Basedow v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services) [2019] NSWIRComm 1062

Industrial Relations Commission New South Wales Medium Neutral Citation: Basedow v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services) [2019] NSWIRComm 1062 Hearing dates: Determined on the papers Date of orders: 04 September 2019 Decision date: 04 September 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Constant Decision: Order sought in the respondent's Notice of Motion that the Application for Relief from Unfair Dismissal by Loretta Nancy Basedow be dismissed is granted. Catchwords: UNFAIR DISMISSAL – effect of availability of other remedies – proceedings commenced under Anti-Discrimination Act 1977 (NSW) – unfair dismissal proceedings dismissed Legislation Cited: Anti-Discrimination Act 1977 (NSW) s 50 Government Sector Employment Act 2013 (NSW) ss 47, 68 Industrial Relations Act 1996 (NSW) ss 84, 90 Cases Cited: Johnston v Department of Mineral Resources [1997] NSWIRComm 67 (21 May 1997) Category: Procedural and other rulings Parties: Loretta Nancy Basedow (applicant) Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services) (respondent) Representation: Applicant in person G Singer (respondent) File Number(s): 2019/14382

DECISION 1. The applicant in this matter, Ms Loretta Nancy Basedow, was notified by correspondence dated 3 December 2018 from Michelle Micallef, Director, Community Corrections, Sydney West, that her employment had been terminated pursuant to sub-ss 47(1) and 68(2) of the Government Sector Employment Act 2013 (NSW). 2. On 15 January 2019, the applicant filed in the Office of the Industrial Registrar an Application for Relief in Relation to Unfair Dismissal ("the Unfair Dismissal Application"). The Unfair Dismissal Application came before me on 11 February 2019, 28 February 2019 and 16 April 2019. 3. On 11 February 2019, the respondent notified the Commission that he intended to object pursuant to s 90 of the Industrial Relations Act 1996 (NSW) ("the IR Act") to the Commission determining the matter as the applicant had lodged a claim with the Anti-Discrimination Board in relation to the termination of her employment. As no appearance was entered for the applicant, and the Commission was unable to establish that the applicant had received the notice of listing, I determined to adjourn the matter generally and directed that the respondent inform the applicant that the Commission would relist the matter on an application by the applicant. The Commission also took steps to inform the applicant of this. 4. On 18 February 2019, the applicant requested that the matter be relisted and the matter was relisted before me on 28 February 2019 for conciliation and directions. 5. On 25 February 2019, the respondent filed a Notice of Motion in the matter which sought, amongst other things, that the applicant's unfair dismissal application be dismissed pursuant to s 90 of the IR Act. That Notice of Motion was supported by an affidavit sworn by Ms Glenn Singer affirmed on 22 February 2019. The Notice of Motion asserted that a complaint had been made pursuant to another statute in another jurisdiction and that the subject matters of that complaint were essentially the same matters that arose in the Unfair Dismissal Application. 6. Section 90 of the IR Act is in the following terms: 90 EFFECT OF AVAILABILITY OF OTHER REMEDIES The Commission must not determine an applicant's claim by making an order under section 89 if: (a) another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and (b) the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument. 1. Ms Singer deposes in her affidavit that on 3 December 2018, the applicant lodged a formal complaint under the Anti-Discrimination Act 1977 (NSW) ("the AD Act") to the President of the Anti-Discrimination Board ("the ADB"), alleging that the act of termination of her employment was tantamount to victimisation pursuant to s 50 of the AD Act ("the Applicant's Discrimination Complaint"). 2. On 28 February 2019, the respondent notified the Commission that he intended to move on the Motion to dismiss the Unfair Dismissal Application prior to engaging in conciliation. I determined that I would deal with the respondent's motion as a threshold issue before conciliation. 3. The applicant confirmed to me that she had received the Motion. I determined that the Motion would be heard on 16 April 2019 and set a timetable for the filing of any further material. I provided the applicant with a copy of s 90 of the IR Act and pointed to the language used in the section. I suggested that the applicant obtain advice about whether she could pursue both the Unfair Dismissal Application and the Applicant's Discrimination Complaint. 4. The applicant did not attend the Commission for the hearing of the Notice of Motion on 16 April 2019. Ms Singer appeared for the respondent and informed the Commission that the Applicant's Discrimination Complaint was before the ADB for conciliation on 9 May 2019 and accordingly had not yet been referred by the President to the New South Wales Civil and Administrative Tribunal ("NCAT"). Amongst other things, I directed that following the conciliation at the ADB: the respondent inform the Commission the outcome of the ADB conciliation and whether the Applicant's Discrimination Complaint had been referred to NCAT; if the matter was referred to NCAT then the Commission will determine the respondent's Motion on the papers; and if the Applicant's Discrimination Complaint was not referred to NCAT then the applicant must file with the Commission an undertaking pursuant to s 90 of the IR Act in relation to the Unfair Dismissal Application. 5. On 24 May 2019 Ms Singer, on behalf of the respondent, informed the Commission by letter that the ADB had informed the respondent that the ADB was referring the matter to NCAT at the applicant's request. Pursuant to s 163(1) of the IR Act, I am not bound to act in a formal manner and I can inform myself in a way that I consider just. On this basis, I accept this information in this form. 6. On 29 May 2019 I made directions: consistent with the directions of 16 April 2019 that, as the Applicant's Discrimination Complaint had been referred to NCAT, I would determine the respondent's Motion on the papers; and for the filing of any further evidence and submissions in respect of the respondent's Motion. 7. On 25 June 2019 the applicant filed two documents. The first of which was titled "Notice of Motion" and the second titled "Response to Orders Made 29 May 2019 to the proceedings - Notice of Motion". Both documents are difficult to understand and their relevance to the Unfair Dismissal Application is limited. On their face, neither seeks Orders from the Commission which the Commission is empowered to make. 8. On 28 June 2019 the applicant filed a document which was titled "Notice of Motion – Response to Orders Made 29 May 2019". The document is difficult to understand and its relevance to the Unfair Dismissal Application is limited. On its face, it does not seek Orders from the Commission which the Commission is empowered to make. However, the document attaches a Notice of Listing from NCAT dated 11 June 2019 for the matter of "Loretta Basedow v Department of Justice (Corrective Services NSW)" for a case conference on 3 July 2019. On the basis of the evidence in Ms Singer's affidavit and the letter from Ms Singer dated 24 May 2019, I understand that the matter of "Loretta Basedow v Department of Justice (Corrective Services NSW)" is the Applicant's Discrimination Complaint which has been referred to NCAT.