[2021] FWC 6638 [Note: This decision has been quashed - refer to Full Bench decision dated 30 March 2022 [2022] FWCFB 45]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.739—Dispute resolution

Sharon Isabelle Scurr
v
Northern Territory of Australia T/A Office of the Commissioner for Public Employment
(C2020/33)

COMMISSIONER SPENCER

BRISBANE, 20 DECEMBER 2021

Application to deal with a dispute pursuant to s.739 – jurisdictional/merits matters heard together by agreement of the parties – jurisdictional objection upheld – application pursuant to s.739 dismissed.

INTRODUCTION

[1] Ms Sharon Scurr (the Applicant) filed an application pursuant to s.739 of the Fair Work Act 2009 (the Act/the FW Act), to deal with a dispute arising under the Northern Territory Public Sector 2017 - 2021 Enterprise Agreement (the Agreement) with the Northern Territory of Australia T/A Office of the Commissioner for Public Employment (the Respondent). The Agreement has passed its nominal expiry date; which was 21 August 2021.

[2] Further to preliminary conferences conducted in this matter, Directions were issued to the parties, for the filing of materials, in relation to a number of threshold matters to be determined. In summary, the Applicant referred to these threshold issues that relate to the alleged deficiencies of the processes used by the Respondent in declaring the Applicant’s job redundant. Further, the Respondent raised interjurisdictional matters relevant to the interaction between the Fair Work Act 2009 (Cth) (the Act), the Agreement and the Public Sector Employment and Management Act 1993 (the PSEM Act), and their impact on the jurisdiction of the Commission to proceed with the arbitration of the dispute raised by Ms Scurr. The Applicant had initially sought a review of the process, pursuant to the PSEM Act and therefore the Respondent argued that this further application was barred.

[3] Further to preliminary submissions by the parties, and preliminary conferences conducted in this matter, consent Directions were issued to the parties for filing of materials in relation to the jurisdictional and merits matters. The parties agreed that these should be heard together. The matter was heard in Darwin and further by Video link from Brisbane.

[4] In summary, the Applicant argued that there were alleged deficiencies in the Respondent declaring the Applicant as ‘potentially surplus’, ‘surplus’ and ‘redundant’ and that the conduct and process adopted by the Respondent in failing to ‘make every endeavour’ in regards to the redeployment process. The Applicant alleged that (in part) the Respondent had not complied with its obligations under Schedule 10, clauses 10.3.1, 10.3.2 and 10.4.1 of the Agreement.

[5] This decision deals with the jurisdictional and merits matters.

[6] This matter had been the subject of a number of conciliation and directions conferences. An agreed course was set by consent with the parties. The Applicant had been represented by Hall Payne lawyers, who had prepared her material.

[7] The Applicant was self-represented for the Hearing of the matter; however, she had been represented in the conferences prior to the hearing and as stated she indicated during the hearing that she was seeking further advice from her lawyers on particular matters as the hearing progressed. No objection to this course was recorded. The Applicant’s lawyer (from Hall Payne Lawyers) had been given permission to appear pursuant to s.596 of the Act. A form F54 notice of lawyer ceasing to act was received from Hall Payne Lawyers and the Applicant proceeded as self-represented for the Hearing. Further, during the course of the cross examination, the Applicant deferred some questions that she considered should be best dealt with by her Solicitors. She also advised that she intended to contract her Solicitors again. The Respondent was represented by Mr Cameron McInerney, Employee Relations Manager for the Respondent.

[8] All of the evidence and submissions have been considered, however, not all witness evidence has been referred to individually in the summaries of the evidence, but all of the matters raised have been considered in their submissions and further in the overall considerations.

BACKGROUND

[9] In summary terms, the Applicant’s employment was declared (potentially) surplus to the requirements of the Respondent, from this point, the Applicant argued that the Respondent was required to make every endeavour to place the Applicant in other suitable employment, as directed by the redeployment process. The Applicant, in her submissions, set out that the obligations on the Respondent were in accordance with clause 10.3.1, 10.3.2 and 10.4.1 of the Schedule of the Agreement, as set out below.

[10] It was agreed between the parties that the Respondent’s jurisdictional objections and the Applicant’s responses would be dealt with in this decision, (in terms of a jurisdictional decision) as well as a consideration of the merits of the application.

[11] The questions for arbitration proposed by the parties were: 

1. Have the requirements under Schedule 10 of the Agreement been met in relation to the Applicant?

Clause 10.3 of the Agreement is entitled “Finding of Other Suitable Employment” and subclauses 10.3.1 and 10.3.2 provide as follows:

10.3.1 The employer and the CEO must make every endeavour to place a potentially surplus employee in other suitable employment.

10.3.2 In addition to any other action the employer and/or the CEO may have taken in the period before notice is given in accordance with clauses 10.4 or 10.5, the employee and CEO will, during all such periods of notice, make every endeavour to place a surplus employee in other suitable employment.

2. If the answer to question 1 is no:

a. should the Applicant be reinstated to her position;

b. should the Respondent be ordered to comply with Schedule 10 in relation to the Applicant; and

c. what other relief, if any, should be granted by the Commission?

[12] The Applicant raised her concern, in an earlier conciliation conference, as to the effect of any decision made by the Commission, in circumstances where the Agreement had passed its nominal expiry date. In response to this query, the Respondent confirmed, by way of written undertaking, that it did not pursue a jurisdictional objection to the Commission dealing with this matter beyond the nominal expiry date of the Agreement. Clause 12.2(g) of the Agreement facilitated unresolved disputes under the previous Agreement being carried over to the existing Agreement, and the Respondent confirmed in the undertaking, that it was not anticipated that there will be any change to these arrangements in a new agreement.

[13] The Applicant commenced employment with the Respondent on a permanent full-time basis in or about July 2006. On or about 14 February 2016, the Applicant was declared potentially surplus to requirements. The Applicant argued that the Respondent’s redeployment process was deficient as follows:

‘The applicant maintains that the respondent, whether by its case managers who were assigned to assist her in securing a genuine and ongoing vacancy, or otherwise, failed to identify all possible ongoing vacancies during the redeployment process and take the requisite positive steps to redeploy the applicant in an appropriate position. This was, self-evidently, in contravention of the plain and ordinary meaning of the words “make every endeavour to place a surplus employee in other suitable employment”. That is so because:

(a) the applicant was placed in more than 16 different positions between 14 February 2016 and 17 March 2020 that were never truly vacant;

(b) the respondent did not even keep the applicant up to date regarding suitable vacancies as they arose and she was left to source and apply for them herself;

(c) the applicant was denied opportunities to work in an acting role for positions that would make her competitive when they were advertised as being vacant without any explanation;

(d) the applicant was denied opportunities for ‘on the job training’, including at least:

i. in November 2014 – being allowed the opportunity to act in the position ofAO7 Senior Policy & Project Officer (managing the Universal Access program) in Early Childhood Education and Care. This position was originally offered to the applicant, but the offer was then withdrawn with no explanation provided;

ii. in December 2017 - being allowed the opportunity to act in the newly created position of AO7 Senior Policy and Project Officer in Quality Education and Care NT, the same team that the applicant was working in;

iii. in July 2018 – being allowed to undertake operational roles when placed in the position of AO7 Senior Operations Officer in Quality Schools, Systems and Support (QSSS) North.

(e) On at least three occasions she was encouraged to withdraw an application that she made for a vacant position;

(f) the respondent did not make any effort to redeploy the applicant into positions that were genuinely vacant and which were, on any view, appropriate for her skills and experience; and

(g) when the applicant did apply for vacant positions, her applications were not successful because she was deemed to be unsuitable despite having the appropriate skills and experience to fill the role and applicants who were not identified as being potentially surplus to requirements instead.

5. On or about 15 January 2019 the applicant received a notice of redundancy. That correspondence provided her with 52 weeks of notice of redundancy if she was not placed in alternative ongoing employment.

6. The applicant was not placed in alternative ongoing employment and her employment was terminated by the respondent on or about 17 March 2020.

7. The obligation in the agreement to make every endeavour is a high threshold. It, in the very least, requires some positive action by the respondent to redeploy an employee such as the applicant. It appears the respondent’s view is it doesn’t have to comply with the clause, and even if it does, all the clause requires it to do is consider job applications made by the employee as they arise. Such an interpretation, with respect, effectively makes the clause inutile and cannot sensibly be what the parties intended when the clause was negotiated. It is a well-established principle of construction that such clauses are to be interpreted in a way to ensure a sensible industrial outcome1 and to avoid absurd results. Only the applicant’s interpretation is in compliance with those principles.

8. The applicant submits that had the respondent complied with its obligations under the EA she would have been placed in alternative ongoing employment and she would not have lost her employment. Having so found, the Commission would thereafter be empowered by the Act and the EA to fashion appropriate relief to resolve that dispute. In that regard, the applicant continues to seek the relief specified in her submissions of 5 February 2021 at paragraphs 56 to 60.’0F 1

RELEVANT PROVISIONS OF THE ACT(S)

[14] Legislative provisions in relation to the jurisdiction of the Commission to deal with a dispute pursuant to dispute settlement procedures in Enterprise Agreements are found in s.595 and s.739 of the Act.

[15] Section 595 of the Act states:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following (a) by mediation or conciliation (b) by making a recommendation or expressing an opinion.

(2) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(3) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.

Example: The FWC could direct a person to attend a conference under section 592.

(5) To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section”

[16] Section 739 of the Act provides:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[17] Also relevant to this dispute, section 41 of the Public Sector Employment and Management Act 1993 (the PSEM Act) provides:

“Division 2 Redeployment and redundancy

41 Declaration of ongoing employee to be potentially surplus to requirements

(1) If the Chief Executive Officer of an Agency is of the opinion that an ongoing employee is potentially surplus to the requirements of the Agency, the Chief Executive Officer may, by written notice to the employee, declare the employee to be potentially surplus to the requirements of the Agency and state the reasons for the declaration.

(2) The Chief Executive Officer must give a copy of the notice to the Commissioner and any employee organisation prescribed by regulation for the employee.”

[18] Section 59 of the PSEM Act states:

“Part 9 Review of grievances and appeals

Division 1 Grievances

59 Review of grievances

(1) An employee may:

(a) where he or she is aggrieved by the intention of the employee’s Chief Executive Officer to terminate the employee’s employment on probation – within 14 days; or

(aa) if aggrieved by a decision of the employee’s Chief Executive Officer:

(i) under section 44 to take remedial action of a kind mentioned in section 46(1)(b)(i); or

(ii) under section 49A to take disciplinary action of a kind mentioned in section 49C(1)(b)(i) to (iv);

within 14 days after notice of the decision is given to the employee; or

(b) in any other case where the employee is aggrieved by his or her treatment in employment in the Public Sector – within 3 months after the action or decision by which he or she is aggrieved;

request the Commissioner to review the action, intended action or decision complained of.

(2) Subject to subsections (3) and (5A), the Commissioner must:

(a) in a case referred to in subsection (1)(a) or (aa) – within 14 days; and

(b) in any other case – within 3 months;

after a request under subsection (1) is received, or such longer period as, in the Commissioner’s opinion, the circumstances require, review the matter.

(3) Where the Commissioner believes that an employee making a request under subsection (1) has not taken adequate steps to seek redress of the grievance within the relevant Agency, the Commissioner may refer the matter to the Chief Executive Officer of the Agency for consideration within the time specified by the Commissioner and the Commissioner need not review the matter under this section until that time has expired.

(4) Subject to this Act, the Commissioner has the powers necessary and convenient to deal with a request under this section, including the same powers and obligations in relation to a review as an appeal board has under section 59F in relation to an appeal.

(5) After reviewing a matter under this section the Commissioner may:

(a) confirm the action, intended action or decision; or

(b) direct the Chief Executive Officer of the Agency concerned to take or refrain from taking, as the case requires, a specified action.

(5A) The Commissioner may decline to review an action, intended action or decision if satisfied:

(a) the request for review is frivolous, vexatious or not made in good faith; or

(b) alternative proceedings:

(i) have been commenced by, or on behalf of, the employee; and

(ii) have neither:

(A) been withdrawn; nor

(B) failed for want of jurisdiction.

(6) In this section, for the purpose of allowing a review under this section of treatment resulting in the termination of the employment in, or resignation from, the Public Sector of a former employee, employee includes a former employee

(7) In this section:

alternative proceedings means proceedings under another Act or a law of the Commonwealth or of a State or another Territory, for a review of the action, intended action or decision.”

RELEVANT PROVISIONS OF THE AGREEMENT

[19] The dispute settling procedure is provided at clause 12 of the Agreement as follows:

“12.1 The parties are committed to avoiding industrial disputation about the application of this Agreement.

(a) Subject to clause 12.1(b), this clause sets out procedures to be followed for avoiding and resolving disputes in relation to:

(i) a matter arising under this Agreement; or

(ii) the National Employment Standard.

(b) However, this clause does not apply in relation to disputes about:

(i) refusals for requests for flexible working arrangements on reasonable business grounds under clauses 36 and 37.20(e) of the Agreement and section 65(5) of the FW Act;

(ii) refusals for requests for extended parental leave on reasonable business grounds under clause 37.21 of the Agreement and section 76(4) of the FW Act; and

(iii) assessment outcomes for Senior Classification level positions.

(c) An employee who has a grievance about matters referred to in clause 12.1(b) can utilise section 59 of the PSEM Act to have the decision reviewed.

(d) In the event of a dispute about a By-law issued under the PSEM Act clauses 12.3 to 12.4 will apply.

12.2 General

(a) Subject to the requirements of the FW Act a party to a dispute may appoint another person, organisation or association to accompany or represent them at any stage of the dispute.

(b) The parties to a dispute must genuinely attempt to resolve the dispute through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.

(c) Whilst a dispute is being dealt with in accordance with this clause, work must continue in accordance with usual practice prior to the dispute arising, provided that this does not apply to an employee who has reasonable concerns about an imminent risk to their health and safety, has advised the CEO of this concern and has not unreasonably failed to comply with a direction by the CEO to perform other available work that is safe and appropriate for the employee to perform.

(d) Subject to any agreement between the parties in relation to a particular dispute, it is agreed that the provisions of the FW Act will be applied by the FWC with respect to the exercising of its functions and powers under this clause.

(e) Any decision or direction the FWC makes in relation to the dispute shall be in writing.

(f) Subject to the right of appeal under clause 12.5(d) any direction or decision of the FWC, be it procedural or final, shall be accepted by all affected persons and complied with by the parties.

(g) A dispute being dealt with in accordance with the Northern Territory Public Sector 2013-2017 Enterprise Agreement or the National Employment Standards that remains unresolved at the commencement of this Agreement will continue to apply as if those terms formed part of this Agreement.

12.3 Internal Resolution

(a) In the event of a dispute, the parties will in the first instance endeavour to resolve the matter internally as follows:

(i) The employee will refer the matter to their immediate supervisor for resolution, who may request that the employee provide written details of the matter, provided that where the dispute concerns alleged actions of the immediate supervisor, the employee may by-pass this step.

(ii) If the matter cannot be resolved under clause 12.3(a)(i) above, it will be referred in writing to the relevant manager for resolution.

(iii) If the matter cannot be resolved under clause 12.3(a)(ii) above, it will be referred in writing to the relevant CEO for resolution.

(iv) If the matter cannot be resolved under clause 12.3(a)(iii) above, it will be referred in writing to the Commissioner for resolution.

(b) Where reasonably practicable, attempts to resolve the matter under each stage of the process referred to in clause 12.3(a) will begin within 48 hours of, and be completed within five working days of the referral relating to that particular stage.

12.4 Conciliation

(a) If the dispute remains unresolved after the parties have genuinely attempted to reach a resolution in accordance with clause 12.3, any party may refer the dispute to the FWC, for resolution by conciliation.

(b) Provided the requirements of clauses 12.2 and 12.3 have been met by the parties to the dispute, it is agreed that jurisdiction will not be raised by any party at conciliation.

(c) Conciliation before the FWC shall be regarded as completed when:

(i) the parties have reached agreement on the settlement of the dispute; or

(ii) the member of the FWC conducting the conciliation has either of the member’s own motion or after application by any party, satisfied themselves that there is no likelihood that further conciliation will result in a settlement within a reasonable period.

12.5 Arbitration

(a) If a dispute remains unresolved at the completion of conciliation, either party may refer the dispute to the FWC for determination by arbitration, subject to any jurisdictional submissions.

(b) Where a member of the FWC has exercised conciliation powers in relation to the dispute, that member will not be the member responsible for conducting the arbitration if any party to the dispute objects to that member doing so.

(c) Subject to clause 12.5(d), the determination of the FWC is final and binding.

(d) A party may appeal an arbitrated decision of a single member of the FWC, with leave of the full bench, provided that such appeal is lodged within 21 days of the decision being made.”

[20] As to redeployment and related matters, Schedule 10 of the Agreement provides:

“Schedule 10 - Northern Territory Public Sector Redeployment and Redundancy Entitlements

10.1 Definitions

10.1.1 For the purposes of these provisions:

(a) potentially surplus employee means an employee who has been declared by the CEO to be potentially surplus to the requirements of the agency under section 41 of the PSEM Act.

(b) service means a period of continuous service as defined in the FW Act, and which includes service as a compulsory transferee as defined in accordance with By-Law 45.1 of the PSEM Act.

(c) suitable employment means employment within the NTPS that the employee is capable of performing and is competent and qualified to perform, having regard to section 5D(2) of the PSEM Act, which must be considered in the context of reasonable training possibilities.

(d) surplus employee means an employee in relation to whom the CEO has requested that the employer exercise their powers under section 43 of the PSEM Act.

(e) union means a trade union as defined in the FW Act and which is covered by this Agreement.

…

10.3 Finding of Other Suitable Employment

10.3.1 The employer and the CEO must make every endeavour to place a potentially surplus employee in other suitable employment.

10.3.2 In addition to any other action the employer and/or the CEO may have taken in the period before notice is given in accordance with clauses 10.4 or 10.5, the employee and CEO will, during all such periods of notice, make every endeavour to place a surplus employee in other suitable employment. (emphasis added)

10.3.3 Where other suitable employment for a potentially surplus employee or a surplus employee is identified the employee will be transferred. Where the transfer is to a lower level designation and salary, the written consent of the employee is required and the income maintenance provisions of clause 10.6.3 apply.

10.4 Voluntary Retrenchment

10.4.1 Where a surplus employee is unable to be placed in other suitable employment, the employer may offer the employee a voluntary retrenchment.

10.4.2 The surplus employee will have up to seven days from the date of a written offer of voluntary retrenchment to consider and accept the offer.

10.4.3 Where the surplus employee accepts a voluntary retrenchment, the employee is entitled to a period of four weeks notice from the date that the offer is accepted, or five weeks notice if the employee is over the age of 45 years.

10.4.4 The surplus employee may be retrenched at any time within the period of notice under clause 10.4.3, at the direction of the CEO or the request of the employee, in which case the employee is entitled to receive payment in lieu of salary for the unexpired portion of the notice period.

10.4.5 A surplus employee retrenched in accordance with this clause is entitled to be paid a sum equal to the following weeks salary including, where applicable, Northern Territory allowance:

(a) For an employee with at least one year but less than two years service: four weeks salary;

(b) For an employee with at least two years but less than three years service: six weeks salary;

(c) For an employee with between three years and three and a half years service: seven weeks salary; and

(d) For an employee with greater than three and a half years service: two weeks salary for each year of service plus a pro rata payment for the months of service completed since the last year of continuous service, provided that the maximum payable is 48 weeks salary…

10.5 Notice of Redundancy

10.5.1 A surplus employee cannot be given notice under this clause unless the employee has:

(a) been offered a voluntary retrenchment and has declined that offer; or

(b) has requested a voluntary retrenchment and the employer has refused the request.

…

10.5.6 In accordance with clause 10.3.2, during the notice periods referred to in this clause the employer and CEO will continue to make all reasonable endeavours to place the surplus employee into other suitable employment.

…

10.8 Right of Review

10.8.1 A surplus employee will have a right of review to the Commissioner against any administrative decision made in relation to the employee’s eligibility for benefits under these provisions or in relation to the amount of those benefits.

10.8.2 This right does not affect the employee’s rights under the FW Act.”

(emphasis added)

[21] In terms of the operation of the Agreement, sections 6.1 and 6.2 set out:

“6.1 This Agreement is a comprehensive agreement and provides the terms and conditions of employment of employees covered by this Agreement, other than terms and conditions applying under applicable legislation, including the PSEM Act and FW Act.

6.2 In the event of any inconsistency between them, the terms and conditions of Parts 1 to Part 5 of this Agreement will prevail over terms and conditions of Schedule 2 to Schedule 8 and Schedule 10.”

[22] In addition, sections 7.1 and 7.2 of the Agreement set out:

“7.1 The parties acknowledge the long established and continuing role of the PSEM Act as an instrument regulating NTPS conditions of employment.

7.2 This Agreement will be read in conjunction with the PSEM Act and will prevail over the PSEM Act to the extent of any inconsistency. For the avoidance of doubt, the PSEM Act is not incorporated into the Agreement.”

SUMMARY OF THE APPLICANT’S JURISDICTIONAL SUBMISSIONS

Whether the Commission has power to review decisions made by the Northern Territory Commissioner for Public Employment pursuant to section 59 of the Public Sector Employment and Management Act 1993 (NT)

[23] Clause 12 provides:

“The parties are committed to avoiding industrial disputation about the application of this Agreement.

(i) a matter arising under this Agreement; or

(ii) the National Employment Standard.

(i) refusals for requests for flexible working arrangements on reasonable business grounds under clauses 36 and 37.20(e) of the Agreement and section 65(5) of the FW Act;

(ii) refusals for requests for extended parental leave on reasonable business grounds under clause 37.21 of the Agreement and section 76(4) of the FW Act; and

(iii) assessment outcomes for Senior Classification level positions.

[24] The Applicant submitted:

[25] The Applicant submitted further that clause 12.2 to 12.5 provide:

(i) The employee will refer the matter to their immediate supervisor for resolution, who may request that the employee provide written details of the matter, provided that where the dispute concerns alleged actions of the immediate supervisor, the employee may by-pass this step.

(ii) If the matter cannot be resolved under clause 12.3(a)(i) above, it will be referred in writing to the relevant manager for resolution.

(iii) If the matter cannot be resolved under clause 12.3(a)(ii) above, it will be referred in writing to the relevant CEO for resolution.

(iv) If the matter cannot be resolved under clause 12.3(a)(iii) above, it will be referred in writing to the Commissioner for resolution.

(i) the parties have reached agreement on the settlement of the dispute;

or

(ii) the member of the FWC conducting the conciliation has either of the member’s own motion or after application by any party, satisfied themselves that there is no likelihood that further conciliation will result in a settlement within a reasonable period.

[26] The Applicant submitted that on the words in clause 12, there is nothing to limit the Commission from exercising the ‘private arbitral power’, conferred on it by the Agreement and by s.739 of the Act. The Applicant maintained that she complied with the requirements of clause 12.3 before escalating the dispute to the Commission, and having done so, the Commission is “seized with jurisdiction to arbitrate this matter”.

[27] The Applicant referred to the Full Bench appeal decision in DP World Brisbane Pty Ltd,1F 2 where it stated:

“[47] As a matter of general principle when jurisdiction is conferred on an established court or tribunal it may be assumed that the legislature intended to take the court as it finds it, with all its incidents including any liability to appeal. This presumption is clearly stated by the High Court in Electric Light and Power Supply Corp Ltd v Electricity Commission of New South Wales:

“When the legislative finds that a specific question of judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislative does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may be made that it takes it as it finds it with all its incidents...”

[28] The Applicant submitted that, even if it could be said that the Agreement contains an implied exclusion of the kind suggested by the Respondent, which the Applicant denied, this question is “fundamentally based on a false premise”. The Applicant submitted that she does not seek a review of a decision of the Northern Territory Commissioner for Public Employment, rather she seeks to enforce the terms of the Agreement. The Applicant submitted that the current dispute concerns whether the Respondent met those requirements on the facts of the matter, “thereby falling squarely within the contemplation of the relevant disputes’ procedure”.

Whether, to the extent of any inconsistency, the Agreement prevails over Part 6 of the Public Sector Employment and Management Act 1993 (NT), or Employment Instructions made by the Commissioner for Public Employment pursuant to section 16 of the Public Sector Employment and Management Act 1993 (NT)?

[29] The Applicant noted that Part 6 of the PSEM Act provides:

“Secondment and redeployment

42 Transfer of surplus employees

(1) A Chief Executive Officer may transfer under this section an ongoing employee declared under section 41(1) to be potentially surplus, including to perform duties in a different locality from the duties previously being performed by the employee.

(2) The merit principle does not apply in relation to the exercise of a power under this section.

43 Redeployment and redundancy

(1) Where a Chief Executive Officer is unable under section 35 or 42 to transfer an ongoing employee declared under section 41(1) to be potentially surplus, the Chief Executive Officer may request the Commissioner to exercise the Commissioner’s powers under this section.

(2) Where the Commissioner receives a request under subsection (1), the Commissioner may:

do either or both of the following:

(i) direct the Chief Executive Officer to take such steps in relation to the training and redeployment of the employee, within such time, as the Commissioner thinks fit;

(ii) give any other Chief Executive Officer directions relating to the transfer of the employee under section 35; or

(b) direct the Chief Executive Officer to terminate the employment of the employee in the Public Sector on such conditions as the Commissioner thinks fit.”

[30] Further, section 16 of the PSEM Act provides:

(1) The Commissioner may, by Gazette notice, make rules, not inconsistent with this Act, to be known as “Employment Instructions”:

(a) relating to the functions and powers of the Commissioner under this Act; or

(b) otherwise relating to the good management of the Public Sector.

(2) Without limiting the generality of subsection (1), the Employment Instructions may do one or more of the following:

(a) require a matter affected by them to be approved by, or be to the satisfaction of, a specified person or body;

(b) confer on a specified person or body, or a person or body of a specified class, a discretionary authority;

(c) include a Code of Conduct to be observed in the Public Sector.

(3) Sections 57 and 63 of the Interpretation Act 1978 do not apply in relation to Employment Instructions.”

[31] The Applicant stated that the Respondent sought to rely on s.40 of the Act, in its submissions that the above provisions of the PSEM Act prevail, over the terms of the Agreement.

[32] Section 40 of the FW Act provides:

Generally, public sector employment laws prevail

(1) A public sector employment law prevails over a fair work instrument that deals with public sector employment, to the extent of any inconsistency.

When fair work instruments or their terms prevail

(2) However, a fair work instrument, or a term of a fair work instrument, that deals with public sector employment prevails over a public sector employment law, to the extent of any inconsistency, if:

(a) the instrument or term is prescribed by the regulations for the purposes of that particular law; or

(b) the instrument or term (other than an FWA order or a term of an FWA order) is included in a class of instruments or terms that are prescribed by the regulations for the purposes of that particular law.

[33] The Applicant stated that under s.40(2) of the Act, fair work instruments, or terms of fair work instruments, that deal with public sector employment prevail over the public sector laws, to the extent of any inconsistency, where the instrument or term is prescribed by the regulations. The Applicant stated there is nothing prescribed in the Regulations in relation to the PSEM Act.

[34] The Applicant submitted that there is no material inconsistency between the relevant terms of Agreement and the PSEM Act. The Applicant stated that the Respondent can “plainly comply with both sets of obligations”.2F 3 The Applicant submitted that there is nothing in the PSEM Act that would indicate it was intended to “cover the field”3F4 in this area; and neither set of provisions “Alter, impair or detract…”4F5 from the other. The Applicant’s position is that the Agreement provides a beneficial entitlement to employees during the redundancy period in relation to redeployment, and then provides the Applicant with the right to escalate a dispute about such matters to the Commission. The Applicant said that the relevant provisions of the PSEM Act do not ‘curtail’ that right and they are not inconsistent with it.

[35] The Applicant submitted that the fact that some of the conduct of the Respondent was reviewed by the Commissioner in a section 59 review process pursued by the Applicant is irrelevant. She stated that to the extent there was any doubt about that, it is “comprehensively put to bed by clause 8 of Schedule 10 of the Agreement”, which she says makes clear that the right of review does not affect the employee’s rights under the Fair Work Act.

[36] The Applicant argued that, through the Agreement, the Respondent willingly bargained for and agreed a comprehensive procedure to govern the redundancy process. It then made those provisions subject to the Agreement’s dispute procedure. The Applicant said that the Respondent now claims that there is an implied exclusion of those terms from the disputes procedure and that they are unenforceable in any event because of an apparent inconsistency with the PSEM Act. The Applicant stated that in doing so, the Respondent was attempting to “retrospectively recharacterize the terms of the Agreement and withdraw from legal obligations it willingly bargained”. The Applicant therefore said the Commission would “rightly be reluctant to facilitate such an approach”.

Whether clause 12 of the Agreement permits the Commission to conduct an inquiry to ascertain whether there are circumstances that may identify a breach of the agreement?

[37] Further to her submissions as provided above, the Applicant also noted that the Commission routinely deals with matters pursuant to s.739 which involve a dispute about compliance with a particular term. She said therefore, there is nothing unique about this matter that might render it outside the Commission’s power. The Applicant submitted that, in any event, she does not seek any declaration of contravention or similar, which is a role of the Courts.

Whether the Applicant has genuinely attempted to resolve a dispute in accordance with clause 12.2 of the Agreement?

[38] The Applicant referred to and relied on the F10 Application filed and her submissions as outlined above, and sought for the Commission to deal with this dispute accordingly.

SUMMARY OF THE RESPONDENT’S JURISDICTIONAL SUBMISSIONS

[39] The Respondent submitted that the matter should be dismissed by the Commission on the basis that:

a. there is no genuine dispute about the application of the Northern Territory Public Sector 2017-2021 Enterprise Agreement (the Agreement);

b. the Applicant’s ‘dispute’ is a complaint about unsuccessful recruitment outcomes during the Applicant’s period of redeployment;

c. recruitment outcomes and processes during redeployment periods are regulated by Northern Territory public sector employment laws. The Commission has no jurisdiction in respect to these matters;

d. the Agreement does not provide the Commission with the power to review decisions made by the Commissioner for Public Employment pursuant to section 59 of the Public Sector Employment and Management Act 1993 (NT) (the PSEM Act) in relation to matters regulated by the PSEM Act and its subordinate instruments;

e. the Commission does not have the power to make the orders sought by the Applicant in these proceedings.

[40] The Respondent noted that the Applicant alleged that the Respondent failed to comply with Schedule 10 of the Agreement. The Respondent submitted that the matters raised by the Applicant in support of this allegation, including in her form F10 and other supporting documents, relate to recruitment actions that have been undertaken in accordance with Northern Territory public sector employment laws. The Respondent submitted that the alleged dispute is essentially a complaint about a number of unsuccessful recruitment outcomes during the Applicant’s redeployment period. The Respondent submitted that an allegation of this nature is not a dispute about the application of the Agreement, which is required to enliven this jurisdiction.

[41] In terms of the Respondent’s jurisdictional objection, the Respondent argued that the Fair Work Commission was jurisdictionally barred from proceeding to deal with the matter by way of arbitration, as the matter had been the subject of a review by the Commissioner exercising powers under the PSEM Act. The Commissioner’s outcome stated:

“Dear Ms Scurr

Request to Rescind Notice of Redundancy

I refer to your email to Ms Rachael Dunn, Director Public Sector Appeals & Grievance Reviews on 22 October 2019 requesting that I review your redeployment status as it is your belief that as an ongoing employee of a large organisation you could be easily redeployed due to your broad range of skills and experience, and therefore you should not have been issued a notice of redundancy. On this basis you have requested that I rescind the notice of redundancy.

Having carefully considering your circumstances, I am declining your request as I am satisfied that the obligations of the Public Sector Employment and Management Act 1993, Employment Instruction Number 14 - Redeployment and Redundancy Procedures (El14) and Schedule 10 - Redeployment and Redundancy Entitlements of the Northern Territory Public Sector 2017 - 2021 Enterprise Agreement have been met. Specifically:

•  The Chief Executive Officer of the Department of Education (DoE) declared you potentially surplus to agency requirements (a redeployee) on 14 February 2016 having determined that there were no suitable alternative duties within the agency that you could be transferred to and that you had been an unattached officer with the agency since 10 December 2015.

•  Since being declared a redeployee, the provisions of E114 have been applied to you, precisely:

•  You have been provided with meaningful employment, training and coaching opportunities.

•  You have received preferential treatment when applying for vacancies, and while your suitability for a role must be demonstrated in the context of reasonable training possibilities, the merit principle has not been applied to you.

•  On each occasion that a selection panel has found you unsuitable, even with a reasonable period of training, the recruitment panel findings have been reviewed and affirmed by this Office.

•  Your claims that you have not been afforded natural justice and that the selection panels have erred in finding you unsuitable have been investigated and responded to in writing and face to face by representatives from the Employee Relations Unit and Public Sector Appeals and Grievance Review Unit on several occasions.

•  Whilst I appreciate that you hold a particular view about the level of your performance, skills and experience, consistently well placed referees, when reflecting on their observations of your performance in the workplace, do not share the same view.

•  The notice of redundancy was issued to you only after you declined an offer of voluntary retrenchment (VR) on 13 July 2018. Had you accepted that offer you would have received an additional six months’ salary. At the time of that offer, you were made aware that if it was declined, no further incentivised offers would be made and that notice of redundancy would be applied, during which time redeployment efforts would continue. You did not accept the offer of VR and were issued 52 weeks’ notice of redundancy on 15 January 2019.

In accordance with the NTPS redeployment and redundancy provisions, which are consistent with the Fair Work Act requirements, redeployment efforts have and will continue to be made until such time as you are successful in gaining on going employment or the notice of redundancy expires. During this time you should continue to engage with your case manager at the DoE to identify suitable alternative vacancies to secure ongoing employment.

Should you have any further queries in relation to this matter please contact Ms Sue Barnes, Senior Consultant Employee Relations on phone (redacted) or email (redacted).

Yours sincerely

Vicki Telfer

Commissioner for Public Employment”

Section 59 Grievance

[42] The Respondent noted that the Form F10 filed by the Applicant referred to and attached documents relating to a grievance made by the Applicant pursuant to section 59 of the PSEM Act. Section 59 provides public sector employees with a right to seek a review of their treatment in employment.

[43] The Respondent noted that on 9 July 2019, the Applicant lodged a grievance under section 59 in relation to her unsuccessful application for a position with the Department of Local Government, Housing and Community Development. The Applicant sought a review of the process and the outcome of her assessment for the position as a redeployee. The Respondent noted these are matters that are regulated by Employment Instruction 14 - Redeployment and Redundancy Procedures.

[44] The Respondent submitted that on 11 July 2019, the Applicant was advised of the outcome of the review of her grievance, and that the Acting Commissioner for Public Employment would not be taking further action. This was a decision made by the Acting Commissioner for Public Employment pursuant to section 59(5) of the PSEM Act. The Respondent confirmed that the Applicant was not satisfied with this outcome, and requested a complete review of her situation by the newly appointed Commissioner for Public Employment.

[45] On 1 November 2019, the Applicant was advised of the outcome of this review and that the Commissioner for Public Employment declined the Applicant’s request to rescind her notice of redundancy. This was a decision made by the Commissioner for Public Employment pursuant to section 59(5) of the PSEM Act.

[46] The Respondent stated that the matters raised by the Applicant through the section 59 review process were dealt with in accordance with the PSEM Act. The Respondent submitted that the complaint made was about a matter arising under the PSEM Act, and was not a dispute about a matter arising under the Agreement.

Jurisdictional matters

[47] The Respondent outlined the redundancy and redeployment framework as follows.

[48] The Applicant alleged that Schedule 10 of the Agreement is “a comprehensive procedure to govern the redundancy process”. The Respondent submitted however that the Applicant has misunderstood the scope of the NTPS redundancy and redeployment framework. The Respondent submitted that the framework is comprised of:

a. Division 2 – Redeployment and Redundancy - of Part 6 of the PSEM Act. This Division establishes certain powers for Chief Executive Officers and the Commissioner for Public Employment in relation to the redeployment and redundancy process;

b. Employment Instruction 14 - Redeployment and Redundancy Procedures, which is a public sector employment law, made by the Commissioner for Public Employment under section 16 of the PSEM Act. The Employment Instruction sets out the procedures to be followed by the employer, Chief Executive Officers, case managers and redeployees;

c. Schedule 10 - Northern Territory Public Sector Redeployment and Redundancy Entitlements - of the Agreement.

[49] The Respondent submitted that that NTPS redeployment and redundancy framework has a long history and is well understood by the industrial parties in the Northern Territory.

[50] The content of Employment Instruction 14 and Schedule 10 of the Agreement previously existed together in NTPS enterprise agreements, up until the commencement of the NTPS 2013-2017 Enterprise Agreement. The Respondent stated that at that time, the redeployment procedures that had existed in the previous enterprise agreement were removed from the agreement and updated into Employment Instruction 14. The redeployment and redundancy entitlements remained in the enterprise agreement and now exist as Schedule 10 of the Agreement.

[51] The Respondent submitted that the purpose of the change was to ensure that provisions dealing with employee entitlements remained in the enterprise agreement, and that provisions dealing with procedural matters relating to redeployment were contained in the Employment Instruction. It submitted that this was communicated to employees at the time, including in explanatory information supporting the ballot for the enterprise agreement.

[52] The Respondent submitted that the Applicant’s complaint in this matter is essentially about procedural matters relating to her redeployment which are regulated by Employment Instruction 14, not the Agreement. The Respondent submitted that in bringing this dispute, the Applicant was seeking to give the expression “make all reasonable endeavours” found in the Agreement a “new and uncertain meaning”, which it says is inconsistent with the statutory obligations and procedures already established and regulated for many years under Employment Instruction 14, and earlier enterprise agreements.

Whether clause 12 of the Agreement provides the Commission with power to review decisions made by the Northern Territory Commissioner for Public Employment pursuant to section 59 of the PSEM Act?

[53] The Respondent submitted that section 59 of the PSEM Act provides public sector employees with a right to seek a review of their treatment in employment. The Commissioner for Public Employment is obliged to review the matter raised by the employee, in accordance with s.59(2).

[54] The Respondent noted that the Commissioner for Public Employment may:

a. Refer the matter to the Chief Executive Officer of the Agency for consideration (s59(3));

b. Confirm the action or decision (s59(5)(a));

c. Direct the Chief Executive Officer of the Agency to take or refrain from taking a specified action (s59(5)(b)).

[55] The Respondent stated that a decision made by the Commissioner for Public Employment pursuant to section 59, is a decision made in accordance with the PSEM Act; and is not a decision made in accordance with the requirements of the Agreement.

[56] Clause 12.1 of the Agreement provides:

12. Dispute Settling Procedures

12.1 The parties are committed to avoiding industrial disputation about the application of this Agreement.

(a) Subject to clause 12.1(b), this clause sets out procedures to be followed for avoiding and resolving disputes in relation to:

(i) a matter arising under this Agreement; or

(ii) the National Employment Standard.

(b) However, this clause does not apply in relation to disputes about:

(i) refusals for requests for flexible working arrangements on reasonable business grounds under clauses 36 and 37.20(e) of the Agreement and section 65(5) of the FW Act;

(ii) refusals for requests for extended parental leave on reasonable business grounds under clause 37.21 of the Agreement and section 76(4) of the FW Act; and

(iii) assessment outcomes for Senior Classification level positions.

(c) An employee who has a grievance about matters referred to in clause 12.1(b) can utilise section 59 of the PSEM Act to have the decision reviewed.

(d) In the event of a dispute about a By-law issued under the PSEM Act clauses 12.3 to 12.4 will apply.

[57] The Respondent submitted that clause 12.1(a) makes clear that the dispute settling procedures only apply in relation to matters arising under the Agreement or the NES, and do not apply to other types of disputes.

[58] The Respondent submitted that clause 12.1(b) excludes particular decisions that may be made under the Agreement or the NES from the dispute settling procedures.

[59] The Respondent submitted that clause 12.1(c) has “no operative effect” in relation to the dispute settling procedures; despite the Applicant’s submission to the contrary. The Respondent submitted that clause 12.1(c) is “merely a signpost to employees”, and advises employees who have a dispute about a matter that is excluded from the dispute settling procedures by clause 12.1(b), that they may instead utilise the section 59 grievance mechanism. The Respondent submitted that the clause has no relevance to matters under Schedule 10 of the Agreement.

[60] Further, the Respondent submitted that clause 12.1(c) does not ‘broaden’ the dispute settling procedures to matters arising under section 59 of the PSEM Act. A dispute must be about a matter arising under the Agreement or the NES to enliven the dispute settling procedures within the Agreement, and not be about an excluded decision.

[61] The Respondent stated that clause 12 of the Agreement does not provide the Commission with jurisdiction to review decisions made by the Commissioner for Public Employment pursuant to section 59 of the PSEM Act, in relation to matters regulated by the PSEM Act and its subordinate instruments.

Whether, to the extent of any inconsistency, the Agreement prevails over Part 6 of the Public Sector Employment and Management Act 1993 (NT), or Employment Instructions made by the Commissioner for Public Employment pursuant to section 16 of the Public Sector Employment and Management Act 1993 (NT)?

[62] The Respondent submitted that, as outlined above, Schedule 10 of the Agreement is not “a comprehensive procedure to govern the redundancy process” as suggested by the Applicant. The Respondent submitted that in summary, that the NTPS redundancy and redeployment framework may be described as follows:

a. Redundancy and redeployment procedures are regulated by Employment Instruction 14.

b. Redundancy and redeployment entitlements are regulated by Schedule 10 of the Agreement.

c. certain powers for Chief Executive Officers and the Commissioner for Public Employment in relation to the redeployment and redundancy process are established by Part 6 of the PSEM Act.

[63] Section 40 of the Act relevantly provides:

“40 Interaction between fair work instruments and public sector employment laws

Generally, public sector employment laws prevail

(1) A public sector employment law prevails over a fair work instrument that deals with public sector employment, to the extent of any inconsistency.

When fair work instruments or their terms prevail

(2) However, a fair work instrument, or a term of a fair work instrument, that deals with public sector employment prevails over a public sector employment law, to the extent of any inconsistency, if:

(a) the instrument or term is prescribed by the regulations for the purposes of that particular law; or

(b) the instrument or term (other than an FWC order or a term of an FWC order) is included in a class of instruments or terms that are prescribed by the regulations for the purposes of that particular law.

Meaning of public sector employment law

(3) A public sector employment law is a law of the Commonwealth (other than this Act) or a Territory, or a term of an instrument made under such a law, that deals with public sector employment.

…

Relationship with section 29

(5) This section prevails over section 29, to the extent of any inconsistency.”

[64] The Respondent submitted pursuant to s.29 of the Act, the default position is that an enterprise agreement prevails over a State or Territory law, to the extent of any inconsistency. The Respondent submitted however, s.40(1) of the Act “essentially reverses that position”, so that a public sector employment law prevails over a public sector enterprise agreement “(being a fair work instrument that deals with public sector employment)”, to the extent of any inconsistency.

[65] The Respondent stated that s.40(2) enables the position to be ‘re-reversed’, by providing that a fair work instrument (or term of the instrument) prevails over the public sector employment law to the extent of any inconsistency, if the instrument (or term) is prescribed by the regulations for the purposes of that particular law (or included in a class of prescribed instruments). It says however, there is no such relevant prescription for the purposes of this matter.

[66] The PSEM Act and Employment Instruction 14 (an instrument made under the PSEM Act) are both public sector employment laws, as defined in s.40(3) of the FW Act. The Respondent submitted, therefore, Part 6 of the PSEM Act and Employment Instruction 14, prevail over the Agreement to the extent of any inconsistency. The Respondent submitted that this means the obligations and requirements relating to redundancy and redeployment procedures established in Employment Instruction 14 prevail over any inconsistent expression within Schedule 10 of the Agreement.

Whether clause 12 of the Agreement permits the Commission to conduct an inquiry to ascertain whether there are circumstances that may identify a breach of the agreement?

[67] Clause 12 of the Agreement sets out the procedures to be followed for avoiding and resolving disputes in relation to a matter arising under Agreement or the NES. The clause provides the Commission with the power to conciliate and arbitrate a dispute, subject to the requirements of the term.

[68] The Respondent submitted that a precondition to the exercise of any power by the Commission pursuant to s.739 is to be able to identify what the dispute actually is, in order that it may be determined. In this regard, the Respondent submitted that the Applicant’s complaint “has essentially been that the Respondent has not done enough to support the Applicant during the redeployment period”. It submits that the Applicant has made “generalised comments about a perceived lack of support or a perceived lack of positive steps being taken by the Respondent”.

[69] The Respondent submitted that it cannot be in a dispute with the Applicant about these claims, as it has been unaware of what additional support was sought, or what additional steps it could be taking.

[70] The Respondent stated that it is only from 5 February 2021, that the Applicant has identified a number of specific circumstances of complaint. The Applicant alleged that these circumstances demonstrate a failure of the Respondent to comply with the Agreement.

[71] The Respondent submitted however, the Applicant’s allegation does not demonstrate an ‘actual dispute’ between the parties about a matter arising under the Agreement. Rather, the allegation is that the Respondent has breached the Agreement.

[72] The Respondent submitted that the dispute procedure under clause 12 of the Agreement provides the Commission with a power to determine an ‘actual dispute’ between the parties by arbitration, but does not provide the Commission with power to undertake “nonspecific and generalised inquiries” into the conduct of parties to determine whether they may, or may not, have breached an enterprise agreement.

Whether the Applicant has genuinely attempted to resolve a dispute in accordance with clause 12.2 of the NTPS Enterprise Agreement?

[73] Clause 12.2(b) of the Agreement provides that:

“12.2 General

…

(b) The parties to a dispute must genuinely attempt to resolve the dispute through the processes set out in this clause and must cooperate to ensure that these processes are carried out expeditiously.”

[74] Clause 12.3 of the Agreement further provides that:

“12.3 Internal Resolution

(a) In the event of a dispute, the parties will in the first instance endeavour to resolve the matter internally as follows:

i. The employee will refer the matter to their immediate supervisor for resolution, who may request that the employee provide written details of the matter, provided that where the dispute concerns alleged actions of the immediate supervisor, the employee may by-pass this step.

ii. If the matter cannot be resolved under clause 12.3(a)(i) above, it will be referred in writing to the relevant manager for resolution.

iii. If the matter cannot be resolved under clause 12.3(a)(ii) above, it will be referred in writing to the relevant CEO for resolution.

iv. If the matter cannot be resolved under clause 12.3(a)(iii) above, it will be referred in writing to the Commissioner for resolution.

(b) Where reasonably practicable, attempts to resolve the matter under each stage of the process referred to in clause 12.3(a) will begin within 48 hours of, and be completed within five working days of the referral relating to that particular stage.”

[75] The Respondent submitted that the objective of the dispute settling procedures is to avoid industrial disputation about the application of the Agreement or the NES. The Respondent submitted that the procedures seek to achieve this objective by requiring the parties to identify their dispute in writing through their management chain, and then to the Commissioner for Public Employment if it has not been resolved. The procedures require that the parties attempt to resolve their dispute in an expeditious manner.

[76] The Respondent submitted that compliance with these provisions is a precondition to the exercise of conciliation and arbitration powers by the Commission, pursuant to clauses 12.4(a) and 12.5(a) of the Agreement. The Respondent submitted that these preconditions are limitations on the exercise of powers by the Commission.

[77] The Respondent submitted, consistent with s.739(3) of the Act, the Commission must not exercise any powers limited by the disputes settling term. As identified by Senior Deputy President Kaufman in Shields v Alfred Health:5F 6

“Apart from the manifest public interest in parties abiding by the dispute resolution processes upon which they have agreed, Fair Work Australia in dealing with a dispute pursuant to a term in an enterprise agreement may not exercise any powers limited by the term. Here the term precludes Fair Work Australia from dealing with dispute unless there has been a genuine attempt by the parties to resolve the dispute.”

[78] The Respondent submitted that the Applicant has only identified the matters in dispute as at 5 February 2021. The Respondent therefore submitted that the Applicant did not comply with the internal resolution steps at clause 12.3 and has not genuinely tried to resolve the dispute as required by clause 12.2.

[79] The Respondent stated that accordingly, the Agreement limits the exercise of powers by the Commission in relation to this matter.

SUMMARY OF THE APPLICANT’S MERITS SUBMISSIONS

[80] The Applicant submitted that the current dispute arises under Schedule 10 of the Agreement and relates to issues of whether the Respondent made “every endeavour” to actively place the Applicant in a suitable position from 14 February 2019, after the Respondent issued the notice of redundancy on 15 January 2019 and up until and including the date of termination, and whether the Respondent was required to do more to satisfy their obligations under the Agreement.

[81] The Applicant provided the following ‘factual matrix’ of the circumstances:

“The Applicant commenced employment with the Northern Territory Public Service (NTPS) on 13 July 2006.

On 10 December 2015, the Applicant, utilising the Respondent’s language, was ‘unattached’ from her substantive position with the Teacher Registration Board.

On 14 February 2016, the Chief Executive Officer of DoE declared the Applicant ‘potentially surplus to the requirements of the Agency’ (a redeployee), pursuant to section 41 of the Public Sector Employment and Management Act 1993 (PSEM Act).

The Respondent now alleges that since 14 February 2016 the ‘Redeployment and Redundancy Procedures in Employment Instruction 14 applied to the Applicant.’ The Respondent alleges that:

(c) the Applicant was supported by a case manager, who arranged external coaching and job placements within the NTPS;

(d) the Applicant was referred to ongoing NTPS vacancies;

(e) the Applicant received ‘preferential consideration for vacancies over other applicants (the merit selection principle is not applied to redeployees who apply for a vacancy at their level or at a lower level);

(f) the assessment of the Applicant’s suitability for a vacancy was considered in the context of reasonable training possibilities; and

(g) on each occasion the Applicant was found unsuitable for a role by a recruitment panel, even with reasonable training, the panel findings have been reviewed and affirmed by the Commissioner for Public Employment.

On 13 July 2018, following a period of two years and five months as a redeployee, the Applicant was offered a voluntary redundancy. The Applicant did not accept the voluntary redundancy.

On 15 January 2019, the Applicant was given 52 weeks’ notice of redundancy.

The Respondent alleges that the redeployment procedures in Employment Instruction 14 continued to apply to the Applicant in that period.

On 9 July 2019 the Applicant submitted a grievance under section 59 of the PSEM Act, in relation to her unsuccessful application for a position with the Department of Local Government, Housing and Community Development.

On 11 July 2019, the Applicant was advised of the outcome of the review the grievance outlined above, and that the Commission for Public Employment would not be taking further action.

On 5 September 2019, the Applicant requested a complete review of her employment situation and requested that the notice of redundancy be rescinded. The Commissioner for Public Employment declined the Applicant’s request to rescind the notice of redundancy.

The Applicant final date of employment was 17 March 2020.

The Applicant denies that she was adequately supported by a case manager, referred to all potential ongoing placements within the NTPS, or given preferential consideration for vacancies over other applicants.”

Respondent’s deficiencies

[82] The Applicant submitted that the Respondent failed to identify and refer the Applicant to all vacancies available within her home agency during the period of redeployment. The Applicant submitted that the Respondent failed to refer her to the following vacancies, among others:

(a) Project Officer, International Students Administration and Programs [Position Number 17661], in or about June 2016;

(b) Senior Workforce Consultant, Aboriginal Employment and Workforce Development [PN 19354], in or about February 2018.

(c) Community Engagement Consultant, IES [PN CO180040 and CO180051], in or about March 2018; and

(d) Senior Consultant ER [PN 19035], in or about March 2018.

[83] The Applicant submitted that the Respondent had also failed to place her in relevant ‘on-the-job training’ opportunities, including:

(a) Senior Policy and Project Officer, QECNT [PN 39258] and

(b) Senior Operations Officer, QSSS North [PN 40462].

[84] The Applicant submitted that she took it upon herself to identify and apply for positions, without the Respondent’s assistance. She submitted that she raised her concerns about being overlooked for available and suitable positions within her home agency, with her case managers at the time.

[85] The Applicant further submitted that the Respondent briefly placed her in the Senior Operations Officer position, for a period of approximately two (2) days, however the Respondent convened a second Panel and removed her from acting in that position.

[86] The Applicant’s position is that, had the Respondent taken “positive steps and afforded [her] meaningful ‘on-the-job training’ opportunities”, she would have gained the necessary training that would advance her potential of being placed into a permanent position when the vacancy came available. However, apart from the brief period acting in the Senior Operations Officer position, the Respondent refused to consider the Applicant for any ‘on-the-job training opportunities’ that arose in the redeployment period.

[87] The Applicant submitted that she sought assistance from the Respondent to be placed into a permanent position. She also noted however, “[o]n a number of occasions, during the redeployment period, the Respondent instructed the Applicant to withdraw her applications for ongoing positions”. The Applicant submitted by way of example, that around 30 October 2019, she applied for the position of ‘Manager Recruitment and Community Engagement’, and the Respondent “actively [sought] for the Applicant to withdraw her application”; nevertheless, she sought to be considered for that position. The Applicant submitted she was ‘ultimately unsuccessful’ in her application, but that this “evidences the Respondent’s conduct in actively limiting the Applicant’s prospects of obtaining a suitable redeployment”.

[88] The Applicant therefore submitted that the Respondent failed to not only make every endeavour to place her in suitable employment, but it also failed to make all reasonable endeavours to place her into suitable ‘other employment’.

Summary of the Applicant’s evidence

[89] The Applicant advised she commenced employment with the Respondent in July 2006 on a permanent, full-time basis, engaged in multiple roles up until 17 March 2020 where she was made redundant. The Applicant said she started as a Field Officer for NT Build, which she was responsible for identifying building projects and pursuing payments for those projects in accordance with the Construction Industry Long Service Leave and Benefits Act 2005 (NT) (the 2005 Act). She held this position until 16 May 2008. She stated she received consistent positive feedback in relation to her performance.

[90] In early 2018, the Applicant advised she secured a role with the Teacher Registration Board in which she applied for so that she could gain exposure to client interaction and perform complex and intellectually stimulating work. From 19 May 2008 until 30 November 2008, she worked as the Senior Registration Officer in backfilling capacity. In this role, she provided support to the Director, the Board and its committees in administering and assisting with the registration of teachers. In November 2008, her role was upgraded and expanded. From December 2008 to September 2010, she worked as a Senior Policy and Registration Officer where she provided expert policy advice, administering and assisting with the registration of teachers, and assisting with investigations and inquiries into the professional conduct of registered teachers.

[91] The Applicant advised her role was modified and expanded in September 2010 to Senior Policy Officer and Manager of Professional Conduct (the TRB position), where she remained in this role until 23 November 2014. Between 21 April 2011 and 9 September 2013, the Applicant said she accessed a period leave. She returned to work on 10 September 2013, where she also started a second job as a bus driver on the weekends and after hours. The Applicant stated this was approved by the Respondent. The Applicant said she never received any negative feedback in this role with the Respondent.

[92] The Applicant provided evidence that she was paid as an Administration Officer Level 7 in her TRB position up until her employment with the Respondent ended. She claimed to be the only person who performed the duties of a TRB position between September 2010 and 23 November 2014 apart from those who backfilled her position whilst on leave. The Applicant said she worked closely with Dr Julie Wells, who was the Director between September 2010 and April 2011 and had a good working relationship with her. She further mentioned that Dr Wells agreed to providing flexible hours arrangement which came into effect in 2010 and the position of Professional Conduct Officer being created in April 2011.

[93] Whilst the Applicant was on leave in January 2012, Ms Maree Garrigan was appointed as the new director, and the Applicant described her relationship with Ms Garrigan to be strained as time went on. The Applicant described her position to have been busy and demanding which caused a lot of pressure. She said this was even acknowledged by the Chair of the Board, Ms Karen Blanchfield, on more than one occasion, including in the TRB Annual Report 2009 and 2010. The Applicant explained that her responsibilities in this role could be split into five key components, which are senior responsibilities in relation to assessing domestic applications and overseas applications for teaching positions in Norther Territory, as well as policy development and responsibility as the secretariat for the Teacher Registration Board and managing the professional conduct of registered teachers in the Northern Territory.

[94] The Applicant stated that she also undertook being the secretariat for the TRB Professional Standards and Ethics Committee in 2008 to 2011, the Information Officer for the Board in 2008 to 2011, representing the Board on the SAFE-NT Interagency Working Group in 2008 to 2009, making presentations to student teachers in 2008 to 2010, assisting the Director with preparation of Board’s annual report from 2008 to 2010, responding to the Productivity Commission Survey in 2008 and many more.

The Key 5 Components of the TBR Role

Assessing domestic applicants for teaching positions

[95] The final assessment of domestic applicants for teaching position is one of the main duties she performed, and took up most of her time, where she would determine whether the applicants would be permitted to be registered as teachers. The Applicant said her assessment was final as they would already have been assessed by junior staff. In this function, she worked with the registration boards in other Australian states and territories as most applicants had been trained and/or taught interstate. She said she would often liaise with interstate colleagues to ascertain whether the applicant was properly trained and qualified to teach, and also to determine if have previous findings of misconduct against them.

Assessing overseas applicants for teaching positions

[96] The Applicant advised that in October 2008, she received training in assessing overseas qualifications. Particularly, comparing qualifications of overseas teachers with those within Australia, and assessing whether overseas trainers were qualified to work as teachers in Australia. The Applicant claimed this training helped her to assist the Director of the Board in making these assessments. The Applicant estimated that she had to assess one overseas application per week in this role and would usually spend hours assessing the application. She described this to be a complex task, often involving determining whether documents filed were genuine or fraudulent, which she received training from the Australian Federal Police to assist in detecting such fraudulent documents.

Policy Development

[97] The Applicant provided evidence that the policy development aspect of her role consisted of creating policies and procedures for the Teacher Registration Board, creating procedural manuals for staffs of the Board, revising application forms and checklist, and also leading a strategic project to suggest and draft amendments to the Teacher Registration (Northern Territory) Act 2004. For this particular project, the Applicant said she was responsible for meeting directly with government ministers and their staff, explaining what they were proposing to do and draft amendments to the Act. She noted the Project passed the Northern Territory Parliament without objection and the Act was amended.

Secretariat of the TRB

[98] As the Secretariat of the TRB, the Applicant advised she was responsible for convening board meetings (which occurred 9 times a year) and session board meetings (when required), preparing agenda items, briefing papers, preparing documents, taking minutes and preparing list of action items following the meetings.

Managing professional conduct

[99] The Applicant advised that when managing professional conduct, she is responsible for investigating complaints, convening inquiries into complaints, receiving and processing any notifications from the Northern Territory Police, and other interstate authorities, about a teacher, and also reviewing applications to determine whether an applicant had been subject of disqualifying misconduct in the past. The Applicant stated that she commenced the introductory work on Complaint Investigation procedures in late 2008, which was an emerging aspect of the Board’s work at the time. This work continued and was expanded in 2009, and included liaison with solicitor for the Norther Territory, gathering evidence and preparing investigation reports into the allegations of misconduct. Part of her role included providing options for the Board’s recommended action.

The New Director

[100] The Applicant alleged that when she contacted Ms Garrigan in mid-2013 to confirm her intended return to the TBR position, Ms Garrigan made it obvious she did not welcome this return. The Applicant said this created an awkward situation, and when she returned to the workplace, their relationship began to deteriorate. The Applicant considered she was subjected to repeated instances of workplace bullying from Ms Garrigan in 2013 and early 2014, where Ms Garrigan did not permit the Applicant to make ongoing calls for no apparent reason, telling the Applicant she could not fulfil her role as she was not a lawyer, and telling the Applicant on several occasions, words to the effect of, “No one in the office likes you.” The Applicant advised this treatment impacted her health.

[101] During 2014, the Applicant advised she lodged a complaint against Ms Garrigan’s behaviour. The complaint was investigated by an external investigator appointed by the Respondent. The Applicant noted that the allegations were not substantiated. Between March 2014 and November 2014, she accessed a period of leave to focus on her health. Before taking leave, the Applicant contacted Ms Michelle Stewart, who was the Senior Human Resources Consultant of the Department of Education. Ms Stewart referred the Applicant to Ms McIntyre who also worked for the Human Resources Team. The Applicant asked to be transferred to a new work unit due to the alleged workplace bullying and harassment. However, in April 2014, the Applicant was informed that the transfer would unlikely be facilitated on her behalf.

[102] The Applicant met with Ms McIntyre and Ms Stewart in May 2014 where she informed that her concerns of Ms Garrigan’s treatment would only be investigated if the Applicant lodged a formal grievance. She said she was advised to address the grievance to Mr Tony Roberts, the Acting General Manager Human Resources. The Applicant advised she had done so on 23 May 2014. In the eight months the Applicant was absent from work, she engaged the services of Mr Lucio Matarazzo, an Employment Advocate in Darwin in relation to her grievance. On 2 November 2014, the Applicant noted that Mr Matarazzo received correspondence from the Respondent stating that they would organise for her to return to the workplace in a new role when the Applicant was medically fit to return to work. The Applicant was then appointed to a new position in the Department of Education on 24 November 2014. From this date to 17 March 2020, the Applicant advised she filled various positions which were not comparable to her TBR Position but was paid at the same classification. She stated that she was happy that she remained employed.

Positions after 24 November 2014

[103] From 24 November 2014 up until the end of her employment on 17 March 2020, the Applicant stated she was appointed to 16 different positions. She said that all but five positions were for a fixed term. The first position was a Senior Policy Officer for the Department of Education where she was required to review the department’s strategic policy called “Age of Entry”. The Applicant described the responsibilities of this role to be far less senior than that of the TRB position. She noted that within this division, there was a genuine vacancy for a role in which she believed matched her skillset. The Applicant was told by Ms Stewart to consider that position and was provided with a Job Description. However, when she attended her first meeting with the General Manager, Ms Elizabeth Death, on 3 November 2014, she was advised, words to the effect of, “You won’t be filling the position that you were sent. You will be placed in this supernumerary position instead.”

[104] The second position was the Senior Policy Officer in Performance and Data Management within the strategic services section of the Department of Education from 27 January 2015 to 20 February 2015. Her responsibilities were confined to reviewing the department’s strategic policy called the “Data Access Policy” and/or “Data Access Protocol”. After this role, the Applicant was appointed to the position of Manager Prosecutions within the Attendance and Truancy team of the Department of Education. She held this position until 16 July 2015, when the original occupant of this position return, where she was then appointed to the position of Assessment Management Project Officer for the Early Childhood Education and Care on 20 July 2013. The Applicant advised she held this position for a short period of time, being 11 days, where her line manager was advised there had been a miscommunication between them and that she was directed to physically clean up a workstation within the division that had become a storage receptacle for IT equipment and junk.

[105] On 4 August 2015, the Applicant was appointed to her fifth position as a Special Projects Officer within School Quality, Improvement and Performance up until 21 August 2015. In this role, she conducted a substantive edit of the draft Handbook for NT Educators: Foetal Alcohol Spectrum Disorders. From 24 August 2015 to 31 December 2015, the Applicant was appointed to her sixth position as Senior Investigations Officer in the Office of the Children’s Commissioner within the Attorney General’s Department of the Respondent. She advised that this placement came about as she had applied for the same position in June 2015 and been found suitable but was not ranked first. The Applicant stated that her case manager, Ms Paula Ridge from Department of Education Human Resources brokered the placement on her behalf, with her salary paid by the Department of Education. The Applicant advised that this placement was a genuine redundancy that aligned with her previous experience within the public service and the responsibilities she had been trained to perform. Three vacancies for this position were advertised in August 2015, however, she was not shortlisted due to the high calibre of the applicants.

[106] The Applicant advised she was appointed to her seventh position from 13 January 2016 to 19 February 2016, after taking leave. She held the position of Special Projects Officer in School Operations North. From 22 February 2016 to 8 April 2016, she was appointed to the role of Special Projects Officer in the Transition Support Unit within Enrolment and Attendance. From 11 April 2016 to 26 March 2017, she worked in the role of Project Manager for School Operations North, and then subsequently Schools North Directorate within Department of Education. From 6 February 2017 to 24 February 2017, the Applicant advised she went on higher duties as a Senior Administrative Officer 1 Manager Schools North in the Schools North directorate in addition to the role she already had. From 27 March 2017 to 31 December 2017, she was appointed to the role of Compliance Officer, and then later, Senior Policy and Project Officer, in the Compliance Team in Quality Education and Care NT within the Early Education and Care. Her twelfth position from 2 January 2018 to 29 March 2018 was Senior Policy and Project Officer in Early Childhood Education and Care, and her thirteenth position from 23 April 2018 to 26 July 2018 was Human Resources Project Officer in People and Capability section within the Department of Trade, Business and Innovation.

[107] The Applicant advised she was then appointed to Senior Operations Officer role in Quality Schools Systems and Support North from 30 July 2018 to 29 March 2019, before being appointed to her fifteenth position as Transport Operations Coordinator from 1 April 2019 to 31 April 2019. Her last position was a Project Manager within Student Engagement from 3 June 2019 to 17 March 2020.

Applications for suitable positions

[108] The Applicant stated in her evidence that from November 2014 onwards she applied for all positions that she considered would be suitable for her. The Applicant stated that most of her applications were lodged through an online database called eRecruit which the Respondent uses to advertise jobs (eRecruit). The Applicant had provided a table outlining the various positions that she had applied for.

[109] The Applicant stated that she had applied for two roles whereby she was told that she was a suitable candidate but that someone else had been appointed ahead of her. They included:

(a) the Senior Investigation Conciliation Officer role with the Health and Community Complaints Commission (HCSCC); and

(b) the Senior Investigations Officer role with the Office of the Children’s Commissioner (OCC).

[110] The Applicant stated that on 26 June 2015, she lodged an application through eRecruit for the temporary position of Senior Policy Officer in the NTPS’ Department of Education. The Applicant stated that she was of the view that the policy components of this role aligned with her policy development experience very well. In July 2015, she was told by Vicky Eastwood, a Senior Director in the Officer of the Chief Executive, that another candidate, (name redacted), was appointed to the position.

[111] The Applicant stated that on 28 July 2015 she was provided with a written summary of (name redacted) previous experience. The Applicant was of the view that (name redacted) was less experienced and qualified than the Applicant was for the position. The Applicant had at least three more years of experience as a policy writer than (name redacted) and she had an administration background while the Applicant considered she had a stronger background in writing policies for education.

[112] The Applicant stated that she spoke to Ms Ridge about this and recalled the conversation being to the effect of:

Applicant: “(name redacted) won the Policy Officer role. She has very little experience in policy writing compared to the policy work I have done. I’m thinking about lodging a grievance.”

Ms Ridge: “You could lodge a grievance but you need to think about how lodging grievances looks for your personal brand.”

[113] The Applicant stated that she perceived Ms Ridge’s comments to mean that staff at the NTPS may think that the Applicant is a person who complains too much if she lodges another grievance. As a result of this conversation, the Applicant did not lodge a grievance about this selection exercise.

[114] In her evidence, the Applicant detailed a number of roles that she had applied for during this period, in which she considered that she was a suitable candidate, and yet was ultimately unsuccessful in obtaining the positions.

[115] The Applicant stated that on 26 November 2018 she sent an e-mail to Shane Dexter, General Manager QSSS, expressing an interest to the vacant position of Manager Compliance and Celebrations. The Applicant did not receive a response to her expression of interest, and she found this very disappointing. She had taken this lack of response to mean that there was no effort to have her redeployed to a suitable position.

[116] On 5 March 2019 the Applicant sent an e-mail and her CV to Sas Clark, A/Executive Director, Housing Programs and Support Services, seeking a meeting in relation to the vacant position of Policy Implementation Coordinator in the NTPS’ Department of Local Government, Housing and Community Development.

[117] On 11 March 2019 the Applicant met with Sas Clark and Sarah Polhill, the department’s Manager Policy Implementation. The Applicant felt that the meeting was very positive, and Ms Clark and Ms Polhill were genuine in their approach with her. She considered that they were very enthusiastic about her experience in policy implementation and encouraged the Applicant to apply for the position, which she did.

[118] In April 2019, after being interviewed by the panel for the position, the Applicant received a call from Sarah Polhill. Ms Polhill said words to the effect of:

“The panel has made its decision. The panel report has been signed by the panel members and it is just awaiting sign off by the delegate. As you know, I can’t advise you of the outcome of the process, but I would like to know when you can commence here.”

[119] The Applicant stated that she was very happy with this as she was familiar with this form of words being used in the NTPS to indicate that she was the successful applicant. However, on 3 June 2019, Ms Polhill again called. She said to the Applicant words to the effect of:

“The panel has decided that you are unsuitable. I am so sorry.”

[120] The Applicant stated that the reasons Ms Pohill gave her for the decision being overturned did not make any sense to the Applicant. Ms Pohill said that she didn’t have the ability to manage multiple projects simultaneously. Ms Pohill also said the Applicant’s referee reports were positive but they could not speak to that point. The Applicant asked Ms Pohill if her TRB experience was taken into account. Ms Pohill said it was not recent experience, so it was discounted.

[121] The Applicant stated that she was very disappointed by this outcome, especially as she had been found suitable following an interview, only to be later told she was unsuitable, and having the ability to manage multiple projects simultaneously does not require recent experience in her view.

[122] The Applicant stated that she lodged a grievance with the Commissioner for Public Employment following this. The Applicant stated that she never received a full response to her grievance application.

[123] The Applicant stated that she received a response from Ms Rachael Dunn (Grievance Manager, Public Sector Appeals and Grievance Reviews) to the Grievance. The Applicant sent a further email on 23 July 2019 seeking that the determination that she was unsuitable for the position be further reviewed. On 30 August 2019, the Applicant sent another email to Ms Dunn because she had not received a response. Ms Dunn replied and said the Applicant’s e-mail of 23 July 2019 had been noted but the issues the Applicant had raised were not addressed.

[124] The Applicant stated that on 2 September 2019 Ms Dunn agreed to escalate her grievance to the new Commissioner. The grievance was declined and the Applicant later sought review. Further, in October 2019 the applied for the position of Manager Recruitment and Community Engagement with NT Police Fire and Emergency Services.

[125] On or about 30 October 2019, Ms Stewart requested that the Applicant attend a meeting to discuss my application for the role. During that meeting Ms Stewart stated that Ms Barnes had asked her words to the effect to “please make Sharon aware that another redeployee has applied for the position and that Sharon may wish to consider withdrawing her application”.

[126] The Applicant did not withdraw her application, but she was unsuccessful because the panel decided that she did not have experience in bulk recruitment, which was not true. The Applicant was not interviewed for that position and if she had been she would have been better able to outline the relevant experience that she had.

Steps taken by the Applicant to resolve the dispute

[127] The Applicant gave evidence that on 1 November 2019 the Commissioner refused her request to rescind the notice of redundancy. On 3 February 2020 the Applicant received a letter confirming her employment was terminated, effective 10 March 2020.

[128] The Applicant was advised by Ms Barnes from the beginning that she was not entitled to the redundancy entitlements provided by the National Employment Standards. The Applicant stated that she questioned this at the time and was eventually paid a redundancy severance payment.

[129] The Applicant considered this another example of being provided inaccurate information about her entitlements as a redeployee, which constituted a significant element of her interactions with the OCPE between October 2018 and March 2020.

[130] In her evidence, the Applicant stated that she considered that after 24 November 2014, she was either:

(a) redeployed to positions that were not suitable for her because the Respondent did not involve her utilising the senior responsibilities that had been assigned to her in the TRB Position; and/or the position was not a genuine vacancy, and she was just supernumerary to the team structure.

(b) redeployed to positions that were suitable however the position was not truly available and was instead a position for which she was ‘filling in for someone else, including the Manager of Prosecutions position; and the position was not truly available because when she applied for the position, she was not successful in her application.

[131] The Applicant also stated that she was discouraged from applying for alternative roles in the NTPS. She also considered that less experienced candidates were picked ahead of her and this happened despite the requirements on the NTPS to make every endeavour to redeploy. She stated that an example of this was the Territory Information Centre Officer position in February 2020.

[132] Additionally, the Applicant stated that she considered that she was judged on criteria that was not directly relevant to the role. An example of this is the Manager of Engagement and Training position with Bushfires NT. In those circumstances she stated that she was denied procedural fairness and natural justice.

[133] The Applicant also did not receive on the job training to assist her to obtain an alternative role. Meaning that she was not able to upskill to make herself more suitable for other opportunities. The Applicant gave evidence that she had made one specific request for formal training, and that was the Certificate IV in Government Investigations in October 2014; and that request was denied.

[134] The NTPS had policies that refer to the correct processes for filling vacancies, natural justice, redeployment and redundancy, and evaluation of redeployees by selection advisory panels. The Applicant stated that she considered much of the information that she was provided about redeployment conditions was later found to have been incorrect or out of date, which resulted in her feeling confused about her entitlements.

[135] The Applicant stated that she had complied with her obligations under those policies by maintaining regular contact with her case manager and ensuring that her resume was kept up to date. However, she considered that the NTPS did not comply with the policies because, in addition to the matters referred to above, it did not keep the Applicant updated regarding all vacancies that matched her skillset and instead left it to her to identify and apply for positions. Additionally, she considered that the Respondent did not afford her natural justice and procedural fairness when relying on information that resulted in her being deemed unsuitable for positions for which she had no right of reply before an adverse decision was made. Further, she considered they had failed to place her in permanent positions and instead placed her in lower-level temporary positions despite vacant positions being available.

[136] The Applicant also considered that the Respondent erred in its process by failing to provide her with preferential consideration for vacancies over other applicants and instead subjected her to a merit-based selection process which resulted in my applications being unsuccessful. The Applicant also stated that the Respondent failed to provide her with opportunities for on-the-job training for positions that she was otherwise suitable for, including when it removed her from a suitable vacant position (within ECEC in December 2017) with no explanation and placed her in a temporary position instead.

[137] The Applicant stated that she considered that had the Respondent complied with its obligations, she would not have lost her employment.

SUMMARY OF THE RESPONDENT’S MERITS SUBMISSIONS

[138] The Respondent submitted that they maintained that this matter (as set out) is not a genuine dispute about the application of an enterprise agreement, and that this matter is no more than a complaint about unsuccessful recruitment outcomes and an expression of dissatisfaction in employment.

[139] The Respondent stated that it was a complaint which has grown in size and scope since the matter was first brought before the Commission.

[140] The Respondent submitted that the Form 10 Application lodged in this matter was based on a single, unsuccessful application for a position with the Department of Local Government, Housing and Community Development and the Applicant’s further submissions dated 5 February 2021 (some 11 months after the cessation of the Applicant’s employment), enlarged the scope of the complaint to include:

•  four vacancies that were allegedly not identified to the Applicant, and which she identified herself;

•  two positions that the Applicant was not automatically placed for training purposes;

•  an allegation that the Applicant was instructed to withdraw her application for a vacancy; an instruction which the Applicant stated she did not follow;

[141] The Respondent’s submissions further noted that the Applicant’s submissions of 12 March 2021 further enlarged the scope of the complaint to include:

•  an additional position that the Applicant was not automatically placed in for training purposes. This was allegedly in 2014, which is prior to the Applicant being declared a potentially surplus employee in February 2016;

•  an additional two vacancies that the Applicant was allegedly instructed to withdraw her application from.

[142] The Respondent stated that the matters complained of by the Applicant were matters that were all regulated by the Public Sector Employment and Management Act 1993 NT (the PSEMA) and its subordinate instruments.

[143] The Respondent submitted that the Northern Territory Public Sector 2017- 2021 Enterprise Agreement (the Agreement) had no role in relation to the operation of the recruitment and employment decisions which are subject to the Applicant’s complaints.

[144] It was the Respondent’s submissions that even if the Agreement did purport to regulate these matters, it would have no effect to the extent of any inconsistency with the requirements of the PSEMA and its subordinate instruments.

[145] The Respondent stated that the Applicant’s redeployment was managed in accordance with Employment Instruction Number 14 – Redeployment and Redundancy Procedures, which was a Northern Territory public sector employment law.

[146] The Respondent submitted that the Applicant was given extensive assistance and support throughout her redeployment, including through:

•  The provision of dedicated case managers;

•  Access to preferential treatment in recruitment;

•  The provision of training and coaching; and

•  The placement of the Applicant in a variety of positions and agencies to assist the Applicant develop new networks and skills.

[147] The Respondent noted that the Applicant’s submission that no positive steps were taken to redeploy the Applicant is quite plainly false.

Placing the Applicant in suitable employment

[148] The Respondent’s submissions noted that the Agreement required that endeavours be made “to place” a surplus employee in other “suitable employment” and this obligation was evident in clauses 10.3.1, 10.3,2 and 10.5.6.

[149] The Respondent stated that the expression “to place” had a plain and ordinary meaning and the expression “suitable employment”, however, is a defined term of the Agreement.

[150] Clause 10.1.1(c) of schedule 10 of the Agreement provides:

“(c) suitable employment means employment within the NTPS that the employee is capable of performing and is competent and qualified to perform, having regard to section 5D(2) of the PSEM Act, which must be considered in the context of reasonable training possibilities.”

[151] The Respondent submitted that the definition of “suitable employment” is not limited to, or expressed to mean “ongoing employment.” The Respondent’s submission was that the definition makes no reference to that term, or any period of suitable employment and there was no requirement in the Agreement that suitable employment be ongoing employment.

[152] The Respondent stated that suitable employment was not expressed in the Agreement to mean employment that is chosen by an employee; or, employment that an employee believes would be suitable to them. The Respondent further stated that suitable employment simply meant employment that the employee is capable of performing; as set out in clause 10.1.1(c).

[153] The Respondent’s submissions noted that the obligation in each of clauses 10.3.1, 10.3,2 and 10.5.6 is met when endeavours are taken to place a surplus employee or a potentially surplus employee in suitable employment, as defined.

[154] The Respondent explained that in the case of the Applicant, this obligation was met by the Respondent throughout the Applicant’s period of redeployment. The Respondent said that the Applicant’s own evidence was that she was placed in more than 16 positions since becoming an unattached officer in December 2015. Each of these 16 placements was evidence of compliance by the Respondent with its obligations under clauses 10.3.1, 10.3,2 and 10.5.6. The Respondent said that the Applicant’s evidence did not indicate any controversy or dispute regarding the application of the Agreement.

Preference, support and training

[155] The Respondent’s submission was that the Applicant’s submissions and evidence appeared to suggest that the Applicant had some choice and preference in relation to their placement in suitable employment.

[156] The Respondent stated that the Agreement did not provide a surplus employee with either choice or preference in relation to their placement in suitable employment, and there was no such provision or requirement within the Agreement. In regards to this, the Respondent noted that the consent of an employee is only required by the Agreement when a transfer to suitable employment is to a lower level designation and salary, in accordance with clause 10.3.3. An employee’s consent is not otherwise required by the Agreement in relation to a placement in suitable employment.

[157] Moreover, the Agreement does not require the Respondent to:

•  provide an employee with a case manager;

•  monitor vacancies for an employee;

•  identify vacancies to an employee;

•  provide an employee with opportunities to make them more competitive during recruitment; or

•  provide any training.

[158] The Respondent submitted that choice, preference, case management, assistance and support, monitoring and identification of vacancies, and training, are matters that are facilitated by the operation of Employment Instruction Number 14 – Redeployment and Redundancy Procedures, which is a Northern Territory public sector employment law.

[159] To the extent that the Applicant complains about these matters, the Respondent noted that then the complaint is about the operation of a Northern Territory public sector employment law.The Agreement cannot be given an interpretation which conflicts with Northern Territory public sector employment laws.

Recruitment and assessment of redeployees

[160] Similarly, the Respondent said that recruitment processes, including the role and obligations of selection panels, suitability assessment of redeployees, the role of the Commissioner for Public Employment in oversighting the recruitment of redeployees, and the nature and period of employment, are regulated by Northern Territory public sector employment laws. These employment laws include, among others: Employment Instruction Number 14 – Redeployment and Redundancy Procedures; Employment Instruction Number 1 – Filling Vacancies; and, various Determinations made by the Commissioner for Public Employment pursuant to section 14(2) of the PSEMA.

[161] The Respondent submitted that the Agreement cannot be given an interpretation which conflicts with these Northern Territory public sector employment laws.

Allegation that the Respondent failed to refer the Applicant to certain vacancies

[162] The Applicant alleges that the Respondent failed to refer the Applicant to certain vacancies. The Respondent submits that the allegations made are “either factually incorrect or misleading” for the following reasons:

a. Allegation that the Applicant was not referred to the position of Project Officer, International Students Administration and Programs [Position Number 17661], in or about June 2016

i. This allegation is incorrect. The Applicant was referred to this vacancy.

ii. Annexure A is an email (with attachments) dated 1 July 2016, from the A/Assistant Director HR Consultancy (Corporate), Department of Education, to the Chair of the selection panel, referring the Applicant to this vacancy. The email provides information regarding the evaluation of redeployees and a Commissioner’s guideline regarding redeployment. The email advises that the assessment of the Applicant must include consideration of whether the redeployee will meet the job requirements with reasonable training. The email advises that no further recruitment action or consideration of other applicants can be progressed until this assessment process has been finalised.

iii. The Applicant was interviewed for this vacancy and her referees were contacted.

iv. The selection panel found that the Applicant was unsuitable for the role.

b. Allegation that the Applicant was not referred to the position of Senior Workforce Consultant, Aboriginal Employment and Workforce Development [PN 19354], in or about February 2018.

i. This allegation is misleading.

ii. The Applicant applied for this position directly, and her application was subsequently supported by the A/Senior HR Consultant Corporate, Department of Education. See Annexure B.

iii. The Applicant was interviewed for the role and her referees were contacted.

iv. The selection panel found that the Applicant was unsuitable for the role.

v. The outcome of the selection panel would have been no different even if the Respondent had referred the Applicant to this vacancy prior to the Applicant identifying it herself.

c. Allegation that the Applicant was not referred to the position of Community Engagement Consultant, IES [PN CO180040 and CO180051], in or about March 2018

i. This allegation is incorrect.

ii. The Applicant was referred to this position – see Annexure C.

d. Allegation that the Applicant was not referred to the position of Senior Consultant ER [PN 19035], in or about March 2018

i. This allegation is misleading.

ii. The Applicant identified this vacancy herself, and applied for the position directly. See Annexure D.

iii. The Applicant was interviewed for the role and her referees were contacted.

iv. The selection panel found that the Applicant was unsuitable for the role.

v. The outcome of the selection panel would have been no different even if the Respondent had referred the Applicant to this vacancy prior to the Applicant identifying it herself.

[163] The Respondent submitted, in addition to the above, the Commissioner for Public Employment reviews all selection reports and associated information relating to the assessment of a redeployee as unsuitable for a vacancy. It submits that this review is undertaken in accordance with the requirements of Employment Instruction 14 - Redeployment and Redundancy Procedures, which is a public sector employment law made under section 16 of the PSEM Act. The review scrutinizes recruitment outcomes to ensure the Employment Instruction is being upheld and the integrity of the redeployment process.

Allegation that the Respondent failed to place the Applicant in specified positions for ‘on the job training’

[164] The Applicant alleges that the Respondent failed to place the Applicant in certain specified positions for ‘on the job training’. The Respondent submits that the allegations in this respect are misleading. It submits that the positions specified by the Applicant were all advertised vacancies that the Applicant applied for. The Applicant was found to be unsuitable for the role in each case, as set out below.

a. Senior Policy and Project Officer, QECNT [PN 39258]

i. PN 39258 is an Assistant Principal position. The correct PN for the position of Senior Policy and Project Officer, QECNT, is PN 40352.

ii. This position was an advertised vacancy. The Applicant identified this vacancy herself, and applied for the position directly – See Annexure E.

iii. The selection panel mapped the Applicant’s skills and experience, as described in her resume and confirmed with referees, against the position’s deliverables and selection criteria.

iv. The selection panel found that the Applicant was unsuitable for the role.

b. Senior Operations Officer, QSSS North [PN 40462].

i. This position was an advertised vacancy which the Applicant applied for.

ii. Two separate selection panels were formed to assess the Applicant for this position.

iii. Both selection panels found that the Applicant was unsuitable for the role.

Allegation that the Respondent refused to consider the Applicant for any on-the job training opportunities.

[165] The Respondent rejects the allegation that it refused to consider the Applicant for any on-the-job training opportunities that arose in the redeployment period. The Respondent submits that it offered a variety of different positions during the Applicant’s redeployment, all of which offered the opportunity to develop her skills to support her in obtaining suitable ongoing employment. It submits that this included placements in different units within the Department of Education, and placements in other agencies including the Department of the Attorney-General and Justice, the Department of Trade, Business and Innovation, and the Department of Tourism and Culture.

Allegation that Respondent directed Applicant to withdraw job applications

[166] The Respondent rejects the allegation that the Applicant was instructed to withdraw her applications for ongoing positions. The Respondent says that the Applicant applied for many jobs during her redeployment and was ‘unfortunately unsuccessful’.

[167] The Respondent further submitted that the Northern Territory public sector employment laws do not facilitate a ‘direction of the kind alleged’.

Northern Territory Public Sector – Redeployment

[168] As set out in previous submissions, the Respondent noted that the Agreement did not provide a comprehensive framework for redeployment and redundancy in the Northern Territory Public Sector (NTPS). The Respondent said that the key elements of the redeployment and redundancy framework in the NTPS include:

•  Division 2 – Redeployment and Redundancy - of Part 6 of the PSEMA;

•  Employment Instruction Number 14 - Redeployment and Redundancy Procedures;

•  Schedule 10 - Northern Territory Public Sector Redeployment and Redundancy Entitlements - of the Agreement.

[169] The Respondent submitted that the Applicant’s redeployment process was undertaken consistently with the obligations under the NTPS redeployment and redundancy framework.

Public Sector Employment and Management Act 1993

[170] The Respondent submitted that the Public Sector Employment and Management Act 1993 (the PSEMA) regulates the public sector of the Northern Territory. The PSEMA provided for the administration of the public sector and the obligations and rights of employees, among other things.

[171] The Respondent noted that the Applicant’s employment with the NTPS was at all times subject to the requirements of the PSEMA, as well as instruments made pursuant to the PSEMA.

Commissioner for Public Employment

[172] The Respondent submitted that the Commissioner for Public Employment is established by the PSEMA and is taken to be the employer of all employees on behalf of the Territory or an Agency, pursuant to section 12 of the PSEMA. Among other things, the Commissioner for Public Employment is responsible for determining the practices and procedures relating to the redeployment of employees.

[173] The Respondent stated that section 13 of the PSEMA set out the functions of the Commissioner for Public Employment, which relevantly include:

“13 Functions of Commissioner

The functions of the Commissioner are as follows:

…………..

(b) to determine practices and procedures relating to the recruitment and employment of persons as employees, the promotion of employees and the employment, transfer, secondment, redeployment, discipline and termination of employment of employees and any other matters relating to human resource management;

[Emphasis added]”

Employment Instruction Number 14 – Redeployment and Redundancy Procedures

[174] Pursuant to section 16 of the PSEMA, the Respondent submitted the Commissioner for Public Employment may make rules, known as “Employment Instructions”, relating to the functions and powers of the Commissioner, or otherwise relating to the good management of the Public Sector.

[175] On 23 November 2013, the Respondent stated that the then Commissioner for Public Employment issued Employment Instruction Number 14 – Redeployment and Redundancy Procedures (Employment Instruction 14), in accordance with section 16 of the PSEMA.

[176] The Respondent submitted that Employment Instruction 14 outlines the responsibilities to be observed at all times of the redeployment, by the redeployee, the relevant agency and the Commissioner for Public Employment. Employment Instruction 14 was issued more than four years prior to the making of the Agreement and it has continued in operation since that time.

[177] The Respondent submitted that Employment Instruction 14 is a ‘public sector employment law’ pursuant to section 40(3) of the Fair Work Act 2009 and the obligations and requirements relating to the redundancy and redeployment procedures established in Employment Instruction 14, prevail over the Agreement to the extent of any inconsistency.

Obligations of the Applicant

[178] In accordance with clause 2.1(a) of Employment Instruction 14, the Respondent submitted the Applicant was required to actively participate in the redeployment process, relevantly:

“2. Mutual responsibility for redeployment outcomes

2.1. In addition to the specific responsibilities, the following general responsibilities will be observed at all stages of the redeployment process:

The redeployee will:

•  maintain an up to date resume and provide a copy to the nominated case manager;

•  actively identify and apply for other suitable employment, and participate positively and constructively when referred to potentially suitable vacancies by the agency; and

•  actively participate in identified training options and other development opportunities.

[Emphasis added]”

[179] The Respondent submitted that these obligations placed upon the Applicant during her redeployment were uncontroversial, particularly when considered in the context of managing redeployment within a large public sector, across multiple agencies and diverse industries, such as health and hospitals, police and emergency services, schools, correctional services, social and community services, electricity generation and distribution, water services, and general public administration, among other things.

[180] The Respondent stated that the Applicant’s submission and evidence appeared to take offence at the fact that she did in fact identify vacancies by herself. The Respondent further noted that the Applicant’s submission that she identified vacancies by herself was only a submission that she complied with her statutory obligations as an employee, in accordance with Employment Instruction 14.

[181] The Respondent submitted that the Agreement cannot be given an interpretation which negates the statutory responsibilities and obligations of the Applicant under Employment Instruction 14. To do so, would be to give the Agreement an interpretation that is inconsistent with a public sector employment law, which is contrary to section 40 of the Fair Work Act.

Obligations of the Agency

[182] The Respondent noted that in accordance with clause 2.1(b) of Employment Instruction 14, the Department of Education (being the relevant agency) was required during the Applicant’s redeployment period to undertake particular actions. Relevantly:

“b) The agency will:

•  ensure that the redeployee is provided with an appropriate level of assistance and case management;

•  actively monitor vacancies to identify other suitable employment and refer the redeployee, where necessary, to potentially suitable vacancies; and

•  assist in the identification of reasonable training and development opportunities to maximise the potential for redeployment.”

[183] The Respondent submitted that the Department of Education, through its case managers actively supported the Applicant’s attempts to secure ongoing employment, consistent with its obligations under Employment Instruction 14. In accordance with s40 of the Act, the Agreement cannot be given an interpretation which creates obligations which are inconsistent with the obligations upon an agency pursuant to Employment Instruction 14.

Suitability for employment

[184] The Respondent stated that Employment Instruction 14 sets out the processes for assessing the suitability of redeployees at clause 4.4, which relevantly provides:

“4.4. Suitability assessment of redeployees

………

b) The suitability of redeployees for a vacancy at level must be assessed having regard to section 5D(2) of the Act, which must be considered in the context of reasonable training possibilities. That is, agencies must consider whether the redeployee would be suitable for the vacancy with a reasonable period of training.

[Emphasis added]”

[185] In addition to this, the Respondent noted that section 5D of the PSEMA establishes the “merit principle”:

“5D Merit principle

(1) The merit principle is that the employment of a person as an employee, or the promotion or transfer of an employee, under this Act must be based solely on the person’s suitability:

(a) to perform the relevant duties; and

(b) for employment in the relevant workplace; and

(c) for employment in the Public Sector.

(2) A person’s suitability is to be determined having regard to the person’s:

(a) knowledge; and

(b) skills; and

(c) qualifications and experience; and

(d) potential for future development.”

[186] The Respondent submitted that the effect of clause 4.4(b) of Employment Instruction 14, is that the redeployee’s suitability for a role must be assessed having regard to a reasonable period of training, and this is a benefit afforded to redeployees that is not afforded to other potential candidates for employment in the NTPS.

Preferential treatment

[187] The Respondent submitted that Employment Instruction 14 provides for the preferential treatment of redeployees, and clause 4.4(c) of Employment instruction 14 provides that:

“c) While suitability must be demonstrated, the merit principle does not apply and the redeployee is given preferential treatment over other applicants that may have applied for the vacancy (noting that where more than one redeployee is being considered for a vacancy, the merit principle will apply between them).”

[188] Preferential treatment during recruitment is a benefit afforded to redeployees by Employment Instruction 14 that is not available to other potential candidates for employment in the NTPS. However, while a redeployee is eligible for preferential treatment over other applicants, the Respondent noted that clause 4.4(c) of Employment Instruction 14 makes clear that suitability for the role must still be demonstrated. This meant that the redeployee are still required to demonstrate their suitability for a role having regard to the redeployee’s knowledge, skills, qualifications and experience, and potential for future development, as set out in section 5D(2) of the PSEMA.

Review of assessment

[189] The Respondent submitted that Employment Instruction 14 provides a governance framework in relation to the redeployment process. Relevantly, clause 4.4(e) provides that where the redeployee is assessed as unsuitable for a vacancy the agency must:

“(a) prior to advising the redeployee or any other applicants of the selection process outcome, forward a copy of all assessment documentation to the Commissioner for Public Employment for review;

(b) only proceed in finalising the selection process following receipt of the outcome of the review by the Commissioner for Public Employment; and

(c) provide the redeployee with a written explanation of why they were not considered suitable and invite the redeployee to meet with a member of the assessment panel to obtain feedback.”

[190] The Respondent noted that Clauses 4.4(f) and 4.4(g) of Employment Instruction 14 set out the role of the Commissioner for Public Employment, in relation to this process. Relevantly, the Commissioner will review all selection reports and associated information received from agencies relating to the assessment of the redeployee as unsuitable for a vacancy, to ensure that the Commissioner is satisfied with the process and outcome.

[191] Further to this, the Respondent submitted that if the Commissioner is not satisfied with the process and outcome, the Commissioner may issue such directions to the CEO as the Commissioner considers appropriate to resolve the matter. The Commissioner for Public Employment complied with the obligation to review selection reports from agencies relating to the assessment of the Applicant as unsuitable for vacancies.

Failure to secure ongoing employment

[192] The Respondent submitted that the Applicant had significant opportunities to secure ongoing employment throughout her redeployment period. Ongoing vacancies in the Northern Territory public sector are, with few exceptions, advertised on the Northern Territory’s Employment Opportunities website (www.jobs.nt.gov.au).

[193] The Respondent stated that the Applicant could readily identify suitable vacancies and was entitled to preferential treatment in relation to all recruitment decisions for vacancies at level or below. These recruitment decisions were also subject to review.

[194] The Respondent submitted that the key responsibility for failing to secure ongoing employment rested solely with the Applicant, who limited her own opportunities to secure employment. The Respondent further said that as indicated to the Applicant in correspondence from the Commissioner for Public Employment dated 1 November 2019:

“Since being declared a redeployee, the provisions of [Employment Instruction 14] have been applied to you, precisely:

•  You have been provided with meaningful employment, training and coaching opportunities.

•  You have received preferential treatment when applying for vacancies, and while your suitability for a role must be demonstrated in the context of reasonable training possibilities, the merit principle has not been applied to you.

•  On each occasion that a selection panel has found you unsuitable, even with a reasonable period of training, the recruitment panel findings have been reviewed and affirmed by this Office.

•  Your claims that you have not been afforded natural justice and that the selection panels have erred in finding you unsuitable have been investigated and responded to in writing and face to face by representatives from the Employee Relations Unit and Public Sector Appeals and Grievance Review Unit on several occasions.

•  Whilst I appreciate that you hold a particular view about the level of your performance, skills and experience, consistently well placed referees, when reflecting on their observations of your performance in the workplace, do not share the same view.”

[195] The Respondent submitted that there was nothing to prevent the Applicant from continuing to apply for vacancies in the public sector; she remained as entitled as any other eligible job applicant. Any application submitted by the Applicant will be considered in accordance with the merit principle and in accordance with the Northern Territory statutory recruitment processes.

Evidence of Susan Barnes

[196] A further hearing was convened from Brisbane, via video conference, on Thursday 15 July 2021, with the parties located in Darwin. This hearing was convened to allow the Applicant to cross examine Ms Susan Barnes. Ms Barnes had already provided a witness statement in the matter, which in summary terms provided the following.

[197] Ms Barnes stated that from 16 April 2018 to 14 July 2019, she was employed as a Senior Consultant, Employee Relations in the OCPE. She stated that relevant to Ms Scurr’s complaint, her role included:

•  Reviewing redeployee unsuitable reports (i.e. where a redeployee is found by a selection panel to be unsuitable for a role, the Commissioner for Public Employment’s (CPE) approval is required) and making a recommendation to the CPE.

•  Responding to queries about conditions of employment, including about redeployment and redundancy.

•  Assisting with the co-ordination of the 2018 incentivised voluntary retrenchment scheme for long term redeployees.

[198] On 10 December 2015, Ms Barnes said that Ms Scurr became unattached (i.e. an employee who has been displaced and is no longer attached to a particular position) from her position at the Department of Education (DoE).

[199] On 14 February 2016, Ms Barnes submitted that Mr Ken Davies, the then Chief Executive Officer of the DoE wrote to Ms Scurr and Ms Kay Densley of the Community and Public Sector Union to notify the parties of Ms Scurr’s redeployee status as she had not yet been successful in gaining an ongoing position at her nominal Administrative Officer 7 level.

[200] On 13 July 2018, Ms Barnes stated that the CPE wrote to all long term redeployees, including Ms Scurr and made an incentivised offer of redundancy. The incentive was 26 weeks’ pay at the employee’s nominal designation in addition to the standard redundancy provisions, if accepted prior to 14 September 2018.

[201] Ms Barnes stated Ms Scurr formally declined the offer of redundancy on 11 September 2018. On 19 October 2018 Ms Barnes said she met with Ms Scurr to discuss the incentivised offer and on several other occasions gave Ms Scurr the opportunity to reconsider up to 31 October 2018. Ms Barnes stated that Ms Scurr made several requests to increase the incentive payment to 1.6 million as she had calculated that this was the amount she might have earned until her planned retirement date. These requests were declined and Ms Scurr was provided with notice of redundancy on 15 January 2019.

[202] Ms Barnes submitted that Ms Scurr had a volume of queries (provided in the annexure bundle of documents) which were addressed via email and in person. Ms Barnes also said that Ms Scurr also requested copies of all redeployee unsuitable reports which were submitted to OCPE for review and the CPE’s approval. These were provided to her, in person on 23 November 2019.

[203] In December 2018, Ms Barnes stated that Ms Scurr attempted to negotiate a settlement in exchange for her resignation however, because the proposed settlement amount was substantial (Ms Scurr had not finalised her offer but stated it would be in the millions) and outside of the voluntary retrenchment offer the negotiation did not progress.

[204] Throughout her engagement with Ms Scurr, Ms Barnes stated that she made several allegations which did not appear rational and were not progressed such as:

•  The CPE and the DoE had been wanting to ‘get rid of her’ since her claims when working at the Teachers Registration Board.

•  That the Labour government wanted to ‘get rid of her’ because she opposed the Garramilla Boulevard project.

[205] Ms Barnes’ evidence was that she understood that the redeployment of Ms Scurr was challenging for the Respondent for a number of reasons including that, Ms Scurr had a high opinion of her capabilities and performance to such an extent she had stated that the CPE should directly appoint her to a higher level (Senior Administrative Officer 1). She stated that Ms Scurr’s self-assessment was not supported by her referees based on their observations of her performance. Ms Scurr refused to accept any constructive feedback about her performance in the work placements undertaken as it was her view that all referees had erred in their assessment. She also stated that Ms Scurr had limited her redeployment opportunities because she had refused to be considered for vacancies in several agencies.

[206] The Applicant cross examined Ms Barnes. In her questioning, the Applicant was concerned at what she considered to be an ‘exaggeration’ in Ms Barnes’ statements, that were to the Applicant’s detriment. The Applicant put examples of these ‘exaggerations’ to Ms Barnes with regard to Ms Barnes’ reference to a ‘series’ of meetings and the witnesses’ reference to the Applicant seeking a $1.6 million redundancy pay out. The Applicant put to Ms Barnes that there had not been a ‘series’ of meetings. She raised the dates of their meetings. Ms Barnes emphatically stated in response, that there had been a series of interactions between the two of them, taking into account the email exchanges. The Applicant took issue with Ms Barnes’ account of their discussions on the redundancy payment. She emphasised that she had never sought $1.6 million but that this represented a figure a figure of lost income, if she were to accept the redundancy.

[207] The Applicant stated that her preference was to remain in the employment of the Respondent. She made reference to a revised redundancy figure that she had proposed of $450 000. She conceded that this figure had not formed part of a written proposal to the employer, but rather formed part of her meeting notes. In any event, it was common evidence between the parties that the opportunity to agree on a severance amount had lapsed.

[208] The Applicant raised that Ms Barnes had provided pressure on her to accept the redundancy payment. In that regard, Ms Barnes had sought to meet with her on the redundancy matter again. However, on the chronology of emails; these demonstrate that the Applicant and Ms Barnes did have some continuing questions on the finalisation of the redundancy payment. Ms Barnes emphasised that, confirming with Ms Scurr her position on the redundancy payment was a critical step; given they had extended the redundancy offer and confirmed they would not be re-offering the redundancy.

[209] Ms Barnes stated in evidence that the Applicant had made reference to one of the Applicant’s colleagues receiving a significant redundancy pay out and as a result of the size of such being able to purchase a new house.

[210] The Applicant, in referring to the jurisdictional issues also referred to the deficiencies in the process, for example, that there was a 2 step process that the Respondent had not followed, that an employee was to be declared as ‘potentially surplus’ prior to being declared a ‘surplus’ employee. Ms Barnes stated that she considered the correct process had been declared with the Applicant. The Applicant questioned Ms Barnes as to whether she had conveyed to her principles that they were making ‘a big mistake’ in progressing the redeployment exercise in the manner that they had framed it.

[211] The Applicant had been concerned at the redeployment compilation document (attached to Ms Stewart’s statement), of the positions and the various contacts with the Applicant and efforts with the Applicant’s redeployment process. It was recognised that this document did not rely on information that was all contained within Ms Stewart’s knowledge; but drew from a variety of sources. The Applicant at the hearing in Darwin, when cross examining Ms Stewart, did not object to the document, given that Ms Stewart was transparent as to the compilation of the document.

[212] The Applicant at a later state did object to the document, as set out later in the decision.

[213] The Applicant also cross examined Ms Barnes about the overall inconsistency of referee reports when they were compared and considered in total. Ms Barnes response was that the referee reports referred to different criteria for different roles, across a period of time. However, she did recognise the Applicant’s referee reports had been an issue that they had been seeking to remedy. The Applicant at the commencement of the cross examination had raised a range of questions with Ms Barnes regarding the inter-jurisdictional arguments. A series of submissions on these matters had been received.

[214] A further hearing was convened from Brisbane, via video conference, on Thursday 15 July 2021, with the parties located in Darwin. This hearing was convened to allow the Applicant to cross examine Ms Susan Barnes. Ms Barnes had already provided a witness statement in the matter, which in summary terms provided the following.

[215] Ms Barnes stated that from 16 April 2018 to 14 July 2019, she was employed as a Senior Consultant, Employee Relations in the OCPE. She stated that relevant to Ms Scurr’s complaint, her role included:

•  Reviewing redeployee unsuitable reports (i.e. where a redeployee is found by a selection panel to be unsuitable for a role, the Commissioner for Public Employment’s (CPE) approval is required) and making a recommendation to the CPE.

•  Responding to queries about conditions of employment, including about redeployment and redundancy.

•  Assisting with the co-ordination of the 2018 incentivised voluntary retrenchment scheme for long term redeployees.

[216] On 10 December 2015, Ms Barnes said that Ms Scurr became unattached (i.e. an employee who has been displaced and is no longer attached to a particular position) from her position at the Department of Education (DoE).

[217] On 14 February 2016, Ms Barnes submitted that Mr Ken Davies, the then Chief Executive Officer of the DoE wrote to Ms Scurr and Ms Kay Densley of the Community and Public Sector Union to notify the parties of Ms Scurr’s redeployee status as she had not yet been successful in gaining an ongoing position at her nominal Administrative Officer 7 level.

[218] On 13 July 2018, Ms Barnes stated that the CPE wrote to all long term redeployees, including Ms Scurr and made an incentivised offer of redundancy. The incentive was 26 weeks’ pay at the employee’s nominal designation in addition to the standard redundancy provisions, if accepted prior to 14 September 2018.

[219] Ms Barnes stated Ms Scurr formally declined the offer of redundancy on 11 September 2018. On 19 October 2018 Ms Barnes said she met with Ms Scurr to discuss the incentivised offer and on several other occasions gave Ms Scurr the opportunity to reconsider up to 31 October 2018. Ms Barnes stated that Ms Scurr made several requests to increase the incentive payment to 1.6 million as she had calculated that this was the amount she might have earned until her planned retirement date. These requests were declined and Ms Scurr was provided with notice of redundancy on 15 January 2019.

[220] Ms Barnes submitted that Ms Scurr had a volume of queries (provided in the annexure bundle of documents) which were addressed via email and in person. Ms Barnes also said that Ms Scurr also requested copies of all redeployee unsuitable reports which were submitted to OCPE for review and the CPE’s approval. These were provided to her, in person on 23 November 2019.

[221] In December 2018, Ms Barnes stated that Ms Scurr attempted to negotiate a settlement in exchange for her resignation however, because the proposed settlement amount was substantial (Ms Scurr had not finalised her offer but stated it would be in the millions) and outside of the voluntary retrenchment offer the negotiation did not progress.

[222] Throughout her engagement with Ms Scurr, Ms Barnes stated that she made several allegations which did not appear rational and were not progressed such as:

•  The CPE and the DoE had been wanting to ‘get rid of her’ since her claims when working at the Teachers Registration Board.

•  That the Labour government wanted to ‘get rid of her’ because she opposed the Garramilla Boulevard project.

[223] Ms Barnes’ evidence was that she understood that the redeployment of Ms Scurr was challenging for the DoE for a number of reasons including:

•  Ms Scurr had a high opinion of her capabilities and performance to such an extent she had stated that the CPE should directly appoint her to a higher level (Senior Administrative Officer 1). Ms Scurr’s self-assessment was not supported by her referees based on their observations of her performance. Ms Scurr refused to accept any constructive feedback about her performance in work placements as it was her view that all referees had erred in their assessment.

•  Ms Scurr limited her redeployment opportunities because she refused to be considered for vacancies in several agencies.

[224] The Applicant cross examined Ms Barnes. In her questioning, the Applicant was concerned at what she considered to be ‘exaggeration’ in Ms Barnes’ statement, that were to the Applicant’s detriment. The Applicant put examples of these ‘exaggerations’ to Ms Barnes with regard to the ‘series’ of meetings and the reference to her seeking a $1.6 million redundancy pay out. The Applicant put to Ms Barnes that there had not been a ‘series’ of meetings. She raised the dates of their meetings. Ms Barnes stated in response, that there had been a series of interactions between the two of them, taking into account the email exchanges. The Applicant took issue with Ms Barnes’ account of their discussions on the redundancy payment. She emphasised that she had never sought $1.6 million but that this represented a figure a figure of lost income, if she were to accept the redundancy.

[225] The Applicant stated that her preference was to remain in the employment of the Respondent. She made reference to a revised redundancy figure that she had proposed of $450 000. She conceded that this figure had not formed part of a written proposal to the employer, but rather formed part of her meeting notes.

[226] The Applicant raised that Ms Barnes was providing pressure on her to accept the redundancy. In that regard, Ms Barnes had sought to meet with her on the redundancy matter again. However, on the chronology of emails; these demonstrate that the Applicant and Ms Barnes did have some continuing questions on the finalisation of the redundancy payment. Ms Barnes emphasised that, confirming with Ms Scurr her position on the redundancy payment was a critical step; given they had extended the offer and they would not be re-offering the redundancy.

[227] Ms Barnes had stated that the Applicant had made reference to one of the Applicant’s colleagues receiving a significant pay out and purchasing a new house. The Applicant also in questioning, referred to the deficiencies in the process, for example, that there was a 2 step process that the Respondent had not followed, that an employee was to be declared as ‘potentially surplus’ prior to being declared a ‘surplus’ employee. Ms Barnes stated that she considered the correct process had been declared with the Applicant. The Applicant questioned Ms Barnes as to whether she had conveyed to her principles that they were making a big mistake in progressing the redeployment exercise. The Applicant’s email with reference to her position did not clearly set out her position.

[228] The Applicant had been concerned at the compilation document attached to Ms Stewart’s document, of the potential positions and the various contacts with the Applicant and efforts with the Applicant’s redeployment process. It was recognised that this document did not rely on information that was all contained within Ms Stewart’s knowledge; but drew from a variety of sources. The Applicant at the hearing in Darwin, when cross examining Ms Stewart, did not object to the document, given that Ms Stewart was transparent as to the compilation of the document.

[229] The Applicant also cross examined Ms Barnes about the overall inconsistency of referee reports when they were compared and considered in total. Ms Barnes response was that the referee reports referred to different criteria for different roles, across a period of time. However, she did recognise the Applicant’s referee reports had been an issue that they had been seeking to remedy. The Applicant at the commencement of the cross examination had raised a range of questions with Ms Barnes regarding the inter-jurisdictional arguments. A series of submissions on these matters had been received.

Evidence of Kirstie Bryan

[230] Ms Kirstie Bryan, Conduct Officer within the Workforce Relations division of the Department of Corporate and Digital Development, Northern Territory Government, made a witness statement in this matter.

[231] Ms Bryan stated that she was in the role of Senior HR Consultant within the Department of Education for the period 20 November 2017 to 6 April 2018, and during this period she was the case manager for the Applicant.

[232] Ms Bryan submitted that while being the case manager for the Applicant, she did the following:

•  Monitored vacancies on the Careers in Government Employment Opportunities Online website and Redeployee Database and identified suitable positions for the Applicant to consider applying for. She would then would email copies of these vacancies to the Applicant;

•  Encouraged and guided the Applicant during the application processes;

•  Assisted the Applicant with making applications for vacancies, and made referrals on her behalf for various positions;

•  Met with the Applicant weekly during her placement in the Early Childhood Policy and Programs Team in order to work through any issues; and

•  Assisted the Applicant in facilitating on the job training and up-skilling.

Quality Education and Care NT, Department of Education Early Childhood, Department of Education

[233] Ms Bryan said that when she commenced as the Applicant’s case manager, she was working in the Quality Education and Care NT (QECNT) team. The Applicant was due to finish on 31 December 2017.

[234] On 6 December 2017, Ms Bryan stated that she met with the Applicant, Reece Ravlich and Margarida Dearaujo to discuss the projects the Applicant was to have finalised before her fixed term role with QECNT ended on 31 December 2017, and her recreational leave commenced.

[235] During this meeting, Ms Bryan submitted that the Applicant was advised that a temporary opportunity was identified with Early Childhood for her to backfill Margarida doing partial duties at the AO7 level for three months, and the Applicant was excited for this opportunity.

[236] On 19 December 2017, Ms Bryan stated that she met with the Applicant and Ms Dearaujo to go over what the next three months would look like. She said that Ms Dearaujo advised that she had weekly meetings with all of her team members to touch base on their project progress, and it was agreed that the Applicant would continue this practice, and her meetings would occur every Tuesday, and that Ms Bryan would attend.

[237] Ms Bryan submitted that that they also discussed what the role entailed, and the development of a performance plan. She stated that it was agreed between all parties that the Applicant would be provided with one hour per week to monitor and apply for job opportunities.

[238] On 2 January 2018, Ms Bryan stated that she met with the Applicant and Ms Dearaujo for their weekly meeting to go over the Applicant’s tasks, performance plan, and further job opportunities.

[239] During this meeting, Ms Bryan said that the Applicant advised her that she had not checked the redeployee database over the intervening period for any vacancies.

A07 - Senior Policy and Project Officer, QECNT NT, Department of Education

[240] On 11 January 2018, Ms Bryan said that she attended the weekly meeting with the Applicant and Ms Dearaujo, and during this meeting the Applicant queried why she was not told about the AO7 Senior Policy and Project officer with QECNT that was advertised. Ms Bryan said that she indicated that she found out about this position through a colleague.

[241] Ms Bryan stated that the Applicant then discussed this position with Susan Bowden and Reece Ravlich, who encouraged her to apply if she felt she met the criteria. The Applicant, however, chose not to apply for the position.

AO7 Senior Investigation Officer, Office of the Children’s Commissioner
AO6 Senior Gambling and Information Officer, Licensing NT
AO7 Specialist Medical Workforce Consultant, Department of Health
AO7 Activity Information Analyst, Auditor-General’s Office

[242] On 11 January 2018, Ms Bryan said the Applicant emailed her in relation to the above vacancies. She said she asked the Applicant to let her know how she went with her enquiries in relation to these vacancies, but Ms Bryan did not recall receiving a response.

Legislation and Policy Officer, AO7, Department of Housing and Community Development Senior Project Officer, AO7, Department of Housing and Community Development
Senior Policy Officer, AO7, Territory Families (Fixed)
Senior Policy Officer, AO7, Territory Families (Ongoing)

[243] On 15 January 2018, Ms Bryan said she emailed the Applicant the above vacancies listed on the redeployee database that were potentially suited to her skillset. On 23 January 2018, the Applicant responded to her and advised that she would like to apply for the Legislation and Policy Officer, AO7, Department of Housing and Community Development and the Senior Policy Officer, AO7, Territory Families (ongoing).

[244] Ms Bryan stated that the Applicant said she couldn’t find the Senior Project Officer, AO7, Department of Housing and Community Development on the system.

[245] Ms Bryan submitted that the Applicant indicated that she didn’t believe she had enough knowledge of the subject matter for the position of Senior Policy Officer, AO7, Territory Families (fixed).

[246] On 24 January 2018, Ms Bryan said she advised the Applicant that she had left a message for both contacts of the positions. In the meantime, Ms Bryan said she requested the Applicant put together a cover letter and send to her so she could make the referrals. Ms Bryan said that she included a link to some example cover letters for assistance.

[247] Ms Bryan submitted that she followed the Applicant up that afternoon and the Applicant said she would like to wait and confirm that they were genuine vacancies to avoid withdrawing her application. Ms Bryan said that the Applicant said “or they have to go through the process of pretending that you don’t meet the criterion, or they say that they don’t have the manpower to provide the necessary training. I’ve heard it all before.”

[248] Ms Bryan said that she advised the Applicant that they were genuine advertised vacancies and that as a redeployee she could be referred to the vacancies for priority consideration. Ms Bryan said that she advised that as soon as she had received the Applicant’s cover letter, she could forward a copy of her cover letter and CV for the panel’s consideration prior to other applicants. Ms Bryan said that she also advised the Applicant that if the panel felt that she didn’t meet the criteria with six months training, then they had to seek approval from OCPE before they can assess other applicants.

[249] Ms Bryan submitted that the Applicant still did not appear to understand that they were genuine vacancies and said “That’s okay, I don’t mind contacting them myself. It saves a big waste of time down the track”, and “regarding the role of the OCPE, in my experience they simply agree with whatever the agency says, so I have no confidence in that process”.

[250] Ms Bryan stated that she contacted the panel chairs herself and they both advised they were happy for her to send them a copy of the Applicant’s CV. On 24 January 2018, Ms Bryan said that she made the formal referral for the Applicant to the Legislation and Policy Officer, Department of Housing and Community Development position with the Applicant’s CV and no cover letter as she did not provide Ms Bryan with one.

[251] On 14 March 2018, Ms Bryan said that the Applicant was advised that she was not found suitable for the Legislation ad Policy Officer, Department of Housing and Community Development position, and provided a copy of the redeployee selection report. This was then approved by OCPE.

[252] It was Ms Bryan’s evidence that the panel chair offered to meet with the Applicant to explore her interests, however, the Applicant declined this meeting and assumed the process was flawed.

[253] On 25 January 2018, Ms Bryan said she made a formal referral of the Applicant to the position of Senior Policy Officer, Territory Families. She said she sent the Applicant’s CV and no cover letter, as she did not provided Ms Bryan with one.

[254] On 14 February 2018, Ms Bryan said the Applicant was interviewed for the position by Territory Families and provided a written task for their consideration. Ms Bryan stated that the Applicant reported back to her they were after someone that could ‘hit the ground running’, and therefore she withdrew her application.

[255] Ms Bryan’s evidence was that the panel chair’s feedback was that the Applicant’s written task did not meet the standard expected for the role, and from discussions with her referees they were not confident she had the ability to work in a complex and challenging legal framework.

Policy Officer, AO6, Territory Families
Policy Officer, AO7, Department of the Attorney-General and Justice
Senior Business Analyst, AO7, Department of Health
Policy Officer, AO6, Department of Health
Policy Officer, AO7, Department of Health

[256] On 1 February 2018, Ms Bryan said she found the above positions within the Applicant’s skillset on the redeployee database and asked if she was happy for her to make referrals. Ms Bryan said that two of the positions were at the AO6 level, and the Applicant confirmed that she was happy to consider AO6 positions as her salary would get maintained at the AO7 level for a period of time.

[257] Ms Bryan said that the Applicant advised that she would not drop down a level for an AO6 position, and was only interested in an AO6 position if it was a compliance, investigator or a consultant position.

[258] Ms Bryan’s evidence was that the Applicant also advised her interest areas were education and employment, as well as other areas like children and families, local government and community development, but not Corrections, Health or Police, unless it is a non-policy role.

[259] Ms Bryan submitted that the Applicant also said she heard of an AO7 investigator position that QECNT intended to create. Ms Bryan said she asked the Applicant if she could refer her to the AO7 roles identified, and that she was not aware of a position being created but that she could contact Reece to discuss.

[260] It was Ms Bryan’s evidence that the Applicant further informed her that she was not interested in the policy areas for the AO7 roles Ms Bryan had proposed for personal reasons, and therefore the referrals were not made.

Manager Compliance and Investigations with Consumer Affairs:

[261] On 8 February 2018, Ms Bryan said that she made a referral for the Applicant to the position of Manager Compliance and Investigations with Consumer Affairs. The Applicant advised Ms Bryan that she wasn’t happy that Ms Bryan made this referral as it had an incumbent in the position, and she didn’t feel as though it was a “genuine vacancy” when there is an incumbent.

[262] On 26 March 2018, the Applicant met with the Commissioner for Consumer Affairs. The Applicant advised Ms Bryan that the Commissioner had advised her that the position was evaluated from an AO6 to an AO7 and therefore they wouldn’t have time to train anyone new. Further the AO6 had been working in the unit for eight years.

[263] The Applicant advised Ms Bryan that she didn’t feel comfortable applying for the position in a small team with a lot going on, and no support. Irrespective of this, Ms Bryan said the Applicant informed her that she felt that she had the right experience for the position, so Ms Bryan said she encouraged her to still consider the position, however the Applicant did not want to.

Aboriginal Employment and Workforce Development - Senior Workforce Consultant -

Department of Education
Senior Project Officer- Department of Education and Quality Education and Care NT Assessor - Department of Education

[264] On 12 February 2018, Ms Bryan said that the Applicant identified the above vacancies and Ms Bryan asked if she would like her to refer her to the vacancies. Ms Bryan said that the Applicant said she was interested, however, wanted to know why they weren’t on the redeployee database, and whether there were any incumbents. Ms Bryan said that she advised her that she preferred to meet with the panel chairs first.

[265] Ms Bryan said that she asked the Applicant if she wanted assistance setting up the meetings. The Applicant was referred to the Senior Workforce Consultant position however she was deemed unsuitable by the panel, and the panel was approved by OCPE to move forward with assessing other applicants.

A06 QECNT - Department of Education

[266] Ms Bryan’s evidence was that on 15 February 2018, the Applicant identified an AO6 position advertised with QECNT in the Department of Education. The Applicant asked if her salary would be maintained at the AO7, and Ms Bryan said that was her understanding depending on budget, and encouraged the Applicant to set up a meeting with the panel chair to discuss the role.

[267] Ms Bryan stated that the Applicant said that she spoke with Sue Longstaff about the vacancy, who advised many people are interested in the role. Ms Bryan said that the Applicant advised her that she thought the role would not be challenging enough for her, and did not apply.

Senior Investigations Officer, Department of Attorney-General and Justice:

[268] On 22 February 2018, Ms Bryan said she emailed the Applicant a Senior Investigations Officer position with the Department of Attorney-General and Justice. Ms Bryan said the Applicant advised her that she was not interested because of the workplace.

Other positions

[269] On 5 March 2018, Ms Bryan said she found more roles for the Applicant’s consideration and sent them to her. Ms Bryan said that the Applicant advised that she would like to stay in the Department of Education because she has friends and that’s where her interests are, so she asked Ms Bryan to focus on Department of Education only.

[270] Ms Bryan submitted that she told the Applicant that the Department of Education could be her preference but still to consider the vacancies with other agencies so that she has her options open. However, Ms Bryan said that the Applicant did not agree with this and informed her that she would simply wait for a suitable position to come up within the Department of Education.

Employee Relations Officer - Department of Education:

[271] On 27 March 2018, Ms Bryan said that Ms Scurr identified the above position, however she was deemed unsuitable by the panel and the panel was approved by OCPE on 21 June 2018 to move forward with assessing other applicants.

[272] Ms Bryan stated that she understood, from the report approved by OCPE, that the primary reason why the Applicant was found unsuitable for the role was that both of her referees advised:

“although Ms Scurr was able to work through singular projects, she had not demonstrated the ability to manage multiple projects and competing priorities simultaneously. The referees further advised that Ms Scurr is methodical in her approach and preferred to undertake extensive research and present a completed project before moving on to the next activity. While this approach is conducive to a typical policy role, it is not realistic in the Senior Consultant role as priorities shift with competing deadlines.”

HR Project Officer, Department of Trade, Business and Innovation:

[273] On 28 March 2018, Ms Bryan said that she made a referral to the fixed term position of HR Project Officer, Department of Trade, Business and Innovation, and the Applicant was offered the position and welcomed on board. Ms Bryan said that it was her understanding that there was no more funding for the role to continue after three months.

On the job training

[274] During the five months that Ms Bryan was the Applicant’s case manager, she said that the Applicant was placed into a role where she was provided with ongoing support to complete projects, policies and be upskilled in new areas. This included a detailed performance plan to focus on areas for improvement.

[275] In March 2018, Ms Bryan said it was identified that gaps in the Applicant’s performance were related to managing multiple projects, managing time, and team communication, and as such the Applicant was approved to attend a five day project management course that she was interested in. However, Ms Bryan said that the Applicant was then on recreational leave for the dates of the course. The work unit were looking at other options however Ms Bryan said that she was unsure if any other suitable course was identified in her time with the work unit.

Monitoring vacancies

[276] Ms Bryan’s evidence was that she monitored vacancies for the Applicant every day and many advertised positions matched the Applicant’s skillset set out in her CV. She said that she informed the Applicant of these vacancies and encouraged her to meet with the panels, make enquiries into the position, and apply. Ms Bryan said she also made formal referrals for the Applicant through the redeployee process, to give her priority consideration for the vacancies.

[277] Ms Bryan said that in summary, during the short period of five months while she was the Applicant’s case manager, she sourced multiple jobs and made multiple referrals.

[278] Ms Bryan said she made every endeavour to assist the Applicant find ongoing employment, however unfortunately this was not successful as the Applicant either was:

•  not interested in the positions for reasons which I considered to be unreasonable,

•  declined to be referred if there was an incumbent, or

•  withdrew her application.

[279] Additionally, when a formal referral was made she was deemed unsuccessful after the panel received her referee feedback (excluding the HR Project Officer position).

Evidence of Michelle Stewart

[280] Michelle Stewart, Senior Performance Management Officer within the Workforce Relations division of the Department of Corporate and Digital Development, Northern Territory Government, provided a witness statement in this matter.

[281] From 26 September 2011 until 30 June 2019, Ms Stewart said she was previously employed in the role of HR Consultant, Senior HR Consultant and Acting Assistant Director, HR (Corporate Region) with the Department of Education (DoE).

[282] In March 2014 as Acting Senior HR Consultant, Ms Stewart said that she first came to know the Applicant due to allegations of bullying and harassment made by the Applicant against her then director at the Teachers Registration Board (TRB). These allegations were investigated by an external provider and they were not substantiated.

[283] On 10 December 2015, Ms Stewart stated that the Applicant’s nominal position was re-evaluated at a higher level resulting in the Applicant becoming an ‘unattached officer’. Ms Stewart said that an ‘unattached officer’ is an employee who is not held as the nominal occupant of any established position within an agency.

[284] Case Manager – Redeployment

[285] In July 2018, Ms Stewart said that she was appointed as the Applicant’s case manager for redeployment purposes. As the Applicant’s case manager, she said that she was required to follow the requirements of Employment Instruction 14 - Redundancy and Redeployment.

[286] Ms Stewart submitted that her ultimate goal was to assist the applicant to be placed into an ongoing position within the Northern Territory Public Sector. Ms Stewart said she sought to achieve this goal by actively supporting the Applicant in identifying and applying for ongoing positions. This included the following:

•  Scanning available, at level (A07) or below level (A06), positions on the Northern Territory Government jobs website on a daily basis to identify suitable positions. Any suitable positions would then be provided to the Applicant via email or discussed during meetings.

•  Conducting regular weekly meetings, or as needed, in order to discuss suitable positions, recruitment strategies, and any other questions or concerns that the Applicant had.

•  Regular check ins in relation to the role the Applicant was performing in and if there were any issues that she needed assistance with in resolving.

•  Providing information to selection panels, such as the Applicant’s CV or referee contacts, or information about priority recruitment as required by Employment Instruction 14;

•  ensuring the Applicant was aware of advertised roles whilst on leave to ensure she was not disadvantaged.

•  Facilitating releases from work in order to attend information sessions in relation to undertaking further study (Cert Ill of IV in Community work).

•  Arranging or assisting placement of the Applicant in different positions during her redeployment period, all of which offered the opportunity to develop her skills to support her in obtaining suitable ongoing employment.

[287] During Ms Stewart’s time as the Applicant’s case manager, she said she had many communications and meetings with her in relation to her redeployment.

Other Case Managers

[288] Ms Stewart stated that she was aware that the Applicant had other case managers prior to her appointment and this included:

•  Paula Ridge Assistant Director, Corporate HR (January 2015 - December 2017)

•  Kirstie Bryan, A/Senior HR Consultant (January 2018 -April 2018)

•  Renee Manuel, A/Senior HR Consultant (April 2018 - July 2018)

[289] Ms Stewart submitted that she had examined the Applicant’s redeployment file and created a summary of emails and meetings records filed by the previous Case Manager, Paula Ridge. Ms Stewart said that she had reviewed the Applicant’s employment records and identified that, since the Applicant became an unattached officer in 2015, she was placed in a variety of positions as they became available and were suitable to her skill set.

[290] From November 2014 to March 2020, Ms Stewart said that the Applicant was placed in a number of different roles and was successful with one temporary placement. She stated that according to the PIPS records system, the positions held by the Applicant during that period were as follows:

    Start date

    End date

Agency

    Work Unit

    Role

    24/11/2014

    22/02/2015

DoE

    Early Childhood Education

    Senior Policy and Project Officer

23/2/2015

    23/08/2015

DoE

    Attendance & Truancy

    Manager Prosecutions

    24/8/2015

    31/12/2015

    occ

    Children’s Commission

    Senior Investigations Officer

    1/1/2016

    26/03/2017

DoE

    School Operations
    North

    Senior Policy and Project Officer

    27/3/2017

    14/11/2017

DoE

    Early Childhood Education

    Senior Policy and Project Officer

    15/11/2017

    31/12/2017

DoE

    Early Childhood QECNT

    Senior Policy and Project Officer

    2/1/2018

    29/03/2018

DoE

    Early Childhood
    Policy and Proqrams

    Senior Policy and Project Officer

    30/3/2018

    22/04/2018

DoE

    School Operations North

    Senior Operations Officer

    23/4/2018

    29/06/2018

DTBI

    People and Capability

    HR Project Officer

    30/6/2018

    2/06/2019

DoE

    School Operations North

    Senior Operations Officer

    1/04/2019

    31/05/2019

DTC

    Arafura Games

Transport Operations Coordinator

    3/6/2019

    17/03/2020

DoE

    Student Engagement

    Project Manager

[291] Ms Stewart stated that the above placements may not properly reflect all the placements undertaken by the Applicant, or the correct dates.

[292] It was Ms Stewart’s evidence that the purpose of placing the Applicant in a variety of roles was to:

•  Provide the Applicant an opportunity to make connections in different work units;

•  Provide the Applicant with exposure to new work, and new employment opportunities; and

•  Provide the Applicant an avenue to demonstrate to a work unit and to future employers, that she had the skills to be placed into similar ongoing roles.

[293] Ms Stewart said that in her experience, providing work placements gives an unattached officer the best chance of being placed in ongoing employment. She said that for the duration of this period, the Applicant was paid at an Administrative Officer Level 7 under the NTPS Enterprise Agreement. This was the same classification level the Applicant held while she was working in the TRB position. Ms Stewart stated that from early 2020 onwards, Ms Scurr accessed various forms of leave for most of the remainder of her employment, which ended on 10 March 2020.

Challenges during the redeployment process

Ms Stewart noted that at the very onset of the Applicant’s redeployment process, there were various challenges that became apparent to Ms Stewart, and were present during the redeployment period. Ms Stewart said that this this included:

•  The Applicant claimed to have highly developed skills in policy and project management, however her various referees did not support these claims. The NTPS recruitment and selection process places an emphasis on referees (supervisors) providing comments and feedback on workplace performance. Resultantly with the Applicant’s performance claims not being supported by her referees, this made it difficult, and extremely unlikely to place her in the senior level positions that the Applicant would only apply for.

•  The Applicant was not open to feedback from referees, and not open to discussions regarding training/development to ‘fill the gaps’.

•  Applicant was particular as to where she was willing to work, or apply for positions with. She would often declare Agencies that she would not work for. For example, the Department of Territory Families due to her strained relationship with the Chief Executive at the time, and the Anti-Discrimination Commission as the Commissioner ‘did not have the same values as her’.

•  The Applicant was inconsistent to her attitude to exploring a wide range of agencies. At times open to leaving the Department of Education due her perceived damaged reputation, but at other times would not consider jobs outside of the Department of Education, claiming she had friends and networks within and she wanted to stay.

•  The Applicant at times would also decline to apply for certain identified positions due the position being backfilled (someone acting in it), or a good pool of applicants had applied for it, or she was not sure if she was interested in the role.

[294] Ms Stewart said that in order to try and overcome these challenges she recommended the Applicant consider applying for positions at a lower level in order to broaden her chances of securing an ongoing position and increase the chances of her referees supporting her applications (securing an ongoing position in the first instance was paramount) and then apply for higher level positions. Ms Stewart said that the Applicant was not open to this strategy, and maintained that her skills and experience were at a Senior Administration 1 (SAOl) level, and she should be considered for positions at this level.

[295] Ms Stewart’s evidence was that coaching with an external provider Ms Kate McTaggart, Executive Coach, Kate McTaggart Consulting, was arranged for the Applicant in order to help the Applicant with her employment prospects.

[296] Ms Stewart submitted that it was evident that the Applicant was becoming frustrated with not being found suitable for the positions that she was referred to for consideration. Ms Stewart said in her view, the Applicant was not accepting of the limitations of her situation in relation to her referees and was not willing to alter her strategy or approach to her recruitment process in order to overcome this. She stated that the Applicant would often simply place blame on panels not contacting the correct referees, referee’s not providing the correct information, or not supporting her claims in regards to skill, experience and achievements.

[297] At the end of 2019, Ms Stewart said that herself and the Applicant increased their meetings to a weekly basis. She stated that at this stage the Applicant was becoming more open to lower level positions such as AO6’s, however would not consider anything below (at times Ms Stewart tabled AO5’s).

Response to Applicant’s Statement

[298] Ms Stewart said that in response to the position of Manager Compliance and Celebrations was a SAOl level position that the Applicant had identified in her statement, this position was above the Applicant’s nominal therefore she was unable to be referred to it.

[299] Ms Stewart stated that the Applicant was provided on the job training within every placement. With each placement the Applicant had a manager to report to, and colleagues to engage and network with. The purpose of the Agency funding placement at ‘other agency’s was for the Applicant to upskill, learn, build relationships, find mentors to assist, and guide her into an ongoing role.

[300] Ms Stewarts evidence was that the responsibility of both the redeployee and the case manager to actively identify positions. Throughout the Applicant’s redeployment period she was referred to positions by her case managers and supporting staff.

[301] Ms Stewart noted that she was not aware of the Applicant being placed into a lower level position.

[302] Ms Stewart submitted that she arranged for the Applicant to be placed into Engagement and Partnerships reporting to Mr Wayne Avard, Senior Director, Student Engagement. The Applicant did not commence in this role until June 2019 however was advised of the vacancy in March 2019. The Applicant’s responded ‘It sounds interesting’.

Concluding Remarks

[303] Ms Stewart submitted that in her view, the Applicant was provided with many opportunities to find other suitable employment within the NTPS both during her time as an unattached officer, and subsequently as a redeployee. Further she was supported through the entire process by dedicated HR Case Managers who only had her best interests in mind, and made every effort to find her alternative employment.

[304] Ms Stewarts evidence was that from a personal perspective although her and Applicant did not always see eye to eye, she found that in the last 12-18 months they had a good working relationship, and shared a mutual goal of getting her into an ongoing position.

Objection to Ms Stewart’s evidence

[305] Following the initial hearing of the matter, the Respondent advised that they intended to provide the annexures to Ms Stewart’s witness statement, prior to the hearing of Ms Barnes’ evidence. Directions were issued to allow these documents to be provided, and the documents were subsequently provided. Upon receipt of these documents, the Applicant advised that she sought an opportunity to make written submissions in response to these documents.

[306] In response to the Applicant’s request, correspondence was sent to the Applicant asking her to outline the nature of the submissions that she sought to make, and to set out why those matters could not have been addressed in cross-examination. The Applicant provided a response to this correspondence, setting out that she had sought to make submissions on the documents.

[307] The Applicant provided the following email on the documents in issue:

“My initial response, over the weekend, was to take the opportunity to make submissions because many of these additional documents I had never seen before and from my perspective they appear to support my case. 

However after receiving your email I have had the chance to confer and reconsider. I understand now the extra steps required procedurally if I were to make a separate written submission. 

I’m cognisant of the fact that the Respondent had ten weeks to prepare their material and had access to email systems and filing systems that I don’t have access to anymore. 

On the whole I have welcomed the submission of the Respondent’s material. However the documents marked as Annexure B were compiled by a witness who was not my case manager at the time therefore not privy to most of the matters contained in them which makes it hearsay in my view. Moreover I now realise it presents a difficulty in terms of me being able to cross-examine her about them. On this basis I would like to object to them. 

Under the circumstances I have decided it would be easier all round if I don’t make any separate submissions about these additional documents.”

[308] It has not been necessary to place weight on ‘the compilation table’ of the jobs and meetings that the Applicant objected to. The assessment has focused on the direct evidence.

SUMMARY OF THE APPLICANT’S SUBMISSIONS IN REPLY

[309] In response to the Respondent’s submissions and evidence, the Applicant argued that the Respondent continued to assert that its own Enterprise Agreement was of no effect, because the Employment Instruction Number 14 – Redeployment and Redundancy Procedures (EI14), is a Northern Territory Public Sector Employment Law. This assertion had been previously comprehensively addressed in the Applicant’s submissions. The Applicant had argued that EI14 does not cover the field with respect to redeployment and redundancy, otherwise the entire redundancy clause in the Agreement would be otiose. The Applicant further argued that the Respondent’s submissions failed at the threshold issue, because there was just no inconsistency.

[310] In addition, the Applicant argued that the Respondent’s submission was misconceived because it failed to take into consideration Part 6 – Right of Review (Part 6) of EI14, which provides (emphasis added):

“6. Right of Review

A redeployee has a right of review in respect of actions and decisions relating to the redeployment and redundancy process under:

a) his or her agency’s internal complaints procedures;

b) section 59 of the Act; and

c) the dispute settling clause of the relevant Agreement.”

[311] The Applicant submitted that it was plainly apparent that Part 6 contemplated an employee’s ability to raise a dispute in accordance with the dispute settling clause of the relevant Enterprise Agreement, in addition to the internal complaint’s procedures and section 59 of the PSEM Act. The Applicant argued that as much was obvious, through the use of the conjuncture “and” instead of “or”.

[312] In response to the witness statement of Ms Barnes the Applicant denied that she ever sought to increase the incentivised offer to $1.6M. She stated that what really happened was that she said to Ms Barnes words to the effect of:

“I want to stay in the public service. If I stay my future earnings will be around $1.6M. I want to stay. I enjoy being a public servant. What you are offering me will cover me for a year and then I will suffer financial stress because I will only be able to get a basic and low paid job.”

[313] In response to Ms Barnes’ statement that the Applicant had said that she would seek a settlement amount “in the millions”, the Applicant denied that this ever happened.

[314] In response to Ms Barnes’ statement that the Applicant’s self-assessment was not supported by her referees, based on their observations of her performance, the Applicant provided a referee report from Mr Rob Picton, in relation to an AO7 position of Prosecutions Manager. Within that report, Mr Picton stated that he would have kept the Applicant in the position if the incumbent had not returned. The Applicant also provided positive referee reports from Ms Susan Bowden and Ron Greaves.

[315] The Applicant further noted that Ms Barnes had failed to include the very first assessment report that related to the Applicant after she was declared a redeployee, which was for the position of Senior Consultant, Employee Relations, Officer of the Commissioner for Public Employment, and the first panel report for the position of Senior Operations Officer.

[316] In response to the statement of Ms Kirstie Bryan, the Applicant stated that the meetings referred to, were not established nor conducted in a manner that was focused on the Applicant’s career development or redeployment. The Applicant argued that, if anything, those meetings were a form of performance management without a performance management plan in place.

[317] In relation to Ms Bryan’s assertion in her statement that the Applicant declined an offer to meet with the panel chair, the Applicant denied this. The panel chair was Lee Williams, Executive Director of the Local Government and Community Development Division. The document annexed to Ms Bryan’s statement and marked as “Document 55” demonstrated that the Applicant accepted Ms Williams’ invitation to meet with her. The Applicant agreed that at that time she believed that the process was flawed.

[318] The Applicant stated that she met with Ms Williams at 2.00pm on 15 June 2018 as they needed to wait until after Easter, when they had both returned from annual leave. The Applicant stated that while she met with Ms Williams, she took her on a tour of the office and introduced her to the team members and said words to the effect of “Sharon might be working with us soon in the future.”

[319] The Applicant further stated that she was routinely discouraged after meetings with the panel to withdraw her application. For the position referred to in Ms Bryan’s statement, the Applicant was told by the panel that:

(a) she would be on her own in the team;

(b) no support would be available for her; and

(c) they would not support her if she was in the position.

[320] In response to Ms Stewart’s statement, the Applicant argued that it is not true that Ms Stewart was assigned as the Applicant’s case manager in July 2018. The Applicant stated that she was first assigned as her case manager on 2 May 2017, soon after the Applicant sent the email correspondence to Paula Ridge seeking a new case manager.

[321] The Applicant stated that she met with Ms Stewart on 18 May 2017 and expressed concern with her being the Applicant’s case manager, because she felt that she did not support her when she reported the bullying by Ms Garrigan at the TRB in early 2014. The Applicant stated that Ms Stewart was unapologetic towards her and when the meeting concluded the Applicant did not have a case manager until Ms Bryan was assigned to her on 6 December 2017. Ms Stewart was then allocated as the Applicant’s case manager again from July 2018 until the end of her employment on 17 March 2020.

[322] In response to Ms Stewart’s statement, the Applicant submitted that the Christmas shutdown was in late-2019 and she accessed some annual leave in January 2020 and for a week in March 2020. Further, the Applicant’s employment ended on 17 March 2020 and not 10 March 2020 as Ms Stewart had stated. The Applicant stated that when her employment ended, she still had a personal leave accrual which totalled several weeks.

[323] The Applicant also responded to the statement of Ms Stewart’s and stated that when she contacted her referees, they told the Applicant that the panel did not accurately reflect their reports about her. An example was that the panel report for the role of Senior Operations Officer for Department of Education who stated that the Applicant’s writing skills met the criteria of demonstrated high level interpersonal and communication skills, but were recorded by the panel as only being satisfactory which was then relied on to say that the Applicant was unsuitable for the role. Further, when the Applicant asked Ms Stewart about training opportunities, she told the Applicant that she was not entitled to any training.

[324] The Applicant also disagreed with Ms Stewart’s statement that she had a ‘strained relationship’ with the Chief Executive of Territory Families at the time. The Applicant stated that she had never met the Chief Executive of Territory Families. However, she did have reservations about applying for positions within the Chief Executive of Territory Families’ agency given that he had oversighted several adverse decisions against the Applicant when he had been Chief Executive of the Department of Education.

[325] The Applicant, in response to Ms Stewart’s statement, submitted that the role that she was referring to was with Fisheries. The Applicant was required to have a working knowledge of the Fisheries legislation and a computer system called Oracle, which she did not have which meant that she was not suitable for the role. However, the Respondent had made it clear that training in such could be provided.

[326] The Applicant also stated that Ms McTaggart’s focus was on encouraging her to find a role outside the public service, not within it. This was opposed by the Respondent, and it was argued that this additional process, was another endeavour to assist the Applicant.

CONSIDERATION

[327] The Applicant was seeking as a remedy in relation to the matter, to be reinstated to her the Respondent’s employment and to receive back pay for the interim period. The Respondent raised a jurisdictional objection to the Commission’s capacity pursuant to a s.739 awarding such a remedy. They considered that such an outcome was beyond jurisdiction and not warranted, given the process had been complied, and further, that the outcome was not available to the Commission. The Commission’s powers to deal with a s.739 dispute are derived from the Agreements disputes procedure. The matter is not an unfair dismissal with the accompanying jurisdiction. The Applicant in her application sought that an order be issued quashing or rescinding the notice of redundancy; that the Respondent make every endeavour to actively place the Applicant into a new suitable position and that the Respondent refrain from terminating the Applicant’s employment during that process.6F 7

[328] The Applicant argued that the application and remedy sought were within jurisdiction and that at the time of filing the application, the status quo position should have been observed. The status quo provision from the Agreement stated that ‘whilst a dispute is being dealt with in accordance with this clause, work must continue in accordance with usual practice prior to the dispute arising.7F 8 The Applicant argued by virtue of this status quo provision, the process should have been halted and corrected to place her in an ongoing role. The Respondent considered this application was beyond the power of the Commission and that no clear evidence of deficiencies in the process, nor the relevant provision to be appointed to.

[329] In summary terms, the Applicant argued that her jurisdictional case that her application was not confined to those matters that formed the subject of the review under the PSEM Act. It was not able to be conclusively considered (at the outset of the matter) whether the review undertaken at that time (under the PSEM Act) had considered the scope of the matters over the breadth of the period later argued by the Applicant. Accordingly, the jurisdictional and merits matters (as set out) were joined. Having received and assessed all the arguments and the related evidence during the course of the hearing, it is clear that the review was predominantly undertaken on the same basis and the same outcome has been reviewed during the current process before the FWC. The Application is jurisdictionally barred. On the basis of affording procedural fairness the confirmation of such, could not easily have been reached at the outset given the volume of material.

[330] Having undertaken the task now, it is clear that the Applicant has had the opportunity to conduct their whole case. It is also clear that this mirrors the matter reviewed initially by the Commissioner for Public Employment. It is also clear (that whilst the Respondent somewhat generously allowed for this process to be conducted whilst maintaining their jurisdictional objection) the outcome has confirmed the outcome of the review. It is also clear that having considered all of the Applicant’s case that it has traversed, on the same grounds. It is an application that was jurisdictionally barred by virtue of the ‘review’ under the PSEM Act, already undertaken that corresponds to the current case. The conclusions however are the same. The Applicant’s case is one of a number of complaints with the process, which do not disturb the outcome of such.

Merits

[331] The Applicant alleged that she had been blacklisted and this is why she was not able to obtain an ongoing position. She submitted that the process was flawed; and she was not being offered some positions in education, that some positions were not being listed on the redeployment list, (which should occur for all ongoing jobs longer than 6 months). Ms Stewart explained that the recruitment process that had been used and developed into a simplified recruitment process,8F 9 which was heavily weighted on the references of an employee, rather than placing greater reliance on the resume and a comparison with the criteria, she explained.

[332] The Applicant stated that she had experienced problems with referee reports in comparison to the required criteria of positions. The Applicant had expressed her continuing disappointment at being placed in supernumerary positions and had sought an ongoing position with a job number and job description in a team of employees. However, Ms Stewart contended that to assist with referee reports, for this reason, she and the other case managers had been organising the new placements to allow the Applicant to secure new networks and referees. However, her evidence is that this had been difficult to achieve with the Applicant. For example, the Applicant put impediments to positions in place, for example, the various job vacancies that the Respondent had referred to, such as the proposed position with the Fisheries Department. The Applicant ruled out the position on the basis that she did not have the knowledge of the data base, although the employer had indicated that the relevant training would be provided. It is noted that the Applicant held significant positions undertaking research and using databases and that this was not a relevant reason to rule out the position.

[333] These examples are important in the context that where the employer was to make every endeavour to find alternative employment, the Applicant was providing limitations to the positions that she would consider.

[334] The case managers all gave their evidence of this in a measured way. They were credible in the approach they had taken and the comprehensive steps to genuinely assist the Applicant to achieve an ongoing position. They did however, individually in their evidence, express frustration at the Applicant limiting the positions she would apply for. For example, the Applicant did not want to apply for the position with the Anti-discrimination Commission, as she stated they didn’t share her values. The following exchange was indicative of the Applicant’s responses in relation to a range of these vacancies that the Respondent has referred the Applicant to:

“THE COMMISSIONER: That you didn’t share the code of values in terms of a - was that the child safety - the discrimination position? I don’t have that.

MS S SCURR: Anti-discrimination (indistinct) the position (indistinct).

THE COMMISSIONER: Those particular arguments in relation to cutting across some of the positions that were offered where the employer’s saying, well, we’re trying to exhaust all reasonable endeavours, that there is some obviation or negation of those opportunities in relation to other particular subjective views.

…

MS S SCURR: So that’s where that personal view of things came in. I can’t remember what the terminology was. Something about my desires, or something like that. But in terms of the other positions it was about the - they were all professional reasons. It was because I didn’t have the experience that they wanted, I didn’t have the knowledge that they wanted. And in terms of the Antidiscrimination Commissioner, that was because I’d attended a forum and I knew the direction that they wanted to head with their legislation. And I’d advised the Antidiscrimination Commissioner that I had a different view and I just knew that it wouldn’t have worked. You know, I wouldn’t be able to, you know, give my 100 per cent commitment to that role. Nothing about the Antidiscrimination Commissioner personally, she’s actually a friend of mine. We know each other. And I don’t think that would have - - -”9F 10

(emphasis added)

[335] The case managers would have to get the Applicant’s approval to be referred for positions and she often refused to allow to be considered for jobs the case managers had nominated, thus limiting the scope of opportunities for consideration. In circumstances where the Applicant was aware that the time frame for the redeployment process was expiring, this selective approach on her part, was reducing her opportunities. The Respondent was escalating their efforts, the Applicant did not demonstrate any similar urgency.

[336] The Applicant should have optimised her redeployment opportunities, by broadening the positions she would apply for. The frustration experienced by her case managers in this regard was evident. The Applicant was critical of the employer’s approach to the redeployment exercise and was disappointed by the comparison of this process to the process that she had undertaken in the 1990’s with her former employer, a Bank, and how that compared to the current process undertaken with her. No comparative detail of any legislative or Agreement obligations relevant to that process were provided.

[337] The Applicant was encouraged by each of the case managers to broaden her job search to allow them to refer her for a greater range of jobs. The Applicant was critical of the roles that she was offered; being she stated for jobs that were of a temporary or supernumerary basis. Ms Stewart, as one of the Applicant’s case managers, considered that a number of the proposed roles allowed the Applicant to enlarge her network and gain further referees. The Applicant explained that she considered that the referees (on the feedback she had sought from the selection panels) had compromised her being successful, in the selection process. However, there was no direct evidence of this presented.

[338] The evidence of Ms Stewart was that the Applicant would not agree to be referred for the full scope of potential jobs that she sought to refer the Applicant for. The Applicant considered she needed in considering potential jobs, to take into account her own interests and wellbeing, based on the nature of the work, or the department, or whether particular training would be required or provided. This attitude reduced her redeployment opportunities. These assessments by the Applicant on the evidence were based on her considerations of the outcomes.

[339] The Applicant alleged that there were deficiencies in the process. She noted that she had been continually referred to the Commissioner’s guidelines for the redeployment process and that this document was no longer effective, and that Employment Instruction 14 was the relevant document. The Respondent’s representative argued however that they had applied Employment Instruction 14.

[340] In scrutinising the process used, the evidence of each of the case managers in discharging the redeployment was provided in a measured, credible manner, that demonstrated that they had been devoted to the process. They were willing to make concessions, when necessary, in regard to the use of the Commissioner’s guidelines or that, (whilst not all specific jobs were referred to in their proposals) and that not all jobs may have appeared on the redeployee page. In assisting the Applicant with the process, each of the case managers that gave evidence was involved in the search for the Applicant but was also clearly accommodating of the Applicant’s wishes when she preferred not to be referred for certain positions they proposed. However, they were quietly tenacious, encouraging the Applicant to apply for other positions. They clearly wanted to achieve a successful outcome.

[341] In addition, each of the jobs that the Applicant has applied for, has been assessed. No finding can be made that there was an improper process, or that the Employer failed to make any additional endeavour that the Employer was required to make in accordance with the process.

[342] I make no ‘Jones v Dunkel’ inference (as suggested) regarding the failure to call the other case manager Ms Paula Ridges. She was based in Tennant Creek, some distance from Darwin and she was the case manager from 2014, prior to the process relevant to the Enterprise Agreement. The three other case managers were called and there was a genuine agreement between the nature of their process involvement, given they all undertook similar roles and engaged with similar discussions with the Applicant at separate times.

[343] The Applicant stated that the employer ended her employment very abruptly, however she had been on the prescribed notice of the redundancy and was fully aware of the timeframe. She was aware that without an alternative position, the employment would end. Whilst additional steps were initiated by the case manager and from the employer to assist the process as the date drew closer, I detected no such urgency on the part of the Applicant. The Employer had engaged an external consultant Ms McTaggart to discuss employment strategies and possible training plans with the Applicant to secure a way forward with the Applicant. No urgency was seen in the Applicant’s actions as the redundancy date drew closer. At that stage, the broadest possible range of referred jobs should have been acceptable.

Reinstatement

[344] At the final hearing in the matter, the Applicant provided a brief summary of the matter and referred to the remedy she was seeking in relation to the application. The Applicant confirmed that she had commenced in new employment in the week prior to the final hearing. On that basis, and because the Applicant identified that as a result of the redeployment process, she submitted that she had lost trust and confidence in the employer and had considered that if she was reinstated, this would ultimately not be a satisfactory outcome.

[345] The Applicant stated that given this, and her recent employment she was now seeking compensation for the lost wages and future lost wages. a specific quantum was not put forward. However, she suggested an amount of compensation (taking into account the 12 weeks redundancy payment made on termination), and what she set out were the lost wages between the end date of employment and now, based on her annual salary of approximately $114,000. The claim also included a quantum for future lost wages.

[346] The Applicant also submitted at the final hearing that she had instructed a new lawyer to send correspondence that in line with the legal opinion she had received the manner in which the redundancy or termination was effected was unlawful, on an ‘ultra vires’ basis. The Respondent confirmed this correspondence had been received. The parties clarified that they did not intend to put this document before the Commission and further that this argument was not being made for the purposes of a determination before the Commission. It has been agreed the detail of this matter was not being argued before the Commission. No failure on the Employer’s part having been found., no remedy was determined. Further, having heard the whole matter it was, on review, jurisdictionally barred.

New material

[347] The Applicant filed approximately 200 new documents with her final submissions. The Respondent objected to such a significant volume of new material, and particularly in circumstances where the documentation had not been previously addressed in the proceedings. The material has been considered; however, it has not been clear regarding the relevance of a number of the documents. The Applicant submitted that in filing these documents at the end of the proceedings, she considered she was acting in line with a process set up to allow her to do so. She explained that she had interpreted the process afforded her the right to file new material.

[348] It is concluded that in countering some matters provided by other witnesses, the Applicant on her explanation, genuinely concluded the provision of these documents was a course open to her. The Applicant conceded that she had been in communication throughout the proceedings with her lawyers and that they had assisted with the preparation of the final submissions but that she had added to these and provided the final additional documents. There is no criticism of the Applicant for seeking such assistance. She had been initially granted permission pursuant to s.596 of the Act for legal representation and jurisdictional and merits submissions had been prepared by her legal representative. The Applicant had been transparent throughout the proceedings that there were matters she referred to that she wanted to discuss with her lawyers. It is also recognised that she was mindful of the costs of such and that she was endeavouring to represent herself where she could. The Respondent did not raise objection this course when advised by the Applicant throughout the proceedings. However the Respondent did not object to the new material, given that procedural fairness could not have been provided, the new material has not been considered.

CONCLUSION

[349] The evidence of all of the witnesses in relation to the redundancy and redeployment process has been considered as have the submissions. It is recognised that the Applicant makes various complaints about the series of unsuccessful outcomes in terms of the redeployment process. It is recognised that in this matter there has been the intersection of some matters that relate to recruitment actions undertaken in accordance with the Northern Territory Public Sector employment laws and also matters that fall within the provisions of the Enterprise Agreement. The separation between the statutory codes is respected, in particular the Commissioner for Public Employment pursuant to section 59 of the Public Sector Employment and Management Act 1993 has powers of review, in relation to those matters regulated by that Act.

[350] This is an application whereby there is commonality to the matters that are under review pursuant to s.59 PSEM and the matters that formed a consideration pursuant to the provisions of the Agreement. However, the application is comprised of matters of the complaints about the process, some that have formed the basis of the review, pursuant to section 59. The section 59 review under the PSEM Act was narrower than the dispute lodged in relation to the redeployment process under the Enterprise Agreement. Whilst the current application has been considered, the employer’s submissions in terms of the placement of the provisions that deal with procedural matters related to redeployment, (being placed in Employment Instruction 14), are persuasive, and that this division of matters on this basis, would inform any future similar jurisdictional matters and provide a jurisdictional impediment.

[351] Given the inconsistencies pointed to, the redundancy and redeployment procedures set out in the Employment Instruction 14 prevails over Schedule 10 of the Agreement. Further, the Respondent’s submissions that the s.739 dispute lacked precision, as to what additional support or steps were sought. That is, the parameters or remedy for the dispute, were never clearly argued or set out. It is recognised that from the 5th of February, more particularised elements of the complaint were received, however these still do not substantiate a s.739 dispute.

[352] However, it was arguable that the redeployment process under the Agreement formed a broader consideration of the matters than was reviewed under the PSEM Act and those matters that came within the scope of the provisions of the Enterprise Agreement. Accordingly, it was considered that there was jurisdiction for the Fair work Commission to proceed to consider the matter. Therefore, there has been an assessment of the merits of the Applicant’s complaints regarding the process. However, the complaints do not demonstrate that the employer did not provide an appropriate process in accordance with the required terms. It has not been demonstrated that the employer failed to comply with Schedule 10 to the Agreement, nor Employment Instruction 14. It is recognised on review, that the Applicant has been considerably aggrieved at the outcome of the stages of the redeployment process, however the criticisms do not elevate to non-compliance with the required steps and provisions. On that basis Question 1 is answered in the positive, in that the Respondent has complied with the requirements under Schedule 10 of the Agreement in relation to the Applicant. and due to this, it is not necessary to answer the second question. Therefore, the application as set out, is jurisdictionally barred and further on a merits consideration, is dismissed.

[353] I Order accordingly.

al of the Fair Work Commission with member’s signature.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR736947>

 1   Paragraph [4] to [9] Applicant’s outline of submissions, dated 12 March 2021.

 2   [2013] FWCFB 8557.

 3   See the Full Bench in Auld v Teekay Shipping [2019] FWCFB 6047 at [82].

 4   Ibid at [84].

 5   Victoria v Commonwealth (1937) 58 CLR 618 (the Kakariki case) Dixon J at 630.

 6   [2012] FWA 162 at [34].

 7   3.1 of the Applicant’s Form F10 application.

 8   Clause 12.2 (c) of the Northern Territory Public Sector 2017 - 2021 Enterprise Agreement.

 9   PN1497 of the transcript.

 10   PN2869 to PN2876 of the transcript.