Industrial Relations Commission of New South Wales CITATION: Sleap v ABB Administrative Services Pty Limited [2007] NSWIRComm 1043 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Paul Sleap PARTIES: RESPONDENT ABB Administrative Services Pty Limited FILE NUMBER(S): 1987 of 2005 CORAM: Macdonald C CATCHWORDS: Unfair dismissal application - summary dismissal for misconduct - internal company investigation - complicity allegation by another employee against the Applicant - onus of proof - standard of proof - Respondent's case not made out - dismissal harsh and unjust - compensation order made. LEGISLATION CITED: Industrial Relations Act 1996 Outboard World v Muir (1993) 51 IR 167 D and R Commercial Pty Limited v Flood CASES CITED: (2002) 113 IR 344 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 Briginshaw v Briginshaw (1938) 60 CLR 336 HEARING DATES: 28/11/05, 29/11/05, 29/05/06, 30/05/06, 02/06/06 DATE OF JUDGMENT: 13 July 2007 APPLICANT Mr D O'Sullivan, solicitor Turner Freeman LEGAL REPRESENTATIVES: RESPONDENT Mr A Salmon, solicitor Fisher Cartwright Berriman Pty Limited DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER MACDONALD 13 July 2007 Matter No IRC 1987 of 2005 PAUL SLEAP v ADMINISTRATIVE SERVICES PTY LIMITED Application by Paul Sleap re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1043 1 This is an application by Paul Sleap ("the Applicant") for unfair dismissal against ABB Administrative Services Pty Limited ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996. 2 By a decision of Ritchie C, Non-Disclosure orders were issued about evidence to be given by a certain witness in the substantive Hearing. 3 The unfair dismissal file was allocated to myself due to the unavailability of Ritchie C. The Hearing took place over five days in 2005 and 2006. Final Submissions were in the form of Written Submissions. 4 In keeping with the confidential nature of the proceedings, the Commission will issue an abridged Decision as to its finding on the Applicant's claim of having been unfairly dismissed. 5 However, and in keeping with that confidentiality nature of the proceedings, the Commission will set out its reasoning for its Decision in a Confidential Appendix which has been placed in the unfair dismissal application file. 6 Having considered all of the evidence, the Commission determines that the summary dismissal of the Applicant was unjust and harsh. 7 The Applicant did not seek reinstatement and reinstatement would not have been practicable. 8 The Commission has determined on a quantum of compensation being $30,000 gross pay, for reasons set out in the Confidential Appendix. ORDERS ( a) The Commission orders that the Respondent pay to the Applicant an amount of compensation, being $30,000 gross pay. (b) The amount of compensation specified above has been determined having regard to section 89(5) and 89(6) of the Act. (c) The amount of compensation specified above is to be paid by the Respondent to the Applicant within twenty-one days from the date of this Decision. A Macdonald Commissioner 30/10/2007 - This Decision has been amended to incorporate the Orders made and which appeared in the Confidential Appendix to this Decision. - Paragraph(s) Orders DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.