Carlton and United Beverages Limited v Phillip Brunt [2005] NSWIRComm 338

Industrial Relations Commission of New South Wales

CITATION: Carlton and United Beverages Limited v Phillip Brunt [2005] NSWIRComm 338

APPELLANT: Carlton and United Beverages Limited

PARTIES: RESPONDENT: Phillip Brunt

FILE NUMBER(S): IRC 4689 of 2005

CORAM: Schmidt J

CATCHWORDS: Stay of Proceedings - appeal - application for leave to appeal and appeal - stay application - stay sought pending hearing of the appeal - order of re-employment after summarily dismissal for misconduct - appeal raises construction of section 89(2) where order removes 60% of pre-existing duties - questions raised in relation to the order under section 89(3) - onus met by appellant for stay - stay granted

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 09/16/2005

DATE OF JUDGMENT: 09/19/2005

APPELLANT: Mr A Moses of counsel EMPLOYERS FIRST

LEGAL REPRESENTATIVES: RESPONDENT: Mr S Prince of counsel SOLICITORS: Szekely & Associates

JUDGMENT:

- 7 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Schmidt J

19 September 2005

Matter No IRC 4689 of 2005

CARLTON AND UNITED BEVERAGES LIMITED & PHILLIP BRUNT

Application by Carlton and United Beverages Limited for leave to appeal and appeal against the Decision of Commissioner Macdonald given on 26.8.2005 in matter no. IRC 175 of 2005

DECISION

[2005] NSWIRComm 338

1 On 7 September 2005, Carlton and United Beverages Limited ('Carlton'), filed an appeal against a decision given by Commissioner Macdonald on 26 August 2005, ordering the re-employment of Mr Brunt on and from that date. The orders have not been complied with and Carlton seeks a stay of the Commissioner's decision, pending the hearing of the appeal. 2 The parties were unable to reach an agreement in relation to the stay sought. This judgment deals with the question of stay. 3 The Commissioner ordered Mr Brunt's reinstatement after he had been dismissed summarily for misconduct. There was no issue that Mr Brunt had taken and consumed a bottle of spirits while at work. Carlton took the view that the alcohol had been stolen and applied its policy in respect of unauthorised consumption of alcohol and theft. Those facts were not in issue, but the fairness of the decision was challenged. The Commissioner took the view that in coming to its decision, Carlton had ignored another of its applicable policies - the Employee Assistance policy - in circumstances where, on the evidence, Mr Brunt was stressed by having to perform certain occupational health and safety related duties and by an unsatisfactory relationship with his supervisor, which had led to his drinking problems. The Commissioner concluded that after 18 years' service, the dismissal was harsh. 4 Mr Brunt sought reinstatement or re-employment, but with the removal of his occupational health and safety duties, accepting that such an order would be made subject to a condition that he be given a final warning. The Commissioner concluded: