Dey v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Community Services) (No 2) [2023] NSWIRComm 1094

Industrial Relations Commission New South Wales Medium Neutral Citation: Dey v Industrial Relations Secretary on behalf of the Department of Communities and Justice (Community Services) (No 2) [2023] NSWIRComm 1094 Hearing dates: 14 April 2023, 14 June 2023 Date of orders: 11 September 2023 Decision date: 11 September 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: (1) I direct the parties to confer on remedy in light of these reasons. (2) The parties are directed to advise the Commission by no later than 21 September 2023 whether agreement on remedy has been reached or whether the parties wish to be heard further in relation to remedy. (3) If the parties reach agreement as to remedy they should submit short minutes of order which I may make in chambers. (4) If the parties wish to be heard further in relation to remedy, I will list the matter for directions. (5) If the parties do not advise the Commission of their intentions pursuant to Order 2, I will make final orders in chambers as indicated in paragraph [219]. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Applicant intervened on a volunteer basis in a stranger's family law dispute while on unpaid leave and mentioned her employment with the Respondent during discussions with one of the parties to the dispute — Respondent found that the Applicant had engaged in behaviour of an intimidatory and bullying nature, had exposed her own child to risk, had engaged in secondary employment or unpaid work without approval and had failed to properly manage a conflict of interest and dismissed her for misconduct - Dismissal found to be harsh, unreasonable and unjust – Appropriate remedy for unfair dismissal in circumstances where Applicant sought re-employment or compensation, not reinstatement Legislation Cited: Crimes Act 1900 (NSW), s 60 Evidence Act 1995 (NSW), s 140 Government Sector Employment Act 2013, ss 7, 69 Industrial Relations Act 1996 (NSW), ss 84, 88, 89, 163 Cases Cited: Bartlett and Cini v Mario's Fresh and Frozen Foods [2006] NSWIRComm 1084 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Denise Mckay v Department of Family & Community Services [2018] NSWSC 44 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; 77 NSWLR 159 Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071 Hammon v Metricon Homes Pty Ltd [2016] FWCFB 1914 Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 Little v Commissioner of Police (2002) 112 IR 212 Meller v Low [2000] NSWSC 75; 48 NSWLR 517 Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 57 IR 50 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 Rose v Telstra [1998] AIRC 1592 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Texts Cited: Macquarie Dictionary, online edition Category: Principal judgment Parties: Radhiga Dey (Applicant) Industrial Relations Secretary on behalf of the Department of Communities and Justice (Community Services) (Respondent) Representation: Applicant (self-represented) A Perigo of counsel (Respondent) File Number(s): 2022/00268473 Publication restriction: Nil