NSW Caselaw
Industrial Relations Commission of New South Wales
CITATION: Frias & Department of Ageing Disability and Home Care [2005] NSWIRComm 1107
APPLICANT Mr John Frias PARTIES: RESPONDENT Department of Ageing Disability and Home Care
FILE NUMBER(S): 4511 of 2005
CORAM: Bishop C
Termination of employment - unfair dismissal - casual employee - allegations of inappropriate and excessive restraint of disabled resident - non-reporting of incident - aggressive resident - acting in self-defence - allegations of lack of inadequate training- no checking of training prior to dismissal - Police notified - no action - notification to training institutions. CATCHWORDS: Held inadequate training of casual staff, poor judgement exercised in difficult situation, known aggressive resident, acting with genuine concern for personal safety, unblemished prior record, only issue non-reporting of restraint, disciplinary action warranted - dismissal too harsh, also unreasonable and unjust re-employment ordered elsewhere.
Industrial Relations Act 1996 LEGISLATION CITED: Disability Services Act 1993
Antonakopoulos v State Bank (1999) 91 IR 385 Bankstown City Council v Paris (unreported) IRC262 of 1999 BHP Steel Pty Ltd [2001] NSWIRComm 117 Bigg & Anor v New South Wales Police Service (1998) 80 IR 434 Briginshaw v Bringinshaw (1938) 60 CLR 336 Burke v McGirr (1998) 87 IR 54 Busways v Johnson (1994) 55 IR 255 Byrne & Anor v Australian Airlines (1995) 61 IR 32 Four Sons Pty Limited v Sackchai Limsiripothong 98 IR 1 Franklins Ltd v Webb (1996) 72 IR 257 Hill v Department of Juvenile Justice [3000] NSWIRComm 128 CASES CITED: Humphries and Cootamundra Ex-Services and Citizens Memorial Club Limited [2002] NSWIRComm 225 Humphr ies and Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 New South Wales Independent Education Union (on behalf of Cheryl Peris) v SDN Children's Services Inc [2004] NSWIRComm 252 Outboard World v Muir (Cahill VP, Peterson J. and Tabbaa C) (1993) 51 IR 167 at 182 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Police Association of New South Wales on behalf of Tregonning v New South Wales Police Service (1999) IRC 2799/99 Rapp v Wauchope RSL Club (1998) 81 IR 116 Re: Refugee Review Tribunal & Anor Ex Parte H & Anor [2001] HCS 28 Sams v Contact Point International Pty Ltd (2001) NSWIRComm 18 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454
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