New South Wales Teachers Federation (on behalf of Pamela Hall) and Managing Director TAFE NSW as Division Head, TAFE Commission Division of Government Service [2011] NSWIRComm 86

Industrial Relations Commission New South Wales Medium Neutral Citation: New South Wales Teachers Federation (on behalf of Pamela Hall) and Managing Director TAFE NSW as Division Head, TAFE Commission Division of Government Service [2011] NSWIRComm 86 Hearing dates: 17 May 2011 Decision date: 28 June 2011 Jurisdiction: Industrial Relations Commission Before: Walton J, Vice-President; Kavanagh J; Ritchie C Decision: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision and orders of Commissioner Connor in Matter No IRC1703 of 2009 are set aside. 4. The appellant is re-instated in her former position effective from the date of this decision with continuity of service (save as to the accrual of annual leave and long service leave), upon the condition that the appellant shall receive a formal reprimand as to the finding of a conflict of interest in the procedures she followed in 2002 and 2005 related to the assessment of her sister's qualifications. Catchwords: APPEAL - pursuant to s 187 from decision of Commissioner - application for re-instatement of head teacher dismissed for misconduct in breach of employer's conflict of interest policy - error of law by Commissioner in finding corrupt motivation - error in basing opinion on a case not prosecuted by respondent - not a ground relied upon for dismissal - appeal upheld and leave to appeal granted - facts reviewed on appeal reveal conflict in breach of policy in processes put in place by head teacher in considering academic credits sought by sister - findings of conflict in acts of head teacher confirmed - Full Bench determines application - severity of penalty considered - termination harsh - order for re-instatement from date of judgment with reprimand - leave to appeal allowed Legislation Cited: Industrial Relations Act 1996 (NSW) s 89, s 188 Technical and Further Education Commission Act 1990 (NSW) s 22D(1), s 22E Cases Cited: Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66 Briginshaw v Briginshaw (1938) 60 CLR 336 Hall v Department of Technical and Further Education [2010] NSWIRComm 1049 Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 Chamberlain v The Queen (No. 2) (1984) 153 CLR 521 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1; (2003) 77 ALJR 1449 Sydney Ferries Corporation v The Seamen's Union of Australia [2009] NSWIRComm 126; (2009) 186 IR 99 Category: Principal judgment Parties: New South Wales Teachers Federation (on behalf of Pamela Hall) (Appellant) Managing Director TAFE NSW as Division Head, TAFE Commission Division of Government Service (Respondent) Representation: C M Howell of counsel (Appellant) P Ginters of counsel (Respondent) Federation Law (Appellant) TAFE NSW (Respondent) File Number(s): IRC 1335 of 2010 Decision under appeal Citation: Hall v Department of Technical and Further Education [2010] NSWIRComm 1049 Date of Decision: 2010-10-28 00:00:00 Before: Connor C File Number(s): IRC 1703 of 2009