Public sector employees subjected to certain disciplinary decisions can appeal their employer’s action at the Industrial Relations Commission of New South Wales (Commission). Employees should speak to their union or a lawyer to understand whether they are eligible to appeal. The Commission cannot provide legal advice.
A public sector employee includes a person:
employed in the NSW public service;
employed in the NSW Health Service under Part 1 of Chapter 9 of the Health Services Act 1997 (NSW);
employed as an officer, or a temporary employee, within the meaning of the Teaching Service Act 1980 (NSW);
employed in the Transport Service under Part 7A of the Transport Administration Act 1988 (NSW);
employed as an officer of either House of Parliament;
in any position under the separate control of the President of the Legislative Council, Speaker of the Legislative Assembly, or their joint control; and
employed in the service of the Crown.1
Some public sector employees cannot appeal certain disciplinary decisions at the Commission, including:
a person under contract for a specified time frame or a specified task, for less than six months;
an employee on probation or in a qualifying period in accordance with the terms of their employment contract, if the duration of the period, or the maximum duration of the period is determined in advance and is either three months or less, or the period is reasonable having regard to the nature and circumstances of the employment and the statutory provisions relating to the probationary appointment of the employee;
a casual employee unless they are employed by a particular employer on a regular and systematic basis for six months or more, and would, but for the decision of the employer, have had a reasonable expectation of the employment continuing;2
an employee who has waived, in writing, a right to appeal the decision;
an employee who makes an appeal or institutes other proceedings, or proceedings are instituted on their behalf, in respect of an appealable decision under an Act or law or an industrial award or agreement;3 or
an employee that is exempt under the Industrial Relations Act 1996 (NSW), another law, industrial award or agreement.4
A public sector employee can appeal an employer’s decision to:
defer the payment of an increment to the employee for more than six months;
reduce the employee’s rank, classification, position, grade or pay;
impose a fine or forfeit pay;
annul a probationary appointment;
suspend the employee as a punishment where the employee is held to be guilty of misconduct or contravened any law, rule or direction;
dismiss the employee; or
direct or require an employee to resign.5
Decisions to caution or reprimand an employee cannot be appealed through the public sector disciplinary appeal process. However, employees should consult their union or a lawyer to understand their rights.
A Notice of Appeal – Public sector discipline (Form 4A) must be filed through the NSW Online Registry. A notice can be filed in person at the Registry, by email or post if there are technical difficulties. The Notice must briefly state the relief sought, the reasons for the appeal and attach any relevant documentation. The appellant must also provide a copy of the Notice of Appeal to the employer.
The matter will be allocated to a Member of the Commission and listed for conciliation.6 If conciliation is unsuccessful, the matter will proceed to arbitration and a member will decide whether to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit.7 If the matter proceeds to arbitration the employer’s case will be presented first, but the appellant bears the onus of proving their grounds of appeal.8
The Commission may announce its decision to the parties at the conclusion of the hearing or reserve its decision to properly consider the submissions and any evidence presented during the hearing. A written decision will later be provided to the parties and published on NSW Caselaw.
The application must be lodged within 28 days after the public sector employee is notified of the decision against which the appeal is to be made.9
The Commission’s decision can be appealed to a Full Bench. See ‘Appeals’ for further details.
1 Industrial Relations Act 1996 (NSW) s 91(1).; 2 Ibid s 98.; 3 Ibid s 99(2).; 4 Ibid s 92(1).; 5 Ibid s 97(1).; 6 Ibid s 100E(1).; 7 Ibid s 100C.; 8 Ibid s 100G.; 9 Ibid s 100B(2).
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