Fire Brigade Employees' Union of New South Wales (on behalf of Brendan O'Donnell) and Fire & Rescue NSW [2013] NSWIRComm 57

Industrial Relations Commission New South Wales Medium Neutral Citation: Fire Brigade Employees' Union of New South Wales (on behalf of Brendan O'Donnell) and Fire & Rescue NSW [2013] NSWIRComm 57 Hearing dates: 12 June 2013 Decision date: 05 July 2013 Before: Boland J, President, Staff J, Backman J Decision: (1) Leave to appeal is granted. (2) To the extent determined in this decision, the appeal is upheld. (3) The matter is remitted to Tabbaa C to be disposed of in accordance with this decision and as expeditiously as practicable. Catchwords: UNFAIR DISMISSAL - Application by Firefighter for reinstatement on ground that dismissal was unfair - Dismissal followed incident at work where appellant assaulted fellow employee - Appellant summarily dismissed - Application under s 84 of Industrial Relations Act 1996 dismissed at first instance - APPEAL - Application for leave to appeal and appeal by employee - Appeal upheld - Finding that dismissal was harsh - Issue of mental illness not taken into account at first instance as a mitigating factor - Reinstatement impracticable - Matter remitted to Commissioner to deal with under s 89(2). Legislation Cited: Crimes Act 1900 Industrial Relations Act 1996 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Ltd & Anor (2005) 146 IR 113 Bradley Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14 Casari v Sydney South West Health Service [2009] NSWIRComm 103; (2009) 185 IR 217 Commissioner of Police v Ross [2012] NSWIRComm 17 Commissioner of Police v Smith [2010] NSWIRComm 162 Murray Irrigation Ltd v Balsdon [2006] NSWCA 253; (2006) 67 NSWLR 73 New South Wales Department of Education & Training v New South Wales Teachers Federation (on behalf of Mossfield) [2006] NSWIRComm 210; (2006) 155 IR 257 New South Wales Fire Brigade Employees Union of New South Wales (on behalf of Brenden [sic] O'Donnell) and Fire & Rescue NSW [2013] NSWIRComm 1004 Peter Rochester Gow v Cronulla Sutherland Leagues Club Ltd [2002] NSWIRComm 247; (2002) 119 IR 122 Port Macquarie Golf Club Ltd v Stead and another (1996) 64 IR 53 Re Dispute; Re Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Wells and Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106 Category: Principal judgment Parties: Fire Brigade Employees' Union of New South Wales (on behalf of Brendan O'Donnell) (Appellant) Fire & Rescue NSW (Respondent) Representation: Mr J H Pearce of counsel (Appellant) Mr M J Easton of counsel (Respondent) File Number(s): IRC 128 of 2013 Decision under appeal Citation: New South Wales Fire Brigade Employees' Union (on behalf of Brenden [sic] O'Donnell) and Fire and Rescue NSW [2013] NSWIRComm 1004 Date of Decision: 2013-01-31 00:00:00 Before: Tabbaa C File Number(s): IRC 1777 of 2011