Corrective Services NSW and Fraser [2015] NSWIRComm 1

Industrial Relations Commission New South Wales Medium Neutral Citation: Corrective Services NSW and Fraser [2015] NSWIRComm 1 Hearing dates: 23 September and 17 November 2014 Date of orders: 06 February 2015 Decision date: 06 February 2015 Jurisdiction: Industrial Relations Commission Before: Walton J, President; Tabbaa C; Stanton C Decision: Orders:

1. Leave to appeal is granted.

2. The appeal is upheld.

3. The decision and orders of Harrison DP in Matter No IRC 823 of 2013 are quashed.

4. The parties shall make any further submissions on the disposition of the appeal in accordance with [210] and [211] of this decision by the appellant filing any submissions in writing within seven days of the date of this decision and the respondent filing written submissions in reply seven days thereafter. Parties should indicate in their written submissions if a short oral hearing in supplementation of the written submissions is required. We give liberty to apply with respect to these directions. Catchwords: APPEAL - application for leave to appeal and appeal - dismissal of correctional officer - finding of misconduct - inappropriate sexual conduct with female inmate - unfair dismissal application - conclusions as to misconduct by employer rejected below - employee reinstated - principles leave to appeal - factual contest - serious issues to be tested on treatment of evidence - matter of importance - public interest - sexual harassment of female prison inmate - leave granted - relevant test in Pt 6 of Ch 2 of Act - relevance of misconduct in unfair dismissal proceedings - standard of proof - Briginshaw - tendency evidence - rule and principle - absence of adequate reasons re tendency evidence but not error in conclusion - two primary allegations - handcuffing and transport - erroneous findings below in both respects - also failure to give adequate reasons - appeal upheld - orders below set aside - Full Bench substitute own decision in the matter - considerations re disposition of the appeal - issues of credit - findings as to respective allegations - allegations made out - misconduct - sexual harassment - whether dismissal harsh, unreasonable or unjust - balancing seriousness of misconduct with exculpatory or mitigating factors - absence of submissions or information on exculpatory or mitigating factors - opportunity for further submissions - orders granting leave upholding appeal and quashing decision and orders below - directions re further submissions on remainder of issues in the appeal Legislation Cited: Anti-Discrimination Act 1977 Evidence Act 1995 Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 Cases Cited: Austin v NF Importers Pty Ltd & Anor [2005] NSWIRComm 353; (2005) 146 IR 113 Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 Department of Attorney General and Justice - Corrective Service and Richard Woelfl and others [2013] NSWIRComm 73; (2013) 237 IR 198 Egge and Pitt v Corrective Services [1993] NSWIRComm 29 Four Sons Pty Limited v Sakchai Limsiripothong [2000] NSWIRComm 38; (2000) 98 IR 1 Fox v Percy [2003] HCA 22; 214 CLR 118 Fraser v Corrective Services NSW [2014] NSWIRComm 21 Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151; 88 IR 202 Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 265 House v R [1936] HCA 40; (1936) 55 CLR 499 Humphries v Cootamundra Ex-Services Memorial Club [2003] NSWIRComm 211; (2003) 128 IR 37 Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51 King v State Bank of New South Wales (No 2) (2002) 126 IR 407 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449; (1992) 67 ALJR 170 NSW Department of Education and Training v NSW Teachers Federation (on behalf of Mossfield) [2006] NSWIRComm 210; (2006) 155 IR 257 Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 at 7 to 8; F (1995) 83 A Crim R 502 Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 R v Uhrig (unreported, Court of Criminal Appeal (NSW), 24 October 1996) R v War Pensions Entitlement Appeal Tribunal and another; ex parte Bott (1933) 50 CLR 228 Sheldon v Sun Alliance Australia Limited (1989) 53 SASR 97 State of New South Wales v Gayle Maree Brown [2014] NSWCA 365 TD Preece & Co Pty Ltd v Industrial Court of New South Wales [2008] NSWCA 285; 177 IR 172 Vouden v Commissioner of Police [2014] NSWIRComm 25 Texts Cited: Wills on Circumstantial Evidence, 6th ed (1912) Taylor on Evidence, 12th ed (1931) Category: Principal judgment Parties: Corrective Services NSW (Appellant) Steven Fraser (Respondent) Representation: Counsel: S B Benson (Appellant) R Reitano (Respondent)