› Remedies — re-employment at lower rank — whether s 89(2) Industrial Relations Act 1996 limited to equivalent position
Industrial law
› Police officers
› Removal — review by Industrial Relations Commission — application of IR Act remedial provisions
Judicial review
› Jurisdictional error
› Industrial Relations Commission — privative clause — [name withheld] v IRC — scope of review
Statutory interpretation
› Legislative history
› Implied limitation — whether re-employment power confined to equivalent or comparable position
Quick Take
1Section 89(2) of the Industrial Relations Act 1996 (NSW), applied to police removal reviews by s 181G of the Police Act 1990, empowers the IRC to order re-employment in 'another position' at a lower rank or grade. The position need not be equivalent or similar to the one previously held. The only express limits are that reinstatement is impracticable, the position is available, and the IRC considers it suitable. This contrasts with the 'terms not less favourable' qualification in s 89(1) and is supported by the legislative history.
2The IRC's power to order re-employment at a lower rank is not inconsistent with, and is not impliedly excluded by, the Commissioner's disciplinary power to reduce rank under Part 9 of the Police Act 1990. The two powers operate in different circumstances and on different criteria, and the IRC already reviews disciplinary demotions under s 174.
3The Court assumed, without deciding, that ordering re-employment without a finding that it was practicable would be jurisdictional error. Whether s 89(2) permits re-employment in a higher position was expressly left open. On the facts, there was ample evidence (including service history, specific references and the Commissioner's concessions) supporting the finding that re-employment as a Senior Constable was practicable.
