DISPUTE RE DISCIPLINARY PROCESS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00399

DELIVERED : THURSDAY, 27 JULY 2023

FILE NO. : C 13 OF 2023

Applicant

AND

Department of Fire and Emergency Services

Respondent

CatchWords : Whether Union seeks for Commission to regulate discipline in employment – Commission cannot exercise powers where provision exists in another statute for discipline and right of appeal – Objection to jurisdiction upheld

Legislation : Fire Brigades Regulations 1943 (WA): r 136, r 137A, r 137C, r 137F, r 137G, r 137H, r 138(2)(h), r 139, r 140

Industrial Relations Act 1979 (WA): s 23(3)(d), s 44

  Interpretation Act 1984 (WA) s 46

Result : Application dismissed

Representation:

Applicant : Mr V N Ghosh (of counsel)

Respondent : Mr J Carroll (of counsel)

Case(s) referred to in reasons:

Australian Medical Association (WA) Incorporated v Child and Adolescent Health Service (CAHS) [2022] WAIRC 00763; (2022) 102 WAIG 1438

Health Services Union of Western Australia (Union of Workers) v Director General of Health in Right of the Minister for Health as the Metropolitan Health Service, the South West Health Board and the WA Country Health Service [2008] WAIRC 00215; (2008) 88 WAIG 543

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476

Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2013] WAIRC 00706; (2013) 93 WAIG 1439

Reasons for Decision

1         The United Professional Firefighters Union of Western Australia (Union) filed an application requesting a s 44 conference to resolve a dispute with the Department of Fire and Emergency Services (DFES) over the disciplinary process it said DFES started in relation to one of its members (Application).

2         On 21 February 2023, a senior firefighter was served with a ‘Please Explain’ letter from Fire and Emergency Services Commissioner Klemm (FES Commissioner). The letter alleged that the senior firefighter’s comments on social media may constitute an offence under the Fire Brigades Regulations 1943 (WA) (FB Regulations) and requested the senior firefighter provide a written response or explanation prior to the FES Commissioner determining what action, if any, would be taken in relation to the matter.

3         The Union says that the senior firefighter’s comments on social media do not constitute a breach of the FB Regulations because they were directed at the Union. It says that pursuing the disciplinary process in this instance is inappropriate and DFES is trying to limit communication between the Union and its members by commencing the disciplinary process.

4         DFES says the Commission lacks jurisdiction to deal with this matter because s 23(3)(d) of the  Industrial Relations Act 1979 (WA) (IR Act) does not allow the Commission to regulate discipline in employment where provision for or in relation to discipline, including a right of appeal, is prescribed by other legislation. DFES argues that Division 3 of the FB Regulations has provision for or in relation to discipline for firefighters, including a right of appeal.

5         The Union says that s 23(3)(d) of the IR Act is not engaged, because the ‘Please Explain’ letter process is outside the FB Regulations and the dispute itself is between the Union and its member, not the Department and employee.

What must I decide?

6         I must decide if the Union asks the Commission to regulate discipline in employment for one of its members, in circumstances where the FB Regulations provide for the discipline of employees, and an avenue for appeal, such that s 23(3)(d) of the IR Act is engaged.

Legislation and legal principles

7         Section 23(3)(d) of the IR Act provides:

 23. Jurisdiction of Commission

…

  (3) The Commission in the exercise of the jurisdiction conferred on it by this Part must not —

…

(d) regulate the suspension from duty in, discipline in, dismissal from, termination of, or reinstatement in, employment of any employee or any one of a class of employees if there is provision, however expressed, by or under any other Act for or in relation to a matter of that kind and there is provision, however expressed, by or under that other Act for an appeal in a matter of that kind;

…

8         In Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2013] WAIRC 00706; (2013) 93 WAIG 1439 (Sell’s case), Kenner C (as he was then) said at [17]: ‘[s]ection 23(3)(d) is a clear statement of legislative intention that the Commission shall not exercise its powers in relation to the specified subject matter, if there is “provision, however expressed”, for that same subject matter, including a right of appeal, prescribed by other legislation. This provision is clearly intended to prevent matters within the prescribed subject matter, from being dealt with in more than one jurisdiction.’

9         Disciplinary matters for firefighters are dealt with in Division 3 of the FB Regulations. Under r 136, the FES Commissioner has various options available to him if he becomes aware that an employee may have committed a breach of discipline, including making a disciplinary charge against the employee.

10      If a disciplinary charge is made, the FES Commissioner must record the charge in writing and comply with r 137A.

11      Under r 137A, the FES Commissioner must give the employee a copy of the charge and direct the employee to state in writing whether he or she admits or denies the charge.

12      Under r 137C, the FES Commissioner must conduct an inquiry in relation to the disciplinary charge as soon as practicable, the procedure for which is set out in r 139, and then make a finding about whether or not the employee has committed a breach of discipline. If the FES Commissioner finds that the employee committed a breach of discipline, the FES Commissioner must decide whether to take disciplinary action, improvement action, both disciplinary and improvement action or no action.

13      Regulations 137F and 137G provide for rights of appeal. Under r 137F, if the decision maker was a delegate of the FES Commissioner, the employee may appeal against the finding or decision to the FES Commissioner. Under r 137G, if the decision maker was the FES Commissioner (or if the FES Commissioner makes a decision on appeal under r 137F), the employee may appeal to the Appeal Board constituted under the FB Regulations. Under r 138(2)(h), an appeal brought under r 137F or r 137G ‘may be brought on the grounds of innocence of the disciplinary charge or excessive severity of the action taken under r 137D.’

14      Appeals are further regulated by r 137H to r 140 of the FB Regulations.

Background

15      Under the heading ‘What is the dispute about?’, the Union’s Form 1B – Application for a Conference – s 44 states:

1. An industrial dispute exists between the United Professional Fire Fighters (sic) Union (Union) and the Department of Fire and Emergency Services (DFES) over the disciplinary process DFES has commenced in relation to Senior Firefighter Niall Baron (SFF Baron).

2. On 19 December 2022, the Union created a new post on the Union’s own Facebook page, the United Firefighters Union of Western Australia (the Union’s Facebook page), congratulating Trainee Firefighter School 89 on their graduation which occurred on 16 December 2022.

3. On 21 February 2023, SFF Baron was served with a ‘Please Explain’ letter signed by Commissioner Klemm. A copy of the ‘Please Explain’ letter is attached to the application and marked “Attachment A”.

4. The allegation made against SFF Baron alleging a potential breach of Regulation 134(e) of the Fire Brigade Regulations 1943, relates to instances or actions in which an employee is “guilty of disgraceful or improper conduct either in his official capacity or otherwise” (the Regulations).

5. The Union is of the view that the comment posted by SFF Baron on the Union’s Facebook page was directed at the Union and not at DFES employees. The comment was made in relation to a conversation the Union had had with a separate member around the (sic) 15 December 2022, prior to the formal graduation.

6. On 23 February 2023, Katherine O’Hara called Rick Zuiderduyn, Director Professional Standards, to clarify the Department’s understanding of the comment and determine the basis of the letter.

7. During the conversation, Mr Zuiderduyn confirmed that even though the comment may have been directed at the Union, the concern from the Department’s perspective was around how the comment may be perceived by other employees.

8. The Union disagrees that SFF Baron has potentially breached any of the policies referred to in the letter at “Attachment A”, or that he has potentially breached the Regulations, as the comment was not targeted at DFES employees, DFES as the employer or at the public; rather the comment was intended as criticism of the Union.

9. The Union is of the view that the Department is not in (sic) dealing in fact but rather hypotheticals, and that pursuing the formal disciplinary process in this instance is inappropriate.

10. Further, the Union is of the view that the Department is attempting to limit the members’ ability to communicate with the Union by commencing the disciplinary process.

16      On page 6 of the Form 1B, the Union confirms that the issues outlined above at [15] remain in dispute between the parties.

17      Under the heading ‘What are you seeking?’, the Union states:

1. The Union requests a compulsory conference be convened under Section 44 of the Industrial Relations Act 1979 (WA) to resolve the issues in dispute.

2. The Union respectfully requests that the disciplinary process is paused until such time as the dispute is resolved.

3. In the alternative, if the Commission is of the view that there is a sufficient connection to the comment made on the Union’s Facebook page by SFF Baron to his employment with DFES, the Union’s position is that pursuing this matter through the formal disciplinary process is an unnecessary escalation of the issue that should instead be dealt with at the lowest possible level.

4. Such orders and or/directions (sic) the Commission deems necessary to resolve the dispute.

DFES’ submissions

18      DFES argues that the Commission must first characterise the essential nature of the proceedings: Australian Medical Association (WA) Incorporated v Child and Adolescent Health Service (CAHS) [2022] WAIRC 00763; (2022) 102 WAIG 1438 at [5].

19      DFES says the first paragraph of the Application states that an industrial dispute exists between the parties ‘over the disciplinary process DFES has commenced in relation to’ one of the Union’s members, and the Application goes on to state that a ‘Please Explain’ letter was sent to its member. That ‘Please Explain’ letter was authored by the FES Commissioner. It refers to the possibility that the alleged conduct may constitute an offence under the FB Regulations and says: ‘I am giving you the opportunity to provide a written response/explanation to the above matter … prior to me determining what, if any, action I will take with regards to the matter.’ The Union says it disagrees that its member has potentially breached any of the policies referred to in the ‘Please Explain’ letter, and at [9] of the Application the Union says ‘pursuing the formal disciplinary process in this instance is inappropriate.’ The Union then seeks for the ‘disciplinary process [to be] paused until such time as the dispute is resolved’ and appears by proposed order 3 to seek final orders that the matter not be dealt with as a disciplinary matter.

20      In essence, DFES argues that the Commission lacks jurisdiction because:

a. there is provision by or under an Act (other than the IR Act), namely the Fire Brigades Act 1942 (WA) (FB Act), (by virtue of s 46 of the Interpretation Act 1984 (WA) (Interpretation Act), for or in relation to discipline for firefighters; and

b. there is provision by or under that same Act for an appeal in a matter relating to discipline for firefighters.

In those circumstances, DFES says s 23(3)(d) of the IR Act operates to prevent the Commission from regulating discipline in relation to firefighters.

21      To the extent the Union says the Commission should not ‘rely too much on the wording of the relief sought’ in the Application, DFES says that submission is inconsistent with authority and logic. The Application as drafted is before the Commission and the Union has not sought leave to amend the Application. But in any event, the Commission can infer from the Application, and the Union’s submission at [41] of its written submissions confirms, that the Union’s goal is to prevent any disciplinary process from proceeding. Accordingly, through the Application the Union seeks for the Commission to regulate discipline.

22      DFES says it is plain that the Union seeks for the Commission to regulate the discipline of the Union’s member. This is because:

a. the Application substantively relates to a potential breach of discipline as alleged by the FES Commissioner, as defined under the FB Regulations; and

b. the Union wants to prevent the FES Commissioner from dealing with the matter as a disciplinary matter under the FB Regulations.

23      DFES argues that the orders sought are orders to prevent the FES Commissioner from dealing with the matter as a disciplinary matter both on an interim and final basis.

24      DFES submits that if the Commission were to make the orders sought, the Commission would be taking away the FES Commissioner’s discretion about whether to deal with the matter by way of a disciplinary process under the FB Regulations. That would have the effect of regulating discipline for a firefighter, which the Commission cannot do because of s 23(3)(d) of the IR Act.

25      DFES says it does not matter why the Union seeks those orders. It does not matter that the Union says the alleged conduct does not bear sufficient connection to employment to warrant disciplinary intervention or because it is alleged that taking such action contravenes ‘some vaguely articulated principle of freedom of association.’ Section 23(3)(d) of the IR Act is absolute when the precondition is met – it does not allow the Commission to regulate discipline in employment even if the employee or Union argues that no breach of discipline occurred or there is insufficient connection to employment. Further, DFES argues that any enforcement of rights in relation to freedom of association would come within the exclusive jurisdiction of the Industrial Magistrate’s Court, and the Union could seek an injunction under s 96J of the IR Act for a failure to comply with s 96C, 96D or 96E of the IR Act.

26      DFES says the Union deals with many irrelevant matters in its submissions. DFES accepts there is an industrial matter, but says that does not mean that s 23(3)(d) of the IR Act has no work to do. Further, DFES does not argue that every matter relating to a ‘Please Explain’ letter will necessarily be outside of the Commission’s jurisdiction. But in effect DFES says that in this case the Union clearly seeks to regulate discipline.

27      DFES says the Union’s references to earlier applications, for example application C 1 of 2022, are irrelevant. The absence of an objection in that matter cannot determine the present Application. The parties cannot confer jurisdiction on the Commission. DFES submits that the current or historical practice in relation to ‘Please Explain’ letters is also irrelevant. Whatever the effect of such a letter, the Union seeks to stop or prevent any disciplinary process, which would result in the Commission regulating discipline.

28      DFES says the present issue is not whether the FES Commissioner can lawfully and validly discipline a firefighter for communicating with the Union by social media. That ‘puts the cart before the horse’. It is not for the Commission to decide what falls within the disciplinary provisions of the FB Regulations. The issue is whether the Commission issuing orders restraining the FES Commissioner from pursuing a disciplinary process against a firefighter would amount to regulating discipline in employment of that firefighter, such that s 23(3)(d) of the IR Act applies.

29      DFES submits that the Commission does not need to answer questions about the boundaries of the disciplinary process (including when the disciplinary process starts) in order to determine the jurisdictional objection, and it is not in dispute that the FB Regulations set out the FES Commissioner’s powers to discipline firefighters. DFES says the real issue before the Commission is the proper characterisation of the dispute, and that is that the Union seeks for the Commission to regulate discipline in employment of one of its members.

30      DFES says that the Union’s argument in relation to the strict construction of statutory provisions or privative clauses that seek to limit or exclude the jurisdiction of a court are not relevant to this matter. This is because s 23(3)(d) of the IR Act is a carve out of the Commission’s jurisdiction. Section 23(3)(d) of the IR Act does not limit the supervisory jurisdiction of the Supreme Court. Further, DFES says the Commission’s jurisdiction is primarily about industrial fairness. The Commission cannot make a declaration of unlawfulness.

31      In response to the Union’s submissions, DFES says the Commission cannot simply ignore s 23(3)(d) or rewrite it because the Commission considers it would be in accordance with equity or good conscience to do so. DFES says that in any event, the Union and firefighters have an avenue to raise issues about disciplinary matters – in the course of the disciplinary process if one is started (if any issues arise) and in the conduct of any appeal (if desired). DFES says the Union’s assertion that DFES’ construction deprives employees of procedural fairness is misconceived. Employees obtain procedural fairness through the disciplinary process (and if desired, through the appeal process) in the FB Regulations if a disciplinary process is started.

32      DFES says the Union’s submissions at the hearing about a hypothetical scenario where the other Act in question deals very narrowly with the subject matter in question, or provides very limited appeal rights, are problematic. A statutory provision that creates a disciplinary scheme is likely a disciplinary code that the employer must follow.

The Union’s submissions

33      The Union says at its heart, this dispute is about a question of construction. The parties disagree about how to construe s 23(3)(d) of the IR Act.

34      The Union says DFES seeks a narrow construction in an attempt to limit the Commission’s jurisdiction. But the fundamental rule of construction is to construe an intention of Parliament that promotes the purpose or objective of the underlying legislation.

35      The Union argues that the Commission ‘does exercise a supervisory role’ and the principles that relate to privative clauses, as set out in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [7] and [72] apply, and the Commission ‘should take a similar approach in this matter and not presume any powers not expressly outlined in the Act.’ I understand the Union argues that the Commission should construe s 23(3)(d) of the IR Act narrowly. The Union says that because the FB Regulations do not refer to or provide for the ‘Please Explain’ letter, therefore the FB Regulations do not provide for the process that is before the Commission.

36      The Union’s main argument is that the words ‘where there is provision for or in relation to a matter of that kind’ in s 23(3)(d) of the IR Act relate to the matters provided for in the relevant other statute, which here is the FB Regulations; ‘…a matter of that kind’ cannot refer back to the broad category of discipline, but rather it is only discipline to the extent that matter is provided for in the FB Regulations. The Union says the scope of the exclusion must be by reference to the relevant part of the FB Regulations, rather than the broad and largely undefined concept of ‘discipline’ generally. The Union argues that this is supported by a narrow approach to construction. Accordingly, the Union says that the operation of s 23(3)(d) of the IR Act must be limited by reference to the FB Regulations and any appeal under those regulations.

37      The Union says that DFES’ construction means that where there are any provisions about discipline in another statute, with appeal rights, then the Commission’s jurisdiction is ousted. Unlike the Union’s construction, DFES’ construction involves ‘a matter of that kind’ referring back to the broad concept of discipline and not discipline to the extent provided for in the FB Regulations. If a statute had incredibly narrow disciplinary processes and appeal rights, that may leave a lacuna and exclude the Commission’s jurisdiction even where there is no avenue for appeal, which could effectively exclude any disciplinary matters being dealt with. The Union says the ‘Please Explain’ letter falls squarely into such a lacuna.

38      The Union acknowledges that there may be circumstances where an employee’s Facebook post could amount to a breach of discipline and lead to disciplinary action. But the Union says that the relevant employee behaviour here that is the subject of DFES’ concern involves the employee criticising the Union, which cannot amount to a disciplinary matter.

39      The Union submits that s 23(3)(d) of the IR Act does not apply because the issuing of a ‘Please Explain’ letter does not fall within the subject matter regulated, or the process contemplated, by the FB Regulations. The Union says the use of ‘Please Explain’ letters is a process independent of the FB Regulations, and occurs before the exercise of disciplinary powers under the FB Regulations. The Union disputes that the ‘Please Explain’ letter is necessarily disciplinary in nature. Further, the Union argues that the matter in dispute is an industrial matter and therefore capable of being heard under a s 44 application.

40      The Union submits that s 23(3)(d) of the IR Act is not engaged, because there is no disciplinary matter on foot at this point in time, so the Commission would not be exercising any powers that are being dealt with in another jurisdiction or conferred on the FES Commissioner.

41      The Union submits that Sell’s case also highlights that the ability to appeal a decision is a key consideration in determining whether the Commission lacks jurisdiction. Accordingly, the Union argues that even if the ‘Please Explain’ letter is disciplinary in nature, given the Union seeks to appeal the ‘Please Explain’ letter and the FB Regulations do not provide a mechanism to appeal the ‘Please Explain’ letter, then the Commission has authority to deal with the matter.

42      The Union pointed to application C 1 of 2022 which involved a ‘Please Explain’ letter. In that matter the Commission convened several conferences without DFES objecting to jurisdiction.

43      The Union says this matter ‘should not turn or rely too much on the wording of the relief sought in the section 44 application’. The Application was ‘written in a limited time frame using broad non-technical industrial language and without legal advice or positions being expressed.’ That the Application incorrectly refers to the process as being disciplinary does not make it so. The Union submits: ‘[u]ltimately the substance of what the Union was seeking was an ability to pause the process on foot, which although potentially relates to discipline is not in and of itself a disciplinary process … and resolve a dispute about the appropriateness of potential disciplinary charges occurring due to communications between a Union member and their Union.’ The Union argues that the wording of the orders sought does not decide jurisdiction.

44      The Union made a range of arguments that relate to the substantive Application and not jurisdiction.

45      The Union argues that ‘s 23(3)(d) simply does not apply because of the terms of the FB Regulations and the vagaries of the ‘Please Explain’ letter itself.’ The Union further submits that DFES’ construction is not in the public interest or consistent with equity or good conscience. It would mean that employees or the Union would have no way of raising issues with behavioural investigations (whether they lead to a disciplinary charge or not for members). Such an outcome would deprive employees of procedural fairness or natural justice.

Consideration

46      It is common ground that the  matter in dispute is an industrial matter. But that does not have a bearing on whether s 23(3)(d) of the IR Act excludes the Commission’s jurisdiction.

47      It is not in dispute that the FB Regulations set out the FES Commissioner’s powers to discipline firefighters and provide an avenue for appeal against disciplinary findings and decisions.

48      For the reasons that follow, I consider that the Commission does not need to decide the boundaries of the disciplinary process under the FB Regulations in order to decide this matter.

49      There is provision by or under another Act (other than the IR Act) for or in relation to discipline for firefighters, being the FB Act, by virtue of s 46 of the Interpretation Act. There is also provision by or under that same Act for an appeal in a matter relating to discipline for firefighters. Consistent with the reasoning in Sell’s case, I consider that in those circumstances, s 23(3)(d) of the IR Act operates to prevent the Commission from regulating discipline in relation to firefighters. The question is whether in application C 13 of 2023 the Union asks the Commission to regulate discipline in relation to a firefighter.

50      Ultimately the Union’s arguments set out above at [35] – [37] do not assist the Union, because the Application is not limited to the ‘Please Explain’ letter. The Application has been on foot since 23 February 2023. DFES raised its objection to jurisdiction on 24 February 2023. The Union has not sought to amend the Application. In those circumstances, the Commission must proceed on the basis of the Application as drafted.

51      The Application refers to ‘a potential breach of’ the FB Regulations, specifically ‘instances or actions in which an employee is guilty of disgraceful or improper conduct either in his official capacity or otherwise’. The Application makes clear that the Union disputes that its member has potentially breached the FB Regulations. The Union goes on to say that ‘pursuing the formal disciplinary process in this instance is inappropriate.’ The Union requests that the disciplinary process be paused until the dispute is resolved. In the alternative, the Union in effect seeks to prevent the FES Commissioner from dealing with the matter as a disciplinary matter under the FB Regulations.

52      The issue in this matter is not that the Application refers to the ‘Please Explain’ process as being disciplinary. The issue is that a fair reading of the Application makes it clear that the Union asks the Commission to regulate discipline in employment, for example by putting any disciplinary process on hold or otherwise preventing the FES Commissioner from dealing with the matter as a disciplinary matter under the FB Regulations.

53      Powers and jurisdiction are not the same. But here the orders sought make it clear that the Union asks the Commission in the exercise of its jurisdiction to regulate discipline in employment.

54      DFES does not argue that any dispute about the use of ‘Please Explain’ letters would be outside of the Commission’s jurisdiction. Rather DFES says that in this case the Union clearly asks the Commission to regulate discipline. In essence, I consider that DFES’ objection must be upheld because the proper characterisation of the dispute in this matter is that it is a dispute about discipline in employment, and the Union asks the Commission to regulate discipline in employment for one of its members.

55      That the Commission (differently constituted) may have convened conferences in another application that involved a ‘Please Explain’ letter, without DFES objecting to jurisdiction, is irrelevant. This is because the parties cannot confer jurisdiction on the Commission where it is excluded by statute. Further, considerations of equity and good conscience cannot overcome a lack of jurisdiction: Health Services Union of Western Australia (Union of Workers) v Director General of Health in Right of the Minister for Health as the Metropolitan Health Service, the South West Health Board and the WA Country Health Service [2008] WAIRC 00215; (2008) 88 WAIG 543 at [163]. In any event, procedural fairness is required through the disciplinary process and through any appeal process against disciplinary findings. Given the nature of the Commission’s jurisdiction in dealing with industrial disputes under s 44 of the IR Act, and that s 23(3)(d) operates to carve out the Commission’s jurisdiction, submissions in relation to privative clauses are of limited assistance. The Union’s written submissions otherwise raise a number of irrelevant matters that it is not necessary to deal with.

56      In my view, it is clear from the Application, and reinforced by the Union’s written and oral submissions, that the Union asks the Commission to:

a. put disciplinary proceedings on hold; and

b. prevent the FES Commissioner from dealing with the matter as a disciplinary matter under the FB Regulations.

Accordingly, through the Application the Union asks the Commission to regulate discipline in employment on an interim and final basis.

57      I agree with DFES’ submissions that:

a. the reason the Union seeks the orders is irrelevant to jurisdiction; and

b. if the Commission were to make the orders sought, the Commission would be taking away the FES Commissioner’s discretion about whether to deal with the matter by way of a disciplinary process under the FB Regulations, which would have the effect of regulating discipline for a firefighter.

58      Whether the employee was criticising the Union, and indeed whether that could amount to a disciplinary matter, are questions of fact yet to be decided. In a substantive hearing dealing with those matters, it would be open to the parties to present evidence and arguments, allowing for findings to be made about whether the Facebook post was a criticism of the Union or could amount to a breach of discipline. But in circumstances where the Union seeks for the Commission to prevent the FES Commissioner from starting or progressing a disciplinary process, I am satisfied that the Union is asking the Commission to regulate discipline in employment of its member, such that s 23(3)(d) of the IR Act operates to exclude the Commission’s jurisdiction.

59      DFES’ objection to jurisdiction is upheld. Application C 13 of 2023 must be dismissed.