Briginshaw v Briginshaw [2008] NSWIRComm 221 | Case summary

Industrial Relations Commission (NSW)|2008-07-01|Before: Schmidt J, Grayson DP, Centre J

The applicant, Mr Elvin Brian Brown, shall be re-employed within 21 days of this decision, on the following conditions: a) the applicant shall be on probation for a period of six months commencing from the date of his re-employment; b) the applicant shall undergo retraining on the Department's Use of Force Guidelines as soon as it can be arranged; and

c) the applicant's personnel file shall record, that as a consequence of this decision, he is on a final warning.

89 The parties also complained that it was not apparent what 'probation' meant in the order made. Given that Mr Brown was a public servant and the provisions of the Public Sector Employment and Management Act which deal with probationary employment, that the Commission had the power to make such an order, was also in question. (See s 23 Appointments on probation.) 90 It is unnecessary to further consider this aspect of the appeals. Suffice it to observe that this was another reason why leave to appeal his Honour's decision had to be granted. Orders 91 For the reasons given, we make the following orders:

Leave to appeal is granted in both the appeal and cross appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Members of the Service are appointed pursuant to the Act and their rights must be ascertained by reference to its provisions. The relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute: see, eg, Gould v Stuart [1896] AC 575, at p 577; Carey v The Commonwealth [(1921) 30 CLR 132, at p 137; Lucy v The Commonwealth (1923) 33 CLR 229, at pp 238, 249, 253. However, the contractual nature of the relationship has not been universally accepted: see, eg, Monckton v The Commonwealth (1920) 27 CLR 149, at pp 155, 156; Lucy v The Commonwealth (1923) 33 CLR, at p 244; Geddes v Magrath; Morgan v Geddes (1933) 50 CLR 520, at pp 533- 534; The Commonwealth v Welsh (1947) 74 CLR 245, at pp 262, 274; and cf Ryder v Foley (1906) 4 CLR 422, at 440. And sometimes an espousal of one view rather than the other has been avoided: see, eg, Reilly v The King [1934] AC 176, at p 180; Kodeeswaran v Attorney-General (Ceylon) [1970] AC 1111, at p 1118. If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions.

Briginshaw v Briginshaw

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