Industrial Relations Commission New South Wales Medium Neutral Citation: Charles v Northern New South Wales Local Health District [2016] NSWIRComm 8 Hearing dates: 27 May 2016 Date of orders: 28 July 2016 Decision date: 28 July 2016 Jurisdiction: Industrial Relations Commission Before: Walton J, President; Stanton C; Newall C Decision: The Full Bench makes the following orders: 1. Leave to appeal is granted. 2. The appeal is dismissed. Catchwords: LEAVE TO APPEAL – whether or not dismissal occurred question of jurisdictional fact – questions of jurisdiction to be identified and resolved in decisions – failure to identify whether or not dismissal occurred – error of law – leave to appeal granted APPEAL – proper approach to appeal – primacy to first instance decision making – first instance decision making to be supported – obligations on Commission to act quickly – concise decisions appropriate provided essential issues addressed EMPLOYMENT – casual employment – list of persons who might be offered casual employment not determinative of contract of employment – removal of name from a list of eligible casual employees not a dismissal – s 84 proceedings dismissed Legislation Cited: Civil Procedure Act 2005 Industrial Relations Act 1996 Public Interest Disclosures Act 1994 Workers Compensation Act 1987 Cases Cited: Antonakopoulos v State Bank of NSW (1999) 91 IR 385 Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 Charles v Northern New south Wales Local Health District [2016] NSWIRComm 1004 Hamod v State of New South Wales & Anor [2011] NSWCA 375 Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Master Education Services Pty Ltd v Ferfolia [2009] NSWIRComm 132 Port Macquarie Golf Club Limited v Stead (1996) 64 IR 53 Westfield Holdings v Adams [2001] NSWIRComm 293; (2001) 114 IR 241 Category: Principal judgment Parties: Alex Mervyn Charles (Applicant) Northern New south Wales Local Health District (Respondent) Representation: Counsel: Solicitors: Bartier Perry (Respondent) File Number(s): 2016/74725 Decision under appeal Court or tribunal: Industrial Relations Commission Jurisdiction: Industrial Relations Commission Citation: [2016] NSWIRComm 1004 Date of Decision: 17 February 2016 Before: Murphy C File Number(s): 2016/9002 (formerly IRC 228 of 2015) DECISION 1. This is an application for leave to appeal, and if leave is granted, an appeal against a decision of Murphy C in Charles v Northern New south Wales Local Health District [2016] NSWIRComm 1004 ('the impugned decision'). That was a decision in the context of an application brought by the appellant pursuant to s 84 of the Industrial Relations Act 1996 ('the Act'). 2. The impugned decision was handed down on 17 February 2016. The present application was made within the time prescribed by s 189 of the Act. Facts 1. The appellant had worked as a casual Hospital Assistant Grade 2 at Lismore Base Hospital on a number of occasions between March 2010 and July 2013. 2. In September 2011, the appellant made a public interest disclosure to the Independent Commission Against Corruption ('ICAC') in relation to a practice carried out by the hospital. ICAC treated the disclosure as falling within the terms of the Public Interest Disclosures Act 1994. 3. No adverse finding emerged from ICAC in relation to the practice. However, the appellant believed that he was subsequently, as an employee of the respondent, subjected to a campaign of bullying and harassment extending over 2012 and 2013. He did not work for the respondent after 29 July 2013, asserting unfitness due to a psychological injury. 4. On 25 August 2013, the appellant lodged a claim for workers' compensation. Liability was initially declined. On 16 July 2014, the appellant sought that the matter be determined by the Workers Compensation Commission ('WCC'). 5. On 26 November 2014, the WCC determined the matter in the appellant's favour. He was awarded weekly compensation payments with effect from 29 July 2013. 6. In 2013 and 2014, the respondent maintained, through the administrative organisation known as Healthshare, a list of approved persons who might be offered work as casual employees. In June 2014, the appellant's name was on that list, despite the fact that he had not worked since July 2013. 7. Healthshare from time to time applied the administrative practice of removing names of persons from that list if the person concerned had not worked a shift in the previous six months, as demonstrated by a computer-generated report. On 12 June 2014, Healthshare applied that practice to the approved casual employee list. The appellant's name was removed from the list; he had not worked for some 11 months. The appellant was not made aware of this at the time, noting he was not, in any event, available for work with the respondent at that time. 8. In early 2015, the appellant inquired about his employment status with the respondent. He was advised, by a letter dated 5 March 2015, that his name had been "separated" from the casual pool as he had not worked for a period in excess of six months. The letter went on to state that the appellant was "no longer an employee" of the respondent. 9. Following receipt of that advice the appellant brought a claim pursuant to s 84 of the Act. Murphy C dismissed the application in the impugned decision. It is that decision in relation to which leave to appeal is now sought. Arguments of parties 1. The appellant represented himself. He presented his case largely on the basis that he had been dismissed while an injured worker, in breach of s 248 of the Workers Compensation Act 1987, and that he had been victimised as a whistle-blower. He did not address in terms the Commission's jurisprudence concerning leave to appeal. However, the Commission, as any court, is not confined by the arguments presented to it, and there is an overriding obligation to ensure that a hearing is fair to a person who exercises the right to be a litigant in person: Hamod v State of New South Wales & Anor [2011] NSWCA 375 at [309]. We have, therefore, considered all bases on which the question of leave to appeal and the appeal itself might properly be determined, so long as those considerations may be reasonably derived from the appellant's case (in other words, we have not entered the field of argument per se). Principles on leave to appeal 1. We turn first to the question of leave to appeal. 2. The jurisprudence of the Commission concerning leave to appeal is well settled. It is nowhere more clearly set out than in the decision of the Full Bench in Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263 in which it was held, at [5]: The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188 (2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]. The decision at first instance 1. As we noted above, Murphy C dismissed the first instance application brought pursuant to s 84 of the Act. In so doing Murphy C held (at [23] of the impugned decision): "In this case the evidence discloses that the termination of the applicant's casual employment, even if it be regarded as a dismissal, was neither harsh, unreasonable nor unjust". 2. It is apparent that the question of whether or not there was a dismissal within the meaning of the Act was a live issue in the proceedings before Murphy C. 3. In the catchwords to the impugned decision, Murphy C noted as follows: "separation from casual pool – administrative process – no dismissal". It may appear from this that Murphy C proceeded on the basis that there was not in fact or law a dismissal. 4. However, headnotes and catchwords do not form part of a decision. Nowhere in the body of the impugned decision is it possible to identify a point at which Murphy C determined there was or was not a dismissal, nor his reasons for so determining. 5. The jurisprudential gateway to the Commission hearing and determining an application brought pursuant to Ch 2 of Pt 6 of the Act is that there has been a dismissal of an employee. The words of ss 83 and 84 make that abundantly clear. 6. As the Commission cannot exercise any of its relevant powers unless there has been a dismissal, and must not exercise those powers if there has not been a dismissal, it is fundamental to the Commission's jurisprudence that in any proceedings pursuant to Ch 2 of Pt 6 of the Act the Commission identify whether there has or has not been a dismissal. In many cases, a resolution of that question will be readily reached because there is common ground. This is not such a case. 7. We cannot see, on the face of the impugned decision, that the necessary determination of whether or not a dismissal occurred was made. In this matter, such a finding is not to be discovered by inference. A failure to determine in terms whether a dismissal has occurred in proceedings pursuant to Ch 2 of Pt 6 of the Act, when that determination is necessary to establish whether jurisdiction lies, constitutes, on its face, an error of law. 8. We accept that first instance decision making under the Act, particularly given the obligations placed on the Commission under s 162(2)(a) read together with ss 56 to 58 of the Civil Procedure Act 2005, is properly exercised quickly. That is arguably more so in relation to applications under s 84 where delay in determining a matter may well act to restrict the exercise of the Commission's discretion in relation to remedy. 9. As a general approach, first instance decisions which are rendered promptly and provide adequate reasons, even if every single aspect of the matter to be determined is not canvassed in detail, are preferable to lengthy decisions that take a considerable time to produce. And it is not conducive to quick and effective first instance decision making and the satisfaction of the Commission's obligations under the Act to conduct an examination of decisions on appeal which requires from a first instance decision maker an exhaustive attention to every argument raised in the proceedings. 10. It is also to be remembered that, in the context of an appeal, significant weight must be given to the decision of the trier of first instance when approaching both findings of fact and the exercise of a discretion: Port Macquarie Golf Club Limited v Stead (1996) 64 IR 53 at 59; Westfield Holdings v Adams [2001] NSWIRComm 293; (2001) 114 IR 241 at [73]; Master Education Services Pty Ltd v Ferfolia [2009] NSWIRComm 132 at [26]. As was observed by the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State." 11. However, the identification, and then resolution, of jurisdictional issues, including matters of jurisdictional fact, are necessary parts of any first instance decision. They are obligations which cannot be overlooked. 12. Here, there has been, in our view, a failure to determine a fundamental jurisdictional issue, that is, whether there was or was not a dismissal. Such a failure constitutes an error of law. Accordingly, the appeal can properly be said to raise a substantial issue of law, warranting the grant of leave to appeal: Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380. We have determined to grant leave to appeal. 13. Determination of the appeal 14. We turn first to the jurisdictional question we identify above: was there a dismissal? If there was not in fact a dismissal, there is patently no power to make any order under s 89. 15. The event said to constitute the dismissal was the removal of the appellant's name by the respondent from a list of employees who were eligible to be offered casual work. The existence of the list, and the appearance of an individual person's name on the list did not create or guarantee any offer of work by the respondent, nor impose any obligation to work on the persons whose names were on the list. A person on the list might or might not be offered casual work. They might or might not accept that work if it were offered. 16. The appellant's name was taken off the list at a time when he had not worked for the respondent for 11 months and at a time when he was not ready, willing and able to perform work for the respondent and it was not known when, if ever, he would be. The appellant could not at that point have been offered nor could he have accepted any casual shifts at Lismore Base Hospital. 17. The employer was wrong to state in its letter of 5 March 2015 that the appellant "was no longer an employee" as a consequence of his name having been taken off the list. In fact, that administrative action had no effect upon the employment relationship at all. The appellant remained, as he remains now, a person who has formerly undertaken casual employment for the respondent and might be offered further casual employment if he is fit, and wishes, to perform it. There was nothing in the nature or continuity of his employment to suggest otherwise. 18. On the documentary material before Murphy C (which the Full Bench received in lieu of an appeal book proper) the appellant remains unfit to return to his former employment at Lismore Base Hospital even now. He may or may not wish to work casual shifts for the respondent at a place other than at Lismore Base Hospital. That is a matter for him, as it always was. The respondent may or may not consider him for other casual work at other locations. That is a matter for the respondent, just as it was before the removal of the appellant's name from the list in 2014. If the appellant advises the respondent that he is now fit to work at other locations and wishes to be considered for work at other locations, we assume that the respondent would restore his name to the list of employees eligible to be offered casual work at those locations. That does not, as it did not before, guarantee any work being offered or accepted. 19. But the removal of his name from the list had no effect on the appellant's employment status. There has been no dismissal of the appellant within the meaning of that expression in the Act. 20. The finding by the WCC that the appellant suffered an injury and that he was entitled to payments has, of course, no bearing on whether or not a contract of employment was or remained on foot. 21. The respondent advanced an argument that the removal of the appellant's name from the list was not its doing, but that of Healthshare, and that the respondent could not be accountable for Healthshare's actions. The way in which this matter has fallen to be determined means that we do not have to rule on this point, but we observe that this argument cannot be sustained. 22. If an employer contracts with a third party to provide, for example, payroll services in relation to its employees, that does not affect the identity of the parties to the employment relationship into which the employer has entered. So far as the third party may act to carry out functions an employer has designated to it in relation to any employee, it is taken to be acting as agent for the employer: Bonette v Woolworths Ltd (1937) 37 SR (NSW) 142 at 150. Any action taken by Healthshare within the scope of functions the employer had delegated or contracted it to undertake remained the action of the employer. Even more importantly for the purposes of the Act, the employer was required to be cognisant of the circumstances affecting its employees. An active disregard of unfair treatment offered by a third party contracted by an employer to perform services with respect to the employer's employees merely aggravates any unfairness for the purposes of the Act. For example, in this case, in the case of dismissal the respondent would have needed to be particularly concerned about the status of the appellant under the Public Interest Disclosures Act 1994. 23. Summary and disposition of the appeal 24. As we have found that the decision under appeal contained an error of law we are bound, in our view, to grant leave to appeal. 25. Given our finding as to there being no dismissal for the purposes of the Act, however, the determination of the appeal could lead to no other order than that made by Murphy C in the disposition of the first instance proceedings. We have decided, therefore, to not uphold the appeal and dismiss the proceedings. 26. Orders 27. The Full Bench makes the following orders: 28. 1. Leave to appeal is granted. 29. 2. The appeal is dismissed. ********** 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: 28 July 2016