EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – making of Nurses’ (Local Government) Residential Aged Care Consolidated (State) Award 2021 – rescission of existing awards
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – motion to set aside summons to produce – relevant principles – whether documents sought for a legitimate forensic purpose – whether summons a fishing expedition
EMPLOYMENT AND INDUSTRIAL LAW – public sector employee dismissed as a result of disciplinary action – employee appealed to Industrial Relations Commission – whether employer is able to lay a new charge – no new charge laid – whether fresh evidence or material is able to be relied upon – whether the evidence should be excluded due to potential prejudicial effect – whether evidence is probative – whether evidence should be excluded due to the credibility and or reliability of the evidence
WORK HEALTH AND SAFETY – Improvement Notice issued by inspector following an alleged contravention of the Work Health and Safety Act – application for external review of decision made on internal review – whether there is a reasonable belief that a contravention has occurred in circumstances that make it likely that the contravention will continue or be repeated – external review upheld
PUBLIC SECTOR DISCIPLINARY APPEAL – decision to defer an incremental increase - whether an appealable decision – proper characterisation of deferment – whether such a decision is a disciplinary decision – out of time – no discretion to extend time -whether notice is required to be in writing – whether an email is notification in writing – whether consent to receive an email as written notification can be implied by conduct
APPEAL - motion to introduce fresh evidence – evidence available or available with reasonable diligence before decision - limited relevance of fresh evidence to Leave to Appeal and Appeal – no miscarriage of justice if evidence not adduced - motion dismissed
Judgment of
Commissioner Webster on delegation from the Full Bench
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Relief – application for interim orders – whether orders required to maintain “status quo” pursuant to award – whether other grounds made out for granting of interlocutory relief
Industrial dispute – consent orders – exemption from award entitlements – not contrary to the public interest – best interests of employer and employees – serious consequences if order not made
APPEAL – Leave to Appeal not granted - Industrial dispute – Category of employees in receipt of “on call allowance” for more than 30 years – Employees not entitled to “on call allowance” under the Award – Payment of “on call allowance” not authorised by the employer - Whether “on call allowance” a contractual entitlement on the basis of usage – Whether authority of the employer to pay the allowance is relevant – Whether the employer’s intention to enter into the arrangement is relevant – Whether over award payment is inconsistent with express terms of contract providing for terms and conditions to be in accordance with the Award – Whether the contract of employment subject to the Health Services Act 1997 where employment pre-dates the commencement of the legislation - Whether an implied term of a contract of employment is “fixed” by a law pursuant to s116A(1) – Arguments raised late in proceedings and not fully addressed – Issues affecting a small number of employees and not sufficiently important to warrant leave - Practical resolution of dispute through making of an award more appropriate
Judgment of
Chief Commissioner Constant, Commissioner Murphy and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Contract determination – Variation – application to vary Hy-Tec Industries Pty Ltd – Maxi Concrete Contract Determination by replacing the existing Clauses 2.1 and 2.2 with new and revised provisions as contained in Schedule B of the Application filed in IRC 21/180627– application not opposed – Determination varied
EMPLOYMENT AND INDUSTRIAL LAW – Industrial dispute - request for extended leave - whether request for leave is leave under the award – leave to be granted if operational requirements permit -operational reasons established why leave can not be granted - recommendation to reconsider the request at the conclusion of expression of interest
UNFAIR DISMISSAL – Notice of Motion to dismiss application for want of jurisdiction - casual employee -whether terminated by respondent - whether engaged on a casual basis for a short period – s 83(2) and Industrial Relations (General) Regulation 2015 considered - application dismissed
INDUSTRIAL LAW – unfair dismissal – threatened dismissal – order sought that respondent not dismiss the applicant – specific conduct relied upon in the show cause letter not proven – loss of trust and confidence in the employment relationship – order made restraining the respondent from terminating the applicant on the basis of particular conduct not proved – no restraint made on the basis of loss of trust and confidence and breakdown of relationship
APPEAL – application for leave to appeal – whether exercise of discretion disclosed error – no substantial issue of principle or law having wider implications or widespread practical application – no demonstrable error disclosed – leave to appeal refused
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – Security officer intervened in patient restraint – absence of direction to intervene – consideration of gravity of physical conduct – verbal altercation with co-worker following the restraint – whether conduct was misconduct warranting termination of employment – impact of termination at one Local Health District on employment at another – whether dismissal harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW – Awards – applications for new awards to rescind and replace existing awards – whether increases to rates of pay required – consideration of the state of the economy of NSW – application of Wage Fixing Principles – whether additional changes ought to be made to current award terms – whether exceptional circumstances exists to allow for effective date of awards to be back-dated
Judgment of
Chief Commissioner Constant, Commissioner Murphy and Commissioner Sloan
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – dispute orders – employee with employment-related injury unable to perform requirements of role – recommendation sought to modify the role to permit continuation of employment – whether employee unable to perform inherent requirements of role – whether role should be modified to remove such requirements – consideration of matters relevant to the Commission’s discretion
EMPLOYMENT AND INDUSTRIAL LAW – Termination of employment – unfair dismissal application – jurisdictional objection – application filed out of time – whether sufficient reason to exercise discretion to admit application out of time – exercise of discretion denied - application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Dispute orders – application for interim orders – whether jurisdiction exists to make interim orders – whether balance of convenience in favour of orders
POLICE – applications by two applicants for review of disciplinary transfer orders – disciplinary action taken against both officers following a physical altercation between them – prospect of inconsistent decisions if applications heard separately – applications to be heard jointly
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal from decision dismissing an application for review of a removal order under the Police Act 1990 – whether leave to appeal ought to be granted
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Public sector – disciplinary action – inappropriate behaviour by solicitor in conference with complainant in criminal proceedings – reduction in remuneration imposed – whether misconduct occurred – consideration of seriousness of misconduct – consideration of appropriate disciplinary action
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Relief – historical roster practice of “line ownership” – whether practice a contractual entitlement – whether employer estopped from ceasing practice – whether Commission should otherwise intervene on the basis that the removal of line ownership would be unreasonable
POLICE – appeal from dismissal of application for review – reviewable action – misconduct – reduction in increment and removal to different unit – principles to apply on application for leave to appeal and appeal – whether appellant has failed to mount an arguable case pointing to appellable error
Judgment of
Commissioner Stanton, Commissioner Murphy and Commissioner Sloan
INDUSTRIAL LAW – New South Wales – unfair dismissal – no threatened dismissal – interim orders – power to make interim order restraining dismissal – no threat of dismissal – prima facie case on the merits established – balance of convenience in favour of the respondent - notice of motion dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Application to adduce fresh evidence – principles to apply – whether the evidences raises probability of a different verdict
Judgment of
Commissioner Sloan on delegation from the Full Bench
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Section 19 Review – Interpretation – scope and application of clause allowing for infectious cleaning allowance – consideration of changes required under a s 19 review – whether additional variations ought to be made under s 17 – amended version of clause proposed for consideration
Judgment of
Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – application to adduce further evidence after hearing – application dismissed
Industrial dispute – Variation to award as relief – Application to vary definition of registrar – Application to dismiss matter on the basis of the relief sought –Whether subject matter of these proceedings is the same as the 2020 wages case – Whether regulations require consideration of whether 2.5% increase is sought on an individual employee basis – Application to dismiss the matter is dismissed – Merits of the matter to be determined
PUBLIC SECTOR DISCIPLINARY APPEAL – School Learning Support Officer dismissed – non-disclosure order – sustained allegations of misconduct involving a nine year old special needs student – inappropriate physical contact
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – fighting in the workplace – whether behaviour impacted by concussion or pre-existing psychological condition – impact of alleged concussion on memory – whether all allegations against employee made out – whether dismissal harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW – Industrial dispute – award interpretation - whether RFS employees entitled to Camping and Camping Equipment Allowances under the Conditions Award – whether RFS employees entitled to mid-range accommodation when involved in a major incident – RFS employees not “camping” when accommodated in base camps – “suitable accommodation” may include base camp accommodation
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – employee of Department of Education altered personnel files of wife and sister to add skills and expertise – whether employee had approval to make changes – failure to identify and disclose conflict of interest – conduct amounted to misconduct warranting dismissal – dismissal not harsh, unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW – Awards – Interpretation of “no extra claims” provision – program anticipating firefighters would provide medical first response to out-of-hospital cardiac arrests if fire crew able to respond more quickly than NSW Ambulance – whether a requirement that firefighters participate in the program an “extra claim”
EMPLOYMENT AND INDUSTRIAL LAW – Awards – applications for increases to salaries and salary-related allowances in two awards – discretion of Commission to award increases – principles to apply in setting award conditions – whether awards provide fair and reasonable conditions of employment – whether increases necessary to ensure awards continue to provide fair and reasonable conditions of employment – application of Wage Fixing Principles – consideration of the state of the economy of NSW
Judgment of
Chief Commissioner Constant, Commissioner Murphy and Commissioner Sloan
EMPLOYMENT AND INDUSTRIAL LAW – dispute notification – award interpretation – excess travel – accustomed place of work – regularly required to commence duty by the employer – alternative place of work – in the employer’s time – ordinary rate of pay
CONTRACT OF CARRAIGE – dispute over application of contract determination in circumstances where contract carriers start work before 6:00am – surcharge for delivery outside normal hours – call back fee
EMPLOYMENT AND INDUSTRIAL LAW – Contracts of carriage – application for interim contract determination to permit recovery from principal contractor for damage caused to truck – whether principal contractor responsible for damage – whether interim determination in the terms sought can or ought to be made
EMPLOYMENT AND INDUSTRIAL LAW – dispute notification – award interpretation – special leave – attendance at union meetings – travel to and from meetings
EMPLOYMENT AND INDUSTRIAL LAW – Application to resolve dispute under Entertainment Industry Act – whether performer entitled to payment for shows – whether entertainment industry hirer had a right to claim set-off for losses allegedly suffered
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Variation – application by employer for creation of new classification – counter application by HSU – whether substantial reason for variations and not contrary to the public interest – whether proposed rates of pay would set fair and reasonable conditions of employment – whether HSU application amounts to extra claim or contrary to wage fixing principles – presumption that award provides fair and reasonable conditions of employment – whether presumption rebutted
COSTS – notice of motion – applicant sought an award of costs after a successful unfair dismissal application – did respondent unreasonably fail to agree to a settlement of the claim – exchange of offers of settlement – exercise of discretion to decline to award costs
EMPLOYMENT AND INDUSTRIAL LAW – industrial dispute – interpretation of a provision in award – payment of an allowance when shift ends at 6pm and overtime is worked for one and a half hours – recommendation made that parties confer on agreed variation to award
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – whether industrial agreement between the parties is to be taken as regulating temporary employment – whether, if not, a separate industrial instrument applies to the parties
UNFAIR DISMISSAL – School Learning Support Officer – allegations of misconduct – unnecessary physical contact with a year 1 student – misconduct admitted – dismissal not harsh unreasonable or unjust
EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Police – review of order made under s 173 of the Police Act 1990 – deferral of increment and disciplinary transfer – whether order constitutes “double punishment” – whether order harsh, unreasonable or unjust – consideration of alternative locations for transfer
UNFAIR DISMISSAL – termination of employment on medical grounds – substantive position abolished – redeployment to suitable alternative employment not possible due to applicant’s impairment – whether entitled to voluntary redundancy - whether decision harsh, unreasonable or unjust – unfair dismissal proceedings dismissed
POLICE – removal of police officer – review of removal order – whether decision harsh, unreasonable or unjust – serious misconduct – profane language in group chat – reputational risk to the NSW Police Force – applicant’s interests – public interest – application dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Public sector disciplinary appeal – Dismissal – racist comments in the workplace – swearing at a subordinate – security breach – findings of misconduct – other allegations made out, but not misconduct – consideration of culture and behaviours at the workplace generally – consideration of mitigating factors – long and unblemished service history –conduct, while serious and offensive, did not warrant termination – alternative disciplinary action imposed
PUBLIC SECTOR DISCIPLINARY APPEAL – Fire Station Captain – allegations of misconduct – investigation – number of allegations sustained – disciplinary process – demotion from Captain to Retained Firefighter
EMPLOYMENT AND INDUSTRIAL LAW – Award interpretation – relevant principles to be applied – meaning and application of status quo provision in the award – what is an “issue” pursuant to the award
INDUSTRIAL LAW – conciliation – objection to exercise of arbitration powers by member who conciliated – Industrial Relations Act s 173 – whether s 173 applies – recusal for apprehended bias
UNFAIR DISMISSAL – termination for serious misconduct – garbage collector riding on back of truck – deliberate non-compliance with direction – nature and seriousness of conduct - over 40 years’ service – previous Code of Conduct breach relevant – applicant lacked insight into seriousness of his conduct – dismissal not harsh, unreasonable nor unjust
EMPLOYMENT AND INDUSTRIAL LAW – Contract determinations – Variation – application to vary Transport Industry – General Carriers Contract Determination 2017 to include term providing for payment of road tolls and charges – application not opposed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – decision by employer not to award discretionary salary increase to employee – whether employee’s performance was due to matters outside his control – whether Commission should direct employer to pass on increase with back-pay
VICTIMISATION – allegations of misconduct – threatened dismissal – unfair dismissal application – order made restraining dismissal – further 15 allegations of misconduct – victimisation application – notice of motion to dismiss victimisation application
PUBLIC SECTOR DISCIPLINARY APPEAL – termination of employment – appellant engaged as a gardener – employee terminated as though he was in probation – employee not given an opportunity to address concerns with respect to his conduct and behaviour – conduct and behaviour concerns of the respondent substantiated – employee acted unprofessionally and resisted performance planning process – termination not appropriate - appeal allowed
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – application for new award to compensate employees for loss of on call allowance and overtime following workplace changes – whether special case made out for making of award
Judgment of
Chief Commissioner Constant, Commissioner Murphy and Commissioner Sloan
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – application for a new award – award would have the effect of displacing the exclusion of the County of Yancowinna from 29 other awards of the Commission – legal principles to apply – application of Wage Fixing Principles – question of onus – whether onus discharged by identification of another award of the Commission which would, but for its coverage terms, apply to the employees – whether the County of Yancowinna exclusion in an award is a “condition of employment” – whether the County of Yancowinna exclusion in those awards ought to be overridden – determination of terms and conditions of new award – terms to be derived in part from other awards
Unfair Dismissal - Interlocutory proceedings – Orders sought to stay application during the currency of any criminal appeal proceedings – relevant principles to apply – interests of justice – public interest - prejudice to both parties - stay ordered until Court of Criminal Appeal matter concluded
EMPLOYMENT AND INDUSTRIAL LAW – Awards – applications for increases to salaries and salary-related allowances in 41 awards – discretion of Commission to award increases – principles to apply in setting award conditions – whether awards provide fair and reasonable conditions of employment – whether increases necessary to ensure awards continue to provide fair and reasonable conditions of employment – whether historical increases are a relevant consideration – extent to which the state of the economy of NSW affects determination of award terms
Judgment of
Chief Commissioner Constant, Commissioner Murphy and Commissioner Sloan
UNFAIR DISMISSAL – shift swaps – investigation – whether applicant had verbal approval from Supervisor – whether applicant engaged in a serious form of misconduct for personal gain – application granted
POLICE – application for review of disciplinary order – allegations of sexual harassment admitted – serious misconduct – mitigating circumstances – reduction in rank and disciplinary transfer – application allowed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – leave to appeal – settlement of unfair dismissal application negotiated during first instance proceedings – whether appellant should be held to the terms of settlement – no error in decision under appeal
PUBLIC SECTOR DISCIPLINARY APPEAL – demotion from Deputy Manager, ComSafe Training Services, Operational Support Level 3 to Senior Firefighter – settlement reached – Deed of Release – demotion altered to Assistant Equipment Management Officer role, Operational Support Level 2 – appellant initially placed in Technical Officer role, Operational Support Level 2 – whether respondent had repudiated the Deed – whether the Deed constitutes a bar to the appellant pursuing his disciplinary appeal
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – dismissal for poor performance – whether dismissal harsh, unreasonable or unjust – failure by employer to follow award disciplinary procedures – termination of employment unreasonable – consideration of remedy
EMPLOYMENT LAW – industrial dispute – reasonable overtime – regular overtime on weekends – operational needs - personal circumstances – impact on other employees – sufficient notice – no risk to health and safety - overtime not unreasonable
UNFAIR DISMISSAL – casual classroom teacher – allegations he exposed offensive images on a computer to two female students – abusive and insulting communications with investigators – dismissal not harsh unjust or unreasonable
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – jurisdiction – whether applicant was “constructively dismissed” – outline of principles – termination found to be resignation – application out of time – whether discretion to accept application out of time would have been exercised in any event
APPEAL – respondent seeks order dismissing the appeal for want of due despatch – ability of appellant to prosecute the appeal – lack of medical/psychological evidence – order made – appeal dismissed
EMPLOYMENT LAW – stand down – COVID-19 – no useful work for employees – no act or omission of the applicant - seriousness of the orders sought - public interested favours discretion being exercised
Occupational Health and Safety Act 1983 - s 16(1) and s 50(1) - construction site connected to main road by narrow laneway - laneway used by heavy trucks and trucks with trailers to remove excavated material - movement of trucks to and from the site alleged to be a risk to safety of pedestrians and vehicular traffic - pedestrian with sight disability hit and killed on footpath outside building site - whether footpath and vicinity of laneway outside site was employer's place of work - police investigation holds pedestrian responsible - improvement notices require signs to warn traffic and pedestrians - s 53 defences - whether accident avoidable - defences not proved - defendants found guilty. Statutes - interpretation - meaning and extent of "place of work" in s 16 Occupational Health and Safety Act 1983 Words and Phrases - "place of work" - s 16 Occupational Health and Safety Act 1983
PUBLIC SECTOR DISCIPLINARY APPEAL – three allegations of misconduct against Duty Operations Manager – one allegation substantiated by employer – temporary reduction in classification for 12 months imposed – allegation not proven to requisite standard of proof on the evidence before the Commission – appeal allowed
EMPLOYMENT AND INDUSTRIAL LAW - Application for relief from victimisation -– presumption displaced in respect of dismissal – presumption not displaced in respect of other detriments – compensation awarded
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Jurisdiction – Unfair Dismissal Claim – whether applicant required to provide undertaking not to pursue in future an application for reinstatement under Workers Compensation legislation – whether refusal by applicant to provide undertaking deprives Commission of jurisdiction
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – motion to set aside summons to produce – relevant principles – whether documents sought for a legitimate forensic purpose – whether confidentiality and public interest should preclude disclosure
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – application for interim order – whether proposed order of a kind the Commission is “authorised to make”
EMPLOYMENT AND INDUSTRIAL LAW - victimisation – extension of time granted – Respondent raised objection to out of time on first day of hearing - failure of the Respondent to call decision maker – reverse onus not discharged – compensation awarded
EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Dismissal – escape of detainee through open court door – whether Sheriff’s Officer committed misconduct by leaving the door open and in his subsequent reporting of the incident – whether misconduct warranted termination of employment
UNFAIR DISMISSAL – casual employee - regular and systematic basis for a sequence of periods of employment during a period of at least 6 months – reasonable expectation of continuing employment with the employer
EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Dispute orders – contract carriers – failure by principal contractor to pay in accordance with the Transport Industry – Excavated Materials, Contract Determination – orders for payment of money
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – unfair dismissal claim – settlement reached before arbitration – whether the settlement was a binding agreement – whether there were grounds to find the applicant should not be bound
AWARD INTERPRETATION – principles - medical officers on call – whether telephone discussions with on call officer constitute remote clinical appraisals – distinction between remote clinical appraisal and clinical advice or discussion – entitlement to payment for remote clinical appraisal depends upon meeting all of the criteria specified in the award
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – registered nurse dismissed for accessing patient records without clinical justification and dishonesty – whether dismissal harsh, unreasonable or unjust – consideration of remedy to be ordered
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – exclusions from jurisdiction – probationary employment – dismissal after end of probation period – whether exclusion applies if employee on sick leave when probation period ends – whether alleged intention of employee to delay dismissal until after probation period affects application of exclusion
UNFAIR DISMISSAL – jurisdictional objection – applicant engaged on a temporary contract for a specified period of two years – employment terminated by effluxion of time – no dismissal by employer – application dismissed
POLICE – removal of police officer – review of removal order – admissions by applicant – dispute as to specific alleged facts - whether decision to remove harsh, unreasonable or unjust
APPEAL – principles governing leave to appeal – decision at first instance varied award on application of employer for creation of new classification – no error disclosed in decision – leave to appeal refused
INDUSTRIAL DISPUTE – Notice of Motion to dismiss proceedings on the basis that they are frivolous – real questions of fact and law to be determined – Notice of Motion dismissed
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – application to dismiss proceedings – whether proceedings frivolous or vexatious – whether Civil Procedure Act 2005 (NSW) requires proceedings to be dismissed – whether notifier should be required to commence fresh proceedings – whether Commission should hear the “questions for determination” posed by the notifier
INDUSTRIAL DISPUTE –- Health Employees Conditions of Employment (State) Award 2019 - Mortuary Technicians working within Forensic Mortuaries operated by NSW Health Service, NSW Health Pathology Employment Division - agreement on inclusion of two new classifications, Forensic Mortuary Technician and Senior Forensic Mortuary Technician – variation to Clause 12, Special Working Conditions to exclude payment of handling nauseous linen allowance - requirements of Industrial Relations Act 1996 considered – Award varied
INDUSTRIAL DISPUTE –- Health Employees (State) Award 2019 - Mortuary Technicians working within Forensic Mortuaries operated by NSW Health Service, NSW Health Pathology Employment Division - agreement on inclusion of two new classifications, Forensic Mortuary Technician and Senior Forensic Mortuary Technician – requirements of Industrial Relations Act 1996 considered – Award varied
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Approval and creation – discretion of Commission to award increases – whether Commission required to award increases to salaries and salary-related allowances each year – s 146C Industrial Relations Act 1996 (NSW) – cl 6(1)(a) Industrial Relations (Public Sector Conditions of Employment) Regulation 2014
Judgment of
Chief Commissioner Constant, Commissioner Murphy and Commissioner Sloan
EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Interpretation – whether Award limits field officers at certain grades to operating “minor plant” – meaning of “minor plant” – whether Award precludes employer requiring field officers at certain grades to obtain, hold and utilise a medium rigid vehicle licence
PUBLIC SECTOR DISCIPLINARY APPEAL – first and final warning – allegations of misconduct – failure to comply with a lawful and reasonable direction – making vexatious allegations against work colleagues – misconduct struck at the heart of the employment relationship – termination of employment warranted – appeal disallowed
APPLICATION FOR RELIEF FROM VICTIMISATION – motion by respondent to dismiss or set aside application – victimisation claim out of time – applicant not an ‘employee’ to whom ss. 210 and 213 apply – implied repeal/exclusive code – application by Police Association for leave to intervene granted
EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Disciplinary action – motion for summary dismissal of appeal against disciplinary action – whether appellant excluded from Ch 2 Pt 7 of Industrial Relations Act 1996 (NSW) by virtue of memoranda of understanding between unions and the Department in place as at 1 July 2010 – s 92(1)(b) – whether appeal discloses an appealable decision – ss 91(1), 97(1) and 98 – whether respondent estopped or otherwise prevented from bringing jurisdictional challenge
UNFAIR DISMISSAL - application made out of time – principles – matters to be considered in exercise of discretion – availability of remedy to employee limited by sub-s 21(6) Education (School Administrative and Support Staff) Act 1987 – hardship to employee and employer considered – application accepted
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – motion to set aside summons to produce – relevant principles – whether documents sought for a legitimate forensic purpose – whether summons a fishing expedition
EMPLOYMENT AND INDUSTRIAL LAW – awards and agreements – application for approval of enterprise agreement – preserved sick leave payout entitlements – flexibility to use sick leave before retirement – inclusion of clause to enable leave to be taken in unusual circumstances, such as major floods, pandemics or operational close downs – previous enterprise agreement rescinded - enterprise agreement approved
APPEAL – principles governing leave to appeal – award interpretation – Sexual Assault Workers performing out of hours work – telephone counselling service – “intake duties” – “return to duty” – on call allowance – call out allowance
Judgment of
Chief Commissioner Constant, Commissioner Murphy and Commissioner Webster
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