Nyman v Secretary of the Department of Education [2022] NSWIRComm 1060

Industrial Relations Commission New South Wales Medium Neutral Citation: Nyman v Secretary of the Department of Education [2022] NSWIRComm 1060 Hearing dates: Determined on the papers Date of orders: 28 July 2022 Decision date: 28 July 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The proceedings are dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Dismissal – Application for Public Sector Disciplinary Appeal – jurisdictional objections – whether appellant employed under a contract of employment for a specified period less than six months – whether application filed out of time Legislation Cited: Industrial Relations Act 1996 ss 97, 98, 100B Cases Cited: Beattie v Commonwealth Bank of Australia (2006) 155 IR 295; [2006] NSWIRComm 238 Child Protection (Working with Children) Award 2014 (2015) 249 IR 420; [2015] NSWIRComm 8 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Industrial Relations Secretary [2017] NSWIRComm 1075 Unuafe v Commissioner of Police [2015] NSWIRComm 1007 Texts Cited: Nil Category: Procedural rulings Parties: John Peter Nyman (Appellant) Secretary of the Department of Education (Respondent) Representation: John Nyman (Self-represented) A Britt of Counsel (Respondent) File Number(s): 2022/00142038 Publication restriction: No

decision 1. On 13 May 2022 John Nyman filed an Application for Public Sector Disciplinary Appeal ("Application") pursuant to s 98 of the Industrial Relations Act 1996 ("Act"). In the Application, Mr Nyman described "the type of disciplinary decision being appealed against" as his dismissal as a teacher. He stated that his employment had commenced on 12 July 2021 and that the last day he had worked was 25 August 2021. He stated that he had received notice of "the decision being appealed against" on 21 April 2022. He sought reinstatement, his removal from the "Not to be Employed list" ("NTBE list"), a formal apology and compensation for lost income. 2. In her Employer's Response to the Application, the Secretary of the Department of Education ("Secretary") challenged the jurisdiction of the Commission to hear and determine the Application. She further set out the grounds on which she contended that the Application was otherwise without merit. 3. The matter came before me for conciliation on 2 June 2022. At that time, the Secretary agreed to attempt to negotiate a resolution to the proceedings, without prejudice to her rights to press her jurisdictional objections if no settlement could be reached. When it became clear that the matter was unlikely to be resolved through conciliation, and after conferring with the parties, I made directions to allow for the determination of the Secretary's objections. They were to the effect that the parties were to file and serve the evidence and submissions on which they wished to rely on the question of jurisdiction by particular dates, and that the Secretary's jurisdictional objections would subsequently be determined by me "on the papers". 4. In accordance with those directions, on 23 June 2022 the Secretary filed with the Industrial Registry an affidavit of Daryl Peter Currie, the Executive Director of the Professional and Ethical Standards directorate of the Department of Education, affirmed on 23 June 2022, and an outline of written submissions on the jurisdictional objections. 5. On 20 July 2022, the Industrial Registry received a letter from Peter Rogers, a Legal Officer in the Professional and Ethical Standards directorate, which stated in part: "By email dated 18 July 2022, the Applicant advised the Respondent that he does not intend to file submissions or evidence on the question of jurisdiction. Accordingly, I write to advise that the Respondent will not be filing any material in reply pursuant to Order 4." 1. I arranged for a member of staff in the Registry to make contact with Mr Nyman during the afternoon of 20 July 2022 to confirm his intentions. I was informed that Mr Nyman stated that "he will not be filing any further documents in the matter".