22 September, 2010

The Industrial Relations Commission (IRC) is empowered to hear and determine appeals by certain public sector workers (including NSWFB firefighters) against decisions to promote other employees to vacant positions.

The following information has been obtained from the Industrial Relations Commission website. Copies of forms and other information can be obtained here:

Right of Appeal

Employees who meet the essential qualifications required and who have unsuccessfully applied for the vacant position may have a right of appeal to the Commission against the employer’s decision to appoint another employee to it.

There are some circumstances in which the right of appeal is excluded. For example, there is no right of appeal if the position carries a maximum salary greater than the maximum salary applicable to a Clerk’s position graded Grade 12 in the Public Service or if the person appointed is an outside applicant, i.e. not an ’employee’ as defined.

Grounds of Appeal

The statutory ground of appeal is that the appellant is more entitled to appointment than the employee selected.

The form of notice of appeal requires an appellant to set out particulars of the grounds relied upon.

Considering lodging an appeal

• review your application for the position against the advertised criteria;

• speak with the Convenor or a member of the Selection Committee which considered your application to ascertain the reasons for your non-selection;

• if you consider that an error has been made and you are more entitled to the appointment, think carefully about the grounds upon which you would base an appeal;

• remember the decision whether to appeal is entirely your own. You should not be influenced by others in making this decision.

If you decide to appeal

• Complete the approved form of Notice of Appeal which is also available from Personnel Sections and union offices. Forms may also be obtained from the Commission Registry.

• Complete that section of the Notice setting out the grounds of your appeal with particular care. The Commission will carefully examine your stated grounds and expect the conduct of your appeal to be consistent with them at the subsequent hearing.

• Ensure that the referees you nominate on the Notice are persons with current knowledge of your work performance.

• Contact the Registry for assistance if you have any questions.

Where appeals are lodged

The Notice of Appeal must be lodged in the Registry at Level 1, 47 Bridge Street, Sydney. It may be lodged personally or by post or fax

When appeals must be lodged

The Notice of Appeal must be lodged in the Registry within 21 DAYS of the date borne by the Notice published by the employer containing particulars of the appointment appealed against. Note that the Commission has no power to extend this statutory time limit. Remember that the Registry closes for business at 4.00pm daily. However, appeals can be lodged by facsimile transmission until 12.00 midnight on the closing date. If you post or fax your Notice allow time for it to reach the Registry before the deadline.

After an appeal has been lodged

The Registrar will send a copy of the Notice of Appeal to the employer.

When the time limit for lodging of appeals expires, a hearing date will be fixed. This will usually be 4-6 weeks ahead, depending on the current workload of the Commission. A notice of the date and time of hearing will be sent to the parties to the appeal.

At the same time an Order will issue requiring the employer to prepare and lodge a written case outlining the selection process and the reasons for the decision the subject of the appeal. The case must include a copy of the applications for appointment to the position submitted by the appellant and the appointee.

Copies of the written case must be supplied to the Registrar and the employees who are the parties to the appeal by a specific date, usually at least 7 calendar days prior to the hearing.

If your appointment is the subject of an appeal

The employer in whose organisation the position is located will be sent a copy of the Notice of Appeal.

Upon the expiration of the time allowed for the lodging of appeals, the Registrar will forward to you, care of the employer, a notice of the date and time set down for the hearing of the appeal and a copy of the Notice of Appeal. Usually at least 7 calendar days before the hearing date you will be provided with a copy of the employer’s written case. Contact the Registry for assistance if you have any questions.

Persons entitled to be present at appeal hearing

All promotion appeals are heard at informal sittings of the Commission unless the Commission Member directs there be a formal sitting.

The appellant, the appointee and a person appointed by the employer (usually a person who took part in the selection process and/or who has responsibility for the work of the position the subject of the appeal) are the only persons entitled to be present at an informal hearing.

Formal hearings, which are rare, are open to the public and the parties may be represented. Such hearings are Court-like with witnesses giving evidence on oath and being subject to cross-examination. The description of a Commission hearing later in this brochure refers to an informal hearing.

Preparing for the appeal hearing

• The employer is issued with an order that their written case is to be supplied to you and the Commission. This is usually 7 calendar days prior to the hearing.

• Upon receiving the written case you should consider if there is any additional material you wish to produce to the Commission.

• Remember the Commission will already have your original application from the written case supplied by the employer. You should avoid presenting material which duplicates information.

• To facilitate proceedings at the hearing, any additional information MUST be submitted to the Commission and all parties to the appeal at least 3 calendar days prior to the hearing date. This information may include material that was unavailable at the time of application or may have since become relevant, e.g. by reason of the specific findings of a Selection Committee. It is in the interests of all parties to ensure that the Commission and other parties have sufficient time to examine the material.

• Any material produced and returned to you by the Selection Committee should also be submitted to the Commission at least 3 calendar days prior to the hearing.

• It is important to note that any material not lodged with the Registry within this timeframe WILL NOT be accepted by the Commission.

• The Commission requires 1 copy of any additional material submitted by any party to the appeal. Material submitted by the parties to the appeal CANNOT be sent to the Registry by facsimile, the material must be lodged in person or by mail.

• Please note the provision of sufficient copies is your responsibility. The Registry does not have the capacity to photocopy documents for you.

• Consider the points you wish to make so that they can be clearly and succinctly put to the Commission. Having notes of the salient matters to refer to will usually be of assistance.

• It should be remembered that the Commission will determine the appeal in favour of the employee with the greatest merit. If the employees are considered to be equal the appeal will be disallowed. This should always be remembered in preparing and conducting your appeal. The onus is on the appellant to convince the Commission that they have greater merit than the recommended officer.

Withdrawal of appeals

An appeal may be withdrawn in writing at any time prior to the conclusion of the hearing.

If, prior to the hearing, an appellant decides to withdraw, notice of withdrawal must be lodged IN WRITING with the Registrar. This should be done immediately, by fax if possible, to avoid undue inconvenience to the employer, the appointee and the Commission.

If an appellant decides to withdraw the appeal after the hearing has commenced, the Commission Member should be informed and the proceedings will be concluded.

Lapsing of an appeal

Practice Note 23 contains a provision that an appeal lapses if the position appealed against no longer exists or if the appointee can no longer take up the duties of the position.

If this occurs the Registry will forward a notice to the appellant along with a copy of the advice from the employer notifying that the appeal has lapsed under the Practice Note.

The hearing

When you arrive at the Commission for the hearing inform a staff member in the Registry of your attendance.

The Registry staff will assist you if you have any questions prior to the hearing.

Adjournments

An adjournment will only be granted on clear and compelling grounds. See further clause 15 of Practice Note 23.

At the commencement of the hearing the Commissioner will briefly outline the procedure to be followed. This is outlined in clause 6 of Practice Note 23.

Generally, the appellant is invited to address his/her grounds of appeal and to present his/her case. On completion the Commission may ask questions of the appellant.

The appointee will then have the opportunity to respond to the appellant’s grounds of appeal and to present his/her case. On completion the Commission may ask questions of the appointee.

The appellant may then be given the opportunity to reply and respond to any new matter raised by the appointee.

When the questioning and final remarks have concluded the Commission will adjourn to consider its decision.

The parties MUST, before leaving the Commission’s premises, return any documents received from another party in respect of the appeal including the document prepared by the employer.

Decision of the Commission

The Commission normally reaches its decision on the day of the hearing. The parties are informed that they may contact the Registry by telephone later in the day to ascertain the result.

The Act requires the Commission to publish written reasons for its decisions. These written reasons are usually forwarded to the parties by the Registrar within two weeks of the hearing.

Decisions are final except for a right of appeal to the Full Bench of the Industrial Court on a question of law (section 197B, Industrial Relations Act 1996).