Lusty v Industrial Relations Secretary, on behalf of the Department of Communities and Justice (Corrective Services NSW) [2023] NSWIRComm 1016

Industrial Relations Commission New South Wales Medium Neutral Citation: Lusty v Industrial Relations Secretary, on behalf of the Department of Communities and Justice (Corrective Services NSW) [2023] NSWIRComm 1016 Hearing dates: 1 and 2 November 2022 Date of orders: 2 March 2023 Decision date: 02 March 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: 1. The appeal is upheld. 2. The appellant be reinstated to the position he held with the respondent immediately before his resignation on 12 July 2022 with continuity of employment and back pay, less any monies earned 3. Order 2. is to take effect 14 days from the date of this decision. Catchwords: Employment Law- hearing de novo – disciplinary action – what constitutes misconduct for the purposes of s 69 of the Government Employment Sector Act 2013 (NSW) – whether misconduct occurred and if so whether the disciplinary penalty imposed was correct in all the circumstances Legislation Cited: Crimes (Administration of Sentences) Act 1999 Government Sector Employment Act 2013 (NSW) Industrial Relations Act 1996 (NSW) Cases Cited: Allison v Commissioner of Police [2018] NSWIRComm 1005. Holland v Industrial Relations Secretary on behalf of the Department of Communities and Justice [2022] NSWIRComm 1106 Marroun v State Transit Authority [2017] NSWCA 273 McDiarmid v Commissioner of Police [2012] NSWIRComm 100 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Texts Cited: NIL Category: Principal judgment Parties: Laurence Lusty (appellant) Industrial Relations Secretary, on behalf of the Department of Communities and Justice (Corrective Services NSW) (respondent) Representation: Counsel: