William Pepper V Hanson Construction Materials Pty Ltd [2008] NSWIRComm 1006

Industrial Relations Commission of New South Wales

CITATION: William Pepper V Hanson Construction Materials Pty Ltd [2008] NSWIRComm 1006

APPLICANT William Pepper PARTIES: RESPONDENT Hanson Construction Materials Pty Ltd

FILE NUMBER(S): 1215 of 2007

CORAM: Macdonald C

CATCHWORDS: Unfair dismissal application - employee worked at quarry site for about 30 years - employee involved in two work accidents whilst driving heavy mobile vehicles over last 18 months of employment - employee transferred to work in Primary Crusher Plant - Respondent transferred employee back to driving mobile equipment - employee had third accident whilst driving heavy mobile vehicle - employee suspended from duty on pay - employee's ability to work elsewhere in the quarry considered by employer - medical opinion sought on employee's ability to work in quarry environment - employee has Meniere's Disease - employee dismissed - employee seeks order from Commission to be placed in Primary Crusher Plant - Commission found dismissal to be harsh as employee able to work in Crusher Plant - re-employment ordered - Commission rejected Respondent's submission that no "position" existed at law - orders for remuneration and continuity of service made.

LEGISLATION CITED: Industrial Relations Act 1996

Browne v Dunn (1893) 6 R 67 Genner Constructions Pty Limited v WorkCover Authority of NSW (Inspector Guillarte) (2001) 110 IR 57 CASES CITED: IGA Distribution Pty Ltd v Moses (No 2) 114 IR 307 D and R Commercial Pty Ltd v Flood (2002) 113 IR 344 Outboard World Pty Ltd t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167