Schoeman v Director-General, Department of Attorney-General and Justice [2013] NSWIRComm 1018

Industrial Relations Commission New South Wales Medium Neutral Citation: Schoeman v Director-General, Department of Attorney-General and Justice [2013] NSWIRComm 1018 Hearing dates: 7-9 August, 15 August, 20 August 2013 Decision date: 26 September 2013 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Appeal upheld Catchwords: Public sector disciplinary appeal - punishment of dismissal - whether misconduct - whether a direction was validly given - whether disciplinary regime protective not punitive - regime not protective in this case - whether reliance on repealed regulation invalidates direction - regulation not comprehensive code - whether general power to direct - power of statutory officeholder - powers must be exercised reasonably - unreasonable use of power ultra vires - employee entitled to deal with directions in the terms they were made - not misconduct to refuse an unlawful direction - appeal upheld - lack of procedural fairness - whether in an appeal under s.98 questions of practicability of reinstatement arise - punishment of dismissal set aside. Legislation Cited: Industrial Relations Act 1996 ss. 98, 100B, 100C, 100D, 146 Public Sector Employment and Management Act 2002 s.14 Public Sector Employment and Management (General) Regulation (1996) reg 17 Public Sector Employment and Management (General) Regulation (2009) reg 13 Cases Cited: Abebe v Commonwealth (1999) 197 CLR 510 :Briginshaw v Briginshaw (1938) 60 CLR 336 Blyth Chemicals v Bushnell (1933) 49 CLR 66 Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91 Commissioner for Police v Donlan (unreported, Supreme Court of NSW, 8 August 1995 Crown in Right of the State of New South Wales (Director-General, NSW Department of Health) in respect of Sydney West Area Health Service v New South Wales Nurses' Association [2011] NSWIRComm 111 Director-General, Department of Education ad Training v Sud [2010] NSWIRComm 147 Director-General of Education v Suttling (1987) 162 CLR 427 Duhbihur v Transport Appeal Board [2005] NSWSC 811; 149 IR 276 Hall v NSW Trotting Club [1977] 1 NSWLR 378 Minister for Immigration and Citizenship v Li [2013] HCA 18 Munnings v Smith (1987) 22 IR 254 National Union of Workers NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Director of Public Employment [2011] NSWIRComm 152 Public Service Association of NSW and Public Service Board Re Ristau (No 2) (1979) AR 357 R v Darling Island Stevedoring and Lighterage Co Ltd; ex parte Halliday (1938) 60 CLR 601 Re Public Service Association and Professional Officers' Association Amalgamated Union of NSW and Macquarie Generation [2004] NSWIRComm 11 Saini v Director-General, NSW Agriculture (Court of Appeal of NSW, 11 November 1996, unrep) Thompson v IGT (Australia) Pty Ltd [2008] FCA 994; 173 IR 395 Trigger v Australian Telecommunications Commission [1984] 6 IR 446 Category: Principal judgment Parties: Ms F Schoeman - appellant Director-General, Department of Attorney-General and Justice - respondent Representation: Mr D Nagle - Appellant Ms E Brus - Respondent File Number(s): IRC 100 of 2013