Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers Association Amalgamated Union of NSW (on behalf of Rosanna Ganino) and Roads and Maritime Services [2012] NSWIRComm 1014 Hearing dates: 29 March 2012; 5 July 2012 Decision date: 13 July 2012 Jurisdiction: Industrial Relations Commission Before: Tabbaa, C AM Decision: Dismissal is harsh; Reinstatement ordered; Remuneration to be awarded subject to receipt of submissions on mitigation; Costs to be determined subject to receipt of submissions from the parties Catchwords: Unfair dismissal; Delegated authority; Dismissal invalid; Dismissal harsh Legislation Cited: Industrial Relations Act 1996 Cases Cited: 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 Services [2011] NSWIRComm 104; Roads and Maritime Services v Public Service Association Amalgamated Union of New South Wales (on behalf of Ganino) [2012] NSWIRComm 12; Antonakopolous v State Bank of New South Wales (1999) 91 IR 385 Probst v Commission of Police (no 2) [2009] NSWIRComm 201; Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Rosanna Ganino) (Applicant) Road and Maritime Services (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 on remitter BACKGROUND 1The Commission, as currently constituted, issued a decision in 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 dated 26 September 2011 in the following terms: DECISION 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. 2Following receipt of submissions from the parties as to appropriate orders to be made by the Commission consequent upon the above finding, the following Orders were issued on 26 October 2011: ORDERS 1.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; 2.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. 3.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. 3The issue of costs was not determined as the above decision and orders were appealed by the Respondent on the basis that if the dismissal was invalid, then the Commission had no jurisdiction, including no jurisdiction to order reinstatement and back pay. 4The Full Bench of the Commission, in its decision on 12 March 2012 in 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, determined that the Commission can make a finding of fact that a dismissal was invalid, but that does not mean that there was not a dismissal for the purposes of the Industrial Relations Act 1996 (the Act) and does not deprive the Commission of jurisdiction. The Full Bench held that any issues about delegation 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. The Full Bench said: 30.In 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. 35..... 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. 5The appeal was upheld, the Orders made below were quashed and the whole matter was remitted to the Commission as currently constituted to determine whether there was an unfair dismissal and, if there was, to make orders remedying the unfairness and hear and determine the issue of costs. 6Both parties relied on their previous submissions which addressed the merits of the claim in detail. In addition, they made the following submissions which have been summarised below. SUBMISSIONS OF THE PARTIES 7The Applicant submitted that: (1)Despite the fact that the Respondent had appealed the October decision that the dismissal was invalid, it had not challenged the finding that the dismissal was invalid during the Full Bench hearing. (2)On the basis of the Full Bench decision, the Commission has jurisdiction to find that the dismissal of Ms Ganino was harsh, unjust and/or unreasonable; make orders remedying the unfairness and hear and determine the issue of costs. (3)Also on the basis of the Full Bench decision, the Commission can take its earlier finding that the dismissal was invalid as a species of unfairness and weigh it amongst the balance of the evidence in determining the question of whether the dismissal was harsh, unjust and/or unreasonable and the subsequent remedy for that unfairness. (4)Despite the fact that the Full Bench quashed the decision and orders made in the 26 October 2011 decision, it would be "perverse for any different conclusion to be reached in relation to the delegation/invalidity issue". (5)The Commission must apply the decision of the Full Bench and undertake an assessment of the relevance of all of the following matters giving rise to unfairness in the termination of the Applicant: (a)The invalidity of the dismissal; (b)The procedural unfairness the Applicant had been subjected to during the disciplinary process and following her suspension in January 2009; and (c)The Applicant had not misconducted herself. (6)In relation to the findings, there are three possible scenarios that can result from such an assessment by the Commission: (i)a finding that the dismissal was harsh, unjust and unreasonable because of the combined effect of the invalidity of the dismissal, the procedural unfairness and the fact that the allegations were not made out (bearing in mind that a significant number of the more serious allegations were withdrawn by the respondent. Allegations 1-7 and allegation 17 were not pressed); or, alternatively, (ii)a finding that the dismissal was harsh, unjust and/or unreasonable because the invalid dismissal, whether or not accompanied by procedural unfairness) outweighs the minor misconduct associated with any allegation(s) that is/are made out; or, alternatively, (iii)a finding that no procedural unfairness occurred and the dismissal was valid but, nevertheless, the dismissal was harsh because the penalty far outweighed the minor misconduct involved in any allegation(s). (7)The Respondent submitted that the evidence does not support the outcomes suggested by the Applicant. Rather, the evidence demonstrates that the proper outcome is a dismissal of the application on the basis that Ms Ganino's dismissal was not harsh, unjust or unreasonable and the proper. A Finding that the Dismissal was Harsh, Unjust and Unreasonable 8The Applicant relied on its previous submissions that the Respondent has not proved the remaining allegations against Ms Ganino and, therefore, there should be clear and unequivocal findings that she has not done anything wrong. The Respondent argued that it was not open to the Commission to make such findings based on the evidence. The serious misconduct which Ms Ganino engaged in and which was in contravention of the Respondent's Code of Conduct were summarised as follows: 8.1When she accessed confidential and personal information on 18 December 2008. The Applicant pointed out in reply that there were three documents in question: a)Re-evaluation/upgrade of the Practice Manager position email; b)Julian Bechini email; and c)HR enquiry The Commission was reminded that Ms Vickers conceded that she had only shown Ms Ganino two emails at their meeting on 6 January 2009 ((a) and (b) above). It was noted that the contents of the re-evaluation/upgrade email were clearly not confidential, secret, sensitive or personal and it was not labelled as such on the Interwoven shared document system. It merely reported on the re-evaluation of the position. In addition, the evidence from the Respondent's witnesses is that there is a presumption that all materials on Interwoven is intended to be public unless otherwise treated. It was established that the responsibility for restricting access to the re-evaluation/upgrade document on Interwoven lay with Ms Vickers. Ms Ganino denied seeing the Bechini email. The Bechini email was not established as being confidential either. The evidence also indicated that others in the Legal Services Branch had accessed the same documents without being disciplined despite Ms Vickers claiming that she intended to forward her memorandum of 29 December 2009 to all individuals who accessed documents equally. Tony Stewart and Mirjana Prasovic viewed both documents and Michael Najem viewed the re-evaluation document yet Ms Vickers did not raise the matter with them. Mr O'Meally, when acting in the role of Deputy General Counsel, Legal Counsel Corporate Law, had signed off on the upgrade. It was stressed that Ms Ganino was acting in the same position at the time and was therefore authorised to access those documents. 8.2The subsequent use of that confidential and personal information for personal purposes and unrelated to the performance of her duties. The Applicant pointed out that the allegation relates only the re-evaluation/upgrade email. It was argued that the Applicant had correctly recorded the upgrade in the diary kept by those acting in the position of Legal Counsel Corporate Law. The diary's existence was verified by Mr O'Meally in his evidence. In addition, Ms Ganino had a legitimate right to explore the possibility of an upgrade of her substantive position irrespective of what position she was acting in at the time. 8.3Her failure to disclose to General Counsel or other senior Officers the fact that she had accessed such 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. The Applicant pointed out that Ms Ganino had previously and properly reported the security failure on 9 October 2008. She would have reported it again had she formed the view that there was a problem with the levels of access to Interwoven around 18 December 2008. 8.4The insolent and disrespectful conduct she displayed towards General Counsel at a meeting on 6 January 2009. The Applicant submitted that the evidence of Ms Ganino ought to be preferred over that of Ms Vickers "whose recollection of the meeting was replete with errors and new characterisations" (examples provided from the transcript of proceedings). Ms Vickers acknowledged in her evidence that her evidence was different to what was conveyed to the external investigator, Mr David Madden. 8.5Her refusal to comply with a reasonable and lawful direction given on 7 January 2009, and again on 14 January 2009, to return documents obtained on 9 October 2008. The Applicant submitted that Ms Ganino did not refuse to comply with a reasonable and lawful direction to return the salary matrix document printed on 9 October 2008 as she did not have the document in her possession at the time. She had already lodged an FOI application and Privacy Complaint and that document was attached to the letter and it was already in the possession of the Records Access Unit of the RTA. Ms Ganino kept a copy of her complaint which included the salary matrix document. In any event, Ms Vickers had conceded in evidence that Ms Ganino was entitled to have a copy of the salary matrix. In addition, in relation to the direction of 14 January 2009, it was not a reasonable and lawful direction as Ms Vickers was not authorised to make it. It constituted a direction in contravention of the suspension letter handed to Ms Ganino by the Respondent on 9 January 2009. 9The Applicant submitted that the Respondent has instituted delegation processes to ensure that properly authorised people have responsibility for administrative actions that have potentially serious consequences. In the present instance, the dismissal of Ms Ganino was invalid in that the process adopted to discipline and ultimately dismiss her were undertaken by people who were not authorised to do so. On that basis, the dismissal was invalid giving rise to serious unfairness. The Respondent argued that the Applicant's submission regarding the delegation processes applied to Ms Ganino were mere "puffery" and lacked substance as the Applicant had not adduced any evidence from the witnesses that would allow the Commission to arrive at such a conclusion. On the contrary, the evidence suggests that the outcome would not have been different at all. It was pointed out that Ms Ganino, at no time prior to the hearing raised the issue of an absence of delegations. The Applicant in its reply pointed out that Ms Ganino's suspension from the workplace prevented her from having access to the Delegations Manuals and made it impossible for her to know that the Respondent was conducting itself in a way that was inconsistent with those manuals. Ms Vickers gave evidence that the Code of Conduct requires all staff "to act within their delegated authority and in accordance with RTA policies and procedures". It was pointed out that sound delegations are important throughout a disciplinary process, particularly where serious misconduct is alleged, as it ensures that "the requisite standards of fairness, integrity and impartiality are observed in the execution of their duties". In this instances, the Respondent imposed a different standard on Ms Ganino than it imposed on itself. 10The Applicant submitted that there were also procedural deficiencies giving rise to further unfairness in the manner in which Ms Ganino was treated. Once again, the Respondent argued that the Applicant's submissions relating to procedural deficiencies being the cause of unfairness to Ms Ganino were not supported by the evidence. It was pointed out that there was no evidence of substantive or real unfairness and, once again, the outcome would not have been different at all. 11The Applicant pointed out that allegations 9 - 22 inclusive against Ms Ganino were not proven. The Respondent relied on its previous submissions in relation to allegations 9-22. 12The Applicant submitted that were the Commission to make a finding that allegations 9-22 were not proven, then the finding would inexorably point to one direction and that is that: 12.1Ms Ganino's dismissal on 23 July 2009 was harsh, unjust and unreasonable and that she should be reinstated forthwith without any loss of continuity of service and full credit for all entitlements; and 12.2Ms Ganino should be paid back pay and superannuation for the period from 23 July 2009 under the date of her reinstatement, less salary paid to her between 9 November 2011 and 12 March, 2012; and 12.3The parties should be heard on the question of costs. The Respondent denied that the matters would point in that direction and relied on its previous submissions in the matter. First Alternative - A Finding that the Dismissal was Unreasonable 13The Applicant pointed out that, if the Commission finds that the dismissal was invalid but there was no procedural unfairness and finds that some of the allegations were proven, then the Commission would have to "balance" the seriousness of the unfairness represented by the invalidity of the dismissal against the relative lack of seriousness of any of the allegations the Commission finds to have been proven. The Respondent reminded the Commission that it is not required to determine whether the dismissal was invalid. It was pointed out that Section 88 of the Act does not require a balancing act of the kind described by the Applicant and such a contention is misconceived as a matter of law and fact. 14In regard to the allegations, the Applicant submitted that even if all of the allegations were found proven, the nature of the misconduct contained in the allegations is not sufficient to warrant the termination of Ms Ganino. In addition, the Commission would find the dismissal unreasonable in circumstances where the serious deficiencies in the exercise of authority far outweighed such misconduct. The Respondent rejected the suggestion that the Applicant's misconduct was not serious emphasising the importance of respecting confidential information and pointing out that misuse of confidential information strikes at the heart of the relationship between an employer and an employee and is fundamental to the relationship between a solicitor and client. The Applicant in reply agreed with the Respondent's submission but subject to the qualification that it depended on the nature of the misuse and the content of the confidential information. It was pointed out that not all misuse of confidential information amounts to serious misconduct. In addition, the reference to solicitor and client relationship has no basis as it did not involve her role as a Solicitor - the allegations are in relation to her position as an employee and involved internal documents. 15The Applicant submitted that had the relevant decisions been made by the Chief Executive Officer, the person authorised to make them, it is unlikely that Ms Ganino would have been dismissed. 16During the hearing, the Respondent abandoned many of the allegations, including the most serious allegations, that were relied on to dismiss the Applicant. The Applicant submitted that had the disciplinary process only involved the allegations relied on in these proceedings, then there is no prospect that the Applicant would have been dismissed. The Respondent agreed that it had not pressed allegations 1-7 relating to the events of 9 October 2008 and allegation 17 in relation to the handover to Lucy Howes. It was pointed out, however, that the allegations contained therein were not the most serious of the allegations. It was noted that the Applicant did not put such a contention to Mr Tout during the course of cross-examination. It was submitted that it was "fanciful" for the Applicant to suggest that Ms Ganino would not have been dismissed had those issues not been relied on in arriving at a decision to dismiss her. 17Both parties cited the statements of principle laid down in Antonakopolous v State Bank of New South Wales (1999) 91 IR 385 in relation to the failure of an employer to properly apply procedures supporting a finding that the dismissal was harsh, unreasonable or unjust. In Ms Ganino's case, the invalidity issue, the Applicant submitted, was so seriously disadvantageous to her and reflected such wrongdoing on the part of the Respondent that she ought to be reinstated, irrespective of any allegations which may be found proven. The Respondent once again pointed out that the claim is not one of form over substance. It was stressed that that the Applicant failed to address the critical fact that there was no evidence to prove that had an instrument of delegation been issued then, the process would have been conducted differently and there would have been a different outcome. The Respondent relied on the decision by his honour, Sams DP in Probst and Commissioner of Police (No 2) [2009] NSWIRComm 201 where a caution was issued about strict adherence to form triumphing over the substantive merits of the case resulting in the interests of justice not been served. 18.The Applicant submitted that were the Commission to make the above finding in relation to the invalidity issue, then it would inexorably point to one direction and that is the orders being sought in paragraph 12 above. The Respondent rejected that argument pointing out that, firstly, it was the Chief Executive Officer who made the delegation to Mr Tout to dismiss Ms Ganino; secondly, the evidence indicates that the CEO would have made the same decision as Mr Tout based on the same evidence that was available to Mr Tout; and, thirdly, the Applicant cannot rely on any of the evidence in support in its contention. The Applicant in reply rejected the proposition that just because the CEO made the delegation to Mr Tout it did not necessarily follow that the CEO would have reached the same conclusions had he participated in the process and ensured that it was not flawed. Second Alternative - A Finding that the Dismissal was Harsh 19.The Applicant submitted that, even if the dismissal was not invalid, and there is an absence of procedural unfairness and some or all of the allegations are found to be proven, the Commission would still find that the penalty of dismissal is disproportionate considering that the issues addressed by the remaining allegations are minor and do not involve such serious misconduct as to warrant dismissal. The Respondent rejected that argument pointing out that Ms Ganino's misconduct was anything was minor and ought to be categorised as serious misconduct given her role as a solicitor, a role that requires the highest standards of trust and confidence. The Respondent reminded the Commission of Ms Ganino's refusal to participate/assist in the fact-finding interview or disciplinary interview in a meaningful way contributed to the decision to terminate her employment. It was argued that Ms Ganino cannot complain to the Commission when she failed to present exculpatory and explanatory information about matters within her knowledge to either Mr Madden or Mr Hopkins during the above processes. 20.The Applicant concluded that the fairest response in circumstances where Ms Ganino has been dismissed, her career has been seriously and adversely interrupted by the allegations and the period of time she has spent out of the public sector workforce is to make the orders in paragraph 12 above, given that there was no evidence of any impediment to her returning to that workplace and Ms Ganino continues to seek reinstatement to her former position. The Respondent reminded the Commission of Ms Ganino's "failure to acknowledge her misconduct, her continued belief that former and current senior officers of the RTA are corrupt, and her complete absence of contrition". It was concluded that such behaviour means that reinstatement is impractical as the relationship of trust and confidence has broken down and does not support the Applicant's contention that there is no impediment to Ms Ganino returning to her former role or working with the persons who she has accused of mala fides and corruption. The Applicant in reply stated that the onus was on the Respondent to prove that reinstatement was impracticable and the Respondent has merely inferred circumstantially but failed to adduce any evidence that the relationship of trust and confidence between the parties has irrevocably broken down. CONSIDERATION 18The Commission, as presently constituted, has already found that the decision to dismiss was made without delegated power. I accept that there were serious deficiencies in the exercise of authority throughout the disciplinary process but not at the point of termination. 19The matter has been remitted by the Full Bench to the Commission, as currently constituted, to determine whether the dismissal, although found to be unlawful, was harsh, unjust or unreasonable. 20The previous submissions made by the parties have been summarised in detail in previous decisions and I do not propose to repeat them here save to say that the earlier submissions made by the parties have been taken into account in arriving at this determination. 21Twenty-two allegations were made against Ms Ganino all of which contributed to the decision to dismiss her from employment. Allegations 1 - 7 (relating to events of 9 October 2008) and allegation 17 (relating to the handover to Lucy Howes) were not pressed on the basis that they were not the most serious of the allegations. 22The "misconduct" the Respondent relied on in these proceedings were: 22.1The accessing of confidential and personal information on 18 December 2008. There are three documents in question (paragraph 8.2 above). Ms Vickers conceded that only two were shown to Ms Ganino during their meeting on 6 January 2009. I accept that Ms Ganino accessed the email. Nevertheless, the fact that the re-evaluation/upgrade of the of the Practice Manager position email was accessible on Interwoven was not the fault of Ms Ganino. There was a question mark on whether or not Ms Ganino was entitled to access those documents bearing in mind the job she was acting in at that point in time. Mr O'Meally had signed off on the upgrade when he was acting in the role of Deputy General Counsel, Legal Counsel Corporate Law. I therefore fail to see why Ms Ganino would be chastised for having access to that document at a time when she was acting in that role. I accept that Ms Ganino did not stop a junior Solicitor from accessing the document on Interwoven and may have even encouraged him. As a senior member of the Legal Department, there was a heavier onus on Ms Ganino to take steps to stop such behaviour and not encourage it. I accept that condoning a junior member of staff accessing information on Interwoven is a misuse of confidential information. I do not accept that it is a fundamental to the relationship of solicitor and client between Ms Ganino and the Respondent. The relationship we are dealing with is that of employer and employee - the employee just happens to be a Solicitor. Ms Ganino's actions in condoning a junior employee accessing the information would have been serious in itself but for the fact that the Respondent was aware that others within the firm had accessed the same documents. In fact, Ms Vickers gave evidence that she had intended to forward her memorandum of 29 December 2009 to all those who had accessed the documents. It seems that did not occur resulting in only Ms Ganino being disciplined for this glitch in the system. 22.2The subsequent use of that confidential and personal information for personal purposes and unelated to the performance of her duties. I accept the submissions made on behalf of the Applicant that just because Ms Ganino was acting up in another role at that point in time does not mean that her use of the information was unrelated to the performance of her duties. 22.3Failure to disclose to General Counsel or other senior officers the security failure with the level of access available to documents in the Staffing subfolder. I accept that Ms Ganino did report the security failure on 9 October 2008. I also accept that, being in the senior position she held at the time of the incident, she ought to have recognised that there was a problem around 18 December 2008 and reported it. It would appear that the friction in the relationship between Ms Ganino and General Counsel was such that they were not working co-operatively together. 22.4The insolent and disrespectful conduct Ms Ganino displayed towards General Counsel at a meeting on 6 January 2009. The evidence indicates that the relationship between Ms Ganino and General Counsel left a lot to be desired. The blame for that cannot rest solely on the shoulders of Ms Ganino - albeit her attitude towards General Counsel contributed a great deal to the breakdown in the relationship between them and their obvious lack of co-operation. 22.5Failure to comply with a reasonable and lawful directions to return documents obtained on 9 October 2008. Once again, a simple matter that could have easily been resolved with effective communication and a simple explanation. General Counsel was determined to have the salary matrix document returned (albeit she conceded in evidence that Ms Ganino was entitled to have a copy) and Ms Ganino denied having the document although she did. She had attached it to her Privacy Complaint and kept a copy of the complaint and the matrix for her records. 23I am highly critical of the fact that Ms Ganino refused to participate/assist in the fact-finding or disciplinary interviews. It was most unhelpful as she would have been best placed to clear up a large number of the allegations made against her during that process. It is not the type of conduct that one would expect from someone in Ms Ganino's position. 24Having considered all of the above, I find that the nature of the misconduct contained in the remaining allegations relied on by the Respondent is not sufficient to warrant the termination of Ms Ganino. I accept the Applicant's submission that the penalty of dismissal is disproportionate given the circumstances described above and consider the termination to be harsh. REMEDY 25At the proceedings on 5 July 2012, the parties advised that a major restructure is scheduled to take place early in August 2012 the result of which will be deletion of positions in the Roads and Maritime Services, Legal Services Division, including the position previously held by Ms Ganino. The positions, it would appear, are going to be changed and moved over to Transport of New South Wales - a separate body established in amendments to the Transport Administration Act late in 2011. 26If Ms Ganino is to be reinstated, then she would have to apply for the newly created positions under the new body. 27On that basis, it would appear that the arguments made by the Respondent as to the inappropriateness of reinstatement or re-employment given the history of the matter would no longer be an issue. It is noted, in any event, that the General Counsel at the time of the events that led to the dismissal is no longer in that position. Mitigation 28The Applicant noted that an order for back pay is a matter of discretion for the Commission. It was submitted that if the Commission finds that the dismissal was harsh, unjust and/or unreasonable, then the only fair and just outcome for Ms Ganino is that she be compensated for the period from 23 July 2009 until her reinstatement. 29It was submitted that Ms Ganino was in receipt of $114,566.00 per annum at the time of her dismissal. She received $41,508.58 upon her termination representing her accrued annual leave and long service leave entitlements to 23 July 2009. 30Ms Ganino has previously given evidence of the difficulties she had encountered in obtaining legal-based employment up until the proceedings on 14 April 2010. It was submitted that she did not obtain any alternative employment between 23 July 2009 and March 2010. 31It was submitted that Ms Ganino was able to obtain alternative employment with various employers since March 2010, details of which were provided in submissions. Her combined earnings totalled $10,707.00 gross less $1867.00 in tax resulting in a net income of $8,840.00 earned since her dismissal. 32As a result of the decision of the Commission as currently constituted, the parties negotiated a consent Stay Order (in relation to the reinstatement order) in which it was agreed that Ms Ganino would receive her salary without any superannuation contributions being made to First State Super. From inquiries made by Ms Ganino, it was estimated that such contributions would have amounted to approximately $20,673.28 net in employer contributions. The Order relating to back pay was stayed without any payment being made. 33The Applicant estimated that, but for her dismissal, Ms Ganino would have earned in the order of $300,000.00 gross. 34The Applicant concluded that the quantum of the back pay should not deter the Commission from making the orders sought as neither the dismissal nor the elapse of time was caused by Ms Ganino or the Applicant. 35The Respondent strongly opposes an order of reinstatement as inappropriate. 36The Respondent noted that the material on mitigation was not supported by evidence. The Respondent has served a summons to produce on Ms Ganino in that regard. The issue of mitigation, it was noted, will be dealt with by the Commission once this decision has been handed down. The Respondent reserved its rights to pursue the summonsed documents, test the evidence by further cross-examination of Ms Ganino, adduce evidence of its own and make submissions in that regard. The Applicant does not oppose addressing the issue of mitigation further providing it does not delay Ms Ganino's reinstatement in order to determine the back pay issue. Costs 37Both parties reserved their rights to make application and be heard on the issue of costs. ORDERS 38The Commission orders that the Roads and Maritime Services 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 after producing a current practising certificate. 39The Commission orders that the Roads and Maritime Services pay to Ms Rosanna Ganino remuneration, the quantum yet to be determined, to compensate for the period during which she has been off work. The amount of remuneration will the subject of separate proceedings in order to determine the issue of mitigation of losses by the Applicant. 40The issue of costs will also be the subject of separate proceedings. 41The parties are required to observe the following filing schedules in relation to the Mitigation and Costs issues. The Applicant is to file and serve submissions and evidence by 20 July 2012; the Respondent is to file and serve its reply submissions and evidence by 3 August 2012 and the Applicant is file its reply to the Respondent's submissions and evidence by 10 August 2012. Unless either party requests within 7 days of the filing schedules being met that the Commission hear them, the issues will be determined on the papers. I Tabbaa AM 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: 16 July 2012