Commissioner of Police v Eaton [2013] HCA 2: Unfair Dismissal in NSW

A majority of the High Court of Australia today allowed an appeal brought by the Commissioner of Police of NSW against a decision of the Court of Appeal of the Supreme Court of New South Wales which held that the New South Wales Industrial Relations Act 1996 unfair dismissal regime applied to a probationary police officer, in the case of Commissioner of Police v Eaton [2013] HCA 2.

Background and Earlier Proceedings

Eaton, a probationary police officer who had been dismissed under s 80(3) of the Police Act, which permits the dismissal of a probationary police officer at any time and without reason, claimed in his original application to the NSW Industrial Relations Commission that his dismissal was harsh, unreasonable or unjust as defined in s 84(1) of the Industrial Relations Act 1996 (NSW).

On appeal, the full bench of the NSW Industrial Relations Commission held that the NSW Industrial Relations Commission lacked jurisdiction to determine the first respondent's claim and his claim was dismissed. Eaton then successfully appealed this decision to the NSW Court of Appeal for review of the decision of the Full Bench of the NSW Industrial Relations Commission. The Court of Appeal held that the IR Commission had jurisdiction and remitted the matter to the Full Bench to be determined according to law.

The Issues in the Current Decision

On appeal by special leave to the High Court, the Commissioner of Police submitted that the terms of s 80(3) of the Police Act were inconsistent with a right to review under the Industrial Relations Act 1996. 

The majority of the High Court of Australia agreed and held that the Police Act indicated a legislative intention that a decision made under s 80(3) to dismiss a probationary police officer was not to be subject to review by the NSW Industrial Relations Commission in any way.  This was indicated in several ways including the manner in which s 80(3) was framed, the requirement of reasons being different in both Acts and the treatment of confirmed police officers whose only remedy lay in the Police Act.

With the current rise in unfair dismissal claims, this gives rise to questions about which other particular professions may be included or excluded in both the state and federal unfair dismissal regimes.

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