Danwer v Corrective Services NSW [2012] NSWIRComm 1024

Industrial Relations Commission New South Wales Medium Neutral Citation: Danwer v Corrective Services NSW [2012] NSWIRComm 1024 Hearing dates: 31 /08/12 Decision date: 21 September 2012 Before: Ritchie C Decision: Catchwords: Hearing of Notice of Motion filed by respondent. Legislation Cited: Industrial Relations Act, 1996 Cases Cited: Director-General of the Departmentof Corrective Services v Mitchelson (1992)26 NSWLR 648. Category: Principal judgment Parties: Mr S Danwer (appellant) Corrective Services NSW (respondent) Representation: Mr S Ryan for appellant Mr S Cosgrove for respondent File Number(s): IRC 598 of 2012

DECISION

Background.

1Mr Shonit Danwer (the appellant) has been employed by the Department of Attorney General and Justice (Corrective Services NSW) since 2 April 2002. On 5 September 2011 the appellant advised his General Manager that he had been charged with committing an act of indecency under 61 N of the Crimes Act, 1900. 2On 7 September 2011 the appellant was notified in a letter from Deputy Commissioner, Mr Ian McLean that as a result of Police charges against him, he was now suspended with pay from that date. 3On 27 October 2011 the appellant was notified in a letter from the Executive Director, Professional Standards, Ms Liz Ball that the Police charges against him constituted reportable conduct under section 25C of the Ombudsman Act 1974. Further, that pursuant to section 25C of that Act, the Commissioner is required to report any child-related allegations or convictions involving employees to the NSW Ombudsman. 4On 23 April 2012 the appellant was convicted for commit an act of indecency with persons 16 years or over and received a section 9 Bond for 18 months. 5The appellant has filed an appeal over this conviction which has yet to be heard. 6On 24 April 2012, the appellant was notified in a letter from Deputy Commissioner, Ian McLean that as a result of the criminal conviction, consideration was being taken to suspend him from duty without pay. The appellant was invited to show cause in writing as to why salary payable should not be withheld during the period of suspension. 7On 9 May 2012 the appellant was notified that he was now suspended without pay. 8After a request from the appellant as to his desire to access his leave entitlements, this was granted. 9On 22 May 2012, the appellant filed a Notice of Appeal- Public Sector Discipline with respect to his suspension and sought Orders that his salary not be withheld while suspended. 10On 7 August 2012 the respondent filed a Notice of Motion seeking that the application by the appellant be struck out pursuant to section 100B(2) of the Industrial Relations Act, 1996 for want of jurisdiction.