Transport Workers' Union of New South Wales (on behalf of Paul Robert Jasper) and Sutherland Shire Council [2004] NSWIRComm 26

Industrial Relations Commission of New South Wales

CITATION : Transport Workers' Union of New South Wales (on behalf of Paul Robert Jasper) and Sutherland Shire Council [2004] NSWIRComm 26 APPLICANT PARTIES : Transport Workers' Union of New South Wales, on behalf of Paul Robert Jasper RESPONDENT Sutherland Shire Council FILE NUMBER: 2767 of 2003 CORAM: Sams DP Termination of employment - unfair dismissal - waste collection truck driver - applicant a retained fire fighter - conflict of interest - serious misconduct - applicant engaged in secondary employment while on sick leave and workers' compensation - investigation of past performance - two earlier written warnings - applicant represented by the Union - procedural fairness - whether dismissal too "harsh" - principles considered. CATCHWORDS : Held, case finely balanced - conduct acknowledged - wilful breach of employment contract not demonstrated - applicant's poor performance record taken into account - applicant's conduct stupid and regrettable - alternative disciplinary action should have been imposed - no issues of procedural unfairness - reinstatement not sought - dismissal "harsh" in all the circumstances - mitigation of loss - small amount of compensation appropriate- orders made. LEGISLATION CITED : Industrial Relations Act 1996 Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66 Busways v Johnson (1996) 55 IR 255 Byrne & Anor v Australian Airlines (1995) 61 IR 32 Day v Lumley Life Limited (1999) 90 IR 70 Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Gregory Bowman and City of Sydney Council [2001] NSWIRComm 91 Franklins Limited v Webb (1996) 72 IR 257 Hunt v Hornsby Shire Council [2001] NSWIRComm 242 CASES CITED : John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors 1972 AILR 517 Laing and Northcott Society [2002] NSWIRComm 365 Little v Commissioner of Police (No 2) (2002) 112 IR 212 Lorenzato and Sydney Water Corporation [2002] NSWIRComm 277 North v Television Corporation Ltd (1976) 11 ALR 599 Paris v Bankstown City Council [1999] NSWIRComm 10 Police Association of New South Wales on behalf of Adam Tregonning and New South Wales Police Service [2000] NSWIRComm 14 Transport Workers' Union of Australia, New South Wales Branch, on behalf of Joseph Vallis and TNT Australia Pty Limited, t/as TNT Express [2002] NSWIRComm 46 Wells v Commissioner of Police (2000) 100 IR 106 HEARING DATES: 12/01/2003 DATE OF JUDGMENT: 03/04/2004