Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012

Industrial Relations Commission New South Wales Medium Neutral Citation: Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012 Hearing dates: 2 December 2019 Date of orders: 28 February 2020 Decision date: 28 February 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Stanton, Commissioner Murphy and Commissioner Webster Decision: (1) In the Application for Leave to Appeal and Appeal by Roland Zopf leave to appeal is refused.

(2) In the Application for Leave to Cross-Appeal and Appeal by the Industrial Relations Secretary on behalf of the Department of Customer Service leave to cross-appeal is granted and the cross-appeal is dismissed. Catchwords: APPEAL – leave to appeal – principles to apply –whether appeal raises substantial issues of principle or law, or issues having any wider application than to the parties themselves – appeal against finding that reinstatement/re-employment was impracticable – Commissioner's findings reasonably open on the evidence - no demonstrable error disclosed – no substantial issue of principle or law having wider implications or widespread practical application – appeal against amount of compensation ordered – exercise of discretion – leave to appeal refused CROSS-APPEAL – statutory framework for dealing with misconduct in the public service – threat of dismissal – resignation – constructive dismissal – leave to cross-appeal granted – cross-appeal dismissed Legislation Cited: Bankruptcy Act 1924-1933 (Cth) Fair Work Act 2009 (Cth) Government Sector Employment Act 2013 (NSW) Police Act 1990 (NSW) Supreme Court Act 1970 (NSW) Industrial Relations Act 1996 (NSW) Industrial Relations Act 1991(NSW) Cases Cited: Allison v Bega Valley Council [1995] 63 IR 68 Antonakopoulos v State Bank of New South Wales [1999] IR 385 Big W Discount Stores v Donato [1995] 58 IR 239 Bond and Director General of Education and Training [2010] NSWIRComm 178 Commissioner of Police v Eaton [2013] 252 CLR 1 Denis James Dominguez and Department of Finance, Service and Innovation [2017] NSWIRComm 1053) Denis James Dominguez v Industrial Relations Secretary (No.2) [2019] NSWIRComm 1003) Health Secretary in respect of Western NSW Local Health District v Health Services Union NSW [2019] NSWIRComm 1086 House v The King [1936] 55 CLR 499 John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] 180 IR 314 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Mace v Murray (1955) 92 CLR 370 Mikhail Karem-Al Fidawy v The Sydney Opera House Trust [2017] NSWIRComm 1077 NSW Commissioner of Police v Cottle [2019] NSWSC 1588 R v Royal Alfred College [1979] 46 SAIR 598 Re Michaelis Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers' Guild Re Dismissal [1979] AR 392 Samantha Hudson v Transport for NSW [2019] FWC 390 Perkins v Grace Worldwide (Aust) Pty Ltd [1997] 72 IR 186 Zopf v Industrial Relations Secretary on behalf of the Department of Finance, Services and Innovation [2019] NSWIRComm 1046 Category: Principal judgment Parties: Roland Zopf (Appellant; Respondent on the cross-appeal)