RV and New South Wales Department of Commerce [2009] NSWIRComm 21

Industrial Relations Commission of New South Wales

CITATION: RV and New South Wales Department of Commerce [2009] NSWIRComm 21

APPLICANT RV PARTIES: RESPONDENT New South Wales Department of Commerce

FILE NUMBER(S): IRC 1324 of 2008

CORAM: Sams DP

Termination of employment - unfair dismissal - carpenter involved in school maintenance - issues of literacy - long period of service - allegations of misconduct - convictions for serious offences - failure to report convictions for serious offences - allegations of inappropriate behaviour towards female staff - Public Sector Regulations and Code of Conduct - orders suppressing name of applicant - Administrative Decisions Tribunal decision and orders - past criminal history not reported - child protection declaration - employment screening checks- restrictions on applicant working in schools - interim orders operated for two years - final orders - involvement of employer in ADT proceedings - employer's knowledge of convictions - allegations not put to employee until interview - disciplinary investigation - independent investigator appointed - findings of investigator - applicant given opportunity to respond to allegations - meeting with Director General - allegations considered in globo - whether applicant denied procedural fairness - reinstatement sought - practicality of reinstatement given ADT's orders. CATCHWORDS: Held; applicant unaware of requirements of Regulations and Code of Conduct - non disclosure understandable - applicant did not deliberately seek to withhold information - genuine belief that disclosure did not apply to convictions - allegations not proven - convictions and sentences not at high end of seriousness - convictions did not compromise or effect the reputation and standing of the Department - applicant's complete rehabilitation - conduct did not affect work performance - conduct did not strike at heart of employment relationship - respondent's claims of no knowledge of convictions unbelievable - inappropriate behaviour towards teachers - genuine contrition and immediate apology offered - findings of investigator did not justify dismissal - misconduct treated remedially - past conduct not properly considered - allegations either separately or globally did not constitute misconduct warranting dismissal - unreasonable that applicant not told of specifics of allegations until interview - otherwise fair process - full opportunity to respond to allegations - mitigating factors - finding that dismissal was harsh and unreasonable - relief to be ordered - real issues of impracticality of reinstatement - orders for relief deferred - parties directed to confer - further evidence and submissions if failure to agree to appropriate relief - matter adjourned for final disposition.