Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales

The Director General of the New South Wales Department of Health sought judicial review of a decision made by the Industrial Relations Commission of New South Wales. The dispute concerned the Commission's power to order a public servant to resign, a power the Director General contended was beyond the Commission's jurisdiction. The matter was heard by Spigelman CJ, Tobias JA, and Handley AJA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the Industrial Relations Commission had the statutory power under section 89 of the *Industrial Relations Act 1996* (NSW) to order an employee to resign from their position. This question involved determining the scope of the Commission's jurisdiction, particularly in relation to its power to order re-employment and its ability to impose conditions on employment, such as resignation. The Court was required to consider whether any error made by the Commission in this regard constituted a jurisdictional error apparent on the face of the record.

The Court reasoned that the power to order re-employment under section 89 of the *Industrial Relations Act 1996* did not extend to ordering an employee to resign. The Court found that the Commission had misinterpreted its statutory powers by issuing an order requiring the employee to resign, which was not a permissible form of relief under the Act. This misinterpretation was considered an error on the face of the record, amounting to a jurisdictional error. Consequently, the Court quashed the Commission's order.

The Court of Appeal ordered that the record of the Full Bench of the Industrial Relations Commission be brought before the Court, and that Order 4 of the Full Bench's decision of 2 July 2009 be quashed by order in the nature of certiorari. The matter was remitted to the Industrial Relations Commission to be decided according to law and in conformity with the Court's decision.