Disciplinary appeals

The Government and Related Employees Appeal Tribunal

The Tribunal is an independent body established under the Government and Related Employees Appeal Tribunal Act 1980 (GREAT Act).  One of its functions is to fairly and impartially hear and determine appeals by employees against certain decisions of their employer to dismiss or discipline them.

When hearing an appeal the Tribunal consists of three people:

• a legally qualified Chairperson (appointed by the Governor for a fixed term);
• an employer's representative nominated by the employer; and
• an employee's representative nominated by the relevant association of employees (union).

Most employees of the New South Wales Public Service, Teaching Service and certain statutory authorities (Schedule 4, GREAT Act).

Employees considering lodging an appeal are advised to first seek advice from their union or a solicitor. Parties to a disciplinary appeal may be represented at the hearing by a barrister, solicitor or other person. Information about the procedure for lodging an appeal may also be obtained from the Registry.

• deferral of payment of an increment for more than six months
• reduction in rank, classification, position, grade or pay
• imposition of a fine or forfeiture of pay
• annulment of probationary appointment (except teachers)

Note: An employee may not appeal against a probationary appointment if the period of probation is 3 months or less or if it is more than 3 months, the period is reasonable having regard to the nature and circumstances of the employment.

• suspension as a punishment where the employee is guilty of misconduct or contravention of any law or any rule or direction of the employer

• dismissal or a direction or requirement to resign (Section 23, GREAT Act)

Note: A decision to annul an appointment made on probation, to dismiss an employee or to direct or require the employee to resign may be appealed against regardless of whether the decision was made for disciplinary reasons.

A caution or reprimand cannot be appealed against.

Employees may have other rights to challenge a disciplinary decision, eg: in the Industrial Commission or elsewhere. The exercise of any such right may exclude an appeal to GREAT. (Section 25, GREAT Act)

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A Notice of Appeal must be lodged with the Registry within 28 DAYS of notification to the employee of the employer's decision. GREAT has no power to extend this statutory time limit (Section 29(2), GREAT Act).

The printed form of Notice of Appeal should be completed. These forms are available from your employer and Union offices. Forms may also be obtained from the Tribunal Registry or downloaded from our Internet site: Notice of Appeal (pdf - 236Kb).

If no forms are readily available, any document sufficiently identifying the decision appealed against should be lodged with the Registrar prior to expiration of the time allowed for appeal.

The Notice of Appeal must be lodged in the Registry at Level 2, 1 Oxford Street, Darlinghurst. It may be lodged personally or by post or fax.

The Registry hours are 9.00am to 4.30pm, Monday to Friday, inclusive. Remember that the Registry closes for business at 4.30pm.  If you post or fax your notice allow time for it to reach the Registry before the deadline.

The telephone number for the Registry is (02) 9020 4750 and the fax number is (02) 9020 4790.

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The Mention of the appeal

A mention of the appeal is listed within 2 to 4 weeks after the appeal is lodged. The mentions are listed before the Registrar and commence at 9.15am on Fridays. The parties will be sent a notice advising of the date the appeal has been set down for mention.

The purpose of the mention is to list the appeal for conciliation. The Act requires the Tribunal to attempt to conciliate discipline matters before they can proceed to a hearing.

At the mention the parties will be issued with an order requiring them to provide a written case which is to be filed and served by a specific date. Practice Note No. 4 issued by the Senior Chairperson on 19 May 2003 provides that this written case be provided not less than one week prior to the conciliation date. The parties will also be asked to sign a confidentiality agreement prior to the commencement of conciliation.

Conciliation

This is conducted in a hearing room at the Tribunal's Oxford Street location. It will be conducted by a Chairperson of the Tribunal sitting alone. At the end of the conciliation process if the matter remains unresolved the appeal can then progress to a hearing. The parties may request that the hearing is chaired by a different Chairperson than the one who conducted the conciliation if they so desire. When a decision is made that the issue cannot be conciliated the appeal will be listed for mention before a Chairperson or the Registrar of the Tribunal.

Further Mention

At this mention the appeal will be set down either for a hearing on the merits or a preliminary hearing to hear any jurisdictional argument.

At the mention, if the employer considers that there are any jurisdictional issues which may prevent the matter from proceeding to a hearing, those issues should be raised at this time. When this occurs the Registrar will list the appeal for a jurisdictional hearing. Orders will be made on the parties for the production of documents in relation to the jurisdictional issue. This hearing will be conducted before a Chairperson sitting alone and will be held in the formal mode.  A decision will be made either allowing or disallowing the jurisdictional challenge. The result of this hearing will determine if the appeal can proceed to a hearing on the merits.

Alternatively, the representatives present at the mention should have a background of the issues involved and the availability of the person/s who will conduct the hearing on their behalf.

They should also have knowledge of the availability and number of witnesses to be called. This will assist the Tribunal in setting down convenient hearing dates.

The appeal will be listed for hearing for the number of days considered appropriate to enable the hearing to be completed. At the mention orders will be made for the lodging of a written case and statement of agreed facts. The employer will be ordered to lodge their documents first, usually 3 weeks prior to the hearing and then the appellant is required to lodge their documents, usually 2 weeks prior to the hearing. It is usual practice for a further mention to be listed closer to the hearing date. This mention is to ascertain that the appeal will proceed and that all documents have been lodged.

For ease of identification the written case and statement of agreed facts should be tabulated and indexed. Three copies should be provided to the Registry and one copy to the other side.

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A party requiring the issue of a Summons should make written application to the Registrar prior to the hearing.

Such application should indicate the relevance to the appeal of the evidence sought.

If the Chairperson approves, the summons will be issued and made available for collection at the Registry. See - Practice Note No. 10.

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The appeal is a formal one conducted in a manner similar to a court hearing.

The employer's case is presented first and then the appellant's. Unless there are unusual circumstances the documentary material provided by the parties which is examined by the Tribunal prior to the hearing is admitted into evidence.

Although the Tribunal is not bound by the rules of evidence, witnesses are examined under oath.

At the conclusion of the presentation of the evidence and submissions the Tribunal will adjourn to consider its decision.

The Tribunal has the power to allow or disallow an appeal or make such other order as it thinks fit.

The Tribunal must publish written reasons for its decision. A copy of the written decision is forwarded to the parties by the Registrar. The decision of the Tribunal is final subject only to a right of appeal to the Supreme Court on a question of law (Part 5, GREAT Act).

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An appeal may be withdrawn in writing at any time before the written decision is published and may be verbally withdrawn during the course of the hearing.