Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40

Industrial Relations Commission New South Wales Medium Neutral Citation: Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40 Hearing dates: 25 March 2014 and supplementary note 25 July 2014 Decision date: 08 August 2014 Jurisdiction: Industrial Court of NSW Before: Walton J, President Decision: Appeal upheld and decision below quashed in part. Matter to be remitted. Parties to bring in draft orders. Catchwords: APPEAL - application for leave to appeal and appeal - whether leave to appeal is required under s 197B of the IR Act - principles relevant to the grant of leave to appeal - Government Sector Employment Act 2013 - employed under the Public Sector Employment and Management Act 2002 - employee dismissed under s 46 of the PSEMA - dismissal for misconduct following disciplinary investigation - employee alleged corruption and corrupt conduct by colleagues - employee took workers compensation leave after alleged bullying - psychiatric condition -medical evidence - employee dismissed for misconduct due to refusal to comply with instruction and directions to attend medical assessments - employee appealed dismissal under s 98 of the Industrial Relations Act 1996 - directions issued invalidly pursuant to Regulation - Department Head failed to form requisite opinion - whether the Regulation constituted a code - common law power to direct attendance to medical assessments - reasonableness - appeal upheld at first instance - employer appealed under s 197B of the IR Act - nature and scope of a statutory appeal under s 197B - what constitutes a decision on a question of law - pleadings as to decisions in par E (a), (b) and (c) constitute decisions on questions of law - whether Commissioner posed wrong question at law - whether excluded relevant considerations - par E (f) of pleadings not constitute a decision on a question of law - principles in Azzopardi - mixed questions of fact and law - Commissioner identified relevant indicia - pleading in par E (e) dependent upon finding in par E (f) and not available - notice of contention - notice spent - Regulation not a code - nature and scope of statutory appeal under Pt 7 - applicability of judgment in Lambert - disciplinary scheme under Pt 2.7 of the PSEMA - whether protective jurisdiction - significance of ss 97, 98 and 100C of the IR Act - relevance of fiduciary obligations to protective jurisdiction - significance of Commissioner's findings as to misconduct - finding of misconduct not foreclose considerations relevant to appeal under Pt 7 - findings misconduct not prerequisite to exercise of protective powers under Pt 7 - proceedings below miscarry for wrong question and exclusion of relevant materials - Lambert applicable - wrong test applied - errors of law - appeal upheld - decision quashed so far as consistent with this judgment - order for remitter proposed - parties to bring in draft orders reflecting judgment Legislation Cited: Government and Related Employees Appeal Tribunal Act 1980 Government Sector Employment Act 2013 Industrial Arbitration Act 1940 Industrial Commission Rules 2009 Industrial Relations Amendment (Industrial Court) Act 2013 Industrial Relations Amendment (Public Sector Appeals) Act 2010 Native Title Act 1993 (Cth) Public Sector Employment and Management Act 2002 Public Sector Employment and Management Amendment (Ethics and Public Service Commissioner) Act 2011 Public Sector Employment and Management Regulation 2009 Public Sector Management (General) Regulation 1996 Public Service Act 1902 Transport Administration (Staff) Regulation 2005. Transport Appeals Board Act 1980 Uniform Civil Procedure Rules 2005 (NSW) Workers' Compensation Act 1926 Cases Cited: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bankstown City Council v Paris [1999] NSWIRComm 368, (1999) 100 IR 363 Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395; 113 IR 461 Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117 CA Ford Pty Ltd v Comptroller-General of Customs (1993) 46 FCR 443 Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91 Clisdell v Commissioner of Police (1993) 31 NSWLR 555 Clyne v NSW Bar Association (1960) 104 CLR 186 Collector of Customs v Agfa-Gervaert Limited [1996] HCA 36; (1996) 186 CLR 389 Commissioner of Police v Donlan and Hanson [1995] NSWCA 468 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Décor Ceilings Pty Limited v Cox Constructions Pty Limited [2005] SASC 146 Director of PE His Agent the Director-General of the Department of Juvenile Justice and PSA and Professional Officer's Amalgamated Union of NSW (on behalf of Elvin Brian Brown) [2008] NSWIRComm 221 Director General, Department of Ageing, Disability and Homecare v Lambert [2009] NSWCA 102 Director-General of Education v Suttling [1987] HCA 3; (1987) 162 CLR 427 New South Wales Bar Association v Evatt (1968) 117 CLR 177 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577 Duhbihur v Transport Appeal Board (2005) 149 IR 126 Electrolux Home Products Pty Ltd v Australian Workers' Union and Others [2004] HCA 40; 209 ALR 116 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; (2007) 234 CLR 52 Franks v Roads and Traffic Authority [1996] NSWCA 192 George Maitland v Royal Blind Society of New South Wales [2004] NSWIRComm 368 Greig v Director-General of Department of Education and Communities [2013] NSWIRComm 1025 Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 Knowles (1999) 95 IR 380 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Maritime Services Board v Murray (1993) 52 IR 455 McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 Metropolitan Water Sewerage and Drainage Board v Histon (1982) 2 NSWLR 720 New South Wales Bar Association v Evatt (1968) 117 CLR 177 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 Public Service Association of NSW and Public Service Board Re Ristau (No 2) (1979) AR 357 Re Dispute-Dismissal of Union Delegate at Homebush Abbatoir (1966) AR 377 Re Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Macquarie Generation [2004] NSWIRComm 11 Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 Scanlon v Director-General, Department of the Arts, Sport and Recreation (2007) 70 NSWLR 1 Schoeman v Director-General, Department of Attorney-General and Justice [2013] NSWIRComm 1018 Smith v Allan (1993) 31 NSWLR 52; (1993) 48 IR 469 State of Queensland v Central Queensland Land Council Aboriginal Corporation [2002] FCAFC 371 Strange-Muir v Corrective Services Commissioner of NSW (1986) 5 NSWLR 234 Thompson v IGT (Australia) Pty Ltd [2008] FCA 994; (2008) 173 IR 395 Totalisator Agency Board of New South Wales v Casey (1994) 54 IR 354 Valuer-General v Dobrel Pty Ltd (1993) 79 LGERA 334 Wijesuriya v The Director-General of the Department of Conservation and Land Management (1994) 54 IR 384 WorkCover Authority of NSW (Inspector Belley) v Freight Rail Corporation [2002] NSWIRComm 281 Texts Cited: Pearce and Geddes, 'Statutory Interpretation in Australia' (7th ed, LexisNexis Butterworths) Category: Principal judgment Parties: Secretary, Department of Justice (formerly Director-General, Department of Attorney General and Justice) (Appellant) Fiona Schoeman (Respondent) Representation: S B Benson of counsel (Appellant) D H Nagle of counsel (Respondent) Crown Solicitor's Office (Appellant) Maurice Blackburn Lawyers (Respondent) File Number(s): IRC 824 of 2013 Decision under appeal Citation: Schoeman v Director-General, Department of Attorney-General and Justice [2013] NSWIRComm 1018 Date of Decision: 2013-09-26 00:00:00 Before: Newall C File Number(s): IRC 100 of 2013