Elafchal v Rail Corporation of New South Wales [2012] NSWIRComm 90

Industrial Relations Commission New South Wales Medium Neutral Citation: Elafchal v Rail Corporation of New South Wales [2012] NSWIRComm 90 Hearing dates: 13 August 2012 (Submissions 25 May 2012; 7 August 2012) Decision date: 24 August 2012 Jurisdiction: Industrial Court of NSW Before: Walton J, Vice-President, Haylen J, Staff J Decision: Having regard to the nature of the issue raised on appeal in this Court and the terms of the decision of the Board, it is appropriate, to the extent necessary, that leave to appeal be granted. However, for the reasons outlined above, the order of the Court is that the appeal be dismissed. Catchwords: TRANSPORT APPEAL BOARDS ACT 1980 - s 23A - appeal on question of law against decision of Appeal Board - employee found guilty of criminal offence - criminal conduct arising outside work hours - whether Board impermissibly confined its jurisdiction - alleged failure to consider mitigating circumstances personal to employee - held that, in substance, Board considered all submissions and evidence - finding that criminal offence incompatible with duties to be performed and that essential trust of employer no longer existed resulted in personal factors being insufficient to warrant re-employment - no error of law demonstrated - leave to appeal granted - appeal dismissed. Legislation Cited: Crimes (Sentencing and Procedure) Act 1999 Crimes Act 1900 Transport Administration (Staff) Regulation 2005. Transport Appeal Boards Act 1980 Workplace Relations Act 1996 Cases Cited: Rail Corporation v Brown [2012] NSWIRComm 14 Rose v Telstra Corporation Ltd [1998] AIRC 1592 Category: Principal judgment Parties: Belal Elafchal (Appellant) Rail Corporation of New South Wales (Respondent) Representation: Mr I Latham of counsel (Appellant) Mr P Ginters of counsel (Respondent) Legal Services Division Rail Corporation of New South Wales (Respondent) File Number(s): IRC 565 of 2012 Decision under appeal Citation: Elafchal v RailCorp Date of Decision: 2012-04-27 00:00:00 Before: Ritchie C File Number(s): TAB 1508 of 2011