Industrial Relations Commission New South Wales Medium Neutral Citation: Karolyn Hunter and Corrective Services NSW [2012] NSWIRComm 1020 Hearing dates: 9 August 2012 Decision date: 28 August 2012 Before: Tabbaa C AM Decision: Appeal dismissed for want of jurisdiction Catchwords: Appeal against decision to appoint or recommend the appointment of another applicant to a vacant position; Jurisdictional issue re: right of appeal where Appellant is in receipt of salary in excess of the salary applicable to the advertised position; No discretionary powers available to the Commission pursuant to s. 95(e). Legislation Cited: Industrial Relations Act 1996 Category: Principal judgment Parties: Karolyn Hunter (Appellant) - self-represented Ms G Singer Corrective Services NSW (Respondent) File Number(s): IRC 776 of 2012 DECISION Introduction 1The Appellant, Ms Karoyln Hunter, is employed as a Correctional Education Officer with Corrective Services NSW. 2A vacancy was advertised on 21 January 2012 for the position of Senior Correctional Education Officer (SCEO), South Coast Correctional Centre. It is not disputed that the Appellant was, at that time, eligible to apply, and did apply, for consideration for that position. She was one of six applicants interviewed for the position on 27 February 2012 and the recruitment process was finalised on 19 June 2012. 3Ms Tanya Bennett accepted that position on 20 June 2012 and accepted the offer of $93,999 per annum for the performance of that role which has a salary range of $93,999 to $96,904 per annum. 4The Appellant filed an appeal on 11 July 2012 against the appointment of Ms Tanya Bennett on the basis that she possessed greater merit in all selection criteria. 5The Respondent objects to the appeal being heard on the basis that, at the time of the appointment of Ms Bennett, the Appellant was ineligible to appeal the decision on jurisdictional grounds. Issue(s) 6The Respondent wrote to the Registrar on 19 July 2012 pointing out that the Appellant is substantively appointed to the position of Senior Correctional Education Officer and is already in receipt of the maximum salary applicable to the vacant office. It was submitted that, on that basis, in accordance with section 95 (f) of the Industrial Relations Act 1996 (the "Act"), the Tribunal is deprived of the necessary jurisdiction to entertain the appeal. 7The matter was listed before the Tribunal to determine that threshold jurisdictional issue prior to any hearing on the merit claim. Evidence 8The Appellant commenced employment with Corrective Services NSW in or about 12 March 2009. 9The Appellant worked in various higher duties positions until her appointment, on 1 March 2010, to the position of Senior Correctional Education Officer, Metropolitan Special Program Centre, Long Bay Correctional Complex. 10The Appellant was in receipt of an annual salary ranging from $88,349 on 1 March 2010 to $94,540 on 1 March 2011. 11On 14 March 2011 to 30 January 2012, the Appellant was seconded to the lower grade position of Correctional Education Officer (CEO) receiving $80,717 per annum. 12It was not disputed that her secondment was on the basis that she gain a Certificate 4 qualification to be appointed permanently into the CEO position. Ms Hunter obtained such a qualification and was offered a permanent position in that lower grade in January 2012 (as CEO at the SCCC). The offer was rejected by the Appellant. 13The secondment was extended from 31 January 2012 to 14 March 2012 and her annual salary increased to $82,735. 14The Respondent advertised a vacancy for the position of Senior Correctional Education Officer, South Coast Correctional Centre on 21 January 2012. 15It was not disputed that the Appellant was eligible to apply for the vacancy. 16 The Appellant was one of six applicants interviewed for the position on 27 February 2012. It was not disputed that, as at the time of the interview, the Appellant was still eligible to apply for that position. 17The secondment was scheduled to expire on 14 March 2012. 18The Appellant forwarded an email request dated 5 March 2012, to Mr Nicholas Kailis (cc Ms Jean Dally) to remain at SCCC as CEO until the recruitment process had been finalised. 19The Appellant pointed out that she understood that Mr Kailis and Mr Anthony Becket had instructed that she return to her substantive position. The Appellant relied on her understanding that there were several vacant positions, including hers; Mr Kailis had already put out Expressions of Interest (EOI) regarding those positions; and the EOIs had already closed. She understood that there was now an urgency in relation to her return and the EOI with respect to her substantive position had been withdrawn. 20Mr Kailis followed up on the Appellant's request. On 6 March 2012, Ms Jean Dally responded to Mr Kailis (cc the Appellant) pointing out that the Appellant's "secondment was on the terms that she gained the Cert 4 qualification to be appointed permanently into the CEO position. Karolyn informed me yesterday morning that she had gained the qualification, but would not be accepting the position as the CEO at the SCCC. As such she is required to return to her substantive position wef 15 March...." 21The request by the Appellant that her acting position as CEO be extended was rejected by Mr Becker and Ms Dally, two members of the Interview Panel, and the Appellant was ordered to return to her substantive position in Sydney as a SCEO on 14 March 2012. 22The Appellant returned to her substantive position on 14 March 2012 and commenced to receive the salary for that position - $96,904 per annum. 23The recruitment process was finalised on 19 June 2012 and Ms Bennett accepted the offer of appointment on 20 June 2012. The appointment was published pursuant to section 93 of the Act in the Working for NSW Appointments section on the website. 24The Appellant filed a Notice of Appeal on 11 July 2012. Respondent's and Appellant's Cases 25The Respondent conceded that, ordinarily, the Appellant would be entitled to the benefit of the provision in s 94 (1)(a), however, the Appellant in this instance is precluded, by virtue of s. 95, to appeal the decision as her base salary is greater than that of the advertised position. 26The Respondent submitted that section 95 (e) is about facts and does not provide the Tribunal with any discretionary powers. 27The Respondent submitted that, as at 19 June 2012, the date the decision was made to offer the appointment to Ms Bennett, the Appellant was substantively employed in the position of SCEO and was in receipt of the maximum annual salary for the position that is subject to the appeal. On that basis, her appeal was nullified and the Appellant is deprived of her right, pursuant to section 94 (1), to appeal a promotional appointment. 28The Respondent concluded that the Tribunal does not have the jurisdiction to hear the appeal and sought an order striking out the appeal for want of jurisdiction. 29The Appellant contended that, had she not been forced to return to Sydney on 14 March 2012 as an SCEO, she would have been entitled to appeal the decision. She also maintained that she was more entitled to be appointed to the vacant position than Ms Bennett and sought the opportunity to prove a greater merit for the position by way of appeal. 30The Appellant relied on section 94 (2) of the Act in maintaining a better entitlement to be appointed to the position. 31The Appellant pointed out that both Panel members knew, when they insisted that she return to her substantive position, that they were taking away her right of appeal if she was ultimately unsuccessful in being recommended for appointment to the position. Findings 32Section 94 (1) of the Act provides that: 94 Right of Appeal (1)Subject to and in accordance with this Part, a public sector employee who is: (a)employed as an officer in a Department within the meaning of the Public Sector Employment and Management Act 2002 may appeal on the promotions appeal ground to the Commission against a decision of an employer (being a Department Head within the meaning of that Act) to appoint or recommend the appointment of another such officer to fill a vacant office in that or any other Department, and ... (2)for the purposes of this section, the "promotions appeal ground" is, having regard to any relevant document in relation to the vacant office, more entitled to be appointed to the vacant office than the employee in whose favour the decision was made. 33The Tribunal accepts that the Appellant had a right, as at 21 January 2012, to apply for the vacant position. 34The Tribunal also accepts that the Appellant had a right, at any time prior to 14 March, 2012, to appeal any decision by the Panel not to appoint her to the advertised position. 35Nevertheless, the Tribunal recognises that the Respondent was under no obligation to extend the secondment once it expired on 13 March 2012. 36Unfortunately for the Appellant, the recruitment process was not finalised until 19 June 2012. The Tribunal is not entitled, in the absence of any further evidence, to go behind the delay between the interview date and the finalisation date of the recruitment process and draw adverse conclusions as to the reason thereof. 37Section 95 of the Act relevantly provides: 95Excluded circumstances A public sector employee is not entitled to appeal under section 94 in respect of the decision of a public sector employer relating to a vacant office: .... (e)unless the maximum salary applicable to the vacant office is greater than the salary paid, at the date of the decision of the employer, to the appellant in relation to the office held by the appellant at that date, or .... 38The provisions of section 95 (e) are quite clear. The Appellant ceased to have any appeal rights in relation to the advertised position when she returned to her substantive position on 14 March 2012. That is because the maximum salary applicable to the vacant office is lower than the salary paid to the Appellant in the office she holds as Senior Correctional Education Officer. Order(s) 39The appeal by Ms Karolyn Hunter against the decision to appoint or recommend the appointment of Ms Tanya Bennett to the position of Senior Correctional Education Officer, South Coast Correctional Centre, Nowra, is dismissed for want of jurisdiction. 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: 28 August 2012