Industrial Relations Commission of New South Wales CITATION : The Council of the City of Sydney v Leonia Piccone [2004] NSWIRComm 313 revised - 25/10/2004 APPLICANT: Council of City of Sydney PARTIES : RESPONDENT: Leonia Piccone FILE NUMBER: IRC4761 of 2004 CORAM: Walton J Vice-President; Grayson DP; McLeay C CATCHWORDS : Leave to appeal - Appeal - Flaw in essential grounds of appeal - Compensation orders - Punitive orders - On balance orders properly made - Leave refused HEARING DATES: 10/08/2004 EXTEMPORE JUDGMENT DATE : 10/08/2004 APPLICANT: Mr P Newall of Counsel SOLICITOR: Ms F Inverarity Pricewaterhouse Coopers Legal LEGAL REPRESENTATIVES: RESPONDENT: Ms M Dulhunty of Counsel Denman Chambers JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Walton J, Acting President Grayson, DP McLeay, C 8 October, 2004 Matter No. IRC 4761 of 2004 THE COUNCIL OF THE CITY OF SYDNEY AND LEONIA PICCONE Application by the Council of the City of Sydney for leave to appeal and appeal against a decision of Commissioner Macdonald given on 23.7.2004 in matter No IRC121 of 2003. DECISION OF THE COMMISSION (EX TEMPORE) 1 After hearing the appellant fully in its case and the respondent as to those aspects of the application for leave to appeal concerning the order of compensation by Macdonald C we have come to the view that leave to appeal should be refused in this matter. Our reasons for decision may be shortly stated. 2 First the attack on the Commissioner's decision wherein he found that the dismissal of the respondent was harsh, unjust and unreasonable, was fundamentally misconceived. The appellant's case in this respect was that the Commissioner misdirected himself by determining that issue by reference to a decision to demote rather than by reference to a true reason for dismissal, namely a refusal to follow a lawful and reasonable direction to accept demotion. 3 Whilst we have some sympathy with the appellant's contention as to the inadequacies of the Commissioner's decision (by failing to recognise this distinction in the appellant's reasons for dismissal), we nonetheless consider that the fundamental premise upon which the challenge is brought cannot be sustained. That is because we consider that the respondent did not refuse to disobey a lawful direction. In other words, the fundamental basis for the dismissal as advanced by the appellant has no proper basis. 4 At the time of her termination the respondent had merely indicated that she did not accept the decision to demote. This was open to her, that is it was open to her to dispute the decision. She did not refuse duty as she was not asked to perform it. Thus, the dismissal was predicated upon an assumption of misconduct by the respondent which simply did not exist. There can be no doubt that a dismissal for those reasons is harsh, unjust and unreasonable. Hence, there is no basis for interfering at the end of the day with the Commissioner's decision in this respect, particularly given that both parties have sought that we make our own determination under s84 of the Act in the event that the appeal was upheld. 5 As to the question of the Commissioner's order for compensation, we consider that the subject matter of the issues raised by the appellant may have potentially attracted the grant of leave to appeal. For example, it was argued that the Commissioner took into account irrelevant matters. It was also argued that his decision concerning compensation was partly punitive. While we can understand why the appellant raised the various contentions it has with respect to the compensation issue, given the lack of clarity in the decision at first instance, we nonetheless accept the proposition advanced by Ms Dulhunty of counsel for the respondent that when considered as a whole and in context, the Commissioner's observations were directed to legitimate issues concerning the assessment of compensation (particularly having regard to the circumstances applying to the respondent at the time of her termination). 6 We do not consider that questions of onus are of any assistance in the resolution of this matter. There was sufficient indication in the Commissioner's decision that he had discharged his functions under s89(6) of the Act and that overall the orders made were within the scope of a proper exercise of his discretion, albeit at the high end of the appropriate range. 7 We order that leave to appeal is refused. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.