Bennett, Stephen (Dr) v Bartlett, David (the Hon) Minister Administering The State Service Act 2000

• Jurisdiction: Tasmania
• Court: Supreme Court of Tasmania
• Judge: Crawford CJ,Evans J,Tennent J
• Judgment Date: 19 October 2009
• Docket Number: 394/2009
• Date: 19 October 2009

[2009] TASSC 95

[2009] TASSC 24

SUPREME COURT OF TASMANIA (FULL COURT)

Crawford CJ, Evans and Tennent JJ

394/2009

Bennett, Stephen (Dr)

and

Bartlett, David (the Hon) Minister Administering The State Service Act 2000

Minister Administering the State Service Act 2000

and

Leary

Aust Dig Industrial Law [1130]

Industrial Relations Act 1984 (Tas), ss31(1), 70(1)(b).

Industrial Law — Tasmania — Industrial Commission — Appeals to Full Bench — Hearings in respect of industrial disputes relating to termination of employment — Commissioner may order that things be done or action be taken for the purpose of preventing or settling an industrial dispute — Appeal to Full Bench from orders made under that provision — Hearing of dispute as to unfair dismissal — Findings that valid reasons for termination and the dismissal not unfair — Commissioner ‘dismissed application’ — Whether appeal to Full Bench incompetent.

REASONS FOR JUDGMENT

FULL COURT

Crawford CJ

1 The appellant was employed by a State-operated general medical practice. His employment was terminated on 19 March 2007. Under theIndustrial Relations Act 1984 (‘the Act’), s29(1A), he applied to the President of the Tasmanian Industrial Commission for a hearing before a Commissioner in respect of an industrial dispute relating to the termination of his employment, which he claimed to have been unfair. The President allocated the matter to a Commissioner for hearing.

2 The hearing occupied several days. The Commissioner reserved his decision. Lengthy reasons for decision were later delivered, the Commissioner concluding that the appellant had failed to prove the termination was unfair, as required by the Act, s30(6). The Commissioner found that the appellant was not unfairly dismissed and concluded his reasons with the statement that, ‘the application is dismissed, and I so Order’.

3 The appellant appealed to a Full Bench of the Commission. Section 70(1)(b) enabled an appeal to be made to the Full Bench by the party who applied for the hearing, against ‘an order made by a Commissioner under section 31(1) after a hearing relating to an industrial dispute in respect of the mode, terms or conditions of employment or any termination of employment, including termination resulting from redundancy, or long service leave, or breach of an award or a registered agreement’.

4 As the respondent to the appeal, the Minister sought and was granted a preliminary hearing before the Full Bench as to the competency of the appeal. It was argued on the Minister's behalf that s70(1)(b) did not enable an appeal against an order of dismissal following a hearing in respect of an industrial dispute relating to the termination of employment, because an order of dismissal was not an order made under s31(1). The Full Bench ruled that the order of the Commissioner was one made pursuant to s31(1), and therefore it was capable of being appealed. Clear reasons for the ruling are not apparent from what the Full Bench published.

5 Under s72(2), the Minister obtained an ordernisi calling on the Full Bench to show cause why the decision should not be quashed in whole or in part. The return of the order nisi was heard by a judge of the Court. Two main issues were considered by the judge.

6 The first issue was whether the decision of the Full Bench was ‘a decision of a Full Bench in respect of an appeal’ as required by s72(2). The learned judge held that it was.

7 The second issue was whether the Commissioner's order of dismissal was an order made under s31(1) as required by s70(1)(b). The learned judge held that it was not, because s31(1) makes no provision for an order that simply dismisses a matter. The learned judge held that for that reason, the Commissioner's order of dismissal was ‘not capable of being the subject of an appeal to the Full Bench pursuant to s72(2)’. The reference to s72(2) was erroneous. The argument before the learned judge concerned s70(1)(b) and it is clear that was the statutory provision the learned judge had in mind. The error in expression can have no affect on the outcome of the case.

8 The learned judge made the ordernisi absolute, ordering that the ruling of the Full Bench made on 17 December 2008 that the order of the Commissioner was one made pursuant to s31(1) and therefore capable of being appealed, be quashed.

The appeal to this Court

9 The appellant appealed to this Court. Only two grounds of appeal were maintained by him. The first was that the learned judge erred in holding that the decision of the Full Bench as to the competency of the appeal before it was a ‘decision with respect to an appeal’ as required by s72(2). The second ground was that the learned judge erred by holding that the Commissioner's order dismissing the application was not an order under s31(1) and accordingly not capable of being the subject of an appeal to the Full Bench pursuant to s70(1)(b).

Was the decision of the Full Bench a decision with respect to an appeal?

10 It was common ground at the hearing of the appeal that the answer to this question is that the decision was one with respect to an appeal. Direct authority for that is...