Roads and Maritime Services v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Ganino) [2012] NSWIRComm 12

Industrial Relations Commission New South Wales Medium Neutral Citation: Roads and Maritime Services v Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Ganino) [2012] NSWIRComm 12 Hearing dates: 23 February 2012 Decision date: 12 March 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President; Haylen J; Staff J Decision: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision and orders of Tabbaa C in Matter IRC 1141 of 2009 are set aside. 4. The matter is remitted to Tabbaa C to determine in accordance with these reasons. 5. The stay granted by Kavanagh J on 10 November 2011 is dissolved. Catchwords: APPEAL - unfair dismissal - s 84 of the Industrial Relations Act 1996 - applicant dismissed for serious misconduct - applicant contended dismissal a nullity - invalid delegation - determined as threshold issue - failure to consider overall merits of the matter - leave to appeal granted - appeal upheld - decision and orders set aside - stay dissolved - matter remitted for determination Legislation Cited: Industrial Relations Act 1996 Industrial Relations Act 1988 (Cth) Cases Cited: Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 131 ALR 422; (1995) 69 ALJR 797; (1995) 185 CLR 410 (11 October 1995) Ganino v Roads and Traffic Authority of NSW [2011] NSWIRComm 1008 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (On behalf of Rosanna Ganino) and Roads and Traffic Authority of NSW, Division of Government Service [2011] NSWIRComm 1048 R v Industrial Court; Ex Parte Mount Gunson Mines Pty Ltd (1982) 30 SASR 504 Siagian v Sanel Pty Ltd [1994] IRCA 2; (1994) 54 IR 185 Visscher v Industrial Australian Industrial Relations Commission [2007] FCASC 206; (2007) 170 IR 419 Category: Principal judgment Parties: Roads and Maritime Services (Appellant) Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Ganino) (Respondent) Representation: Counsel: Mr P Menzies QC (Appellant) Ms P Lowson of counsel (Respondent) Solicitors: Minter Ellison (Appellant) WG McNally Jones Staff (Respondent) File Number(s): IRC 1720 of 2011 Decision under appeal Jurisdiction: 9102 Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (On behalf of Rosanna Ganino) and Roads and Traffic Authority of NSW, Division of Government Service [2011] NSWIRComm 1048 Date of Decision: 2011-09-26 00:00:00 Before: Tabbaa C File Number(s): IRC 1141 of 2009