Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012

Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012

Leave to appeal was refused because the Commissioner’s determination that reinstatement was impracticable and the amount of compensation were reasonably open on the evidence and involved no appellable error; leave to cross-appeal was granted because the interaction of s 69(4)(b) GSE Act and s 84 IR Act raised a question of general importance, but the Commission concluded that resignation under a 'resign or be sacked' situation, even when triggered by statutory process, constituted a constructive dismissal and fell within s 84 IR Act, so the cross-appeal was dismissed.

Parties
Appellant; Respondent on the Cross Appeal: Roland Zopf; Respondent; Appellant on the Cross Appeal: Industrial Relations Secretary on behalf of the Department of Customer Service
Jurisdiction
Australia
Judgment Date
28 February 2020
Procedural Posture
Appeal and Cross Appeal (industrial Relations Commission) / Decision of Full Bench on Application for Leave to Appeal and Cross Appeal
Outcome
Appeal - leave refused; Cross-appeal - leave granted, dismissed
Legal Topics
Unfair Dismissal, Constructive Dismissal, Statutory Interpretation, Jurisdiction of Industrial Relations Commission, Remedies (reinstatement, Compensation)
Industrial Law Public Sector Employment Law Unfair Dismissal Constructive Dismissal Statutory Interpretation Jurisdiction of Industrial Relations Commission Remedies (reinstatement, Compensation)

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Parties

Roland Zopf

Appellant; Respondent on the Cross Appeal

Industrial Relations Secretary on behalf of the Department of Customer Service

Respondent; Appellant on the Cross Appeal

Procedural Posture

Appeal and Cross Appeal (industrial Relations Commission) / Decision of Full Bench on Application for Leave to Appeal and Cross Appeal

Legal Issues

  1. 1 Whether leave to appeal should be granted in relation to refusal to reinstate after unfair dismissal
  2. 2 Whether resignation under s 69(4)(b) of the Government Sector Employment Act 2013 (NSW) constitutes a 'dismissal' within s 84 of the Industrial Relations Act 1996 (NSW)
  3. 3 Whether the findings as to impracticability of reinstatement and amount of compensation involved appealable error

Ratio Decidendi

Leave to appeal was refused because the Commissioner’s determination that reinstatement was impracticable and the amount of compensation were reasonably open on the evidence and involved no appellable error; leave to cross-appeal was granted because the interaction of s 69(4)(b) GSE Act and s 84 IR Act raised a question of general importance, but the Commission concluded that resignation under a 'resign or be sacked' situation, even when triggered by statutory process, constituted a constructive dismissal and fell within s 84 IR Act, so the cross-appeal was dismissed.

Court Disposition

Appeal - leave refused; Cross-appeal - leave granted, dismissed

Orders

  • In the Application for Leave to Appeal and Appeal by Roland Zopf, leave to appeal is refused.
  • In the Application for Leave to Cross-Appeal and Appeal by the Industrial Relations Secretary on behalf of the Department of Customer Service, leave to cross-appeal is granted and the cross-appeal is dismissed.