Cassis v NSW Department of Education & Training [2006] NSWIRComm 164

Industrial Relations Commission of New South Wales

CITATION: Cassis v NSW Department of Education & Training [2006] NSWIRComm 164 This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES: Nabil Cassis NSW Department of Education & Training

FILE NUMBER(S): 4385 of 2005

CORAM: Grayson DP

Unfair dismissal - Allegations of aggravated indecent assault - Applicant employed as probationary teacher - Applicant acquitted of police charges - Employer conducted risk assessment and annulled probationary appointment - Dismissal said to be based on results of risk assessment rather than alleged misconduct - Whether probationary teacher excluded from unfair dismissal jurisdiction - Wheter child protection laws displace jurisprudence of Commission - Whether risk assessment protocol is distinguishable from allegations of misconduct giving rise to assessment - Onus of proof - Whether employer is required to prove misconduct to requsite standard CATCHWORDS: Held - Period of probation not determined in advance - Probationary teacher not precluded from bringing and maintaining unfair dismissal claim - Employer failure to establish misconduct - Dismissal harsh, unreasonable, unjust - Reinstatement ordered

Commission for Children and Young People Act 1998 Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Regulations 1996 Police Service Act 1990 Teaching Service Act 1980

Briginshaw v Briginshaw (1938) 60 CLR 336 O'Rourke v Miller (1984-5) 156 CLR 342 at 353-4 Shop, Distributive and Allied Employees Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 Coles Myer ltd v Shop, Distributive and Allied Employees Association (NSW) (1989) 27 IR 299 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Smith v Director General of Education (1993) 51 IR 204 Olle v De Bono Institute World Centre for New Thinking, Print P3932 12 August 1997 Deligiannis v Village Roadshow Limited, Print P6907, 1 December 1997 CASES CITED: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464 Oslead Pty Ltd v Baier, Print Q6780 24 September 1998 M v M (1998) 63 ALJR 108 Davidson v Beethoven Computer Services, Print S7129, 19 June 2000 Longworth v Desklosin Pty Ltd t/as Tom Byrne Motor Cycles, PR912484, 20 December 2001 New South Wales v Lepore and Another (2003) 195 ALR 412 Garner v Smashmaster Pty Limited PR942114, 17 December 2003 Director of Public Prosecutions v Cassis, Henson LCM, Downing Centre Local Court, 10 May 2004 Ferraris v NSW Police [2005] NSWIRComm 240