EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety —Notification of dispute pursuant to s 142 of the Work Health and Safety Act 2011 (NSW) – leave granted pursuant to s 166(2) of the Industrial Relations Act 1996 (NSW) for Notifier to be represented in conciliation proceeding by Australian legal practitioners
PRACTICE AND PROCEDURE – strike out application – whether principles of res judicata, cause of action estoppel and issue estoppel apply – abuse of process – whether present proceedings an impermissible attempt to re-litigate issues that were already determined
hearing de novo – disciplinary action - misconduct –dismissal- Commission to determine whether misconduct occurred and whether the disciplinary penalty imposed was correct in all the circumstances or whether an alternative sanction should be substituted- alternate disciplinary penalty of official reprimand and no back pay.
EMPLOYMENT AND INDUSTRIAL LAW – Public sector disciplinary appeal – Dismissal – employees found guilty of common assault involving a fellow employee – misconduct admitted – whether misconduct warranted termination of employment – consideration of circumstances of assaults – whether employees denied procedural fairness – consideration of appropriate disciplinary outcomes
PUBLIC SECTOR DISCIPLINARY APPEAL – casual school teacher – sustained allegations of misconduct – name placed the list of people not to be employed by the Department of Education (the NTBE list) – whether placement of name on NTBE list constitutes dismissal – whether placement of name on NTBE list is an appealable decision
APPEALS — From exercise of discretion — Failure to exercise discretion APPEALS — Leave to appeal — Principles governing APPEALS — Leave to appeal — Principles governing — Public importance EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Jurisdiction EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Termination — Unfair dismissal
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – motion to set aside summons to produce – patient records - relevant principles
UNFAIR DISMISSAL – misconduct – whether resignation following an offer to resign pursuant to s 69(4)(b) of the Government Sector Employment Act 2013 is a dismissal for purposes of s 84 of the Industrial Relations Act 1996 - consideration of seriousness of misconduct against mitigating factors - misconduct not sufficient to warrant dismissal – dismissal harsh – reinstatement impracticable – compensation ordered
EMPLOYMENT AND INDUSTRIAL LAW – Awards – applications for new award – whether new award should be made as opposed to variation of existing award – whether new award should contain a two or three year nominal term – whether new award should contain a no extra claims provision and the terms of such a provision – whether clause relating to teacher performance and development framework should be retained or amended
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW — Public Sector — Police — Application for Review pursuant to s 181D of Police Act 1990 (NSW) — Practice and Procedure – Failure of applicant to comply with directions – Application for leave to rely upon material filed and served out of time – Application for leave to issue a summons for the Commissioner of Police to attend to give evidence – whether ‘extraordinary grounds’ exist to warrant leave being given to compel Commissioner of Police to give evidence
POLICE – two police officers engaged in physical fight – sustained injuries – investigation – findings made – orders made for disciplinary transfers – applications for review of orders – impact of orders on families of officers – orders not unreasonable nor unjust but harsh
PUBLIC SECTOR DISCIPLINARY APPEAL –findings of misconduct- – whether a decision in relation to an appealable decision – Industrial Relations Act 1996 s 97
EMPLOYMENT AND INDUSTRIAL LAW — Public Sector — Police — Application for Review pursuant to s 181D of Police Act 1990 (NSW) — Practice and Procedure – Failure of applicant to comply with directions – Notice of Motion – Dismissal of proceedings for failure to prosecute the proceedings with due despatch – Failure of applicant to provide reasons for non-compliance – ex parte communication with the Commission
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – employee directed to resign – variation to date of resignation agreed – whether employee dismissed or voluntarily resigned following negotiations – date of dismissal – whether application out of time
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Unfair dismissal – teacher did not attend meetings as directed – consideration of whether direction to attend meetings was lawful –teacher can be placed on a teacher improvement plan any time after a review finds underperformance – teacher breached direction to work collaboratively with supervisors and other colleagues and treat colleagues with respect - whether conduct was misconduct warranting termination of employment – dismissal not harsh, unreasonable, or unjust
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Jurisdiction EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Threatened dismissal
POLICE – Public Sector Disciplinary Appeals by two police prosecutors treated as applications pursuant s 174 of the Police Act – unvaccinated police officers – direction to not attend the workplace – direction to nominate a form of leave to be taken – suspension without pay – order for reviewable action – misconduct
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Variation – whether employees covered by the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 entitled to use accrued sick leave to top up workers compensation payments – whether Award should be varied to clarify, and if necessary confer, such an entitlement
Judgment of
Commissioner Murphy, Commissioner Sloan and Commissioner Webster
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 – Industrial Relations Commission – Appeals – whether finding that employer was the real and effective initiator of the termination of the employee’s employment was in error
Judgment of
Commissioner Sloan, Commissioner Muir and Commissioner O’Sullivan
EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission —Unfair dismissal – Practice and procedure – Failure of applicant to comply with directions and to appear - Show cause hearing – Notice of Motion - Dismissal of proceedings for failure to prosecute the proceedings with due despatch
EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Police – review of order made under s 173 of the Police Act 1990 – disciplinary transfer – no argument that order harsh – whether order beyond power, or unreasonable or unjust
Unfair dismissal – public health orders requiring vaccination against COVID-19 - Determination by Health Secretary – no consultation required under the WHS Act or otherwise – respondent did consult and provided the applicant with access to information to make an informed choice – applicant chose not to be vaccinated - application dismissed
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 – Industrial disputes - Awards – applications for new award – commencement date – exceptional circumstances – matter “giving rise to” award
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
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 – Industrial Relations Commission – Appeals – powers of the Commission on arbitration of industrial disputes – enterprise agreement provided for the Commission to “deal with” a question – whether such a referral “authorises” the Commission to make an order pursuant to s 136(1)(d) of the Industrial Relations Act 1996 – whether the Commission can make a direction under s 136(1)(a) setting terms and conditions of employment – extent to which powers under s 136(1) are alternatives
Judgment of
Commissioner Murphy, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Awards – applications for new awards and variation of award –whether new awards should contain a no extra claims provision – commencement date of new awards – whether exceptional circumstances exist which permit retrospective commencement
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner O’Sullivan
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – enrolled nurse failed to comply with Public Health Orders requiring vaccination – failure to comply with determination made pursuant to the Health Services Act 1997 – whether dismissal harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Dispute orders – application for interim relief – whether s 136(1)(a) of the Industrial Relations Act 1996 empowers the making of directions which have the effect of providing injunctive relief – whether s 136(1)(d) empowers the making of interim orders to maintain the status quo pending the determination of the dispute
EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Dismissal – Application for Public Sector Disciplinary Appeal – jurisdictional objections – whether appellant employed under a contract of employment for a specified period less than six months – whether application filed out of time
EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Health professionals — Nurses EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Dismissal
APPEAL – Leave to Appeal not granted - Industrial dispute – Category of employees in receipt of “on call allowance” for more than 30 years – Employees not entitled to “on call allowance” under the Award – Payment of “on call allowance” not authorised by the employer - Whether “on call allowance” a contractual entitlement on the basis of usage – Whether authority of the employer to pay the allowance is relevant – Whether the employer’s intention to enter into the arrangement is relevant – Whether over award payment is inconsistent with express terms of contract providing for terms and conditions to be in accordance with the Award – Whether the contract of employment subject to the Health Services Act 1997 where employment pre-dates the commencement of the legislation - Whether an implied term of a contract of employment is “fixed” by a law pursuant to s116A(1) – Arguments raised late in proceedings and not fully addressed – Issues affecting a small number of employees and not sufficiently important to warrant leave - Practical resolution of dispute through making of an award more appropriate
Judgment of
Chief Commissioner Constant, Commissioner Murphy and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Awards – applications for new awards – whether new awards should contain a two year nominal term – whether new awards should contain a no extra claims provision – commencement date of new awards – whether exceptional circumstances exist which permit retrospective commencement
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – application that proceedings be dismissed – failure of applicant to comply with directions – want of due despatch
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 – relevance of medical condition – whether employer had complied with procedures regarding risk assessment process – whether dismissal otherwise harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Commission conducts a merits review in an external review pursuant to s 229 of the Work Health and Safety Act 2011 – Commission must take into account mandatory matters in determining work groups when undertaking an external review – work groups not confined to those who have made a request pursuant to s 50 or who are represented by someone who did – views of workers who may become a part of work groups must be considered
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal from decision not to make dispute orders – whether leave to appeal ought to be granted
Judgment of
Chief Commissioner Constant, Commissioner Sloan, and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Public sector disciplinary appeal – dismissal – homophobic comment in the workplace – inappropriate communications about staff members with direct manager over extended period of time - communications had a connection with workplace - workplace culture and behaviours in the workplace generally – request to manager for answers to questions in job application – applicant used his position to facilitate free entry for manager into concert - consideration of mitigating factors – long and unblemished service history – conduct condoned by manager - insight into contribution to negative workplace culture – appeal dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Interpretation EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Relief EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Arbitration
WORK HEALTH AND SAFETY – application for external review – provisional improvement notice – notice of motion – frivolous or vexatious – no reasonable cause of action – abuse of process - costs
UNFAIR DISMISSALS – threshold issues – Public Health Orders – Health Secretary Determination – unvaccinated workers prohibited from working in public health– requirement to consult-impracticability of reinstatement or re-employment orders
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Dispute orders – consideration of factors going to exercise of discretion as to whether to make dispute orders
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – notice of motion to re-call witness for further cross-examination after evidentiary cases closed – notice of motion opposed – interests of justice - notice of motion dismissed
POLICE – application for review of disciplinary order – allegations of sexual harassment admitted – serious misconduct – mitigating circumstances – reduction in rank and disciplinary transfer – application allowed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – powers of Commission to order disciplinary transfer under Pt 9 Div 1A of the Police Act 1990 – whether evidence of vacancy required – whether decision at first instance had the effect of creating a position – whether disciplinary outcome imposed by decision at first instance proportionate to misconduct – whether Commissioner at first instance considered “public interest” – whether Commissioner erred in failing to make non-publication order under s 164A of the Industrial Relations Act 1996
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – awards and agreements - enterprise agreement approved – net detriment test – Principles for Approval of Enterprise Agreements
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – application for award to mandate that an ambulance dispatched to an incident have a crew of two paramedics – whether the application relates to an industrial matter – whether the proposed award is in a form that the Commission can make – consideration of risks to paramedics and patients in the event of single paramedic responses – whether any such risks are outweighed by the potential clinical care benefits in providing a more timely paramedic response – whether the alleged risks warrant the Commission interfering with the Health Secretary’s statutory functions and managerial prerogative – consideration of alternative basis on which to resolve the dispute
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Victimisation – notice of motion seeking the matter be dismissed – whether the respondent is the applicant’s employer – whether the respondent must be the applicant’s employer when relief is ordered - consideration of the Commission’s powers to make orders to enforce victimisation provisions – the respondent was and remains the applicant’s employer - the Commission does not have power to make the order sought – no reasonable cause of action
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – motion to set aside summons to produce – relevant principles – personal information
UNFAIR DISMISSAL – VICTIMISATION – applications made out of time – sufficient reason established to accept applications out of time – discretion exercised in favour of applicant – orders made
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – whether employer able to rely on repudiation of employment in the context of statutory employment – whether conduct amounted to repudiation in any event – whether employer affirmed contract – whether employer otherwise had grounds to dismiss – reliance on misconduct discovered post-employment – whether dismissal unreasonable or harsh – principles to apply on question of remedy 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
UNFAIR DISMISSALS – threshold issues – Public Health Orders – Employer Determinations – unvaccinated workers prohibited from working in public health and public education sectors – impracticability of reinstatement or re-employment orders
INDUSTRIAL DISPUTE – Ministerial Drivers – Logistics and Business Support Officers – restructure of Transport Service Branch of Department of Premier and Cabinet – Notice of Motion seeking to restrain restructure
APPEAL – public sector disciplinary appeal – demotion from Deputy Manager, ComSafe Training Services, Operational Support Level 3 to Senior Firefighter – settlement reached – Deed of Release – demotion altered to Assistant Equipment Management Officer role, Operational Support Level 2 – appellant initially placed in Technical Officer role, Operational Support Level 2 – whether the Deed constitutes a bar to the appellant pursuing his disciplinary appeal - whether respondent had repudiated the Deed – appellant did not accept the repudiation through his conduct
UNFAIR DISMISSAL – application filed out of time – similar application filed under Commonwealth law and withdrawn – sufficient reason to accept application filed out of time.
INDUSTRIAL LAW – PROCEDURAL RULING – notice of motion seeking to exercise right pursuant to subs 173(1) of the Industrial Relations Act 1996 – unfair dismissal application - determining a stay application is not arbitration in respect of the matter - making of directions for the filing and serving of evidence to be relied upon by parties in the arbitration proceedings is not an exercise of arbitration powers – notice of motion granted – matter to be referred to a different Commission member for arbitration
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – employee resigned – employee purported to withdraw resignation – employer accepted resignation – whether employee had the right to unilaterally withdraw resignation – whether resignation effective – whether employee repudiated contract of employment – whether repudiation of contract of employment was accepted
EMPLOYMENT AND INDUSTRIAL LAW – Public sector disciplinary appeal – Dismissal – employee in extra-marital relationship with subordinate employee – findings of guilt of common assault by the employee against co-worker – misconduct admitted – question of appropriate disciplinary action – whether assault to be mitigated by the context of the alleged sexual relationship between employee and co-worker – whether employee denied procedural fairness – relevance that misconduct occurred outside work and did not affect employee’s work performance
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Disputes – Relief – proposed introduction of new arrangements for dealing with staff shortages at retained fire stations – whether “industrial dispute” – consideration of principles regarding Commission’s intervention, including in light of powers conferred on Commissioner of FRNSW by the Fire and Rescue NSW Act 1989 – whether new arrangements would adversely affect firefighter safety – whether new arrangements would be in breach of applicable awards including no extra claims commitment
EMPLOYMENT AND INDUSTRIAL LAW – unfair dismissal application – injured worker – valid reason for dismissal – applicant unable to perform inherent requirements of his position – reasonable attempts to find alternative employment – procedural fairness afforded – application dismissed
UNFAIR DISMISSAL – Child Protection Caseworker – attendance at ‘World Freedom Rally’ – breach of public health order – publication on social media of posts ‘highly derogatory’ of government and government officials – personal circumstances of applicant – dismissal not unjust or unreasonable but harsh – compensation ordered
EMPLOYMENT LAW – Public Sector Disciplinary Appeal – Referral of question of law to Full Bench – operation of subs 47(2) of the Child Protection (Working with Children) Act 2012 – implied repeal of rights pursuant to Pt 7 of the Industrial Relations Act 1996 – prohibition is to “make use of or utilise” worker in child-related work – order quashing a decision to dismiss is not an order for reinstatement or re-employment contrary to a prohibition on employment
POLICE – removal of police officer – review of removal order – allegations of sexual harassment of fellow police officer – removal not harsh, unreasonable or unjust – application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – application for new award to maintain terms previously enjoyed by employees under enterprise agreements made pursuant to the Fair Work Act 2009 – whether sufficient certainty in the terms of the award sought – whether employer should be held to the bargain reflected in the enterprise agreements, when not a party to those agreements – whether employer bound to act in keeping with past practice of government agencies to maintain terms of employees in the event of a transfer of employment – whether there is a sufficient nexus between the past practice and the circumstances of the present case
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – unfair dismissal – for non-publication orders – relevant principles – whether the applicant’s circumstances warrant a departure from the principle of open justice
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – application for a new award – award would have the effect of displacing the exclusion of the County of Yancowinna from 29 other awards of the Commission – legal principles to apply – application of Wage Fixing Principles – question of onus – whether onus discharged by identification of another award of the Commission which would, but for its coverage terms, apply to the employees – whether the County of Yancowinna exclusion in an award is a “condition of employment” – whether the County of Yancowinna exclusion in those awards ought to be overridden – determination of terms and conditions of new award – terms to be derived in part from other awards
EMPLOYMENT AND INDUSTRIAL LAW – Contracts of Carriage – applications for variation to contract determinations – application for rescission of contract determination – consent position – principles to apply
UNFAIR DISMISSAL – medical retirement pursuant to s 94B of the Police Act – applicant capable of performing part-time work for five hours per day three days per week – reasonable adjustments – whether it is practicable for the Commissioner of Police to employ the applicant on a part-time basis ongoing
EMPLOYMENT AND INDUSTRIAL LAW – unfair dismissal application – injured worker – valid reason for dismissal – applicant unable to perform inherent requirements of her position – no evidence of suitable and available work - reasonable attempts to find alternative employment – procedural fairness afforded – application dismissed
EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Interpretation EMPLOYMENT AND INDUSTRIAL LAW — Contract — Terms EMPLOYMENT AND INDUSTRIAL LAW — Discrimination — Grounds — Carer’s responsibility discrimination EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Health professionals — Nurses
EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – external review – application by union official to be joined as a party to the proceedings – whether applicant on the motion had demonstrated a real and sufficient interest in the proceedings
POLICE – removal of police officer – s.181D Police Act 1990 – review under s.181E of the Police Act - statutory scheme – onus on applicant to demonstrate decision ‘harsh, unreasonable or unjust’ – evidentiary burden – applicant found to have engaged in misconduct by entering dock and making physical contact with a person in custody – credibility of the applicant - applicant did not act in self-defence – if the applicant acted in self-defence, his response was unreasonable - applicant gave evidence that was untruthful or at the very least less than fully frank in respect of the incident - applicant’s personal circumstances considered – public interest considered – application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Jurisdiction – owner-builder issued with prohibition notice – whether site a “workplace” – whether owner-builder engaging in an undertaking at the time prohibition notice issued EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeal – documents produced under notice to produce were redacted – claim of public interest immunity – whether immunity attaches to complaints made to SafeWork NSW – whether such immunity outweighs the interests in having the documents in unredacted form available to the applicant
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – award interpretation – whether Rural Fire Service employees when responding to a major incident are entitled to be provided with three star or three diamond hotel accommodation – whether such employees, when provided with accommodation at an RFS “base camp” are “required to camp” – whether camping and other allowances payable to employee accommodated at a RFS base camp
Judgment of
Chief Commissioner Constant, Commissioner Murphy and Commissioner Sloan
EMPLOYMENT AND INDUSTRIAL LAW – public sector employee dismissed as a result of disciplinary action – employee appealed to Industrial Relations Commission – whether employer is able to lay a new charge – no new charge laid – whether fresh evidence or material is able to be relied upon – whether the evidence should be excluded due to potential prejudicial effect – whether evidence is probative – whether evidence should be excluded due to the credibility and or reliability of the evidence
UNFAIR DISMISSAL – Client Services Officer – sustained allegations of falsifying Client Service Visit checklists – no procedural or substantive unfairness in dismissal
EMPLOYMENT AND INDUSTRIAL LAW – Industrial dispute – award interpretation - whether RFS employees entitled to Camping and Camping Equipment Allowances under the Conditions Award – whether RFS employees entitled to mid-range accommodation when involved in a major incident – RFS employees not “camping” when accommodated in base camps – “suitable accommodation” may include base camp accommodation
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – making of Nurses’ (Local Government) Residential Aged Care Consolidated (State) Award 2021 – rescission of existing awards
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 – whether summons a fishing expedition
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
PUBLIC SECTOR DISCIPLINARY APPEAL – decision to defer an incremental increase - whether an appealable decision – proper characterisation of deferment – whether such a decision is a disciplinary decision – out of time – no discretion to extend time -whether notice is required to be in writing – whether an email is notification in writing – whether consent to receive an email as written notification can be implied by conduct
APPEAL - motion to introduce fresh evidence – evidence available or available with reasonable diligence before decision - limited relevance of fresh evidence to Leave to Appeal and Appeal – no miscarriage of justice if evidence not adduced - motion dismissed
Judgment of
Commissioner Webster on delegation from the Full Bench
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Relief – application for interim orders – whether orders required to maintain “status quo” pursuant to award – whether other grounds made out for granting of interlocutory relief
Industrial dispute – consent orders – exemption from award entitlements – not contrary to the public interest – best interests of employer and employees – serious consequences if order not made
EMPLOYMENT AND INDUSTRIAL LAW – Contract determination – Variation – application to vary Hy-Tec Industries Pty Ltd – Maxi Concrete Contract Determination by replacing the existing Clauses 2.1 and 2.2 with new and revised provisions as contained in Schedule B of the Application filed in IRC 21/180627– application not opposed – Determination varied
EMPLOYMENT AND INDUSTRIAL LAW – Industrial dispute - request for extended leave - whether request for leave is leave under the award – leave to be granted if operational requirements permit -operational reasons established why leave can not be granted - recommendation to reconsider the request at the conclusion of expression of interest
UNFAIR DISMISSAL – Notice of Motion to dismiss application for want of jurisdiction - casual employee -whether terminated by respondent - whether engaged on a casual basis for a short period – s 83(2) and Industrial Relations (General) Regulation 2015 considered - application dismissed
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 exercise of discretion disclosed error – no substantial issue of principle or law having wider implications or widespread practical application – no demonstrable error disclosed – leave to appeal refused
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – Security officer intervened in patient restraint – absence of direction to intervene – consideration of gravity of physical conduct – verbal altercation with co-worker following the restraint – whether conduct was misconduct warranting termination of employment – impact of termination at one Local Health District on employment at another – whether dismissal harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW – Awards – applications for new awards to rescind and replace existing awards – whether increases to rates of pay required – consideration of the state of the economy of NSW – application of Wage Fixing Principles – whether additional changes ought to be made to current award terms – whether exceptional circumstances exists to allow for effective date of awards to be back-dated
Judgment of
Chief Commissioner Constant, Commissioner Murphy and Commissioner Sloan
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – dispute orders – employee with employment-related injury unable to perform requirements of role – recommendation sought to modify the role to permit continuation of employment – whether employee unable to perform inherent requirements of role – whether role should be modified to remove such requirements – consideration of matters relevant to the Commission’s discretion
EMPLOYMENT AND INDUSTRIAL LAW – Termination of employment – unfair dismissal application – jurisdictional objection – application filed out of time – whether sufficient reason to exercise discretion to admit application out of time – exercise of discretion denied - application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Dispute orders – application for interim orders – whether jurisdiction exists to make interim orders – whether balance of convenience in favour of orders
POLICE – applications by two applicants for review of disciplinary transfer orders – disciplinary action taken against both officers following a physical altercation between them – prospect of inconsistent decisions if applications heard separately – applications to be heard jointly
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal from decision dismissing an application for review of a removal order under the Police Act 1990 – whether leave to appeal ought to be granted
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Public sector – disciplinary action – inappropriate behaviour by solicitor in conference with complainant in criminal proceedings – reduction in remuneration imposed – whether misconduct occurred – consideration of seriousness of misconduct – consideration of appropriate disciplinary action
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Relief – historical roster practice of “line ownership” – whether practice a contractual entitlement – whether employer estopped from ceasing practice – whether Commission should otherwise intervene on the basis that the removal of line ownership would be unreasonable
POLICE – appeal from dismissal of application for review – reviewable action – misconduct – reduction in increment and removal to different unit – principles to apply on application for leave to appeal and appeal – whether appellant has failed to mount an arguable case pointing to appellable error
Judgment of
Commissioner Stanton, Commissioner Murphy and Commissioner Sloan
INDUSTRIAL LAW – New South Wales – unfair dismissal – no threatened dismissal – interim orders – power to make interim order restraining dismissal – no threat of dismissal – prima facie case on the merits established – balance of convenience in favour of the respondent - notice of motion dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Application to adduce fresh evidence – principles to apply – whether the evidences raises probability of a different verdict
Judgment of
Commissioner Sloan on delegation from the Full Bench
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Section 19 Review – Interpretation – scope and application of clause allowing for infectious cleaning allowance – consideration of changes required under a s 19 review – whether additional variations ought to be made under s 17 – amended version of clause proposed for consideration
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – application to adduce further evidence after hearing – application dismissed
Industrial dispute – Variation to award as relief – Application to vary definition of registrar – Application to dismiss matter on the basis of the relief sought –Whether subject matter of these proceedings is the same as the 2020 wages case – Whether regulations require consideration of whether 2.5% increase is sought on an individual employee basis – Application to dismiss the matter is dismissed – Merits of the matter to be determined
PUBLIC SECTOR DISCIPLINARY APPEAL – School Learning Support Officer dismissed – non-disclosure order – sustained allegations of misconduct involving a nine year old special needs student – inappropriate physical contact
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – fighting in the workplace – whether behaviour impacted by concussion or pre-existing psychological condition – impact of alleged concussion on memory – whether all allegations against employee made out – whether dismissal harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – employee of Department of Education altered personnel files of wife and sister to add skills and expertise – whether employee had approval to make changes – failure to identify and disclose conflict of interest – conduct amounted to misconduct warranting dismissal – dismissal not harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW – Awards – Interpretation of “no extra claims” provision – program anticipating firefighters would provide medical first response to out-of-hospital cardiac arrests if fire crew able to respond more quickly than NSW Ambulance – whether a requirement that firefighters participate in the program an “extra claim”
EMPLOYMENT AND INDUSTRIAL LAW – Awards – applications for increases to salaries and salary-related allowances in two awards – discretion of Commission to award increases – principles to apply in setting award conditions – whether awards provide fair and reasonable conditions of employment – whether increases necessary to ensure awards continue to provide fair and reasonable conditions of employment – application of Wage Fixing Principles – consideration of the state of the economy of NSW
Judgment of
Chief Commissioner Constant, Commissioner Murphy and Commissioner Sloan
EMPLOYMENT AND INDUSTRIAL LAW – dispute notification – award interpretation – excess travel – accustomed place of work – regularly required to commence duty by the employer – alternative place of work – in the employer’s time – ordinary rate of pay
CONTRACT OF CARRAIGE – dispute over application of contract determination in circumstances where contract carriers start work before 6:00am – surcharge for delivery outside normal hours – call back fee
EMPLOYMENT AND INDUSTRIAL LAW – Contracts of carriage – application for interim contract determination to permit recovery from principal contractor for damage caused to truck – whether principal contractor responsible for damage – whether interim determination in the terms sought can or ought to be made
EMPLOYMENT AND INDUSTRIAL LAW – dispute notification – award interpretation – special leave – attendance at union meetings – travel to and from meetings
EMPLOYMENT AND INDUSTRIAL LAW – Application to resolve dispute under Entertainment Industry Act – whether performer entitled to payment for shows – whether entertainment industry hirer had a right to claim set-off for losses allegedly suffered
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
COSTS – notice of motion – applicant sought an award of costs after a successful unfair dismissal application – did respondent unreasonably fail to agree to a settlement of the claim – exchange of offers of settlement – exercise of discretion to decline to award costs
EMPLOYMENT AND INDUSTRIAL LAW – industrial dispute – interpretation of a provision in award – payment of an allowance when shift ends at 6pm and overtime is worked for one and a half hours – recommendation made that parties confer on agreed variation to award
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – whether industrial agreement between the parties is to be taken as regulating temporary employment – whether, if not, a separate industrial instrument applies to the parties
UNFAIR DISMISSAL – School Learning Support Officer – allegations of misconduct – unnecessary physical contact with a year 1 student – misconduct admitted – dismissal not harsh unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Police – review of order made under s 173 of the Police Act 1990 – deferral of increment and disciplinary transfer – whether order constitutes “double punishment” – whether order harsh, unreasonable or unjust – consideration of alternative locations for transfer
UNFAIR DISMISSAL – termination of employment on medical grounds – substantive position abolished – redeployment to suitable alternative employment not possible due to applicant’s impairment – whether entitled to voluntary redundancy - whether decision harsh, unreasonable or unjust – unfair dismissal proceedings dismissed
POLICE – removal of police officer – review of removal order – whether decision harsh, unreasonable or unjust – serious misconduct – profane language in group chat – reputational risk to the NSW Police Force – applicant’s interests – public interest – application dismissed