INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES PRACTICE NOTE NO. 23APursuant to Section 185A of the Industrial Relations Act 1996 and Section 15 of the Civil Procedure Act 2005
PROCEDURES: PUBLIC SECTOR DISCIPLINARY APPEALS
1. The Practice Note applies to proceedings before the Commission under Part 7, Chapter 2 of the Industrial Relations Act 1996 ("the Act").
2. This Practice Note replaces Practice Note 23 and comes into force on 28 October 2019.
3. The purpose of this Practice Note is to facilitate the resolution of public sector disciplinary appeals 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.
4. Procedure generally
4.1. A public sector employee who wishes to appeal a decision made by their employer of the kind listed in subsection 97(1) of the Act must complete and file in the Office of the Industrial Registrar Approved Form 4A within 28 days after the employee is notified of the decision. The Commission has no power to hear appeals which are filed outside this timeframe and no discretion to extend the timeframe.
4.2. Within 7 days of being served with a Notice of Appeal the employer must complete and file in the Office of the Industrial Registrar an Employer's Reply in the form of Approved Form 4B.
4.3. In relation to the production of documents or the attendance of witnesses before the Commission the provisions of Section 165 of the Act and Part 33 of theUniform Civil Procedure Rules 2005 apply.
4.4. In accordance with section 100G(2) of the Act the employer's case is to be presented first.
4.5. 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.
5. Allocation of Listing Date
Upon filing of a disciplinary appeal the Industrial Registrar will cause, within a period of not more than 7 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 of the appeal to the first listing for Conciliation and Directions is 21 days.
6.1. 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:
6.1.3. using their best endeavours to resolve the issues in dispute.
6.1.1. ready identification of the issues in dispute.6.1.2. ensuring readiness for the conciliation hearing,
6.2. Ordinarily, there should be one conciliation only. The Commission, however, may permit a further conciliation.
6.3. If a party fails to appear at a conciliation conference and does not provide a clear and compelling reason for non-attendance, this may result in the appeal being determined in their absence.
6.4. For the purposes of section 100E(2) of the Act any objection to the member who conducted a conciliation pursuant to section 100E(1) sitting as a member to hear the appeal should be lodged within 7 days of the date of such conciliation. Failure to comply with this requirement may have ramifications in costs.
6.5. For the purposes of section 100E(2) of the Act a member of the Commission is not taken to have attempted conciliation merely because:
6.5.1. the member attempted conciliation after commencing the hearing; or6.5.2. 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; or6.5.3. the member arranged or gave directions for the parties or their representative to confer among themselves at a conference at which the member was not present.
7.1. If a preliminary issue, for example, a jurisdictional challenge, is raised at or before the conciliation conference, the member allocated to undertake the conciliation of the matter will determine whether the matter will be heard as a threshold issue or be dealt with after conciliation. If the member determines that the issue should be heard before conciliation then the member will make appropriate directions for the hearing of the issue and determine the question or issue in advance of any conciliation, if required. In cases where the member conducts a conciliation before the hearing of the preliminary issue, and the conciliation fails, directions will be made by that member for the hearing of the preliminary issue.
7.2. If a party exercises its rights under section 100E(2) of the Act the member will forward the file to the Industrial Registrar for reallocation.
7.3. The Industrial Registrar will subsequently advise the parties of a date or dates for hearing and the location for the hearing of the matter.
8. Listed for Hearing
8.1. When conciliation before the Commission is unsuccessful, the usual directions in Paragraph 9 of this Practice Note will operate unless the Commission considers that the "usual directions" should be modified or alternative directions made.
8.2. At the conclusion of any failed conciliation, the Commission will 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.
8.3. Summonses for production of documents may be made returnable before the Industrial Registrar upon any date that the Industrial 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 Industrial Registrar to the Commission to be dealt with on an interlocutory basis.
8.4. 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 appeal, the Commission may make such directions as are necessary in that respect or, alternatively, apply such provisions of Practice Note 21A as may be appropriate to the proceedings.
8.5. The Commission will 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 9 and 10 of this Practice Note.
9. Usual Directions
For the purpose of this Practice Note "usual directions" means directions in the following terms or to the following effect:
9.1. Any objection to the member who conducted a conciliation pursuant to s 100E(1) of the Act sitting as a member to hear the appeal is to be lodged within 7 days of the date of such conciliation.
9.2. All evidence must be in the form of signed written statements. Without leave of the Commission, witness statements (excluding annexures) are not to exceed 10 pages and are to be paginated. Annexure pages should be numbered sequentially following the page numbering of the witness statements. Pages should conform to the requirements of Part 4.3 of the Uniform Civil Procedure Rules 2005.
9.3. The respondent must file and serve any material relevant to the employer's case upon which they will seek to rely within 21 days. Where the employer has not previously filed any Investigation Report prepared in relation to its disciplinary process, that should comprise part of the additional documentation filed by the employer. The respondent's case must include all signed written statements (typed with numbered paragraphs and pages) of the intended evidence of each witness upon which they rely.
9.4. The appellant must file and serve signed written statements 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.
9.5. The respondent must 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.
9.6. Parties must file and serve, at the same time as they file their written statements and any other relevant documentation, a short summary of their case of no more than 5 pages.
9.7. 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.
9.8. Without leave of the Commission, a party cannot rely on any matter that is not contained within the documentation filed and served by the parties.
9.9. Proceedings will 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.
9.10. In the absence of any other period of reasonable notice being fixed by the Commission, cross-examination of a witness will 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.
10. Other Directions
The Commission may make such other directions as it considers appropriate for the just resolution of the issues between the parties.
11. Compliance with Directions
Any directions made under paragraphs 8, 9 and 10 of this Practice Note must be complied with and will apply unless varied by the Commission. 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).
12. Adjournment Policy
12.1. 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 a conciliation or hearing, will not be granted unless there are clear and compelling reasons for the adjournment to occur.
12.2. 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.
12.3. 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 the Commissioner's discretion. It should be clearly understood that such applications will be granted only on clear and compelling grounds.
12.4. 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.
13. Lodgement of Disciplinary Appeals
A Notice of Appeal may be lodged personally or by post.
P M Kite SC, Chief Commissioner9 October 2019