Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Kylie McKelvie) and Department of Juvenile Justice [2008] NSWIRComm 98

Industrial Relations Commission of New South Wales

CITATION: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Kylie McKelvie) and Department of Juvenile Justice [2008] NSWIRComm 98

APPLICANT Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales PARTIES: RESPONDENT Department of Juvenile Justice

FILE NUMBER(S): IRC1835; IRC1852; IRC1853 of 2007

CORAM: Sams DP

Industrial dispute - unfair dismissal - victimisation - Youth Officer at juvenile justice centre - decision not to offer any further shifts to employee - employee not told of decision - employee and Union not told of reasons for decision - false reason given to employee, Union and the Commission - Union activities of delegate - allegations of bullying and harassment - Spokeswomens' program - Union matters raised with management - notes and record of meetings - conversation between senior managers about other matters - matters of concern never raised with employee - allegation that Union activities prompted dismissal - breach of freedom of association provisions - reverse onus - substantial and operative cause of dismissal - procedural unfairness - whether casual employee may be dismissed at any time - relevant principles. CATCHWORDS: Held; significant issues for the relationship between Union and respondent - public interest - unfair dismissal ultimate manifestation of victimisation - meaning of victimisation - intent of the provisions - unfair dismissal provisions - meaning of harsh, unreasonable and unjust - procedural fairness principles - dismissal at will and at any time - failure to call relevant witnesses to give evidence - admission that prospective witness would be unreliable - admission of procedural unfairness - unacceptable not to inform employees of decision to dismiss or reasons for decision - gross denial of procedural fairness and natural justice - reliance on Public Sector Employment and Management Act not available - false reason given to employee, Union and the Commission - recommendation that investigation be held as to instructions given to Counsel - effect of dismissal - implication of 'coverup' - failure to call relevant persons to give evidence - no note or written record of decision - decision conveyed orally to senior management - no confidence in evidence of decision maker - employee's evidence preferred - no evidence of inappropriate conduct - employee warned about Union activities - finding of unfair dismissal - finding of victimisation - no issue of the impracticality of reinstatement - recommendations - reinstatement ordered - orders for lost remuneration and continuity - dispute discontinued.