Brown v State of New South Wales (Department of Education and Communities) [2013] NSWIRComm 115

Industrial Relations Commission New South Wales Medium Neutral Citation: Brown v State of New South Wales (Department of Education and Communities) [2013] NSWIRComm 115 Hearing dates: 1, 2, 3 May 2013 and 3 June 2013, 13 August 2013, 11 November 2013 Decision date: 20 December 2013 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: The Court makes the following orders: (1) I declare the temporary employment contract between the applicant and the respondent that applied to the applicant's employment as at 17 April 2010 was an unfair contract (2) The contract referred to in order (1) hereof is varied to provide a term that in circumstances where the applicant had performed adequately in the position of AEO over a period of years, that fact will be given significant weight in assessing her application for permanent appointment in that position. (3) In connection with the contract as varied in accordance with order (2) hereof the respondent shall pay to the applicant an amount of 12 months' salary as compensation for the loss of income and employment opportunity associated with the failure to be appointed as a full-time Aboriginal Education Officer, which amount to be calculated at the current rate of that position. (4) In connection with the contract as varied in accordance with order (2) hereof the respondent shall pay to the applicant an amount of $5,000 in addition to that ordered in order (3) hereof as compensation for costs associated with the psychiatric injury. Catchwords: UNFAIR CONTRACT - Claim by Aboriginal Education Officer (AEO) of unfair contract - Whether contract was unfair due to alleged unfair interview process which resulted in the applicant failing to win a permanent position as an AEO after four years at a primary school as an AEO on a temporary basis - Whether contract was unfair in that the AEO was not paid as a qualified teacher in circumstances where she was performing teaching duties - Finding of unfairness regarding interview process - Money orders made - Compensation in respect of psychiatric injury in connection with unfair contract Legislation Cited: Education (School Administrative and Support Staff) Act 1987 Industrial Relations Act 1996 Institute of Teachers Act 2004 Institute of Teachers Regulation 2010 Cases Cited: Banque Commerciale SA in liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 Bowman v Ricegrowers Limited (formerly Ricegrowers' Co-operative Limited) [2007] NSWIRComm 204; (2007) 167 IR 325 Illawarra Breads Pty Ltd v Bakers Delight Holdings Ltd [200] NSWIRComm 223; (2007) 167 IR 393 King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 Sydney Water Corporation Ltd v Industrial Relations Commission of NSW [2004] NSWCA 436; (2004) 61 NSWLR 661 Category: Principal judgment Parties: Gaylee Maree Brown (Applicant) State of New South Wales (Department of Education and Communities) (Respondent) Representation: Dr J Berwick of counsel for the Applicant Ms E Brus of counsel for the Respondent and later Mr S Benson of counsel for the Respondent Craddock Murray Neumann for the Applicant Crown Solicitors Office for the Respondent File Number(s): IRC 312 of 2011