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 – 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
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in unusual circumstances, such as major floods, pandemics or operational close downs – previous enterprise agreement rescinded - enterprise agreement approved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
EMPLOYMENT AND INDUSTRIAL LAW – Awards and agreements – application for new award – motion to have application dismissed – whether application “frivolous” or “vexatious” – s 162(2)(h) of Industrial Relations Act 1996 (NSW)
APPEAL – leave to appeal – principles to apply –whether appeal raises substantial issues of principle or law, or issues having any wider application than to the parties themselves – appeal against finding that reinstatement/re-employment was impracticable – Commissioner’s findings reasonably open on the evidence - no demonstrable error disclosed – no substantial issue of principle or law having wider implications or widespread practical application – appeal against amount of compensation ordered – exercise of discretion – leave to appeal refused
CROSS-APPEAL – statutory framework for dealing with misconduct in the public service – threat of dismissal – resignation – constructive dismissal – leave to cross-appeal granted – cross-appeal dismissed
Judgment of
Commissioner Stanton, Commissioner Murphy and Commissioner Webster
UNFAIR DISMISSAL – misconduct – whether resignation following an offer to resign pursuant to s 69(4)(b) of the Government Sector Employment Act 2013 is a dismissal for purposes of s 84 of the Industrial Relations Act 1996 - consideration of seriousness of misconduct against mitigating factors - misconduct not sufficient to warrant dismissal – dismissal harsh – reinstatement impracticable – compensation ordered
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – unfair dismissal claim – settlement reached in conciliation after commencement of arbitration – whether the settlement was a binding agreement – whether there were grounds to find the applicant should not be bound – consideration of objects of Industrial Relations Act 1996 and emphasis placed by the Act on conciliation of industrial disputes
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – category of employees in receipt of “on call allowance” for more than 30 years – employer purported to cease paying allowance – whether allowance an award entitlement – whether allowance a contractual entitlement on the basis of usage
UNFAIR DISMISSAL – application by respondent for a costs order – vexatious – unreasonably failed to agree to a settlement of the claim – costs order refused
UNFAIR DISMISSAL – Retained Fire Captain – 27 year career – misconduct – allegations not all sustained - proven allegations not of sufficient seriousness to warrant dismissal – dismissal harsh unreasonable and unjust – reinstatement not impracticable – reinstatement ordered – no order for back pay
EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Disciplinary action – appeal against decision to terminate after giving opportunity to resign – positive drug tests at work – conduct admitted – whether employer failed to offer adequate support after the first positive – whether decision too severe
POLICE – application for review – reviewable action - reduction in increment and removal to different unit – principles to apply on review – whether order is beyond power – applicant exceeded role as support person – applicant did not properly manage conflicts of interest - conduct did constitute misconduct – disciplinary order not harsh, unreasonable and/or unjust – application dismissed
INDUSTRIAL DISPUTE – award interpretation – employees not on call receiving telephone calls – recall to duty when not on call – whether entitlement to telephone allowance and minimum recall of 4 hours at overtime rates
VICTIMISATION – application made out of time – no sufficient reason to accept application – Deed of Agreement – settlement of industrial dispute – applicant claimed he was not bound by the terms of the settlement
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – application for new award – alleged contravention of “no further claims” provision in existing award – alleged failure to comply with dispute resolution provisions in existing award – whether application should be permanently stayed
PUBLIC SECTOR DISCIPLINARY APPEAL – Bus Operator – use of mobile phone while on duty – whether conduct amounted to misconduct warranting termination of employment – misconduct established - dismissal disproportionate to misconduct – no back pay – employer entitled to expect compliance with policies and procedures – nature and gravity of conduct, length of service, remorse and contrition and employment record considered
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Jurisdiction – whether Commission’s jurisdiction to deal with disciplinary or remedial action against an employee is confined to Ch 2 Pt 7 of the Industrial Relations Act 1996 (NSW) – whether such disciplinary or remedial action can be an “industrial dispute” able to be dealt with under Ch 3 of Industrial Relations Act
INDUSTRIAL ORGANISATIONS – demarcation – existing or threatened conduct preventing, obstructing or restricting the performance of work - wishes of employees – existence of agreement between Organisations – effect of making orders on operations of employer – consequences of not making orders AWARD COVERAGE – principles of interpretation
UNFAIR DISMISSAL – Sentence Administration Officer - concerns about applicant’s attendance and work performance – applicant diagnosed with type 1 diabetes – Performance Improvement Plan – allegations of bullying and harassment – claim that dismissal was due to sick leave record not unsatisfactory work performance
UNFAIR DISMISSAL – jurisdictional objection – whether applicant resigned or was dismissed – evidence inconsistent with intention to resign – employee found to have been dismissed
UNFAIR DISMISSAL – school teacher – allegations of misconduct during and after a Christmas party harbour cruise – most serious allegations proven – dismissal not harsh unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – victimisation application – obligation on applicant to adduce evidence of both detriment and proscribed reason – mere conjecture as to reasons for unfavourable treatment insufficient to enliven presumption of proscribed reason – whether Commission obliged to raise with parties any authorities on which the Commission may rely
EVIDENCE – Discretions – whether Commissioner obliged to draw Jones v Dunkel inferences – whether Commissioner erred by preferring hearsay evidence over direct evidence – s 163 Industrial Relations Act 1996 (NSW) – s 69 Evidence Act 1995 (NSW)
Judgment of
Chief Commissioner Kite SC, Commissioner Sloan and Commissioner Webster
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 – whether Pt 8 of Workers Compensation Act 1987 (NSW) constitutes a code under which injured workers may make application to the Industrial Relations Commission for reinstatement to employment
PUBLIC SECTOR DISCIPLINARY APPEAL – jurisdiction - probation period – whether under the Government Sector Employment Act 2013 and the Government Sector Employment (General) Rules 2014 formal confirmation is required to conclude probation period
POLICE – removal of Police Officer – review of removal order – non-publication Order made pursuant to s 164A of the Industrial Relations Act 1996 - hearing de novo – 11 allegations of misconduct - whether decision harsh, unreasonable or unjust – application dismissed
UNFAIR DISMISSAL – labour hire arrangement – whether host is the employer – legitimate labour hire arrangement - no basis to imply a contract of employment - no jurisdiction
PUBLIC SECTOR DISCIPLINARY APPEAL – Senior Technical Policy Advisor – termination of employment – unsatisfactory performance – Informal Performance Improvement Plan – Formal Performance Improvement Plan – appellant contracted Legionnaires’ disease – work performance affected by major depression – reinstatement ordered – no order for back pay
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Interpretation – proposed implementation of new procedures – whether such implementation is “organisational change” for the purposes of the relevant awards – whether dispute resolution procedures require maintenance of status quo pending determination of the dispute
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – award interpretation – meaning of the word “arrangement” in the phrase “industrial instrument or arrangement” – whether a system of regulation of employment conditions through employment contracts is an “arrangement” for the purposes of the award – whether such a system “comprehensively determines conditions of employment” so as to oust the operation of the award
Judgment of
Commissioner Stanton, Commissioner Murphy and Commissioner Sloan
Reasonable direction to undertake rural travel – up to five days per month – removal of allowance – representations made by Justice Health DORIS allowance was payable - custom and practice – recommendation to continue to pay allowance
POLICE – application for review of order for disciplinary transfer – alleged inappropriate use of respondent’s computer system – alleged failure to declare conflict of interest and declarable association - whether order is beyond power or harsh, unreasonable, or unjust – misconduct established – disciplinary order not beyond power, unjust or unreasonable - disciplinary order harsh - order revoked and alternative order made
UNFAIR DISMISSAL – review of business unit – restructure of operations – complaint of lack of consultation – termination of employment due to genuine redundancy – termination not harsh unreasonable or unjust
UNFAIR DISMISSAL – constructive dismissal – offer of extension of employment rejected – applicant resigned freely and without undue pressure – employer's conduct not the real and effective initiator of the termination of the contract of employment – application dismissed
COSTS – party/party – unfair dismissal – application for costs – senior firefighter reinstated – alleged unreasonable failure to agree to a settlement – no evidence of settlement negotiations – whether Commission can draw inference from conduct of case that respondent had no intention to settle
PUBLIC SECTOR DISCIPLINARY APPEAL – Assistant Principal demoted to classroom teacher – sustained allegations of misconduct – not all sustained allegations proven on the evidence before the Commission – appeal allowed
APPEAL – leave to appeal – principles to apply –whether appeal raises substantial issues of principle or law, or issues having any wider application than to the parties themselves – whether Commissioner at first instance misinterpreted award – meaning of “appointed as such” – whether term requires deliberate or formal act of appointment – whether requiring employee to perform the full range of duties of a classification constitutes an “appointment” to that classification
APPEAL – leave to appeal – principles to apply –whether appeal raises substantial issues of principle or law, or issues having any wider application than to the parties themselves – whether decision at first instance misapprehended duties and responsibilities of police officers – whether decision at first instance misapplied s 213 of the Police Act 1990 (NSW)
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
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
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