Browne v Industrial Relations Secretary on behalf of the Department of Communities and Justice [2020] NSWIRComm 1056

Industrial Relations Commission New South Wales Medium Neutral Citation: Browne v Industrial Relations Secretary on behalf of the Department of Communities and Justice [2020] NSWIRComm 1056 Hearing dates: 29 and 30 April, 1 and 18 May and 15 June 2020 Date of orders: 4 September 2020 Decision date: 04 September 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: I order that: (1) the decision of the Department to terminate Mr Browne's employment (after giving him an opportunity to resign) is quashed, and in its place Mr Browne is to be reduced to the classification of Sheriff's Officer under the Crown Employees (Sheriff's Officers) Award ("Award"); (2) the Department is to restore Mr Browne to employment, in the classification of Sheriff's Officer under the Award; (3) the Department is to pay Mr Browne an amount equal to the rate of pay he would have received in the classification of Sheriff's Officer under the Award from 16 September 2019 until order (2) is put into effect, less any amounts paid to Mr Browne as the consequence of him tendering his resignation on 16 September 2019; (4) orders (2) and (3) take effect from Monday, 21 September 2020; and (5) Mr Browne's service is to be taken as having not been broken by virtue of his dismissal and the period between then and his re-employment pursuant to orders (2) and (4). I direct that: (1) the parties confer as to the location at which Mr Browne will work; (2) the parties have liberty to apply on reasonable notice in the event that the Commission's further assistance is required to resolve any dispute or difficulty regarding Mr Browne's work location; and (3) the file be closed on 2 October 2020 unless Mr Browne seeks before that time to have the matter re-listed or requests an extension of time. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Dismissal – escape of detainee through open court door – whether Sheriff's Officer committed misconduct by leaving the door open and in his subsequent reporting of the incident – whether misconduct warranted termination of employment Legislation Cited: Court Security Act 2005 (NSW) ss 3, 4(1), 21 Crimes Act 1900 (NSW) s 310C Government Sector Employment Act 2013 (NSW) ss 7, 50, 69 Independent Commission Against Corruption Act 1988 (NSW) s 8 Industrial Relations Act 1996 (NSW) Ch 2 Pt 7, ss 98, 100C Medical Practitioners Act 1938 (NSW) Sheriff Act 2005 (NSW) s 7 Sheriff Regulation 2016 (NSW) cl 5 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Pty Ltd (1986) 160 CLR 226 Denise McKay v Department of Family & Community Services [2018] NSWSC 44 Maritime Services Board v Murray (1993) 52 IR 455 Marroun v State Transit Authority [2017] NSWCA 273 Mathieu v Higgins & Anor [2008] QSC 209 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, NSW Branch [1973] AR (NSW) 231 North v Television Corporation Ltd (1976) 11 ALR 599 Pillai v Messiter [No 2] (1989) 16 NSWLR 197 Category: Principal judgment Parties: David Browne (Appellant) Industrial Relations Secretary (Respondent) Representation: Counsel: D Chin SC (Appellant) K Brotherson (Respondent) Solicitors: McNally Jones Staff (Appellant) File Number(s): 2019/290542 Publication restriction: No