Industrial Relations Commission of New South Wales CITATION: Buttigieg and Shoalhaven City Council [2010] NSWIRComm 43 PARTIES: Norman Joseph Buttigieg (Appellant) Shoalhaven City Council (Respondent) FILE NUMBER(S): IRC 1701 of 2009 CORAM: Walton J Vice-President; Haylen J; Staff J CATCHWORDS: APPEAL - Industrial Relations Act 1996 - unfair dismissal proceedings under Ch 2, Pt 6 - employee of Local Council demoted from position of Supply Team Leader to position of storekeeper - terms of award incorporated into contract of employment - award provides for employer to demote for disciplinary reasons - parties agree to split questions of jurisdiction from questions of merit - appeal conducted substantially on issues not raised at first instance - lack of evidence as to award history and demotion provisions - case developed on appeal not appropriate to attract leave to appeal - issue of whether "demotion" is a "dismissal" for purposes of Ch 2, Pt 6 proceedings to await a fully argued contention - leave to appeal refused LEGISLATION CITED: Industrial Relations Act 1996, Ch 2, Pt 6. s 83(5) Local Government (State) Award 2004 CASES CITED: Tilburg v Nagle (1993) 46 IR 463 HEARING DATES: 2 March 2010. (Written submissions: 19 March 2010, 26 March 2010) DATE OF JUDGMENT: 9 April 2010 Mr L Gor of counsel (Appellant) Kelly Mullard White, Solicitors LEGAL REPRESENTATIVES: Mr A Moses SC with Mr D O'Sullivan of counsel (Respondent) Local Government Association of New South Wales JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, Vice-President HAYLEN J STAFF J Friday, 9 April 2010 Matter No IRC 1701 of 2009 NORMAN JOSEPH BUTTIGIEG and SHOALHAVEN CITY COUNCIL Application by Norman Joseph Buttigieg for leave to appeal and appeal against a decision of Commissioner Connor given on 9 October 2009 in Matter No 1134 of 2009 DECISION OF THE COMMISSION [2010] NSWIRComm 43 1 On the face of the documents filed in the Commission the issue in this appeal appeared to be whether a person, covered by the terms of the Local Government (State) Award 2004 who was demoted by his/her employer, could seek relief under the provisions of Ch 2, Pt 6 of the Industrial Relations Act 1996. Shortly stated, the issue appeared to be whether or not a demotion in accordance with provisions of the award amounted to a dismissal thus enlivening the unfair dismissal provisions of Ch 2, Pt 6 of the Act. An appeal, so categorised, appeared to raise a question of significant importance regarding both the notion of demotion and the extent of the jurisdiction of the Commission under s 84 of the Act, such as to support a grant of leave to appeal. The matter, however, developed somewhat differently. 2 Some short history of the matter is necessary in order to appreciate the course of proceedings before the Full Bench. The issue came before Connor C in contested proceedings as to whether the application for reinstatement was out of time and whether there was a "dismissal" for the purposes of the unfair dismissal provisions of the Act. Before the Commissioner the parties agreed that the two questions of jurisdiction should be dealt with separately from the issue of merits and so the matter proceeded with a minimum of evidence and detail as to precisely what was involved in the demotion. In a reserved decision the Commissioner held that the application was brought within time and that matter is not the subject of appeal. In essence, in relation to the second jurisdictional issue, the Commissioner determined that, although demotion in certain circumstances may constitute dismissal for the purposes of Ch 2, Pt 6 of the Act, here, demotion was specifically contemplated in cl 31 of the award. In view of the fact that the award provided for demotion for disciplinary purposes and those provisions of the award were part of the contract of employment, the Commissioner concluded that the demotion of Mr Buttigieg was not a "dismissal" for the purposes of the operation of Ch 2, Pt 6 of the Act. The Commissioner dismissed the application. 3 For the purposes of the appeal the Full Bench received full written submissions from the parties. The parties had estimated that the question of leave to appeal and the appeal would occupy half a day but on the opening of the appeal by counsel for the appellant, it became clear that a variety of new issues were being raised for the first time on appeal. The Full Bench then asked the parties to address the question of leave to appeal. After receiving further submissions the Full Bench announced that leave to appeal would not be granted in relation to the new matters raised by the appellant that had not been the subject of argument and determination below. 4 On resumption of the hearing counsel for the appellant pursued only one ground of appeal, namely, whether the Commissioner failed to consider, on the proper construction of the award, whether there was an implied limitation on the discretion to demote beyond which the reduction ceased to be a demotion and became termination of employment. Unfortunately, because of the path agreed upon by the parties in separating the questions of jurisdiction from the merits of the matters, the proceedings before the Commissioner were conducted without the benefit of evidence and an analysis of the history of the award, the circumstances in which cl 31 came into the award and the relevant background to the award provision allowing for demotion. That course, in this case, highlights the caution that should attend upon any proposal to split the case - a problem identified by the Full Bench in Tilburg v Nagle (1993) 46 IR 463. Without the necessary background as to the award history it became an almost impossible task for the appellant to appropriately address the only remaining ground of appeal, itself a ground that was not developed as an "implied limitation" before the Commissioner. The very notion of an "implied limitation" was proposed as a bare assertion without the support of any relevant authority. 5 It is in those circumstances the Full Bench concludes that, in this matter, leave to appeal should be refused. That conclusion, however, should not be taken as a confirmation that a demotion is beyond the jurisdiction conferred by s 84 of the Act whether or not the demotion occurs under an award provision: in addition, there is a large question as to whether or not a "demotion" is a "dismissal" for the purposes of s 83(5) of the Act. Those questions shall, properly, have to await a fully argued matter where the issues are subjected to detailed consideration. Regrettably, this is not such a case. 6 The appeal, as developed in argument, does not appropriately raise these significant questions. The remaining issue advanced by the appellant does not warrant the granting of leave to appeal. 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.