IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

REASONS FOR DECISION

This dispute notified in accordance with Section 29 of the Industrial Relations Act, 1984 concerns the transfer of Mr. W. Tomalin from the position of Recreation Officer, Class I, Grade 4, Curriculum Branch, Education Department, to a teaching position at the Clarence High School.

When the matter first came before me, Ms. Crotty, appearing for the Tasmanian Teachers Federation requested that I issue an order to stay the transfer pending the hearing of an appeal before the Commissioner for Review.

As the matter progressed, Ms. Crotty and Mr. Ward, appearing for the Director-General of Education (and subsequently Mr. Tomalin) all agreed that I determine the matter in its entirety and that the parties would accept my decision as final with no recourse to the Commissioner for Review. This course was to include my determination of all Mr. Tomalin's avenues of appeal open to him under the Tasmanian State Service ct, 1984 (the Act).

I commend the parties for this approach as, quite apart from removing the potential for this matter to be dealt with twice; procedural difficulties inherent in me confining my decision to an order, whatever form it may have taken, were also alleviated.

In essence, therefore, my considerations in this dispute fall into two broad categories.

The first relates to the appropriate application of the relevant sections of the Tasmanian State Service Act, 1984. In that regard I am of the view that I should comment upon the principal thrust of the arguments advanced relating to the respective sections of the Act referred to by the parties.

Mr. Ward contended that the Director-General of Education correctly transferred Mr. Tomalin. Ms. Crotty, however, strongly advocated that the Director-General had in fact abolished Mr. Tomalin's position and as a result, Mr. Tomalin was "surplus to requirements" (for the purpose of Section 47 of the Act).

Ms. Crotty's argument was that Mr. Tomalin, having become surplus to requirements, should have been declared as such under Section 47, and as a consequence become subject to the redeployment provisions contained in Part VII of the Act.

The second aspect of my decision necessarily goes to the question of the treatment of Mr. Tomalin in his employment.

Prior to the notification of this Section 29 hearing for the settling of the dispute, Mr. Tomalin had an appeal application before the Commissioner for Review.

The basis of that application was that he "had not received fair or equitable treatment in the course of his employment", the appeal grounds open to all employees under Section 66(2) of the Act.

Prior to bringing this matter to this Commission, the abovementioned appeal was withdrawn, and the parties subsequently agreed that in dealing with this matter in its entirety, I should fully consider this aspect on the merit of the submissions made and evidence presented.

Needless to say, the determination of such grounds of appeal fall neatly within the Commission's general jurisdiction outlined in Section 20(1)(a) of the Industrial Relations Act 1984, which states:

20(1) In the exercise of its jurisdiction under this Act the Commission -

(a) shall act according to equity, good conscience, and the merits of the case without regard to technicalities or legal forms.

The Tasmanian State Service Act, 1984

In essence, Ms. Crotty developed the argument that Mr. Tomalin had not in fact been transferred, but rather that his position had been abolished. She further argued that this decision of the Director-General of Education had been based upon "erroneous, incorrect and unsubstantiated information."

Ms. Crotty contended that Mr. Tomalin's teaching appointment had been labelled as a "transfer" so as to deny him the specific right of appeal which would have been available to him had the Director-General abolished the position.

In precise terms, Ms. Crotty submitted that had Mr. Tomalin been declared "surplus to requirements" in accordance with Section 47(1), which when read with subsection (3) deals, inter alia, with the abolition of an employee's position, he would have had a specific appeal right under Section 66(1)(e) of the Act.

That particular section reads as follows -

66(1) A permanent employee -

(e) who is aggrieved by the making of a redeployment declaration in respect of him...."

may appeal to the Commissioner for Review.

Ms. Crotty said that as there is no direct appeal right against a transfer the only avenue under the Act that was open to Mr. Tomalin was an appeal under Section 66(2) which is as follows -

66 (2) Any employee may appeal to the Commissioner for Review on the grounds that he has not received fair or equitable treatment in his employment in the State Service.

In dealing with this aspect of Ms. Crotty's submissions I have no option in my opinion, other than to test the logic of her argument, against the respective provisions of the Act dealing with transfer, declaration of employees as surplus to requirements, redeployment and the appeal provisions.

Ms. Crotty, in seeking to establish that Mr. Tomalin should have been declared surplus to requirements, referred to Section 47(3)(a)(b) and (c) which detail "prescribed reasons" calling for an employee to be declared surplus to requirements.

I accept that the reasons for Mr. Tomalin being moved from the Curriculum Branch of the Education Department could fit into paragraph (a), (b) or (c), or for that matter (f).

Be that as it may, however, Section 47(1) expressly states that this sub-section must be read as subject to sub-section (2), which states -

(2) An employee shall not be declared surplus to the requirements of an Agency pursuant to sub-section (1) unless the Head of Agency is unable to transfer the employee to another position in that Agency having a similar classification or salary the duties of which position the Head of Agency considers that the employee is competent to perform and can reasonably be required to perform.

Section 47(2) of the Act clearly caters for situations as faced by Mr. Tomalin. This sub-section quite unambiguously states that an employee shall not be declared surplus to requirements if the Head of Agency is able to transfer the employee to another position in that Agency with similar salary, which is what happened to Mr. Tomalin.

Ms. Crotty's initial argument that the transfer must also be to a position of similar classification is obviously not in keeping with the wording of the Section.

In my opinion the Director-General of Education met the "similar salary" criteria by transferring Mr. Tomalin to a teaching position which is in fact $60 per year less than the salary he received in the position of Recreation Officer, Class I, Grade 4. By any measure that is "a similar salary" to the one he was receiving.

In my opinion the construction I have placed on that aspect is the proper one and I cannot agree with Ms. Crotty when she said -

"I didn't see that if there was a similar salary that it didn't matter about a similar classification. I thought that the two sections had to be met".

Transcript p.21

However, the primary thrust of Ms. Crotty's argument in respect of Section 47(2) dealt with the words "can reasonably be required to perform".

Ms. Crotty strongly argued that Mr. Tomalin could not reasonably be required to perform the duties of a classroom teacher after nearly ten years out of a classroom situation. Ms. Crotty contended that this, coupled with the fact that Mr. Tomalin had made a decision to forego his career in the teaching service in favour of a career in outdoor education, made it unreasonable for him to be required to perform the duties of a classroom teacher.

Whilst I acknowledge Ms. Crotty's reasoning and fully recognise the points she made, I am of the opinion that (leaving aside appeal rights under Section 66(2) the relevant consideration regarding the performance of the duties of a position to which an employee is transferred, is the consideration of the Head of Agency.

With that in mind, it follows that, in the opinion of the Director-General of Education, Mr. Tomalin was suitably equipped and competent to perform the duties of a classroom teacher. It was his prerogative to so determine.

I also accept Mr. Ward's submission that the Director-General of Education made his decision to transfer Mr. Tomalin having regard to departmental priorities and budgetary constraints.

The appeal provision available to all employees in the State Service allow the results of all decisions made by a Head of Agency affecting employees, to be challenged.

I have previously stipulated in this decision that in coming to a conclusion on this matter, two questions have to be resolved. Firstly, there is the question of whether there has been a legitimate transfer in accordance with Section 42(3) of the Act: and secondly, there is the question of whether Mr. Tomalin has received fair and equitable treatment in his employment.

Whichever way I consider the action taken in relation to Mr. Tomalin, in respect of the application of the letter of intent of the transfer provision of the Act, I come to the conclusion that the Director-General of Education has acted correctly. That is to say that Ms. Crotty's argument, in my view, is not sustainable when regard is had to the wording, and in my view intent, of Section 47(2) of the Act.

In my opinion, the reality of Section 47(2) is that once the pre requisite of a transfer has been met, and the Head of Agency is satisfied that an employee is competent to perform and can reasonably be required to perform the tasks of the position to which he is transferred, then there is no avenue to explore the other sub sections of Section 47. Accordingly the redeployment provisions of Section 48, in these circumstances, cannot be invoked.

Specifically, in my view, even if a position has admittedly been abolished but the Head of Agency transfers the employee to a position of similar classification or salary, then the transferred employee is clearly not surplus to the requirements of the Agency.

From what I have said, the case for Mr. Tomalin on the application of Section 47 and 48 must necessarily fail.

Fair and Equitable Treatment

I can understand Mr. Tomalin's concern that he should be transferred to a teaching position after many years of building up a specialisation in outdoor education.

Mr. Tomalin has obviously dedicated himself to the position he occupied as a Recreation Officer, Class I and in fact has built the status and developed that position to such an extent that he was referred to as "State Co-ordinator for Outdoor Education."

To suddenly learn that the position which he had nurtured is no longer regarded as an important priority by the Education Department, must have come as somewhat of a shock and disappointment.

Against the factual reality of what has happened to Mr. Tomalin, I am asked to consider if Mr. Tomalin has been treated fairly and equitably.

In my view this can only be answered by the application of strict objectivity.

Whilst I sympathise with Mr Tomalin, the crucial question is whether Mr. Tomalin's view about the scope of his job and the need for it to be retained, should prevail over the view of the Director-General, who has indicated that the duties of the position are now of a low priority. Mr. Ward said -

"It is one of the unfortunate situations that we have that priorities change. Therefore, not to put Mr. Tomalin to doing something that he is skilled and highly efficient at, at a time when we have no need in the curriculum area, is, I believe, improper of the Director-General."

Transcript p.73

That to me sums up the circumstances faced by Mr. Tomalin.

I am of the opinion that, given such circumstances, I have no alternative but to accept the Director-General's assessment. It would not be disputed that the Director-General, as one of his functions, has the overall responsibility to determine the priorities of his Agency.

Having reached that point, I do not consider that Mr. Tomalin has been treated unfairly by the provision of an alternative position as a classroom teacher at Clarence High School.

Nevertheless, I am of the opinion that after many years, nearly ten, in positions dealing with outdoor education, Mr. Tomalin deserved to be involved in detailed discussions with his superiors about his own future, and that of outdoor education in this State.

From what has been put to me, Mr. Tomalin had very little, if any, opportunity to put his case that in fact his position in Curriculum should be retained. That is not to say however, that Mr. Tomalin did not have an opportunity subsequently to discuss the decision made by the Director-General, with him. He simply chose not to follow that path.

It was obvious during these proceedings that Mr. Tomalin is a thoughtful person with a high degree of commitment to outdoor education. He has displayed a great deal of initiative and obviously was a prime resource, and a very respected one, in his area of expertise.

It is little wonder, after the clearly extensive dedication he gave to his position, that he should come to the conclusion that those responsible for transferring him "have not had the benefit of sufficient or accurate information upon which to make reasonable decisions".

The apparent lack of understanding shown in relation to his job obviously caused Mr. Tomalin the most acute concern and even hurt.

In my view this aspect could have been substantially ameliorated, if as a result of Mr. Tomalin's special circumstances, full and frank discussion had been undertaken with him prior to the notification that his position in Curriculum had become, from a Departmental point of view, of low priority.

Having made those comments, I nevertheless must conclude that a transfer to a teaching position does not constitute unfair or inequitable treatment for Mr. Tomalin, despite the fact that a more compassionate and consultative approach to the transfer was warranted from the Department. From the evidence presented before me, I am of the opinion that such an approach would not have achieved a different end result.

It should also be stated that Mr. Tomalin had previously applied for teaching positions whilst in his Outdoor Education role. This mitigates against the implied harshness, as put by Ms. Crotty, of the transfer to Clarence High School. His most recent application was in 1983, when he applied for the position of Vice Principal of Kingston High School.

I can accept the evidence led by Ms. Crotty from Mr. Tomalin that he anticipated that Kingston High School would be quite receptive to his perception of outdoor education developments and that a large component of this, and other positions he had previously applied for, all contained a large component of outdoor education. However, that evidence has to be tempered with the comments made by Mr. Ward.

Mr. Ward said:-

"...the Director-General has followed the requirements of the State Service Act and regulations and personnel handbook and has been conscious of placing Mr. Tomalin in a situation where he believes he can, very adequately, carry out the duties and in a school in which there is quite some scope for outdoor education."

(underlining mine)                                                                        Transcript P. 201

It appears from those remarks that there is scope for Mr. Tomalin to be involved, to some extent, in outdoor education development at Clarence High School.

I do not wish to over emphasise this aspect however, because I am also conscious of what Mr. Ward had to say regarding general curtailment of grown in outdoor education as a result of reductions in school staffing, funding and a concern about the intrusion into school time both by school staff and principals.

No doubt, between the two positions advanced by Mr. Ward, Mr. Tomalin can take some comfort that within the limits delineated by Mr. Ward, he will not be cut off from outdoor education activities entirely.

I have devoted some attention to the foregoing scenario, but I do not wish to divert attention from the applications for teaching positions previously made by Mr. Tomalin.

Whatever the outdoor education component of those particular positions, Mr. Tomalin would still have had to undertake, what I shall call, normal teaching duties.

He saw himself capable of performing those tasks in 1983 and I cannot, in conclusion, agree with Ms. Crotty that the return to a school environment will now amount to unfair treatment of Mr. Tomalin.

No doubt there will be a period of adjustment for him. However, I agree with Mr. Ward's assessment when he said:-

"When he goes back into a school, he will have plenty of support from the senior staff of the school. It will be their expectation that they will assist him with any problems that he may have in readjustment. And he will also be able to join in school and individual staff development activities which is our way of catering for people who need to update their qualifications, whether they have been teaching regularly or whether they have had other positions.

We have a large number of courses which we advertise each year and which teachers do participate in as a means of refresher courses or upgrading of knowledge or just from personal interest.

I don't see any problem with Mr. Tomalin readjusting to the school situation. And I also would expect that he would be heavily involved in any outdoor education activities that the school is carrying on."

Transcript p.78

As I see it, there is a challenge ahead for Mr. Tomalin and, if he approaches it positively, the school that he is going to will stand to gain from his contribution.

My conclusion is that the transfer has been properly made by the Director-General of Education, and given that the duties of the Recreation Officer position are now of very low priority having regard to strict staffing and financial ceilings, the alternative offered to Mr. Tomalin is fair and reasonable and well within his capabilities.

R.K. Gozzi
COMMISSIONER