Industrial Relations Commission New South Wales Medium Neutral Citation: Robert Buttling v NSW Department of Education and Communities [2012] NSWIRComm 61 Hearing dates: 12-15 June; 25 June 2012 Decision date: 28 June 2012 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. The application made under s 23 and for relief under s 23A of the Occupational Health and Safety Act 2000 and for relief under s 210(j) and s 213 of the Industrial Relations Act 1996 in Matter IRC 369 of 2012 is dismissed. 2. There is no order as to costs. Catchwords: UNLAWFUL DISMISSAL - unlawful dismissal application under s 23 and s 23A of Occupational Health and Safety Act 2000 and for relief under ss 210(j) and 213 of Industrial Relations Act 1996 - applicant did report alleged offence before repeal (Sch 18B Part 2 Clause 2 of Work Health and Safety Regulations) - finding offence provisions are retained under transitional provision of Workplace Health and Safety Act 2011 - applicant not empowered to bring action under s 106 of OHS Act - applicant has filed unfair dismissal therefore Industrial Court not empowered to make order given application under statutory instrument provides for a redress for dismissal - applications for dismissal - application dismissed Legislation Cited: Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Work Health and Safety Act 2011 Category: Principal judgment Parties: Robert Buttling (Applicant) NSW Department of Education and Communities (Respondent) Representation: Mr P Ginters (Respondent) Self Represented (Applicant) NSW Department of Education and Communities (Respondent) File Number(s): IRC 369 of 2012 JUDGMENT 1In Matter No IRC369 of 2012 filed on 27 February 2012, Robert Buttling (the applicant), self represented, brings a claim against the Department of Education and Communities (DEC, or the respondent) contending his dismissal as a Teacher within DEC was "unlawful" under s 23 of the Occupational Health and Safety Act 2000 ("the OHS Act") and for relief under ss 210(j) and 213 of the Industrial Relations Act 1996 ("the IR Act"). 2The applicant also filed on 27 February 2012 an "unfair dismissal" application made pursuant to s 84 of the IR Act in Matter No IRC368 of 2012 ("unlawful dismissal application"). 3Under s 23 of the OHS Act, an "unlawful" application is heard by the Industrial Court of NSW. Under s 84 of the IR Act the "unfair" application is heard by the Industrial Relations Commission of NSW. 4This judgment where the Court sat as the Industrial Court of NSW deals with the "unlawful" dismissal application brought under s 23 of the OHS Act. It is necessary to state if it is found a dismissal is unlawful the possible remedies are found in s 23A of the OHS Act and ss 210(j) and 213 of the IR Act. 5By letter dated 3 February 2012, Mr Buttling was dismissed from his employment with the respondent, effective 6 February 2012. 6For the purpose of this judgment, it may be presumed the applicant filed his claim for "unlawful dismissal" under the OHS Act perhaps under s 23 or, as filed, under s 23A which relevantly states: 23 Unlawful dismissal or other victimisation of employee (1) An employer must not dismiss an employee, injure an employee in his or her employment or alter an employee's position to his or her detriment because the employee: (a) makes a complaint about a workplace matter that the employee considers is not safe or is a risk to health, or (b) is a member of an OHS committee or an OHS representative, or (c) exercises any functions conferred on the employee under Division 2 (whether as such a member or representative or otherwise). Maximum penalty: (a) in the case of a corporation (being a previous offender)-375 penalty units, or (b) in the case of a corporation (not being a previous offender)-250 penalty units, or (c) in the case of an individual (being a previous offender)-225 penalty units, or (d) in the case of an individual (not being a previous offender)-150 penalty units. (2) In proceedings for an offence against this section, if all the facts constituting the offence other than the reason for the defendant's action are proved, the onus of proving that the dismissal, injury or alteration was not actuated by the reason alleged in the charge lies on the defendant. 23A Application for reinstatement of employee unlawfully dismissed under section 23 (1) In this section: reinstatement includes re-employment. unlawful dismissal means the dismissal of an employee in contravention of section 23. (2) An employee who has been unlawfully dismissed may, within 21 days after the dismissal, apply to the Industrial Court of NSW for reinstatement. The Court may accept an application that is made out of time if it considers that there is a sufficient reason to do so. (3) An industrial organisation of employees may make such an application on behalf of the employee. (4) The Industrial Court of NSW may, on such an application, order the employer to reinstate the employee in accordance with the terms of the order. (5) If the Industrial Court of NSW is satisfied that the applicant was unlawfully dismissed: (a) the Court is to order the employee to be reinstated in his or her former employment or in any other employment that is no less advantageous to the employee, except as provided by paragraph (b), or (b) if the employer satisfies the Court that it would be impracticable to reinstate the employee-the Court may order the employer to pay to the employee an amount of compensation determined by the Court to be appropriate in the circumstances (but not exceeding the amount of remuneration the employee would have received but for the dismissal in the period of 6 months following the dismissal). (6) If the Industrial Court of NSW orders reinstatement under this section, it may order that the period of employment of the applicant with the employer is taken not to have been broken by the dismissal. (7) An application under this section may be made regardless of whether the employer has been convicted of an offence against section 23. (8) The Industrial Court of NSW must not make an order on an application under this section if: (a) another Act or a statutory instrument provides for redress to the employee in relation to the dismissal, and (b) the employee has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument. (9) Evidence of the fact that the Industrial Court of NSW has made an order under this section in respect of the unlawful dismissal of an employee is not admissible in proceedings for an offence against section 23. (10) In any proceedings under this section, if an employee establishes that a matter referred to in section 23 (1) (a), (b) or (c) occurred or existed before the employee's dismissal, it is presumed that the employee was dismissed because of that matter. That presumption is rebutted if the employer satisfies the Industrial Court of NSW that the matter was not a substantial and operative cause of the dismissal. 7The DEC submits Mr Buttling's unlawful application is incompetent as he filed his unlawful application on 27 February 2012. It is contended by the respondent that the OHS Act, which Act underpins the unlawful application, was repealed with effect from 1 January 2012 (s 276C of the new Work Health and Safety Act 2011). 8After the OHS Act was repealed it was replaced immediately by the Work Health and Safety Act 2011 ("the WHS Act") to have effect from 2 January 2012. 9The offence provisions of the OHS Act, however, continue to apply to offences that were committed before its repeal. Schedule 18B, Part 2 Clause 2 of the Work Health and Safety Regulation 2012 states: Part 2 Prosecution of offences against OHS laws ... 2 General transitional arrangements for OHS offences Proceedings for an OHS offence alleged to have been committed before the repeal of the OHS Act are to be dealt with after the repeal of the OHS Act as if that Act had not been repealed, except as otherwise provided by this Part. 10Given the evidence in the unfair dismissal proceedings, I have no doubt, on the facts, that Mr Buttling's complaint relates to an alleged offence said to have been committed by DEC before the repeal of the OHS Act. In various parts of the evidence available by communication through Mr Buttling to the DEC prior to 1 January 2012, Mr Buttling had asserted he had been given unlawful directions; illegal orders; asserted he could not be illegally fired; he was a "victim" and some incidents were criminal acts. He asserts the actions of the DEC were coercive, misleading and defamatory. He never directly asserted such were breaches of the OHS Act. 11However, actions under the OHS Act must be authorised in accordance with the provision of s 106 of the OHS Act which states: 106 Authority to prosecute (1) Proceedings for an offence against this Act or the regulations may be instituted only: (a) with the written consent of a Minister of the Crown, or (b) with the written consent of an officer prescribed by the regulations, or (c) by an inspector, or (d) by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate. (2) In proceedings for an offence against this Act or the regulations, a consent to institute the proceedings, purporting to have been signed by a Minister or a prescribed officer, is evidence of that consent without proof of the signature of the Minister or prescribed officer. Mr Buttling, therefore, has no standing to institute proceedings for an offence against the OHS Act. Mr Buttling is not authorised to prosecute under the OHS Act. 12Further, presuming the reinstatement provision in s 23A of the OHS Act has continued, application to a dismissal that post-dated the repeal of the OHS Act, then s 23A(8) of the OHS Act becomes relevant. It stands in the way of the Industrial Court granting an order in circumstances where Mr Buttling has sought an order of redress in relation to his dismissal, in proceedings IRC Matter No 368 of 2012 for unfair dismissal. As Mr Buttling has pursued his unfair dismissal claim, he cannot therefore sue for unlawful dismissal. 13The WHS Act has effect from 2 January 2012. Under Part 6 there is an action for discriminatory conduct for a "prohibited reason" (s 104) if a person is held to be a person who dismisses a worker (s 106). Under the Act there are many definitions of "prohibited reason" which includes if there has been conduct engaged in because the worker raised an issue of concern about work health and safety with the person conducting the business (s 106). 14Assuming Mr Buttling's contention is that he was dismissed because he raised an issue or concern about work, health and safety with the respondent for the purposes of the WHS Act (ss 104(1)(a), 105(1)(a)(i), 106(h)(i)), under that Act Mr Buttling would also have no standing to bring offence proceedings (s 230 WHS Act). 15Further, the Industrial Court would not have jurisdiction to hear such offence proceedings (s 229B of the WHS Act). The Court does not have jurisdiction to hear any civil proceedings arising out of alleged discriminatory conduct (s 112 WHS Act). The WHS Act also has a provision that if an applicant has unfair dismissal proceedings on foot that would stand in the way of the commencement of any such civil proceedings (s 115(a) WHS Act). 16In Matter No IRC369 of 2012, the Court finds the application for unlawful dismissal is incompetent notwithstanding the Court also finds the claim is within jurisdiction. 17For all the above reasons, the application is dismissed. ORDERS 18I make the following orders: 1. The application made under s 23 and for relief under s 23A of the Occupational Health and Safety Act 2000 and for relief under s 210(j) and s 213 of the Industrial Relations Act 1996 in Matter No IRC 369 of 2012 is dismissed. 2. There is no order as to costs. 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: 17 July 2012