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Tasmanian Industrial Commission

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T13485

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.70(1) appeal

Dr Stephen Bennett
(T13485 of 2009)
and
The Minister administering the State Service Act 2000

HOBART, 26 August 2010

PRESIDENT LEARY
DEPUTY PRESIDENT ABEY
COMMISSIONER GAY 

Appeal against a decision handed down by Commissioner J P McAlpine arising out of T12723 of 2006 – Appeal dismissed

REASONS FOR DECISION

[1] This is an appeal pursuant to s.70(1)(b) of the Industrial Relations Act 1984 (the Act) filed by Dr Bennett (the appellant) on 31 July, 2009, against a decision of Commissioner McAlpine in Matter T12723 of 2006 issued 29 July 2009.

[2] In that matter the Commissioner dismissed the appellant’s application which claimed an alleged breach of the Salaried Medical Practitioners Industrial Agreement 2003 by the Minister Administering the State Service Act (the Minister). The Minister seeks that the appeal be dismissed for want of jurisdiction.

Background:

[3] A previous application by the appellant relating to a claim that his termination of employment by the Minister was unfair was dismissed by Commissioner McAlpine in Matter T12919 of 2007.

[4] An appeal was lodged against the Commissioner’s decision in that matter.

[5] The Minister in that appeal [T13167 of 2008] argued that the Commission did not have jurisdiction to hear an appeal against an application which was dismissed.

[6] The Full Bench determined that jurisdiction did exist.

[7] The Minister made application to the Supreme Court of Tasmania challenging the decision of the Full Bench of the Commission. His Honour Justice Porter found that:

"The Commissioner’s order dismissing the application [by Dr Bennett] was not an order under s.31(1) and accordingly not capable of being subject to an appeal to the Full Bench pursuant to s.72(2). I therefore hold that the Full Bench was wrong to conclude that the appeal by Dr Bennett was competent. The order nisi will be made absolute and the ruling of 17 December 2008 quashed."

[8] Dr Bennett appealed the decision of Porter J to the Full Court of the Supreme Court.

[9] The Full Court dismissed the appeal and reaffirmed the decision of Porter J saying:

"By virtue of s.30(6) [of the Act] the appellant bore the onus of proving to the Commissioner that his employment was unfairly terminated. If he failed to persuade the Commissioner of that, the Commissioner was authorised by s.21(2)(c)(iv) to dismiss the matter. That is what occurred here. There is nothing in s.70(1)(b) authorising an appeal from a dismissal."

The current appeal T13485 of 2009:

[10] The following Directions were issued:

"The appellant, Dr Bennett, is to file comprehensive written submissions, any documentary material or authorities on which he may rely with sam.christensen@justice.tas.gov.au by no later than noon Monday 5 July 2010 with copies to the Minister.

The Minister will file comprehensive written submissions, any documentary material or authorities which may be relied upon in response to the appellant’s submissions with sam.christensen@justice.tas.gov.au by no later than noon Monday 19 July 2010.

The appellant will have a right of response to any submission provided by the Minister and will file his response with sam.christensen@justice.tas.gov.au no later than noon Friday 30 July 2010.

The jurisdiction issue will be determined on the papers."

[11] The appellant sought an extension of time in which to file his submissions. That request was agreed and further Directions were issued extending the dates for submissions to be filed.

[12] The appellant filed the following submission in accord with the amended timetable:

"Thankyou for the opportunity to file a submission in relation to the request by the Minister Administering the State Service Act for dismissal of my appeal, T13485 of 2009.

The Full Court of the Supreme Court confirmed the interpretation of Section 70(1)(b) as not authorising an appeal from a dismissal. I was unsuccessful in my argument to the contrary in support of the decision of the Full Bench of the Industrial Commission.

As a consequence, the Act now is inequitable with respect to appeals from a decision of a Commissioner."

[13] The Minister relied on paragraphs 19 and 20 of the decision of the Full Court of the Supreme Court where the Chief Justice said:

"[19] I respectfully concur with the learned judge when he expressed the view that no amount of generosity in the approach can result in a construction of s.31(1) which is wide enough to include what it is that the Commissioner did in this case."

[20] The appeal should be dismissed."

[14] The appellant has not provided any submission in response within the amended filing date.

[15] In consideration of the submissions provided and the decision of the Supreme Court we dismiss the appeal.

[16] We so order.

 

P L Leary
President