Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Rosanna Ganino) and Roads and Maritime Services [2013] NSWIRComm 106

Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Rosanna Ganino) and Roads and Maritime Services [2013] NSWIRComm 106 Hearing dates: 21 November 2013 Decision date: 18 December 2013 Jurisdiction: Industrial Relations Commission Before: Walton J, Vice-President; Staff J; Backman J Decision: (1) Leave to appeal is granted. (2) To the extent reflected in this decision, the appeal is upheld (3) The orders of Tabbaa C of 24 May 2013 are quashed (4) The matter is remitted to Boland J to determine any appropriate orders to be made in the first instance matter under s 89(3) of the Act in accordance with this decision. His Honour should have before him the evidence and submissions relied upon by the parties. Catchwords: APPEAL - unfair dismissal - reinstatement - mitigation - entitlement to lost remuneration - exercise of discretion by Commissioner in determining amount of lost remuneration - discounted by nine months remuneration - failure to provide proper reasons for exercise of discretion - failure to properly exercise discretion - principles - no demonstrable basis for conclusion reached - error - leave to appeal granted - appeal upheld - orders quashed - remitted to Member of the Commission Legislation Cited: Industrial Relations Act 1996 Cases Cited: Australian Coal & Shale Employees' Federation v Commonwealth [1953] [1953] HCA 25; (1953) 94 CLR 621 Coal and Allied v AIRC [2000] HCA 47; 203 CLR 194; 74 ALJR 1348; 99 IR 309; 174 ALR 585 House v R [1936] HCA 40; (1936) 55 CLR 499 Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Public Service Association and Professional Officers Association Amalgamated Union of NSW (on behalf of Rosanna Ganino) and Roads and Maritime Services [2013] NSWIRComm 1008 Public Service Association and Professional Officers Association Amalgamated Union of NSW (on behalf of Rosanna Ganino) and Roads and Maritime Services [2012] NSWIRComm 1014 Sydney Ferries Corporation v The Seamen's Union of Australia, NSW Branch on behalf of Levy [2009] NSWIRComm 126; (2009) 186 IR 99 Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Rosanna Ganino) (Appellant) Roads and Maritime Services (Respondent) Representation: Ms P F Lowson of counsel (Appellants) Ms K L Eastman SC (Respondent) Coyne Legal (Applicants) Minter Ellison (Respondent) File Number(s): IRC 499 of 2013 Decision under appeal Citation: Public Service Association and Professional Officers Association Amalgamated Union of NSW (on behalf of Rosanna Ganino) and Roads and Maritime Services [2013] NSWIRComm 1008 Date of Decision: 2013-05-24 00:00:00 Before: Tabbaa C File Number(s): IRC 1141 of 2009