Industrial Relations Commission of New South Wales CITATION: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Simon Azzopardi) and Sutherland Shire Council [2008] NSWIRComm 235 APPELLANT/RESPONDENT IN CROSS-APPEAL: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Simon Azzopardi) PARTIES: RESPONDENT/APPELLANT IN CROSS-APPEAL: Sutherland Shire Council FILE NUMBER(S): IRC 1994 and IRC 2130 of 2008 CORAM: Walton J Vice-President; Grayson DP; Tabbaa C CATCHWORDS: Leave to appeal - Failed challenge to finding reinstatment impracticable - Failed challenge to finding that termination unjust and unreasonable based on timing of requisite unfairness - Challenge to power to make orders of compensation relating to notice found to have no utility - Leave refused LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 2 December 2008 EXTEMPORE JUDGMENT DATE: 2 December 2008 APPELLANT/RESPONDENT ON CROSS-APPEAL: Mr J Pearce of counsel SOLICITORS: Mr A Neal, Manager Legal & Industrial, New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union LEGAL REPRESENTATIVES: RESPONDENT/APPELLANT ON CROSS-APPEAL: Mr P Newall of counsel SOLICITORS: Ms K Dent Gadens Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: WALTON J, Vice-President GRAYSON DP TABBAA C Tuesday 2 December 2008 Matter No IRC 1994 of 2008 NEW SOUTH WALES LOCAL GOVERNMENT, CLERICAL, ADMINISTRATIVE, ENERGY, AIRLINES & UTILITIES UNION (ON BEHALF OF SIMON AZZOPARDI) AND SUTHERLAND SHIRE COUNCIL Application by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union on behalf of its member Simon Azzopardi for leave to appeal and appeal against a decision of Commissioner Bishop given on 30.9.2008 in Matter No IRC 2257 of 2007 Matter No IRC 2130 of 2008 SUTHERLAND SHIRE COUNCIL AND NEW SOUTH WALES LOCAL GOVERNMENT, CLERICAL, ADMINISTRATIVE, ENERGY, AIRLINES & UTILITIES UNION (ON BEHALF OF SIMON AZZOPARDI) Application by Sutherland Shire Council Cross-Appellant for leave to appeal and appeal against a decision of Commissioner Bishop given on 30.9.2008 in Matter No IRC 2257 of 2007 DECISION OF THE COMMISSION EX TEMPORE [2008] NSWIRComm 235 1 We consider that the applications for leave to appeal and cross-appeal from the decision of BishopC of 30 September 2008 in this matter must fail. 2 The Commissioner made a finding that the termination of Mr Azzopardi, by the council appellant, the Sutherland Shire Council, was unjust and unreasonable, and granted a remedy of compensation of six weeks' remuneration rather than making an order for reinstatement or re-employment under s 89(1) or s 89(2) of the Industrial Relations Act 1996. 3 The union appellant, the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union challenges the exercise of discretion by the Commissioner to grant the remedy of compensation rather than reinstatement under s 89 of the Act. In essence, this is a challenge to the Commissioner's finding that the remedy of reinstatement was impracticable. 4 Whilst we agree that the union appellant has correctly identified the applicable principle in such matters, namely, the primary remedy available under Pt 6 of Ch 2 of the Act is reinstatement, that consideration had to be balanced in the present matter against the fact that the applicant worker had suffered a proven and claimed incapacity affecting his return to work. 5 We agree that the Commissioner's decision in this respect suffers from a lack of precision of expression, but no doubt the gravamen of her decision as to impracticability was the incapacity of Mr Azzopardi. In that respect, and on the evidence in the proceedings, the decision was unimpeachable. 6 This conclusion needs to be seen in the context of the conduct of the proceedings at first instance. No application was made, in our view, by the appellant union under s 89(8) of the Act in the first instance proceedings. We would add that this observation not merely extends to a failure to refer to the requisite sub-section, but also to a failure to formulate a claim for relief which recognised squarely that an order for reinstatement or re-employment in this matter would require, for success, a stipulation of appropriate conditions. 7 The council appellant relied on two contentions to sustain its application for leave to appeal. Both may be shortly resolved. 8 It was contended that the Commissioner erred in law by not assessing whether the dismissal satisfied the requirements of s 84(1) at the time of the termination, rather than at some earlier time when Mr Azzopardi attempted to return to his pre-injury employment as a truck driver/labourer but was prevented from doing so by the council appellant (we note that the Commissioner found that the council appellant had unfairly prevented him from doing so). 9 However, this contention overlooks what we consider was the true effect of the Commissioner's finding. The dismissal was found to be unjust and unreasonable not merely because the council appellant had refused to return Mr Azzopardi to his pre-injury employment (a decision which was itself unfair) but because that unfair treatment continued to the termination of his employment. The earlier act was not only the genesis of the unfairness but persisted as an active ingredient throughout the remainder of employment, such as to render the ultimate decision to dismiss, in those circumstances, unfair. Such a conclusion was plainly open to the Commissioner. 10 As to the second plank of the appellant council's challenge, we consider that leave to appeal should be refused because there is no utility in granting such leave. Even if the council appellant was successful in establishing that the Commissioner had erred in law in the grant of a remedy of compensation by relying upon ss 162 and 380 of the Act, by factoring into the order for compensation a component for the failure to give notice, or, by failing to have regard to the applicant's extant workers' compensation rights when making assessments under s 89(5) (about which we do not express a final view), the appeal, if successful in striking down the orders of compensation on any of those bases, would not result in any alteration to the amount of compensation awarded on any reassessment by the Full Bench. The amount awarded was plainly within the range of orders which may have been made in the circumstances here applying and, in any event, the council appellant made no challenge to the quantum of the compensation ordered by the Commissioner. 11 We acknowledge that the Commissioner's decision is, in this respect, unclear, particularly in indicating whether what she had ordered was in some way in the nature of rectification or restitution for a failure to make payments under the relevant award. However, we consider that, on balance, whilst the Commissioner was concerned about the failure of the council to make such payments, the orders ultimately made under s 89(5) of the Act were made upon the basis of an orthodox exercise of a discretion under that sub-section and not made as an order dealing in any way with any claim that Mr Azzopardi may have under the relevant industrial instrument. 12 In the circumstances, we order that leave to appeal with respect to the two appeals before us be 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.