Industrial Relations Commission of New South Wales CITATION : Department of Community Services and Bragg (No 2) [2000] NSWIRComm 28 APPELLANT PARTIES : Department of Community Services RESPONDENT David William Godfrey Bragg FILE NUMBER: IRC 1553 AND IRC 6804 of 1999 CORAM: Wright J President; Hungerford J; Neal C Unfair dismissal - Application for leave to appeal - Leave sought as to consequential decisions (as to "backpay" and costs) of Commissioner made after leave to appeal refused against decision to reinstate - Leave to appeal refused - Costs awarded to respondent. CATCHWORDS : Appeal - Unfair dismissal - Application for leave to appeal - Leave sought as to consequential decisions (as to "backpay" and costs) of Commissioner made after appeal refused against decision to reinstate - Leave to appeal refused. LEGISLATION CITED : Industrial Relations Act 1996 s 84 s 89(3) s 89(6) s 181(2)(c) CASES CITED : Bankstown City Council v Paris (No. 2) (Unreported, Matter No. IRC99/262, 17 December 1999) HEARING DATES: 03/14/2000 EXTEMPORE JUDGMENT DATE : 03/14/2000 APPELLANT Ms C Ronalds of Counsel Haywards, Solicitors LEGAL REPRESENTATIVES: RESPONDENT Ms J Keys of Counsel Makinson & d'Apice, Solicitors JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President HUNGERFORD J NEAL C Tuesday, 14 March 2000 Matter No. IRC 1553 of 1999 DEPARTMENT OF COMMUNITY SERVICES AND DAVID WILLIAM GODFREY BRAGG. Application by the Department of Community Services for leave to appeal and appeal against decision of Commissioner Cambridge given on 23 March 1999 in Matter No. IRC 1561 of 1997. Matter No. IRC 6804 of 1999 DEPARTMENT OF COMMUNITY SERVICES AND DAVID WILLLIAM GODFREY BRAGG. Application by the Department of Community Services for leave to appeal and appeal against a decision of Commissioner Cambridge given on 22 November 1999 in Matter No. IRC 1561 of 1997. DECISION OF THE COMMISSION (extempore) [2000] NSWIRComm 28 1 The proceedings before the Full Bench today involve two applications by the Department of Community Services for leave to appeal and, if leave be granted, appeals against decisions of Cambridge C delivered or made on 23 March 1999 and 22 November 1999 in Matter No. IRC 1561 of 1997 being an application by David William Godfrey Bragg pursuant to s 84 of the Industrial Relations Act 1996 (the Act) as to his alleged unfair dismissal by the Department. 2 We shall refer to the Department as the appellant and Mr Bragg as the respondent. We note in the former respect that no point has been taken in these proceedings either at first instance or on appeal that the correct respondent at first instance, or the correct appellant on appeal, is that named in the various process as distinct from the State of New South Wales. 3 It is relevant to observe that the decisions made by Cambridge C, and the appeals we are presently considering, relate to ancillary or consequential matters following upon a substantive decision by the commissioner dated 3 August 1998 in which he granted relief to the respondent. That decision was subject to an appeal to a Full Bench of the Commission which was, on 15 December 1998, the subject of an extempore decision in which leave to appeal was refused to the present appellant and its appeal against the decision of 3 August 1998 dismissed. 4 The present appeals, as we have indicated, are from subsequent decisions by the commissioner dated 23 March and 22 November last year in which the commissioner dealt respectively with the issues of the remuneration payable by the appellant to the respondent for the period between dismissal and reinstatement pursuant to s 89(3) of the Act; and an order that the appellant pay the respondent's costs of the proceedings at first instance. In the latter respect the order was made pursuant to s 181(2)(c) of the Act. 5 Both appeals have been the subject of extensive argument before the Full Bench today and both parties also filed extensive written submissions in advance of the hearing. We have had regard to the arguments so put. 6 The practice of Full Benches of the Commission, as it was of its predecessors, is not to provide reasons for declining leave to appeal. We propose to follow that course in these matters subject to an exception in two areas. 7 In relation to the first appeal we intend, except as to one aspect thereof, to refuse leave to appeal. The area where we will grant leave to appeal and uphold the appeal relates to the appellant's submission that the amount awarded by the commissioner failed to make allowance for, or deduction of, an amount referable to alternative employment in the period between dismissal and reinstatement, although the original order made by the commissioner stated that the final order would be so framed. 8 We consider that either because of inadvertence or failure to alert the parties to a possible changed situation in this regard the commissioner erred in failing to make a deduction or adjustment in relation to this matter and the amount awarded should be reduced by $17,681 to $84,069, the former figure being agreed by the parties. We consider that the amount awarded at first instance does not make any appropriate allowance for money earned in alternative employment in terms of s 89(6) of the Act. 9 As to the second appeal, we refuse leave to appeal. We do not consider there are in any relevant sense issues of principle raised by this appeal in the light of the Full Bench decision in Bankstown City Council v Paris (No. 2) (Unreported, Matter No. IRC99/262, 17 December 1999), a decision handed down since the decision appealed from here. We should observe that there are aspects of the decision of the commissioner which we would not agree with, or which may be the subject of criticism, but consider as a whole and in the light of the statements of principle in Bankstown City Council v Paris (No. 2) that the ultimate conclusion reached was one reasonably open and one in any event with which we agree. 10 We deal finally with the question of costs of these appeals. Counsel for the appellant, appropriately in our view, accepted that, if the commissioner's finding that the relevant criterion under s 181(2)(c) had been satisfied was not overturned on appeal, then this Full Bench thereby had power to award costs in these appeals. She did, however, emphasise that the discretion that resulted as to costs orders, if any, should be exercised in a careful and deliberative fashion. We agree. We consider that the appropriate costs order that should be made in these appeals is that the appellant should pay the respondent's costs of both appeals. 11 Shortly stated, as to the first appeal the respondent has succeeded in defending the substantial part of his judgment at first instance and in respect of which he obtained a favourable costs order at first instance. As to the second appeal, the appellant has not obtained leave to appeal. We do not consider it appropriate to award indemnity costs as sought by the respondent. We make orders accordingly. _____________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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