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 – 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 – 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
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 – 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
EMPLOYMENT AND INDUSTRIAL LAW – Public sector disciplinary appeal – Dismissal – racist comments in the workplace – swearing at a subordinate – security breach – findings of misconduct – other allegations made out, but not misconduct – consideration of culture and behaviours at the workplace generally – consideration of mitigating factors – long and unblemished service history –conduct, while serious and offensive, did not warrant termination – alternative disciplinary action imposed
PUBLIC SECTOR DISCIPLINARY APPEAL – Fire Station Captain – allegations of misconduct – investigation – number of allegations sustained – disciplinary process – demotion from Captain to Retained Firefighter
EMPLOYMENT AND INDUSTRIAL LAW – Award interpretation – relevant principles to be applied – meaning and application of status quo provision in the award – what is an “issue” pursuant to the award
INDUSTRIAL LAW – conciliation – objection to exercise of arbitration powers by member who conciliated – Industrial Relations Act s 173 – whether s 173 applies – recusal for apprehended bias
UNFAIR DISMISSAL – termination for serious misconduct – garbage collector riding on back of truck – deliberate non-compliance with direction – nature and seriousness of conduct - over 40 years’ service – previous Code of Conduct breach relevant – applicant lacked insight into seriousness of his conduct – dismissal not harsh, unreasonable nor unjust
EMPLOYMENT AND INDUSTRIAL LAW – Contract determinations – Variation – application to vary Transport Industry – General Carriers Contract Determination 2017 to include term providing for payment of road tolls and charges – application not opposed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – decision by employer not to award discretionary salary increase to employee – whether employee’s performance was due to matters outside his control – whether Commission should direct employer to pass on increase with back-pay
VICTIMISATION – allegations of misconduct – threatened dismissal – unfair dismissal application – order made restraining dismissal – further 15 allegations of misconduct – victimisation application – notice of motion to dismiss victimisation application
PUBLIC SECTOR DISCIPLINARY APPEAL – termination of employment – appellant engaged as a gardener – employee terminated as though he was in probation – employee not given an opportunity to address concerns with respect to his conduct and behaviour – conduct and behaviour concerns of the respondent substantiated – employee acted unprofessionally and resisted performance planning process – termination not appropriate - appeal allowed
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – application for new award to compensate employees for loss of on call allowance and overtime following workplace changes – whether special case made out for making of award
Judgment of
Chief Commissioner Constant, Commissioner Murphy and Commissioner Sloan
Unfair Dismissal - Interlocutory proceedings – Orders sought to stay application during the currency of any criminal appeal proceedings – relevant principles to apply – interests of justice – public interest - prejudice to both parties - stay ordered until Court of Criminal Appeal matter concluded
EMPLOYMENT AND INDUSTRIAL LAW – Awards – applications for increases to salaries and salary-related allowances in 41 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 – whether historical increases are a relevant consideration – extent to which the state of the economy of NSW affects determination of award terms
Judgment of
Chief Commissioner Constant, Commissioner Murphy and Commissioner Sloan
UNFAIR DISMISSAL – shift swaps – investigation – whether applicant had verbal approval from Supervisor – whether applicant engaged in a serious form of misconduct for personal gain – application granted
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 – leave to appeal – settlement of unfair dismissal application negotiated during first instance proceedings – whether appellant should be held to the terms of settlement – no error in decision under 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 respondent had repudiated the Deed – whether the Deed constitutes a bar to the appellant pursuing his disciplinary appeal
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – dismissal for poor performance – whether dismissal harsh, unreasonable or unjust – failure by employer to follow award disciplinary procedures – termination of employment unreasonable – consideration of remedy
EMPLOYMENT LAW – industrial dispute – reasonable overtime – regular overtime on weekends – operational needs - personal circumstances – impact on other employees – sufficient notice – no risk to health and safety - overtime not unreasonable
UNFAIR DISMISSAL – casual classroom teacher – allegations he exposed offensive images on a computer to two female students – abusive and insulting communications with investigators – dismissal not harsh unjust or unreasonable
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – jurisdiction – whether applicant was “constructively dismissed” – outline of principles – termination found to be resignation – application out of time – whether discretion to accept application out of time would have been exercised in any event
APPEAL – respondent seeks order dismissing the appeal for want of due despatch – ability of appellant to prosecute the appeal – lack of medical/psychological evidence – order made – appeal dismissed
EMPLOYMENT LAW – stand down – COVID-19 – no useful work for employees – no act or omission of the applicant - seriousness of the orders sought - public interested favours discretion being exercised
Occupational Health and Safety Act 1983 - s 16(1) and s 50(1) - construction site connected to main road by narrow laneway - laneway used by heavy trucks and trucks with trailers to remove excavated material - movement of trucks to and from the site alleged to be a risk to safety of pedestrians and vehicular traffic - pedestrian with sight disability hit and killed on footpath outside building site - whether footpath and vicinity of laneway outside site was employer's place of work - police investigation holds pedestrian responsible - improvement notices require signs to warn traffic and pedestrians - s 53 defences - whether accident avoidable - defences not proved - defendants found guilty. Statutes - interpretation - meaning and extent of "place of work" in s 16 Occupational Health and Safety Act 1983 Words and Phrases - "place of work" - s 16 Occupational Health and Safety Act 1983
PUBLIC SECTOR DISCIPLINARY APPEAL – three allegations of misconduct against Duty Operations Manager – one allegation substantiated by employer – temporary reduction in classification for 12 months imposed – allegation not proven to requisite standard of proof on the evidence before the Commission – appeal allowed
EMPLOYMENT AND INDUSTRIAL LAW - Application for relief from victimisation -– presumption displaced in respect of dismissal – presumption not displaced in respect of other detriments – compensation awarded
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Jurisdiction – Unfair Dismissal Claim – whether applicant required to provide undertaking not to pursue in future an application for reinstatement under Workers Compensation legislation – whether refusal by applicant to provide undertaking deprives Commission of jurisdiction
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 confidentiality and public interest should preclude disclosure
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – application for interim order – whether proposed order of a kind the Commission is “authorised to make”
EMPLOYMENT AND INDUSTRIAL LAW - victimisation – extension of time granted – Respondent raised objection to out of time on first day of hearing - failure of the Respondent to call decision maker – reverse onus not discharged – compensation awarded
EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Dismissal – escape of detainee through open court door – whether Sheriff’s Officer committed misconduct by leaving the door open and in his subsequent reporting of the incident – whether misconduct warranted termination of employment
UNFAIR DISMISSAL – casual employee - regular and systematic basis for a sequence of periods of employment during a period of at least 6 months – reasonable expectation of continuing employment with the employer
EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Dispute orders – contract carriers – failure by principal contractor to pay in accordance with the Transport Industry – Excavated Materials, Contract Determination – orders for payment of money
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – unfair dismissal claim – settlement reached before arbitration – whether the settlement was a binding agreement – whether there were grounds to find the applicant should not be bound
AWARD INTERPRETATION – principles - medical officers on call – whether telephone discussions with on call officer constitute remote clinical appraisals – distinction between remote clinical appraisal and clinical advice or discussion – entitlement to payment for remote clinical appraisal depends upon meeting all of the criteria specified in the award
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – registered nurse dismissed for accessing patient records without clinical justification and dishonesty – whether dismissal harsh, unreasonable or unjust – consideration of remedy to be ordered
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – exclusions from jurisdiction – probationary employment – dismissal after end of probation period – whether exclusion applies if employee on sick leave when probation period ends – whether alleged intention of employee to delay dismissal until after probation period affects application of exclusion
UNFAIR DISMISSAL – jurisdictional objection – applicant engaged on a temporary contract for a specified period of two years – employment terminated by effluxion of time – no dismissal by employer – application dismissed
POLICE – removal of police officer – review of removal order – admissions by applicant – dispute as to specific alleged facts - whether decision to remove harsh, unreasonable or unjust
APPEAL – principles governing leave to appeal – decision at first instance varied award on application of employer for creation of new classification – no error disclosed in decision – leave to appeal refused
INDUSTRIAL DISPUTE – Notice of Motion to dismiss proceedings on the basis that they are frivolous – real questions of fact and law to be determined – Notice of Motion dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – application to dismiss proceedings – whether proceedings frivolous or vexatious – whether Civil Procedure Act 2005 (NSW) requires proceedings to be dismissed – whether notifier should be required to commence fresh proceedings – whether Commission should hear the “questions for determination” posed by the notifier
INDUSTRIAL DISPUTE –- Health Employees Conditions of Employment (State) Award 2019 - Mortuary Technicians working within Forensic Mortuaries operated by NSW Health Service, NSW Health Pathology Employment Division - agreement on inclusion of two new classifications, Forensic Mortuary Technician and Senior Forensic Mortuary Technician – variation to Clause 12, Special Working Conditions to exclude payment of handling nauseous linen allowance - requirements of Industrial Relations Act 1996 considered – Award varied
INDUSTRIAL DISPUTE –- Health Employees (State) Award 2019 - Mortuary Technicians working within Forensic Mortuaries operated by NSW Health Service, NSW Health Pathology Employment Division - agreement on inclusion of two new classifications, Forensic Mortuary Technician and Senior Forensic Mortuary Technician – requirements of Industrial Relations Act 1996 considered – Award varied
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – discretion of Commission to award increases – whether Commission required to award increases to salaries and salary-related allowances each year – s 146C Industrial Relations Act 1996 (NSW) – cl 6(1)(a) Industrial Relations (Public Sector Conditions of Employment) Regulation 2014
Judgment of
Chief Commissioner Constant, Commissioner Murphy and Commissioner Sloan
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Interpretation – whether Award limits field officers at certain grades to operating “minor plant” – meaning of “minor plant” – whether Award precludes employer requiring field officers at certain grades to obtain, hold and utilise a medium rigid vehicle licence
PUBLIC SECTOR DISCIPLINARY APPEAL – first and final warning – allegations of misconduct – failure to comply with a lawful and reasonable direction – making vexatious allegations against work colleagues – misconduct struck at the heart of the employment relationship – termination of employment warranted – appeal disallowed
APPLICATION FOR RELIEF FROM VICTIMISATION – motion by respondent to dismiss or set aside application – victimisation claim out of time – applicant not an ‘employee’ to whom ss. 210 and 213 apply – implied repeal/exclusive code – application by Police Association for leave to intervene granted
EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Disciplinary action – motion for summary dismissal of appeal against disciplinary action – whether appellant excluded from Ch 2 Pt 7 of Industrial Relations Act 1996 (NSW) by virtue of memoranda of understanding between unions and the Department in place as at 1 July 2010 – s 92(1)(b) – whether appeal discloses an appealable decision – ss 91(1), 97(1) and 98 – whether respondent estopped or otherwise prevented from bringing jurisdictional challenge
UNFAIR DISMISSAL - application made out of time – principles – matters to be considered in exercise of discretion – availability of remedy to employee limited by sub-s 21(6) Education (School Administrative and Support Staff) Act 1987 – hardship to employee and employer considered – application accepted
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
EMPLOYMENT AND INDUSTRIAL LAW – awards and agreements – application for approval of enterprise agreement – preserved sick leave payout entitlements – flexibility to use sick leave before retirement – inclusion of clause to enable leave to be taken in unusual circumstances, such as major floods, pandemics or operational close downs – previous enterprise agreement rescinded - enterprise agreement approved
APPEAL – principles governing leave to appeal – award interpretation – Sexual Assault Workers performing out of hours work – telephone counselling service – “intake duties” – “return to duty” – on call allowance – call out allowance
Judgment of
Chief Commissioner Constant, Commissioner Murphy and Commissioner Webster