Briscoe-Hough v Edward River Council [2023] NSWIRComm 1091

Industrial Relations Commission New South Wales Medium Neutral Citation: Briscoe-Hough v Edward River Council [2023] NSWIRComm 1091 Hearing dates: 5 September 2023 Date of orders: 5 September 2023 Decision date: 05 September 2023 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster Decision: Leave to appeal refused Catchwords: APPEAL – leave to appeal – principles to apply – whether appeal raises substantial issues of principle or law, or issues having any wider application than to the parties themselves – appeal against decision not to extend time – date of termination of employment - exercise of discretion - leave to appeal refused Legislation Cited: Local Government Act 1993 (NSW) ss 334, 351(1), 377 Industrial Relations Act 1996 (NSW) s 188 Cases Cited: House v King (1936) 55 CLR 499 Category: Principal judgment Parties: Gregory James Briscoe-Hough (appellant) Edward River Council (respondent) Representation: Advocates: G Briscoe-Hough (appellant, self-represented) S McIntosh (counsel for the respondent)

Solicitors: Russell Kennedy Lawyers (respondent) File Number(s): 2023/180979 Publication restriction: Nil Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: [2023] NSWIRComm 1046 Date of Decision: 16 May 2023 Before: Commissioner Muir File Number(s): 2023/41599

Ex Tempore DECISION (REVISED) 1. The Full Bench required the parties to address the question of leave to appeal as a preliminary issue. Prior to the hearing, the Full Bench received the submissions of the parties and had an opportunity to confer with respect to the matter. Having considered the parties' written and now oral submissions, the Full Bench has decided to refuse leave to appeal. The Full Bench's reasons for that decision are as follows.

Principles on leave to appeal 1. Section 188 of the Industrial Relations Act 1996 (NSW) provides that an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. 2. The principles relevant to a granting of leave to appeal were set out in the respondent's submissions. They are well known and not controversial as between the parties. 3. The appellant's application for Leave to Appeal and Appeal challenges the Decision at [35]-[57] where Commissioner Muir determined that the employment relationship ceased, effective from 6 January 2023. At the hearing today, the appellant confirmed that the point of concern and reasons leave should be granted is to challenge Commissioner Muir's interpretation of the Local Government Act 1993 (NSW). 4. The appellant contended that the Chief Executive Officer of the respondent was on leave when the appellant tendered his resignation on 22 December 2022 and therefore, the Chief Executive Officer was unable to accept it. Commissioner Muir's reasoning in respect of this issue was at [37]-[55]. 5. We have carefully considered the appellant's grounds of appeal, and submissions filed and made before the Commission in these proceedings orally today. The appellant summarised the principles of statutory interpretation at [10] of his submissions in reply. He submitted that Commissioner Muir failed to apply these principles. At [11] of his submissions in reply, and before the Commission today, the appellant contended that if Commissioner Muir's decision were allowed to stand, it would have wide-ranging ramifications across the sector. He says that it is for this reason it must be corrected. 6. We are of the view that the appellant has misconstrued the impact of the Commissioner's decision and interpretation of the Local Government Act. The findings of Commissioner Muir with respect to the appellant's case were clearly confined to the facts and circumstances of the matter before him. We are not persuaded that the decision will have significant broader implications beyond that. 7. Further, although the appellant asserts that Commissioner Muir erred in his interpretation of the Local Government Act, the appellant has not offered a persuasive argument against the Commissioner's interpretation and factual finding that the CEO was not on leave when the CEO received the appellant's resignation. The appellant argued at [12]-[14] of his reply submissions: "When on leave, a general manager (or chief commissioner for that matter in respect of the Commission) is absent and they are unable to lawfully exercise their office, however, a Council (and the Commission) is still required to have a 'person in the seat' (acting) and so [they] 'must' of s 334 of the Local Government Act informs the interpretation of the 'may' in s 351(1) as one of a permissive nature (ie. appropriate and lawful) rather than merely discretionary as the logical extension of not exercising it is that Council has no general manager. This section of the Local Government Act is further reinforced by the exclusions and assigned delegations made by Council under s 377 of the Local Government Act which specifically prohibit the action taken by the general manager, Phil Stone, leaving the post vacant at the time of the 'resignation' and then purporting to appoint Ms Shelley Jones as a replacement and who, unlawfully, executed the termination without appropriate authority. That the general manager, Phil Stone, was on leave and no valid general manager was in place is not in dispute as the respondent's own papers confirm that the Mayor, Cr Betts, recalled the general manager from leave to deal with the Land and Environment case where that superior court had issued orders to deal with the breaches of the Local Government Act noted above. His return rectified the breaches and so the matter was discontinued." 1. The appellant's submissions were consistent with this today. 2. It is important to reflect that in the decision, Commissioner Muir determined that the General Manager was not on leave when the appellant tendered his resignation and met with him at his home to discuss the same. Accordingly, the decision did not turn upon the Commissioner's interpretation that the appointment of a general manager was "allowed" but not "required" by s 351(1). The appellant has not addressed this finding of fact in his appeal submissions in any detail. 3. In any case, even if the appellant were successful in demonstrating error in the Commissioner's interpretation of the Local Government Act, it is not clear that there would be any utility in the appeal. If the appellant's contentions are correct and Commissioner Muir erred in his analysis of the Local Government Act, the result would remain that the appellant's employment ended on 6 January 2023. In this regard, we note and concur with the respondent's submissions at [30]: "Additionally, the Appellant cites no authority as to why it would follow a fortiori that a resignation given orally to the Respondent's General Manager and confirmed in writing to the General Manager, Ms Shelley Jones (the Respondent's Director of Corporate Services) and Peta Betts would be in effective only because as at the time of the oral conversation and the relevant email the Respondent's General Manager was on leave. Even if the Respondent's General Manager being on leave meant that (to adopt the Appellant's words) 'there was no General Manager (as required by s 334 of the Local Government Act) in place as he was officially on approved leave', this does not mean that the email of 22 December 2022 into which Ms Jones was copied was ineffective. As the Commission observed, 'it cannot even be said he accepted the offer of the applicant to resign, as the applicant expressed that he resigned, not that he was offering to resign'." 1. It is not reasonably arguable that the appellant remained employed by the respondent after 6 January 2023. 2. We also note, in respect of the issue of utility, before the Commission today the appellant was somewhat ambivalent as to what would happen in the event that he was successful in this appeal, namely, whether or not he had an intention to pursue the matter beyond the appeal. This is supported by and consistent with what was sought by way of Order by the appellant in the Application for Leave to Appeal and Appeal at 3(5) as follows: "Having determined that no valid application could be lodged, and noting the passage of time in dealing with the proceedings, insofar as they existed, that both parties agree the applicant's employment effectively ceased on 20 January 2023 at the end of his requested leave, and that applicant agrees not pursue the matter further in the IR Commission on the basis that it is now 21 days beyond that date and, further, that no other entitlements or claims in respect of leave or length of service will be sort or payable by the respondent." 1. This reduces the appeal in this matter to an application for an advisory opinion having no practical utility as between the parties. 2. For all of these reasons the Full Bench, having considered the matter and the submissions before the Commission today and those filed in writing, we have decided to refuse leave to appeal. That is the Commission's decision and the reasons for it.

Order 1. The Full Bench makes the following order: 1. Leave to appeal is refused.

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Amendments 15 September 2023 - Capitalisation corrected at paragraph [16]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2023