Lane and Northern Sydney Central Coast Area Health Service [2006] NSWIRComm 380

Industrial Relations Commission of New South Wales

CITATION: Lane and Northern Sydney Central Coast Area Health Service [2006] NSWIRComm 380

APPELLANT Raymond George Lane PARTIES: RESPONDENT Northern Sydney Central Coast Area Health Service

FILE NUMBER(S): IRC 2534 of 2006

CORAM: Walton J Vice-President; Grayson DP; Staff J

Appeal - Leave to appeal - Termination of employment - Unfair dismissal - Employee dismissed for having pornographic material stored in his computer at work - Application dismissed at first instance - Deputy President failed to consider statutory test as to whether dismissal was harsh, unreasonable, unjust - Deputy President's failure to make finding relating to statutory test - Failure to answer questions arising - Whether Deputy President failed to take into account relevant considerations - Whether Deputy President took into account considerations such as the length of service of the appellant; his exemplary service to the community; commendations that he received both from within the Industry and from his employer; the likely impact on the appellant's prospects of finding future employment; the appellant's age; the appellant's impaired hearing and impaired sight; the appellant's very specialised skill base and what impact that may have on his ability to gain future employment - Failure of respondent to adequately take into account all disciplinary options or explain reasons for decision taken - Failure of Commission to take this omission into account - Failure of Commission to adequately have regard to employer's policy and inadequacies in same - Failure to resolve significance of out of hours conduct - Error of law and principle - Appeal upheld - Matter remitted - Industrial Relations Act 1996 (NSW) - Section 84 CATCHWORDS: Termination of employment - Unfair dismissal - Appeal - Leave to Appeal - Employee dismissed for having pornographic material stored in his computer at work - Application dismissed at first instance - Deputy President failed to consider statutory test as to whether dismissal was harsh, unreasonable, unjust - Deputy President's failure to make finding relating to statutory test - Failure to answer questions arising - Whether Deputy President failed to take into account relevant considerations - Whether Deputy President took into account considerations such as the length of service of the appellant; his exemplary service to the community; commendations that he received both from within the Industry and from his employer; the likely impact on the appellant's prospects of finding future employment; the appellant's age; the appellant's impaired hearing and impaired sight; the appellant's very specialised skill base and what impact that may have on his ability to gain future employment - Failure of respondent to adequately take into account all disciplinary options or explain reasons for decision taken - Failure of Commission to take this omission into account - Failure of Commission to adequately have regard to employer's policy and inadequacies in same - Failure to resolve significance of out of hours conduct - Error of law and principle - Appeal upheld - Matter remitted - Industrial Relations Act 1996 (NSW) - Section 84