Greg Roseman and Director General of the Department of Attorney General and Justice through his delegate the Chief Executive of Juvenile Justice NSW [2013] NSWIRComm 1016

Industrial Relations Commission New South Wales Medium Neutral Citation: Greg Roseman and Director General of the Department of Attorney General and Justice through his delegate the Chief Executive of Juvenile Justice NSW [2013] NSWIRComm 1016 Hearing dates: 12 September 2013 Decision date: 12 September 2013 Jurisdiction: Industrial Relations Commission Before: Tabbaa C AM Decision: Out of Time. Claim dismissed. Catchwords: ITAP Workplace Review; Applicant scored lower than acceptable standard; Alleged Unfair Dismissal; Anti-Discrimination Board complaint; Out of time Legislation Cited: Industrial Relations Act 1996 Anti-Discrimination Act 1997 (NSW) Category: Principal judgment Parties: Greg Roseman (Applicant) Unrepresented Representation: Ms E Brus, Counsel (Respondent) Ms A Cain (Juvenile Justice) File Number(s): IRC 450 of 2013

DECISION

Background 1Mr Greg Roseman, the Applicant, was employed by the Director General of the Department of Attorney General and Justice through his delegate the Chief Executive of Juvenile Justice from June 2008 until his dismissal on 21 February 2013. 2He was employed in the capacity of casual night shift Youth Officer pursuant to the terms and conditions of the Crown Employees (Public Service Conditions of Employment) Award 2009. He was offered hours at both Cobham and Emu Plains Juvenile Justice Centre. 3On 2 July 2012 the Applicant lodged a complaint pursuant to the Anti-Discrimination Act 1997 (NSW) with the Anti-Discrimination Board of NSW (the ADB) alleging that he had been discriminated against by the Respondent on the grounds of age and disability by not being provided with a full-time position. The Applicant would have been just short of 56 years of age at the time and suffered from arthritis. 4On 27 August 2012, the ADB received a further complaint from the Applicant alleging that he had been victimised for having complained lodged the first complaint with that Board by not being provided with shifts. 5During the period 6 September 2012 to 14 November 2012, consultation was undertaken by the Respondent on a draft policy which led to the introduction of the Guidelines for the Management of Casual Youth Officers in Juvenile Justice Centres (the Guidelines). The Guidelines provided for quarterly reviews of casual employees. 6On 11 October 2012, the Applicant lodged his third complaint with the ADB regarding, what appears to be, the results he anticipated to receive from the quarterly reviews. 7Ms Anita Cain, Employment Relations Officer, responded to and attended the conciliation conferences convened by the ADB in relation to those three complaints. No further correspondence was received from the ADB following those responses and conferences. It can only be assumed that the Board was satisfied that the allegations had not been substantiated given the time lapse. 8The first review, conducted in accordance with those Guidelines, was held on 2 November 2012. The Applicant performed poorly. He achieved a score of 20 out of a total of 50 points and received "Not satisfactory" results in five criteria. A meeting was held between Mr Rob Ferguson, Assistant Manager (Generalist) Cobham JJC, Kevin Dowse, Assistant Manager, and Mr Roseman during which the Managers discussed with the Applicant the results, the general areas of concern, and the process of the Guidelines to ensure that he, as a casual, understood the new policy and the implications of not reaching a better outcome. Mr Roseman refused to sign the Casual Performance Review Interview Outcome Report. 9A second review was conducted on 7 February 2013. Once again, Mr Roseman was among a number of casuals who did not meet the minimum requirements. A number of recommendations were approved by Mr Gary Head, Manager Learning and Development, on 12 February 2013 to terminate the services of casual employees who had failed the review, including the Applicant. 10Mr Roseman was not be able advised of his termination, as he was absent from work, until 21 February 2013. He did not lodge his section 84 claim until 30 May 2013 - which meant that his claim was some 77 days out of time. 11Conciliation proceedings before Newall C failed to settle the claim and standard directions were issued. 12It is necessary, given the manner in which the claim has been pursued, to set out the contents, in part, of the Standard Directions issued to the parties on 28 June 2013: The applicant is to file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 19 July 2013; The respondent is to file and serve all written statements to be relied upon for each witness together with any other relevant documentation by 9 August 2013; The applicant is to file and serve any reply to the respondent's documents by 16 August 2013; In the absence of any period of reasonable notice being fixed by the Commission, cross examination of a witness shall not be allowed unless, at least 7 days prior to the hearing, notice has been given to the opposing party that a witness is required for cross-examination. 13The matter was listed for a 2-day hearing commencing on 12 September 2013. 14On 24 July 2013, the Applicant filed a 4.5 page hand-written letter dated 17 July 2013 and addressed to the Respondent to which was attached a reference from a fellow employee and proof of posting from Australia Post. 15On 7 August 2013, a formal request was made on behalf of the Respondent to the Acting Registrar for a 2-week extension of time to file its evidence "due to the difficulty in clarifying Mr Roseman's claim". The extension was granted to 13 August 2013 and the Applicant's reply was delayed to 6 September 2013. 16Despite the fact that there was no obligation on the Respondent to do so, correspondence was forwarded to the Applicant, dated 3 September 2013, by Express Post asking whether he wished to cross-examine any of the Respondent's witnesses. No response was received from the Applicant. 17Once again, on 9 September 2013, the Respondent wrote to the Applicant asking him to advise by no later than 3 pm on 11 September 2013 if he wished to cross-examine their three witnesses. No response was received from the Applicant. 18A telephone call was made to the Applicant on 11 September 2013, after the deadline had passed. The Applicant stated that he had not received the correspondence. He did not indicate that he wished the witnesses to be available for cross-examination.