Johnson v NSW Environment Protection Authority [2020] NSWIRComm 1000

Industrial Relations Commission New South Wales Medium Neutral Citation: Johnson v NSW Environment Protection Authority [2020] NSWIRComm 1000 Hearing dates: 10, 11 and 12 September, 11 November 2019 Final written submissions filed 20 December 2019 Date of orders: 15 January 2020 Decision date: 15 January 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Appeal allowed Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL – Senior Technical Policy Advisor – termination of employment – unsatisfactory performance – Informal Performance Improvement Plan – Formal Performance Improvement Plan – appellant contracted Legionnaires' disease – work performance affected by major depression – reinstatement ordered – no order for back pay Legislation Cited: Government Sector Employment Act 2013 Industrial Relations Act 1996 Government Sector Employment (General) Rules 2014 Category: Principal judgment Parties: Michael Johnson (Appellant)

NSW Environment Protection Authority (Respondent) Representation: Counsel: Mr D Nagle (Appellant) Mr J Wydell (Respondent)

Solicitors: Mr M Burns, McNally Jones Staff (Appellant) File Number(s): 2018/00393417

DECISION 1. The appellant, Michael Johnson, was employed as a Senior Technical Policy Advisor with the respondent, the NSW Environment Protection Authority ("EPA"). By letter dated 3 December 2018, the appellant was advised by David Fowler, Director Regulatory Reform and Advice, EPA, that, as a result of his unsatisfactory performance, his employment with the EPA was to be terminated but he was offered the opportunity to resign. The appellant did not avail himself of that opportunity. 2. By letter dated 21 December 2018, Mr Fowler advised the appellant that, as his resignation had not been received by that date, his employment was terminated pursuant to section 47(1)(c) of the Government Sector Employment Act 2013 ("the GSE Act") with effect from 4 January 2019. He was to continue on paid special leave up until that date. Relevant provisions of the GSE Act and the Government Sector Employment (General) Rules 2014 ("the GSE Rules") are set out below: Section 47 Termination of employment (1) 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 on any of the following grounds if the employment is ongoing employment: ……………………………… (c) the performance of the employee is determined under section 68 to be unsatisfactory, Section 68 Unsatisfactory performance of government sector employees (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 employer functions in relation to the employee may (without limitation on relevant action) take any of the following actions: (a) terminate the employment of the employee (after giving the employee an opportunity to resign), Rule 36 Dealing with unsatisfactory performance (1) The person who exercises employer functions (the employer) in relation to a person employed in a government sector agency (the employee) may not take any action under section 68(2) of the Act in relation to the employee unless— (a) the employee's performance is determined by the employer to be unsatisfactory in accordance with the agency's performance management system, and (b) reasonable steps have been taken to advise the employee that the employee's performance is unsatisfactory and the basis on which it is unsatisfactory, and (c) the employee is notified that the employer is proposing to take specified action under section 68(2) of the Act in respect of the employee, and (d) the employee is given a reasonable opportunity to respond to the notice, and (e) the employer has taken any such response into consideration. 1. On the same day that he received the letter of termination, 21 December 2018, the appellant filed in the Office of the Industrial Registrar a Notice of Appeal – Public Sector Discipline, pursuant to section 100A of the Industrial Relations Act 1996 ("the Act"). This decision determines that appeal.