Richard Scott Balcomb and Director- General of Education and Communities [2013] NSWIRComm 1011

Industrial Relations Commission New South Wales Medium Neutral Citation: Richard Scott Balcomb and Director- General of Education and Communities [2013] NSWIRComm 1011 Hearing dates: 05 October 2012; Written Submissions 23.11.2012 Decision date: 26 August 2013 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Matter dismissed for want of jurisdiction; Alternatively, matter dismissed for want of prosecution; Leave reserved to Respondent to pursue its application for costs. Catchwords: Unfair Dismissal application; Jurisdictional issue - applicant must satisfy the Commission that, at the time he filed his application, he had been dismissed or was under threat of dismissal; Applicant derelict in pursuing the claim; Legislation Cited: Industrial Relations Act 1996 Industrial Relations Commission Rules 2009 Public Service Employment and Management Act 2002 Teaching Service Act 1980 Civil Procedure Act NSW (2005) Education Legislation Amendment (Staff) Act 2006 Cases Cited: Hill v Director-General of Education (1998) 85 IR 201; Baker v Australian Workers' Union [2005] NSWIRComm 1225); Lucic v Nolan (1982) 45 ALR 411; Aon Risk Services Australia Ltd Australian National University [2009] HCA 27; (2009) 258 ALR 14 Category: Principal judgment Parties: Richard Scott Balcomb, unrepresented Representation: Ms E James (Respondent) File Number(s): IRC 2025 of 2009

DECISION

Background 1Mr Richard Scott Balcomb (the Applicant) commenced full-time employment with the Respondent, the Department of Education and Communities (DEC) as a Primary School Teacher in 1991 at Tuggerah Public School teaching English. His employment was regulated by the provisions of the Teaching Service Act 1980 (the "TS Act"). 2In 2001, the Applicant transferred to Brooke Avenue Public School (BAPS) and he remained employed at that School until his termination. 3On 12 August 2009, the Principal of BAPS, Ms Wellham, identified problems with the Applicant's work performance. A meeting was held between the Principal and the Applicant and his support person during which the Applicant was invited to participate in an informal support program for a period of four weeks. 4The Applicant declined to participate and sought an independent review. The review urged the Applicant to participate in the informal program. Once again he declined the offer. 5The Principal resolved that the Applicant would be required to participate in a formal Teacher Improvement Program (TIP). The Applicant was invited to attend a meeting to discuss the program. He refused to attend despite the meeting being rescheduled on a number of occasions. 6He was put on notice that his failure to participate may lead to disciplinary action being taken against him. 7In the interim, the issues became further complicated by the fact that specific Child Protection allegations were made against the Applicant of which he was advised on 19 October 2009. He was later advised, on 15 February 2010, that the investigation had concluded in his favour and no further action was to be taken in that regard. 8The Applicant lodged a s 84 Unfair Dismissal Application on 17 December 2009. At that stage, he was still employed and was receiving his full pay. 9Conciliation attempts before Bishop C on 19 January 2010 proved unsuccessful and the matter was stood over generally on the basis that no dismissal or threat of dismissal was found. 10The Applicant commenced the school term on 27 January 2010 engaged on non-teaching duties, albeit on full pay. 11On 15 February 2010 Kevin Schipp, Manager-Staff Efficiency and Conduct Directorate, forwarded correspondence to the Applicant notifying him of six allegations regarding his performance/conduct and inviting him to respond to the allegations. 12On 16 April 2010, the Applicant wrote to the Independent Commission against Corruption (ICAC) complaining of corrupt conduct by the Respondent in its attempt to "crush" his career as a teacher. He received a response, dated 18 May 2010, which advised that, in the absence of any evidence supporting his allegations of corrupt conduct, the ICAC would not be investigating his complaint. 13The Applicant wrote to ICAC on two further occasions providing further information. Once again, ICAC responded that the information did not support the allegation that the Respondent's actions stemmed from a corrupt motive or corrupt conduct and declined to investigate the claim any further. 14Correspondence was forwarded to the Applicant from the Respondent's Solicitors dated 28 May 2010 advising that although the application before the Commission had been stood over generally, the proceedings were still current. 15The Applicant responded to the Respondent's legal representatives on 3 June 2010. 16Ms Jane Thorpe, Director Employee Performance and Conduct (EPAC), wrote to the Applicant on 6 August 2010 to advise that the six allegations of misconduct had been substantiated. He was provided with an opportunity, prior to a recommendation being made to the Deputy Director-General, to show cause why his employment should not be terminated 17Between August 2009 and 31 August 2010, the Applicant remained employed as an officer of the Teaching Service and continued to receive full salary payments and continued to accrue his leave entitlements including during the school holidays (December 2009 - January 2010). between September and December 2009 and remained employed and on full pay during the school holidays between December 2009 and January 2010. 18On 31 August 2010 the Applicant was advised that his employment was terminated effective 1 September 2010. 19The Applicant wrote to the Industrial Relations Commission a month later, on 1 October 2010, to advise that he intended to pursue his complaints to ICAC and also to pursue his WorkCover claim prior to asking for his application to be restored to the list. 20The Applicant forwarded lengthy correspondence to ICAC on 9 November 2010 in an effort to overturn the previous finding. On 19 November 2010, ICAC confirmed its decision not to investigate his allegations. 21The Applicant wrote to the NSW Ombudsman on 5 September 2011 complaining about the events that had led up to his dismissal. In a response dated 3 November 2011, the Applicant was advised that the NSW Ombudsman had no jurisdiction to act on his complaint. 22That reply was not acceptable to the Applicant and he wrote once again on 8 December 2011 seeking a reversal of that finding. The NSW Ombudsman wrote back to the Applicant on 7 February 2012 confirming its previous decision not to act on his complaint. 23On 4 May 2012 the Applicant wrote to the Industrial Registrar seeking to reactivate his application. 24The matter was re-listed for Mention/Directions Hearing before Bishop C on 18 June 2012. The Respondent submitted that the matter should be set down for hearing of the threshold issues. Bishop C recommended that the Applicant discontinue the present proceedings and lodge a fresh application. 25The matter was re-listed for further Mention/Directions Hearing on 13 July 2012 at which time the Applicant informed the Commission that he would not be discontinuing the present proceedings nor would he be lodging a fresh application. Standard directions were issued and the matter was set down for hearing on the threshold issues. 26The threshold issues are twofold - firstly, the jurisdictional issue. The Respondent argued that, at the time that the proceedings were initiated by the Applicant, he was not under threat of dismissal. He was ready, willing and able to work and was, in fact, getting paid. In addition, there were no reasonable grounds for thinking that he was going to be dismissed. He was eventually dismissed on 31 August 2010 (a long period of time after the filing of the claim) following the completion of a statute-based disciplinary process that commenced on 15 February 2010. Secondly, the want of prosecution issue. The Respondent argued that there was an inordinate delay of about two and half years on the part of the Applicant in prosecuting his case.