The following information has been obtained from the Industrial Relations Commission and additional information may also be found here.
Members considering lodging an appeal are also advised to seek advice from the Union prior to lodging an appeal.
Disciplinary decisions which can be appealed against
- deferral of payment of an increment for more than six months
- reduction in rank, classification, position, grade or pay
- imposition of a fine or forfeiture of pay
- annulment of probationary appointment (except teachers)
[Note: An employee may not appeal against a probationary appointment if the period of probation is 3 months or less or if it is more than 3 months, the period is reasonable having regard to the nature and circumstances of the employment.]
- suspension as a punishment where the employee is guilty of misconduct or contravention of any law or any rule or direction of the employer
- dismissal or a direction or requirement to resign (s.97, Industrial Relations Act 1996).
[Note: A decision to annul an appointment made on probation, to dismiss an employee or to direct or require the employee to resign may be appealed against regardless of whether the decision was made for disciplinary reasons.]
A caution or reprimand cannot be appealed against.
Employees may have other rights to challenge a disciplinary decision. The exercise of any such right may exclude an appeal to the NSW Industrial Relations Commission (s.99, Industrial Relations Act 1996).
Time limit for Appeal
A disciplinary appeal must be lodged with the Industrial Registry within 28 DAYS of the date of the decision appealed against. The Commission has no power to extend this statutory time limit (s.100B(2),Industrial Relations Act 1996).
How to Appeal
The printed Notice of Appeal form should be completed. These forms are available from your employer and union offices. Forms may also be obtained from the Industrial Registry or downloaded from our Internet site.
If no forms are readily available, any document sufficiently identifying the decision appealed against should be lodged with the Registrar prior to expiration of the time allowed for appeal.
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.
The Registry hours are 9.00am to 4.00pm, Monday to Friday, inclusive. Remember that the Registry closes for business at 4.00pm. If you post your notice allow time for it to reach the Registry before the deadline. If you fax your notice it must be received before 12 midnight on the closing date.
The telephone number for the Registry is (02) 9258 0866 and the fax number is (02) 9258 0058.
After an Appeal is Lodged
When the Notice of Appeal is filed at the Industrial Registry, applicants will be given a date, time and location for conciliation.
Most cases will be listed for conciliation 3 weeks after filing.
At the time of fixing the date for Conciliation the Registrar shall also require the parties to provide a written case which is to be lodged and served no later than one week prior to the date fixed for the Conciliation.
Conciliation
Conciliation is an important first step in resolving a disciplinary appeal. The purpose of conciliation is to try and resolve an appeal by agreement without proceeding to a full hearing. A disciplinary appeal may not proceed to hearing unless all reasonable attempts to settle it by conciliation have been made. Conciliation is conducted by a Member of the Commission.
Parties who appear before the Commission should do all they can to facilitate the fair and prompt disposal of matters before the Commission. Ways in which this should occur include:
- ready identification of the issues in dispute
- ensuring readiness for the conciliation hearing
- using their best endeavours to resolve the issues in dispute
Jurisdictional Issues
If the employer considers that there are any jurisdictional issues which may prevent the matter from proceeding to a hearing, those issues should be raised at the conciliation. When this occurs, and the matter does not resolve at conciliation, the Commissioner will list the appeal for a jurisdictional hearing. Orders will be made on the parties for the production of documents in relation to the jurisdictional issue. This hearing will be conducted before a member sitting alone and will be held in the formal mode. A decision will be made either allowing or disallowing the jurisdictional challenge. The result of this hearing will determine if the appeal can proceed to a hearing on the merits.
If the parties fail to reach a resolution during the conciliation process and there are no jurisdictional issues, the matter is then listed for formal hearing where a ruling is made as to the merits of the matter. The Commission will ascertain from the parties the number of witnesses to be called and the parties estimate of the time to be allocated and shall make such further directions as necessary in relation to the filing of further documentation. For further information see clause 11 of Practice Note 23. The parties will then be referred to the List Office of the Industrial Registry for allocation of a date for hearing.
[Note: The parties may request that the hearing is chaired by a different Commission Member than the one who conducted the conciliation. This request must be made within 7 days.]
The Hearing
The appeal is a formal one conducted in a manner similar to a court hearing.
The employer’s case is presented first and then the appellant’s. Unless there are unusual circumstances the documentary material provided by the parties which is examined by the Commission prior to the hearing is admitted into evidence.
Although the Commission is not bound by the rules of evidence, witnesses are examined under oath.
At the conclusion of the presentation of the evidence and submissions the Commission will adjourn to consider its decision.
Decisions of the Commission
The Commission has the power to allow or disallow an appeal or make such other order as it thinks fit.
The Commission must publish written reasons for its decision. A copy of the written decision is forwarded to the parties by the Registrar.
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).
Withdrawal of Appeal
An appeal may be withdrawn in writing at any time before the written decision is published and may be verbally withdrawn during the course of the hearing.