Police Service of New South Wales v Batton [2000] NSWIRComm 79

Industrial Relations Commission of New South Wales

CITATION : Police Service of New South Wales v Batton [2000] NSWIRComm 79 APPELLANT Police Service of New South Wales PARTIES : RESPONDENT Barry Michael Batton FILE NUMBER: IRC 4463 of 1999 CORAM: Wright J President; Hungerford J; Connor C Unfair dismissal - Appeal - Whether a dismissal or voluntary retirement on medical grounds - Conduct of employer as causing illness - Repudiation of employment contract - Resultant incapacity - Whether a constructive dismissal - Relevant test to apply - No issue that what occurred was harsh, unreasonable or unjust - Held respondent employee dismissed by appellant employer - Appeal dismissed - Monetary compensation confirmed.

CATCHWORDS : Appeal - Leave to appeal - Against finding of a constructive dismissal - Whether a question of law or of fact - Appellant argued as a question of law - Found to be a pure question of fact - Nature of appeal - Finding reasonably open on the evidence - Approach by way of appellate review - Appeal dismissed.

Contract of employment - Employment as a police officer - Fundamental nature of the employment relationship - Conduct of employer - Duty to employee - Implied term in contract that employer will not so act as to be likely to destroy or seriously damage the relationship of confidence and trust between the parties - Repudiation by employer of employment contract - Employee sought retirement on medical grounds - Constructive dismissal - Unfair dismissal - Monetary compensation awarded to employee. LEGISLATION CITED : Industrial Relations Act 1996 Pt 6 of Ch 2 s 83(1) s 84 s 188(1) s 191 Industrial Relations Act 1991 (repealed) Dun & Bradstreet (Australia) Pty Ltd v Robbie (1999) 91 IR 150 Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 Australian Gas Light Co v The Valuer-General [1940] 40 SR (NSW) 126 Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151, (1999) 88 IR 282 Stone Microsystems (Australia) Pty Ltd v Kwong (1997) 42 NSWLR 160, (1997) 85 IR 237 CASES CITED : Re Government Cleaning Service (Privatisation) Award (No 3) (1995) 59 IR 348 Re Solicitors (State) Award (No 3) (1997) 72 IR 225 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 CCH Australia v Bowen (1998) 79 IR 206 Allison v Bega Valley Council (1995) 63 IR 68 Sparrow v Little t/as Milk Plus (1998) 78 IR 365 Woolworths (SA) Pty Ltd v Russian (1996) 66 IR 13 Day v Lumley Life Ltd (1999) 90 IR 70