Carlton and United Beverages Limited and Philip Brunt [2006] NSWIRComm 98

Industrial Relations Commission of New South Wales

CITATION: Carlton and United Beverages Limited and Philip Brunt [2006] NSWIRComm 98

APPELLANT PARTIES: Carlton and United Beverages Limited RESPONDENT Philip Brunt

FILE NUMBER(S): IRC 4689 of 2005

CORAM: Walton J Vice-President; Sams DP; Ritchie C

Appeal - application for leave to appeal - unfair dismissal - employee drinking alcohol on employer's premises without authorisation - allegations of theft of alcohol - summary dismissal for misconduct - decision of Commissioner at first instance - finding that the dismissal was harsh - correct approach as to remedies - practicality of reinstatement - re-employment of applicant without occupational health and safety duties - application of s89(2) of the Act - meaning of the words "available" and "suitable employment" - earlier decisions of Full Benches of the Commission. CATCHWORDS: Held, finding of unfair dismissal open to the Commissioner - leave to appeal refused on this appeal - leave to appeal granted based on correct application of s89(2) of the Act - leave to appeal granted as to remedy - no express finding of impracticality of reinstatement - no consideration of the precise terms of s89(2) - failure to distinguish between remedies - errors of law and principle - the word "available" does not mean vacant - insufficient evidence to reconstruct a position for the applicant - uncertainty as to the nature of the work prior to dismissal - insufficient reasons for order - errors corrected on appeal - appeal upheld as to remedy - appeal otherwise dismissed - disposition of appeal - remittal to another member of the Commission - stay order set aside - orders made.