Industrial Relations Commission New South Wales Medium Neutral Citation: Roads and Maritime Services v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Ganino) [2012] NSWIRComm 12 Hearing dates: 23 February 2012 Decision date: 12 March 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President; Haylen J; Staff J Decision: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision and orders of Tabbaa C in Matter IRC 1141 of 2009 are set aside. 4. The matter is remitted to Tabbaa C to determine in accordance with these reasons. 5. The stay granted by Kavanagh J on 10 November 2011 is dissolved. Catchwords: APPEAL - unfair dismissal - s 84 of the Industrial Relations Act 1996 - applicant dismissed for serious misconduct - applicant contended dismissal a nullity - invalid delegation - determined as threshold issue - failure to consider overall merits of the matter - leave to appeal granted - appeal upheld - decision and orders set aside - stay dissolved - matter remitted for determination Legislation Cited: Industrial Relations Act 1996 Industrial Relations Act 1988 (Cth) Cases Cited: Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 131 ALR 422; (1995) 69 ALJR 797; (1995) 185 CLR 410 (11 October 1995) Ganino v Roads and Traffic Authority of NSW [2011] NSWIRComm 1008 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (On behalf of Rosanna Ganino) and Roads and Traffic Authority of NSW, Division of Government Service [2011] NSWIRComm 1048 R v Industrial Court; Ex Parte Mount Gunson Mines Pty Ltd (1982) 30 SASR 504 Siagian v Sanel Pty Ltd [1994] IRCA 2; (1994) 54 IR 185 Visscher v Industrial Australian Industrial Relations Commission [2007] FCASC 206; (2007) 170 IR 419 Category: Principal judgment Parties: Roads and Maritime Services (Appellant) Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Ganino) (Respondent) Representation: Counsel: Mr P Menzies QC (Appellant) Ms P Lowson of counsel (Respondent) Solicitors: Minter Ellison (Appellant) WG McNally Jones Staff (Respondent) File Number(s): IRC 1720 of 2011 Decision under appeal Jurisdiction: 9102 Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (On behalf of Rosanna Ganino) and Roads and Traffic Authority of NSW, Division of Government Service [2011] NSWIRComm 1048 Date of Decision: 2011-09-26 00:00:00 Before: Tabbaa C File Number(s): IRC 1141 of 2009 DECISION OF THE COMMISSION 1The Roads and Maritime Services ("RMS"), the appellant, has made application for leave to appeal and, if leave is granted, to appeal a decision of Tabbaa C given on 26 September 2011, in which the Commissioner found that there had been no dismissal of Ms Rosanna Ganino, an employee of RMS, formerly known as the Roads and Traffic Authority of NSW ("RTA"). Orders for reinstatement and compensation were made: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (On behalf of Rosanna Ganino) and Roads and Traffic Authority of NSW, Division of Government Service [2011] NSWIRComm 1048. 2Ms Ganino commenced employment with the RTA on 8 February 2002. At the time of her dismissal, she held the position of Senior Solicitor Liability Litigation. She was summarily dismissed for serious misconduct on 23 July 2009. The substance of the alleged serious misconduct was: 1. On 18 December 2008, Ms Ganino accessed documents that were confidential and related to personal information. 2. Ms Ganino used that information for personal purposes and unrelated to the performance of her duties as Acting Legal Counsel Corporate Law. 3. Ms Ganino failed to disclose to the Acting General Counsel, Ms Vickers, or any other senior RTA officers that she had accessed the information and that there was a security failure with the level of access available to documents in the Staffing subfolder within the Interwoven documents management system. 4. Ms Ganino displayed insolent and disrespectful conduct towards Ms Vickers at a meeting on 6 January 2009. 5. Ms Ganino refused to comply with reasonable and lawful directions given on 7 January 2009 and 14 January 2009 to return documents obtained on 9 October 2008. 3On 7 August 2009, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the respondent") made application on behalf of its member, Ms Ganino, under Pt 6 of Ch 2 of the Industrial Relations Act 1996 ("the Act"). The respondent sought to challenge the appellant's decision of 23 July 2009 to terminate Ms Ganino's employment for serious misconduct. 4Subsequently, in proceedings before the Commissioner, the respondent contended that the dismissal was a nullity and sought to raise complex issues concerning the delegation to the appellant's Director of Corporate Services and Reform of certain powers possessed by the appellant's Chief Executive to make decisions concerning the discipline and termination of an employee ("the delegation issue"). 5The Commissioner proceeded to hear all of the evidence directed to the question of whether the termination of Ms Ganino's employment for serious misconduct was harsh, unjust or unreasonable. 6The appellant contended that Ms Ganino had been dismissed and, accordingly, the only issue before the Commission was whether the dismissal was fair. The appellant further contended that the Commission's jurisdiction under Pt 6 of Ch 2 of the Act was limited to determining only whether the dismissal was harsh, unjust or unreasonable. It was also contended by the appellant that the Commissioner could not determine the validity or invalidity of a dismissal under Pt 6 of Ch 2 of the Act. It was submitted that the jurisdiction for such a determination would require declarations and orders that there had been non-compliance with a statute and, therefore, that the dismissal was void for want of proper delegation. This would require an application pursuant to s 154 of the Act. This section gives the Industrial Court of New South Wales the power to grant declaratory relief. 7On 8 March 2011, the Commissioner determined that the delegation issue, which went to the question of whether Mr Ganino had been dismissed, had to be determined as a threshold issue: Ganino v Roads and Traffic Authority of NSW [2011] NSWIRComm 1008. Further submissions were made by the parties. The appellant accepted that the Commissioner had the jurisdiction to determine whether, in fact, the jurisdiction had been enlivened. 8In her decision of 26 September 2011, the Commissioner determined at [108]: Having considered all of the written and oral evidence and the submissions of the parties throughout the proceedings, I find that although the final decision was based upon a valid delegation, the disciplinary processes leading up to that dismissal were tainted by some invalidity. The disciplinary processes were not validly delegated to any of the people who purported to exercise those functions. On that basis, there has been no dismissal of Ms Ganino by the Respondent. I decide accordingly. 9The Commissioner did not make any orders on 26 September 2011 following her finding that there had been no dismissal. Subsequently, there was correspondence between the parties and the Commissioner's Chambers in respect of the proposed orders. No agreement was reached between the parties in respect of the form of the orders. 10On 17 October 2011, the respondent commenced a proceeding in the Commission seeking declaratory relief (Matter No IRC 1608 of 2011). On 29 November 2011, this matter was subsequently dismissed when the respondent discontinued the proceedings. 11On 26 October 2011, the Commissioner published a decision which bears the date 26 September 2011, with the following orders: [109] The Commission orders that the Roads and Traffic Authority of NSW reinstate Ms Rosanna Ganino to her former position of Senior Solicitor Liability Litigation on terms not less favourable to her than those that would have been applicable if she had not been dismissed. Ms Ganino is to be reinstated as soon as practicable but no later than 9 November 2011 with full continuity of service; [110] The Commission orders that the Roads and Traffic Authority of NSW pay to Ms Rosanna Ganino an amount which equates with the remuneration that she would, but for being dismissed, have received in the intervening period between dismissal and reinstatement, less any amounts received as payments derived from alternative employment. This amount is to be paid as soon as practicable but no later than 23 November 2011 but may be subject to Settlement of Minutes of Order proceedings initiated by written request of either party by no later than 23 November 2011. [111] In relation to the issue of costs, the Applicant is to file and serve submissions by 9 November 2011 and the Respondent is to file and serve submissions by 23 November 2011. Unless either party requests that the Commission hear them, the issue of costs will be determined on the papers. 12Ms Ganino has not resumed employment with the RMS. However, by consent in light of a stay of the Commissioner's orders being granted, RMS agreed to pay Ms Ganino her salary from 9 November 2011 until the final determination of this matter. That amount of salary is not repayable. Grounds of appeal 13There were four grounds of appeal relied upon by the appellant, namely, that Tabbaa C: 1. Had no jurisdiction to make any orders under s 87(1) of the Act, other than an order dismissing the application. 2. Denied the appellant procedural fairness in that it was given no opportunity to be heard in writing, or orally, before the orders were made on 26 October 2011. 3. Failed to give adequate reasons with respect to the decision. 4. Failed to give any reasons for the orders made on 26 October 2011. Appellant's submissions 14The appellant submitted that Pt 6 of Ch 2 of the Act conferred limited jurisdiction on the Commission to determine whether a dismissal was harsh, unreasonable or unjust. It contended that a delegation made by the Acting Chief Executive on 8 July 2009 to the Director of Corporate Services and Reform was in clear terms and conferred on him the power to terminate Ms Ganino's employment. If there was any issue about the delegation of powers regarding steps taken prior to the termination, then those matters could be considered in the context of unfairness. 15The appellant contended that the Commissioner's jurisdiction under Pt 6 of Ch 2 did not extend to determining whether powers to perform a range of functions in a disciplinary process were valid, or whether they were preconditions to a valid determination. 16It was submitted that the Commissioner, having found in her decision of 26 September 2011 that the dismissal was a nullity, the only order which the Commissioner could have made was to dismiss the proceedings and hear the parties on the question of costs. In the absence of a dismissal, there could be no proceedings under Pt 6 of Ch 2 of the Act and no orders could be made about the employee's future employment. 17It was also submitted that the orders made by the Commissioner were ultra vires for the following reasons. First, Pt 6 of Ch 2 of the Act was not available to the respondent, it having successfully argued that Ms Ganino had not been dismissed. Having commenced a proceeding on the basis that there was a dismissal, the respondent then elected to argue there was no dismissal. The respondent must have known that by proving Ms Ganino's dismissal was a nullity, it could no longer maintain its application under Pt 6 of Ch 2 of the Act. In this respect, the proceeding was unusual, as it was generally an employer who contended there had been no dismissal. 18Secondly, the orders set out in s 89 of the Act could only be made if and when there was a finding that the dismissal was harsh, unjust or unreasonable. In this matter, there has been no finding about the substantive claims and it followed that the Commissioner could not make orders that were premised on such a finding being made. Pt 6 of Ch 2, and s 89 in particular, did not confer on the Commission a general power to make orders about an employee's ongoing employment as it saw fit, where there had been no dismissal. This part of the Act did not confer a general jurisdiction or the power to make declaratory orders. 19It was further submitted that the Commissioner had erred in making the orders reinstating and ordering compensation be paid to Ms Ganino. Such orders should be set aside on the basis that the Commissioner had no jurisdiction to make these orders. 20In light of the decision we have reached that the appeal should be upheld on the jurisdictional ground alone, it is unnecessary to deal with the procedural fairness ground and the failure to give reasons ground relied upon by the appellant. Submissions of the respondent 21The respondent submitted that the complaint made by the appellant was illusory. The fact that a dismissal had been found to be invalid did not have the consequence that there had been no dismissal for the purposes of the Act. There was no doubt that by letter dated 23 July 2009 the appellant dispensed with the services of Ms Ganino. Accordingly, there had been a dismissal that enlivened the jurisdiction of the Commission to exercise its functions in relation to that dismissal. 22The respondent contended that the statement at [108] of the decision of the Commissioner that " there has been no dismissal of Ms Ganino by the Respondent" must be read in the context that the Commissioner then proceeded to make orders, including an order reinstating Ms Ganino. It was implicit, so it was submitted, that in making the statement, the Commissioner was referring to the absence of a valid dismissal, that is, as found by the Commissioner, the disciplinary process adopted by the appellant in relation to Ms Ganino, was tainted, so as to render the dismissal invalid. 23The respondent further contended that the Full Bench could read the word "valid" before the word "dismissal" into the statement at [108] of the Commissioner's decision and did not need to engage in an arid exercise of bringing the matter back to the Commissioner in order for the word to be inserted into that sentence. 24The respondent submitted that the approach taken by the Commissioner accorded with authority: R v Industrial Court; Ex Parte Mount Gunson Mines Pty Ltd (1982) 30 SASR 504 at 506; Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435; Visscher v Industrial Australian Industrial Relations Commission [2007] FCASC 206; (2007) 170 IR 419 and Siagian v Sanel Pty Ltd [1994] IRCA 2; (1994) 54 IR 185. Leave to appeal 25We have decided to grant leave to appeal in this matter. The issue raised in the appeal is clearly important and it is in the public interest that we deal with it. The appeal involves the question of having determined that the dismissal was a nullity or void, whether the Commissioner had jurisdiction to make any order other than to dismiss the respondent's application and hear the parties on costs. Consideration 26The issue raised in this appeal is whether, having found the dismissal of Ms Ganino to be invalid, does it, therefore, follow that there has been no dismissal for the purposes of the Act? This question must be answered, in our view, in the negative. 27Section 83(5)(b) of the Act defines dismissal to include, in the case of a public sector employee, dispensing with the services of that employee. There can be no doubt that, by letter dated 23 July 2009, the appellant dispensed with the services of Ms Ganino. Accordingly, there was a dismissal that enlivened the jurisdiction of this Commission to exercise its functions in relation to that dismissal. 28In essence, the appellant's contention was that it is a precondition to the exercise of jurisdiction under Pt 6 of Ch 2 of the Act that there is, in fact, a dismissal. The Commissioner having found that there had been no dismissal determined, therefore, the consequences of RMS making a decision without power was that the decision was a nullity or void. 29The appellant did not challenge this finding. However, it strongly submitted in light of this finding made by the Commissioner, that it was not open to her to make any further orders, other than to dismiss the proceedings and determine costs. 30In our view, the Commissioner erred in failing to apply the criteria of whether the dismissal, although found to be unlawful, was harsh, unjust or unreasonable. Having found the decision to dismiss was made without delegated power, the Commissioner should have treated this step in the dismissal process as a species of unfairness and considered it as part of the overall merits of the case. In other words, in concluding that it was appropriate to determine only as a threshold question whether the purported dismissal was made without power and, therefore, a nullity and not consider the balance of the merits of the case, the Commissioner fell into error. 31In Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 131 ALR 422; (1995) 69 ALJR 797; (1995) 185 CLR 410 (11 October 1995), the High Court of Australia determined an appeal by Mr Byrne and Mr Frew, who had asserted that the termination of their employment was in breach of a term of an award that provided the termination of employment by an employer "shall not be harsh, unjust or unreasonable". Mr Byrne and Mr Frew argued that the clause had become a term of their contract of employment and that the termination of their employment was in breach of the contract because it was unjust or unreasonable. It followed, so the argument went, that the respondent had been in breach of a statutory duty created by the Industrial Relations Act 1988 (Cth), which sounded in damages for contravention of the award provision and rendered void at general law the purported termination by the respondent of the contracts of employment. 32Mr Byrne and Mr Frew had argued that a requirement that the termination be not harsh, unjust or unreasonable, carried with it an obligation on the part of the respondent employer to afford them procedural fairness by giving them an opportunity to be heard in response to any charges put against them before terminating their services. 33The respondent sought special leave to cross-appeal against findings made by in the Full Court of the Federal Court of Australia that the dismissal of Mr Byrne and Mr Frew was unreasonable. Brennan CJ, Dawson and Toohey JJ stated at [30], [32]: [30] ... The ground advanced by the respondent is that, whilst the adoption of an unfair procedure may render a dismissal harsh, unjust or unreasonable, whether it does so or not must depend upon the whole of the circumstances. The respondent contends that, having failed to consider whether the evidence established that the appellants had been involved in pilfering, the majority in the Full Court were in no position to determine whether the procedure adopted resulted in their dismissal being unreasonable. In our view that contention is plainly correct. ... [32] It was not, therefore, a permissible approach for the Full Court to reach a conclusion adverse to the respondent based upon the procedure employed in dismissing the appellants without considering whether the trial judge was correct in reaching the conclusion that there was sufficient evidence to establish that the appellants were involved in the misconduct alleged against them. ... The matters should be remitted to a Full Court of the Federal Court to be reconsidered in the light of this Court's reasons. ... 34McHugh and Gummow JJ came to a similar view at [134] - [135]: [134] The propositions we have set out support the submissions for the respondent that it was necessary for the Full Court to look at the whole of the relevant circumstances which were taken into account by the primary judge in determining that there had been no breach of the Award; and, in particular, that it was an error to reverse that ultimate holding purely for reasons associated with what are identified as procedural defects in the steps taken by the respondent to dismiss the appellants. [135] Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable. The submissions for the respondent in the present appeals appeared to concede this. But the burden of the respondent's submissions is that there was error in determining the issue without regard to the very material circumstance of the finding of the primary judge as to the complicity of the appellants in pilfering. 35In this matter, the Commissioner focused on the validity of the dismissal. As a matter of principle, we do not see there is any difference between the procedural issues considered by the High Court in Byrne v Australian Airlines and the validity issues that arise in this matter. The Commissioner was required to hear and determine the merits of the case. If there were any issues about the delegation to another officer of the RMS of the Chief Executive's powers to make decisions about the termination of an employee, then those matters should have been considered in the context of the whole case as part of the consideration of procedural fairness and not as a threshold matter. 36It follows that the appeal should be upheld and the orders made by the Commissioner quashed. 37We remit the matter to Commissioner Tabbaa to be reconsidered in light of these reasons. In view of the fact that both the validity question and the merits were fully argued before the Commissioner we expect, subject to what the Commissioner might determine, that any further submissions would be accommodated in a short hearing dealing only with the consequences of this decision on appeal. Orders 38The Full Bench makes the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision and orders of Tabbaa C in Matter IRC 1141 of 2009 are set aside. 4. The matter is remitted to Tabbaa C to determine in accordance with these reasons. 5. The stay granted by Kavanagh J on 10 November 2011 is dissolved. ********** 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: 12 March 2012