Industrial Relations Commission New South Wales Medium Neutral Citation: Danwer v Corrective Services NSW [2012] NSWIRComm 1024 Hearing dates: 31 /08/12 Decision date: 21 September 2012 Before: Ritchie C Decision: Catchwords: Hearing of Notice of Motion filed by respondent. Legislation Cited: Industrial Relations Act, 1996 Cases Cited: Director-General of the Departmentof Corrective Services v Mitchelson (1992)26 NSWLR 648. Category: Principal judgment Parties: Mr S Danwer (appellant) Corrective Services NSW (respondent) Representation: Mr S Ryan for appellant Mr S Cosgrove for respondent File Number(s): IRC 598 of 2012 DECISION Background. 1Mr Shonit Danwer (the appellant) has been employed by the Department of Attorney General and Justice (Corrective Services NSW) since 2 April 2002. On 5 September 2011 the appellant advised his General Manager that he had been charged with committing an act of indecency under 61 N of the Crimes Act, 1900. 2On 7 September 2011 the appellant was notified in a letter from Deputy Commissioner, Mr Ian McLean that as a result of Police charges against him, he was now suspended with pay from that date. 3On 27 October 2011 the appellant was notified in a letter from the Executive Director, Professional Standards, Ms Liz Ball that the Police charges against him constituted reportable conduct under section 25C of the Ombudsman Act 1974. Further, that pursuant to section 25C of that Act, the Commissioner is required to report any child-related allegations or convictions involving employees to the NSW Ombudsman. 4On 23 April 2012 the appellant was convicted for commit an act of indecency with persons 16 years or over and received a section 9 Bond for 18 months. 5The appellant has filed an appeal over this conviction which has yet to be heard. 6On 24 April 2012, the appellant was notified in a letter from Deputy Commissioner, Ian McLean that as a result of the criminal conviction, consideration was being taken to suspend him from duty without pay. The appellant was invited to show cause in writing as to why salary payable should not be withheld during the period of suspension. 7On 9 May 2012 the appellant was notified that he was now suspended without pay. 8After a request from the appellant as to his desire to access his leave entitlements, this was granted. 9On 22 May 2012, the appellant filed a Notice of Appeal- Public Sector Discipline with respect to his suspension and sought Orders that his salary not be withheld while suspended. 10On 7 August 2012 the respondent filed a Notice of Motion seeking that the application by the appellant be struck out pursuant to section 100B(2) of the Industrial Relations Act, 1996 for want of jurisdiction. Case for Corrective Services. 11In the Grounds and Reasons of the Notice of Motion the following was expressed. 1.The decision to suspend Shonit Danwer from duty was made on 7 September 2011. The letter was received by Shonit Danwer on 9 September 2011 at which time he had 28 days to lodge an appeal ( 7 October 2011). Shonit Danwer lodged an appeal on 22 May 2012. 2.Section 97 of the Industrial Relations Act, 1996 prevents Shonit Danwer from making an application against the decision of suspension without pay by reason that no disciplinary action has been commenced by the employer. 3.The affidavit of Steven Cosgrove affirmed on 1 August 2012 is filed in support of this Application. 12The affidavit of Steven Cosgrove which became exhibit 1 in proceedings stated that he is a legal Officer at the Professional Standards Branch of Department of Attorney General and Justice. His affidavit outlined the history of the appellant with respect to the standing down of the appellant first with pay and then without pay. The power to stand an officer down with pay was pursuant to section 49(1)(b) of the Public Sector Employment and Management Act 2002. 13The suspension period for Shonit Danwer is reviewed each 30 days and no disciplinary action has been commenced pending the outcome of the appellant's criminal appeal. 14In his submissions supporting his application Mr Cosgrove stated that the Notice of Motion be struck out for want of jurisdiction on two points. The first was that the appellant's Notice of Appeal was filed out of time. Annexure B to Exhibit 1 is correspondence from Deputy Director Ian Mclean dated 7 September 2011 directed to the appellant. The correspondence states in part the following: "having considered all the circumstances, I have decided , in accordance with section 49(1)(b) of the Public Sector Employment and Management Act 2002, to suspend you from duty with pay from the date of this letter. Mr Cosgrove stated that within Industrial Relations Act, 1996 section 100B-Time for lodging appeal states: (2) Notice of a disciplinary appeal must be lodged within 28 days after the public sector employee is notified of the decision against which the appeal is to be made. The appellant filed his Notice of Appeal-Public Sector Discipline on 22 May 2012. 15The decision to with hold his pay was not a separate suspension but related directly to the court matter when he was first charged on 30 August 2011. Therefore there was only been the one suspension. The Notice of Appeal was lodged outside of the 28 days, therefore the Commission does not have jurisdiction to hear the Notice of Appeal.. 16The second issue raised by Mr Cosgrove was that the Notice of Appeal did not fall under section 97Notice of certain decisions etc. It states: (1) This section applies to the following decisions made by a public sector employer in relation to a public sector employee: 17Section 97 (1) (e) reads. "a decision to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer." Mr Cosgrove stated that no disciplinary action has taken place, no punishment but only protective action for the respondent, as there has not been an investigation as yet of the appellant and any allegations made against him. No investigation will take place until the criminal proceedings have been completed. The suspension came about not as a punishment but merely a protection measure that is available to the decision maker. 18In summary the appellant filed his Notice of Appeal beyond the 28 days limit and no disciplinary action has been commenced by the respondent against the appellant. Case for the Appellant. 19Mr Ryan for the appellant outlined the sections of the Industrial Relations Act, 1996 that he would cover in his submission. 20He stated that section 91 Interpretation of the Industrial Relations Act, 1996 states: (1) In this part: appeal means a promotion appeal or a disciplinary appeal. disciplinary appeal means an appeal under section 98. Section 98 Right of appeal states: (1) Despite anything contained in any other Act, a public sector employee may, subject to and in accordance with this Part, appeal to the Commission against an appealable decision of his or her employer. 21Section 97 Notice of certain decisions etc states in part: (1)(e) a decision to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer. 22Section 100A Notice of Appeal states: A public sector employee may make an appeal by lodging with the Industrial Registrar a notice of appeal in the approved form. 23Section 100B Time for lodging appeal states: (2) Notice of a disciplinary appeal must be lodged within 28 days after the public sector is notified of the decision against which the appeal is to be made. 24Section 100C Decisions with respect to appeals states: (2) The Commission , in relation to a disciplinary appeal, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit. 25Mr Ryan stated that their originating appeal is not directed to the decision to stand down the appellant with pay but the decision made on 9 May 2012 to stand down the appellant without pay. He stated that the respondent had made two decisions and it was the latter that they were appealing. The originating appeal was filed on 22 May 2012 which was within the 28 day limit for appealing. 26Mr Ryan stated that his client had a right to bring this Notice of Appeal before this Commission because it was an appealable decision. Section 97 (1) (e) expresses the words " a decision to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of contravention of any law" would include a section 9 conviction under the Criminal Sentencing legislation. 27Mr Ryan stated that the action by the respondent to stand down the appellant with pay, in September 2011, was not an appealable decision as he had at that point only been charged with an offence, he had not been found guilty. He also stated that section 100C of the Industrial Relations Act, 1996 provides the statutory power for the Industrial Relations Act, 1996 to determine a matter on its merits and the preconditions must be determined in accordance with that Act and not the Public Sector Employment management Act. This Commission is not restricted in applying the test of punishment versus protection and not in terms of the provisions of the Public Sector Employment Management Act. 28 He also stated that if the Commission was to determine the matter as a protective matter as opposed to a punishment , then consideration must be taken as to the purpose provisions in the Public Sector Employment management Act. There is that of general public interest test. The first is the protection of the reputation of the respondent. The second is the protection of the standards of the conduct of the officers, and the third is a protection measure for members of the public. Mr Ryan stated that the Commission is unaware as to the reasons why the action of suspending the appellant took place. Consideration and Decision. 29The appellant was first stood down on 7 September 2011 with pay. On 23 April 2012 the appellant was convicted at the Sydney Downing Centre for committing an act of indecency with person 16 years or over and received a section 9 Bond for 18 months. The appellant was then advised by the respondent that consideration was being given to have him being stood down without pay and he was given the opportunity which he took to show cause why his salary should be withheld. 30On 9 May 2012 the appellant was advised that he was now stood down without pay. The correspondence stated in part the following: "On review of your response dated 9 May 2012, I have now decided that you are to be suspended without pay, effective from the date of this letter." Mr Cosgrove submitted that this was not a second decision but just a continuation of the first decision to stand down the appellant and therefore the appellant's Notice of Appeal was filed outside of the 28 day limitation. 31Mr Ryan stated that two decisions had been made, and that the standing down of the appellant without pay on 9 May 2012 was the second. By filing the appellant's Notice of Appeal on 22 May 2012 it was within the 28 day time limit. 32It is my finding that I accept the submission of Mr Ryan. The clear words expressed by Deputy Commissioner Ian McLean in the correspondence dated 9 May 2012 state that he " has decided that you are to be suspended without pay, effective from the date of this letter." It is my view that the Deputy Commissioner had made a decision which differed from the first. 33I therefore find that the Notice of Appeal was filed in time. 34I have outlined above the submissions made by each party with respect to the second ground as expressed in the Notice of Motion. 35 Under Division 3 Disciplinary Appeals the following is expressed: 97 Notice of certain decisions etc (1) This section applies to the following decisions made by a public sector employer in relation to a public sector employee: (a) a decision to defer, for a period in excess of 6 months, the payment of an increment to the employee, (b) a decision to reduce the rank, classification, position, grade or pay of the employee, (c) a decision to impose a fine or forfeit pay, (d) a decision to annul the appointment of an employee appointed on probation, (e) a decision to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer, (f) a decision to dismiss the employee, (g) a decision to direct or to require the employee to resign. 36The very heading of this Division expresses the word " Disciplinary". When one considers each of the listed decisions by a public sector employer, each is clearly apparent to be one of punishment. 37 I note the comments of Kirby P in the matter of Director -General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR648 " Paragraph (d) cannot be read in isolation. It appears in a list. The list is clearly confined to instances(or decisions to make a recommendation) which constitutes various forms of punishment apt to give rise to a disciplinary appeal. They all involve burdens on what would otherwise be the rights and privileges of an employee of the public service. The position is made clear in par(e) by the addition of the phrase " as a punishment". 38The submission of Mr Cosgrove was that the standing down of the appellant was not an action of punishment in itself, but one of a protective measure whilst the criminal matter is ongoing. He stated that the respondent has the power to suspend an employee be it with or without pay in the public interest and efficient operation of the respondent. 39I accept this submission. I note that section 97(1) (e) does not differentiate with respect to the standing down of an employee be it with or without pay. I also note that attached to Ex 1 is correspondence between the respondent and the appellant that shows a historical trail that is directly related to the appellant's criminal proceedings. I understand and accept that the formal standing down of an employee is not uncommon whilst a criminal matter is concluded, and in my view is appropriate, taking into consideration the position of the appellant as a Correctional Officer, the charge and the guilty finding at first instance. 40 It is my finding that the standing down of the appellant can not be classified as a punishment as expressed in section 97(1)(e) of the Industrial Relations Act, 1996.The appellant has been stood down pending other matters concluding. At this point the respondent has not found the appellant guilty of misconduct or contravention of any law or any rule or direction. As no finding has been made by the respondent, they are hardly in a position to determine a punishment. 41It is my view that once the criminal proceedings are completed, the respondent will then commence to investigate the matter. 42 In conclusion ,it is my finding that this Notice of Appeal does not have the necessary disciplinary decision character that is required for an appeal under section 97 to give jurisdiction to this Commission. 43I therefore dismiss the Notice of Appeal-Public Sector Discipline. 44This matter is now concluded. D. Ritchie 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: 21 September 2012