Custovic and State of New South Wales (Department of Family and Community Services - Housing NSW) [2014] NSWIRComm 48

Industrial Relations Commission New South Wales Medium Neutral Citation: Custovic and State of New South Wales (Department of Family and Community Services - Housing NSW) [2014] NSWIRComm 48 Hearing dates: 18 July 2014 Decision date: 21 October 2014 Jurisdiction: Industrial Relations Commission Before: Walton J, President at [1]; Boland AJ, Tabbaa C at [23] Decision: The Full Bench makes the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The decision and orders of Newall C in Matter No IRC 760 of 2013 are quashed. (4) Matter No IRC 760 of 2013 is remitted to Newall C to be dealt with according to law. Catchwords: APPEAL - application for leave to appeal and appeal from decision of Commissioner's finding that appellant, a public sector employee employed under the Public Sector Employment and Management Act 2002, was employed under a contract for a specified period of three months and therefore was precluded from making an application under s 84 of the Industrial Relations Act 1996 alleging unfair dismissal - contract provided right for employer to terminate the contract prior to its specified end date for reasons relating to appellant's performance and conduct and availability of work - contract terminated for reasons related to appellant's performance and conduct - consideration of phrase "for a specified period of time" - consideration of relevant authorities - history of temporary employment legislation - distinction between a contract term permitting termination more broadly and the common law right to terminate the contract for breach; JURISDICTION - whether inconsistency or incompatibility between the relevant provisions of the Public Sector Employment and Management Act 2002 and the unfair dismissal provisions of the Industrial Relations Act 1996 such that it was apparent Parliament did not intend that the appellant could make an application under s 84 of the IR Act - consideration of Commissioner of Police v Eaton [2013] HCA 2 - consideration of Public Service Association of NSW v Industrial Commission of NSW (1985) 11 IR 420 Legislation Cited: Government Sector Employment Act 2013 Industrial Relations Act 1996 Industrial Relations (General) Regulation 2001 Industrial Relations Act 1988 (Cth) Industrial Relations Act 1991 (repealed) Police Act 1990 Police Service Act 1990 (repealed) Public Sector Employment and Management Act 2002 Public Sector Management Act 1988 Public Service Act 1895 Public Service Act 1902 Public Service Act 1979 Supreme Court Act 1970 Workplace Relations Act 1996 (Cth) Cases Cited: Adami v Maison De Luxe Ltd [1924] HCA 25; (1924) 35 CLR 143 Andersen v Umbakumba Community Council (1994) 56 IR 102 Butler v Attorney General (Vic) [1961] HCA 32; (1961) 106 CLR 268 Carey v Department of Justice and Attorney-General [2002] QIRComm 64; 169 QGIG 804 Christopher Esam and Geoff Organ v SPC Ardmona Operations Ltd - PR957497 [2005] AIRC 338 (Full Bench) Clarke v Mid-North Coast Health Service (Cambridge C, unrep, 1 October 1999) Commissioner of Police v Eaton [2013] HCA 2 Commissioner of Police v Eaton [2011] NSWIRComm 51 Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 176 ALR 693 Cooper v Darwin Rugby League Inc (1994) 57 IR 238 Custovic v State of New South Wales (Department of Family and Community Services - Housing NSW) [2014] NSWIRComm 1007 D'Lima v Board of Management, Princess Margaret Hospital for Children (1995) 64 IR 19 Dadey v Edith Cowan University (1996) 70 IR 295 Decro-Wall International SA v Practitioners in Marketing Ltd [1971] 1 WLR 361; [1971] 2 All ER 216 Elgin Nogaliza v Benale Pty Ltd ATF Fletcher Unit Trust t/as Fletcher International WA [2010] FWA 2667 Fisher v Edith Cowan University (No 2) (1997) 72 IR 464 Geoffrey Organ v SPC Ardmona Operations Ltd - PR953160 [2004] AIRC 1119 Howarth v Mornington Peninsula Shire Council Print R0859, 22 January 1999 (Full Bench) Innes v University of Adelaide (No.2) [2007] FMCA 1988 J Grycan v Table Tennis Australia Incorporated - 834/99 M Print R7452 [1999] AIRC 576 Full Bench) Jarratt v Commissioner of Police (NSW) [2005] HCA 50; (2005) 224 CLR 44 Jeannie Ledington re Jeannie Ledington v University of Sunshine Coast (2003) 127 IR 152 Koompahtoo Local Aboriginal Land Council and Anor and Sanpine Pty Ltd and Anor [2007] HCA 61; 233 CLR 115 Nguyen v Oliveri Transport Services [2005] NSWIRComm 1121 North v Television Corp Ltd (1976) 11 ALR 599 Paul Worthington v Curtin University of Technology - PR957589 [2005] AIRC 357 Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17 Public Service Association of NSW v Industrial Commission of NSW (1985) 11 IR 420 Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385 Salveron v Far West Aboriginal Progress Association [1997] IRCA 10 Skele v Kitchener Mining NL [1997] IRCA 75 Smith v Director-General of School Education [1993] NSWIRComm 134; (1993) 31 NSWLR 349 Victoria v The Commonwealth [1996] HCA 56; (1996) 187 CLR 416 V Trigar v La Trobe University - T2860 [2000] AIRC 509 Texts Cited: B Creighton & A Stewart, Labour Law, 2010, 5th ed,The Federation Press J W Carter, Carter's Guide to Australian Contract Law, 2006, LexisNexis Butterworths N C Seddon and M P Ellinghaus, Cheshire and Fifoot's Law of Contract, 2002, 8th ed, LexisNexis Butterworths Category: Principal judgment Parties: Behka Custovic (Appellant) State of New South Wales (Department of Family and Community Services - Housing NSW) (Respondent) Representation: I C Latham of counsel (Appellant) A B Gotting of counsel (Respondent) Turner Freeman Lawyers (Appellant) Housing NSW (Respondent) File Number(s): IRC 304 of 2014 Decision under appeal Citation: [2014] NSWIRComm 1007 Date of Decision: 2014-03-26 00:00:00 Before: Newall C File Number(s): IRC 760 of 2013