Kemp v Industrial Relations Secretary in respect of the Department of Communities and Justice; McCaig v Industrial Relations Secretary in respect of the Department of Communities and Justice [2022] NSWIRComm 1105

Industrial Relations Commission New South Wales Medium Neutral Citation: Kemp v Industrial Relations Secretary in respect of the Department of Communities and Justice; McCaig v Industrial Relations Secretary in respect of the Department of Communities and Justice [2022] NSWIRComm 1105 Hearing dates: 31 October and 1 November 2022 Date of orders: 24 November 2022 Decision date: 24 November 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: I order that the appeal in matter 2022/00189350 be dismissed. In matter 2022/00189357 I make the following orders: (1) the appeal is allowed; (2) the decision of the Secretary to terminate Mr McCaig's employment is set aside; (3) the Secretary is to restore Mr McCaig to employment in the classification he held immediately prior to the purported termination of his employment on 9 June 2022; (4) Order (3) takes effect from 12 December 2022; (5) Mr McCaig's service is to be taken as not having been broken by virtue of his purported dismissal, but the period between 9 June 2022 and the recommencement of his employment pursuant to Order (3) will not count as service; (6) Mr McCaig is to receive a reprimand and be fined $1000, which fine is to be paid in such manner and time as agreed between the parties; and (7) liberty is granted to the parties to apply to the Commission on reasonable notice in the event that agreement cannot be reached on the manner and time in which the fine is to be paid. If such liberty is not exercised by 22 December 2022 the file will be closed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Public sector disciplinary appeal – Dismissal – employees found guilty of common assault involving a fellow employee – misconduct admitted – whether misconduct warranted termination of employment – consideration of circumstances of assaults – whether employees denied procedural fairness – consideration of appropriate disciplinary outcomes Legislation Cited: Crimes Act 1900 s 61 Government Sector Employment Act 2013 ss 7, 69, 70 Government Sector Employment (General) Rules 2014 rr 38, 40 Industrial Relations Act 1996 Ch 2 Pt 7, ss 98, 100C Cases Cited: Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 Eastwood v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Corrective Services NSW) [2021] NSWIRComm 1014 Marroun v State Transit Authority [2017] NSWCA 273 Texts Cited: Nil Category: Principal judgment Parties: In 2022/00189350: Owen Kemp (Applicant) Industrial Relations Secretary (Respondent) In 2022/00189357: Jake McCaig (Applicant) Industrial Relations Secretary (Respondent) Representation: Counsel: A Howell (Applicants) M Seck (Respondent) Solicitors: McNally Jones Staff (Applicants) Sparke Helmore Lawyers (Respondent) File Number(s): 2022/00189350, 2022/00189357 Publication restriction: No