Newcastle City Council and Bevan [2001] NSWIRComm 338 (12 December 2001)

Last Updated: 31 December 2001

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Newcastle City Council and Bevan [2001] NSWIRComm 338

FILE NUMBER(S): IRC 5519 OF 2000 and IRC 398

HEARING DATE(S): 02/02/2001, 15/02/2001, 16/03/2001, 12/12/2001

EX TEMPORE DATE: 12/12/2001

PARTIES:

APPELLANT

Newcastle City Council

RESPONDENT

Barry Bevan

APPELLANT IN CROSS APPEAL

Barry Bevan

RESPONDENT IN CROSS APPEAL

Newcastle City Council

JUDGMENT OF: Wright J President Walton J Vice-President Connor C

LEGAL REPRESENTATIVES

APPELLANT

Mr B G Docking of counsel

Solicitors: White Barnes

(Mr M J Barnes)

CROSS APPELLANT

Mr C J Fisher

Solicitors: Fisher Cartwright Berriman

RESPONDENT

Mr C J Fisher

Solicitors: Fisher Cartwright Berriman

RESPONDENT IN THE CROSS APPEAL

Mr B G Docking of counsel

Solicitors: White Barnes

(Mr M J Barnes)

CASES CITED: Australian Services Union, New South Wales Branch v Sydney Water Corporation [2001] NSWIRComm 100

Effem Foods Pty Limited t/a Uncle Ben's of Australia v Urban (1988) 81 IR 341

LEGISLATION CITED: Industrial Relations Act 1996 s 84 s 188

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: WRIGHT J, President

WALTON J, Vice-President

CONNOR

Wednesday 12 December 2001

Matter No IRC 5519 of 2000

NEWCASTLE CITY COUNCIL and BARRY BEVAN

Application for leave to appeal and appeal against a decision of Commissioner Redman given on 3 November, 2000 in Matter No IRC 1424 of 2000.

Matter No IRC 398 of 2001

BARRY BEVAN and NEWCASTLE CITY COUNCIL

Application for leave and to extend time to appeal against a decision of Commissioner Redman given on 3 November, 2000 in Matter No IRC 1424 of 2000.

DECISION OF THE COMMISSION

Extempore

[2001] NSWIRComm 338

1    The Commission has been advised by the parties that since this appeal was heard they have compromised their differences concerning the employment of Mr Bevan. This has apparently occurred in conjunction with the settlement of other proceedings between the appellant and Mr Bevan in the Compensation Court of New South Wales.

2    Notwithstanding the situation as now advised to the Commission and indeed of which the Commission received informal advice some months ago, the parties have requested that the Full Bench deliver its decision as to the appeal brought by the appellant.

3    As the issues raised by the appeal brought by Newcastle City Council are now, in the light of the agreement between the parties, moot and any decision by the Commission in the appeal would be "academic" in that it would have no practical effect on the relations or relationship between the parties, we do not consider that this is an appropriate course. In any event, it is not consistent with the usual course traditionally adopted by the Commission in such situations: see, for example, Australian Services Union, New South Wales Branch v Sydney Water Corporation [2001] NSWIRComm 100.

4    It would in those circumstances be unlikely that the applicant for leave could satisfy the significant requirement imposed by the Industrial Relations Act 1996 for the grant of leave to appeal. Moreover, in the present proceedings the respondent in the primary appeal has, in our view, demonstrated that the Full Bench decision in Effem Foods Pty Limited t/a Uncle Ben's of Australia v Urban (1998) 81 IR 341 is arguably incorrect and should, in appropriate proceedings, be reconsidered. However, because of the considerations earlier referred to as to these proceedings, they no longer provide a suitable vehicle for that to occur.

5    Further, the submission put by the appellant to the effect that a determination of the appeal would be of general guidance to the appellant in relation to disciplinary matters and in particular those matters concerning the consumption of alcohol proceeds, in our view, on a false premise as to the industrial jurisprudence governing unfair dismissal cases. Decisions in unfair dismissal matters turn on their own facts and circumstances. The decision at first instance represents no exception to that approach - the decision deriving essentially from a conclusion that the dismissal was harsh, having regard to a variety of circumstances relating to Mr Bevan. That submission also proceeds upon a misconception of the decision at first instance in so far as it is contended that the decision condoned the consumption of alcohol during the course of work.

6    We consider, therefore, that leave to appeal should be refused in the appeal.

7    As to the cross-appeal, we also consider that leave to appeal should be refused having regard to the above consideration of the primary appeal and the issues raised on the cross-appeal. In that respect, we note that we have extended time as to the cross-appeal.

8    We order that leave to appeal be refused in relation to the appeal and the cross- appeal.

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LAST UPDATED: 18/12/2001