McKay v Department of Family and Community Services [2018] NSWIRComm 1018

Industrial Relations Commission New South Wales Medium Neutral Citation: McKay v Department of Family and Community Services [2018] NSWIRComm 1018 Hearing dates: 21 March 2018 Date of orders: 21 March 2018 Decision date: 21 March 2018 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Orders sought in Notice of Motion refused Catchwords: PUBLIC SECTOR DISCIPLINARY APPEALS – Commission may order sums in the nature of back pay – discretionary orders – exercise of discretion to make such an order may include consideration of monies earned in period when employment interrupted Legislation Cited: Industrial Relations Act 1996 s 100D Category: Procedural and other rulings Parties: Ms D McKay (appellant) Department of Family and Community Services (respondent) Representation: Counsel: A Crossland (appellant) R Warren (respondent) File Number(s): 2016/260638

Judgment 1. Before the Commission is a notice of motion filed by the appellant in the proceedings seeking to have set aside a notice to produce served upon her by the respondent which notice to produce seeks documents, all of which go to evidence of, or may go to evidence of, moneys earned or income received during the period of time that her employment was interrupted by cause of the decision of the employer to dismiss her. 2. That is in the context of proceedings being remitted to this Commission by the Supreme Court pursuant to an order of Button J made on about 2 February 2018, that remission being in express terms and providing that it is for the purpose of the Commission making orders pursuant to s 100D(1)(b) to (c) of the Industrial Relations Act 1996 as the Commission sees fit. 3. It is in that context that the notice to produce has been provided and it is apparent that what will be in contest between the parties when the matter comes before the Chief Commissioner for hearing of the remitted matter will be an issue about what should be the terms of the orders, if any, that the Chief Commissioner might make pursuant to s 100D. 4. In moving to set aside the notice of motion the proposition has been urged on the Commission by the appellant that the consideration of income received by the appellant during the period that her employment was interrupted would not be a relevant matter for the exercise of the Commission's discretion pursuant to s 100D(1). That is put on essentially two bases. 5. One is by a comparison of the construction of s 100D with that of s 89 of the same Act which, while providing for orders of a similar nature being able to be made as a matter of discretion, contains what s 100D does not, that is, an express provision that the Commission is to take into account the remuneration received in alternative employment or which would have been payable in alternative employment. Such a provision does not appear in s 100D. 6. The second basis upon which the proposition is advanced that the notice to produce ought be set aside is this; were an order to be made under subs 100D(1)(c), that is, a deeming order that the continuity of the employee's service or period of employment is not taken to be broken by the decision of the employer to dismiss, that means that the contract of employment with all its elements, including an obligation to pay salary for the whole time, is necessarily restored. 7. I must say at the outset I cannot accept that proposition. I do not accept that were an order to be made under subs (c) that it would have the effect, of itself, of vesting in the appellant her full contractual entitlements including as to salary and whatever else, superannuation and so forth, during the period. There is no authority for the proposition that such a deeming provision has that effect and on my reading of the statute it appears to me to be wrong. 8. With respect to counsel advancing it, that proposition appears to me to be wrong for a number of reasons; essentially because it is apparent that orders under subss (b) and (c) are not disjunctive, but conjunctive; that could not be so were the construction that counsel urges upon the Commission to be correct. Secondly, it appears to me were that to be the case, it would render otiose the provisions not only of subs (b) of subs 100D(1), but also the whole proposition that the Commission may make an order under subs (b). 9. It appears to me sufficiently clear that under subs 100D(1) the discretion exercised in the Commission, which neither counsel contested existed, arising from the word "may", which necessarily is a word conferring discretion, is necessarily fettered by subs 100D(1)(b), but fettered in this way. 10. That subsection provides that the Commission may make an order that the employer pay the employee an amount provided in the order and that is my first point, that there is a specific sum to be stated in the order, not a blanket order saying you must pay everything you might have paid had she not been here or had the employee not been here. The Commission has to identify a figure. 11. Further, that figure has to be one which does not exceed the remuneration the employee would, but for the decision of the employer, have received from the employer. That clearly provides that there is a cap upon the number, the figure, that the Commission might order, but it also appears to me to mean that the sum might well be nothing or less than the notional full amount. 12. I was taken to the decision in Frank Cunningham v Industrial Relations Secretary on behalf of the Department of Justice [2017] NSWIRComm 1063, a recent decision of the Commission. I do not draw anything from that decision. I do not doubt it, but I do not think it guides the decision to be made here. It seems to me that this question turns on a simple statutory construction point. 13. In the absence of any authority suggesting otherwise, in my view the position is that the word "may" under subs 100D(1) combined with the words to which I have just gone in subs (1)(b) mean that the Commission is able to have regard to whether or not it considers an order under subs (c) to be apt and if it makes an order under subs (c), it may have regard to income that may have been received by the dismissed employee during the period of time for which their employment was interrupted. 14. Instinctively, it must be so. I do not consider it likely or in fact available that the parliament has constructed a section which effectively would allow an employee to double dip by receiving, necessarily from the taxpayer what is more, more moneys than they could have received had they worked for the employer throughout, which would necessarily be the effect of the construction urged upon me by counsel for the appellant. 15. I am clearly of the view - and this is not a view binding on the Chief Commissioner, of course, but it is the view that I have formed for the purpose of dealing with this interlocutory application - that the Commission is able to consider moneys that have been received, including income received, by the employee during the time that they were not employed by the employer in considering any orders pursuant to subs 100D(1). It follows from that that I cannot find the notice to produce to be irrelevant; it seeks the sorts of materials that would necessarily inform the parties and the Commission about those moneys received. 16. It follows therefore that I decline to set the notice to produce aside and the orders sought in the notice of motion are refused.