Industrial Relations Commission New South Wales Medium Neutral Citation: Gonzales and Housing NSW [2013] NSWIRComm 15 Hearing dates: 13 December 2012 Decision date: 01 March 2013 Before: Walton J Vice-President; Staff J; Backman J Decision: We order that leave to appeal is refused Catchwords: APPEAL - application for leave to appeal and appeal - unfair dismissal claim - question of leave to appeal heard separately - s 188 Industrial Relations Act 1996 - leave to appeal refused Legislation Cited: Industrial Relations Act 1996 Cases Cited: Gonzales v Housing NSW [2012] NSWIRComm 1019 InterCoast Refrigerated Transport Pty Ltd v Inspector Batty (WorkCover Authority of New South Wales) [2013] NSWIRComm 12 Reverend Knowles & Anglican Property Trust [1999] NSWIRComm 576; (1999) 95 IR 380 Category: Principal judgment Parties: Victorino Gonzales (Applicant) Housing NSW (Respondent) Representation: Ms P Lowson of counsel (Applicant) Ms E Brus of counsel (Respondent) Ian Collins (Applicant) Housing NSW (Respondent) File Number(s): IRC 961 of 2012 Decision under appeal Citation: Gonzales v Housing NSW [2012] NSWIRComm 1019 Date of Decision: 2012-08-20 00:00:00 Before: Bishop C File Number(s): IRC 345 of 2012 DECISION 1On 15 December 2010, Mr Victorino Gonzales ("the applicant") was dismissed from his employment with Housing NSW ("the respondent"). The reason for the termination of employment was the failure of the applicant to comply with lawful and reasonable directions, which the respondent determined amounted to misconduct. The applicant applied to the Commission for a remedy, seeking re-instatement or re-employment, under s 84 of the Industrial Relations Act 1996. That application was dismissed by Bishop C: Gonzales v Housing NSW [2012] NSWIRComm 1019. 2On 10 September 2012, the applicant filed an application for leave to appeal and appeal against the decision of Bishop C. On 21 September 2012 at a directions hearing before Walton J, Vice-President, the parties, by consent, sought that the question of leave to appeal be heard separately. 3The application for leave to appeal was, therefore, heard separately and without conducting a hearing into the merits of the appeal. 4Ms P Lowson of counsel appeared for the applicant, and Ms E Brus of counsel appeared for the respondent, at the hearing of the application on 13 December 2012. Background 5The factual circumstances surrounding the dismissal involved, centrally, the failure by the applicant to attend a medical appointment that had been arranged for him by the respondent on 4 August 2010. 6Ms Lowson submitted, orally during the hearing, that, in respect of the question of leave to appeal "we are limiting our submissions to one key point and that is that there was an error below in the way in which Commissioner Bishop treated the issue of procedural fairness vizaviz the seriousness of the misconduct". 7In November 2008, the applicant was suspended from work with pay so that an investigation into eight allegations of misconduct against him could be undertaken. In May 2009, the applicant was advised that the investigation had been completed, that some of the allegations had been proven and that disciplinary action was being considered as a result. The applicant provided a written response to the respondent on 19 June 2009. On 8 July 2009, the respondent wrote to the applicant advising him that, as a result of the investigation, he was to be demoted to the position of Clerk Grade 1-2, that his period of suspension was ended and that he was to report for duty on Monday 13 July 2009 at the respondent's Parramatta office. The applicant did not report for duty as directed on that date (however, he did provide, on 19 July 2009, a medical certificate covering the period 13 - 17 July 2009). 8On 19 July 2009, the applicant applied for (and was granted) a period of leave without pay to pursue an appeal against the disciplinary action to the Government and Related Employees Appeal Tribunal, which appeal was lodged later in July 2009. That application was withdrawn by the applicant on 12 January 2010. (The applicant had also filed a complaint with the (then) Human Rights and Equal Opportunity Commission, which complaint was ultimately terminated by the Commission.) 9On or about 19 January 2010, the respondent directed the applicant to attend its Parramatta office, so that he could be allocated a position, and advised him that "failure to comply with this direction may lead to a recommendation of formal disciplinary action". He did not attend as directed, having advised that he was unwell and would proceed on sick leave without pay. 10On or about 19 March 2010, the respondent forwarded what was to be the first of four pieces of correspondence via registered mail to the applicant's home address directing him to attend a health assessment on 14 April 2010 due to long term absence from work and inability to resume his new position due to medical illness. This correspondence was not received by the applicant and he did not attend the scheduled appointment. 11On or about 30 July 2010, the applicant was contacted by telephone and email by an officer of the respondent and advised that correspondence, dated 19 July 2010, had been sent to him by registered mail. That correspondence made reference to the applicant's non-receipt of the 19 March 2010 letter and his failure to attend the health assessment of 14 April 2010, and directed the applicant to attend a further health assessment with a consultant psychiatrist scheduled for 4 August 2010. The applicant collected the registered mail from Australia Post on 31 July 2010. By emails dated 30 July and 2 August 2010, the applicant advised the respondent that he would not attend the health assessment because he had an appointment scheduled on that date with his own psychologist. He was subsequently directed to attend by the respondent, but did not attend. 12The applicant was forwarded a further letter by registered mail dated 31 August 2010, which advised that, as a result of his failure to attend the health assessment scheduled for 4 August 2010, the respondent was considering disciplinary action and dismissal. The letter was "returned to sender". 13On 15 December 2010, the respondent forwarded a final letter by registered mail advising that, taking into account the previous disciplinary action imposed on the applicant in June 2009 as a result of misconduct and the proposed remedial action imposed in June 2009 given the ongoing concerns dating from 2002 about the quality of the applicant's performance, the respondent had determined to dismiss the applicant from the public service effective 15 December 2010. This letter was also "returned to sender". Leave to appeal 14The arguments of the parties on the question of the granting of leave to appeal were presented in written and oral submissions on the hearing of the application. 15The issue before the Commissioner was whether the termination of the applicant's employment was, in the circumstances, harsh or unreasonable. 16The Commissioner ultimately determined to dismiss the applicant's application for re-instatement or re-employment. She reached that decision on the basis of two findings. First, the Commissioner concluded that the process adopted by the respondent in the lead up to the applicant's termination was not procedurally unfair (at [273], [275] and [284]). Secondly, she concluded, even if there had been procedural unfairness, it would not have been sufficient to outweigh the seriousness of the applicant's misconduct (at [286] - [288] and [290]). 17The contentions advanced by Ms Lowson centrally came down to three propositions. First, that the Commissioner erred in her conclusion that the applicant's termination was not procedurally unfair. Secondly, that the Commissioner misconceived the nature of the applicant's misconduct and, as a result, erred in concluding that any procedural unfairness would have been outweighed by the seriousness of that misconduct. Thirdly, that the Commissioner failed to make findings in respect of the failure of the respondent to abide by the "Procedural Guidelines for Dealing with Misconduct as a Disciplinary Matter and the Taking of Disciplinary Action pursuant to Part 2.7, Division 2 of the Public Sector Employment and Management Act 2002 (NSW)" ("the Procedures"), representing appealable error for which leave to appeal ought to be granted. 18For reasons we shall elaborate upon below, we are of the view that, whilst there were elements of the applicant's submissions which raised issues in respect of certain findings made by the Commissioner at first instance, we do not consider that the matters raised constitute a proper basis for the granting of leave. We do not consider that the applicant has demonstrated error such as might invite appellate intervention, or warrant the grant of leave for the proper administration of justice. There is nothing about the issues raised which might call for determination as matters of general importance or which require resolution in the public interest. 19We shall expand. 20The first contention advanced by Ms Lowson, that the applicant's termination was procedurally unfair, was predicated upon several bases. First, it was submitted, the applicant had been denied procedural fairness in circumstances where the respondent was aware that the applicant had not received the correspondence of 19 March, 31 August and 15 December 2010 sent to him via registered post. This was evidenced by the fact that the correspondence of those dates was returned to the respondent unclaimed. 21Secondly, despite being aware that the applicant had not received the correspondence, and with the exception of the 19 July 2010 letter, the respondent did not endeavour to communicate with the applicant by alternative means to ensure he received what was important information in a disciplinary process. Further, the respondent failed to do so in circumstances where it was aware that other mediums, namely, telephone and email, were effective means of communicating with the applicant and alerting him to the existence of the registered mail. This was evidenced by the fact that the applicant had collected registered mail on one occasion, being the 19 July 2010 correspondence, after having received an email and telephone call about it from the respondent. 22Due to his non-receipt of that mail, in particular the letter of 31 August 2010 advising the applicant of the respondent's opinion that he had engaged in misconduct due to his non-attendance of the 4 August 2010 health assessment and its intention to consider disciplinary action, the applicant was denied the opportunity to participate in the disciplinary process. 23It was acknowledged by the Commissioner (at [284]) that the respondent's failure to make contact with the applicant via means alternative to registered mail could possibly have been viewed as resulting in a process which lacked procedural fairness for the applicant. However, the Commissioner went on to make the following finding (at [284]): ... Housing NSW had no way of knowing Mr Gonzales (as he had claimed) was not receiving their registered mail (with the exception of the July referral) and in the absence of any information provided by him to the contrary were entitled to believe that he had received such mail and was just not prepared to collect such mail hence its return. 24The Commissioner's finding was, strictly speaking, not correct. It is clear on the evidence (and agreed between the parties) that the registered mail (with the exception of the 19 July 2010 letter) had been returned to the respondent unclaimed and, therefore, the respondent was indeed aware that the applicant had not received their registered mail on three occasions. Nevertheless, we are of the view that the critical issue, in this respect, was the receipt or otherwise by the applicant of the notification slips sent by Australia Post advising him of the existence of the registered mail. 25In this respect, the Commissioner made the following finding (at [273]): Mr Gonzales maintained in his 14 April 2011 letter to Ms Gream that he had not received registered mail and that it "may have been never been delivered or mis-delivered." Frankly it stretches the bounds of credulity that out of four registered mail letters sent to him (the two referrals, the "show cause" letter and the dismissal letter) the only one delivered and collected (on his evidence) was the July mail about which he had received the email advice from Ms Ricaud enclosing Mr Allen's letter. Housing NSW should not have had to resort to sending emails to Mr Gonzales to advise him of such registered mail so as to ensure he would pick it up. I have no doubt that had Mr Allen's letter not been attached to Ms Ricaud's 30 July email then Mr Gonzales would not have collected that registered mail. 26In summary, it was the conclusion of the Commissioner that the applicant had, in fact, knowingly avoided the registered mail of the respondent. In the circumstances, the actions of the applicant were such that a finding of procedural unfairness against the respondent was not warranted. In so concluding, the Commissioner rejected the evidence of the applicant (being the only evidence advanced by him in relation to this question) that, although, during the relevant period, he had continued to receive his regular mail, he had not received any notice slips from Australia Post advising him of the registered post it held for him on the four occasions it was sent by the respondent. 27On balance, we are of the view that it was open for the Commissioner to reach the conclusion she did, with respect to the issue of procedural fairness, on the basis of the evidence which was before her. 28The second contention advanced by Ms Lowson, that the Commissioner erred in concluding that, even if there had been procedural unfairness, it would not have been sufficient to outweigh the seriousness of the applicant's misconduct, was advanced upon the basis of a submission that the Commissioner had misconceived the nature of the applicant's misconduct. 29It was submitted, correctly, in our view, that a necessary element of a failure to follow direction (being the misconduct alleged against the applicant) was that a person was aware of the direction having been given. With respect to the 19 March 2010 correspondence from the respondent directing the applicant to attend a health assessment scheduled for 14 April 2010, this correspondence was not received by the applicant (and was returned unclaimed to the respondent). The applicant's non-attendance of the 14 April appointment, therefore, could not be viewed as a failure to follow direction. It was submitted that, in such circumstances, the applicant's failure to attend the 4 August 2010 appointment (of which, having collected the registered mail of 19 July 2010, he was aware) was, then, effectively, a first offence. When properly weighed against the extent of the procedural unfairness suffered by the applicant, the misconduct of the applicant did not warrant his dismissal (particularly when the applicant's age, background, ill health and length of service are taken into account). 30The Commissioner found (at [288] and [290]) that, given the applicant's continued avoidance of returning to work in the Clerk Grade 1-2 position and his failure to make any attempt to contact or respond to the respondent combined with his failure to comply with the direction to attend the 4 August 2010 health assessment, the only penalty available to the respondent was dismissal. 31We are of the view, again, that the conclusion reached by the Commissioner, with respect to the issue of the applicant's misconduct and whether the penalty of dismissal was harsh or unreasonable in the circumstances, was reasonably open to her on the available evidence, particularly given our finding as to the first contention of the applicant regarding procedural fairness. 32The third contention advanced by Ms Lowson, namely, that the Commissioner failed to make findings in respect of the respondent's failure to abide by the Procedures (which Procedures it was required, by statute, to follow), is related to the misconduct issue. That contention was based upon the submission that there was no evidence that the respondent conducted an investigation into the alleged failure by the applicant to follow directions (that is, to attend the 4 August 2010 assessment), an investigation being a necessary first step to disciplinary action taking place. In relation to the Procedures, the Commissioner found the following (at [283]): In relation to Mr Gonzales' dismissal I consider that Housing NSW followed the procedures it was obliged to follow under the PSEM Act and thus no issue of procedural fairness arises per Antonokopoulos. 33Whilst the purported failure of the respondent to conduct an investigation into the applicant's misconduct would appear to be an issue of some significance, it was agreed between the parties that is was not an issue which was argued at first instance before Bishop C (notwithstanding her finding above) and, indeed, the Procedures were not in evidence before her. 34As a matter of principle, leave may be refused where, in the absence of changed circumstances, an applicant raises arguments or presses issues on the appeal which were not squarely raised at first instance: Reverend Knowles & Anglican Property Trust [1999] NSWIRComm 576; (1999) 95 IR 380 at 381 - 382. This is consistent with the line of authorities which dictate that, on appeal, unless exceptional circumstances exist, parties should be kept to the issues which they raised for determination at trial and precluded from making a case which had not been made, or which is inconsistent with the case which was made, at trial: InterCoast Refrigerated Transport Pty Ltd v Inspector Batty (WorkCover Authority of New South Wales) [2013] NSWIRComm 12. 35Having regard to those principles, in circumstances where it was not an issue which was raised below, leave to appeal should be refused with respect to the contention of the applicant that the Commissioner failed to make findings as to the respondent's compliance or otherwise with the Procedures. This is particularly so given the further consideration that the contention was reliant, essentially, upon factual considerations not resolved at first instance. 36Finally, and when considered overall in the light of the foregoing analysis, we do not perceive, from the submissions put on leave by the applicant, any matters of principle or law or in the public interest which would attract leave to appeal against the decision of the Commissioner. Having regard to these considerations, and in the absence of any feature of the appeal which might otherwise legitimately attract the grant of leave to appeal, we have decided to refuse leave to appeal and order accordingly. Orders 37We order that leave to appeal is refused. ********** 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: 01 March 2013