Commissioner of the NSW Fire Brigades v NSW Fire Brigade Employees Union

Industrial Relations Commission (NSW)|2009-07-01|Before: Boland J, Grayson DP, Haylen J, Mr J

CITATION: Commissioner of the NSW Fire Brigades v NSW Fire Brigade Employees Union (on behalf of Levy) [2009] NSWIRComm 138

Commissioner of the NSW Fire Brigades (Appellant) PARTIES: NSW Fire Brigade Employees Union (on behalf of Michael Levy) (Respondent)

CORAM: Boland J President; Grayson DP; Haylen J

CATCHWORDS: STATUTORY INTERPRETATION - appeal - Government and Related Employees Tribunal Act 1980 (GREAT Act) ss 23, 24, 25, 31 - Industrial Relations Act 1996 (IR Act) ss 83, 90 - Industrial Relations (General) Regulation 2001 cl 6 - notice of appeal filed under GREAT Act - reasonableness of six months' probation raised as preliminary issue - Tribunal satisfied period of probation reasonable and therefore no jurisdiction to further hear appeal - employee then commences unfair dismissal proceedings under provisions of IR Act - at first instance held that application in Commission jurisdictionally competent - issue of reasonableness of probation to be dealt with in context of all the circumstances of case - on appeal held that s 25(3) GREAT Act precluded the same question as determined by the Tribunal from being dealt with and ruled upon again under the IR Act - in both jurisdictions reasonableness of probationary period in excess of three months a prerequisite to further proceedings - leave to appeal granted - appeal upheld - unfair dismissal application under IR Act struck out.

STATUTORY INTERPRETATION - Industrial Relations Act 1996 - s 83 - Industrial Relations (General) Regulations 2001 cl 6 - whether reasonableness of probationary period to be considered as a threshold issue in application involving annulment or termination.

Fire Brigades Act 1989 LEGISLATION CITED: Government and Related Employees Appeal Tribunal Act 1980 Industrial Relations Act 1996

Attorney General's Department of NSW v Dafkovski [2007] NSWIRComm 94; (2007) 164 IR 268 CASES CITED: Murrell v South Eastern Sydney Area Health Service [2005] NSWIRComm 7 Public Employment Office, Dept of Corrective Services v Boda [2006] NSWIRComm 1; (2006) 150 IR 169

Mr M Kimber SC with Mr M Easton of counsel (Appellant) Crown Solicitor LEGAL REPRESENTATIVES: Mr J Nolan of counsel with Ms G Lawrence of FBEU (Respondent) instructed by New South Wales Fire Brigade Employees Union

COMMISSIONER OF THE NSW FIRE BRIGADES AND NSW FIRE BRIGADE EMPLOYEES UNION (ON BEHALF OF MICHAEL LEVY)

Application by Commission of the NSW Fire Brigades for leave to appeal and appeal against a decision of Commissioner Connor given on 2.4.2009 in matter No IRC 2000 of 2008

1 The Commissioner of the New South Wales Fire Brigades ('NSWFB') seeks leave to appeal and to appeal against a decision given by Commissioner Connor in which the Commissioner concluded that there was jurisdiction to hear an application for reinstatement filed by the New South Wales Fire Brigade Employees' Union ('FBEU') on behalf of its member, Mr Michael Levy. 2 In mid-February 2008, Mr Levy commenced full-time employment as a recruit firefighter after having served on a part-time basis as a recruit firefighter since May 2006. Clause 13.3 of the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2005 provided that recruit firefighters 'shall be on probation until they have progressed to Firefighter Level 1, or for a period of six months, whichever is the lesser'. Mr Levy's letter of appointment dated 30 January 2008 stated: You are advised that your probationary period is the period of Recruit Training ie 16 weeks. This period may be extended up to a period of 26 weeks. 3 Later in the letter of appointment, the following statement appeared: Enclosed in this employment pack is an Appointment Acceptance and Employment Contract you are required to sign accepting the conditions and responsibilities outlined above. 4 The letter of appointment, while noting that each firefighter was employed under 'the auspices' of the Fire Brigades Act 1989 and the Fire Brigades Regulation 2003, made no mention of the terms of the 2005 award. 5 Mr Levy, as required, did sign and return to the NSWFB the document enclosed with his letter of appointment, headed 'NSW Fire Brigades Appointment Acceptance and Employment Contract (Form 1)'. That document contained, inter alia, the following: (ii) Agree with the contents of the Employment Agreement and the terms and conditions of service applicable to a Firefighter employed with the New South Wales Fire Brigades as contained in the Crown Employees (NSW Fire Brigades Firefighting Staff) Award 2005, the Fire Brigades Act 1989, the Fire Brigades (General) Regulation 2003 and the Policies, In-Orders and Standing Orders of the New South Wales Fire Brigades; (iii) Agree that I have accepted the New South Wales Fire Brigades offer of employment which requires my undertaking and successful completion of all New South Wales Fire Brigades Training and Education Programs conducted at the New South Wales Fire Brigades State Training College at Alexandria. 6 Mr Levy's appointment, however, was annulled at the conclusion of six months, allegedly because of his inability to complete the required training to perform fire fighting duties, such training necessitating the completion of a Certificate 2 course provided by the NSWFB. A criminal conviction for dangerous driving and the loss of his licence was asserted to mean that that Mr Levy was unable to complete the course. Mr Levy commenced proceedings under the Government and Related Employees Appeal Tribunal Act 1980 No 39 ('GREAT Act') and was represented in those proceedings by a solicitor from his union. The Notice of Appeal specified the decision appealed against as the annulment of Mr Levy's appointment: the relief sought was withdrawal of the annulment and/or reinstatement and/or progression to Level 1 Firefighter and/or reimbursement of lost earnings. 7 In proceedings before the Tribunal, the NSWFB raised a jurisdictional question arguing that the effect of s 24(3)(b) of the GREAT Act prevented Mr Levy appealing to the Tribunal because the period of six months' probation was reasonable having regard to the nature and circumstances of his employment and the statutory provisions in relation to the probationary appointment. The Tribunal upheld the employer's submission that the six-month duration of the probationary period was reasonable and, therefore, it followed that thereafter the Tribunal lacked jurisdiction to hear Mr Levy's application for reinstatement. 8 Shortly after the publication of the Tribunal's decision, Mr Levy and the FBEU filed an application for relief in relation to unfair dismissal under the Industrial Relations Act 1996 seeking, amongst other relief, reinstatement in his former position. In that application Mr Levy indicated that he was being represented by his union, the FBEU. At the same time the FBEU notified a dispute under s 130 of the Industrial Relations Act where the Union alleged that Mr Levy's dismissal was improper, procedurally unfair and manifestly unreasonable. The termination of employees by the NSWFB without reference to procedural fairness safeguards contained within the Fire Brigades Regulation 2003 was specifically raised for consideration by the FBEU. Both the dispute and the application alleging Mr Levy's termination to be unfair were the subject of conciliation proceedings that were unsuccessful in resolving the matters raised by the FBEU. 9 The unfair dismissal proceedings were then listed before Commissioner Connor to deal with the preliminary issue raised by the NSWFB challenging the Commission's jurisdiction to deal with that application. The essence of the issue raised by the NSWFB in those proceedings was that, by operation of s 25(3) of the GREAT Act, the Commission lacked jurisdiction because Mr Levy had appealed to the Tribunal under s 24 and, therefore, was not able to institute other proceedings nor were proceedings regarding the same decisions able to be instituted on his behalf under any Act or law or an industrial award or agreement. The Commissioner rejected that argument, noting that the effect of the decision of the Tribunal was that it had no jurisdiction to hear the application and, therefore, Mr Levy had never been heard. In addition, Commissioner Connor found the precedents that bound him in the exercise of the Commission's jurisdiction under Ch 2, Pt 6 of the Industrial Relations Act resulted in different considerations arising in dealing with Mr Levy's application for reinstatement. In the circumstances, Commissioner Connor was satisfied that, the FBEU having taken steps to properly pursue Mr Levy's claim for reinstatement, it was an appropriate case to extend the time to file an application under Ch 2, Pt 6 of the Industrial Relations Act. 10 By reference to judgments in this Commission, including Full Bench judgments, Commissioner Connor concluded that any probationary period beyond what was reasonable, in having regard to the provisions of reg 6(1)(c)(ii) of the Industrial Relations (General) Regulation 2001, was a factor that had to be taken into account when ultimately assessing the fairness or unfairness of the dismissal. While he readily conceded that he was not entitled to intrude into any decision of the Tribunal, it was also his view that a different approach was required under the Industrial Relations Act. In particular, the Commissioner formed the view that a member of the Commission had to address the merits of the claim and that, it was only in the context of all the circumstances that the reasonableness of the probationary period could be properly assessed. Having regard to those matters, the Commissioner found that the application by the FBEU lodged on behalf of the Mr Levy under Ch 2, Pt 6 of the Act was 'jurisdictionally competent'. 11 In these appeal proceedings the NSWFB seeks to set aside the finding as to jurisdiction made by Commissioner Connor, although the grounds of appeal cover numerous matters. The fundamental point raised on the appeal, however, is that Commissioner Connor failed to consider the operation of s 25(3) of the GREAT Act and further, properly construed and applied, s 25(3) as a matter of jurisdiction, precluded the Industrial Relations Commission from proceeding to hear and determine the application for Mr Levy's reinstatement. A further issue of significance is whether s 83(2) of the Industrial Relations Act, together with cl 6 of the Industrial Relations (General) Regulation, requires the reasonableness of a six-month period of probation to be determined as a threshold issue or whether a member of the Commission is at liberty to consider that matter as part of the overall unfairness of the termination. These central points of the appeal necessarily raise questions of statutory construction and have the potential to affect many appeals or applications that may be brought under either the GREAT Act or the Industrial Relations Act. In such circumstances it is appropriate that leave to appeal be granted in relation to these issues.

12 In order to determine the primary matters raised on appeal, it is necessary to consider the relevant statutory framework. The relevant provisions of the GREAT Act are as follows: Division 2 - Disciplinary appeals 23 Notice of certain decisions etc (1) Where, in relation to an employee, an employer makes a decision: (a) to defer, for a period in excess of 6 months, the payment of an increment to the employee, (b) to reduce the rank, classification, position, grade or pay of the employee, (c) to impose a fine or forfeit pay, (d) to annul the appointment of an employee appointed on probation, (e) to suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravention of any law or any rule or direction of the employer, (f) to dismiss the employee, or (g) to direct or to require the employee to resign, the employer shall, except as may be otherwise provided by an order made under subsection (3), give the employee notice, in writing, of the decision as soon as practicable after the decision is made.

24 Right of appeal (1) Notwithstanding anything contained in any other Act, an employee may, subject to and in accordance with this Part, appeal to the Tribunal against a decision of his or her employer, being a decision of a kind referred to in section 23 (1). (2) Such an appeal may be made on the ground that the decision appealed against was made substantially in reprisal for a protected disclosure within the meaning of the Protected Disclosures Act 1994 . (3) However, employees of the following classes cannot appeal to the Tribunal against a decision of a kind referred to in section 23 (1) (d), (f) or (g): (a) employees engaged under a contract of employment for: (i) a specified period of time that is less than 6 months, or (ii) a specified task that is of less than 6 months duration, (b) employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either: (i) the period, or the maximum duration, is 3 months or less, or (ii) if the period, or the maximum duration, is more than 3 months - the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment and the statutory provisions relating to the probationary appointment of the employee concerned, (c) employees engaged on a casual basis for a short period except those who: (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and (ii) would, but for the decision of the employer, have had a reasonable expectation of continuing employment with the employer.

25 Alternative rights of appeal (1) Nothing in section 24 derogates from or otherwise affects any right of appeal an employee may have, or other proceedings which may be instituted by the employee or on his or her behalf, under any other Act or law or any industrial award or agreement (whether enacted, existing or made before, on or after the day appointed and notified under section 2 (2)) in respect of a decision of a kind referred to in section 23 (1). (2) Where: (a) an employee elects, in writing, to forgo a right of appeal under section 24 in respect of a decision of a kind referred to in section 23 (1), or (b) an employee makes an appeal or institutes other proceedings or proceedings are instituted on the employee's behalf in respect of a decision of a kind referred to in section 23 (1) under an Act or law or an industrial award or agreement referred to in subsection (1), the employee may not thereafter appeal to the Tribunal under section 24 in respect of that decision. (3) Where an employee appeals to the Tribunal under section 24 in respect of a decision of a kind referred to in section 23 (1), the employee may not thereafter, in respect of that decision, appeal or institute other proceedings or proceedings may not be instituted on his or her behalf under an Act or law or an industrial award or agreement referred to in subsection (1). 13 The relevant provisions of the Industrial Relations Act are as follows: Application of Part 83 (1) [Application of Part] This Part applies to the dismissal of: (a) any public sector employee, or

(b) any other employee, except an employee for whom conditions of employment are not set by an industrial instrument and whose annual remuneration is greater than $62,200 (or such greater amount as is prescribed by the regulations). (1A) This Part applies to the dismissal of an employee even if the person was employed in this State under a Federal award. However, this Part does not apply to the dismissal of any such employee if: (a) the person is entitled to make an application to the Australian Industrial Relations Commission with respect to the dismissal on the ground that it was harsh, unjust or unreasonable, or (b) the person would have been entitled to make such an application but for the exclusion of the person from the relevant provisions of the Workplace Relations Act 1996 of the Commonwealth (being an exclusion of a kind referred to in subsection (2)). (2) [Employee exempted by regulations] This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes: (a) employees engaged under a contract of employment for a specified period of time or a specific task, (b) employees serving a period of probation or qualifying period, (c) employees engaged on a casual basis for a short period, (d) employees whose terms and conditions of employment are governed by special arrangements providing particular protection in respect of termination of employment either generally or in particular circumstances, (e) employees in relation to whom the operation of the provisions of this Part causes or would cause substantial problems because of: (i) their particular conditions of employment, or (ii) the size or nature of the undertakings in which they are employed. ... (5) In this Part: dismissal includes: ... (b) in the case of a public sector employee - dispensing with the services of the employee, dismissing the employee as a consequence of disciplinary proceedings against or the commission of an offence by the employee or annulling the appointment of the employee. …

90 The Commission must not determine an applicant's claim by making an order under section 89 if: (a) another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and (b) the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument. 14 The Industrial Relations (General) Regulation relevantly provides: [cl 6] Other exemptions from unfair dismissal provisions 6 (1) For the purposes of section 83 (2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act: (a) employees engaged under a contract of employment for a specified period of time, if the specified period is less than 6 months, (b) employees engaged under a contract of employment for a specific task, (c) employees serving a period of probation or qualifying period, if the duration of the period, or the maximum duration of the period, is determined in advance and either: (i) the period, or the maximum duration, is 3 months or less, or (ii) if the period, or the maximum duration, is more than 3 months-the period, or the maximum duration, is reasonable having regard to the nature and circumstances of the employment, (d) employees engaged on a casual basis for a short period except employees who: (i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least 6 months, and (ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer. 15 The initial question raised on appeal is whether the operation of s 25(3) of the GREAT Act precludes Mr Levy and the FBEU bringing or continuing with the unfair dismissal proceedings filed in this Commission. The question is, therefore, one of statutory construction, albeit, one that has been dealt with to some extent by previous Full Benches. In the present appeal the issue crystallises into a consideration and analysis of the proceedings before the Tribunal and a determination as to the point at which it can be held that the proceedings before the Tribunal constitute an appeal to that Tribunal under s 24 in respect of a decision of the type referred to in s 23(1), that is, in this case, a decision to annul the appointment of Mr Levy who was appointed on probation or a decision to dismiss Mr Levy. 16 Before Commissioner Connor and on appeal, the FBEU accepted that the policy behind s 25(3) of the GREAT Act was to avoid a duplicity of proceedings and, in effect, required applicants/appellants to decide whether to proceed either in the Commission or in the Tribunal. That understanding reflects the Second Reading Speech introducing the provisions and has been accepted at Full Bench level (see Public Employment Office, Dept of Corrective Services v Boda [2006] NSWIRComm 1; 150 IR 169 and Attorney General's Department of NSW v Dafkovski [2007] NSWIRComm 94; 164 IR 268 at [27] cf [34-35]). The FBEU proceeds from the Full Bench decision in Dafkovski establishing the proposition that the mere filing of an appeal in the Tribunal did not activate the exclusion found in s 25(3) of the GREAT Act. In that case, after an appeal had been filed but before any other steps had been taken in the appeal (including conciliation), the appeal was withdrawn and proceedings for relief under Pt 2, Ch 6 of the Industrial Relations Act were commenced. In essence, the Full Bench determined that the mere filing of an appeal did not amount to "an appeal" to the Tribunal under the GREAT Act. The Full Bench left open the question, as being unnecessary to decide in that case, whether a fully argued appeal that was reserved for determination would amount to such an 'appeal' under s 25(3) of the GREAT Act if at that point, the appeal before the Tribunal was withdrawn and proceedings commenced in the Commission under Pt 2, Ch 6 of the Industrial Relations Act. The FBEU accepted that the case before the Commission fell into that uncharted territory left open by the Full Bench in Dafkovski. 17 Before the Commissioner, the FBEU argued that it was a significant factor that Mr Levy's case before the Tribunal was not heard on its merits and because it was struck out on jurisdictional grounds, it was, therefore, found that he had no right of appeal to the Tribunal. On this analysis there was no appeal to the Tribunal and having received that ruling, there could be no duplicity of proceedings by commencing new proceedings in the Industrial Relations Commission. Before Commissioner Connor, the FBEU categorised the proceedings in the Tribunal as being no more than a 'preliminary skirmish' or a 'pre-trial proceeding', that was separate from the substantive appeal, being an appeal on the merits. There could be no duplicity of proceedings, it was submitted, because the hearing could no longer continue in the Tribunal. 18 These submissions were repeated on appeal with emphasis being placed upon the words 'cannot appeal' appearing in s 24(3) of the GREAT Act. Because specified classes of probationary employees 'cannot appeal' under the GREAT Act, it was said to follow that the true effect of the Tribunal's decision was that Mr Levy had no appeal to the Tribunal and further, that he had not appealed to the Tribunal so as to be caught by the provisions of s 25(3) of the GREAT Act. Approached in this way, it was submitted that the Commission could not be engaged in determining an appeal already decided by the Tribunal. This approach was said to be confirmed by considering the different mode of expression chosen by the legislature in enacting s 90 of the Industrial Relations Act. 19 There are a number of difficulties in the way of accepting these propositions and those adopted by Commissioner Connor in determining that the unfair dismissal claim was one within jurisdiction and one that could be properly heard by the Commission. There is no doubt that s 25(3) of the GREAT Act and s 90 of the Industrial Relations Act reflect a legislative intention to prohibit the duplicity or multiplicity of proceedings in relation to unfair dismissals (including the annulment of an appointment made on probation). There was no basis for the Commissioner to conclude from the legislative scheme or from any Full Bench authority that the legislature had, in any way relevant to this question, accorded primacy to applications and proceedings in the Commission as against proceedings on the same question brought in the Tribunal or under other statutory review regimes. Section 25(3) of the GREAT Act clearly and unequivocally states that, where an employee appeals to the Tribunal under s 24, in respect of a decision to annul the appointment or to dismiss the person from employment, then the employee may not thereafter 'in respect of that decision' appeal or institute other proceedings on that issue and that further proceedings may not be instituted on his or her behalf under an Act, law or an industrial award or agreement. The prohibition is absolute and comprehensive. Once it is able to be determined that there was an appeal to the Tribunal in relation to a decision to terminate or annul an appointment, then that decision cannot be the subject of further proceedings in the Industrial Relations Commission. 20 What then is the proper categorisation of the proceedings before the Tribunal taken by Mr Levy with the support of his union? The decision that Mr Levy appealed against under the GREAT Act was the termination of his employment either by way of dismissal or annulment. Being an employee on probation for 16 weeks or a maximum of 6 months, the issue that the Tribunal had to determine was whether, under s 24(3)(b)(ii), the probation period or its maximum duration was reasonable having regard to the nature and circumstances of the employment and the statutory provisions relating to the probationary appointment of the employee concerned. 21 In determining the effect of s 24(3)(b)(ii) of the GREAT Act it is significant that, if Mr Levy or his union had commenced proceedings under the Industrial Relations Act, he would have faced the same issue regarding probation because s 83(2) provided that Pt 2 did not apply to an employee exempted from the Part by the regulations. Here, the class of employees so exempted were those serving a period of probation or a qualifying period. Clause 6 of the Industrial Relations (General) Regulation made an almost identical provision for exemption from unfair dismissal provisions as found in s 24(3) of the GREAT Act. In either jurisdiction, therefore, Mr Levy and his union were faced with the requirement to demonstrate that the period of probation was not reasonable in order to proceed with a review of the merits of the termination. Mr Levy and his union have had that opportunity and have fully availed themselves of the opportunity of having that matter heard and ruled upon by way of determination of the Tribunal under the GREAT Act. That issue is of such significance in the scheme of review under both Acts that it cannot appropriately be described as merely a preliminary skirmish or a pre-trial issue unconnected with the substance of the matter. The restrictive provisions affecting persons on probation seeking to have their termination reviewed makes that status an integral part of the right of review, notwithstanding that it is a requirement that should normally be determined at the beginning of the proceedings and before merit issues about the termination are considered. To treat this fundamental issue as being unconnected to any 'appeal' in GREAT offends the language adopted by the legislature and, moreover, serves to displace the clear policy against the duplicity of proceedings. 22 The contention that the reasonableness of the period of probation is not part of the 'appeal' to be dealt with by the Tribunal is untenable and not an approach finding support in the language adopted by the Legislature.

Section 23(1)(d) of the GREAT Act allows an appeal against the annulment of an appointment made on probation. That is the effect of the appeal filed by Mr Levy. The right of appeal given by s 24 of the GREAT Act requires employees on probation for three months or longer to demonstrate that the period of probation was not 'reasonable' before being able to have any further matters considered. Section 31 of the GREAT Act treats such a notice as an 'appeal' and requires the Senior Chairperson to consider whether any issue of law or procedure 'arising in relation to the appeal' should be dealt with prior to or without proceeding to a hearing of the appeal. Thus, it was determined that Mr Levy's appeal would be listed to deal with the issue of the reasonableness of his probation, being a matter 'arising in relation to the appeal'. At all relevant times Mr Levy had an 'appeal' before the Tribunal, namely, on appeal against the reasonableness of his period of probation and potentially an appeal against the annulment of his appointment. The process was no less of an appeal simply because failure on the reasonableness point prevented further proceedings: these two aspects were inseparably part of the same appeal. 23 The duplicity of the two proceedings brought by or on behalf of Mr Levy is exposed by the requirement for the Commission to hear and determine the fundamental issue of 'reasonableness' - a question already determined on appeal by the Tribunal. In construing these provisions it is highly unlikely that the legislature, in recognition of the ability to have a choice of forum, contemplated that its policy against duplicity of proceedings once an election was made would, nevertheless, allow the same question to be heard and determined twice, thus opening up the prospect of different findings on the same question of reasonableness. It has long been accepted that the consequences of giving a particular meaning to a statutory provision is a proper consideration in construing statutes (see Statutory Interpretation in Australia - 6th ed - D C Pearce and R S Geddes - Butterworths). 24 Having regard to this analysis of the statutory provisions it follows that s 25(3) of the GREAT Act operates to prohibit further proceedings in this Commission by Mr Levy and or his union in relation to his termination. There is no suggestion that, if he had succeeded on this issue, he would not have pursued reinstatement in the Tribunal. This aspect of the appeal by the NSWFB must, therefore, be upheld and the decision of Commissioner Connor set aside. 25 The second issue is whether s 83(2) of the Industrial Relations Act (and by extension, s 24(3) of the GREAT Act) requires a determination of the reasonableness of probationary periods in excess of three months prior to a consideration of the general merits of the application and the relief sought. Section 24(3) of the GREAT Act lays down classes of employees who 'cannot appeal to the Tribunal' while s 83(2) of the Industrial Relations Act refers to employees 'exempted' by the regulations from being able to bring unfair dismissal proceedings. The concept of exclusion from the statutory remedies is therefore common to both provisions. 26 A similar issue, arising in the context of s 108A of the Industrial Relations Act, was considered by Boland J (as he then was) in Murrell v South Eastern Sydney Area Health Service [2005] NSWIRComm 7. In that case his Honour stated: [30] A significant issue in these proceedings is whether in light of the provisions of s 108A of the Act the applicant can make an application for relief under s 106, it being contended by the respondent that the applicant's remuneration exceeds the permissible cap of $200,000. The respondent contends that the Court should consider this issue in a preliminary or threshold way. The applicant submits otherwise and asks that it be dealt with as part of the substantive proceedings.

[31] The applicant relies on what it considers to be the differences between the parties as to the relevant facts, the complex factual and legal situation, the novelty of the issue from a legal perspective and the general reluctance of courts to exercise the strike out power where there is a conflict as to matters of fact.

[32] In Virtue , ((1999) 92 IR 428) Wright J, President collected seven principles relating to threshold challenges to jurisdiction. The principles were adopted in Euphoric and in Lahoud . The principles were as follows: (1) The discretion of a court to determine a case at an early stage, when appropriate, has been repeatedly accepted.

(2) As a general rule it is desirable that an objection to jurisdiction be determined as early as circumstances will conveniently admit so that the tribunal does not embark on a hearing which it lacks authority to conduct. The course of a court entertaining a challenge to jurisdiction in a preliminary or threshold way is often a sensible one where a party has a substantial threshold argument which, if it succeeds, will knock out the claim and save the costs and inconvenience that attend a protracted hearing of proceedings on the merits. (3) However, a further general proposition is that all issues arising should be dealt with in the substantive proceedings unless the basis for a challenge, either on jurisdictional grounds, or for lack of a reasonable cause of action, be clearly demonstrated.

(4) Threshold relief of the kind sought here must be conserved to a clear case where it is plain that the invocation of the jurisdiction impugned is wholly misconceived or, upon analysis, lacks an arguable legal foundation. (5) Necessarily, refusal of relief at the threshold will not finally determine that jurisdiction exists for any order which the Court might make between the parties. This is because, to secure relief, the claimants must demonstrate that no order could be made which would be within jurisdiction. The resulting burden is a heavy one. (6) Accordingly, whilst it is desirable for a case to be determined at an early stage it is only open to do so at the appropriate stage of the proceedings. That is, where the facts, either established by evidence or plainly agreed in terms, enable the Court to determine what the contract or arrangement is or, at least, the parameters of the contract or arrangement. In other words, unless the facts are sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the question then the appropriate stage has not been reached for such a determination to be made. (7) Similarly, the jurisdiction to terminate an action summarily for want of a cause of action is to be sparingly employed and ought not to be used save where the lack of the cause of action was clearly demonstrated.

[33] In Lahoud , which the applicant relied upon by way of analogy, the Full Bench determined that the trial judge erred because she did not provide the appellants with the opportunity of adducing evidence as to the issue of whether the "Terms of Settlement" was a contract whereby work is performed in an industry. The appellants had sought to bring evidence that the Terms was a contract within jurisdiction in one of three alternative ways but Glynn J, without receiving evidence as to the alternatives, accepted the characterisation of the Terms submitted by the respondents. [34] The situation in Lahoud was quite different to that with which the Court is presently concerned. Most of the evidence as to the applicant's remuneration has been filed and where it has not that can be overcome by simple directions. Further, it seems to me that if a jurisdictional objection is detached or detachable from the factual and legal issues in the substantive proceedings then in the context of a provision such as s 108A, which provides that an application cannot be made if the remuneration exceeds the prescribed cap, the appropriate stage to deal with the objection is at the threshold.

[35] In the present case the applicant seeks relief because he contends the respondent has, in effect, reneged on an agreement it made with him in 1997 and he has suffered loss as a consequence. The respondent submits that the applicant cannot make the application for relief because at the relevant time he received a remuneration package in excess of $200,000. The issue in the substantive proceedings is quite different from the issue raised in the strike out motion and the evidence necessary to support the application for relief does not seem to me to have any overlap with the issue for determination in the respondent's motion. [36] What the respondent has to demonstrate is that no order could be made which would be within jurisdiction. Although as it was said in Majik Markets and followed in Virtue that the resulting burden is a heavy one, the issue for determination is relatively clear and separate from the main proceedings: Is the applicant prevented from making the application for relief on the grounds that his remuneration package exceeded the statutory limit? That the facts may not be agreed as to his remuneration or that the facts are complex or that the issues raise novel legal questions are not, in my opinion, grounds to defer consideration of the strike out motion to the substantive proceedings given that if the respondent is successful it will "save the costs and inconvenience that attend a protracted hearing of proceedings on the merits": Majik Markets per Kirby P at 446; 170.

[41] The final important point, although not determinative in itself, about whether it is appropriate to deal with the strike out application as a preliminary issue is that s 108A provides that "An application cannot be made for an order under this Division if the contract of employment … (my emphasis)" provides for a remuneration package which exceeds the remuneration cap. I consider the opening words of the section makes a challenge to jurisdiction under s 108A a strong candidate for treatment as a threshold or preliminary matter, subject to a consideration of the principles in Virtue . [42] It is apparent from the opening words of s 108A that the legislature's intention was to preclude the making of applications where an employee received in excess of the prescribed remuneration cap. That is, by introducing s 108A into the Act the Parliament was intending that not only could the Commission in Court Session not make an order under s 106 but also that the employee was prevented from making the application in the first place. The prohibition is something of a fiction because it may not become apparent that the employee's remuneration exceeds the cap until after the application is made and the Court rules on the matter. However, the opening words of s 108A serve to indicate that an application by an employee receiving in excess of the prescribed remuneration cap should not even enter the court system because no relief will be available. [43] That being so, where the Court has before it a strike out application in reliance on s 108A and the facts are sufficiently established to enable the Court to be satisfied it has the necessary material to reach a final decision on the question of whether the remuneration package paid or receivable under the relevant contract during the 12 months preceding the application exceeded $200,000, the opening words of s 108A compel an early consideration of the application. 27 In a similar way to that dealt with in Murrell, it may be expected that, having regard to the statutory language, it would usually be the case that the issue of 'reasonableness' would be dealt with initially as raising a question of jurisdiction. There is the possibility that the issue of 'reasonableness' and questions of merit may, to some extent, become intermingled but that is likely to occur but rarely. Where it does occur to any extent, members of the Commission will be guided by the considerations set out in Murrell. 28 Having regard to these matters, the orders made on appeal are: (a) Leave to appeal is granted; (b) the appeal is upheld and the decision of Commissioner Connor made on 2 April 2009 is set aside; (c) the proceedings commenced by Mr Levy and his union pursuant to the provisions of Ch 2, Pt 6 of the Industrial Relations Act are struck out for want of jurisdiction. _____________________________________

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At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Parties

Cases Cited (6)

Cited By (2)