New South Wales Teachers Federation (on behalf of Anthony Mossfield) and NSW Department of Education and Training [2005] NSWIRComm 464

Industrial Relations Commission of New South Wales

CITATION: New South Wales Teachers Federation (on behalf of Anthony Mossfield) and NSW Department of Education and Training [2005] NSWIRComm 464

New South Wales Teachers' Federation

PARTIES: NSW Department of Training and Education

FILE NUMBER(S): IRC 3745 of 2005

CORAM: Grayson DP

CATCHWORDS: Unfair dismissal - Teacher misconduct alleged - School for special purpose - Violent student behaviour - Physical restraint by teacher - History of violence by student - Allegation of assault by teacher - Tension between departmental policy and Local school policy - Duty of care - Foreseeable risk - Investigation by employer - Process of investigation - Delay in interview of witnesses - Procedural fairness - Reliability of evidence - Harshness of ultimate sanction of dismissal - Held: Extenuating circumstances such as to render dismissal harsh and consequently unfair - orders as to re-employment and lost pay.

Industrial Relations Act 1996 LEGISLATION CITED: Teaching Services Act 1980 Teaching Services Regulation 2001

Evans v NSW Police [2005] NSWIRComm 404 Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne v Australian Airlines Ltd (1995) 61 IR 32 CASES CITED: Shop Distributive and Allied Employees Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 Smith v Director-General of School Education (1993) 51 IR 204 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454

HEARING DATES: 10/17/2005; 10/18/2005; 10/19/2005; 10/20/2005; 10/21/2005; 11/22/2005