CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia [2001] NSWIRComm 287

Industrial Relations Commission of New South Wales

CITATION : CGEA Transport Ltd t/as Southtrans v Transport Workers' Union of Australia [2001] NSWIRComm 287 APPELLANT: CGEA Transport Ltd t/as Southtrans PARTIES : RESPONDENT: Transport Workers' Union on behalf of its member Boldizsar Boglari FILE NUMBER: IRC 5397 of 2000 CORAM: Wright J President; Walton J Vice-President; Neal C CATCHWORDS : Unfair dismissal - Appeal by employer - Confrontation between bus driver and manager concerning complaint by motorist - History of tension - Driver dismissed - Dismissal found to be harsh, unreasonable or unjust - Commissioner observed that record of complaint in register may have been fabricated - Motorist not called - Inference that evidence of motorist would not have helped employer's case - Whether matters raised during hearing at first instance - Whether denial of procedural fairness - Commission required to afford procedural fairness - Fairness requires that a party be given the opportunity to meet the case put against it - Question of veracity of complaint or fabrication of register not raised at hearing - Denial of procedural fairness - Observations made not critical to decision - Commissioner found that dismissal was not justified by conduct of driver - Decision open to Commissioner on the evidence - Appeal dismissed. LEGISLATION CITED : Industrial Relations Act 1996 s84 s89 s187 s188 s191 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 Fletcher v Federal Commissioner of Taxation (1988) 84 ALR 295 General Pants (Trading) Co Pty Ltd v Shonny (unreported, Fisher P, Schmidt J and Murphy CC, Matter No IRC 3123 of 1993, 8 September 1994) Jones v Dunkel (1959) 101 CLR CASES CITED : Kioa v West (1985) 159 CLR 550 Laws v London Chronicle Ltd [1959] 2 All ER 285 Marelic v Comcare (1993) 47 FCR 437 North v Television Corporation (1976) 11 ALR 599 Re Australian Railways Union, Ex parte Public Transport Corporation (1993) 117 ALR 17 Stead v State Government Insurance Commission (1986) 161 CLR 141 Totalisator Agency Board of NSW v Casey (1994) 54 IR 354 HEARING DATES: 02/08/2001 DATE OF JUDGMENT: 11/29/2001