Fleming v Commissioner of Police [2023] NSWIRComm 1050

Industrial Relations Commission New South Wales Medium Neutral Citation: Fleming v Commissioner of Police [2023] NSWIRComm 1050 Hearing dates: 11 May 2023 Date of orders: 24 May 2023 Decision date: 24 May 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: (1) John Fleming is to be reinstated to the position he held with the NSW Police Force immediately before his dismissal on 16 December 2022 on the same terms and conditions applied to his position at that time. (2) Order (1) is to take effect on and from Monday 5 June 2023. (3) No order is made for payment to Mr Fleming for the period between the time of his dismissal and 5 June 2023, which period is not to count as service for any purpose. (4) Despite order (3) Mr Fleming's service is to be taken as having not been broken by virtue of his dismissal and the period between then and his reinstatement pursuant to orders (1) and (2). Catchwords: EMPLOYMENT LAW – unfair dismissal – termination for misconduct outside of work – nature and seriousness of misconduct – history of similar misconduct in the workplace – previous conduct occurred about six years prior – dismissal disproportionate response – applicant reinstated – applicant not to receive back pay Legislation Cited: Industrial Relations Act 1996 (NSW), s 84, 88, 89 Cases Cited: Corrective Services NSW v Danwer [2013] NSWIRComm 61 Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Category: Principal judgment Parties: John Fleming (applicant) Commissioner of Police (respondent) Representation: Counsel: R Reitano (applicant) O Fagir (respondent) Solicitors: McNally Jones Staff Lawyers (applicant) Makinson d'Apice Lawyers (respondent) File Number(s): 2022/388130 Publication restriction: Nil