Practice Note No.23


Issue Date:
1 July 2010

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 newmatter raised by the appointee or appellant respectively and will be given an opportunity to respond to anymatter 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 Act1996.
    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 Act1996 and Part 33 of the Uniform Civil Procedure Rules2005 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 Act1996 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 Act1996 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 Rules2005 (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 21as 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 mustbe 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 unlessthere 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 Appealmay 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.



Boland J, President
30 June 2010