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
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