was a legal argument which arose after the initiation of proceedings and which it was appropriate and proper for her legal representatives to run on her behalf. 19It was submitted on behalf of the Applicant that dealing with the issue after the initiation of proceedings would, contrary to the Respondent's submissions, shorten the proceedings unless, of course, the Respondent failed to address all of the matters relating to the valid exercise of functions in terminating Ms Ganino. In that regard, the Commission's attention was drawn to the provisions of Part 6 of the Industrial Relations Act 1996 which requires a termination to have been validly effected in order to attract the jurisdiction of the Commission. 20It was submitted on behalf of the Applicant that, if the Commission upholds her argument in relation to this jurisdictional issue, all that would be required would be for leave to be granted to the Respondent to file evidence explaining the operation of the 2007, and perhaps the 2009, Delegation Manuals. Mr Tout had given evidence that he had been involved in the review of the Manual in 2008-2009. The present proceedings may be contrasted with the circumstances in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27, where the amendments sought would have involved the vacation of trial dates and affected litigants not already involved in those proceedings. 21It was argued on behalf of the Applicant that the Commission's Rules do not require an application to be made to amend the section 84 application as that would result in excessive formality, a process which is expressly eschewed by the provisions of the Industrial Relations Act 1996. In that regard, the Commission's attention was drawn to section 146 of the Act, particularly in relation to the public interest and dealing with all matters in controversy between parties in the one set of proceedings; section 162, in relation to the Commission determining its own procedure; and, most importantly, section 163. 22It was pointed out that the Respondent has been on notice for some time that the Applicant had issues in relation to the validity of the exercise of functions in accordance with delegated authority and, hence, the validity of the termination was in question: i. Ms Ganino's letter dated 6 July 2009; ii. Mr Tout's statement, including a specific delegation of powers to Mr Tout on 8 July 2009; iii. The applicant's submissions made before Commissioner Ritchie on 28 October 2009; iv. The applicant's correspondence and Summons in relation to delegations in October-December 2009; v. Copy of correspondence to the Commission in early March 2010; vi. The submissions made before the Commission as currently constituted in March 2010; vii. The opening of the Applicant's case on 14 April 2010; viii. The attempted tender of the Delegation Manuals on 15 April 2010 ix. The revisiting of the tender of the Delegation Manuals on or about 22 April 2010 (which was the first time that the Respondent sought any particularisation of the issue) x. The Applicant's Delegation Submissions (summarised below). 23It was argued that if Ms Ganino was correct in relation to her argument that Mr Tout was not the relevant Director to deal with the disciplinary process against her, then it would be unfair to deprive her of the opportunity to run that aspect of her argument 24It was also argued that all matters in dispute between the parties, including the delegations issue, ought to be agitated and resolved in the one set of proceedings. 25The issue was the degree to which the Respondent would be prejudiced by having to deal with this issue. In that regard, the Applicant pointed out that the Respondent had two weeks to consider the nature of the evidence it would call in relation to this issue and from whom that evidence would be adduced. 26It was submitted that it would be grossly unfair if the Commission prevented the Applicant from running this aspect of her case or made a ruling preventing the Applicant from, firstly, cross-examining Mr Tout in relation to a matter about which he has already given evidence and, secondly, cross-examining Ms Cvetkovic about the functions she exercised during the disciplinary proceedings against the Applicant and the source of power in relation to those functions. Delegation Manuals 27The Applicant pointed out that, in response to the summons for delegation documents, the Respondent had merely produced the 2007 and 2009 Delegations Manuals and a one page document purporting to delegate powers in relation to the employment of the Applicant to Mr Tout. 28The Applicant argued, firstly , that a delegation is not valid in the absence of an instrument in writing referring to each power referred to in the relevant Manual that has been delegated; secondly , that the specific steps in the disciplinary process may only be exercised by the CEO if the Manual is silent about the delegation of powers in respect of those steps; and, thirdly , the steps are invalid unless the CEO authorised those steps to be taken. 29Bearing in mind that the Applicant's termination had occurred on 23 July 2009 and the 2009 Delegations Manual took effect from 6 July, it was submitted that the relevant Manual for the majority of the disciplinary process was the 2007 Manual which relevantly provides: Section 1 - Introduction 1. This document outlines the various levels of authorisation required for a range of functions from procurement,.... to managing staff conditions of employment. All staff exercising any delegations MUST comply with the provisions of this manual. Section 2 - Principles of Delegation 3. Delegations apply to the works, activities, organisations and administrative sections, for which delegates are responsible, and are to be exercised within approved budgets and/or programs. 5. Delegated Officers are expected to know and to comply with relevant legislation, regulations, Government and Authority policy as well as directions, requirements or limitations which may be issued from time to time.... 6. Delegated functions are implicitly limited also by an obligation on delegates to consult. where not specifically required in RTA procedures, consultation will depend on the judgement of the delegate. It is expected delegates will consult with more senior or specialist officers before exercising delegations, where implications for the RTA and its activities are significant (e.g. legal). 14. Contractor (including Skill Hire Personnel) and consultants cannot exercise delegated authorities or commit funds on behalf of the Roads and Traffic Authority or approve expenditure, nor sign contracts or commit the Authority in any way. Section 4 - Position Authority Schedule 4.1 The Legend - Delegation Level specifies that the Chief Executive is level 0 and a Director is level 1. Section 5 - Delegation Clauses 5.4 Human Resources 5.4.7 Conduct Approval to: Authorise a disciplinary interview: CEO or Director Take disciplinary action: CEO or Director Suspend a staff member from duty with pay: CEO or Director Suspend a staff member from duty without pay: Chief Executive 30It was submitted that, in the absence of a definition of "disciplinary action" in the RTA Manual, then the definition contained in the RTA Discipline Policy should apply. The said definition includes: * reprimand and warning; * deferral of increment * transfer * demotion and/or reclassification; and * termination of services 31It is noted that the 2007 Manual makes specific and separate provision in section 5.4.3 for approval to terminate the services of staff by the CEO or Director. 32It was argued by the Applicant that if the actual instruments of delegation were made under the 2007 Manual and continued to be valid in 2009, then, consistent with the Delegations set out in Discipline Policy Version 5, those delegations should exist from the CEO to Directors to: + authorise a disciplinary interview; + authorise disciplinary action; and + authorise suspension of a staff member with pay. No Evidence of Instruments in Writing 33Nevertheless, the Applicant has not been provided with any proof of the existence of instruments in writing delegating those functions and powers from the CEO to any person or position and therefore her suspension with pay was neither authorised nor valid. Disciplinary Procedures, Policies and Guidelines 34The parties were in dispute as to what disciplinary policies and procedures applied to the Applicant. The Respondent contended that the following were the appropriate policies: Discipline Policy; version 5.0; last updated 29.03.2004 Discipline Guidelines; version 5.0; last updated 29.03.2004 Discipline Procedure; version 5.0; last updated 29.03.2004 35The Applicant pointed out that, included in correspondence to her dated 19 February 2009 in which she was advised of ten allegations made against her and in which she was directed to attend a fact finding interview, were three attachments: Discipline Policy; version 6.0; last updated 3.11.2008 (4 pages) Discipline Guidelines; version 6.0; last updated 3.11.2008 (11 pages) Discipline Procedure; version 5.0; last updated 29.03.2004 (7 pages) 36As can be gleaned, there is a dispute between the parties as to which Policy and Guidelines were applicable at the relevant time. Whilst the Applicant did not waive her rights to rely on the Policy and Guidelines she had been provided with, including the delegation aspect, she focused her submission on the Policies and Guidelines relied on by the Respondent. 37Ms Cvetkovic, Manager Workplace Practice Unit, attached the Discipline Guidelines, version 5.0 dated 29.03.2004 to her statement. Those Guidelines stipulate that a Manager must take prompt action, including conducting a fact-finding investigation, if and as required where strategies directed at achieving the required standard of work or conduct have not produced the required result or where a disciplinary matter is alleged, suspected or known to have occurred. Ms Cvetkovic conceded, in correspondence to the Applicant dated 23 February 2009, that there were no policies or procedures governing fact-finding interviews, " however the process followed is generally as per disciplinary guidelines and procedures... ". Despite the absence of policies or procedures, Ms Ganino was threatened, in that correspondence, with suspension without pay if she did not attend the fact finding interview. It is noted that the correspondence concluded with the warning that failure to attend the fact-finding interview would be considered a failure to comply with a lawful direction and " consideration will be given to suspending you from duty without pay " - a role that is ascribed only to the Chief Executive by virtue of the 2007 Delegations Manual. 38The Discipline Guidelines also refer to disciplinary interviews. The Discipline Procedure also refers to disciplinary interviews but not fact-finding investigations. The Applicant pointed out that any delegations in respect of disciplinary interviews do not ipso facto apply to fact finding interviews. Deficiencies in 2007 Delegations 39The Applicant pointed to the significant differences between the 2007 and 2009 Delegations Manuals regarding disciplinary matters. For example, the 2007 Manual lacked a number of delegations which were relevant to the current proceedings: - Fact-finding interviews; - Approval to authorise a disciplinary investigation; - Determination of penalty arising from unsatisfactory performance and/or conduct; - Approval to determine disciplinary outcome in serious misconduct matters; - Approval to recommend disciplinary proceedings. 40The absence of these delegations from the 2007 Manual, it was submitted, meant that the only person authorised to undertake those steps in relation to Ms Ganino was the CEO. The Applicant submitted that the following can be concluded from the failure of the CEO to undertake those steps: 41Firstly , the disciplinary investigation was not properly authorised and was invalid; secondly , the disciplinary proceedings were not appropriately approved and were invalid; thirdly , the findings of the Disciplinary Panel and Mr Tout were not properly authorised and were invalid; and fourthly , the determination by Mr Tout of the expected penalty was not properly authorised and was invalid. 42The Applicant made the point that, even if the 2009 Delegations Manual were to be found to be the relevant Manual applicable to her set of circumstances, there were certain delegations relating to her that are not dealt with in that Manual: - Authority to engage an external investigator, Mr Dave Madden, to conduct a fact finding investigation, including requiring the attendance of employees and contractors at fact finding interviews; - Authority to engage an external investigator, Mr Geoffrey Hopkins, to conduct a disciplinary investigation including requiring the attendance of employees and contractors at disciplinary interviews; and - Authority to issue allegations on 19 February and 12 May 2009 are all invalid, as none of them were authorised by the CEO. Absence of Delegation of Functions and Powers 43Item 5.4.7, Conduct of the 2007 Delegations Manual provides that the Section Manager Control Management Services can approve the interviewing of staff to establish facts of " suspected or alleged misappropriation, fraud or corrupt conduct ". 44Whilst the Applicant conceded that fact finding interviews may be conducted as part of the RTA's management of discipline, pursuant to s 4D of the PSEM Act, only the CEO has the authority to exercise that power in the absence of a specific delegation of that power by the CEO. 45It was submitted that, in Ms Ganino's case, there was no evidence before the Commission that: 1. The CEO authorised fact finding interviews to be conducted; 2. The CEO delegated the power to authorise fact finding interviews to be conducted; and 3. A Director authorised the conduct of the fact finding interviews. 46In the absence of a delegation from the CEO, then it fell on the CEO to exercise the following employment functions which, the facts demonstrate, the CEO did not do: i) Appointment of the external investigator, Mr Dave Madden; ii) Appointment of the external investigator, Mr Geoffrey Hopkins; iii) Issuing of allegations on 19 February 2009; iv) Issuing of allegations on 12 May 2009; and v) Finding the allegations were proven in June 2009. 47The Commission was reminded that Ms Ganino had been threatened with suspension without pay if she did not attend the fact finding interview. It followed, therefore, that the fact finding interviews were required to be properly authorised. As the CEO did not authorise the fact finding interviews and did not delegate that authority to anyone else, it followed that the interviews were invalid. If that material was excluded from consideration, then the factual basis for the disciplinary process is invalid and the whole process is impugned bearing in mind that the material from the fact finding interviews formed a significant part of the findings by Mr Madden that the allegations against her were proven. Rod Tout not the appropriate Director 48Ms Ganino had, in correspondence to the Respondent dated 6 July 2009, pointed out that Mr Tout, as Director Corporate Services, was not the specified Director responsible for the Legal Branch which was part of the CEO's office. She also pointed out that Ms Vickers, who was Acting General Counsel at the relevant time, could not be delegated with functions because she was a contractor. Ms Ganino based that information on version 6.0 of the Guidelines although it was equally applicable under version 5.0 as the latter refers to the "relevant director". 49It followed, therefore, that only the CEO had the power to authorise the following in relation to her: # fact finding interview; # the appointment of external people to conduct the said interviews; # a disciplinary interview; # the appointment of external people to conduct a disciplinary interview; # allegations made against the applicant; # suspension with pay. 50The Applicant submitted that even if she were to concede that Mr Tout was the correct Director to authorise a disciplinary interview, a point which she does not concede in the absence of the actual Instrument of Delegation, the Respondent has not produced: a) any document signed by Mr Tout authorising the disciplinary interview of Ms Ganino on 24 May 2009; b) any sub-delegation by Mr Tout to Ms Cvetkovic giving the latter the power to authorise the disciplinary interview. Validity of Actions 51The Applicant referred to the provisions of s 49 (2)(b) of the Interpretation Act (NSW) 1987 in relation to what constitutes a valid delegation of power to exercise discipline functions by the CEO: delegations " shall be in, or be evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorised by the body for that purpose". The Applicant cited the judgment of the High Court in Project Blue Sky v The Australian Broadcasting Authority (1998) 194 CLR 355 at pars [91] to [93] (per McHugh, Gummow, Kirby and Hayne JJ) as establishing the relevant test dealing with invalidity of an act done in breach of a condition regulating the exercise of a statutory power. 52In applying the Project Blue Sky test, regard must be had to the statutory scheme (per Marks J): Public Service Association and Professional Officers Association Amalgamated Union of New South Wales and Director of Public Employment by his agent the Director General of the Department of Justice and Attorney General [2010] NSWIRComm 36. The circumstances pertaining to that case were distinguished from the present circumstances in that Part 2.7 of the PSEM Act, which details the disciplinary processes applying to public sector employees does not apply to RTA employees nor is there any equivalent provision applying to RTA employees in the PSEM Act or any other Act. 53It was submitted by the Applicant that sections 4B and 4D of the PSEM Act stipulate that the CEO of the RTA must either delegate all " employer functions in relation to management of staff " or must delegate specific authority in relation to particular aspects of the management of staff as evidenced by the detailed employment-related matters set out in the 2007 Delegations Manual which, co-incidentally, also illustrates the significant gaps in delegations dealing with steps in the disciplinary process. 54The Applicant submitted that the law requires punctilious compliance, irrespective of whether it is an application of criminal or civil law, where one faces allegations of the most serious nature and where the consequences of the exercise of the power are grave, such as in the present circumstances: R v Janceski [2005] NSWCCA 281 at [98]; R v Halmi [2005] NSWCCA 2. It is noted that both Benches applied the Project Blue Sky test. The Applicant pointed out that, as was held in Janceski , in which the English judgments in R v Morais (1988) 87 Cr App R9 and R v Jackson (1997) 2 Crim App R 497 were cited with approval, the defects in the purported delegations can hardly be described as meaningless clerical steps or mere formality. 55The Applicant also relied on the Victorian Court of Appeal decision in B (A Solicitor) v Victorian Lawyers RPA Ltd (2002) 6 VR 642 where it was held that written minutes of a meeting of the RPA recording the approval to delegate powers to an officer was not a delegation "in writing" as required by the Legal Practice Act and therefore the proceedings initiated by that Officer against the two affected Solicitors were invalidated. 56The Applicant further relied on the judgment of his honour Justice Goldberg, which was upheld on appeal to the full Federal Court, wherein he held, in Parks Holdings Pty Ltd v Chief Executive Officer of Customs [2004] FCA 820: 99 A provision which requires an act to be in writing must be considered by reference to the context in which it appears. The notion that something be done in writing is designed to provide a measure of formality and official identification. In the present context the reason for the delegation to be in writing is no doubt to ensure that any official act carried out pursuant to the instrument of delegation which affects the rights of persons, or impinges upon commercial or personal activities, is seen to be within power and authorised. One can readily appreciate the issues of proof of authority which would arise in the context where the power to delegate acts which impinged upon the rights of individuals was given with no permanent recorded proof of such delegation. As Miles CJ noted in Perpetual Trustee Company (Canberra) Ltd v Lewis (1994) 119 FLR 38 at 45: The power to issue notices like those issued pursuant to section 18(2) of the Taxation (Administration) Act is a power `whose exercise will be likely adversely to affect rights of the individuals : O'Reilly v Commissioners of State Bank of Victoria (1982) 153 CLR 1 at 12 per Gibbs CJ. Therefore an instrument which delegates such a power or part of it should not be construed loosely. 57It was concluded on behalf of the Applicant that, on the basis of the above authorities, the purported exercise of delegated functions and powers was invalid because: 1. There was no punctilious compliance with the lawful requirements of delegation as the Respondent did not produce any delegations in writing in relation to the various steps in the disciplinary process; and 2. Even if the CEO did validly delegate employment functions to the Director Corporate Services on 8 July 2009 pursuant to s 4D of the PSEM Act, the foundation on which the decision to terminate was based was invalid as it was based on the exercise of functions by persons not authorised to exercise those functions. 58In relation to the public interest, the Applicant distinguished the circumstances pertaining in Project Blue Sky from her own circumstances pointing out that any public inconvenience that may occur as a result of the invalidity of the act would be slight, if any at all, particularly when compared to her interests. 59In conclusion, the Applicant submitted that the breaches of the statutory scheme for delegation of functions and powers, when considered in the context of the importance of her rights, indicate that the various steps taken in the disciplinary process and ultimate termination of the employment were invalid. SUBMISSIONS ON BEHALF OF THE RESPONDENT 60The Respondent's submissions did not address the merits of the Applicant's submissions regarding the delegation issue. Rather, the Respondent confined its submissions to the issue as to whether the Applicant should be granted leave to amend her claim in order to pursue the delegations issue. If the Applicant is ultimately allowed to amend her claim in that regard, then the Respondent would need to file evidence in reply and make final submission in order to address merits of the Applicant's arguments on delegation. 61The Respondent argued that the issue of the appropriate delegation to Ms Cvetkovic to require the Applicant to attend a fact finding interview was not raised before the Opening Submissions by the Applicant's counsel. 62The Respondent also argued that Counsel for the Applicant raised the issue of delegations again in the proceedings on 22 April 2010: LOWSON: .... But dealing first with the delegation manuals, those documents, as I have indicated, are part of the case that we put forward in respect of challenging the appropriate delegations of Ms Cvetkovic and Mr Tout in respect of the steps they took or purported to take, more properly, in relation to the disciplinary investigation into Ms Ganino's conduct. These are the only documents, you will recollect, Commissioner, that I think L3 is the summons for documents that we have tendered in these proceedings and these documents were sought under I think the third summons, this was all that was produced and we intend to rely on the fact that this is all that has been produced to make out, as part of our case, in addition to the unfairness and in addition to the procedural unfairness, that there is in fact a straight invalidity issue arising on this case. EASTMAN: Well, Commissioner, I dealt with this the other day: there is no issue raised in the application for unfair dismissal where part of the allegation of unfairness relates to invalidity which in a sense is saying these decisions could never have been made because the appropriate people don't hold a delegation and I indicated that in the absence of anything in the application and in the absence of any evidence about those matters, simply tendering delegation manuals without any context or without any evidence is not a proper way to deal with the evidence and it's not relevant to any issue in the proceeding because the question of what's now called validity is just not before the Commission and it's not a matter that we've been put on notice or we've raised. And you'll recall yesterday I asked Ms Ganino with respect to her letter in reply to Mr Tout, that's the 6 July letter where she's making submissions, that in the first part of the letter she identifies a series of complaints about Mr Tout's involvement and I put to her that she didn't identify as part of those complaints any issue with respect to his delegation to make the decision and she agreed with that. So having agreed with it, I think it's clear that it's just not part of the case, it's never been part of the applicant's case and we oppose now, on day 7 of the hearing, to be told that now this is going to be part of the case. .....We've not had any opportunity to lead any evidence about any matter concerning delegation and we're not really told other than, "Well, we think delegations are in issue and there's an invalidity thing" what the applicant relies on this material for. So we oppose its tender on that basis. LOWSON: ....The issue in relation to delegations is there. The respondent has an extensive legal team that can look at the issue and consider it for themselves. Somebody has already considered it because, according to Mr Tout, they thought that, but for an abundance of caution, he should obtain a specific delegation on [8] July.... All that was left to do then was to sack Ms Ganino, which doesn't say anything about a number of very important steps that occurred and I indicated on the last occasion that the disciplinary procedures, and , Commissioner, you would now know in more detail the extent of the dispute in relation to the disciplinary procedures, but regardless of which one you look at, delegations are required. As I said on the last occasion, in my submission, the respondent has been on notice since they got that summons in November that this was a matter that we were pursuing. There was correspondence in relation to the matter as well, at least in relation to whether further material was available. Matters were identified in the documents that were produced and we asked for further documents but nothing else was forthcoming.... ...the evidence in the correspondence [6 July 2009] is that [Ganino] raised it, albeit on a narrow basis where she identified that [Tout] was not the correct director. 63In correspondence to Mr Tout, dated 6 July 2009, Ms Ganino responded to a letter he had forwarded to her by Express Post mail dated 29 June 2009. She advised Mr Tout that she was concerned that he was writing to her to confirm that he was considering terminating her contract of employment. She pointed out that, according to the RTA's Discipline Guidelines (version 6.0) effective 3 November 2009, that he was not " the appropriate person to do so ". Ms Ganino went on to quote from the Guidelines: (a) "The Relevant Director" The Guidelines state at page 3: " Directors are responsible for determining disciplinary outcomes in serious misconduct matters involving staff within their Directorate. " I am not a staff member within your Directorate. Staff in the RTA's Legal Branch have, since the Legal Services Function Determination of 19 October 2006, been within the Directorate of the Chief Executive's Office of the RTA - not your Directorate of Corporate Services & Reform.... Consequently, you are not, according to the Guidelines, the relevant Director to determine any disciplinary outcome or action in respect of me.... 64The Applicant pointed to Mr Stout's statement evidence wherein he stated that although he held the view that he held corporate-wide authorities for discipline and decision making in relation to Ms Ganino's employment. Nevertheless, for abundant caution, he obtained a signed delegation from Mr Michael Bushby, Acting Chief Executive, dated 8 July 2009, in which the Acting CEO purported to delegate to Mr Tout, Director Corporate Services from that day until revoked by him, " all of the functions, powers and authorities of the Chief Executive of the RTA in relation to the employment of Ms Rosanna Ganino, Senior Solicitor Liability Litigation, RTA Legal Branch, including the Determination of any disciplinary investigation, action or process in relation to that employment by affirming, varying or terminating that employment. " 65Ms Lowson pointed out that the issue of delegation was raised by the Applicant's Solicitors in October 2009 when correspondence was forwarded to the Respondent on 29 October 2009 referring to that statement evidence and seeking copies of the delegations that Mr Tout held or the position he held covering the period from 6 January to 8 July 2009. When nothing was forthcoming from the Respondent, the Applicant issued the summons. 66The Respondent summarised the Applicant's written submissions as follows: (a) the Applicant wishes to advance a complex and detailed argument about legislative provisions which were not referred to in her list of authorities; (b) the Applicant assumes that failure on the part of the Respondent to provide instruments of delegation means that the Respondent is unable to prove that a delegation is not valid; (c) the Applicant also assumes that where the Delegations Manual is silent on an issue, then only the CEO has the power to authorise the decisions in the various steps in a disciplinary process; (d) the Applicant suggests that, in the absence of evidence as to authority to make decisions in individual steps within the disciplinary process, then the individual decisions are invalid; (e) the suspension with pay was not authorised and therefore was not valid; (f) issues as to which of the Delegations Manuals were applicable at the relevant time and the alleged lacuna that was identified in the 2007 Manual; (g) the engagement of Mr Madden and Mr Hopkins and the "issue of allegations of 29 February and 12 May 2008" are all invalid; (h) each of the fact finding interviews was invalid; (i) the failure of the Respondent to produce documents authorising a disciplinary interview; (j) the failure of the Respondent to produce a sub-delegation from Mr Tout to Ms Cvetkovic; (k) the termination was unlawful; (l) the Applicant's list of authorities, which did not include reference to s 49 (2) of the Interpretation Act 1987 (NSW), was not provided in a timely fashion as per the Commission's directions but on 16 April 2010 after prompting from the Respondent two days before. 67The Respondent submitted that none of the above matters were raised in the application filed on 4 August 2009; her evidence in chief or her statement in reply; none of the documents attached to the Applicant's written submissions refer to the claims now advanced in the submissions; and none of the matters were raised prior to the commencement of the hearing. It was pointed out that some issues were raised for the first time in submissions despite the fact that the Applicant was capable, and did, raise issues during the disciplinary process ranging from bias to failure to provide ERISP recording equipment. 68It was argued that the mere request for documents contained in one of many summonses could not possibly be taken as putting the Respondent on notice that a new claim would be raised. The Applicant is seeking the setting aside of all decisions on the basis that the various persons involved in the fact finding and disciplinary process had acted ultra vires regardless of the merits of the substantive claim and despite the fact that the Applicant did not put the Respondent on notice that it intended to challenge all aspects of the suspension, fact find and disciplinary process as invalid. 69The Respondent conceded that the only issue it was aware of related to whether Mr Tout was the appropriate Director. It was pointed out that all other issues were new issues which the Respondent was not put on notice about and which involve an application to make a substantial amendment to the Applicant's case seven days after the commencement of the hearing and after the Applicant's evidence has closed. The Respondent relied on the principles enunciated in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 as supporting its submissions that leave should not be granted to amend the Applicant's application. Those principles apply to proceedings in this Commission (see PSA and Professional Officers' Association Amalgamated Union of NSW (on behalf of Rosanna Ganino) and Roads and Traffic Authority of New South Wales Division of New South Wales Government Service [2009] NSWIRComm 181 (29 October 2009) at [13] and also Fonseka v Epic Hotels Pty Ltd (No 2) [2009] NSWIRComm 178: Firstly , there is no automatic entitlement to amend. The High Court held that the requirement to make amendments for the purpose of deciding "the real issues in the proceedings" does not impose some unqualified duty to permit the late addition of any new claim. The High Court distinguished the circumstances in Aon by the fact that the Applicant in those proceedings had deliberately chosen, and persisted in its approach, to limit the manner in which the original claim was framed. Secondly , the High Court held that the requirement of avoiding a multiplicity of proceedings and proceeding in an orderly fashion to fix a trial date did not oblige a court to accept the addition of new claims at the last moment before trial particularly when it cannot be inferred that further proceedings would be instituted if the amendments are not accepted. The Respondent pointed out that there is no evidence and no inference can be drawn that refusing the amendments would result in further proceedings being instituted. It was argued that the Applicant was too late to commence proceedings aimed at challenging the validity of the numerous decisions made during the disciplinary process which she claims to be invalid. Thirdly , the High Court did not follow Queensland v JL Holdings (1997) 189 CLR 146 wherein an amendment application was determined by reference to whether any prejudice to the opposing party can be compensated by costs. The Court held that a just resolution of proceedings does not permit a party to raise any arguable case at any point in the proceedings, on payment of costs. The High Court determined that the Applicant bore the onus of establishing a basis for leave having regard to a number of factors including the extent of the new claim; its effect on the proceedings; and the extent to which the objectives of case management would not be met if the amendment is allowed. Finally , the High Court held that the Applicant was required to provide an explanation as to why the matter had proceeded to trial in its existing form when defences served more than 12 months earlier had identified the central issue to the claim it sought to bring. The Respondent argued that the Applicant failed to give any evidence or any explanation as to why the new claims were raised for the first time in opening submissions. 70It was argued that the amendment will cause the Respondent prejudice for the following reasons - firstly , it has not filed any evidence in relation to the issue of delegations within the RTA as it did not have notice of the claim. It could have given evidence about how delegations operate within the RTA, evidence about the 2007 and 2009 Delegations Manuals and their relevance to the present matter; and Mr Tout and Ms Cvetokvic could have given evidence about their specific circumstances. 71Secondly , the written submissions of the Applicant went well beyond the delegation issued identified in the opening remarks. On that basis, the Respondent has not had the opportunity to cross-examine the Applicant about the claims being made on her behalf and, in particular, the reason why the Applicant did not pursue her contentions for such a significant period of time. 72Thirdly , if the Applicant is allowed to make such amendments to her claim, then the Respondent will require additional time to address those amendments and may need to call additional witnesses to address those issues. In other words, the amendments will result in an increase in the time for hearing the matter. 73The Respondent likened the Applicant's approach to " a trial by ambush " and completely antithetical to the objectives of the Commission - which include the provision of a just, timely and effective dispute resolution service and the public interest to use resources efficiently: (see s 3 (g) of the Industrial Relations Commission Act 1996 (NSW) and Practice Note 17). It was pointed out that it was well accepted that questions of procedural fairness must be considered in the context of those objectives (see Aon Risk at [25] - [27]). 74The Respondent concluded that the Applicant should not be permitted to pursue a claim alleging invalidity of every step or decision in the fact finding and disciplinary processes when it has not been raised previously and was explained for the first time in submissions dated 28 April 2010. CONSIDERATION 75The issue of delegation should have been dealt with as a threshold issue by the parties. The Applicant recognised it as an issue prior to her termination but that may be attributed to her legal training. Absent that legal background, it would probably have arisen after initiation of proceedings as legal representatives prepare to run arbitration proceedings on behalf of an Applicant. 76The issue has, in these circumstances, served to lengthen and delay the outcome of the proceedings. 77Ms Emilia Cvetkovic, Manager, Workplace Practice Unit, wrote to Mr Richard Boggon, Acting Director, Corporate Services and Reform, on 9 January 2009, recommending that he approve the following: 1. The engagement of an independent external consultant to conduct a formal fact-finding investigation into matters she had set out which, it was considered, raised allegations of serious inappropriate behaviour by the Applicant; and 2. The immediate suspension with pay of the Applicant pending the finalisation of the investigation. The recommendations were approved on the same day by Mr Boggon and also by Ms Karen Edwards, Acting General Manager, Human Resource Strategy. 78Mr Boggon wrote to the Applicant on 9 January 2009 advising that she was being stood down with pay pending an investigation into allegations which had been made against her. No documentation was provided, in response to a summons to produce, evidencing the fact that he had been delegated by the CEO to approve a fact-finding investigation or to stand the Applicant down with pay. 79Ms Ganino was suspended with pay on 9 January 2009. At that point in time, Ms Ganino was holding the position of Senior Solicitor Liability Litigation. 80On 12 January 2009, Ms Edwards engaged an independent consultant to conduct a fact-finding investigation into the behaviour and conduct of the Applicant. 81The 2009 Delegations Manual was not approved until 9 July 2009 and therefore the 2007 Delegations Manual was in force at the time the fact-finding investigation was commissioned. The Manual relevantly states: Section 2 - Principles of Delegation The basic legal questions that should be asked by public servants when actions is to be taken or a decision is to be made on behalf of the agency are: A. Is there a legal authority for taking the action or making the decision? B. Who has the legal authority to take the action or make the decision? C. Why is the action being taken or the decision made" There are 14 'Principles of Delegation' which act as a guide where there is any conflict within a clause and between delegated positions. 1. Functions which are restricted to the Minister or Chief Executive and some functions restricted to Directors are not shown in this manual. Approval to an action, not covered by this manual is be sought through Directors, or the Chief Executive as appropriate. [emphasis added] 2. Delegations as set out in this manual are to officers appointed to, or authorised to act in the positions listed or delegation level specified. The intention of these delegations is to enable officers to perform the duties of the positions to which they are appointed, and for which they are accountable..... 14. Contractors (including Skill Hire Personnel) and consultants cannot exercise delegated authorities or commit funds on behalf of the Roads and Traffic Authority or approve expenditure, nor sign contracts or commit the Authority in any way. [emphasis added] Section 4 - Position Authority Schedule General Functions To enable the objectives and strategies of the Authority to be achieved, under section 50 of the Transport Administration Act 1988, the authority has delegated functions to specific positions. The original instruments of Delegation are held in the Corporate Services and Reform Directorate. The Chief Executive has delegated to: Directors All of the functions of the Authority in respect of the Directorate for which they are responsible within the business activities and budget approved by the Chief Executive for that Directorate with the power to sub-delegate certain functions to others as necessary apart from employment related matters...... Employment related functions ....the Chief Executive, Division Head of the Roads and Traffic Authority Division of the Government Service of New South Wales, has delegated the following employer functions in relation to staff of the Roads and Traffic Authority Division: Director Corporate Services and Reform .....to determine conditions of employment for staff under Section 4D (2) and 4 E (1) of the Public Sector Employment and Management Act 2002.... 82The 2007 manual provides the following authorities: 4210 Approval to terminate the services of staff: Chief Executive/Director 4290 Approval to authorise a disciplinary interview/take disciplinary action: Chief Executive/Director 4315 Approval to suspend a staff member from duty with pay: Chief Executive/Director 4316 Approval to suspend a staff member from duty without pay: Chief Executive 83The 2007 manual made no mention of a number of disciplinary steps that were conducted in relation to Ms Ganino. In fact, in Ms Cvetkovic's letter to the Applicant, dated 23 February 2009, it was confirmed that " There are no policies or procedures governing fact-finding interviews, however, the process followed is generally as per disciplinary guidelines and procedures, which is why those documents were provided to you ". 84In addition, according to her Position Description, as Senior Solicitor Liability Litigation, the Applicant was attached to the Chief Executive Officer's Directorate with her Immediate Supervisor being the holder of the position of Legal Counsel Corporate Law. 85I accept the submissions made on behalf of the Applicant that, in the absence of documentary proof evidencing a valid delegation of the following functions, and absent any evidence explaining the operation of the Delegation Manuals, then, in accordance with section 2 (1), Principles of Delegation, above, the only person authorised to undertake those steps in relation to Ms Ganino was the CEO: i) the engagement of external providers; ii) issuing allegations; iii) authorising fact finding and disciplinary interviews; iv) finding the allegations proven; and v) suspending Ms Ganino with pay. 86Ms Ganino was dismissed on 23 July 2009. The 2009 Delegations Manual was approved on 6 July 2009. The Manual repeats the wording described in paragraph [79] above save for the position of "Director Corporate Services and Reform" which was retitled "Director Corporate Services". 87The only action in the disciplinary process that was taken after the introduction of the 2009 Manual was the dismissal of the Applicant. The 2009 manual, it is noted, provides that Activity number 4210, being approval to terminate the services of a staff member, rests with the Chief Executive or appropriate Director. 88The evidence indicates that the Respondent has been on notice for a considerable period of time that the Applicant was questioning the validity of the decisions made with respect to the fact-finding and disciplinary processes leading up to her termination. 89Ms Ganino wrote to Mr Tout, Director, Corporate Services & Reform, on 6 July 2009 in which she voiced a concern that he was considering terminating her employment with the RTA when, it would appear from the Respondent's Discipline Guidelines PN011G (Effective Date: 3 November 2009 - Version 6.0) that he was not the appropriate person to do so. Ms Ganino pointed out that Version 6.0 was the relevant version and it contained a statement which stated that it replaced version 5.0 issued in March 2004 which had been supplied to her by the Human Resources Department. Ms Ganino had also pointed out that she was, since the issuing of the Legal Services Function Determination of 19 October 2006, been part of the Directorate of the Chief Executive's office. As the said Guidelines state that " Directors are responsible for determining disciplinary outcomes in serious misconduct matters involving staff within their Directorate" , Ms Ganino pointed out to Mr Tout that he was not the relevant Director to determine any disciplinary outcome or action in respect of her. Ms Ganino further pointed out that the Guidelines provide that " Disciplinary action is a matter for determination by the relevant Director on advice of the Ethical Standards Committee ". She emphasised that no conformation had been provided to her or to the PSA as to whether an Ethical Standards Committee had even been established, let alone met to consider her disciplinary matter. 90Mr Tout gave written evidence in which he referred to a specific delegation of powers to him on 8 July 2009, approximately a fortnight prior to the Applicant's termination of employment and a mere two days after the issue was raised with him by Ms Ganino. There is no doubt, from the tone of that statement, that Mr Tout was on notice in relation to the issue of delegations. Mr Tout stated at paragraph [45] of his statement: 45. I did not make my decision about the outcome of Ms Ganino's disciplinary matter until 23 July 2009. While my view is that I hold corporate wide authorities for discipline, and that I did have authority to make decisions in relation to Ms Ganino's employment, for abundant caution on 8 July 2009 Michael Bushby, then Acting Chief Executive of the RTA, delegated to me his functions, powers and authorities in that regard... The delegation described above reads as follows: Delegation I hereby delegate to the Director Corporate Services, Roads and Traffic Authority NSW (RTA), all of the functions, powers and authorities of the Chief Executive of the RTA in relation to the employment of Ms Rosanna Ganino, Senior Solicitor Liability Litigation, RTA Legal Branch, including the Determination of any disciplinary investigation, action or process in relation to that employment by affirming, varying or terminating that employment. This delegation is effective from 8 July 2009 until revoked by me. (signed) Michael Bushby Acting Chief Executive 08 July 2009 91It is also noted that, in the s 84 application for relief, the Applicant had raised the issue of delegation in paragraph (8) of her Reasons for Application: 8. The disciplinary action of termination of services was determined by a Director not authorised by the RTA's relevant Discipline Guidelines PN011G (Version 6.0) to make such a determination and in circumstances where real potential for serious conflict of interest exists. 92The transcript of proceedings before Ritchie C on 28 October 2009 indicates that the issue was referred to during the hearing on a Notice of Motion: LOWSON:... Now, what happened between 9 January and 23 July 2009 was a number of steps, supposedly in compliance with the disciplinary process, we say not, of course. ... JOLLY: .... but in brief terms, the Applicant has directly challenged the process involved in the fact finding investigation and the disciplinary investigation...... " the employer failed to conduct either a proper fact finding or disciplinary interview in accordance with the RTA's disciplinary policies, procedures and guidelines"... LOWSON: ... The fact of the matter is the applicant has a case to put. That case involves not only challenging the allegations, but also issues of procedure, serious issues of procedure.... JOLLY: .... It's true that the Commission is not a court of pleadings, but nonetheless, the pleadings do serve a useful purpose as a touchstone for the issue. It is true that a party does have some latitude to expand their case beyond what they've said in their application....I have taken you of course to the extensive evidence that Ms Ganino has put on challenging the disciplinary process. Now, that must put to bed any suggestion that the disciplinary process is not squarely in issue in these proceedings.... 93On 3 November 2009, the Applicant's Solicitors issued a summons for production on the Respondent seeking the production of the following for the period between 5 January 2009 and 23 July 2009: 1. A copy of any written delegations held by Rodney Tout; 2. A copy of any written delegations held by the Director of Corporate Services of the RTA; 3. A copy of any written delegations held by the Manager, Workplace Conduct and Practice, or however called; and 4. A copy of any written delegations held by Emilia Cvetkovic. The Applicant's Solicitors emailed the Respondent's solicitors on 1 December 2009 in the following terms: Dear Marcus We refer to our 3 rd Summons filed on 3 November 2009 and to the RTA Delegations Manual 2007 produced on 18 November 2009. We note that no instruments of Delegation have been produced. Whilst reserving our client's rights generally in this regard, we request that you produce tomorrow the following instruments of delegation (which appear in the Table at page 48 of 95 of the RTA Delegations Manual 2007): 4290; 4295; 4300; 4305; 310; 4315; 4320 For your assistance, we note that the RTA Delegations manual 2007 (at page 9 of 95) states that "The original Instruments of Delegation are held in the Corporate Services and Reform Directorate"... Alison McRobert The Applicant's Solicitors emailed the Respondent's solicitors on 8 December 2009 wherein it was relevantly stated: Dear Marcus ..... Further we note that we have received no response to our two emails of 1 December 2009 ..... regarding the instruments of delegation which were not produced under the 3 rd summons. .... Please produce all outstanding material tomorrow. Alison McRobert The Respondent contended that it had met its obligations under the summons by producing the two delegation manuals. The Applicant argued that if leave is granted to the Respondent to file evidence solely on the issue of delegations, then it would be arguing against the tender on the basis that the documents should have been produced in response to the summons. The Respondent explained that it was merely reserving its rights to file evidence to explain the process of delegations and how they work within the RTA. 94In correspondence to his Honour, the President, dated 2 March 2010, the Applicant's Solicitors described the proceedings as likely to give rise to consideration of potentially complex issues including, inter alia: (i) whether decision makers were appropriately delegated in aspects of the disciplinary process, including the original decision; (ii) fundamental procedural fairness issues arising during the disciplinary Process, from the time of Ms Ganino's suspension onwards;... 95In submissions made before the Commission on 18 March 2010, Counsel for the Applicant stated: ..... It must have been plain to the RTA that his was an issue that they were going to have to deal with. As I've put in the submissions, Mr Tout gives critical evidence for the respondent in these proceedings, he's the man who sacked Ms Ganino, he's the man who made findings of misconduct against her. When I say that he sacked her, I put parenthesis around the word "sacked", because there is an invalidity argument in respect of whether or not there was a proper delegation of powers to Mr Tout.... 96In the Applicant's written Outline of Submissions in a motion to set aside paragraph 10 of a Summons to Produce Documents addressed to the Applicant, Counsel for the Applicant, on 27 October 2009, summarised the issues arising in these proceedings as including, inter alia: C. the extent of procedural deficiencies in the disciplinary process, including but not limited to:... vi. the authority of the decision maker 97Counsel for the Applicant, in opening the Applicant's case, on 14 April 2010, stated as follows in relation to the delegations issue: There are also issues in respect of appropriate delegations. We say that none of the people who took steps in this process held appropriate delegations to do the things that they did and we will be pressing that as a finding that you will make. This is a letter, as you can see from the heading, directing Ms Ganino to a fact finding interview. At page 238 you'll see that it appears under the name of Amelia (sic) Cvetkovic, but it's not even signed by Ms Cvetkovic. Now, a direction to attend a fact finding interview is a significant step to take, particularly in the absence of disciplinary procedures in relation to it and we say that it's something that someone with appropriate delegation only has the authority to do, particularly as in later correspondence Ms Ganino was advised that if she didn't attend the fact finding interview, consideration would be given to suspending her without pay. As a result, Ms Ganino attended the fact finding interview. 98In view of all of the above, it can hardly be described as "a trial by ambush" 99Having taken into account all of the written and oral evidence before the Commission in the current proceedings, the submissions of the parties which have been summarised above and the authorities cited, there can be only one conclusion, having regard to the procedures and powers of the Commission as set out in Chapter 4, Part 5 of the Industrial Relations Act 1996: 163 (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. DECISION 100I accept that the Applicant has raised sufficient doubt in relation to the following: (a) the validity of the purported exercise of delegated functions and powers in the absence of any delegations in writing in relation to the various steps in the disciplinary process; and (b) the validity of the decision to dismiss even if the delegation, dated 8 July 2009, was a valid delegation in view of the allegation that the foundation upon which the decision to dismiss was made was invalid. The issue of delegation needs to be considered as a threshold issue and I determine accordingly. 101Leave is granted to the Respondent to file evidence explaining the operation of the Delegation Manuals. I Tabbaa COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2011