Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000

Industrial Relations Commission New South Wales Medium Neutral Citation: Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 Hearing dates: 9, 10, 11 October 2013; 23 October 2013; 27 November 2013; 18 December 2013. Decision date: 08 January 2014 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Appeal dismissed Catchwords: Alleged unfair dismissal - probationary teacher - annulment of probationary appointment for misconduct - allegations of physical contact with students including punching and wrestling - allegation of unsafe teaching practices resulting in student being injured - allegation of breach of direction not to come into physical contact with students - difficulties of modern teaching environment - reliability of evidence - level of proof of misconduct - effect of s.5A of Teaching Service Act - Department's obligation to provide for safety of students - teacher's duty of care to students - allegations established on evidence - misconduct established - annulment not harsh, unreasonable or unjust - application dismissed . Legislation Cited: Evidence Act 1995 s.140 Industrial Relations Act 1996 s.84, 88, 89 Teaching Service Act 1980 s.5A, s.5A(2), s.93B, s.93C. Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Certain Lloyd's Underwriters and Underwriters Subscribing to contract No IHOOAAQS v Cross (2012) 293 ALR 412 Commissioner for Police v Donlan (unreported, Supreme Court of NSW, 8 August 1995) Jones v Dunkel (1959) 101 CLR 298 Geyer v Downs (1977) 136 CLR 91 Matkevich v NSW Technical and Further Education Commission (No 3) (Supreme Court of NSW, 2 Feb 1996, unrep National Union of Workers NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 Puccio v Catholic Education Office (1996) 68 IR 407 Re Barrett v Women's Hospital Crown Street (1947) AR (NSW) 565 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Category: Principal judgment Parties: Mr Stephen Krix - Applicant