EMPLOYMENT AND INDUSTRIAL LAW — Application for variation of Contract Determination – Variations proposed to rates in accordance with agreed method of adjustment and to correct typographical errors arising from earlier variations – Variation made by consent
EMPLOYMENT LAW – application to varying non-disclosure orders by non-party – parties consent to variation order – relevant principles to apply – in the interests of justice to vary the orders – not in the interests of justice to maintain the original orders – variation order made
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Jurisdiction — Unfair Dismissal — Probation — Reasonable maximum period of probation — Whether maximum period determined in advance — Application of Government Sector (General) Employment Rules 2014 — Maximum period of probation of 12 months reasonable
EMPLOYMENT AND INDUSTRIAL LAW – Contracts of Carriage – application for contract determination – rates sought above those in the General Carriers Contract Determination – insufficient material to determine rates are fair and reasonable – application dismissed
WORK HEALTH AND SAFETY – Improvement Notice issued by inspector – application for external review of decision made on internal review – whether there were facts which could found a reasonable belief that a contravention has occurred – whether reasonable inquiries made – external review upheld
EMPLOYMENT AND INDUSTRIAL LAW – awards and agreements - enterprise agreement approved – enterprise agreement rescinded - Principles for Approval of Enterprise Agreements
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Industrial Dispute — Interpretation of Award – Separate Questions for determination — Interpretation of ‘No extra claims’ clause in the context of a clause in the Award permitting “the creation and/or assignment of a classification to a work level” specified in the Award, during the life of the Award in certain circumstances – Meaning of ‘classification’ — Proposed classification of Virtual Clinical Care Centre Triage Clinicians to a lower work level than indicated by the remuneration paid to persons currently performing the role — Award contemplates changes to the work level assigned to a classification during the life of the Award, despite the ‘no extra claims’ clause, provided conditions are met
EMPLOYMENT AND INDUSTRIAL LAW - Application for relief from victimisation – prospective employer – presumption displaced in respect of detriments – application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Dispute orders –– Safety concerns raised by Fisheries Officers over many years –– Imposition of work bans in respect of nighttime inspections of commercial fishers –– Objective of work bans to draw public attention to the underlying safety issues and the legislative reform the Union contends is appropriate –– Public Interest Considerations –– No persuasive evidence that work bans pose a serious risk of depletion of key fish stocks –– Evidence that WHS issues had not been dealt with expeditiously –– Some risk mitigation measures sought by Union require legislative change, outside of the control of the Employer –– No dispute orders made
APPEAL – EMPLOYMENT AND INDUSTRIAL LAW - Victimisation claim – Threatened termination of employee for disclosing confidential information to union as part of employee’s duties as union delegate, including as a witness in proceedings for a new award - Commissioner did not allow the applicant to argue an alleged detriment not identified until reply submissions – no error in disallowing the point of claim – Commissioner did not misapply the law in determining the victimisation claim – decision-makers’ belief does not need to be correct to be accepted as the reason for detrimental action – Commissioner did not need to consider the applicability of reg 76 of the Police Regulation to determine the reason for the detrimental action being taken by the decision-makers – appeal does not raise any important issue of law or principle - leave to appeal refused APPEAL – EMPLOYMENT AND INDUSTRIAL LAW – Industrial dispute – a ground of relief sought by the notifier was declaratory and beyond power – appellant did not present arguments to the contrary - Commissioner was not required to determine the applicability of reg 76 of the Police Regulation to decide whether to make the recommendations sought in the dispute - appeal grounds contest findings of fact that were open on the evidence - no House v The King error established – no utility in the appeal – leave to appeal refused
Judgment of
Senior Commissioner Constant, Commissioner Webster and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation —Principles for approval of enterprise agreements — enterprise agreement approved
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – unfair dismissal application in respect of a teacher – student witnesses – witnesses are now adults – whether there it is necessary in the interests of justice to make non-disclosure orders in respect of students – public interest in protecting children to encourage reporting of misconduct and underperformance of teachers – imbalance of power between teachers and children – size and specialised nature of the school necessitates School name being subject to s 164A order to protect the identity of the witnesses - Non-disclosure orders
POLICE – removal of police officer – s. 181D Police Act 1990 – application for review of order of Commissioner of Police – alleged possession of child abuse material in four videos – applicant claimed he was not in possession of three videos – applicant also claimed one video he possessed was not child abuse material – application of criminal judgements in the Industrial Commission – applicant did not possess three videos – material applicant possessed not child abuse material – removal was unjust and unreasonable –consideration of whether reinstatement practicable – applicant reinstated with no compensation.
EMPLOYMENT AND INDUSTRIAL LAW – Awards – interim award – reconstitution of the Full Bench – form of interim award to reflect Full Bench decision –whether overtime meal allowances should be increased.
EMPLOYMENT AND INDUSTRIAL LAW — Awards — Interim Award — Dispute resolution — Conciliation and arbitration — Long running dispute regarding correct classification of Technical Officers and Hospital Scientists performing scientific work in pathology laboratories and other settings within NSW Health Pathology and Sydney Children’s Hospital Network — Where Union maintained that persons employed as Technical Officers performing scientific work entitled to be classified as a Hospital Scientist whenever they attained a science degree — Where Employer disagreed but proposed variation to Hospital Scientists (State) Award to remove any ambiguity — Matter returned to conciliation after seven days of arbitration — Proceeding resolved by making interim award by consent as an interim resolution of the dispute, without prejudice to either party’s position in respect of the dispute in the event the underlying issue cannot be resolved through broader award negotiations — ‘Special circumstances’ justifying making of an interim award established
EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Threatened State-wide strike action by public health system nurses – Union did not oppose Commission making recommendation in conciliation that strike action not proceed as planned – Risk to safety and welfare of patients reasonably self-evident – Conciliation in respect of the underlying dispute has not yet occurred – Recommendations made
CIVIL PROCEDURE – appeal – application for leave to appeal – whether applicant under legal incapacity – application for appointment of tutor – failure to nominate tutor – stay of proceedings
Judgment of
President Taylor, Deputy President Paingakulam and Senior Commissioner Constant
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission- procedure and powers – victimisation proceedings – self-represented applicant – notice of motion seeking for appointment of a tutor-failure to meet evidentiary requirements of UCPR 7.18(5)(b)
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Jurisdiction — Employee dismissed five days before end of probationary period — Reasonable period of probation – Minimum probation period prescribed by statutory rule — Probationary period reasonable having regard to nature and circumstances of employment – No jurisdiction to hear and determine unfair dismissal claim
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – motion to set aside summons to produce – relevant principles - whether documents sought for a legitimate forensic purpose – oppression – fishing
EMPLOYMENT AND INDUSTRIAL LAW - Termination – Statutory rights – Unfair dismissal – fighting in the workplace - no denial of procedural fairness - whether dismissal harsh, unreasonable or unjust
UNFAIR DISMISSAL – Extension of time – application to extend time to lodge application – unrepresented litigant – extension opposed by respondent – applicant informed of 21 day time limit – applicant did not seek alternative advice for several months - extension of time refused – application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Victimisation and Unfair dismissal claims — Whether parties entered into a binding agreement to settle the claims – Where offer made by Respondent “subject to Deed of Release” ostensibly accepted by Applicant – Where Applicant contended that parties’ intention was not to make a concluded bargain unless and until a deed was signed — Evidence established parties intended to be bound before signing deed, however signing of deed was condition of performance EVIDENCE — Privileges — Evidence of settlement negotiations admissible in proceeding in which the making of a settlement agreement is in issue JUDGMENTS AND ORDERS — Appropriate order to be made pursuant to s 73(1)(b) of the Civil Procedure Act 2005 (NSW) in circumstances where signing deed is a condition of performance – proceedings permanently stayed
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation — Wage fixing principles EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Award variations
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Costs — Whether proceedings instituted without reasonable cause
EMPLOYMENT AND INDUSTRIAL LAW – Contracts of Carriage – applications for contract determination to prevent certain deductions being made to remuneration of contract carriers – whether contract determination already applies – whether deductions consistent with the existing scheme of industrial regulation – whether deductions otherwise fair and reasonable
EMPLOYMENT AND INDUSTRIAL LAW – Public Sector – Police – review of removal order – whether consideration by Commissioner of Police of applicant’s disciplinary history rendered removal unjust or unreasonable – whether removal otherwise harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW — Removal of police officer — Application for review pursuant to s 181E of Police Act 1990 (NSW) — Failure of applicant to comply with direction regarding COVID-19 vaccination — Application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – health worker unable to work due to COVID-19 vaccination requirements of Public Health Orders – failure to comply with COVID-19 vaccination requirements of determination made pursuant to the Health Services Act 1997 – whether dismissal harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – health worker unable to work due to COVID-19 vaccination requirements of Public Health Orders – failure to comply with COVID-19 vaccination requirements of determination made pursuant to the Health Services Act 1997 – whether dismissal harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety — Notices and enforcement — Provisional improvement notice — External review — Right of HSR to be paid outside normal work hours
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal against decision dismissing application under s 229 of the Work Health and Safety Act 2011 for external review of a decision to issue a prohibition notice – whether leave to appeal should be granted – whether Commissioner erred in finding that an owner-builder constructing a dwelling was conducting an “undertaking” – whether the Commissioner erred in finding the inspector held the “reasonable belief” required by s 195 of the WHS Act when issuing the prohibition notice – whether the Commissioner denied the applicant procedural fairness in not permitting him to adduce rebuttal evidence – whether the decision at first was otherwise affected by error
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – teacher dismissed after performance found to be unsatisfactory following an Executive Teacher Improvement Program – whether there was a proper basis to place teacher on Program – whether process impacted by bias or discrimination – whether dismissal otherwise unreasonable or unjust – whether dismissal harsh
EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes – Power of Commission to make a determination pursuant to s 175 of the Industrial Relations Act 1996 – Whether factual bases for relief sought established – Whether communications between union delegate and union subject to legal professional privilege – Relevance of establishing a collective element to the dispute to the exercise of discretion to grant relief – No basis to grant relief EMPLOYMENT AND INDUSTRIAL LAW —Victimisation - Threatened termination of employee for disclosing confidential information to union as part of employee’s duties as union delegate, including as a witness in proceedings for a new award – Employer audited employees’ emails and discovered disclosures – Whether substantial and operative reason for investigating and finding employee had engaged in misconduct was his role as delegate and/or his participation in award proceeding - Consideration of ‘reverse onus’ provided for in s 210(2) of the Industrial Relations Act 1996 – Relevance of the correctness of the belief held by person responsible for taking detrimental action against employee to determining whether onus discharged – Consideration as to whether other persons had an material effect on decisions of those responsible for taking detrimental action – Presumption that detrimental action taken for proscribed reason displaced by direct evidence from those who took the detrimental action as to their motivations which was accepted - application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission —Unfair dismissal – Practice and procedure – Failure of applicant to comply with directions – Notice of Motion to dismiss the proceedings for failure to prosecute the proceedings with due despatch – No adequate explanation provided for defaults – Applicant failed to appear on hearing of the motion – Proceedings dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Awards – application for increases to salaries – discretion of Commission to award increases – principles to apply in setting award conditions – whether award provides fair and reasonable conditions of employment – whether increases necessary to ensure award continues to provide fair and reasonable conditions of employment – application of Wage Fixing Principles – work value – productivity and efficiency – special case – increase awarded - s 164A orders made
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – industrial dispute – industrial action - dispute orders – paramedics – ban on attendance at all jobs – ban on attending Ambulance NSW rosters – ban on patient transfers – HSU concern regarding maintenance of staffing during absences - public interest – risk to public safety – objects of the Act – orders and directions made
EMPLOYMENT LAW – unfair dismissal – employer asserts it is a national system employer – Commission lacks jurisdiction – unfair dismissal application dismissed – costs application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – applicant sought leave to appeal against decision dismissing application for reinstatement of injured worker for want of jurisdiction – leave to appeal refused by Full Bench – applicant filed second appeal against decision at first instance – whether applicant should be granted an extension of time to make the second appeal
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Termination – applications for exemption from paying severance pay to employees on the basis of the employer having obtained acceptable alternative employment for them
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – employee failed to conduct airport inspections – falsification of records in a manner which suggested inspection done – whether dismissal disproportionate to the gravity of the misconduct
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – documents produced pursuant to a Summons for Production – claim of public interest immunity – whether immunity attached to intelligence reports of the NSW Police Force – whether the public interest in disclosure outweighs the interests in the administration of justice – the public interest in keeping confidential the informants is outweighed by the public interest in the administration of justice in the unredacted documents being made available to the applicant – consideration of instead making s 164A orders – order made
CONTRACT OF CARRIAGE – termination – reinstatement – compensation – identifying parties to the contract of carriage – whether there was an implied contract of carriage – essential elements of a contract not established
COSTS – respondent applied for order for costs –application for reinstatement under s 181D of the Police Act 1990 not instituted without reasonable cause and was not frivolous nor vexatious – applicant did not unreasonably fail to agree to a settlement of the claim – the application for costs order refused.
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Threatened dismissal EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Injunctions
UNFAIR DISMISSAL - Extension of Time - application to extend time to lodge application - unrepresented litigant - extension opposed by respondent - application granted.
EMPLOYMENT AND INDUSTRIAL LAW — Industrial dispute - Employee performing role on a temporary basis for over 12 years - Payment of temporary assignment allowance – Placement of employee in ongoing position
EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety — Notices and enforcement — Owner-builder issued with Prohibition notice — Whether inspector had power to issue Prohibition Notice — Whether residential construction site was a “workplace” – Whether construction of dwelling by an owner-builder constituted an “undertaking” within the meaning of the Work Health and Safety Act 2011 (NSW) – Whether an owner-builder is a “person conducting a business or undertaking” and a “worker” within the meaning of the Work Health and Safety Act 2011 (NSW) – Whether inspector held requisite reasonable belief as required by s 195 before issuing Prohibition Notice
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Public Sector Disciplinary Appeal – Procedure — Adjournment of hearing granted due to illness of appellant’s counsel
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal against decision revoking order made under s 173 of the Police Act 1990 – whether Commissioner at first instance misapprehended or misapplied onus of proof under Police Act – whether Commissioner failed to conduct fresh and independent review – whether Commissioner erred in finding that the alleged misconduct was implausible – whether Commissioner failed to have regard to the public interest in the manner required by the Police Act – whether the Commissioner erred in finding that the public interest requires the proper investigation of disciplinary issues
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Appeal from motion seeking order that Commissioner examine documents over which privileged claimed pursuant to s 133 of the Evidence Act 1995 (NSW) and an order that applicant be granted access if documents not privileged – Application of Division 1, Part 3.10 of Evidence Act to pre-trial production of documents in the Commission – Meaning of “client” for the purposes of determining if documents privileged – Solicitor as agent for the client – Employees as agent for the employer
Judgment of
Chief Commissioner Constant, Commissioner Muir and Commissioner McDonald
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal against decision dismissing application for reinstatement of injured worker for want of jurisdiction – whether Commissioner failed to apply the correct test – whether Commissioner had regard to irrelevant considerations – whether applicant denied procedural fairness
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Industrial dispute – Application for dispute orders – Whether in the public interest for orders to be made – Application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Interpretation — Remuneration EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Interpretation
EMPLOYMENT AND INDUSTRIAL LAW — Awards — Interpretation EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Relief EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Arbitration EMPLOYMENT AND INDUSTRIAL LAW — Contract — Terms — Implied terms
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Public Sector Disciplinary Appeal - Procedure— Late application for witness to give evidence by AVL due to her being away on holiday with her parents and she is caring for her injured father and breast feeding her four-month-old baby — No evidence of steps taken to ensure witness’ attendance or to explain that the late application was not wholly due to conduct of the witness — Application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Variation – application by employer for creation of new classification – counter application by HSU – whether substantial reason for variations and not contrary to the public interest – whether proposed rates of pay would set fair and reasonable conditions of employment – whether HSU application amounts to extra claim or contrary to wage fixing principles – presumption that award provides fair and reasonable conditions of employment – whether presumption rebutted
EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Police – Misconduct and unsatisfactory performance – Powers of Commissioner – Jurisdiction of the Commission - Whether revocation of appointment as ‘Leading Senior Constable’ constitutes ‘reviewable action’ within the meaning of s 173 of the Police Act 1990 (NSW) – Whether revocation was action taken due to officer’s misconduct or for some other reason – Determined that revocation of appointment was due to findings made that officer had engaged in misconduct – Revocation of appointment is ‘reviewable action’ – Commissioner’s motion seeking that application for review of revocation be set aside or summarily dismissed, dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – whether Commissioner erred in deciding not to award reinstatement or re-employment of applicant – whether Commissioner provided adequate reasons for his decision – whether matters arising on appeal warranted the grant of leave to appeal
Judgment of
Commissioner Sloan, Commissioner Webster and
Commissioner O’Sullivan
EMPLOYMENT AND INDUSTRIAL LAW - work health and safety – cancellation of provisional improvement notice – external review – principles to the approach of the review – point of time for review – whether inspector on review of a provisional improvement notice has a general discretion to cancel, vary or confirm – Commission may consider contemporaneous factual circumstances in an external review – the LHD’s compliance with provisional improvement notice is relevant to the Commission’s exercise of discretion – improvement notice issued at the time of the cancellation of the provisional improvement notice is relevant to the Commission’s exercise of discretion – variation sought would be significant departure from the provisional improvement notice - decision to confirm the internal reviewers decision to confirm the cancellation of the provisional improvement notice
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Variation — Nominal term of Award had expired, however no proposal to amend the nominal term or to seek new award – Factual circumstances justifying variation of Award rather than making of a new award
COSTS – Party/Party – Appeals – leave to appeal granted but appeal dismissed – application for costs on the appeal – whether the Commission is empowered to award costs in appeals from decisions under Ch 2 Pt 7 of the Industrial Relations Act 1996
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – allegation that respondent failing to comply with applicable award in establishing rosters – notifier seeking interpretation of award and recommendations – whether evidence reveals breach of award – whether Commission’s intervention warranted
EMPLOYMENT AND INDUSTRIAL LAW – industrial dispute – industrial action - dispute orders – paramedics – non-attendance to low acuity cases for 24 hours - public interest – risk to public safety – objects of the Act – orders made
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Appeals – Leave to appeal in respect of dismissal of unfair dismissal application — Application to lead further evidence — Principles applicable to grant of leave for the reception of further evidence — Leave to appeal refused
Judgment of
Chief Commissioner Constant, Commissioner Muir and Commissioner McDonald
EMPLOYMENT AND INDUSTRIAL LAW — Removal of Police Officer — Application for Review pursuant to s 181E of Police Act 1990 (NSW) —Allegations of misconduct— Application Dismissed
EMPLOYMENT AND INDUSTRIAL LAW - Appeal from two decisions – application for leave to appeal –unfair dismissal application – victimisation application – no error of law identified – leave to appeal refused in both appeals
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal from interlocutory decision to allow evidence to be adduced – evidence not called at hearing – whether utility in granting leave to appeal EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal against principal decision – challenges to findings of facts at first instance – whether appeal disclosed error in principal decision warranting grant of leave to appeal – whether failure to make orders for lost remuneration and continuity of service unreasonable and unjust – consideration of seriousness of findings of Commissioner at first instance and other orders made EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – cross-appeal against principal decision – challenges to findings of facts at first instance – whether appeal disclosed error in principal decision warranting grant of leave to appeal – whether the absence of evidence for a particular finding and a related denial of procedural fairness warrants the grant of leave to appeal
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir
EMPLOYMENT LAW - Public Sector Disciplinary Appeal – serious allegations made against teacher of special needs children – witness evidence of conduct not reliable – onus of proof subject to Briginshaw principles - Jones v Dunkel inference drawn – some but not all misconduct proven – appeal allowed – appellant to receive a warning and placed on a performance improvement plan – appellant not a risk to children
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal – Granting of relief pursuant to s 89 of the Industrial Relations Act 1996 (NSW)
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal – Application brought 250 days out of time – Application to extend time to lodge application - Unrepresented litigant - Extension opposed by Respondent – Substantial delay insufficiently explained – No other factor indicating justice of case requires exercise of discretion in favour of applicant – Extension of time refused – Application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Police -Removal – Failure to comply with direction requiring vaccination against COVID-19 – Lawful Direction – Direction does not need to be reasonable – Whether direction complied with by not performing duties – Late raising of arguments by Applicant contrary to procedure set out in s 181F(1) – Whether direction contravened no extra claims clause in Police Award – Validity of delegation of discretion to grant exemption from requirement to be vaccinated – Reasonableness of denial of request for exemption – Conduct contrary to s 7 of Police Act 1990 (NSW), reg 8 of Police Regulation 2015 (NSW), s 28 of the Work Health and Safety Act 2011 (NSW) and NSW Police Force Code of Conduct and Ethics – Applicant went on recreation leave the day after deadline for first dose of vaccine and a week later, until date of removal, was certified as unfit to work – Applicant has not discharged onus – Application dismissed
WORKERS COMPENSATION — Protection of injured workers — Reinstatement of worker – Jurisdiction – Whether worker dismissed as a result of workplace injury
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – application for new award – forfeiture of “flex hours” by lawyers working in the Office of the Director of Public Prosecutions – consideration of the circumstances in which the lawyers work – consideration of extent of “flex hours” forfeiture – whether proposed award would be effective to prevent forfeiture – consideration of other issues arising – whether intervention of Commission warranted
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – employee dismissed for failure to comply with employer’s requirement to be vaccinated against COVID-19-whether the requirement to become vaccinated against COVID-19 was a lawful and reasonable direction- whether dismissal otherwise harsh, unreasonable or unjust.
EMPLOYMENT AND INDUSTRIAL LAW — Removal of Police Officer — Application for Review pursuant to s 181E of Police Act 1990 (NSW) —Alleged Unreasonable use of force — Application Dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Leave to appeal granted – Appeal upheld – whether appeal raises substantial issues of law – whether utility in granting leave to appeal – requirement of s 241 met by providing a medical certificate stating the employee is fit for the employment sought – no requirement that the medical certificate is a “true statement” of the workers fitness – finding of fitness must be based on medical evidence – no medical evidence to support conclusion the worker was fit – application dismissed
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – procedure and powers – victimisation proceedings – self-represented applicant – notice of motion seeking order that the applicant be granted access to documents over which privilege claimed – whether documents the subject of privilege – whether privilege had been waived – whether Commission ought to inspect the documents to determine the issue – second notice of motion seeking leave for the applicant to issue a summons to an individual – whether legitimate forensic purpose in issuing summons
EMPLOYMENT AND INDUSTRIAL LAW – industrial disputes – Dispute orders – industrial action – public interest considerations – impact on families - dispute orders made
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Leave to appeal – Substantial issues of principle or law – Wider implications for the Commission’s jurisprudence WORKERS COMPENSATION – Protection of injured workers – Reinstatement of worker – Discretion of Commission if worker is fit to return to work
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW — WORK HEALTH AND SAFETY – Rights of WHS entry permit holders to inspect and make copies of documents pursuant to ss 118(1)(d) and 120(2) – Orders sought pursuant to s 142(3) of the Work Health and Safety Act 2011 (NSW) for the production of documents – Whether WHS entry permit holders reasonably suspected that a contravention of the Work Health and Safety Act 2011 (NSW) had occurred or was occurring and whether they entered the workplace for the purpose of inquiring into a suspected contravention - Effect of failure to comply with notice requirements stipulated in ss 120(3) and 120(4) and reg 29 of the Work Health and Safety Regulations 2017 (NSW) - Extent of particulars of contravention required in a Notice of Entry – Relevant PCBU not required to create bespoke documents in order to comply with ss 118(1)(d) or 120(2) – Whether documents sought under s 118(1) (d) were kept at, or were accessible from a computer that is kept at, the workplace – Where disclosure of documents could contravene the Privacy and Personal Information Protection Act 1998 (NSW) and/or the Health Records and Information Privacy Act 2002 (NSW) – Whether documents requested were directly relevant to a suspected contravention – Whether the Commission should exercise its discretion and not make orders requiring production of documents – limited orders for production made
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – whether order of Commissioner at first instance requiring person’s name to be removed from “not to be employed list” was beyond power – whether Commissioner erred in finding that allegation of misconduct could not be sustained – whether matters arising on appeal warranted the grant of leave
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW – Appeals – application for leave to appeal – Commissioner at first instance exercised discretion not to grant orders sought pursuant to ss 136 and 137 of Industrial Relations Act 1996 to prevent medical retirement of police officer pursuant to s 94B of the Police Act 1990 – no practical utility in appeal –– appeal raises significant questions with implications for jurisprudence of Commission – leave to appeal granted – relevance of collective character of dispute in exercising discretion to grant relief in industrial dispute proceedings – Collective character relevant to making dispute orders pursuant to s 137 – appeal dismissed
APPEAL – leave to appeal – principles to apply – whether appeal raises substantial issues of principle or law, or issues having any wider application than to the parties themselves – appeal against decision not to extend time – date of termination of employment - exercise of discretion - leave to appeal refused
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Applicant intervened on a volunteer basis in a stranger’s family law dispute while on unpaid leave and mentioned her employment with the Respondent during discussions with one of the parties to the dispute — Respondent found that the Applicant had engaged in behaviour of an intimidatory and bullying nature, had exposed her own child to risk, had engaged in secondary employment or unpaid work without approval and had failed to properly manage a conflict of interest and dismissed her for misconduct - Dismissal found to be harsh, unreasonable and unjust – Appropriate remedy for unfair dismissal in circumstances where Applicant sought re-employment or compensation, not reinstatement
EMPLOYMENT LAW - Unfair dismissal – alleged constructive dismissal – correct test – applicant’s dissatisfaction was real and effective initiator of termination of employment – Commission lacks jurisdiction - application dismissed
COSTS — Appeals — leave to appeal refused — costs application refused as a matter of discretion — where appellant held genuine belief that there was public interest in the appeal — where appellant is self-represented — where matter determined quickly
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Police disciplinary appeals — Process to be adopted in s 174 Police Act reviews — Disciplinary transfer — Whether order was unjust or harsh
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Organisations – Registration – cancellation of registration of associations of employing contractors on the basis that they have ceased to exist
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner McDonald
EMPLOYMENT AND INDUSTRIAL LAW — WORK HEALTH AND SAFETY – Rights and conduct of WHS entry permit holders – Jurisdiction of the Commission to grant relief pursuant to s 142(3) of the Work Health and Safety Act 2011 (NSW) in respect of a dispute about the exercise of a WHS entry permit holder of a right of entry – Whether there was a current dispute about the future exercise of the right of entry - Statutory interpretation – Whether WHS entry permit holders have a right, pursuant to s 118(1)(b) of the Work Health and Safety Act 2011 (NSW) to consult with the relevant workers in private or whether that provision permitted or required the relevant person conducting a business or undertaking to be privy to the consultation – Power of the Commission to make declaratory orders pursuant to s 142(3) of the Work Health and Safety Act 2011 (NSW) – Whether WHS entry permit holders reasonably suspected that a contravention of the Work Health and Safety Act 2011 (NSW) had occurred or was occurring - Extent of particulars of contravention required in a Notice of Entry – Identification of ‘relevant workers’ – Conduct of WHS entry permit holders while conducting inquiry into suspected contravention
EMPLOYMENT AND INDUSTRIAL LAW – Awards – application for new award for school psychologists – no controversy award should be made – consensus as to many of the terms of the proposed awards – resolution of matters in contention, including the process for determination of starting salary and the basis of salary progression
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Threatened dismissal of teacher for alleged misconduct — Application for leave to appeal and appeal from dismissal of notice of motion seeking order that proceedings be dismissed for want of jurisdiction — Non-disclosure orders made in proceedings below pursuant to s 164A of Industrial Relations Act 1996 (NSW) — Application by both Appellant and Respondent for non-disclosure orders to be made in respect of appeal proceedings, despite the parties foreshadowing that appeal proceedings and the proceeding below would be discontinued and there would be no hearing of the matter – Whether necessary in the interests of justice for non-disclosure orders to be made - Non-disclosure orders made
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner McDonald
EMPLOYMENT AND INDUSTRIAL LAW — Removal of police officer — Application for review pursuant to s 181E of Police Act 1990 (NSW) — Failure of applicant to comply with direction regarding COVID-19 vaccination — Application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Relief – paramedics with credentials as Intensive Care Paramedics engaged on a casual basis – dispute as to applicable rate of pay – award requires Intensive Care Paramedics to be “appointed to an approved Intensive Care Paramedic position” – whether performing or being ready and willing to perform the work of an Intensive Care Paramedic suffices – whether Commission ought to construe the award as having that meaning – whether to do so would be to grant declaratory relief, beyond the Commission’s jurisdiction
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – casual employee dismissed after 17 days employment – whether exempt from Ch 2 Pt 6 of the Industrial Relations Act 1996 due to having been engaged for “a short period”
Employment Law- hearing de novo – disciplinary action – what constitutes misconduct for the purposes of s 69 of the Government Employment Sector Act 2013 (NSW) – whether misconduct occurred and if so whether the disciplinary penalty imposed was correct in all the circumstances
POLICE – application for review of disciplinary order – whether order is beyond power or harsh, unreasonable, or unjust –whether alleged conduct occurred
EMPLOYMENT AND INDUSTRIAL LAW — Awards — Approval and creation – Conciliation - Recommendation made to resolve impasse - Proposal for trial of health screening program
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – procedure and powers – victimisation proceedings – self-represented applicant – notice of motion seeking order that the Commission order the Transport Secretary to appear in person to give evidence or, in the alternative, that the applicant be granted leave to issue a summons to him – leave also sought to issue summonses to attend and give evidence to two other witnesses – whether summonses would have a legitimate forensic purpose
EMPLOYMENT AND INDUSTRIAL LAW – Police -removal – Vaccination – Lawful Direction – Direction does not need to be reasonable – applicant has not discharged onus – misconduct – application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – paramedic attended anti-lockdown protest – livestreamed event and made commentary critical of lockdown, NSW Police, members of the public and COVID-19 vaccines – whether dismissal for that conduct was harsh, unreasonable or unjust
INDUSTRIAL LAW – unfair dismissal – threatened dismissal – order sought that respondent not dismiss the applicant – specific conduct relied upon in the show cause letter not proven – loss of trust and confidence in the employment relationship – order made restraining the respondent from terminating the applicant on the basis of particular conduct not proved – no restraint made on the basis of loss of trust and confidence and breakdown of relationship
APPEAL – application for leave to appeal – whether findings of fact open – no substantial issue of principle or law having wider implications – no demonstrable error disclosed – leave to appeal refused
Judgment of
Chief Commissioner Constant, Commissioner Webster and Commissioner Muir
WORK HEALTH AND SAFETY – application for external review – whether applicant an “eligible person” entitled to make application – whether applicant a worker whose interests are affected by the decision – whether applicant a person conducting a business or undertaking whose interests are affected by the decision – whether applicant a worker whose interests are affected by the decision – applicant not an eligible person
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Victimisation application – whether s 213(2) of the Industrial Relations Act 1996 constitutes a comprehensive code of the Commission’s powers to enforce Ch 5 Pt 1 of the Act – whether s 213(2)(b) would extend to permit an order requiring an employer to withdraw a warning issued to an employee – whether for the purposes of s 213(2)(e) a threat of victimisation must be certain, imminent and unconditional – whether Commissioner at first instance erred in finding that the application did not disclose a reasonable cause of action or one that could be successful
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal —Notice of Motion filed by Applicant seeking “managed stay” of proceeding pending the determination of a police investigation — Police investigation concerns alleged conduct by Applicant which, in part, formed the basis for her dismissal —Principles applicable to stay of civil proceedings pending resolution of criminal proceedings — Dictates of justice weighed in favour of the Respondent in circumstances where no charges laid and already considerable delay, however risk of prejudice to the Applicant sufficient to justify further short delay
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – firefighters temporarily located pending renovation of their base station – whether firefighters are entitled to allowance for reduction in amenity as a result of the relocation and, if so, in what quantum – whether as a consequence of the relocation firefighters have an entitlement under the award to a kilometre allowance or travelling compensation – whether firefighters should otherwise be entitled to travel-related compensation
EMPLOYMENT AND INDUSTRIAL LAW – Victimisation – whether applicant dismissed or otherwise subjected to detriment on the basis of a proscribed reason – principles to apply on the question of relief – whether orders sought by the applicant are within the power of the Commission to award
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal – Failure of applicant to comply with directions - Notice of motion to dismiss the proceedings for failure to prosecute the proceedings with due despatch — Defaults attributable to conduct of Applicant’s solicitor — Power to award costs against practitioner pursuant to s 99 of the Civil Procedure Act 2005 —Motion dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Police – Removal review – Onus on applicant to challenge grounds for removal – Removal harsh and unjust – Reinstatement impracticable
EMPLOYMENT AND INDUSTRIAL LAW - Appeal – Application to adduce fresh evidence – application of general principle –three conditions to be met before fresh evidence can be admitted - (1) evidence could not have been obtained with reasonable diligence for use at the trial; (2) high degree of probability that there would be a different verdict; (3) evidence must be credible – no special circumstances – evidence sought to be adduced not limited to fresh evidence - application dismissed
Judgment of
Chief Commissioner Constant pursuant to s 190A of the Industrial Relations Act 1996
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal against decision dismissing unfair dismissal application – whether Commissioner at first instance erred in upholding notice of motion asserting res judicata, cause of action estoppel, issue estoppel and abuse of process – whether Commissioner erred in finding that earlier proceedings had determined the identical issue requiring determination in proceedings before him
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Threatened dismissal on medical grounds – Order sought pursuant to s 89(7) of Industrial Relations Act delaying any dismissal until employee has had the opportunity to obtain a medical report regarding his fitness for duty — Employee had not worked for over three years due to work related injury — No evidence that employee may be assessed to be fit for duties — Evidence indicated that the employee continues to be unfit for duties — No denial of procedural fairness – Application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Removal of police officer — Application for review pursuant to s 181E of Police Act 1990 (NSW) — Failure of applicant to comply with direction regarding COVID-19 vaccination — Application dismissed
UNFAIR DISMISSAL - Extension of Time - application to extend time to lodge application - unrepresented litigant - extension opposed by respondent - extension of time refused – application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – health worker nurse failed to meet COVID-19 vaccination requirements of Public Health Orders – failure to comply with COVID-19 vaccination requirements of determination made pursuant to the Health Services Act 1997 – whether dismissal harsh, unreasonable or unjust
WORKERS COMPENSATION — Protection of injured workers — Reinstatement of worker — No reinstatement unless worker fit for that kind of employment – Discretion of Commission if worker is fit to return to work
EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Police – Victimisation application – allegation of victimisation for having claimed a benefit to which the employee was entitled under award – whether application filed out of time – whether, if so, the Commission should accept the application out of time
EMPLOYMENT LAW – unfair dismissal – termination for misconduct outside of work – nature and seriousness of misconduct – history of similar misconduct in the workplace – previous conduct occurred about six years prior – dismissal disproportionate response – applicant reinstated – applicant not to receive back pay
EMPLOYMENT AND INDUSTRIAL LAW — Removal of police officer — Application for review pursuant to s 181E of Police Act 1990 (NSW) — Failure of applicant to comply with direction regarding COVID-19 vaccination — Application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission —Unfair dismissal – Notice of Motion seeking orders dismissing the proceedings for want of due despatch - Proceedings dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Workers Compensation Act 1987 – application for reinstatement of injured worker – whether applicant fit for employment of the kind for which he had applied – evidence required to establish fitness –discretion of Commission if worker is fit to return to work – approach to orders for continuity of service under s 246 and for backpay under 243(4) – order for reinstatement made, but no order made under s 246 and backpay limited to period from which, in light of the findings of the Commission, the Respondent should have reinstated the Applicant
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – application to set aside summons to produce – whether privilege over a document warrants an order setting summons aside in part – whether documents sought have apparent relevance – whether disclosure prohibited by s 22 of the Public Interest Disclosures Act 1994 – whether powers of the Commission limited by s 22 – whether as a matter of discretion the Commission ought to set summons aside having regard to the terms of the Public Interest Disclosures Act
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – decision delivered finding the Commission lacked jurisdiction – subsequent application made for orders to replace the name of the applicant with a pseudonym – relevant principles – whether the applicant’s circumstances warrant a departure from the principle of open justice
EMPLOYMENT LAW – Unfair dismissal – Interlocutory proceedings – Order sought to stay application while applicant seeks Working With Children Check clearance – relevant principles to apply – interests of justice – public interest – prejudice to both parties – stay ordered for six months
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – summons to produce – need to establish legitimate forensic purpose – apparent relevance to the issues in dispute – setting aside a summons to produce – oppression – documents to be identified with precision
EMPLOYMENT LAW - Public Sector Disciplinary Appeal – serious allegations made against teacher of special needs children – principal complainant not credible - witness evidence of conduct not reliable – onus of proof subject to Briginshaw principles - Jones v Dunkel inference drawn – no misconduct proved - appeal allowed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Jurisdiction – dispute arising from investigation into alleged misconduct – whether conduct of employer in breach of applicable award – whether dispute enlivened dispute resolution provisions of award – whether dispute resolution provisions of themselves confer jurisdiction on the Commission
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Leave granted to extend time for filing and service of evidence and submissions — Application to vacate the hearing date due to unavailability of counsel refused
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Leave to appeal – whether appeal raises substantial issues of principle or law, with wider implications for the Commission’s jurisprudence – whether utility in granting leave to appeal
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Approval and creation — Public Service executive agency as employer — employees parties to the enterprise agreement– meaning of State award in s 35(1) of Industrial Relations Act 1996 — application of State awards — Principles for approval of enterprise agreements — application of no net detriment test — enterprise agreement approved
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Threatened dismissal – Motion to prevent dismissal pending final arbitration
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Reinstatement – Continuity of service – Scope of order – Overtime included in remuneration
EMPLOYMENT AND INDUSTRIAL LAW – Workers compensation legislation – application for reinstatement of injured worker – whether applicant fit for employment of the kind for which she had applied
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Unfair dismissal – medical retirement – whether dismissal harsh, unreasonable or unjust EMPLOYMENT AND INDUSTRIAL LAW – Termination – Victimisation – medical retirement – whether applicant dismissed or otherwise subjected to detriment on the basis of a proscribed reason
APPLICATION FOR RELIEF FROM VICTIMISATION – application made out of time – more than 6 years out of time – principles – matters to be considered in exercise of discretion – significant length of delay- no sufficient reason advanced for delay- application rejected
WORK HEALTH AND SAFETY – Improvement Notice issued by inspector following an alleged contravention of the Work Health and Safety Act – application for external review of decision made on internal review – whether there is a reasonable belief that a contravention has occurred in circumstances that make it likely that the contravention will continue or be repeated – external review upheld
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Application for witness to give evidence by AVL — Relevant principles to the exercise of discretion to permit evidence by AVL — Application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – motion seeking dismissal of proceedings – whether there was a want of due despatch on the part of the notifier – whether notification disclosed a reasonable cause of action – whether proceedings which are confined to seeking a recommendation from the Commission is frivolous
COSTS – Party/Party – Appeals – leave to appeal granted and appeal upheld – notice of motion upheld in the proceedings below dismissed – application for costs on the appeal – principles to apply – whether notice of motion was frivolous or vexatious or instituted without reasonable cause
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Police — Unfair dismissal — Jurisdiction — Calculation of time within which to make application for review under s 181E of the Police Act 1990 (NSW) — meaning of the words “starting from” in s 181G(1)(b)(i) of the Police Act 1990 (NSW)
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal from decision to decline to accept unfair dismissal application accepted out of time – whether Commissioner erred in finding the employer would suffer hardship or prejudice if application accepted – whether that finding supported by evidence – whether Commissioner erred in consideration of applicant’s prospects of success on the application
Judgment of
Commissioner Sloan, Commissioner Webster and Commissioner McDonald
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Failure to comply with direction regarding COVID-19 Vaccination — Employee on maternity leave and expressed concern about effects of vaccines on lactating mothers and their babies — ongoing questioning of employer as to safety of vaccine and basis for vaccination mandate — application dismissed
Employment Law- hearing de novo – disciplinary action – what constitutes misconduct for the purposes of s 69 of the Government Employment Sector Act 2013 (NSW) – whether misconduct occurred and if so whether the disciplinary penalty imposed was correct in all the circumstances
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal from decision dismissing an application for review under s 174 of the Police Act 1990 – whether leave to appeal ought to be granted – whether Commissioner erred in finding that Commission had no jurisdiction to determine the matter – whether Commissioner failed to consider and assess a relevant matter
Judgment of
Commissioner Sloan, Commissioner Webster and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Dispute orders – Power of Commission to make permanent order pursuant to s 137(1)(c) of the Industrial Relations Act 1996 enjoining employer from dismissing employees – Directions by Commissioner of Fire and Rescue NSW requiring COVID-19 vaccination –whether directions were lawful and reasonable – employer’s duty to determine reasonably practicable measures to reduce risk to health and safety of workers and others at common law and under the Work Health and Safety Act 2011 – obligation of employer to consult – no relief granted
EMPLOYMENT AND INDUSTRIAL LAW – notice of motion – Commission’s jurisdiction under Chapter 6 of the Industrial Relations Act 1996 – whether there is a contract of carriage – whether the Aramex Sydney is a principal contractor – correct approach to determining if there is a contract of carriage – franchise deed requires the contract franchisees to transport goods for Aramex Sydney – the dominant purpose of the contract is for the transportation of goods – goods are being transported for Aramex Sydney – Aramex Sydney has discretion which carrier is provided with work - Commission has jurisdiction in respect of dispute
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – employee had driver’s licence suspended – failure to declare suspension – dishonesty when confronted with that failure – dismissed for dishonesty – whether dismissal harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW – Industrial dispute – application for continuation of above-award conditions of employment - powers of the Commission on arbitration of industrial disputes – whether the Commission can make a direction under s 136(1)(a) setting terms and conditions of employment – Awards and enterprise agreements – variation - presumption that award provides fair and reasonable conditions of employment – whether presumption rebutted
Unfair Dismissal – Reinstatement of injured worker – issue estoppel in respect of Consent Orders in Workers Compensation Commission – whether employee made unsubstantiated allegations – exercise of discretion to order reinstatement of injured worker – whether employee’s injury must be known to be compensable at time of termination – employer took reasonable steps in management of employee’s injury – employee unfit to work for more than 12 months - dismissal not unfair - applications dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Removal of police officer — Application for review pursuant to s 181E of Police Act 1990 (NSW) — Failure of applicant to comply with direction regarding COVID-19 vaccination — Application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – teacher failed Teacher Improvement Program – dismissed after refusing direction to resign – whether dismissal harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW – Awards and agreements – application for variation to contract determination to give effect to terms agreed in resolution of dispute