TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s70(1) appeal against an order

Commissioner of Police
(T10313 of 2002)

and

Andrew Scott Gunston

Andrew Scott Gunston
(T10316 of 2002)

and

Commissioner of Police 

 

FULL BENCH: PRESIDENT P L LEARY DEPUTY PRESIDENT R J WATLING COMMISSIONER P C SHELLEY

HOBART, 13 February 2003

                                        

STATEMENT

[1] In a decision issued on 27 June, 2002, in Matter T9986 of 2002, Commissioner Abey determined that Andrew Scott Gunston "be re-employed by Tasmania Police at the rank and salary applicable immediately prior to his termination, such re-employment to take effect from 8 June, 2002."

[2] The Commissioner of Police lodged an appeal against Commissioner Abey's decision pursuant to s.70(1) of the Industrial Relations Act, 1984 (the Act) (T10313 of 2002).

[3] An appeal was also lodged, pursuant to s.70(1) of the Act, on behalf of Mr Gunston (T10316 of 2002).

[4] The Full Bench is required to consider the appeals by reference to the well established principles found in the High Court decision of House v The King (1936) [55CLR499, at 504-505 per Dixon, Evatt and McTiernan] which provides:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such case although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

[5] The appeal applications are not a re-hearing of the matter at first instant.

[6] In consideration of our statutory responsibilities, and having considered the submissions before us in these appeal applications, we have found that Commissioner Abey did not act on any wrong principle, did not allow extraneous or irrelevant matters to guide or affect his decision, he did not mistake the facts and has taken into account all material considerations. Further we are of the view that the decision reached by Commissioner Abey was reasonably open to him and he has properly exercised his discretion in reaching his decision.

[7] We confirm the findings of Commissioner Abey that there existed no valid reason for the termination of Mr Gunston and such termination was unfair.

[8] Commissioner Abey ordered that Mr Gunston be re-employed by Tasmania Police.

[9] The Commissioner of Police seeks to provide further evidence in support of his appeal grounds 23 to 27 that Mr Gunston should not be re-employed as ordered by Commissioner Abey. Mr Gunston's appeal seeks that he be reinstated rather than re-employed.

[10] The applications will be listed for the hearing and determination of those remaining issues in Hobart at 9.30am on Wednesday 19 March, 2003. 

 

P L Leary
PRESIDENT