McDonald v Commissioner of Police (No 3) [2016] NSWIRComm 1049

Industrial Relations Commission New South Wales Medium Neutral Citation: McDonald v Commissioner of Police (No 3) [2016] NSWIRComm 1049 Hearing dates: 31 October 2016, 10 November 2016, 25 November 2016 and 5 December 2016. Date of orders: 22 December 2016 Decision date: 22 December 2016 Before: Tabbaa C AM, Actg. Chief Commissioner; Stanton C; Newall C Decision: We make the following orders: (1) Leave to appeal is granted. (2) The appeal is dismissed. Catchwords: APPEAL – alleged constructive dismissal of confirmed police officer – whether jurisdiction under s 84 of Industrial Relations Act – rights of appeal for dismissed police officer under Part 9 of Police Act – whether a former police officer who has left Police Force by resignation validly effected under s 72(2) of Police Act can bring a claim under s 84 of the Act – powers of Police Commissioner – appointment and vacation of non-executive police officer positions – whether part 9 of Police Act comprehensive code HELD – cessation of employment was effected by police officer's resignation validly accepted by Police Commissioner pursuant to s 72(2) of Police Act – Part 9 of the Police Act represents a comprehensive code dealing with the power of the Commissioner of Police to bring an employment contract to an end –Commissioner of Police cannot dismiss within the meaning of s.84 – Commissioner of Police cannot constructively dismiss police officer - no dismissal – no power under s 84 to hear application – leave to appeal granted – appeal dismissed. Legislation Cited: Crown Employees Appeal Board Act 1944 (NSW) Government and Related Employees Appeal Tribunal Act 1980 (NSW) Industrial and Employee Relations Act 1994 (SA) Industrial Arbitration Act 1940 (NSW) Industrial Arbitration (Unfair Dismissal) Amendment Act 1991 (NSW) Industrial Relations Act 1996 (NSW) Industrial relations Amendment (Industrial Court) Act 2016 Police Act 1990 (NSW) Police Act 1998 (SA) Police Regulations Act 1899 (NSW) Police Regulation (Appeals) Act 1923 (NSW) Police Regulation (Appeals) Appeal Tribunal (Amendment) Act 1980 (NSW) Police Services Act 1990 (NSW) Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 (NSW) Cases Cited: 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 Alison v Bega Valley Council [ (1995) 63 IR 68; [1995] NSWIRComm 175 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 Commissioner of Police v Eaton (2013) 252 CLR 1; [2013] HCA 2 Commissioner of Police v Eaton (2011) 207 IR 209; [2011] NSWIRComm 51 Eaton v Industrial Relations Commission of New South Wales (2012) 218 IR 289; [2012] NSWCA 30 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Ferdinands v Commissioner for Public Employment [2006] 225 CLR 130; [2006] HCA 5 Jacqueline Sally McNicol and Westco Jeans Pty Ltd [2004] NSWIRComm 111 Marcus Lewandowski v NSW Police Force [2009] NSWIRComm 28 McCabe v NSW Police Service (1996) 99 IR 361; [1996] NSWIRComm 105 McDonald v Commissioner of Police (No 2) [2016] NSWIRComm 1032 Police Association v NSW Police (No 3) (2005) 144 IR 150; [2005] NSWIRComm 243 Police Service of New South Wales v Batton (2000) 98 IR 154; [2000] NSWIRComm 79 Quinn v Leathem [1901] AC 495 Saraswati v R (1991) 172 CLR 1; [1991] HCA 21 Category: Principal judgment Parties: Christian McDonald (Appellant) Commissioner of Police (Respondent) Representation: Counsel: Mr L King SC with Mr B Eurell (Appellant) Mr M Seck (Respondent)