In a decision handed down on 23 February 2018, the Industrial Relations Commission refused to grant an interlocutory application for interim reinstatement of a public servant dismissed by his employer despite filing an application claiming threatened dismissal immediately prior to his dismissal.
Mr Graham Smith was employed in NSW Treasury and for reasons not set out in the decision, was about to have his services terminated. Acting to prevent this from occurring, he filed an application under s.84 of the Industrial Relations Act 1996 (the Act) seeking a remedy for his threatened dismissal (using the extended definition of ‘dismissal’ in s.83(5)(a) ie dismissal covering the threat of dismissal).
However, prior to this matter being listed before the Commission, and indeed only a short time after his s.84 application had been filed, Mr Smith’s employer terminated his services. It appeared the employer’s decision of intent to terminate had been made without Mr Smith’s knowledge.
This situation led to Mr Smith making an interlocutory application for the Commission to act pursuant to its powers under s.89 of the Act to reinstate him pending a determination of his unfair dismissal claim
Consideration and finding
Commissioner Newall considered the matter and determined the Commission had no power to reinstate Mr Smith on an interim basis despite claims on behalf of Mr Smith that such powers could be implied under s.89.
This did not stop the Commissioner from making comments which could be seen as implied criticism for the Department’s decision to go ahead and terminate Mr Smith despite being aware of the s.84 application for the assistance of the Commission.
Commissioner Newall found that once Mr Smith had been dismissed, his rights under s.84 remained untrammelled and constituted the whole of the powers given to the Commission to deal with such matters.
Tips for public sector and local government
While most employers in the public sector would normally use an employee’s s.84 application to be dealt with prior to taking any other action, it is clear from the comments of the Commission that proceeding to terminate an employee notwithstanding such an application for relief does not constitute a breach of the Act.
Smith v Secretary of the Treasury  NSWIRComm 1012 (23 February 2018)
Graham Evans is the Managing Partner of O'Connell Workplace Relations, a Sydney-based provider of independent investigations into workplace issues. He has over 20 years' experience in working with NSW State and Local Government to deal with complex issues within their workplaces.