POLICE – removal of police officer – review of removal order – whether conduct undertaken while off duty was undertaken in course of duties - whether decision harsh, unreasonable or unjust
POLICE – application for review of removal order – allegation that applicant pushed a person’s head into the back of a police vehicle – allegation that applicant drove at speed and then applied the brakes suddenly causing injury to a person being transported – allegation that applicant recorded false information and gave untruthful evidence in the Local Court – allegations substantiated – 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
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
EMPLOYMENT AND INDUSTRIAL – Industrial disputes – threatened medical retirement of police officers – application for interim dispute orders preventing dismissal – whether serious issue to be tried – whether balance of convenience favours making of orders
APPEAL – review of decision to remove police officer – alleged voluntary consumption of prohibited drugs – onus in review proceedings – legal and evidentiary onus – adequacy of respondent’s evidence to shift evidentiary burden – adequacy of appellant’s case in response
Work Health and Safety – application for external review – proposed refurbishment works in Intensive Psychiatric Care Unit – removal of 1.31 metre high counter and replacement with fixed “touch down” desk – improve therapeutic environment – physical barrier between workers and patients – mental health consumers with high acuity and significant behavioural disturbance and potential to exhibit violent behaviours – workers exposed to an immediate risk to their health and safety from occupational violence – Prohibition Notice issued – internal review unsuccessful – application for external review dismissed
PUBLIC SECTOR DISCIPLINARY APPEALS – misconduct – allegation of assault by correctional officers on inmate – allegation of failure to use video camera to record the force used against inmate – allegation of failure to arrange for medical treatment to be offered to inmate – allegation of failure to report misconduct – appellants denied misconduct allegations – misconduct allegations sustained – appellants reduced in classification for a period of 12 months – appeals against disciplinary decisions – respondent’s burden of proof not discharged – appeals upheld
APPEAL - application for leave to appeal – whether exercise of discretion disclosed error – meaning of “impracticable” – grounds in support of leave to appeal not made out – leave to appeal refused
UNFAIR DISMISSAL – senior firefighter – demonstration of pain stimuli on recruits during training session without warning or consent – conduct proven – whether applicant intended to cause injury – whether applicant recklessly caused injury – whether conduct amounted to misconduct warranting immediate termination of employment – no intention to cause harm and conduct not for improper purpose – dismissal not warranted by misconduct established –age, length of service and good record considered – dismissal unjust and harsh – reinstatement not impracticable – reinstatement ordered
APPLICATION FOR AN AWARD – Patient Transport Officers – crib away allowance – loss of amenity associated with cribbing at base – employee-related costs – employee-related cost savings – Productivity and Efficiency considerations – allowance awarded – wage rates increased by consent
Judgment of
Chief Commissioner Kite SC, Commissioner Stanton and Commissioner Murphy
EMPLOYMENT AND INDUSTRIAL – application for threatened unfair dismissal – motion for interim order preventing dismissal prior to determination of proceedings – whether sufficient likelihood of success – whether balance of convenience favours making of order
EMPLOYMENT AND INDUSTRIAL LAW – award interpretation – relevant principles to be applied – introduction of “activity based planning” model to design of workspaces – potential to impact on office accommodation made available to staff specialists – whether award entitles staff specialists to enclosed offices, either on an exclusive or shared basis – whether proposed policy is otherwise compliant with the award
POLICE – reduction in rank – principles to apply on review – consideration of allegations of misconduct – not all allegations sustained – consideration of applicant’s attitude and demeanour – lack of contrition and remorse – order harsh – order revoked and alternative order made
PRACTICE AND PROCEDURE – principles of procedural fairness in application under s 173 of Police Act 1990 (NSW) – application of rule in Browne v Dunn
Practice and procedure – Notice of Motion – orders sought to dismiss proceedings – Rule 12.7 of the Uniform Civil Procedure Rules 2005 – failure to prosecute the proceedings with due despatch – Civil Procedure Act 2005 - repeated failure of applicant to comply with Directions timetable and the obligations imposed on parties under Practice Note 17A – hearing dates vacated-prejudice considered - proceedings dismissed pursuant to Rule 12.7 and s 61(3) of the Civil Procedure Act 2005
EMPLOYMENT AND INDUSTRIAL LAW – award interpretation – sheriff’s officers – courts organised on hub and satellite model – whether an officer’s “headquarters” is the hub court or includes satellites as well – whether it is reasonable for sheriff’s officers to be directed to travel with and store their appointments
VICTIMISATION – applicant claimed benefit of an award – pattern of behaviour dating back to 2005 – applicant made complaints of bullying – agreements entered into by applicant were “mere salvage operations” – performance issues – external investigation – meaning of “victimisation” – proposed adoption of recommendations not victimisation
UNFAIR DISMISSAL - application made out of time – principles – matters to be considered in exercise of discretion – significant delay – ignorance of the jurisdiction - no sufficient reason advanced for significant portion of delay – hardship to employee and employer considered – application refused
PUBLIC SECTOR DISCIPLINARY APPEAL – disciplinary decision to assign employee to a different role - whether an appealable decision – deferment of increment pending outcome of disciplinary process – proper characterisation of deferment – whether an appealable decision – whether such a decision needs to be a disciplinary decision in order to be appealable - cancellation of security clearance – whether a decision in relation to an appealable decision – Industrial Relations Act 1996 s 97 - meaning of “in relation to” – meaning of “reduce” – meaning of “position” – meaning of “give the employee notice in writing”
APPEAL – decision at first instance dismissed application on jurisdictional grounds – whether Government Sector Employment Act 2013 impliedly repealed Ch 5 Pt 1 of the Industrial Relations Act 1996 in respect of Public Service senior executive employees – whether privative provision in Government Sector Employment Act 2013 precluded claims under Ch 5 Pt 1 of the Industrial Relations Act 1996 by Public Service senior executive employees – principles to apply on implied repeal and on construction of privative provisions – consideration of meaning and effect of Commissioner of Police v Eaton (2013) 252 CLR 1
Judgment of
Commissioner Stanton, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – award interpretation – employees on call – duties for which on call allowance is paid – whether duties performed by employees whilst on call amount to a “recall to duty” – whether employees entitled to payment for time spent travelling between home and workplace when recalled to duty
AWARD INTERPRETATION – meaning of “status quo” – meaning of “work procedures and practices” -Status Quo Provision does not require freeze in investigation – Status Quo Provision requires work procedure and practices continue while dispute procedures ongoing
Interlocutory decision – award coverage – interpretation of award coverage clause - historical context of award coverage – meaning of other industrial instrument or arrangement – whether arrangement must be a collective arrangement – intention to maintain status quo with respect to coverage – change in coverage clause not intended to extend coverage to new groups of employees
COSTS – whether categories of summons issued were frivolous or vexatious – whether summons instituted without reasonable cause – whether matter in which Commission would exercise discretion to award costs
UNFAIR DISMISSAL – employee was registered nurse in mental health facility – failure to comply with employer’s policies and procedures – attempt to mislead employer – failure to accept responsibility – dismissal not harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW – interlocutory proceedings –- industrial dispute – alleged misconduct - adverse findings made against employee –– remedial action proposed - notice to produce investigation report and related documents -– compliance with policy directive sought NOTICE OF MOTION to set notice to produce aside – capacity of Commission to interpret policy directive – relationship to substantive dispute proceedings – s 136(1)(d) orders sought – JURISDICTION – principles considered – whether notice to produce represents an abuse of process - legitimate forensic purpose considered – motion upheld – notice to produce set aside – orders made - costs of notice of motion sought - costs reserved
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
APPEAL – leave to appeal – police officer retired pursuant to s 72A of the Police Act 1990 – Police Act is not exhaustive code for dismissal of police officers - s 218 of the Police Act leaves intact the power of the IR Commission to deal with industrial matters concerning police officers unless especially restricted by a provision of the Police Act - s 84 of the Industrial Relations Act available to medically retired officers – appeal upheld
POLICE – removal of officer – unreasonable or harsh – dishonesty – lack of candour – misuse of position – misuse of resources – neglect of duty - conflict of interest – officer placing personal interests before interests of the police force
WORKPLACE HEALTH AND SAFETY – application for external review – determination of work groups – whether work groups should be subject to geographical restriction – mobility of workforce – uniqueness of risks across network – balance of considerations
WORK HEALTH AND SAFETY – application for external review – application dismissed – respondent applied for order for costs – principles to apply – whether proceedings instituted without reasonable cause
Public sector disciplinary appeal - Bus Operator - dismissal – safety of customers - recent final warnings - effect of final warning on consideration of appeal - facts of misconduct made out - appeal dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Award interpretation – relevant principles to be applied – meaning and application of status quo provision in the award – whether discretion should be exercised to refuse relief
INDUSTRIAL DISPUTE - clause 28.7 of the Award -application for interpretation pursuant to s.175 of Industrial Relations Act 1996 - relevant principles of interpretation of awards and industrial instruments – directions sought - recommendations made for settlement of industrial dispute.
Work Health and Safety – application for external review – Provisional Improvement Notice issued by Health and Safety Representative – request to SafeWork to appoint an inspector to review the notice not made within seven days after the notice was issued – decision of inspector to cancel notice – internal review upheld the decision of the inspector – whether the decision by the inspector to cancel the notice was invalid
POLICE - removal of Police Officer – s 181D Police Act 1990 - application for review of order of Commissioner of Police under s 181E – hearing de novo - misconduct allegations – Commissioner’s Reasons adopt investigation findings – allegations not supported by the evidence – public interest – tripartite test considered - removal harsh, unjust and unreasonable – application upheld – orders made
EMPLOYMENT AND INDUSTRIAL LAW – application for variation of award – notice of motion to have application dismissed – whether application precluded by Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (NSW) – review of authorities on Regulation – whether application precluded by no extra claims clause in award – review of clause – application not precluded on either basis
WORK HEALTH AND SAFETY – application for external review – whether applicant an “eligible person” entitled to make application – whether applicant a person issued with an improvement notice – whether applicant a worker whose interests are affected by the decision – whether applicant a health and safety representative who represents a worker whose interests are affected by the decision – applicant not an eligible person
POLICE – application for review of disciplinary order – whether order is beyond power or harsh, unreasonable, or unjust – whether admitted and substantiated allegations constitute misconduct
Application for relief from victimisation - amendment sought out of time – application of s 65 of the Civil Procedure Act 2005 – amendment allowed in part
UNFAIR DISMISSAL – jurisdictional objections – whether applicant resigned or was dismissed – evidence inconsistent with intention to resign – employee found to have been dismissed – whether application made out of time – 17 days out of time – matters to be considered in exercise of discretion – employer contribution to delay – sufficient reason to exercise discretion to accept application out of time
PRACTICE AND PROCEDURE – non-disclosure orders – orders made by consent
EMPLOYMENT AND INDUSTRIAL LAW – award interpretation – principles to apply – employees working day shift – whether award allows for employer to require employees to work according to a 24/7 rotating shift roster without the consent of the employees – whether such a term is to be implied into the award – whether relevant employees are “day workers” for the purposes of the award
INDUSTRIAL LAW – New South Wales – leave to appeal and appeal - awards and agreements – statutory provisions relating to public sector employees – evidence of employee-related cost increases and employee-related cost savings – onus to adduce such evidence - duty of Commission to make findings as to cost impact
Judgment of
Chief Commissioner Kite SC, Stanton C and Murphy C.
COSTS - unfair dismissal application dismissed – whether application vexatious or frivolous or instituted without reasonable cause - whether applicant unreasonably failed to agree to a settlement of the claim – whether applicant engaged in conduct inconsistent with intention to settle proceedings – costs order refused
COSTS APPLICATION – unfair dismissal application dismissed – whether the applicant unreasonably failed to agree to settlement offers from the respondent – consideration of all relevant circumstances – application for a costs order dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Workers Compensation Act – application for reinstatement by injured worker – whether employee dismissed because not fit for employment as a result of the injury – whether application for reinstatement compliant with legislation – review of applicable principles – jurisdiction of Commission not enlivened
COSTS – appeal – leave to appeal refused – application for costs including indemnity costs – principles to apply – whether appellant unreasonably failed to settle – whether appellant instituted proceedings without reasonable cause
PUBLIC SECTOR DISCIPLINARY APPEAL – dismissal – appellant allowed inmates to take contraband into correctional centre – serious misconduct – dismissal not unreasonable or unjust – mitigating circumstances – dismissal harsh – appeal allowed – some punishment warranted – no order for back pay
APPEAL – leave to appeal – principles to apply – whether failure to provide reasons justifies leave – whether appeal raises substantial issues of principle or law, or issues having any wider application than to the parties themselves
POLICE – removal of police officer – s.181D Police Act 1990 – application for review of order of Commissioner of Police – criminal offence - misconduct – consideration of mitigating factors – Undertaking not to consume alcohol - public interest - removal not harsh, unreasonable or unjust – application dismissed
VICTIMISATION – application for orders by dismissed Public Service senior executive – reinstate or re-employ – pay compensation – jurisdictional objection – implied repeal of power to make orders sought – privative provision – express displacement – application dismissed due to lack of jurisdiction
EMPLOYMENT AND INDUSTRIAL LAW – unfair dismissal – jurisdictional objection – whether employee dismissed – whether employee on fixed term contract that expired through effluxion of time – statutory employment – contract must be consistent with statutory scheme – meaning of “temporary employment” under Government Sector Employment Act
EMPLOYMENT AND INDUSTRIAL LAW – workers compensation legislation – application for reinstatement of injured worker – whether worker dismissed due to compensable injury – whether worker had complied with requirement to provide employer with medical certificate when applying for reinstatement – whether worker already reinstated or re-employed – whether reinstatement order can be made – whether order could be retrospective – consideration of discretionary factors
POLICE - Removal of Police Officer – s 181D Police Act – onus on applicant to demonstrate decision harsh, unreasonable or unjust – Commissioner of Police entitled to expect that officers will not consume prohibited drugs - onus not carried
INDUSTRIAL DISPUTE – award interpretation – Trainee Patient Transport Officers reclassified as Patient Transport Officers – classification definitions – training requirements – work performed – claim for back pay
EMPLOYMENT AND INDUSTRIAL LAW – award interpretation – principles to apply – whether words “who…finds it necessary” requires objective or subjective construction – whether words “as a consequence of” add a further, objective threshold for entitlement
APPEALS - leave to appeal – tests for the grant of leave – burden of proof – Commissioner’s findings of fact reasonably open on the evidence - no demonstrable error disclosed – no substantial issue of principle or law having wider implications or widespread practical application - grounds in support of leave to appeal not made out – leave to appeal refused
APPEAL – leave to appeal – unfair dismissal application lodged out of time –principles to apply – whether appeal raises substantial issues of principle or law or issues having any wider application than to the parties themselves - Commissioner’s determination to refuse an extension of time at first instance was correct – appeal dismissed
PROCEDURE – civil – application for review of provisional improvement notice – whether application made out of time – whether order made by Commission in other proceedings later found to be a nullity can be relied on to permit filing of application
UNFAIR DISMISSAL – classroom teacher – unsatisfactory teaching performance – informal support program – Teacher Improvement Program – failure to meet the level of performance required for the position of proficient classroom teacher – protection of children the paramount consideration – dismissal not harsh unreasonable or unjust – application dismissed
UNFAIR DISMISSAL – application made out of time – effective termination date – constructive dismissal - matters to be considered in exercise of discretion – reason for delay – depression – obtaining other employment - change of mind - application refused
INDUSTRIAL DISPUTE – application for orders to preserve status quo – Award provision does not require freeze in time – Award requires work procedure and practices preserved while dispute procedures ongoing
UNFAIR DISMISSAL - Teacher with 33 years' experience - Unsatisfactory work performance - Teacher Improvement Program – Whether harsh, unreasonable or unjust - Protection of children paramount consideration
HELD – application dismissed
APPEAL – leave to appeal – nature of public sector employment – impact of documents which are not industrial instruments on public sector employment – matter of importance in the public interest – leave to appeal granted – meaning of the term “instrument” – power of Commission to interpret documents – power of the Commission to make directions in arbitral proceedings – appeal upheld
PUBLIC SECTOR DISCIPLINARY APPEAL – correctional officer dismissed following convictions for out-of-hours criminal conduct – principles to be applied on appeal – misconduct found – mitigating factors considered – decision to dismiss upheld
WORK HEALTH AND SAFETY – improvement notice – confirmed on internal review – external review – contravention admitted – work ceased - new systems immediately introduced - delay before issuing improvement notice – existence of reasonable belief that contravention will continue or be repeated
APPEAL – decision made under dispute resolution provision in enterprise agreement made under Fair Work Act 1996 (Cth) – leave to appeal required – whether employees entitled to payment of a particular loading when they observe a public holiday or are absent due to sick leave on a public holiday – construction of enterprise agreement – principles to be applied – leave to appeal granted – appeal upheld – orders made
UNFAIR DISMISSAL – Correctional Officer First Class-16 years’ service - out-of-hours criminal conduct – assault of fellow Officer - intoxication - not guilty plea before Local Court - conviction of Assault Occasioning Actual Bodily Harm - District Court appeal affirmed finding of guilt - good behaviour bond for 12 months – comments of District Court Judge considered - procedural fairness considered – video evidence examined - seriousness of applicant’s conduct against regulatory context governing applicant’s employment considered – dismissal not unjust or unreasonable – harshness considered against mitigating factors – mitigating factors do not outweigh seriousness of applicant’s misconduct – dismissal not harsh – dismissal not harsh, unjust or unreasonable - application dismissed
UNFAIR DISMISSAL – Parking Ranger – previous Step: 3 Final Warning (Written) – acted in an aggressive, abrupt and rude manner towards a member of the public – misconduct – dismissal not harsh, unreasonable or unjust – application dismissed
PUBLIC SECTOR – disciplinary appeal – appeal to Supreme Court – appeal allowed remitted to Industrial Relations Commission – orders under s 100D (1)(b)-(c) – whether orders should be made – calculation of what the employee would have received - whether the appellant has a duty to mitigate loss - overarching discretion
UNFAIR DISMISSAL – allegations of misconduct – applicant diagnosed with dyslexia – offensive email communications – direction to attend counselling interview – applicant challenged direction – applicant claimed dyslexia responsible for his communication style – applicant rejected offer of independent assessment by clinical psychologist – applicant continued to send offensive communications to managers – misconduct allegations – sustained findings of misconduct – applicant dismissed – dismissal of the applicant not harsh unreasonable or unjust – application dismissed
UNFAIR DISMISSAL – repeated noncompliance with Commission’s directions – applicant not seeking reinstatement or re-employment – applicant not in receipt of remuneration during six month period before dismissal – application a futility – application dismissed
PRACTICE AND PROCEDURE - Application for leave to issue subpoenas to give evidence – Whether legitimate forensic purpose established – Leave refused – Motion dismissed
EMPLOYMENT LAW - Unfair dismissal – alleged constructive dismissal – correct test – no ultimatum by respondent - applicant’s decision to prioritise secondary employment hours was real and effective initiator of termination of employment – Commission lacks jurisdiction - application dismissed
ENTERPRISE AGREEMENTS - review of Principles of enterprise agreements - agreement on form of principles - Principles reviewed – minor change to Principles
Judgment of
Chief Commissioner Kite SC, Commissioner Constant and Commissioner Sloan
APPEAL – application for leave to appeal – whether exercise of discretion disclosed error – proportionality - grounds in support of leave to appeal not made out – leave to appeal refused
INTERLOCUTORY PROCEEDINGS – application to set aside parts of summons to produce – principles to be applied – application granted – summons set aside in part
APPLICATION FOR RELIEF FROM VICTIMISATION – whether jury duty a “public or political activity” for purposes of s 210(1)(h) – principles of statutory construction – review of history of provision – jury duty not a public activity for purposes of section – no jurisdiction – application dismissed
PRACTICE AND PROCEDURE – summary dismissal of proceedings – principles to apply – where court or tribunal has no jurisdiction, test for summary dismissal satisfied
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 – grounds in support of leave to appeal not made out – leave to appeal refused
PROCEDURE – civil –application for review of provisional improvement notice – application made by union – lack of standing to bring application – order sought by union to change applicant from union to member – review of authorities on nullity and amendment –defect not capable of amendment – proceedings a nullity
INDUSTRIAL DISPUTE – dispute over payment of annual leave and long service leave entitlements – interpretation of leave legislation - whether employment terminated – whether concurrent employment relationships - power to make direction for payment of accrued leave entitlements – power to make award setting ‘fair and reasonable conditions’
HELD – - application dismissed
UNFAIR DISMISSAL – sworn police officer medically retired – claim for unfair dismissal remedy – motion by respondent to strike out application for want of jurisdiction – for sworn police officers ability to pursue unfair dismissal remedy under Industrial Relations Act displaced by provisions of Police Act – provisions of Police Act constitute exclusive code for dismissed police officers seeking a “merit review” – application dismissed
UNFAIR DISMISSAL – criminal conduct – domestic violence – applicant a solicitor with Legal Aid – applicant concedes dismissal not unjust – whether a sufficient connection between the misconduct and the applicant’s employment – regulatory context of employment considered – respondent committed to promoting awareness and prevention of domestic and family violence – applicant a senior employee – connection with employment found – legitimate for respondent to seek to protect its reputation – risk of harm to reputation – dismissal not unreasonable – factors weighing in favour of harshness considered – mitigating factors do not outweigh seriousness of applicant’s misconduct – dismissal not harsh – application dismissed
INDUSTRIAL DISPUTE – Emergency Department Staff Specialists - payment for public holidays – Award silent – unilateral removal of long standing non-Award benefit – Direction sought-Recommendation made
APPLICATION FOR RELIEF FROM VICTIMISATION – application made out of time – more than 13 months out of time – principles – matters to be considered in exercise of discretion – significant length of delay – representative error argued – mental health argued – applicant had pursued alternative avenues for redress – no sufficient reason advanced for significant portion of delay – hardship to employee and employer considered – applicant’s prospects of success considered – application rejected
UNFAIR DISMISSAL - application made out of time – 12 months out of time - principles - matters to be considered in exercise of discretion – significant length of delay – mental health argued – employer contribution to delay argued – applicant had pursued alternative avenues for redress – no sufficient reason advanced for significant portion of delay – limited evidence as to hardship to employee – application refused
INDUSTRIAL DISPUTE – award interpretation – entitlement to be paid an allowance to Patient Transport Officers – previous interpretation of award provision by another member of the Commission – interests of comity – plain, ordinary meaning of actual words used
UNFAIR DISMISSAL – application dismissed – respondent applied for order for costs – unfair dismissal application not instituted without reasonable cause – applicant did not unreasonably fail to agree to a settlement of the claim – application for costs order refused
UNFAIR DISMISSAL – Deputy Principal of school – relationship with another teacher – convenor of selection panel – failure to declare conflict of interest – failure to take appropriate action to address staff complaints – serious misconduct – dismissal not harsh unjust or unreasonable
UNFAIR DISMISSAL – workplace assessment – medical retirement – applicant unable to perform the inherent requirements of the role of an ESL teacher – no reasonably practicable controls or adjustments to address risk of injury – respondent’s work health and safety obligations – medical retirement of the applicant not unfair
INDUSTRIAL LAW – New South Wales – unfair dismissal – threatened dismissal – interim order – power to make interim order restraining dismissal – proper respondent – scope of order – whether applicant should be required to take leave
AWARD INTERPRETATION – “current practice” of taking annual leave – subclause to be read in context of clause as a whole – subclause to be interpreted against the history of the provision – leave to appeal granted – appeal upheld
PUBLIC SECTOR DISCIPLINARY APPEAL - hearing de novo – disciplinary action - misconduct – demotion from rank of Station Officer to Senior Firefighter for a period of 12 months - Commission not to confine itself to misconduct alleged – appeal does not turn on whether misconduct as alleged occurred - no requirement on the Commission to make a finding that misconduct occurred – jurisdiction protective of public service and public - Commission to determine whether the disciplinary penalty imposed was correct in all the circumstances or whether an alternative sanction should be substituted – obligation on employees when on duty to comply with policies and not cause reputational damage – Decision of Commissioner quashed –alternate remedy of reprimand and fine imposed
INDUSTRIAL DISPUTE – AWARD APPLICATION – Health and Fitness Program – Nominated Medical Practitioner – Independent Occupational Physician – Health Check Pack – award made
Judgment of
Chief Commissioner Kite SC, Commissioner Newall and Commissioner Murphy
Section 314-Reinstatement of contract-Agreement negotiated collectively but entered into individually by the owner drivers-Agreement for 3-year term-During its currency grievances raised in relation to wrong routes and residential deliveries-wrong routes issues parked until 4th quarter of 2016-Respondent agreed to negotiate new Agreements if issue of rates paid for residential deliveries is pursued-Withdrawal of transportation services over 3 days-four text messages sent by the respondent advising of material breach of the Agreement and seeking a return to work-Termination of the Agreements-Return to work by 33 of the 42 drivers on individual agreements-Klapos took up the offer to contact the respondent to arrange an interview to discuss a new contract-The respondent did not offer Klapos a new agreement despite his apparent satisfactory service-Application for compensation-Material breach of agreement-2 weeks’ notice required for termination-termination unfair-6 weeks’ pay-both calculated on the sum the driver allocated to himself as wages from his company.
Section 314-Reinstatement of contract-Agreement negotiated collectively but entered into individually by the owner drivers-Agreement for 3-year term-During its currency grievances raised in relation to wrong routes and residential deliveries-wrong routes issues parked until 4th quarter of 2016-Respondent agreed to negotiate new Agreements if issue of rates paid for residential deliveries is pursued-Withdrawal of transportation services over 3 days-four text messages sent by the respondent advising of material breach of the Agreement and seeking a return to work-Termination of the Agreements-Return to work by 33 of the 42 drivers on individual agreements-Ding did not take up the offer to contact the respondent to arrange an interview to discuss a new contract-The respondent did not contact Ding as it did some other drivers to invite him to an interview despite his lengthy service-Application for compensation-Material breach of agreement-2 weeks’ notice required for termination-termination unfair-3 weeks’ pay-both calculated on the sum the driver allocated to himself as wages from his company.
Section 314-Reinstatement of contract-Agreement negotiated collectively but entered into individually by the owner drivers-Agreement for 3-year term-During its currency grievances raised in relation to wrong routes and residential deliveries-wrong routes issues parked until 4th quarter of 2016-Respondent agreed to negotiate new Agreements if issue of rates paid for residential deliveries is pursued-Withdrawal of transportation services over 3 days-four text messages sent by the respondent advising of material breach of the Agreement and seeking a return to work-Termination of the Agreements-Return to work by 33 of the 42 drivers on individual agreements-Paine did not take up the offer to contact the respondent to arrange an interview to discuss a new contract-The respondent did not contact Paine as it did some other drivers to invite him to an interview despite his lengthy service-Application for compensation-Material breach of agreement-2 weeks’ notice required for termination-termination unfair-2 weeks’ pay-both calculated on the sum the driver allocated to himself as wages from his company.
Section 314-Reinstatement of contract-Agreement negotiated collectively but entered into individually by the owner drivers-Agreement for 3-year term-During its currency grievances raised in relation to wrong routes and residential deliveries-wrong routes issues parked until 4th quarter of 2016-Respondent agreed to negotiate new Agreements if issue of rates paid for residential deliveries is pursued-Withdrawal of transportation services over 3 days-four text messages sent by the respondent advising of material breach of the Agreement and seeking a return to work-Termination of the Agreements-Return to work by 33 of the 42 drivers on individual agreements-Koroglu did not take up the offer to contact the respondent to arrange an interview to discuss a new contract-The respondent did not contact Koroglu as it did some other drivers to invite him to an interview despite his lengthy service-Application for compensation-Material breach of agreement-2 weeks’ notice required for termination-termination unfair-3 weeks’ pay-both calculated on the sum the driver allocated to himself as wages from his company.
Section 314-Reinstatement of contract-Agreement negotiated collectively but entered into individually by the owner drivers-Agreement for 3-year term-During its currency grievances raised in relation to wrong routes and residential deliveries-wrong routes issues parked until 4th quarter of 2016-Respondent agreed to negotiate new Agreements if issue of rates paid for residential deliveries is pursued-Withdrawal of transportation services over 3 days-four text messages sent by the respondent advising of material breach of the Agreement and seeking a return to work-Termination of the Agreements-Return to work by 33 of the 42 drivers on individual agreements-Manning failed in his application to return to work despite previous work history-Application for compensation-Material breach of agreement-2 weeks’ notice required for termination-termination unfair-4 weeks’ pay-both calculated on the sum the driver allocated to himself as wages from his company.
Section 314-Reinstatement of contract- -Agreement negotiated collectively but entered into individually by the owner drivers-Agreement for 3-year term-During its currency grievances raised in relation to wrong routes and residential deliveries-wrong routes issues parked until 4th quarter of 2016-Respondent agreed to negotiate new Agreements if issue of rates paid for residential deliveries is pursued-Withdrawal of transportation services over 3 days-four text messages sent by the respondent advising of material breach of the Agreement and seeking a return to work-Termination of the Agreements-Return to work by 33 of the 42 drivers on individual agreements-Manning failed in his application to return to work despite previous work history-Application for compensation-Material breach of agreement-2 weeks’ notice required for termination-termination unfair-4 weeks’ pay-both calculated on the sum the driver allocated to himself as wages from his company.
Section 314-Reinstatement of contract-Agreement negotiated collectively but entered into individually by the owner drivers-Agreement for 3-year term-During its currency grievances raised in relation to wrong routes and residential deliveries-wrong routes issues parked until 4th quarter of 2016-Respondent agreed to negotiate new Agreements if issue of rates paid for residential deliveries is pursued-Withdrawal of transportation services over 3 days-four text messages sent by the respondent advising of material breach of the Agreement and seeking a return to work-Termination of the Agreements-Return to work by 33 of the 42 drivers on individual agreements-Manning failed in his application to return to work despite previous work history-Application for compensation-Material breach of agreement-2 weeks’ notice required for termination-termination unfair-4 weeks’ pay-both calculated on the sum the driver allocated to himself as wages from his company.
Practice and procedure – repeated failure to comply with directions – duty of parties and their lawyers to assist in the just cheap and quick resolution of proceedings hearing dates twice vacated due to applicant’s default – prejudice to respondent and other parties
UNFAIR DISMISSAL – tipstaff to Supreme Court Judge – preliminary issue raised by respondent at conciliation conference – applicant engaged on a temporary contract for a specific task – application filed out of time – no sufficient reason – application dismissed
Victimisation application - applicant alleged he was victimised by the respondent because he made complaints about workplace matters – suspension during investigation constitutes detrimental action - evidence of decision-maker about reason for suspension – assessment of risks of remaining in workplace - s 210(2) presumption rebutted – complaints not a substantial and operative reason - application dismissed
INDUSTRIAL LAW – New South Wales – awards – application for a new award – wage fixing principles – special case – work value change – new classification structure - employee-related costs – employee-related cost savings – new award made – other variations required
INDUSTRIAL DISPUTE – dispute over the proper interpretation of an award provision – the Commission as presently constituted acted in previous proceedings before the Industrial Court as counsel for the applicant which involved interpretation of the same award provision – notifier in these proceedings relies on the judgement in the previous proceedings in support of its claim in these proceedings – counsel in the previous proceedings advised the applicant in those proceedings and advocated for an outcome similar to that sought by the notifier in the present proceedings – apprehension of bias – application by respondent that the Commission as presently constituted recuse himself – application granted
INDUSTRIAL DISPUTE – award interpretation – recreation or annual leave – sick leave – extended or long service leave – rostered day off – number of hours to be debited from when leave taken – 8 hours debited with 0.4 of an hour notionally accruing to an RDO
Appeal – application for leave to appeal –interpretation of statutory Determination made by Minister for Health – no substantial issue of principle or law having wider implications or widespread practical application – no demonstrable error disclosed – grounds in support of leave to appeal not made out – leave to appeal refused
UNFAIR DISMISSAL – failure to comply with Commission’s directions – no satisfactory explanation for applicant’s failure – failure to prosecute proceedings with due despatch – application dismissed
PUBLIC SECTOR DISCIPLINARY APPEALS – Commission may order sums in the nature of back pay – discretionary orders – exercise of discretion to make such an order may include consideration of monies earned in period when employment interrupted
ISSUE ESTOPPEL – estoppel argued to arise from findings of fact in criminal proceedings – Prasad direction in criminal proceedings and finding that Crown evidence unreliable - no identity of issue between criminal and civil proceedings – no privity of parties - Local Health District not identical to or a privy to the Crown as a prosecutor – no issue estoppel.
EVIDENCE – no power in Commission to exclude evidence before hearing even if it may on its face appear inconsistent with evidence given elsewhere
TRANSFER AND ASSIGNMENT OF EMPLOYMENT – Government Sector Employment Act 2013 – assignment of employee – orders sought annulling assignment effected pursuant to s 46 – assignment lawfully effected – no power in Commission to reverse or annul assignment under GSE Act – no power in Commission to direct agencies to appoint staff to particular roles
CONSULTATION – for purposes of s.46(4) GSE Act, ‘consult’ does not mean that agreement to assignment must be reached, and failure to reach agreement does not bar an agency head from effecting transfer
INDUSTRIAL DISPUTES – Orders available to Commission in resolution of disputes – s.136 of Industrial Relations Act 1996 - any other Order the Commission is authorised to make - order overturning or annulling assignment of employee under Government Sector Employment Act 2013 not an order the Commission is authorised to make
Notice to produce – privacy complaint by patient – misconduct investigation resulting in dismissal – relevance to issues in dispute – reference to document in evidence – access restrictions
POLICE – removal of police officer – s.181D Police Act 1990 – review under s.181E Police Act - statutory scheme – powers of Commission – onus on applicant to demonstrate decision ‘harsh, unreasonable or unjust’ – Commissioner entitled to expect that officers will not consume illicit drugs – allegation that officer consumed illicit drugs not made out – PRACTICE AND PROCEDURE – s.181F Police Act – Commissioner to answer applicant’s case – Commissioner required to answer the case mounted by applicant
UNFAIR DISMISSAL – employer dismissed employee after application filed claiming threatened dismissal – orders sought reinstating employee on interim basis to preserve Commission’s process – implied power claimed - held, no power to reinstate on an interim basis.
AWARD INTERPRETATION – ordinary meaning of words – particular principles applying to industrial instruments
ALLOWANCES – by their nature payable for duties other than an employee’s usual work
INDUSTRIAL DISPUTE – dispute over classifications of employees entitled to an incidental allowance – history of award clause – meaning of words in clause - correct application of allowance stated.
UNFAIR DISMISSAL - application made out of time – 6 months out of time - principles - matters to be considered in exercise of discretion – significant length of delay - representative error argued - no reason advanced for significant portion of delay – no evidence as to hardship to employee – applicant at all times aware of 21 day limit - application refused
POLICE – removal of police officer – s.181D Police Act 1990 – application for review of order of Commissioner of Police – multiple incidents of alleged misconduct – covert recording of internal meeting on mobile phone – improper search - interference with police investigation – inappropriate language - omission of charge – failure to lay domestic violence charge – consideration of mitigating factors – Post-Traumatic Stress Disorder - totality of employment history - removal not harsh, unreasonable or unjust – application dismissed
POLICE – removal of police officer – s. 181D Police Act 1990 – application for review of order of Commissioner of Police – NSW legislation –possession of child abuse material – applicant claimed the material was “legal” in NSW – whether person depicted is appears to be or is implied to be under 16 years of age – Commonwealth legislation – use of carriage service for child pornography material – whether person depicted is or appears to be under 18 years of age – borderline material – material found to be child abuse/child exploitation material/ child pornography – removal not harsh unreasonable nor unjust
Appeal – application for leave to appeal – whether exercise of discretion disclosed error – grounds in support of leave to appeal not made out – leave to appeal refused
INDUSTRIAL LAW – New South Wales – work health and safety – prohibition notice - application for external review – no decision on internal review – decision taken to have been made - test of reasonable belief – whether objective or subjective test – whether belief held by inspector was reasonable; STATUTES - acts of parliament – interpretation; Words and Phrases – “is occurring” - Work Health and Safety Act 2011 (NSW) s 195(1)(a)
DISMISSAL- misconduct-pseudonym order made-breach of policies and professional standards- misconduct established-dismissal not harsh, unreasonable or unjust –application dismissed
Industrial dispute - higher grade duties claimed by two ward clerks - small claims applications made – award interpretation-relevant principles considered – award provision examined – no ambiguity found-applications and dispute proceedings dismissed
APPLICATION FOR ENFORCEMENT OF S.210 – victimisation - allegations out of time – contraventions occur when action is taken not when remedied – contraventions not continuing – exercise of discretion – consideration of factors – reason for delay pursuit of internal avenues – legally represented – consideration of power of Commission to make orders sought – prospects of success - sufficient reason to accept some allegations out of time but not all
INDUSTRIAL LAW – New South Wales – unfair dismissals – applicant demoted - whether demotion a dismissal – whether applicant threatened with dismissal – motion to dismiss application
Section 146B of the Industrial Relations Act 1996- interpretation of federal enterprise agreement - s 740(4) of the Fair Work Act 2009 considered-application of Total Salary Package Agreement where public holidays not worked and personal/carers leave is claimed in a period that includes a public holiday- statutory nature of enterprise agreements- principles governing the interpretation of federal industrial instruments- ss 99 and 116 of Fair Work Act - Golden Cockerel observed – disputed provisions long standing and have plain meaning – no ambiguity – disputed public holidays are paid at the base rate of pay -applications refused.
INDUSTRIAL LAW –New South Wales –awards and agreements – proper construction of clauses – whether employer has a limited discretion to determine pay cycle – whether agreement of employees required
STATUTES – acts of parliament – interpretation – Local Government Act 1993 s 354D
COSTS – application for registration as an organisation of employers dismissed – objector seeks a costs order – application for registration not frivolous or vexatious – application not made without reasonable cause – costs order refused
Dispute pursuant to s 20 of the Entertainment Industry Act 2013 – conciliation failed – directions for arbitration made – agreement on quantum owed - initial hearing vacated on grounds that the respondent was not fit to appear – medical certificate filed – further advice respondent unwell, but not supported by medical evidence – offer to appear by telephone link rejected – hearing proceeded in the interests of justice – orders made in applicant’s favour
Dispute pursuant to s 20 of the Entertainment Industry Act 2013 – payment of performance fees to performer – amount performer representative entitled to deduct for fee – requirement for entertainment industry management agreement to deduct more than 10% of total amount payable to performer
POLICE – application for review of dismissal order – application dismissed
PRACTICE AND PROCEDURE – want of prosecution – want of due dispatch – no compliance with directions – no appearance – no explanation for non-appearance and non-compliance – application dismissed
Unfair dismissal - termination of temporary employment – reason for termination - termination procedurally unfair
Remedy - reinstatement or re-employment not sought - compensation ordered - factors considered in award of compensation
Unfair dismissal – first instance decision to dismiss application – tests for leave to appeal – no matter of principle – no matter beyond interests of parties – decision open to Commissioner at first instance – leave not required in public interest – leave to appeal refused
AWARD APPLICATIONS – applications by ASMOF and HSU to vary awards for 2.5% increase in rates of pay and/or allowances – applications by Ministry of Health for new awards without current provisions dealing with managing excess employees – section 146C of Industrial Relations Act 1996 – clause 6(1)(f) of Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 – previous clause 6(1)(f) declared invalid – awards made without current provisions dealing with managing excess employees
Public sector disciplinary appeal – disciplinary action of demotion for unsatisfactory performance – hearing de novo - disciplinary regime protective - Commission to have regard to all circumstances - overall employment relationship considered - appeal upheld - demotion set aside – consequential order for back pay not made
PUBLIC SECTOR DISCIPLINARY APPEAL – Team Leader – group home for disabled residents – two allegations of misconduct – foam wedges used to assist in positioning of resident without approval from qualified professional – doctor prescribed antibiotics for resident – prescription not filled – allegation that Team Leader directed staff to not get prescription filled – disciplinary investigation – allegations sustained – Team Leader reduced in classification and grade to Disability Support Worker Year 10 – Team Leader claimed professional assistance unavailable at time wedges were used – Team Leader claimed she forgot about prescription due to pressure of work – gross negligence – protective jurisdiction – penalty warranted – indefinite reduction in classification and grade too harsh a penalty – appeal allowed – decision varied – penalty altered to reduction in classification and grade for six months
PUBLIC SECTOR DISCIPLINARY APPEAL – allegations against Bus Operator of breaches of Code of Conduct and Bus Operations Handbook – behaved in an inappropriate and unprofessional manner towards colleague – behaviour towards colleague was abusive and threatening – left bus unattended and unsecured – penalty imposed of reduction in classification for three months – misconduct allegations proven – penalty fair and reasonable in all the circumstances – appeal dismissed
INDUSTRIAL DISPUTE – claim for a special environmental allowance to be paid to Clinical Support Workers – Determination by the Health Administration Corporation – allowance paid to nurses to also apply on the same basis to non-nursing staff – substantial, regular and direct contact with inmates – time & motion study – quantitative measure of time spent in contact with inmates – qualitative assessment of the nature of contact with inmates – determination made that Clinical Support Workers are entitled to be paid the environmental allowance – recommendation made
APPLICATION FOR ENFORCEMENT OF S.210 – s.213 provides comprehensive code of powers – order sought not within power – matter for consideration in assessing out of time application
APPLICATION OUT OF TIME - 32 days out of time – effect of employer undertaking not to press point – decision rests with Commission, not parties – statutory tests must be addressed – case for enforcement unwinnable – applicant loses nothing by refusal to grant leave – Commission’s obligation to deal with matters quickly, justly and cheaply – leave to admit matter out of time refused – application dismissed
Awards - applications for variation – wage fixing principles – special case – fair and reasonable conditions of employment – unilateral transfer of employment – public sector employees transferred to non-government sector – preservation of entitlements – non-award benefits - no extra claims clause – rostering principles – paid special sick leave – consultation clause
Judgment of
Chief Commissioner Kite SC, Commissioner Murphy and Commissioner Seymour
INDUSTRIAL DISPUTE - application for interpretation pursuant to s.175 of Industrial Relations Act 1996 - interpretation of industrial instrument - relevant principles of interpretation of awards and industrial instruments - recommendation made for settlement of industrial dispute.
REINSTATEMENT OF INJURED WORKER – rail worker - applicant terminated on basis that she was unsuitable for the inherent physical requirements of her former role - medical assessment found her fit - reinstatement and lost remuneration orders made
UNFAIR DISMISSAL – two jurisdictional objections – contract of employment for a specified period of less than six months – applicant dismissed one month before specified end date – employer’s right to dismiss inconsistent with a contract for a specified period – binding Full Bench authority – jurisdictional objection rejected – application filed 306 days out of time – no sufficient reason provided for delay in filing application – jurisdictional objection upheld – application dismissed
PUBLIC SECTOR DISCIPLINARY APPEAL - disobedience of Governor’s direction – misconduct – disciplinary sanction warranted – officer demoted – demotion appropriate – appeal upheld only to the extent that demotion ought be for a fixed period of two years rather than indefinitely
PUBLIC SECTOR DISCIPLINARY APPEAL – jurisdiction protective of public service and public
PUBLIC SECTOR DISCIPLINARY APPEAL - Commission to determine whether the decision imposed was correct or preferable decision in the circumstances
OBLIGATIONS OF EMPLOYEES WITHIN UNIFORMED SERVICES – employees within hierarchical rank structure obliged to obey orders – orders to be obeyed even if employee has different view of appropriate practice
UNFAIR DISMISSAL – Correctional Officer – 22 year unblemished career – OIC on hospital escort duty – inmate released from handcuffs and ankle cuffs to take shower – inmate escaped through bathroom window – Critical Incident Review – five allegations of misconduct by applicant – breaches of procedures – false or misleading statement – allegations not all proven – errors of judgement – proven allegations not of sufficient seriousness to warrant dismissal – dismissal harsh unreasonable and unjust – reinstatement not impracticable – reinstatement ordered – no order for back pay
UNFAIR DISMISSAL – failure by applicant to comply with directions – failure by applicant to attend directions hearing – application dismissed
STRIKE OUT APPLICATION – lack of due dispatch – case management - balancing of prejudice to be suffered by applicant and respondent – loss of ability to pursue claim – prejudice to the respondent outweighs prejudice to the applicant – substantive application dismissed
UNFAIR DISMISSAL – council ranger – physical altercation with members of the public – applicant assaulted twice – previous work performance issues – applicant trained in managing conflict and de-escalating aggressive behaviours – work health and safety investigation – applicant failed to withdraw from the scene after the first assault – applicant dismissed for failing to follow protocols and procedures – procedural unfairness – employer did not have sufficient regard to applicant’s mental state after the first assault – errors of judgement amounting to misconduct – misconduct not of sufficient seriousness to warrant dismissal – substantive unfairness – dismissal harsh unreasonable and unjust – reinstatement not impracticable – reinstatement ordered – no order for back pay
APPLICATION FOR REGISTRATION BY NATROAD AS EMPLOYER ORGANISATION – transport industry – objections by TWU and ARTIO – majority of members of NatRoad in NSW are contract carriers or owner-drivers, not employers – industrial interests of owner-drivers align more closely with employee drivers than with employers in the transport industry – owner-driver members can outvote employer members by factor of 4 or 5 to 1 – NatRoad not capable of representing its employer members in connection with industrial matters – NatRoad not effectively representative of the members who are employers – application for registration as organisation of employers dismissed