Wayne Butler and Safety Return to Work Support Division [2013] NSWIRComm 45

Industrial Relations Commission New South Wales Medium Neutral Citation: Wayne Butler and Safety Return to Work Support Division [2013] NSWIRComm 45 Hearing dates: 11, 12, 15, 16, 17 April 2013 Decision date: 21 June 2013 Jurisdiction: Industrial Relations Commission Before: Harrison DP Decision: 1. Pursuant to section 89 (1) of the Industrial Relations Act 1996 the Safety, Return to Work and Support Division is ordered to reinstate Mr Wayne Butler to his former position on terms not less favourable than those that would have been applicable but for dismissal within 14 (fourteen) days of the date of this decision. 2. Pursuant to section 89 (3) of the Industrial Relations Act 1996 the Safety, Return to Work and Support Division is ordered to pay to Mr Wayne Butler the remuneration he would have received, but for being dismissed, before being reinstated in accordance with the order. 3. Pursuant to section 89 (4) of the Industrial Relations Act 1996 the period of employment of Mr Butler by the Safety, Return to Work and Support Division is taken not to have been broken by the dismissal. Catchwords: Application re unfair dismissal - public sector employment - WorkCover NSW. Alleged conduct contrary to policy - no allegation of dishonesty - investigation process - charges re misuse of position for purchase of goods for voluntary organisation - secondary employment - use of email, internet, mobile communication devices - gifts and benefits - information security - lodgement of time sheets and recording of work hours. Held - Investigation flawed - conclusions not supported by fact - process devoid of fairness - decision maker misled - lack of substance in allegations. Dismissal harsh, unreasonable and unjust. Reinstatement, remuneration and continuity of service ordered. Legislation Cited: Industrial Relations Act 1996 Public Sector Management Act Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Jones v Dunkel (1959) 101 CLR 298 Pastry Cooks Union v Gartrell White No 3 35 IR 70 Category: Principal judgment Parties: Wayne Butler (Applicant) Safety Return to Work Support Division (Respondent) Representation: R Reitano of counsel (Applicant) G Phillips solicitor (Respondent) W G McNally Jones Staff (Applicant)