Corrective Services NSW v Danwer [2013] NSWIRComm 61

Industrial Relations Commission New South Wales Medium Neutral Citation: Corrective Services NSW v Danwer [2013] NSWIRComm 61 Hearing dates: 4 July 2013 Decision date: 16 July 2013 Before: Boland J, President, Staff J, Backman J Decision: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The decision given on 27 May 2013 by Newall C in Matter IRC 1241 of 2012 is set aside and the orders quashed. Catchwords: UNFAIR DISMISSAL - Public sector employee employed as a prison officer convicted of a serious offence - Employee dismissed pursuant to s 48 of the Public Sector Employment and Management Act 2002 - Dismissal found to be harsh at first instance - APPEAL - Application for leave to appeal and appeal by employer - Repudiation of contract - Off-the-job conduct - Attitude of employee regarding guilt and conviction - Connection between attitude and duties as a prison officer - Proper approach to a consideration of whether dismissal was harsh - All relevant factors to be taken into account and weighed - Errors at first instance - Appeal upheld - Decision at first instance set aside and orders quashed Legislation Cited: Crimes Act 1900 Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 Cases Cited: Bradley Smith v Commissioner of Police (No. 4) [2010] NSWIRComm 14 Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Davies v General Transport-Development Pty Ltd (1967) AR 371 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Director of Public Employment by his agent the Director-General of The Department Of Juvenile Justice and Professional Officers' Association Amalgamated Union of NSW (On Behalf of Elvin Brian Brown) [2008] NSWIRComm 221; (2008) 184 IR 134 Egge and Pitt v Corrective Services [1993] NSWIRComm 29 Fire Brigade Employees' Union of New South Wales (on behalf of Brendan O'Donnell) and Fire & Rescue NSW [2013] NSWIRComm 57 Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151; (1999) 88 IR 282 NSW Attorney-General's Department v Miller [2007] NSWIRComm 33; (2007) 160 IR 185 NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 Public Employment Office, Department of Attorney General and Justice (Corrective Services NSW) v Silling [2012] NSWIRComm 118 Rose v Telstra Corporation Limited (Unreported, AIRC, Ross VP, Print Q9292, 4 December 1998) Shonit Kumar Danwer v Corrective Services NSW [2013] NSWIRComm 1009 Wells and Commissioner of Police [2000] NSWIRComm 157; (2000) 100 IR 106 Category: Principal judgment Parties: Corrective Services NSW (Appellant) Shonit Kumar Danwer (Respondent) Representation: Mr S Benson of Counsel (For the Appellant) I V Knight, Crown Solicitor (For the Appellant) Stephen Ryan Solicitor (For the Respondent) File Number(s): IRC 460 of 2013 Decision under appeal Citation: Shonit Kumar Danwer v Corrective Services NSW [2013] NSWIRComm 1009 Date of Decision: 2013-05-27 00:00:00 Before: Newall C File Number(s): IRC 1241 of 2012