NSW Department of Education and Training v Cassis [2006] NSWIRComm 376

Industrial Relations Commission of New South Wales

CITATION: NSW Department of Education and Training v Cassis [2006] NSWIRComm 376

APPELLANT: NSW Department of Education and Training PARTIES: RESPONDENT: Nabil Cassis

FILE NUMBER(S): IRC 2410 of 2006

CORAM: Wright J President; Walton J Vice-President; Harrison DP

CATCHWORDS: Appeal - Application for leave to appeal and appeal - Unfair dismissal - Appeal dismissed - Reasons for decision reserved.

LEGISLATION CITED: Industrial Relations Act 1996 Commission for Children and Young People Act 1998

HEARING DATES: 6/9/2006, 4/10/2006

DATE OF JUDGMENT: 12/21/2006

APPELLANT: Mr R C Kenzie QC and Mr S Benson of counsel NSW Department of Education and Training (Mr P Quinn) LEGAL REPRESENTATIVES: RESPONDENT: Mr Moorhouse of counsel Gregory J Goold, Solicitors (Mr L Ting)

JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice President HARRISON DP

Thursday 21 December 2006

Matter No IRC 2410 of 2006

NSW DEPARTMENT OF EDUCATION AND TRAINING v NABIL CASSIS

Application by NSW Department of Education and Training for leave to appeal and appeal against a decision of Deputy President Grayson given on 19 May 2006 in Matter No IRC 4385 of 2006

DECISION OF THE COMMISSION [2006] NSWIRComm 376

1 In order to ensure the timely implementation of the Commission's decision in this matter we have decided to issue the decision now with the reasons therefor to be provided early in the new Law Term. 2 The main thrust of the appellant's case on appeal rested upon its analysis of the interaction between the various elements of the statutory scheme applicable to the proceedings at first instance and to the proceedings on appeal. 3 The appellant contended that Deputy President Grayson erred in founding his conclusion in the proceedings on the view that the normal principles applicable to misconduct cases applied to the instant proceedings when, first, the proceedings were not appropriately described as a "misconduct case" and, second, to do so, overlooked the statutory scheme and how that scheme affected the approach of the Commission in deciding proceedings to which the scheme applied. 4 The gravamen of the appellant's case was that in determining proceedings such as the present, to which not only s 84 of the Industrial Relations Act 1996 applies, but so too did s 44(2) and related provisions of the Commission for Children and Young People Act 1998, the exercise of the Commission's jurisdiction depended upon giving appropriate weight to each of the elements of the statutory scheme. 5 We have concluded that the appellant has demonstrated error in the decision at first instance by its analysis of the effect of the statutory scheme and, to that extent, the discretion at first instance was incorrectly exercised. However, we have also concluded that, having regard to all of the particular circumstances of the proceedings, the appeal should be dismissed and the orders made at first instance should be confirmed. The stay granted on 1 June 2006 should also be dissolved. We note that there was some issue as to the correct identification of the employer in the proceedings at first instance. Liberty to apply should be granted in respect of that matter. We make orders accordingly. Reasons for decision shall be given in due course. ______________