Marroun v State Transit Authority

Case [2017] NSWCA 273


Court of Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Marroun v State Transit Authority [2017] NSWCA 273
Hearing dates:2 August 2017
Decision date: 24 October 2017
Before: Bathurst CJ; Beazley P; Basten JA
Decision:

(1)   Grant leave to appeal from the judgment in the Common Law Division given on 15 December 2016.

 

(2)   Allow the appeal and set aside orders 1 and 2 made on 15 December 2016.

 

(3)   In place thereof:

 

(a) Allow the appeal under s 197B(1) of the Industrial Relations Act 1996 (NSW) from the decision made by the Industrial Relations Commission of NSW on 4 February 2016;
(b) Set aside the order made under s 100C(2) of the Industrial Relations Act 1996 (NSW) by the Industrial Relations Commission of NSW on 4 February 2016 dismissing the appeal;
(c)   Order that the State Transit Authority pay Mr Marroun’s costs of the hearing of that appeal.

 

(4) Remit the matter to the Industrial Relations Commission for reconsideration of appropriate orders in the appellant’s appeal under s 98 of the Industrial Relations Act 1996 (NSW), according to law.

 (5)   Order that the respondent pay the appellant’s costs of the proceedings in this Court.
Catchwords:

APPEALS – leave to appeal – appeal under Supreme Court Act 1970 (NSW), s 101(3A) – whether subject to leave requirement under s 101(2)(r)

 

APPEALS – right of appeal limited to decision on question of law – whether open to appellant to allege procedural unfairness – circumstances giving rise to an implied decision that process adopted not unfair

  EMPLOYMENT AND INDUSTRIAL LAW – public sector employee dismissed as a result of disciplinary action – employee appealed to Industrial Relations Commission – whether decision of Commission upholding dismissal on basis of uncharged conduct within jurisdiction – whether decision involved procedural unfairness
Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth), s 44
Government and Related Employees Appeal Tribunal Act 1980 (NSW), ss 24, 28, 48, 48A
Industrial Relations Act 1988 (Cth), s 170EE
Industrial Relations Act 1996 (NSW), ss 89, 91, 97, 98, 100C, 100D, 100G, 106, 197B, 355B; Ch 2, Pt 6, Pt 7, Pt 9, Ch 4, Pt 5, Ch 6A; Div 3; Sch 4, Pt 18, cl 66
Public Sector Employment and Management Act 2002 (NSW), ss 41, 46; Pt 2.7
Supreme Court Act 1970 (NSW), ss 69, 101
Transport Administration Act 1988 (NSW), ss 68C, 68P
Transport Administration (Staff) Regulation 2012 (NSW), regs 28, 30, 31; Pt 5
Cases Cited: Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60
Director-General, Department of Ageing, Disability and Homecare v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102
Elleray v Rail Corporation of New South Wales (2014) 86 NSWLR 326; [2014] NSWIRComm 45
Gilmore v Allied Express Transport Pty Ltd [2006] NSWIRComm 16
Grygiel v Baine [2005] NSWCA 218
Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92
Maritime Services Board v Murray (1993) 52 IR 455
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AGLC
Marroun v State Transit Authority [2017] NSWCA 273
Case
[2017] NSWCA 273
Decision Date

CaseChat Overview and Summary

The case of *Marroun v State Transit Authority* concerned an appeal to the Supreme Court of New South Wales by Mr Marroun, a former public sector employee, against a decision of the Industrial Relations Commission (IRC) that upheld his dismissal. The State Transit Authority was the respondent. The appeal to the Supreme Court was brought under section 101(3A) of the *Supreme Court Act 1970* (NSW).

The primary legal issues before the Supreme Court were whether the appeal to the Supreme Court was subject to a leave requirement under section 101(2)(r) of the *Supreme Court Act 1970* (NSW), and whether the IRC had acted within its jurisdiction when it upheld Mr Marroun's dismissal based on conduct that had not been formally charged. Further, the Court considered whether the IRC's decision involved procedural unfairness, and if it was open to Mr Marroun to allege such unfairness given that an appeal under the *Industrial Relations Act 1996* (NSW) is generally limited to questions of law.

The Court reasoned that the appeal to the Supreme Court was not subject to the leave requirement under section 101(2)(r) of the *Supreme Court Act 1970* (NSW). It found that the IRC's decision to uphold the dismissal on the basis of uncharged conduct constituted a jurisdictional error, as it went beyond the scope of the disciplinary proceedings. The Court also determined that the IRC's adoption of a process that did not afford Mr Marroun a proper opportunity to respond to the uncharged conduct amounted to procedural unfairness, and that this was a question of law that could be raised on appeal.

Consequently, the Supreme Court granted leave to appeal, allowed the appeal, and set aside the orders of the Common Law Division. The Court also set aside the IRC's decision dismissing Mr Marroun's appeal and ordered that the matter be remitted to the IRC for reconsideration of appropriate orders. The State Transit Authority was ordered to pay Mr Marroun's costs of the IRC appeal and the proceedings in the Supreme Court.

Orders

Orders of the court

(1) Grant leave to appeal from the judgment in the Common Law Division given on 15 December 2016.

(2) Allow the appeal and set aside orders 1 and 2 made on 15 December 2016.

(3) In place thereof:

(a) Allow the appeal under s 197B(1) of the Industrial Relations Act 1996 (NSW) from the decision made by the Industrial Relations Commission of NSW on 4 February 2016;

(b) Set aside the order made under s 100C(2) of the Industrial Relations Act 1996 (NSW) by the Industrial Relations Commission of NSW on 4 February 2016 dismissing the appeal;

(c) Order that the State Transit Authority pay Mr Marroun’s costs of the hearing of that appeal.

(4) Remit the matter to the Industrial Relations Commission for reconsideration of appropriate orders in the appellant’s appeal under s 98 of the Industrial Relations Act 1996 (NSW), according to law.

(5) Order that the respondent pay the appellant’s costs of the proceedings in this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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