Kelly v Commissioner of the Department of Corrective Services

The parties in this matter were the appellant, Mr Kelly, and the respondent, the Commissioner of the Department of Corrective Services. Mr Kelly sought to appeal decisions made by the Commissioner, specifically a decision to recommend his dismissal to the Governor and a decision to withhold his salary while he was suspended. The case was heard by the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the Government and Related Employees Appeals Tribunal (GREAT) had jurisdiction to review the Commissioner's decision to recommend Mr Kelly's dismissal to the Governor, and whether it had jurisdiction to review the decision to withhold his salary. These questions hinged on whether the relevant decisions were "disciplinary" in nature, thereby invoking the Tribunal's jurisdiction under sections 23(1)(e) and 23(1)(f) of the *Government and Related Employees Appeals Tribunal Act 1980* (NSW). A further issue concerned whether the Crown's prerogative right to dismiss public employees at pleasure could be fettered by an appeal to the Tribunal, particularly when the appeal was against a recommendation for dismissal rather than the dismissal itself.

The Court of Appeal determined that the Tribunal did not have jurisdiction to review the decision to recommend dismissal. It reasoned that the recommendation was not a disciplinary decision in itself, but rather a step in a process that ultimately led to the Governor's decision to dismiss, which was an exercise of the Crown's prerogative power. The Court held that the *Government and Related Employees Appeals Tribunal Act 1980* did not intend to fetter this prerogative power. Similarly, the Court found that the decision to withhold salary was not a disciplinary action reviewable by the Tribunal. The Court concluded that the existence of a jurisdictional fact, namely that the decisions were disciplinary, was not established.

The Court of Appeal upheld the primary judge's decision, finding that the Tribunal lacked jurisdiction to hear Mr Kelly's appeals. Consequently, the appeals to the Court of Appeal were dismissed.