Cascio v The Trustee for the Elsa Trust [2010] NSWIRComm 62

Industrial Relations Commission of New South Wales

CITATION: Cascio v The Trustee for the Elsa Trust [2010] NSWIRComm 62

Domenico Cascio (Appellant) PARTIES: The Trustee for the Elsa Trust (Respondent)

FILE NUMBER(S): IRC 18 of 2010

CORAM: Walton J Acting President; Grayson DP; Ritchie C

APPEAL - Unfair dismissal - Dismissal resulting from misconduct - Application for relief dismissed at first instance - Misconduct in the nature of angry and aggressive behaviour towards fellow employee - Background of confrontation and tension in the workplace - Unproven allegations of unsafe work practices - Allegation of sexual harassment - Whether employer vicariously liable for acts of sexual harassment by employee - Appellant aggrieved and humiliated by conduct of Warehouse Manager - Witness under summons excused on medical grounds - Whether witness statement should have been available to appellant to tender and rely upon in first instance proceedings - Whether background concerns re sexual harassment mitigated misconduct. CATCHWORDS: Held - Error at first instance in failing to afford opportunity to tender and rely upon written statement of absent witness - Error at first instance in failing to consider the issue of mitigation - Issue of mitigation not sufficient to outweigh gravity of misconduct - Leave to appeal granted - Appeal dismissed.

Anti-Discrimination Act 1977 LEGISLATION CITED: Evidence Act 1995 Industrial Relations Act 1996 Sex Discrimination Act 1984 (Cth)

Boyle v Ishan Ozden & Ors (1986) EOC 92-165 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Four Sons v Sakchai Limsiripothong (2000) 98 IR 1 CASES CITED: House v The King (1936) 55 CLR 499 Johanson v Michael Blackledge Meats (2001)163 FLR 58 O'Callaghan v Loder & Anor (No 2) (1983) 3 NSWLR 89 Ramus Pty Ltd & Ors v Australian Workers Union, NSW Branch (1986) 19 IR 324 Webb v Newcastle Hire Cars Pty Ltd [2004] NSWADT 142