INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
PRACTICE NOTE NO. 23
Pursuant to Section 185A of the Industrial Relations Act
1996 and Section 15 of the Civil Procedure Act 2005
PROCEDURES - PUBLIC SECTOR PROMOTION AND DISCIPLINARY
APPEALS
1. The Practice
Note applies to proceedings before the Commission under Part 7, Chapter 2 of
the Industrial Relations Act 1996.
2. This Practice
Note shall come into force on 1 July 2010.
3. The purpose of
this Practice Note is to facilitate the resolution of public sector promotion
and disciplinary appeal matters before the Commission by ensuring that such
proceedings are conducted in an efficient and expeditious manner and that all
those who appear before the Commission do all they can to facilitate the just,
quick and cost effective disposal of proceedings before the Commission.
PROMOTIONAL APPEALS
4. Procedure
generally
4.1 Unless the
Commission otherwise orders, on good and sufficient reason, the hearing of a
promotional appeal is to be informal.
4.2 Informal
proceedings before the Commission shall not be conducted in an adversarial
manner.
4.3 The persons
entitled to be present at an informal proceeding are:
(a) the appellant
whose appeal is being heard,
(b) a person
appointed by the employer against whose decision the promotional appeal is
brought, being a person appointed generally or in respect of a particular
appeal or class of appeal,
(c) where the appeal
is an appeal under section 94, the employee in whose favour the decision
referred to in paragraph (b) has been made, and
(d) where, in the
opinion of the Commission, the appeal requires the attendance of a person
having specialised knowledge of matters relevant to the appeal, a person
nominated or directed by the Commission to appear.
4.4 A person
entitled to be present at an informal proceeding before the Commission is not
entitled to be represented by any person.
4.5 A person who is
entitled to be present at an informal proceeding:
a) under clause
4.3(a) or (c) - may adduce, orally and in writing, to the Commission such
matters, and address the Commission on such matters, as are relevant to the
appeal, and
b) under clause
4.3(b) or (d)- may adduce in writing to the Commission such matters as are
relevant to the appeal and may, at the request of the Commission, address the
Commission, otherwise than in writing, on any matter, and
c) may produce
documents to the Commission.
4.6 A person who is
entitled to be present at an informal proceeding cannot:
a) call or examine
any witness, or
b) cross-examine
any other such person.
4.7 Informal
proceedings of the Commission are not to be recorded.
4.8 Despite the
provisions of clause 4.1, where a jurisdictional issue is raised in relation to
a promotional appeal, the hearing of such an issue shall determined by way of a
formal hearing (as provided for in clause 7) and the following standard
directions will apply:
a) the employer to
prepare and lodge a written case outlining the jurisdictional argument and
their reasons why they believe the Commission cannot proceed to hear and
determine the promotional appeal,
b) such written
case is to be filed with the Registrar and served on the employees who are
parties to the case on a specified date, such date not being less than 7 days
prior to the date fixed for the hearing,
c) the appellant
to file submissions in response with the Commission, such additional material
must be filed with the Registrar and served on the employer and the other
parties to the case on a specified date, such date not being less than 3 days
prior to the hearing .
5. Listing
5.1 Upon filing of a
promotional appeal the Registrar shall cause, within a period of not more than
seven days from when the time limited for lodging appeals expires, a date to be
fixed for the informal hearing of the matter.
5.2 At the time of
fixing the matter for hearing the Registrar will make the following directions:
a) the employer to
prepare and lodge a written case outlining the selection process and the
reasons for the decision the subject of the appeal (the 'Employer's Case'). The
case must include a copy of the applications for appointment to the position
submitted by the appellant and the appointee.
b) the Employer's
Case is to be filed with the Registrar and served on the employees who are
parties to the case on a specified date, such date not being less than 7 days
prior to the date fixed for the hearing,
c) if the
appellant or appointee propose to file additional material with the Commission,
that such additional material must be filed with the Registrar and served on
the employer and the other parties to the case on a specified date, such date
not being less than 3 days prior to the hearing.
6. Informal
Hearing
6.1 The procedure
for the hearing of a promotional appeal is a matter for the Commission to
determine as the presiding officer thinks fit, however, as a general rule the
following procedure will be followed:
a) The presiding
member will briefly outline the procedure to be followed and will formally
admit into evidence the Employer's Case and any other additional material filed
by the appellant or appointee.
b) The person
representing the employer (generally, the Convenor or a member of the Section
Committee) is a resource to the Commission and is not an advocate for any party
to the appeal. The Commission will look to that person to clarify any matter of
fact that may be subject to dispute that arises during the hearing.
c) The appellant
will be called to address the Commission as to his/her grounds of appeal and
substantiate their claim for having greater merit for appointment to the
position. On completion the Commission may ask questions of the appellant.
d) The appointee
will then be given the opportunity to respond to the appellant’s ground of
appeal and present his/her case. On completion the Commission may ask questions
of the appointee.
e) The appellant
will then be given the right of reply. On completion the Commission may ask
further questions of the appellant.
f) The presiding
member may then ask questions of or seek clarification from the person
representing the employer.
g) Where, pursuant
to clause 4.3(d) the Commission has nominated or directed that a person with
specialised knowledge appear, the Commission may ask questions or seek
clarification of that person.
h) The appellant
or the appointee may be given the opportunity to respond to any new
matter raised by the appointee or appellant respectively and will be given an
opportunity to respond to any matter put to the Commission by the person
representing the employer or, where applicable, of a person with specialised
knowledge who has been nominated or directed to appear by the Commission.
6.2 At the
conclusion of the hearing the Commission will make an order that the parties to
the appeal are to return any documents received from another party to that
other party, including the documents prepared by the employer.
DISCIPLINARY APPEALS
7. Procedure
generally
7.1 The hearing of a
disciplinary appeal is to be formal.
7.2 A person who is
entitled to be present at a formal hearing of the Commission is:
a) the appellant
whose appeal is being heard,
b) the employer,
either in person or by their nominee
and is entitled to representation in accordance with
Section 166 of the Industrial Relations Act 1996.
7.3 In relation to
the production of documents or the attendance of witnesses before the
Commission the provisions of Section 165 of the Industrial Relations Act
1996 and Part 33 of the Uniform Civil Procedure Rules 2005 apply.
7.4 A formal hearing
of the Commission is to be recorded.
7.5 In accordance
with section 100G(2) of the Industrial Relations Act 1996 the employer's
case is to be presented first.
7.6 Except as may be
otherwise determined by the presiding member, the documentary material provided
by the parties will be examined by the Commission prior to the hearing and
admitted into evidence at the commencement of the hearing.
8.
Allocation of Listing Date
8.1 Upon filing of a
disciplinary appeal the Registrar shall cause, within a period of not more than
seven days from when the time limited for lodging an appeal expires, a date to
be fixed for the matter to be conciliated by the Commission and notify the
parties accordingly. The standard or usual time from filing to the first listing
for Conciliation and Directions shall be a period of 21 days.
8.2 At the time of
fixing the date for Conciliation the Registrar shall also require the parties
to lodge and serve a written case setting out the arguments on which the person
relies in relation to the Conciliation hearing on a date being not less than
one week prior to the date fixed for the Conciliation. All documents are to be
numbered, tabulated and indexed.
9.
Conciliation
9.1 Parties who
appear before the Commission should do all they can to facilitate the fair and
prompt disposal of matters before the Commission. Ways in which this should
occur include:
a) ready
identification of the issues in dispute,
b) ensuring
readiness for the conciliation hearing,
c) using their best
endeavours to resolve the issues in dispute.
9.2 Ordinarily,
there should be only one conciliation; however, the Commission may permit a
further conciliation.
9.3 If the appellant
fails to appear at a conciliation conference, and has not provided a clear and
compelling reason for non-attendance, this may result in the appeal being
dismissed.
9.4 For the purposes
of section 100E(2) of the Industrial Relations Act 1996 any objection to
the member who conducted a conciliation pursuant to section 100E(1) sitting as
a member to hear the appeal must be lodged within 7 days of the date of such
conciliation.
9.5 For the purposes
of section 100E(2) of the Industrial Relations Act 1996 a member of the
Commission is not taken to have attempted conciliation merely because:
a) the member
attempted conciliation after commencing the hearing; or
b) the member
arranged or gave directions for a conference of the parties involved in the
matter, or their representatives, to be presided over by the member, but the
conference did not take place or was not presided over by the member; or
c) the member
arranged or gave directions for those parties or their representative to confer
among themselves at a conference at which the member was not present.
10. Preliminary
issues
10.1 If a preliminary
issue for example, a jurisdictional challenge is raised at the conciliation
conference, the Member shall determine whether the matter shall be heard as a
threshold issue or be dealt with after conciliation.
10.2 If the Member
determines that the issue should be heard before conciliation then the matter
shall be referred to the Registrar for allocation to a Member for hearing after
appropriate directions are made and the Member has established the time
required to hear the issue.
10.3 In cases where
the Member conducts conciliation and the conciliation fails, the Member shall
then forward the matter to the Industrial Registrar for allocation to a Member
for hearing.
10.4 Directions will
be made by the Member which may be a modified form of the usual directions if
the matter is to be set down to hear a threshold issue.
10.5 The Registrar
will subsequently advise the parties of a date or dates for hearing and the
court location for the hearing of the matter.
11. Listed for
Hearing
11.1 When conciliation
before the Commission is unsuccessful, the usual directions in Paragraph 12 of
this Practice Note shall operate unless, after application by a party to the
appeal, the Commission considers that the "usual directions" should
be modified or alternative directions made.
11.2 The Commission
shall also ascertain a reasonable estimate of the time required for the hearing
of the appeal, specify in the Commission's opinion the time required for
hearing and make any other appropriate directions having regard to paragraphs
12 and 13 of this Practice Note.
11.3 The Commission
shall, forthwith, refer the parties to the List Office of the Industrial
Registry for the purpose of obtaining a hearing date(s) in accordance with the
Commission's opinion of the time required for hearing and directions which are
made.
12. Usual
Directions
For the purpose of this Practice Note "usual
directions" shall mean directions in the following terms or to the
following effect:-
12.1 All evidence
shall be in the form of signed written statements.
12.2 The respondent
shall file and serve any material relevant to the employer’s case (in addition
to that previously served on the appellant pursuant to clause 8.2) upon which
they will seek to rely within 21 days. Where the employer has not previously
filed the Investigation Report that should comprise part of the additional
documentation filed by the employer. The respondent's case shall include all
signed written statements (typed with numbered paragraphs and pages) of the intended
evidence of each witness upon which they rely.
12.3 The appellant
shall file and serve signed written statements (typed with numbered paragraphs
and pages) of the intended evidence of each witness together with any other
relevant documentation within 21 days of the date fixed for the filing and
service of the respondent’s documents.
12.4 The respondent
shall file and serve any reply to the appellant's documents within 7 days of
the date fixed for the filing and service of the appellant's documents.
12.5 The parties shall
include in or with their written witness statements all matters and documents
upon which they rely or they allege are relevant to the proceedings.
12.6 Parties shall
file and serve at the same time as they file their written statements and any
other relevant documentation - a short summary of their case.
12.7 Without leave of
the Commission, written statements and other documentation filed and served
later than the time specified by the Commission in its directions may not be
relied upon by the party.
12.8 At the conclusion
of any failed conciliation, the Commission shall determine any issues of leave
having regard to the provisions of Part 7.3 of the Uniform Civil Procedure
Rules 2005 (Issue of summons in certain circumstances requires leave) and
make such directions as are necessary in that regard.
12.9 Summonses for
production of documents may be made returnable before the Registrar upon any
date that the Registrar conducts a list. Where orders are sought other than for
photocopy access for both parties or if a claim for privilege or the like is
made, those matters will be referred by the Registrar to the Commission to be
dealt with on an interlocutory basis. Under these arrangements summonses will
be returnable before the Registrar, not the Commission.
12.10 If, in the opinion
of the Commission, the appeal is a matter that requires attendance by a person
with specialised knowledge of issues relevant to the disciplinary appeal, make
such directions as are necessary in that respect or, alternatively, apply such
provisions of Practice Note 21 as may be appropriate to the proceedings.
13. Other
Directions
13.1 The Commission
may make such other directions as it considers appropriate for the just
resolution of the issues between the parties.
13.2 Such other
directions may include directions that:
a) without leave
of the Commission, a party cannot rely on any matter that is not contained
within the documentation filed and served by that party.
b) proceedings
shall be conducted on the written statements and other relevant documentation
filed and served by a party except where reasonable notice is given to the
other party that a witness is required for cross-examination
c) in the absence
of any period of reasonable notice being fixed by the Commission,
cross-examination of a witness shall not be allowed unless at least 7 days
prior to the hearing notice has been given to the opposing party that a witness
is required for cross-examination.
14. Compliance
with Directions
14.1 Any directions
made under paragraphs 5,8,12 & 13 of this Practice Note must be
complied with and will apply unless:
(a) an application
is made after the completion of conciliation and prior to the hearing
(b) where
applicable, the direction is varied during the course of the hearing of the
matter;
(c) any application
to vary directions after the conciliation conference must be made as soon as
possible, in writing and contain full supporting grounds (unless made during
the course of the hearing of the matter).
15. Adjournment
Policy - Promotional or Disciplinary Proceedings
15.1 In accordance
with the Commission's function to provide a forum for the resolution of Appeal
matters in a fair and prompt manner, as a general rule, an adjournment of the
date that is allocated for an Conciliation or Hearing, whether informal or
formal, will not be granted unless there are clear and compelling reasons for
the adjournment to occur.
15.2 The time fixed
for the hearing of an appeal is definite. Any applications for adjournment must
be made in a timely way, be in writing and contain full grounds. Such
applications will be considered and determined by the Commission. It should be
understood that adjournment applications will be granted only on clear and
compelling grounds.
15.3 An application
for an adjournment during the course of an Appeal is a matter for the member
hearing the matter in the proper exercise of his/her discretion. It should be
clearly understood that such applications will be granted only on clear and compelling
grounds.
15.4 In the event that
a party fails to attend at an appeal hearing, the appeal may, in appropriate
circumstances, be heard and determined in the absence of that party.
16. Lodgement of
Appeals - Promotional or Disciplinary Proceedings
16.1 A Notice of
Appeal may be lodged personally or by post or by facsimile.
17. Lapsing of
Appeal and Dismissal - Promotional and Disciplinary Proceedings
17.1 An appeal lapses
if:
(a) the appellant
withdraws the appeal by notifying the Registrar in writing or, if the
Commission has commence to consider the appeal, by informing the Commission, or
(b) in the case of a
promotional appeal:
i. the position
no longer exists, or
ii. the
appointment against which the appeal is made lapses for any reason.
17.2 Proceedings in
relation to a promotional appeal may be dismissed at any time by the Commission
if:
a) the Commission
considers the appeal to be frivolous or vexatious, or
b) the appellant
is, in the opinion of the Commission, not able to put forward an arguable case
in favour of his or her appointment to the position concerned.
17.3 The Commission is
to give the appellant an opportunity to respond to the proposed dismissal of
proceedings.
R. P. Boland J, President
30 June 2010
____________________
Printed by
the authority of the Industrial Registrar.