Commissioner of Police v Eaton [2011] NSWIRComm 51

Industrial Relations Commission New South Wales Medium Neutral Citation: Commissioner of Police v Eaton [2011] NSWIRComm 51 Hearing dates: 9 & 19 November 2010 Decision date: 05 May 2011 Jurisdiction: Industrial Relations Commission Before: Walton VP, Marks J, Kavanagh J Decision: 1. Leave to appeal is granted and the appeal is upheld. 2. The decision of Commissioner Bishop given on 30 June 2010 is quashed. 3. The application by the respondent, David John Eaton, for a remedy pursuant to s 84 of the Industrial Relations Act 1996 is dismissed. Catchwords: APPEAL - dismissal of probationary constable - s 80(3) of Police Act - whether Commission has jurisdiction under s 84 Industrial Relations Act - Parfrey v Commissioner of Police considered - relevant statutory provisions - tests for inconsistency - competing legislative provisions - Pt 9 of Police Act - misconduct of police officers - s 218 of Police Act - s 405 of Industrial Relations Act - inconsistency between rights given under s 84 and s 80(3) of Police Act - provisions cannot stand together - powers under s 84 excluded - Commission lacks jurisdiction under s 84 vis a vis dismissal of probationary constable - leave to appeal granted - appeal upheld - decision and application at first instance dismissed Legislation Cited: Industrial Conciliation and Arbitration Act 1972 (S.A.) Industrial and Employee Relations Act (S.A.) Industrial Relations Act 1996 Evidence Act Police Act 1990 (N.S.W.) Police Act 1998 (S.A.) Police Regulation 2008 Public Service Act Cases Cited: Butler v Attorney-General (Vict) [1961] HCA 32; (1961) 106 CLR 268 Byrne v Australian Airlines Pty Ltd [1995] HCA 24; (1995) 185 CLR 410 Commissioner of Police of New South Wales v Industrial Relations Commission of New South Wales [2009] NSWCA 198; (2009) 185 IR 458 Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 Jarratt & Commissioner of Police for New South Wales [2005] HCA 50 Nassar v Public Service Board (1986) 16 IR 394 O'Rourke v Miller [1985] HCA 24; (1984-1985) 156 CLR 342 Parfrey v Commissioner of Police [2010] NSWIRComm 19 Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 Rose v Hvric [1963] HCA 13; (1963) 108 CLR 353 South Australia v the Commonwealth (1942) 65 CLR 373. Category: Principal judgment Parties: Commissioner of Police (Appellant) David Eaton (Respondent) Representation: Mr M Kimber SC with Mr M Seck of counsel (Appellant) Mr S Crawshaw SC with Ms P Lowson of counsel (Respondent) Bartier Perry (Appellant) Walter Madden Jenkins (Respondent) File Number(s): IRC 600 of 2010 Decision under appeal Jurisdiction: 9102 Citation: David Eaton v Commissioner of Police [2010] NSWIRComm 1035 Date of Decision: 2010-06-30 00:00:00 Before: Bishop C File Number(s): IRC 1111 of 2009