Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48

Industrial Relations Commission New South Wales Medium Neutral Citation: Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 Hearing dates: 22 March 2011 Decision date: 21 April 2011 Jurisdiction: Industrial Relations Commission Before: Boland P, Walton VP, Harrison DP Decision: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The Department is to pay to the appellant an amount of compensation equal to six months' remuneration at the salary applicable to the appellant's grade immediately before the appellant was dismissed. Catchwords: APPEAL - Unfair dismissal - Public sector employee - Disciplinary investigation - Disciplinary action - Charter of Victims Rights and privacy policies - Attitude to supervisor - Dismissal for serious and wilful misconduct - Application refused at first instance - Inappropriate release of personal information of Victims Services' clients - Filing of confidential information about victims constituted misconduct - Conduct towards supervisor inappropriate - Mitigation of misconduct - Conduct towards supervisor less severe than found in disciplinary investigation and in some cases not proven - Appellant's dealings with supervisor not basis to find serious and wilful misconduct - Failure Department to address appellant's attitude to supervisor - Factors in mitigation re releasing of victim's information - Failure to take into account in first instance decision both as to conduct and appellant's service record and age and mitigation - Conclusion that dismissal not harsh, unjust and unreasonable in error - Dismissal harsh and unreasonable - Appeal upheld - Leave to appeal granted - Remedy - Principles as to appropriate remedy considered - Reinstatement and re-employment not practicable - Compensation appropriate - Six months' compensation awarded. Legislation Cited: Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 Privacy and Personal Information Protection Act 1998 Public Sector Employment and Management Act 2002 Victims Rights Act 1996 Cases Cited: Austin v NF Importers [2005] NSWIRComm 136 (2005) 146 IR 113 Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 Commissioner of Police v Alyson Reid-Frost [2010] NSWIRComm 2; (2010) 192 IR 363 Director General, New South Wales Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47 Director of Public Employment by his Agent Director-General of Dept of Juvenile Justice v Public Service Association (on behalf of Brown) [2008] NSWIRComm 221; (2008) 184 IR 134 Little v Commissioner of Police (No 2) [2002] NSWIRComm 52; (2002) 112 IR 212 Metropolitan Meat Industry Board v Australasian Meat Industry Employees Union (NSW Branch) [1973] AR (NSW) 231 Mohammed Shakiq v Boral Australia Gypsum Limited [2003] NSWIRComm 182 Outboard World Pty Ltd t/as Budget Waste Control Sydney v Muir (1993) 51 IR 167 Plummer v Stannard Bros Launch Service Pty Ltd [2005] NSWIRComm 301; (2005) 145 IR 111 Raeburne v Attorney General's Department [2010] NSWIRComm 130 Riley v Workcover Authority (NSW) [2006] NSWIRComm 108; (2006) 151 IR 396 Toshack v Commissioner of Police [2009] NSWIRComm 31 Category: Principal judgment Parties: Ainsley Raeburne (Appellant) Department of Justice and Attorney General (Respondent) Representation: R Reitano of counsel (Appellant) E S Brus of counsel (Respondent) Fitzpatrick Solicitors Pty Ltd (Appellant) Crown Solicitor (Respondent) File Number(s): IRC 1175 of 2010 Decision under appeal Jurisdiction: 9105 Citation: [2010] NSWIRComm 130 Date of Decision: 2010-10-05 00:00:00 Before: Grayson DP File Number(s): IRC 1247 of 2009