Marshall and Sydney Water Corporation [2007] NSWIRComm 1035

Industrial Relations Commission of New South Wales

CITATION: Marshall and Sydney Water Corporation [2007] NSWIRComm 1035

APPLICANT PARTIES: Gary Raymond Marshall RESPONDENT Sydney Water Corporation

FILE NUMBER(S): 2657 of 2006

CORAM: Murphy C

Unfair dismissal - Applicant with history of drug addiction dismissed for misconduct - undisputed evidence of Applicant's behaviour involving verbal and physical assault, damage to property and misconduct towards police. Applicant claimed no recollection of behaviour during psychotic episode and actions were involuntary and unlikely to be repeated. Only realised from Health Professionals that psychotic episode caused by "cold turkey" withdrawal from heavy extended use of marijuana. Applicant claimed employer's failure to recognise behaviour was caused by sudden withdrawal or to treat as medical condition requiring rehabilitation gave rise to dismissal being harsh, unjust and unreasonable. CATCHWORDS: Applicant's credibility crucial to mitigatory claims as to cause of episode and subsequent abstinence from use of drugs and willingness to undergo regular tests. Expert evidence called on cause of psychotic episode and likelihood or otherwise of reuse and consequences. Claim for conditional re-employment. Held - Adverse findings as to credit reflected on crucial aspects of applicant's case. Respondent's expert evidence preferred over that brought by Applicant showing psychotic episode more likely caused by intoxication and unfavourable prospect of return to drug use, with associated risks. Application dismissed.