Mr. Alan Burton

Alan Burton
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[1] On 21 August 2006, Alan Burton, (the applicant), applied, pursuant to s29(1A) of the Industrial Relations Act 1984 (the Act), for a hearing before a Commissioner in respect of an industrial dispute with the Minister administering the State Service Act 2000/Tasmanian Prison Service/Department of Justice (the respondent) arising out of a dispute in relation to termination of employment and the entitlement to long service leave.
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[5] Mr Burton has 25 years of experience within the Tasmanian Prison Service.As at 21 February 2006 he held the position of Correctional Manager Grade 1 at the Risdon Prison Hospital.On 13 February 2006 he was appointed to the position of Correctional Manager Operations at the new prison, to take effect once the facility was operational.
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[11] Mr Burton informed his superior officer, Mr Charlie Micallef, the manager of the prison, of the situation.
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Mr Burton gave orders to subordinate officers that all prisoners be returned to their cells and that staff evacuate the exercise yard, consistent, he claims, with an accepted procedure known by the acronym ICE, which stands for isolate, contain and evacuate.
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[14] After the incident there was a "debriefing" of the correctional officers involved, including Mr Burton and Mr Micallef.
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Following the debrief, Mr Burton issued a memo setting out what was to happen during inmate E's lockdown period.
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[15] Shortly after the events of 21 February 2006 Ms Fennell discussed Mr Burton's actions with Mr Graeme Barber, Director of Prisons.
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Mr Burton appears to have been held responsible for most, if not all, of these occurrences.

[17] The Secretary of the Department examined the report and advised Mr Burton that he may have breached the State Service Code of Conduct and there would be an investigation.Mr Burton was suspended from duty on 6 March 2006.

[18] Mr Burton sought a review of the suspension by the State Service Commissioner, Commissioner Robert Watling, pursuant to s50 of the State Service Act 2000.
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Mr Burton was then re-assigned to alternative administrative duties at the Tasmanian Registry of Births, Deaths and Marriages, as from 3 April 2006, with his salary maintained at his previous level.
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Mr Burton was advised that information from CaseAction's report would be taken into account when the Secretary made his determination as to whether there had been a breach of the Code of Conduct.Mr Burton was provided with a copy of the report dated 26 April 2006 and invited to respond, which he did, in writing on 18 May 2006.

[20] The Secretary then determined that Mr Burton had breached the following State Service Codes of Conduct and on 2 June 2006 imposed the sanctions that are the subject of this dispute.
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[23] On 16 August 2006 the Secretary wrote to Mr Burton advising him that his classification level would be reduced to Correctional Officer Grade 4 effective from Monday 21 August 2006 on a base salary of $45,231 per annum and that he would be required to undergo counselling.His previous salary as Correctional Manager Grade 1 had been $64,915, a reduction in salary of $19,684 per annum.The applicant has computed that the sanction will amount to $843,642 over his projected working life.The demotion also has the effect of removing all supervisory responsibility from Mr Burton.

[24] The applicant contends that he had the discretionary power and the authority to order the locking of the gate.He did so exercising his experience, judgement, and the principles of ICE.He also contends that his treatment of inmate E was based upon reasonable and equal treatment, standing orders and the instructions of his superior, Mr Micallef.

[25] Mr Burton has challenged the demotion, claiming that the sanction is harsh and unjust.He is seeking reinstatement to the position of Correctional Manager Level 1.
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[29] Mr Burton completed an application form provided by the Commission.
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[30] Mr Turner submitted that Mr Burton is not a former employee therefore there is no proper application before the Commission and it should be dismissed.
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[33] In this case, Mr Turner submitted, the cases referred to in Billet are irrelevant because, as a member of the state service, Mr Burton is subject to the State Service Act.
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Mr Burton was found to have breached that code.
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Mr Burton presented his case to the State Service Commissioner, received an unfavourable determination, and has now dressed up the circumstances so as to portray them in the Commission as a termination of employment.
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[38] If there has been no termination of employment under the State Service Act then Mr Burton is not a former employee and there is no termination under s29(1A) of the Act.
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[39] Mr Johnston submitted that the fact of the State Service Act making up part of the suite of employment arrangements for Mr Burton does not mean that the sanctions imposed are not subject to a review on merit.
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As a result of that decision, the Secretary effectively ended Mr Burton's employment as a correctional manager and re-employed him as a base grade custodial officer.The demotion took place on 21 of August 2006 and the re-engagement took place on the same date.Until then Mr Burton had continued to be paid as a correctional manager.Once the demotion took effect that brought the matter within the Commission's jurisdiction.

Whether application can be amended

[40] As a result of Mr Turner's submissions I invited the parties to consider whether Mr Burton should apply to amend his application to bring it under section 29(1) of the Act, which is a provision enabling current employees to bring a dispute before the Commission.
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[41] I observed that the parties had left me in absolutely no doubt that the dispute was about the demotion of Mr Burton and all of the evidence had been in relation to the events of 21 February 2006 and what ensued thereafter.
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All aspects of the dispute in the present proceedings relate to Mr Burton's appointment as Correctional Manager and/or to his appointment to the position that he presently holds.Even if the application by Mr Burton is allowed to be characterised as one falling under s29(1) of the Act, the Commission has no jurisdiction and must dismiss the application.
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[50] The contention that this matter is related to the appointment of Mr Burton to the position of Correctional Manager Operations is ridiculous.There is no connection between the events of 21 February and the gazetting of Mr Burton as Correctional Manager Operations.This case has never at any time been concerned with the appointment of Mr Burton to the position of Correctional Manager Operations.
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[52] Mr Turner argued that s29(1A) allows a former employee to apply to the Commission for a hearing in respect of an industrial dispute arising out of the termination of the employment of the former employee and that as Mr Burton is not a former employee there is no proper application before the Commission.
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It is a fact that Mr Burton is a current employee of the state service.

[56] In my view, it is unreasonable for the respondent to argue that the applicant is a current employee and at the same time claim unfairness if the claim were brought under the provision that allows a current employee to do so.It is clear that the respondent has prepared its case on the basis that the applicant is a current employee, as that is what they have argued.In the circumstances of this case, I can detect no prejudice to the respondent if the application to amend were to be granted.

[57] Even if the dispute is not about a termination of employment, it is still a dispute about a matter "pertaining to the relations of employers and employees".If the demotion in Mr Burton's case does not constitute a termination of employment it is nevertheless a dispute relating to "the mode, terms and conditions of employment".Section 29(1), unlike s29(1A), does not limit the scope of the application beyond requiring that the dispute be a dispute about an industrial matter.The Commission has jurisdiction to hear Mr Burton's application if brought under s29(1) of the Act without any necessity to first determine that there has been a termination of employment.
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In this case it has been clear from the beginning of the proceedings what the dispute was about; it is and always has been about the demotion of Mr Burton, whether characterised as a dismissal or not.It has been clear from the outset that the remedy Mr Burton seeks is reinstatement to his former position as Correctional Manager Grade 1.
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Mr Burton is a current employee and there is jurisdiction to hear and determine his case under s29(1) of the Act.
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[65] Mr Baker submitted that the circumstances claimed by the applicant to have been a termination of employment (however characterised) are int