Joseph D'Souza and NSW Department of Transport and Infrastructure [2010] NSWIRComm 1042

Industrial Relations Commission of New South Wales

CITATION: Joseph D'Souza and NSW Department of Transport and Infrastructure [2010] NSWIRComm 1042

APPLICANT Joseph D'Souza PARTIES: RESPONDENT NSW Department of Transport and Infrastructure

FILE NUMBER(S): IRC 108 of 2010

CORAM: Bishop C

CATCHWORDS: UNFAIR DISMISSAL - public sector employee - allegations of misconduct - tone and content of email - allegations of breach of email policy and bullying and harassment - applicant considered email statement not grievance - considered himself pre-judged in investigative process - considered process biased - did not participate - allegations found sustained - directed to resign - did not resign - dismissed - other issues raised at hearing re impracticability of reinstatement - reinstatement sought HELD - no bullying and harassment - misapplication of policy - only email policy breached - tone and content inappropriate - did not participate in subsequent investigation interview as not given opportunity of support person of choice - issues raised at hearing not previously raised - dismissal too harsh in circumstances - not proportionate to conduct - age of applicant relevant consideration in harshness - some issues as to procedure - no issues raised as to work performance or competence - other disciplinary options available - reinstatement ordered - conditions imposed - written warning - apology - counselling/training

Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 2000 Public Sector Employment and Management Act 2002