High Court: NSW Industrial Relations Commission had jurisdiction to hear police officer’s unfair dismissal claim

The High Court has found that the NSW Industrial Relations Commission (NSWIRC) has jurisdiction to hear and decide the unfair dismissal claim of a medically retired NSW police officer.

Mr Cottle was a non-executive police officer who was medically retired by the NSW Police Commissioner (the Commissioner) under section 72A of the Police (NSW) Act 1990 (Police Act).

Mr Cottle brought a claim for unfair dismissal under section 84 of the Industrial Relations (NSW) Act 1996 (IR Act). Part 6 of Chapter 2 of the IR Act gave the NSWIRC jurisdiction to review the dismissal of “any public sector employee”, including any member of the NSW Police Force.

In an appeal by the Commissioner, the High Court unanimously ruled that the NSWIRC had jurisdiction to hear and decide Mr Cottle’s application for an unfair dismissal remedy. The court held that section 72A of the Police Act did not exclude or modify the application of Pt 6 of Chapter 2 of the IR Act.

The majority distinguished section 72A from the power to dismiss probationary police officers in section 80(3) of the Police Act, which was held to be inconsistent with section 84(1) of the IR Act in Commissioner of Police (NSW) v Eaton [2013] HCA 2. Section 72A was also distinct from the very similar power under Section 50 to cause the retirement of executive police officers, which was expressly immune from the scope of Pt 6 of Ch 2.

Sources:

• High Court summary, available here

• NSW Police Commissioner v Cottle [2022] HCA 7, March 16, 2022.

Free 14-day trials for any CCH Pinpoint practice area are now available. CCH Pinpoint is an invaluable resource for legal professionals, with in-depth content in 33 practice areas.

Comments are closed.