Industrial Relations Commission New South Wales Medium Neutral Citation: Grant Johnson and Department of Industry (On Behalf of the Secretary of Department of Industry) [2017] NSWIRComm 1067 Hearing dates: 19, 20, 21 September and 9 October 2017 Date of orders: 27 October 2017 Decision date: 27 October 2017 Jurisdiction: Industrial Relations Commission Before: Commissioner Seymour Decision: Application pursuant to s.84 upheld. Compensation ordered Catchwords: Unfair dismissal - termination of temporary employment – reason for termination - termination procedurally unfair Remedy - reinstatement or re-employment not sought - compensation ordered - factors considered in award of compensation Legislation Cited: Government Sector Employment Act 2013 ss 47, 68 Government Sector Employment (General) Rules 2014 rr 14, 35, 36 Industrial Relations Act 1996 ss 84, 88, 89 Cases Cited: Bankstown City Council v Paris (1999) 93 IR 209 Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 Director-General of Education v Suttling (1987) 162 CLR 427 Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 100 McGinn v Secretary, Family and Community Services [2017] NSW IRComm 1039 Category: Principal judgment Parties: Grant Johnson (Applicant) Department of Industry (On Behalf of the Secretary of Department of Industry) (Respondent) Representation: Solicitors: Gorval Lynch - Applicant Thomson Geer - Respondent File Number(s): 2017/178885 DECISION 1. This is an application under section 84 of the Industrial Relations Act 1996 ("the Act") in which it is alleged that Mr Grant Johnson ("Mr Johnson" or "the applicant") has been dismissed unfairly by the Department of Industry ("the Department" or "the respondent"). 2. Mr Johnson was represented by Mr Lynch who called Mr Johnson to give evidence. The Department was represented by Mr Corlett who called the following employees of the Department to give evidence: 1. Ms Melinda Whiteley - Senior Advisor, People, Learning and Culture; 2. Ms Monica Morona - Director, Intergovernmental and Strategic Stakeholder Relations; 3. Ms Kristin Morris - Director, Water Reform and Coordination; and 4. Mr Nicholas Cook - Director, Water Programs and Performance. 1. All witnesses were cross-examined. After the close of evidence which was given over three days the matter was listed for a further day of submissions. The Applicant handed up written submissions and both parties made oral submissions. I have had regard to all of the evidence and submissions in making my decision. Background 1. Mr Johnson was employed by the Department within DPI Water as a Commonwealth Program Co-ordinator, a Grade 11/12 position which was retitled shortly after he commenced to Manager, Commonwealth Strategic Programs ("the Commonwealth Programs Position"). Mr Johnson was interviewed on 5 October 2016 by Mr Cook and Ms Morona and commenced employment on 7 November 2016. 2. Initially Mr Johnson performed work co-ordinating the three project leads of a program known as Sustaining the Basin. His manager was Mr Cook. Mr Johnson undertook this work from 7 November 2016 until early April 2017, when he commenced working on the Snowy Water Licence Review project with Ms Morris and Ms Morona. The circumstances surrounding this change are discussed further in these reasons. 3. On 22 May 2017, upon Mr Johnson's return from a period of annual leave, he was informed by Mr Cook in a phone call that he was not to continue working on the Snowy Water Licence Review, his Commonwealth Programs Position was no longer needed and it would be terminated or deleted from the Department's structure. Mr Johnson was given the option of staying in the Commonwealth Programs Position until 30 June 2017 to give him time to find something else or finish up earlier. He chose to remain employed until 30 June 2017, when his employment ceased. 4. Mr Johnson submits that the true reason for the termination of his employment was his performance which the Department failed to manage in accordance with the GSE Act and its own policies. The termination was therefore harsh, unreasonable or unjust. He did not seek the primary remedy of reinstatement or re-employment to his position, but rather compensation for his unfair dismissal. 5. The Department submits that the reason for termination was that work was no longer available for Mr Johnson. The Commonwealth Programs Position was no longer required and consequently removed from the organisational structure. On this basis, no unfairness arises and the application should be dismissed. Applicable law and principles 1. Mr Johnson was employed pursuant to a contract of employment dated 24 October 2016 ("the Contract"). The Contract expressed his employment status to be one of temporary employment, commencing on 7 November 2016 and ending on 5 July 2019. The Contract provided as follows: Your temporary employment may also be terminated at an earlier date at the discretion of the agency head, including for example where work is no longer available, funds are no longer available, performance of duties is unsatisfactory. 1. Mr Johnson's employment was relevantly governed by the Government Sector Employment Act 2013 (the "GSE Act"). Section 47(1) of the GSE Act provides for the termination of employment of ongoing employees. It prescribes various grounds upon which the termination may be based and requires that the instrument in writing effecting the termination set out the ground or grounds relied upon. 2. However as Mr Johnson was engaged as a temporary employee not an ongoing employee, the termination of his employment was governed by s 47(2) of the GSE Act, which provides as follows: Termination of employment (2) The head of a Public Service agency may, by instrument in writing, terminate the employment of a Public Service non-executive employee of the agency at any time if the employment is not ongoing employment. 1. The interaction of s 47 of the GSE Act with the unfair dismissal jurisdiction of this Commission was recently considered by Newall C in McGinn v Secretary, Family and Community Services [2017] NSW IRComm 1039: [13] Of course, as this is an application under s.84 of the Act, the question before the Commission is whether the dismissal was harsh or unreasonable or unjust, applying the tripartite test which is established by the statutory provision: Bankstown City Council v Paris (1999) 93 IR 209; Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 at [6]. [14] Nevertheless, any assessment of the dismissal pursuant to that tripartite test will properly include an examination of whether the statutory power to dismiss has validly been exercised; whether or not the statutory power was validly exercised would certainly bear upon the consideration of whether the dismissal was unjust, at very least. [15] In that context it must be borne in mind that where, as here, the employment relationship is governed by the GSE Act, the contract of employment is one bounded by the terms of the statutory power to employ: Director-General of Education v Suttling (1987) 162 CLR 427 at 437. The contract is not a common law contract and does not incorporate the common law concept of summary dismissal. ….. ….. [17] The lawfulness of a termination of a contract established under a statutory scheme which is effected pursuant to a statutory power, and specifically here s.47(1) of the GSE Act, will fall to be assessed on whether the power was validly exercised within its own terms, including in accordance with any regulations that might affect the exercise of the power. [18] The question of whether the dismissal was harsh, unreasonable or unjust within the meaning of the Act, a discrete question, falls to be assessed according to the well-established jurisprudence of the Commission in relation to cases brought pursuant to s.84. 1. While McGinn considered a termination of employment under s 47(1), I consider the principles articulated by Newall C in that decision are equally applicable to a termination of employment effected under s 47(2). Compliance with GSE Act and Rules 1. I turn firstly therefore to a consideration of whether the statutory power to dismiss was validly exercised, as a relevant factor in assessing whether the dismissal was harsh, unreasonable or unjust. Section 47(2) GSE Act 1. In respect of temporary employees, the Parliament has given agency heads an express power to dismiss 'at any time'. The only restriction on that power in s 47(2) is that the termination be 'by instrument in writing'. There is no statutory requirement to provide a ground or grounds for the termination, in contrast to the requirement for ongoing employees contained in s 47(1). Accordingly, in respect of temporary employees an agency head is not required by virtue of s 47(2) to give any reason for the termination. 2. Mr Johnson's employment was terminated by letter from Ms Meg Graham, Executive Director, People Learning and Culture dated 24 May 2017. In my view the letter was an 'instrument in writing' as required by s 47(2). It was submitted by Mr Johnson that the only reason the termination letter was issued was because he had requested it. Ms Whiteley confirmed that Mr Johnson had requested a letter confirming the cessation of his employment and the date that his employment would be ending. It is not clear whether Ms Whiteley would have issued the termination letter without Mr Johnson's request in the normal course of events. However irrespective of such considerations, the evidence is that a termination letter was issued expressed to be made pursuant to the relevant statutory provision. I therefore consider the power under s 47(2) was validly and lawfully exercised to terminate Mr Johnson's temporary employment. Rule 14 GSE Rules 1. However the Department was also required to comply with r 14 of the Government Sector Employment (General) Rules 2014 (the "GSE Rules") which provides as follows: Termination of employment (1) The employment of a Public Service non-executive employee may not be terminated under section 47 of the Act unless: (a) the employee is, to the extent that it is reasonably practicable to do so, notified of the proposed termination and given a reasonable opportunity to make submissions in relation to the proposed termination; and (b) the agency head has taken any such submissions into consideration. (2) This rule does not limit any of the other requirements under these Rules that relate to the termination of employment of a Public Service non-executive employee. 1. Rule 14 of the GSE Rules applies to all terminations under s 47 of the GSE Act, of both ongoing and temporary employees such as Mr Johnson. The requirement to provide a temporary employee with a reasonable opportunity to make submissions about the proposed termination applies regardless of the reason for termination – that is, whether it was for the stated reason of Mr Johnson's position being removed for funding reasons, or for reason of his unsatisfactory performance. 2. The Department contended that r 14 was complied with by virtue of a telephone discussion Mr Johnson had with Ms Whiteley on 24 May 2017. I do not accept this submission. The Department's case proceeded on the basis that even though the termination letter was from Ms Graham, Mr Cook was the actual decision maker in respect of the termination of Mr Johnson's temporary employment. On Mr Cook's evidence, his decision to terminate had clearly been made when it was communicated to Mr Johnson in the telephone call of 22 May 2017, as set out in paragraph 6 of these reasons. The subsequent telephone call by Mr Johnson to Ms Whiteley, the relevant human resources advisor, cannot properly be considered to be a 'reasonable opportunity' for Mr Johnson to make submissions to Mr Cook about any intended or 'proposed' action of termination of his employment. 3. Further, there was no evidence that it was not reasonably practicable for Mr Cook to have notified Mr Johnson of the proposed termination of his temporary employment for the stated reason of removal of his position, and given him an opportunity to make submissions about it, prior to Mr Cook making his final decision about the termination. 4. I therefore consider that the Department did not comply with r 14 of the GSE Rules in respect of the termination of Mr Johnson's temporary employment. I note that even if r 14 did not apply, the elements it contains relating to procedural fairness in effecting a termination form part of the broader consideration of whether the termination was harsh, unreasonable or unjust, discussed further below. Whether termination harsh, unreasonable or unjust 1. Compliance with the statutory scheme, being the valid exercise of power under the GSE Act, is only one consideration in assessing the unfairness of a dismissal. The determinative issue is whether the termination was harsh, or unreasonable, or unjust, applying the tripartite test under the Act: Bankstown City Council v Paris (1999) 93 IR 209. 2. In Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 100, Newall C observed that while glosses have been placed on the words 'harsh,' 'unreasonable,' and 'unjust' in earlier cases, it is neither necessary nor warranted to go beyond the ordinary meaning of the words which are comprehensible words that sit coherently within the purpose and context of the statute as a whole. I have adopted this approach. 3. The Department submitted that the reason for termination of Mr Johnson's employment was the removal of his position as Manager, Commonwealth Programs. As he was a temporary employee, the Managing Excess Employees Policy did not apply to his employment and his employment could therefore be terminated pursuant to s 47(2) of the GSE Act 'at any time'. There was also no obligation on the Department to explore redeployment to other roles or follow the other steps required under the Managing Excess Employees Policy. 4. Section 68 of the GSE Act, which deals with management of unsatisfactory performance, also applied to Mr Johnson's temporary employment. It relevantly provides as follows: (1) The government sector employment rules may deal with the procedural requirements for dealing with unsatisfactory performance (consistently with procedural fairness). (2) If the performance of an employee of a government sector agency is determined to be unsatisfactory in accordance with those rules, the person who exercises relevant employer functions in relation to the employee may (without limitation on relevant action) taken any of the following actions: (a) terminate the employment of the employee (after giving the employee the opportunity to resign); …. 1. Rule 35 of the GSE Rules provides for the core elements of a performance management system. Rule 36 of the GSE Rules precludes action to terminate under s 68(2) of the GSE Act unless the employee's performance is determined to be unsatisfactory in accordance with that performance management system, reasonable steps are taken to advise the employee of the fact and nature of their unsatisfactory performance, the employee is notified that the employer is proposing to take action under s 68(2), they are given a reasonable opportunity to respond and the employer takes into account any such response. 2. The Department's case proceeded on the basis that because the termination was not for reason of Mr Johnson's performance, its usual policies and procedures in respect of managing performance - and by extension of reasoning s 68(2) of the GSE Act and the related GSE Rules – had no application. It was accepted that such policies and procedures would otherwise apply to Mr Johnson as a temporary employee. 3. The Department further submitted that even if there were concerns about Mr Johnson's performance, they did not prevent the Department taking steps to terminate the employment because the role was no longer required. That is correct. However in the circumstances of this matter, I consider that Mr Johnson's unsatisfactory performance formed an integral step on the path to Mr Cook making the ultimate decision to review Mr Johnson's Commonwealth Programs Position, remove it and subsequently terminate Mr Johnson's employment. The performance concerns were not addressed with Mr Johnson in accordance with the policies and procedures of the Department which applied to Mr Johnson's employment as a temporary employee, or otherwise in a transparent and fair manner. I consider that to be unjust, for the reasons set out below. Mr Cook's view of Mr Johnson's performance 1. Mr Cook's evidence was that in mid-March 2017 he was having doubts about whether he needed the Commonwealth Programs Position any longer. He formed the opinion that he had 'too many chiefs and not enough indians' and thus no longer required the Grade 11/12 role performed by Mr Johnson. He considered the funding could be applied to other lower-graded roles. 2. Mr Cook says that he told Ms Morona around this time that he wasn't sure that Mr Johnson's role was needed in the team, and that he was 'a bit concerned that Grant does not understand what is expected of him as a Grade 11/12'. However Mr Cook did not disclose his opinion about the need for the role to Mr Johnson at that time. Mr Cook says that when he told Mr Johnson about the alternative work with the Snowy Water Licence Review, he explained it was an 'urgent job' with a team that needed assistance, asking if Mr Johnson would be happy to work on a 'different project'. The potential removal of the Commonwealth Projects Position was not mentioned. 3. When Ms Morona determined that Mr Johnson could not perform the alternative work in the Snowy Water Licence Review to the required standard, she advised Mr Cook that Mr Johnson would need to return to the Commonwealth Programs Position. It was only then that Mr Cook notified Mr Johnson of his decision to remove the Commonwealth Programs Position. This decision was presented to Mr Johnson as a fait accompli on 22 May 2017, in the telephone discussion referred to in paragraphs 6 and 19 of these reasons. 4. While Mr Cook sought to characterise his decision as based on the fact the role was no longer required, the evidence indicates that he considered Mr Johnson's performance in the Commonwealth Programs Position in the period 7 November 2016 to mid-March 2017 to be unsatisfactory. Mr Cook's handwritten notes of a meeting with Mr Johnson dated 13 March 2017 state the following: 1. "I also pointed out that I believe that Grant is not value adding to the process and not filling the position eg. briefs from Jack Chubb he is not value adding and his job is to strategically value add"; 2. "option for how briefings will be improved" and "improve nimmie carie briefs"; and 3. under the heading "My Actions – Talk to PLC about options. He [Mr Johnson] currently has 2 months of his probation left. Remove him from line management." 1. I agree with Mr Lynch's submission that Mr Cook's concerns were not that the position was not value-adding, rather it was specifically Mr Johnson who was not value-adding and that the language of the handwritten notes relates to improving Mr Johnson's performance. Further, there is no mention in Mr Cook's notes of removing the Commonwealth Programs Position, only removing Mr Johnson 'from line management'. 2. A Performance Development Plan was subsequently provided to Mr Johnson by Mr Cook in mid-March 2017. However this is not a document that forms part of a performance management process to address deficiencies. Rather it is a document that all employees receive upon commencement and which is reviewed annually, relating to their professional development in their role. It is to be noted that Mr Johnson's actions in respect of the Performance Development Plan themselves contribute to Mr Cook's dissatisfaction with Mr Johnson's performance. In this regard Mr Cook's meeting notes state: "Note: 1/4 [1 April] Grant did not submit a suitable PDP". 3. Mr Cook also acknowledged that he expressed the view to Ms Morona in late March 2017, when discussing Mr Johnson's move to her team, that Mr Johnson did not understand what was expected of him as a Grade 11/12. I consider this to further evidence Mr Cook's view that Mr Johnson was not meeting the required standard and his performance in the Commonwealth Programs Position was unsatisfactory. Ms Morona's view of Mr Johnson's performance 1. Ms Morona also held concerns about Mr Johnson's performance, based on feedback from Ms Morris and her own observations of his work. In contrast to Mr Cook, Ms Morona raised those concerns with Mr Johnson in an open and direct manner, in a meeting with him on 20 April 2017. 2. A key piece of evidence is an email sent by Ms Morona on 24 April 2017 to the Director of Organisational Performance which relevantly states as follows: "As discussed, I, as Grant's current Director and Nick Cook, as the Director responsible for him in his original capacity as he was employed in the Department, have significant concerns with his performance in the capacity of a Clerk 11/12. … In Grant's role as the Commonwealth Strategic Program Co-ordinator role [sic], it had become evident to both myself and Nick Cook, through our respective roles relating to Programs and Intergovernmental Relations that a number of issues had arisen in relation to the overall STB program management (vs the individual project delivery). At this point Nick sought to engage Grant in a performance discussion in a more formal sense, this included requesting Grant to come to Newcastle to enable face-to-face discussion, which Grant did not agree to, this then became a meeting by videoconference to discuss Grant's performance. This follows on from a number of ongoing discussions between Nick and Grant in relation to deliverables and priorities for the Strategic Coordinator role. As part of the performance discussion videoconference, Nick requested that Grant provide a PDP within a week, this is attached. The PDP provides a clear indication of the issues we are having with Grant's lack of capability and clear lack of understanding as to what is required of a Clerk 11/12. Due to Grant's lack of receptiveness to performance management and inability to provide the necessary support to the STB team, myself and Nick Cook decided to move him into the Intergovernmental and Strategic Stakeholder Engagement team with a more defined project to work on, with more direct supervision from intraband director Kristin Morris. Observations by Kristin and me have continued in regards to both lack of delivery and performance, as well is a complete lack of understanding what is required in a clerk 1112 role. These include: …. I had a meeting with Grant 3.30 – 4:30pm 20 April 2017 regarding his progress thus far with his new work focus. He demonstrated no ability to perceive that he was not meeting the demonstrated capabilities for a Clerk 11/12… … I am concerned that through my discussions with Grant regarding his performance, as was the case with Nick Cook, that he shows no signs of taking responsibility for his poor performance, he immediately blamed this on a lack of support from a staff member within his team Nicola Mead, who was acting in the Strategic Coordinator role prior to Grant's appointment….. …. Finally, Grant fails to acknowledge or grasp the conversations that he has had in the past with Nick Cook have been performance discussions, claims this is the first time that anyone had raised an issues [sic] with his performance in the role. I am concerned that while Grant does not demonstrate an understand [sic] of the concept of what is required, as well as an inability to deliver at the Project Officer 7/8 level tasks that he has identified in his PDP, he is unwilling to take responsibility for this. As such, I am seeking termination of his employment within the Department." [Underlined emphasis added] 1. Ms Morona gave evidence about this email as follows: "Q. And you wrote this email based on discussions you'd had with Mr Cook, is that right? A. Yes. Q. And those discussions included the fact that Mr Cook didn't think that Grant was performing in his role? A. That conversation covered a number of matters and that was one of them. Q. So Mr Cook's opinion was that Grant wasn't performing the role of Commonwealth strategic program co-ordinator? A. Yes, that was one view that he had, yes. Q. And that was prior to 24 April 2017, wasn't it? A. Yes. Q. And in this email to Ms Stafford, in the final paragraph you seek - you say in the last sentence, "As such I am seeking termination of his employment within the department"? A. Yes I wrote that. Q. Yes. So the intention when you wrote this email, was to terminate Mr Johnson's employment, isn't that correct? A. The intention for which I wrote this email is off the back of the meeting that Mr Johnson and I had on the 20th to outline the concerns that I had. As you said before, there is a requirement to go through a process regarding performance issues and this was me commencing that in relation to the fact that he was undertaking duties in my team and I did not think that he was performing to a standard that was adequate. Q. But you didn't say, "I'm seeking to put Mr Johnson on a performance improvement plan", did you? A. No I didn't. Q. And you're aware of the performance plan process aren't you? A. Yes. Q. And you were aware of that process before you wrote this email, weren't you? A. Yes, sorry. Q. So you're not asking to start a performance management process when you send this email, are you? A. So I wrote this email in a very quick period of time to cover off the issues and that's what I wrote. What I said what my intentions were, was to start this process. I'd talked with Grant about it. I'd raised my concerns with him and I needed to then move to a more formal process." [Underlined emphasis added] 1. Ms Morona gave her evidence in a straightforward manner and under cross-examination dealt frankly with criticisms of the non-disclosure of her 24 April 2017 email in her Statement. She acknowledged that the email was critical of Mr Johnson. In respect of her view that Mr Johnson's work was at the level of a Grade 7/8, not a Grade 11/12 which was the level of his substantive position, she agreed this related to his performance and ability to do his job. I accept the evidence of Ms Morona, that Mr Cook did have discussions with her as described in her email of 24 April 2017, in which Mr Cook indicated he considered Mr Johnson's performance to be unsatisfactory. 2. I further find that it cannot fairly be said on the evidence that Mr Cook had informed Mr Johnson of these concerns in a transparent and comprehensive manner. Mr Cook never commenced any performance management process with Mr Johnson and the thrust of his evidence was that he was not performance managing Mr Johnson. Rather, the termination was for reason of the removal of the Commonwealth Programs Position. 3. It is therefore not surprising, as Ms Morona notes in her 24 April 2017 email, that Mr Johnson "failed to acknowledge or grasp the conversations that he has had in the past with Nick Cook have been performance discussions" and why Mr Johnson 'claimed' the meeting with Ms Morona was the first time anyone had raised with him there were concerns about his performance. 4. This obviates the need for the Department's performance management policies and procedures to have been activated by Mr Cook in respect of Mr Johnson during the period Mr Johnson worked in the Commonwealth Programs Position, prior to mid-March 2017. Doing so would have made it clear to Mr Johnson that his performance was falling short of the expected level and provided a framework for both parties to seek to address this. The unfairness was then compounded by Ms Morona similarly not applying the performance management policies and procedures to his work in the Snowy Water Licence Review, but rather 'moving' Mr Johnson back to Mr Cook for him to deal with. 5. Mr Cook dealt with the situation by removing the Commonwealth Programs Position. Ms Whiteley stated that in a conversation with Mr Cook on 15 May 2017 she raised with Mr Cook that she understood there were performance concerns with Mr Johnson. Mr Cook stated that he "didn't want to go down a performance track", instead he wanted to remove Mr Johnson's role from the current structure. In my view, the 'performance track' should already have been commenced by Mr Cook and in train. 6. It appears that Mr Cook and Ms Morona were acting under a misunderstanding that Mr Johnson was in his probationary period. There was evidence that advice was given by a Departmental human resources advisor to this effect. Ms Morona indicates that in the meeting with Mr Johnson on 20 April 2017 she discussed extension of his probationary period. However as a temporary employee Mr Johnson was not subject to any probationary period. The relevant provisions of the GSE Act and Rules, and the Department's performance management framework, were applicable. Business case for removal of role 1. The removal of Mr Johnson's Commonwealth Programs Position was not because external funding for Mr Johnson's role was withdrawn. Rather, Mr Cook made a decision to reallocate funding to other roles which resulted in Mr Johnson's role becoming surplus. Ms Whiteley gave evidence that she did not inquire into the reason given to her by Mr Cook, which was that he did not have the funds to justify Mr Johnson's position. It was his business decision and she advised him based on his statements to her. 2. There was no documentation evidencing the rationale for the organisational change of removing Mr Johnson's position. There was no written business case advanced by Mr Cook in support of the removal of Mr Johnson's position in terms of aligning the staffing to the changed needs of the Department, either in mid-March 2017 when he says he started to form his view the position was no longer necessary, or in May 2017 immediately prior to advising Mr Johnson. Similarly no evidence was adduced of the subsequent creation and operation of the other lower-graded roles ('indians') that Mr Cook stated he wished to create as a result of removing the Grade 11/12 Commonwealth Programs Position ('chief'). This paucity of evidence is in contrast to the evidence of concerns about Mr Johnson's unsatisfactory performance held by Mr Cook and Ms Morona. Conclusions 1. Mr Cook formed a view that Mr Johnson's performance in the Commonwealth Programs Position was unsatisfactory. He subsequently moved Mr Johnson to the Snowy Water Licence Review team. This was the first step on the path towards Mr Johnson's ultimate dismissal. Ms Morona formed a similar view of Mr Johnson's performance of work on the Snowy Water Licence Review. She moved Mr Johnson back to become Mr Cook's responsibility. This was the second step on that path. I consider the course of action adopted by these managers of behalf of the Department, considered as a whole, was unfair to Mr Johnson for the following reasons: 1. The purpose of the Department's policies in respect of performance management, consistent with Rules 35 and 36 of the GSE Rules, is to inform employees of deficiencies in their performance so they may seek to take steps to address them and meet the requirements of their role. If these policies had been applied in his employment, Mr Johnson may have been able to address the concerns, meet the performance expectations of the Commonwealth Programs Position and demonstrate the continuing value of that role to Mr Cook. This is the essence of affording procedural fairness; 2. Mr Johnson's move to the Snowy Water Licence Review was an 'informal arrangement' between Mr Cook and Ms Morona. There was no record in the Department's systems of any secondment to the Snowy Water Licence Review, alteration to Mr Johnson's duties or change in supervisor. Ms Whiteley stated this was not in accordance with the Department's usual human resources processes and was in effect an unapproved transfer; and 3. At the time he was informally 'moved' to work on the Snowy Water Licence Review, Mr Johnson was not told that Mr Cook was forming a view that the Commonwealth Programs Position was not required. There was also no clear time frame for how long Mr Johnson would be doing the alternative work as part of the unapproved transfer to the Snowy Water Licence Review. In my view this lack of clarity about the reason, nature and duration of changes to Mr Johnson's duties, in circumstances where performance concerns were not addressed with him in any formal or structured manner, contributed to the overall unfairness of his treatment. 1. Sub-sections 88(a) and (b) of the Act provide that the Commission may take into account whether a reason for the dismissal was given to the employee, and if so, its nature, whether it had a basis in fact and whether the employee was given an opportunity to make out a defence or give an explanation for his or her behaviour. Sub-section 88(c) further provides that the Commission may take into account whether a warning of unsatisfactory performance was given before the dismissal. 2. While a reason was given to Mr Johnson, being the removal of his position, I consider that reason was intrinsically connected with Mr Johnson's unsatisfactory performance. Mr Johnson was not afforded a reasonable opportunity to make out a defence or give an explanation in respect of the performance concerns, let alone an opportunity to seek to address them. If Mr Cook had applied the Department's performance management policies and procedures the relevant opportunity would have been provided. 3. I consider the process by which the Department went about managing Mr Johnson's temporary employment leading to the termination of that employment to be unjust. In all of the circumstances this procedural deficiency, together with non-compliance with rule 14 of the GSE Rules discussed at paragraphs 17 to 21 of these reasons, render the dismissal unfair. Harsh or unreasonable 1. The phrase 'harsh, unreasonable or unjust' within s 84 of the Act is an important key to the jurisdiction of the Commission and requires specificity of finding, particularly where the conduct of the employer might satisfy one but not all of those heads: Bankstown City Council v Paris [1999] NSWIRComm 368. 2. I do not consider the resulting dismissal was also unreasonable for the following reasons: 1. The evidence established that the Commonwealth Programs Position was in fact 'delimited' from the Department's establishment, has not subsequently been filled and will administratively be removed permanently from the establishment. It must therefore be the case that the funds for that position have been diverted elsewhere or saved. Accordingly even though I have found that the Department failed to deal with Mr Johnson in a procedurally fair way and the dismissal was therefore unjust, the position is no longer required to be performed as a matter of fact. As Mr Corlett acknowledged in closing submissions, while the Department did not need the position in terms of the performance issues and did not pursue those performance issues, the Department still did not, and does not, need the position. 2. On the evidence of Mr Cook, Ms Morona and Ms Morris, Mr Johnson's work performance did not meet the Department's expectations. It is the process by which the Department went about managing that and then ultimately terminating the employment that I have found to be unfair. Even if those processes had been followed, in the context of the temporary nature of Mr Johnson's employment and the nature and extent of the concerns expressed by Mr Cook, Ms Morris and Ms Morona about Mr Johnson's performance, there is no certainty it would have continued for the full duration of the Contract, which makes express provision for termination for performance reasons. 1. In terms of harshness, I have had regard to the fact that Mr Johnson was not a long serving public servant. He had worked for the Department for less than a year. Immediately before his temporary employment with the Department he had been performing a 6 month contract role through Hays Executive. While Mr Johnson states his belief that contract role would likely have been extended, there is no evidence that would have occurred. 2. The statutory framework governing Mr Johnson's employment is also relevant. Mr Johnson was engaged by the Department on a temporary contract expressed to be for a maximum period, terminable earlier in various circumstances and subject to the provisions of the GSE Act. 3. I do not accept that representations were made by Ms Morona and Mr Cook to Mr Johnson in his interview that his employment would or would likely continue past the period in the Contract. Their evidence was consistent in this regard. Further, even if representations were made by Mr Cook that Mr Johnson's employment would likely continue for the full duration of the Contract, the express words of the Contract subsequently signed by Mr Johnson made clear the temporary nature of the employment and that the Contract could be terminated prior to the stated end date for various reasons. 4. There was evidence of the subsequent creation of a position (Manager Snowy Water Licence Review) reporting to Ms Morona with similar duties to those performed by Mr Johnson during the period he worked on the Snowy Water Licence Review with Ms Morris. It was submitted by Mr Lynch that Mr Johnson should have been redeployed to that position and this was harsh in the circumstances. I do not agree. The Managing Excess Employees Policy does not apply to temporary employees and accordingly, there was no obligation on the Department to explore redeployment after the removal of Mr Johnson's position of Manager, Commonwealth Programs in May 2017. 5. Accordingly, I do not consider that the termination was harsh in all the circumstances. Compensation 1. I have found that the Department's processes in respect of the termination of Mr Johnson's temporary employment were unjust and the dismissal therefore unfair. 2. Mr Johnson does not seek reinstatement or re-employment with the Department. In circumstances where the dismissed employee expresses a desire not to work with their former employer, I do not consider it practicable to order them to do so. Accordingly the consideration in this matter is of compensation only. 3. Section 89(5) of the Act provides the maximum compensation that may be awarded as follows: "…the Commission may order the employer to pay to the applicant an amount of compensation not exceeding six months' remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed…" 1. In respect of a claim for monetary compensation, s 89(6) further provides: When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant had succeeded in obtaining alternative employment. 1. Connor C in Bartlett and Cini v. Mario's Fresh and Frozen Foods [2006] NSWIRComm 1084 usefully summarised the Commission's task in assessing compensation as follows: [27] Section 89(5) is concerned with loss of income, not any assessment of damages. It is fairly settled law now in this State that such monetary compensation is neither punitive, punishing an employer for any wrongdoing on his part, nor designed to enrich the dismissed employee at the expense of his former employer: Henderson v. Rural Lands Protection Board (1997) 74 IR 142 at p.150. [28] Nevertheless, there is still a level of speculation in determining the appropriate level of remuneration for the two employees. Section 89(6) does not prescribe a simple mathematical formula in the assessment of monetary compensation - a sum representing the amount of income over the period of six months immediately prior to the dismissal, compared and contrasted with the remuneration received in the alternative employment and considered against the length of time that an employee was out of work: D and R Commercial Pty Limited v. Flood (2002) 113 IR 344 at p.363. The only jurisdictional limitation is the six month ceiling in s 89(5): the rest is a matter for the Commission's discretion. 1. Mr Lynch submitted that Mr Johnson should receive the maximum compensation available of 26 weeks' pay. I do not consider that is appropriate in all of the circumstances of this case. 2. Mr Johnson has earned no income since the dismissal. He has made some attempts to find alternative employment. Since mid-July 2017 he has registered with three employment agencies and applied for a role with Standards Australia, for which he was unsuccessful. He acknowledged he had not commenced searching for other work for a period after the termination took effect on 30 June 2017. He was exhausted and depleted after his 7 months with the Department and needed to take some 'down time'. He had also been so busy over the previous 18 months (which includes a period before he commenced with the Department) he took the opportunity to visit his elderly father for two weeks. While it was submitted that illness hampered Mr Johnson's attempts to find other work, there was no direct medical evidence in respect of the period after 30 June 2017 of incapacity. 3. Evidence was led of loss suffered by Mr Johnson in the form of an overseas holiday he took just prior to being advised of the termination of his employment. He submitted that he would have cancelled the holiday if he had been informed of the termination prior to instead of after his return from annual leave, and thus recovered the cost of that holiday. I consider this to be loss in the form of damages and not compensable. Even if it were, the capacity to recover such moneys under the travel insurance policy is highly questionable. 4. I have had regard to the submissions made in respect of financial loss arising from the alleged representations made to Mr Johnson about the duration of the employment. I refer to my findings at paragraph 55 of these reasons. In any event, I consider this to be in the nature of damages and not compensation for the unfair dismissal, applying the principles summarised above. 5. In addition to the matters outlined above and the considerations relating to unreasonableness and harshness in paragraphs 52 and 53 of these reasons, in determining an appropriate amount of compensation I have taken into account the following: 1. the applicant's age (62) and length of service (7 months); 2. the level of unfairness attaching to the dismissal of the applicant, given that it relates to procedural deficiencies rendering the dismissal unjust, but not harsh nor unreasonable; 3. Mr Johnson's employment status as a temporary employee within the statutory framework of the GSE Act; and 4. the length of time that has elapsed since the dismissal (approximately 16 weeks). 1. I order compensation in favour of the applicant in an amount equivalent to 13 weeks' pay at the rate which the applicant was being paid at the time of his dismissal, as just and fair in all of the circumstances of this case. Orders 1. The Department is ordered to pay to the applicant, within 14 days of today's date, a sum equivalent to 13 weeks' pay calculated at the rate of pay applicable to the position occupied by the applicant immediately before the termination of his employment on 30 June 2017. JANE SEYMOUR Commissioner 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: 27 October 2017