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. Brief Statement of Issues 10The Applicant was first employed as a teacher by the Department at Granville South High School. There is some dispute as to whether this was from 1991 or 1992. The application states that she commenced employment at Granville South High School in April 1991. 11On 28 January 2011 the Applicant was appointed as a science teacher at Cheltenham Girls High School. 12Informal support and a formal Teacher Improvement Program have led the Department to conclude that the Applicant lacks sufficient capacity as a teacher for her employment to continue. 13The Applicant contends: 1.1 The Applicant first commenced employment with the Department of Education ('DEC') in April1991 as a junior science teacher and senior computing teacher ('ICT') at Granville South High School. She worked at Granville South High School until she volunteered for a nominated transfer to Greystanes High School in 1992. 1.2 The Applicant worked at Greystanes High School from 1992 to 1996. In 1996 she moved to Baulkham Hills High School. The Applicant worked at Baulkham Hills High School for 9 years, until 2004 as an ICT teacher. 1.3 In 2004 she was given a transfer to Epping Boys High School as an ICT teacher. 1.4 The Applicant worked at Epping Boys High School from 2004 until 2010. 1.5 The Applicant commenced employment at Cheltenham Girls High School on the first day of school term in 2011. 1.6 The Applicant was deployed as a Science teacher at Cheltenham Girls despite not having taught as a science teacher for over 20 years. The DEC accredited the applicant as a science teacher although she had not taught for such a significant period of time and the skills required for the role had substantially changed. The applicant filled out a form on the Department's website that clearly indicated that she did not want to teach these subjects. Despite this she was deployed to teach these subjects. The Applicant took all steps reasonably available to her to make this known, both to the school and to the DEC, but to no avail. 1.7 Given that the applicant had not taught science for 20 years, she was not abreast of the teaching methods and the significant changes that had occurred over the last two decades since she had undertaken her studies. 1.8 The DEC failed to provide her with adequate training, support and mentoring to enable her to meet retrain and regain the knowledge that she had lost. 14The Department contends that the Applicant is properly accredited but not capable. 15There is no evidence of complaint or concern with the Applicant's ability as a Computer Studies Teacher at Epping Boys High where she taught that subject from 2004 to 2010. 16The Applicant's length of service, her employment performance, which appears sound until the move to Cheltenham in 2011, the effect of the workplace injury, the integrity of the informal counselling and the Teacher Improvement Program are all issues between the parties which descend to a question of whether the Applicant is incompetent or the Department has unfairly put her in an impossible situation. 17I consider that the Applicant has sufficient prospect of success to retain the status quo pending conclusion. Balance of Convenience 18The Applicant is the principal breadwinner in her family, which consists of husband, son, who has some casual work, daughter and granddaughter; all of whom live with and depend upon her. 19The Applicant has two investment properties which are negatively geared, which she deposed are part of her retirement planning. 20The Applicant deposed that if she was dismissed she would not be able to meet her financial obligations, resulting in significant loss if she were forced to sell one or both of the properties. 21The Applicant has had extensive absences from work in the past three years, working for only limited periods. In his submission Mr Britt detailed the number of days worked over that period as: (a)2011 for 37 days; (b)2012 for 62 days (c)2013 for 24 days. 22The Applicant's evidence is that the substantial periods of absence are a result of workplace injury for which she received workers compensation payment. 23Mr Britt submitted that if the Department was required to retain the Applicant in employment, there would be considerable public expense for no return as there is no work for her. 24Mr Britt relied upon the evidence of Mr Bennett, who deposed: 35. lf the Commission was to grant the Applicant's application the Applicant would remain on alternative duties at DEC Regional Office at Quakers Hill. I am informed by Mr Tim McCallum Director Public School NSW Dural Principal Network and verily believe that: a. There is no set work for the Applicant; b. The Applicant has not received any work from Cheltenham Girls High School; c. There are no administrative duties for her to perform; d. The Applicant has been allowed time to respond to the improvement program; e. The Applicant will not be returned to teaching in the class room; f. There is no meaningful work for the Applicant to perform. 25Mr Slevin submitted that this evidence is not conclusive of the Department's inability to provide non-teaching duties to the Applicant, as it is a narrow enquiry to a single Director. 26Mr Britt put an alternative submission based on the Judgment in Wojtulewicz that if an interlocutory order was made, it should require the Applicant to take the period of long service leave she holds, that being one month and fifteen days. 27This was rebutted by Mr Slevin who questioned whether the circumstances of this case fit with that relied upon by Mr Britt. 28Mr Slevin further submitted that the taking of long service leave was a notion that had not been put to the Applicant and that she would consider it on request. 29The parties accept that, having regard to the resources of the Commission, conclusion of the substantive matter may take up to six months. This is unfortunate and, I observe, not a situation which is the responsibility of either of the parties. Consideration 30There is no doubt that termination of employment would visit significant financial inconvenience and loss upon the Applicant which could not be remedied in any form by Orders of the Commission. 31I am unconvinced that the Department could not find any clerical or administrative duties for the Applicant. The evidence is second hand, the Director General was not available for cross examination. The Department is a large employer with a variety of functions to perform. 32The Department has a capacity to mitigate the cost of continuing the Applicant in employment pending the outcome of the substantive proceedings. 33I have considered the judgment in Wotjulewicz relied upon by Mr Britt in his alternative submission and consider that this matter is distinguished from it, particularly in that the Applicant in Wotjulewicz had a credit of 88 days of annual leave, 131 days of sick leave, and just under 7 months of long service leave; as well as 78 days of Training Education and Study Leave. 34The Applicant in this matter has only 1 month and 15 days long service leave. I will refrain from making an Order that the Applicant take this leave, however, encourage her to properly consider any request by the Department to take part or all of it. 35The Applicant deposed that she has expended some $14,000 in legal expenses to this point, and if not employed would be unable to finance proceedings to conclusion. 36Mr Britt challenged this contention in cross examination, questioning both the current expenditure and the notion that the Applicant needed to be employed by the Department so she could continue legal proceedings against it. 37I do not give the costs of litigation any weight in my consideration of the application for an Interlocutory Order. 38I conclude that the harm and inconvenience to the Department is far outweighed by the damage that would be done to the Applicant if the Order was not made. 39The file is returned to the President for allocation to a member for disposition of the substantive application. ORDER (1)The Department of Education & Communities is ordered to continue Ms Sangeeta Gulati in employment pending the conclusion of proceedings in this matter. I so Order. R W Harrison Deputy President DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 June 2014