Gulati v Department of Education & Communities [2014] NSWIRComm 30

Industrial Relations Commission New South Wales Medium Neutral Citation: Gulati v Department of Education & Communities [2014] NSWIRComm 30 Hearing dates: 6 June 2014 Decision date: 12 June 2014 Before: Harrison DP Decision: (1) The Department of Education & Communities is ordered to continue Ms Sangeeta Gulati in employment pending the conclusion of proceedings in this matter. Catchwords: INTERLOCUTORY PROCEEDINGS - Notice of Motion - Threat of Unfair Dismissal - Interim Order to continue employment pending completion of substantive application - Prospect of success and balance of convenience favour the Order sought. Order Issued continuing applicant in employment pending conclusion. Matter referred to President for allocation of substantive application. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229 Category: Interlocutory applications Parties: Sangeeta Gulati (Applicant) Department of Education & Communities (Respondent) Representation: Mr A Slevin (Applicant) Mr A Britt (Respondent) Maurice Blackburn (Applicant) File Number(s): IRC 367 of 2014

DECISION 1The substantive application in this matter is an application for relief from threatened dismissal on behalf of Ms Sangeeta Gulati. 2By Notice of Motion filed with the substantive application, the Applicant seeks interlocutory orders preventing the Department of Education & Communities (the Department) from terminating her employment pending the outcome of the substantive application. 3The Notice of Motion was first subject to proceedings on 12 May 2014, resulting in agreement that employment would be continued on a Without Prejudice basis pending further discussion between the parties and the Hearing of the Notice of Motion, deferred to 6 June 2014. 4On Hearing of the Notice of Motion on 6 June 2014 it was evident that there had not been any resolution and the Notice was pressed by the Applicant. 5Mr A Slevin of counsel appeared on behalf of and brought evidence from the Applicant. 6Mr A Britt of counsel appeared on behalf of the Department and brought evidence from Mr W J Bennett, a legal Officer with the Employee Performance and Conduct Directorate of the Department. 7There is no disagreement between the parties that section 89 (7) of the Industrial Relations Act 1996 ("the Act") affords jurisdiction to make the Orders sought. 8There is no disagreement between the parties as to the principles to be applied, which are conveniently discussed in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33, relied upon by Mr Slevin; and ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229. 9Succinctly put, the principles are whether there is sufficient likelihood of success to preserve the status quo pending conclusion of the substantive proceedings, and the balance of convenience.