Commissioner of the NSW Fire Brigades v NSW Fire Brigade Employees Union (on behalf of Levy) [2009] NSWIRComm 138

Industrial Relations Commission of New South Wales

CITATION: Commissioner of the NSW Fire Brigades v NSW Fire Brigade Employees Union (on behalf of Levy) [2009] NSWIRComm 138

Commissioner of the NSW Fire Brigades (Appellant) PARTIES: NSW Fire Brigade Employees Union (on behalf of Michael Levy) (Respondent)

FILE NUMBER(S): IRC 575 of 2009

CORAM: Boland J President; Grayson DP; Haylen J

APPEAL - statutory interpretation - Government and Related Employees Tribunal Act 1980 (GREAT Act) ss 23, 24, 25, 31 - Industrial Relations Act 1996 (IR Act) ss 83, 90 - Industrial Relations (General) Regulation 2001 cl 6 - notice of appeal filed under GREAT Act - reasonableness of six months' probation raised as preliminary issue - Tribunal satisfied period of probation reasonable and therefore no jurisdiction to further hear appeal - employee then commences unfair dismissal proceedings under provisions of IR Act - at first instance held that application in Commission jurisdictionally competent - issue of reasonableness of probation to be dealt with in context of all the circumstances of case - on appeal held that s 25(3) GREAT Act precluded the same question as determined by the Tribunal from being dealt with and ruled upon again under the IR Act - in both jurisdictions reasonableness of probationary period in excess of three months a prerequisite to further proceedings - leave to appeal granted - appeal upheld - unfair dismissal application under IR Act struck out.

CATCHWORDS: STATUTORY INTERPRETATION - appeal - Government and Related Employees Tribunal Act 1980 (GREAT Act) ss 23, 24, 25, 31 - Industrial Relations Act 1996 (IR Act) ss 83, 90 - Industrial Relations (General) Regulation 2001 cl 6 - notice of appeal filed under GREAT Act - reasonableness of six months' probation raised as preliminary issue - Tribunal satisfied period of probation reasonable and therefore no jurisdiction to further hear appeal - employee then commences unfair dismissal proceedings under provisions of IR Act - at first instance held that application in Commission jurisdictionally competent - issue of reasonableness of probation to be dealt with in context of all the circumstances of case - on appeal held that s 25(3) GREAT Act precluded the same question as determined by the Tribunal from being dealt with and ruled upon again under the IR Act - in both jurisdictions reasonableness of probationary period in excess of three months a prerequisite to further proceedings - leave to appeal granted - appeal upheld - unfair dismissal application under IR Act struck out.