X (a pseudonym) v Secretary, Department of Education [2021] NSWIRComm 1089

Industrial Relations Commission New South Wales Medium Neutral Citation: X (a pseudonym) v Secretary, Department of Education [2021] NSWIRComm 1089 Hearing dates: 14 October 2021 Date of orders: 18 November 2021 Decision date: 18 November 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: Application dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – public sector employee dismissed as a result of disciplinary action – employee appealed to Industrial Relations Commission – whether employer is able to lay a new charge – no new charge laid – whether fresh evidence or material is able to be relied upon – whether the evidence should be excluded due to potential prejudicial effect – whether evidence is probative – whether evidence should be excluded due to the credibility and or reliability of the evidence Legislation Cited: Evidence Act 1995 (NSW) s 135 Government and Related Employees Appeal Tribunal Act 1980 (NSW) Industrial Relations Act 1996 (NSW) ss 98, 100C, 100D, 100G, 163, 164A, 191(2) Supreme Court Act 1970 (NSW) s 75A Teaching Services Act 1980 (NSW) s 5A Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 Calman v Commissioner of Police (1999) 73 ALJR 1609; [1999] HCA 60 Marroun v State Transit Authority [2017] NSWCA 273; 96 NSWLR 295 Michael Evans v Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) [2018] NSWIRComm 1075 SafeWork NSW v Visscher [2021] NSWIRComm 1051 Secretary, Department of Justice v Schoeman (2014) 86 NSWLR 749; [2014] NSWIRComm 40 Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36 Category: Procedural rulings Parties: X (a pseudonym) (the appellant) Secretary, Department of Education (the respondent) Representation: Counsel: Ms L Andelman (for the appellant/applicant in the application) Mr M Seck (for the respondent/respondent in the application)