Marcus Lewandowski v NSW Police Force [2009] NSWIRComm 28

Marcus Lewandowski v NSW Police Force [2009] NSWIRComm 28

Although the applicant gave a reasonable explanation for the delay and the extension of time was granted, the substantive application failed because the applicant voluntarily and consciously resigned after obtaining other employment, the employer's investigation was not conduct compelling or initiating termination, and there was no legal obligation on the Police Force to accept withdrawal of the resignation where it was not tendered in the heat of the moment and was processed within a reasonable time in the normal course.

Jurisdiction
Australia
Judgment Date
18 March 2009
Procedural Posture
Application Under S84 of the Industrial Relations Act 1996 for Relief From Alleged Unfair Dismissal, With an Application for Extension of Time Under S85 / Final Decision
Outcome
Extension of time granted; application dismissed.
Legal Topics
['unfair Dismissal' 'constructive Dismissal' 'resignation' 'withdrawal of Resignation' 'extension of Time' 'police Employment']
['industrial Relations' 'employment Law'] ['unfair Dismissal' 'constructive Dismissal' 'resignation' 'withdrawal of Resignation' 'extension of Time' 'police Employment']

Case Brief

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Procedural Posture

Application Under S84 of the Industrial Relations Act 1996 for Relief From Alleged Unfair Dismissal, With an Application for Extension of Time Under S85 / Final Decision

Legal Issues

  1. 1 ['Whether the applicant should be granted an extension of time to bring the s84 application under s85 of the Industrial Relations Act 1996.' "Whether the applicant's resignation amounted to a constructive dismissal by the NSW Police Force." 'Whether the NSW Police Force was obliged to permit the applicant to withdraw his resignation before it was accepted by the Commissioner or delegate.' 'Whether the circumstances surrounding the termination by resignation were harsh, unreasonable or unjust.']

Ratio Decidendi

Although the applicant gave a reasonable explanation for the delay and the extension of time was granted, the substantive application failed because the applicant voluntarily and consciously resigned after obtaining other employment, the employer's investigation was not conduct compelling or initiating termination, and there was no legal obligation on the Police Force to accept withdrawal of the resignation where it was not tendered in the heat of the moment and was processed within a reasonable time in the normal course.

Court Disposition

Extension of time granted; application dismissed.

Orders

  • ['The application under s84 of the Industrial Relations Act 1996 in Matter No. IRC81 of 2008 is dismissed.' 'There shall be no order as to costs.']