McDonald v Commissioner of Police (No 2) [2016] NSWIRComm 1032

Industrial Relations Commission New South Wales Medium Neutral Citation: McDonald v Commissioner of Police (No 2) [2016] NSWIRComm 1032 Hearing dates: 1 July 2016 Date of orders: 29 July 2016 Decision date: 29 July 2016 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The application by Christian McDonald pursuant to section 84 of the Industrial Relations Act 1996 for relief in relation to unfair dismissal is dismissed for want of jurisdiction Catchwords: POLICE – Senior Constable – application pursuant to section 84 for relief in relation to unfair dismissal – application by the respondent that application be struck out on the ground that the Commission does not have jurisdiction – bullying and harassment at work – discrimination in the course of employment – unwarranted investigation into conduct outside of work hours – diagnosed with depression/anxiety and deemed unfit for work – no option other than to resign from employment – constructively dismissed – rights of appeal for police officers – comparison of rights conferred by Part 9 of the Police Act with rights conferred by Chapter 2 Part 6 of the Act – Part 9 of the Police Act 1990 establishes exclusive scheme whereby dismissed police officers are able seek relief – no jurisdiction under Chapter 2 Part 6 of the Act to hear and determine the applicant's unfair dismissal claim – application dismissed Legislation Cited: Police Regulation Act 1899 Police Regulation (Appeals) Act 1923 Industrial Arbitration Act 1940 Crown Employees Appeal Board Act 1944 Government and Related Employees Appeal Tribunal Act 1980 Police Regulation (Appeals) Appeal Tribunal (Amendment) Act 1980 Police Service Act 1990 Police Act 1990 Industrial Arbitration (Unfair Dismissal) Amendment Act 1991 Industrial Relations Act 1991 Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 Evidence Act 1995 Industrial Relations Act 1996 Police Legislation Further Amendment Act 1996 Police Service Amendment Act 1997 Cases Cited: Ferdinands v Commissioner for Public Employment [2006] 225 CLR 130 Commissioner of Police v Eaton [2013] 252 CLR 1 Eaton v Industrial Relations Commission of New South Wales [2012] NSWCA 30 Merritt & Cobar District Hospital (No. 2) 1973 AR 511 Allison v Bega Valley Council (1995) 63 IR 68 Commissioner of Police v Eaton [2011] NSWIRComm 51 Barry Michael Batton v NSW Police Service [1999] NSWIRComm 327 Police Service of New South Wales v Batton [2000] NSWIRComm 79 Police Association v NSW Police (No 3) [2005] NSWIRComm 243 Marcus Lewandowski v NSW Police Force [2009] NSWIRComm 28 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of Pearcey Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW ([2012] NSWIRComm 33 David Eaton and Commissioner of Police [2010] NSWIRComm 1035 R v Prince Alfred College 46 SAIR 598 Category: Principal judgment Parties: Christian McDonald (Applicant) Commissioner of Police (Respondent) Representation: Counsel: Mr B Eurell (Applicant) Mr M Seck (Respondent)