Greig v Director General, Department of Education and Communities [2014] NSWIRComm 26

Industrial Relations Commission New South Wales Medium Neutral Citation: Greig v Director General, Department of Education and Communities [2014] NSWIRComm 26 Hearing dates: 15 April 2014 Decision date: 27 May 2014 Jurisdiction: Industrial Court of NSW Before: Boland AJ Decision: The Court makes the following orders: (1) The appellant's notice of motion is dismissed. (2) Costs are reserved. Catchwords: APPEAL - Application by appellant to admit new evidence on appeal - Appeal confined to whether error at first instance in relation to a decision on a question of law - No relevant connection between proposed new evidence and decision on a question of law - Application dismissed Legislation Cited: Industrial Relations Act 1996 Industrial Relations Amendment (Industrial Courts) Act 2013 Transport Appeals Board Act 1980 Teaching Service Act 1980 Cases Cited: Greig v Director-General, Department of Education and Communities [2013] NSWIRComm 1025 Rail Corporation New South Wales v Brown [2012] NSWIRComm 14 Rail Corporation of New South Wales v Brown [2012] NSWCA 296 Category: Interlocutory applications Parties: Ian Greig (Appellant) Director General, Department of Education and Communities (Respondent) Representation: A Britt of counsel (Respondent) Ian Greig (Appellant In Person) J Bennett (Respondent) File Number(s): IRC 1025 of 2013

INTERLOCUTORY Judgment 1Pursuant to s 197B of the Industrial Relations Act 1996 ("the IR Act") Ian Greig has sought leave to appeal and, if leave is granted, to appeal from a decision and orders of Commissioner P Newall given on 20 November 2013 in Greig v Director-General, Department of Education and Communities [2013] NSWIRComm 1025. 2The matter before the Commissioner was an appeal brought pursuant to s 98 of the IR Act by Mr Greig against the decision of the Director-General, Department of Education and Communities, to reduce him in rank from Head Teacher to Teacher. Mr Greig also sought to appeal against the decision of the Staffing Service Unit of the Department to transfer him from Monaro High School to another school. 3 In his decision Newall C concluded as follows: [177] I have found that the Department has made out at the appropriate level of proof some matters which establish that Mr Greig has committed misconduct within the meaning of the Teaching Service Act. I have found that the punishment imposed on Mr Greig, considered against those matters I have found to be established, is not harsh or inappropriate. [178] Accordingly, the order appropriate to be made in this matter is that the appeal is dismissed. [179] I so order. 4In relation to the transfer, Newall C found: [165] It is apparent that a transfer to another school is not a disciplinary matter and hence falls outside the definition of an 'appealable decision' in s 97(1) of the Teaching Service Act [sic - Industrial Relations Act]. [166] All that being so, the Commission is not able to make any order concerning the fact of Mr Greig's transfer. It is ultimately a matter for the Department where it chooses to use a classroom teacher of Mr Greig's calibre. 5By notice of motion filed on 14 April 2014, Mr Greig sought leave "to admit new evidence" on the appeal. The respondent opposed the motion. This interlocutory judgment deals with that motion. 6The grounds in support of Mr Grieg's motion were that: The new evidence helps to understand the position of the appellant in seeking leave to appeal. It also provides important information for the court and illuminates aspects of the process of transferring the appellant. It also provides medical evidence on the effect on the appellant It provides evidence of how the appeallant (sic) was hindered in preparing his case by not having access to emails that the Respondent had in spite of a number of subpoeanas (sic) being served. The Teachers Hand book is an official DEC document. It is referenced in the hearing by the appellant. A page of the handbook is provided. 7The motion was supported by an affidavit of Mr Greig attached to which were the six documents the appellant wished to have the Court receive as new evidence. Attachment A was a letter from Mark Anderson, Director, Staffing Services, to Mr Greig dated 27 February 2013. The letter was titled "Appointment Notice - Transfer" and advised Mr Greig he had been demoted "to the level of classroom teacher and appointed to Karabar High School." 8Attachment B was a series of emails concerning Mr Greig's appointment to a "Distance Education School". Mr Greig queried why such an appointment was made given he is a Drama and English classroom teacher. Attachment C is a letter to the Acting Principal of Karabar High School from Dr Egan dated 10 February 2014. The letter indicates Mr Greig is being treated for clinical depression and that "it would be a long term risk to Ian's mental health to continue in a non face-to-face role." Attachment D is an email from Mr John Bennett, Legal Officer for the respondent, to Mr Greig dated 3 July 2013. The email is apparently a response to a summons for production explaining why certain documents were not produced. 9Attachment E purports to be "a document provided to the IRC by Mr Bennett on behalf of DEC and purports to be a quote to restore emails." Mr Greig had sought production of certain emails, but DEC had indicated that to provide them would cost $167,000 (emails were on backup tapes) and, in any event, Mr Greig was on a fishing expedition. 10Attachment F consisted of three pages from the Teachers Handbook regarding "Professional Responsibilities of Teachers" and the "Code of Conduct".