Commissioner of Police v Smith [2010] NSWIRComm 162

Industrial Relations Commission of New South Wales

CITATION: Commissioner of Police v Smith [2010] NSWIRComm 162

PARTIES: Commissioner of Police (Appellant/Cross Respondent) Bradley Smith (Respondent/Cross Appellant)

FILE NUMBER(S): IRC 152 and IRC 301 of 2010

CORAM: Walton J Vice-President at 1; Kavanagh J at 29; Staff J at 1

POLICE - appeal - orders for reinstatement with conditions given by primary judge under s 89(1) and s 89(8) of the Industrial Relations Act 1996: terminated under s 181D of the Police Act 1990 - Full Bench decision - conduct explained by mental illness - employee receives workers compensation payments for mental illness in period of impugned conduct - mental illness established on evidence as work related - decision to terminate harsh where explanation for conduct is explained by accepted psychological illness.

BY MAJORITY - error in law as to conditions attached to primary order under s 89(1) and s 89(8) of the Industrial Relations Act 1996 - matter remitted to trial judge.

Leave to appeal granted by Full Bench. CATCHWORDS: ORDERS of the majority - leave to appeal granted - appeal upheld - orders quashed - remitted to trial judge - leave to cross appeal granted - cross appeal rejected.

ORDERS of Kavanagh J - leave to appeal granted - appeal upheld - leave to cross appeal granted - cross appeal allowed - order for reinstatement confirmed (without conditions which were otiose) - stay uplifted.

No order as to costs.

Civil Procedure Act 2005 LEGISLATION CITED: Industrial Relations Act 1996 Police Act 1990 Workers Compensation Act 1987