Public Employment Office Department of Attorney General and Justice (Corrective Services NSW) v Silling [2012] NSWIRComm 118

Industrial Relations Commission New South Wales Medium Neutral Citation: Public Employment Office Department of Attorney General and Justice (Corrective Services NSW) v Silling [2012] NSWIRComm 118 Hearing dates: 29/05/2012 Decision date: 31 October 2012 Before: Haylen J at [1], Backman J at [4], Stanton C at [78] Decision: (1) Leave to appeal is refused. Catchwords: LEAVE TO APPEAL AND APPEAL from decision of Commissioner - unfair dismissal - respondent dismissed under s 48 of Public Sector Employment and Management Act 2002 - application brought under s 84 of the Industrial Relations Act 1996 - respondent reinstated by Commissioner - whether misapplication of law and principle on the connection between out-of-hours conduct and employment - whether erroneous aggregation or conflation of tripartite statutory test of "harsh, unreasonable or unjust" - whether error in consideration of whether the dismissal was harsh - decision to reinstate considered - leave to appeal refused Legislation Cited: Crimes Act 1900 Crimes (Domestic and Personal Violence) Act 2007 Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 Cases Cited: Anthony Farquharson v Qantas Airways Limited [2006] AIRC (Print PR 971685, 10 August 2006) Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20 Byrne v Australian Airlines Limited (1995) 185 CLR 410 Commissioner of Police v Dobbie (2006) 157 IR 44 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Director-General of the Department of Juvenile Justice v Public Service Association (on behalf of Brown) [2008] NSWIRComm 221; 184 IR 134 Evans v NSW Police [2005] NSWIRComm 404 Flanagan v Commissioner of Police (2010) 192 IR 88 King v State Bank of New South Wales (No 2) (2002) 126 IR 407 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Kolodjashnij v J Boag and Son Brewing Pty Ltd [2010] FWAFB 3258 National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 Outboard World Pty Limited T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 Rose v Telstra Corporation Limited - 1444/98 N Print Q9292 [1998] AIRC 1592 (4 December 1998) WorkCover Authority of New South Wales v Blacktown City Council (2003) 128 IR 361 Category: Principal judgment Parties: Public Employment Office Department of Attorney General and Justice (Corrective Services NSW) (Appellant) Michael John Silling (Respondent) Representation: Mr S Prince of counsel (Appellant) Mr A Hatcher SC (Respondent) Department of Attorney General and Justice (Appellant) W G McNally Jones Staff (Respondent) File Number(s): IRC 1921 of 2011 Decision under appeal Citation: Silling v Corrective Services NSW [2011] NSWIRComm 1056 Date of Decision: 2011-12-16 00:00:00 Before: Bishop C File Number(s): IRC 1199 of 2011