Sparkes v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2022] NSWIRComm 1021

Industrial Relations Commission New South Wales Medium Neutral Citation: Sparkes v Industrial Relations Secretary in respect of the Department of Communities and Justice (Corrective Services NSW) [2022] NSWIRComm 1021 Hearing dates: 10 and 11 November 2021, final submissions received 9 February 2022 Date of orders: 31 March 2022 Decision date: 31 March 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The Appeal is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Public sector disciplinary appeal – Dismissal – employee in extra-marital relationship with subordinate employee – findings of guilt of common assault by the employee against co-worker – misconduct admitted – question of appropriate disciplinary action – whether assault to be mitigated by the context of the alleged sexual relationship between employee and co-worker – whether employee denied procedural fairness – relevance that misconduct occurred outside work and did not affect employee's work performance Legislation Cited: Crimes Act 1900 s 61 Crimes (Domestic and Personal Violence) Act 2007 s 13 Crimes (Sentencing Procedure) Act 1999 s 9 Government Sector Employment Act 2013 ss 7, 69 Government Sector Employment (General) Rules 2014 rr 38, 40 Industrial Relations Act 1996 Ch 2 Pt 7, ss 100C, 164A Cases Cited: Dr A and Health District [2014] NSWIRComm 28 Eastwood v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services NSW) [2021] NSWIRComm 1014 Harry Day v John Smidmore and others (No. 2) [2005] NSWIRComm 406 Jones v Dunkel (1959) 101 CLR 298 Marroun v State Transit Authority [2017] NSWCA 273 Texts Cited: Nil Category: Principal judgment Parties: Nathan Sparkes (Appellant) Industrial Relations Secretary (Respondent) Representation: Counsel: V Bulut (Respondent) Solicitors: M Jaloussis, McNally Jones Staff Lawyers (Appellant) Clayton Utz (Respondent) File Number(s): 2021/161559 Publication restriction: Pursuant to s 164A of the Industrial Relations Act 1996 (NSW), the Commission orders that: 1. there be no disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, [name redacted], [name redacted]'s children, Mr Sparkes' children, or any current or former inmate held in the custody of Corrective Services NSW; and 2. the doing of any other thing that identifies, or may lead to the identification of, any such person is prohibited.