Mohamed v Secretary, Department of Communities and Justice on behalf of Corrective Services NSW [2022] NSWIRComm 1083

Industrial Relations Commission New South Wales Medium Neutral Citation: Mohamed v Secretary, Department of Communities and Justice on behalf of Corrective Services NSW [2022] NSWIRComm 1083 Hearing dates: 30 August 2022 Date of orders: 30 September 2022 Decision date: 30 September 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: Appeal dismissed Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL –findings of misconduct- – whether a decision in relation to an appealable decision – Industrial Relations Act 1996 s 97 Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: Francois v Industrial Relations Secretary (Department of Corrective Services) [2019] NSWIRComm 1058 Jones v Health Secretary in respect of the Far West Local Health District [2020] NSWIRComm Texts Cited: NIL Category: Procedural rulings Parties: Serag Mohamed (Applicant)

Secretary, Department of Communities and Justice on behalf of Corrective Services NSW (Respondent) Representation: Self Represented (Applicant)

Solicitors: File Number(s): 2022/181609 Publication restriction: NIL

EX-TEMPORE decision 1. Mr Serag Mohamed, by way of an application pursuant to Part 7 of the Industrial Relations Act seeks to appeal a finding of misconduct. Further particulars of what is being sought to be appealed against under Part 7 of the Act were made in both oral and written submissions by Mr Mohamed. 2. The application is the subject of a notice of motion. That notice of motion was filed by the respondent on 22 July 2022 and the respondent had made the applicant aware of the notice of motion at the conciliation of this application. 3. Along with the notice of motion, the respondent being the applicant on the notice of motion, also filed an affidavit of Mr Andrea Carvana, which was read into evidence without objection. There were written outlines of submission in support of the motion filed by the respondent, along with some further submissions in reply, which were filed on 1 August 2022. 4. The applicant, being the respondent on the motion, also filed an outline of submissions on 1 August and 18 August 2022. 5. In short, the respondent, being the applicant on the notice of motion, submits that the Commission does not have the jurisdiction to deal with the application to challenge the disciplinary findings of the respondent. The respondent points to ss 98 and 97 of the Industrial Relations Act and in particular, s 97(1) in which it is put that it is those matters which are set out in s 97 subs (1) which are the sole basis for the bringing of or the capacity to bring a right of appeal before the Commission to be dealt with. In support of that application, the respondent has pointed to the decision of the then Chief Commissioner Kite in the case of Francois v Industrial Relations Secretary (Department of Corrective Services) [2019] NSWIR Comm 1058. 6. Furthermore, the respondent submits that that case was applied by Commissioner Sloan in the case of Jones v Health Secretary in respect of the Far West Local Health District. Returning to the case of Francoise, the particular passage that is relied upon, there are two, but in particular of which emphasis is placed upon is at para 70. Now that paragraph reads as follows: "The two subject matters in s 97(1) are the public sector employee and the decisions listed in the section. Decisions which may be incidental or in some way related to a decision listed in the section are not themselves appealable decisions. Most importantly, only the decisions listed in 97(1)(a) may be appealed. So much is clear from the opening words to s 97(1) which limit the operation of the section to the specific decisions which follow. In short, to have a right of appeal, a public sector employee must identify a decision listed in s 97(1) made by his or her employer which relate to him or her as an employee". 1. In this case, the applicant has not pointed to a decision which is specified within subs 97(1). The Commission sought to clarify with the applicant what was being appealed and the applicant said he is appealing the finding of misconduct and not the actual disciplinary action taken. 2. In those circumstances, the Commission finds that it does not have the jurisdiction to deal with the application and accordingly the Commission finds that the notice of motion is successful and orders that the application for Public Sector Disciplinary Appeal filed by the respondent on the motion on 22 June 2022, be dismissed for want of jurisdiction.