Industrial Relations Commission New South Wales Medium Neutral Citation: Smith v Secretary of the Treasury [2018] NSWIRComm 1012 Hearing dates: 23 February 2018 Date of orders: 23 February 2018 Decision date: 23 February 2018 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application for interim reinstatement of dismissed employee refused Catchwords: UNFAIR DISMISSAL – employer dismissed employee after application filed claiming threatened dismissal – orders sought reinstating employee on interim basis to preserve Commission's process – implied power claimed - held, no power to reinstate on an interim basis. Legislation Cited: Industrial Relations Act 1996 s.84, s.87, s.89(1) Cases Cited: Hill v Director-General, Department of Education and Training (1998) 85 IR 201 Category: Principal judgment Parties: Mr G Smith (applicant ) Secretary of the Treasury (respondent) Representation: A Howell (counsel) – applicant Mr A Woods (solicitor) – respondent File Number(s): 2018/000592259 Judgment 1. The Commission is being asked to, pursuant to an application brought under s.84 of the Act, reinstate an employee in employment who has just been dismissed, in order that an application pursuant to s 84 he made immediately prior to his dismissal may be treated as an application in respect of a threatened dismissal, and the powers to restrain an employer from dismissing an employee exercised. It has been put that this can, and should, be done pursuant to an implied power residing in the Commission to preserve its own process. 2. For the purpose of this interlocutory application before the Commission, it is conceded and it is apparent upon its face, that the applicant in the proceedings, Mr Graham Smith, has been dismissed from his employment. Equally, there is no doubt that the s.84 application, in which Mr Smith asserted the existence of a threatened dismissal, was filed before the applicant became aware that the respondent had in fact determined to dismiss him. 3. The Commission clearly has express powers under s.89 of the Act to reverse a decision, including a decision made entirely lawfully by a delegate, to dismiss a public sector employee if the Commission finds the dismissal unfair. 4. That much is clear, but the question before the Commission now is whether, in the absence of an express provision within s 89 or indeed anywhere else in the Act permitting that reversal, which would be effected by reinstating the employee under s 89(1), can be effected upon an interim basis. It is apparent of course, on its face, that s.89 does not contain a provision for an order of reinstatement under s. 89(1) to be made on an interim basis, but the argument does not end there. And I ought say that I understand the dissatisfaction expressed on the applicant's behalf that an employer, having been made aware of the lodgement of an application in this Commission, which was in this case expressed to be an application in respect to a threatened dismissal (and whether or not there was, at that time, in reality a threatened dismissal now matters not) move to dismiss the employee. 5. But whether or not that is what has happened, the question now is a question of whether a power lies, not a question of whether or not the employer has acted as a model litigant, which is not something I determine today. 6. The resolution of this matter, it seems to me, begins with a reading of s. 84 of the Act. Section 84 provides that "if an employer dismisses an employee and the employee claims the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part." 7. Section 87 I move to next, which provides that the Commission is to "determine the claim" brought under s.84. This is of course at the point where conciliation has proved unsuccessful in resolving the matter. The Commission is then under a mandatory obligation to determine the claim by making an order under s 89, dismissing the application or making any other order it is authorised to make under this Act. On its face, that is a statement of the whole of the Commission's powers once conciliation of a s 84 application is unsuccessful; make an order under s.89, dismiss the application or make any other orders authorised to make under this Act. There is, of course, authority for the proposition that the phrase "any other order the Commission is authorised to make under this Act" means an order expressly provided for by the statute. 8. The argument is here put that, drawing on the decision in Hill v Director-General, Department of Education and Training (1998) 85 IR 201, which has been upheld a number of times subsequently, and whether correct or not is in in any event binding on me, that there is an implied, not inherent but implied power in the Commission to make an order on an interim basis in interlocutory proceedings to prevent a dismissal. That is not to be cavilled with, that is what the authorities hold. 9. Of course the facts here disclose a different circumstance; the dismissal has been effected. Counsel was unable to take me to any authority which held that a power to reinstate on an interim basis after a dismissal existed, and from my own knowledge I am unaware of any case where the question of whether the Commission has the power to make a s 89 order on an interim basis after a dismissal has occurred has been canvassed. That does not of course decide the matter. 10. There is a difference between making an order which subs. 89(7) expressly permits the Commission to make, that is not to dismiss an employee in accordance with a threat to dismiss, and taking the step which is sought from the Commission today which is to reinstate an employee who has been, for the purpose of today's consideration, dismissed. 11. It is put that that ought be done, that is that a power lies to do that, on the basis that the application made to the Commission by Mr Smith was in fact an application in respect to a threatened dismissal, and that the employer, by taking the step of dismissing Mr Smith after it became aware of that application – and indeed aware that there were proceedings before the Commission today – has deprived the Commission of its powers to deal with that threatened dismissal. From that it is said that the Commission has necessarily a power to preserve the proceedings that were before it before the dismissal. 12. The existence of a power in a court to preserve a court's proceedings at large is not to be doubted. But the power to put Mr Smith back into employment at all is an express power granted to the Commission under s.89 of the Act. It is nowhere provided in the Act that the Commission may exercise powers under s.89 so as to maintain the proceedings before the Commission as proceedings in the nature of threatened dismissal proceedings. True it is that in Hill, Schmidt J made the express observation that in some cases the remedies available to the Commission under s.89 of the Act may not be able to put the employer into the same or even a similar position to that which the employer would have been in if the Commission had made orders in relation to the threatened dismissal. Her Honour goes on to say, "Indeed if the two circumstances were the same, or even interchangeable in every case, it is difficult to see why the Commission was closed with power to deal with a threatened dismissal at all. And for this reason I have concluded that there is power to make the orders sought on an interlocutory basis." 1. In other words, it is not necessarily the case that a proceeding of exactly the name nature and extent is before the Commission before a dismissal as it is after a dismissal. Her Honour expressly holds that they, in some circumstances at least, may well be different matters. That, it seems to me, is the strength behind the argument advanced by counsel for Mr Smith to say the Commission ought preserve its proceedings; that is, if it does not, the applicant may lose some benefit that the Commission may have been able to confer on him when he made his application but now after the dismissal cannot. 2. I say again, the order to reinstate on an interlocutory basis, could only, if it exists, stem from the powers given to the Commission under s 89 to reinstate. I am forced to that view by what is said in s.87(1) to which I have already gone. Nowhere else under the Act is the Commission authorised to make an order of the kind sought, that is a reinstatement order, and accordingly if there is such a power it must, it seems to me, be a product of the powers given under s.89. 3. I note that in Hill the power was not found to be implied in the sense that it was wholly at large, but was found to exist in relation to the particular statutory provision, that is, pursuant to subs 89(7) of the Act. One also sees that s.136 of the Act gives the Commission an express power to make interim orders that is not given in terms under Part 6. 4. In my view the question of power is to be resolved by reference essentially to s 87 of the Act. I raised with counsel for the applicant the proposition that If the argument that the Commission has power to make the reinstatement order on an interim basis were correct, that would mean that the filing of proceedings and the communication of those proceedings to an employer would in every case act as a de facto or indeed a de jure stay on the power to dismiss. On refection, I do not think that is so, because if there were a power to reinstate on an interim basis, that could hardly be automatically invoked or applied, but rather would be, on the applicant's argument, available to be exercised in a proper case. Whilst some part of the applicant's counsel's submission seem to suggest that the Commission ought act to make an interim reinstatement, in any circumstance where the employer dismissed, having become aware of the fact of proceedings before the Commission, because that would in every case be appropriate to preserve the proceedings before the Commission in the state in which they were filed, I do not ultimately take that to be the submission put to me in its whole. I do not proceed to determine this matter on the basis that to imply the existence of the power argued for would be to provide for a stay in every case. 5. Ultimately, I am compelled to the view that I have no power to effect an interim reinstatement. My reason for so finding is that, as I read s.87, that section requires the Commission mandatorily to deal with an application under s.84, whether characterised as a threatened or substantive dismissal, by relevantly making an order under s 89 or making other orders authorised to make under this Act. That could it seems to me only be done on a proper analysis of whether or not a dismissal as harsh, unreasonable or unjust. I cannot see that the power under s.89 could be exercised without doing that, and without properly testing the evidence. That stands against making an order of reinstatement on an interim or interlocutory basis. It is a very different thing to restore an employment contract on an interim basis than to effectively restrain an employer from changing the status quo, as was contemplated in Hill. 6. As a further matter, while I find nowhere in s.89 the Act an ability to make an order in relation to a concluded dismissal on an interim basis, the parliament has by contrast taken the step of providing in other parts of the Act that interim orders may be made. On any basis s.89, does not, it seems to me, contemplate such an interim power. I have earlier observed that such a power has never been exercised by the Commission, while accepting that that does not mean that there is no such power. But I am fortified in part in the view I take by the fact that no other member of the Commission or indeed of the Industrial Court has formed the view that in interim power to reinstate in these circumstances arises. 7. Nevertheless, it falls to me in this matter to determine this question as a matter of law, and in my view, the argument that the Commission has a power which is implied from its ability to preserve proceedings, fails for two reasons. The first is the fact that s 89 does not, in contrast to other parts of the Act, contain any reference to the ability to exercise the statutory powers that it gives the Commission on any interim basis. 8. Secondly, I said at the outset of this decision that the starting point for approaching this application was to look at s.84. Section 84 deals with dismissals. Mr Smith has an application before the Commission which he has brought pursuant to s 84 of the Act. That application remains before the Commission. He is not deprived of the Commission's exercise of its powers pursuant to a s.84 application by reason of the fact that he subsequently has been dismissed, although he brought the application in the first instance claiming that there was a threat that he would be dismissed. 9. The act Subsection Part 6 expressly provides that a dismissal includes a threatened dismissal. That means in my view that an application before the Commission in respect of s.84 is all of a piece. The powers exercisable under s.89 cannot be at two different levels or of two different qualities in a statutory sense, notwithstanding anything said in Hill. 10. In my view, once an employee has been dismissed, whether or not he earlier claimed that a threatened dismissal existed, the rights which he has to pursue for remedies under the Act are untrammelled. I understand the argument cogently put by counsel for the appellant that the Commission is not in the same position in relation to the application now as it was before the dismissal was effected. I necessarily reject that argument. In my view, the Commission's powers under Part 6 are preserved and they comprise the whole of the powers given to the Commission to deal with the dismissal. There is therefore no need to imply a power to restore an application in respect of a dismissal back to the state of being an application in respect of a threatened dismissal, and there is no such power. 11. It follows that I decline to make the orders sought in the Notice of Motion. The Notice of Motion is dismissed. I am bound to deal with the matter expeditiously and to make directions about doing so. I will now proceed to make those directions without of course confining either party's rights in relation to the decision that I have just made. I will cause the transcript of the decision to be published as quickly as possible. PETER NEWALL 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: 01 March 2018