Basan v Commissioner of Police (No. 2) [2022] NSWIRComm 1033

Industrial Relations Commission New South Wales Medium Neutral Citation: Basan v Commissioner of Police (No. 2) [2022] NSWIRComm 1033 Hearing dates: Determined on the papers Date of orders: 6 May 2022 Decision date: 06 May 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Applications accepted out of time Orders made at [27] and [38]-[40] Catchwords: UNFAIR DISMISSAL – VICTIMISATION – applications made out of time – sufficient reason established to accept applications out of time – discretion exercised in favour of applicant – orders made Legislation Cited: Industrial Relations Act 1996 Police Act 1990 Cases Cited: A v B [2021] NSWIRComm 1058 NSW Commissioner of Police v Cottle [2022] HCA 7 (16 March 2022) Texts Cited: Nil Category: Procedural rulings Parties: John Basan (Applicant) Commissioner of Police (Respondent) Representation: Applicant was self represented Mr M Seck of counsel (Respondent) File Number(s): 2020/00007495 2020/00007514 Publication restriction: Nil

decision 1. There are two applications before the Commission filed by the same applicant, John Basan, a former serving police officer with the NSW Police Force. The first in time is an Application for Relief in relation to Unfair Dismissal filed in the Local Court, Wollongong, on 6 January 2020 ("unfair dismissal application"). The second in time is an Application for Relief from Victimisation filed in the same court on the same day ("victimisation application"). 2. Both applications were filed by the applicant following his medical retirement pursuant to s 94B of the Police Act 1990. The decision to medically retire the applicant was made by Assistant Commissioner Leanne McCusker as delegate of the respondent, the Commissioner of Police, on 28 November 2019 with the applicant's last day of service being 12 December 2019. These proceedings have been held in abeyance awaiting the outcome of litigation concerning this Commission's power to hear and determine an unfair dismissal application by a police officer who had been medically retired. The issue was ultimately resolved in NSW Commissioner of Police v Cottle [2022] HCA 7 (16 March 2022) where the High Court held that this Commission did have the power to hear and determine such an application. 3. The respondent has raised an objection to the matters proceeding on the basis that both applications were filed outside of the time limits prescribed by the Industrial Relations Act 1996 ("IR Act").