Breitkopf v Industrial Relations Secretary, on behalf of Department of Communities and Justice (Corrective Services NSW) [2023] NSWIRComm 1079

Industrial Relations Commission New South Wales Medium Neutral Citation: Breitkopf v Industrial Relations Secretary, on behalf of Department of Communities and Justice (Corrective Services NSW) [2023] NSWIRComm 1079 Hearing dates: 28 February and 1 March 2023 Date of orders: 9 August 2023 Decision date: 09 August 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: (1) This disciplinary appeal of Cregan Breitkopf is allowed. (2) The fine of $800 with a reprimand made pursuant to ss 69 (4)(c) of the Government Sector Employment Act 2013 (NSW) on 2 September 2022 is set aside. Catchwords: Employment Law- hearing de novo – disciplinary action –whether misconduct occurred Legislation Cited: Government Sector Employment Act 2013 (NSW) Industrial Relations Act 1996 (NSW) Cases Cited: Marroun v State Transit Authority [2017] NSWCA 273 Papakosmas v The Queen (1999) 196 CLR 297 Texts Cited: NIL Category: Principal judgment Parties: Cregan Breitkopf (appellant)

Industrial Relations Secretary on behalf of Department of Communities and Justice (Corrective Services NSW) (respondent) Representation: Counsel:

Mr Minucci (respondent)

Solicitors:

Mr Jaloussis (appellant)

Ms Lancaster (respondent) File Number(s): 2022/281176 Publication restriction: NIL

decision 1. By way of correspondence dated 2 September 2022, the appellant was informed that he was being fined $800 with a reprimand (the "Disciplinary Action") pursuant to ss 69 (4)(c) of the Government Sector Employment Act 2013 (NSW) (the "GSE Act"). 2. The Disciplinary Action was for alleged misconduct of the appellant which was said to have occurred on 28 April 2021. The alleged misconduct was detailed in correspondence of 9 August 2022, as follows: On 28 April 2021, around 2:45 AM In the Control Room at Amber Laurel Correctional Centre, you Stated to Casual Correctional Officer Kasileta Vaiefe-Maliaga, "Come and suck on this" while your legs were spread, then stood up and chuckled as you exited the room. 1. The appellant denies that he said the words "Come and suck on this" (the "Alleged Misconduct"). 2. The appellant filed a Notice of Appeal-Public Sector Discipline on 20 September 2022 in relation to the Disciplinary Action.