Zoran Krstic v Marrickville Council; Hussein Zreika v Marrickville Council [2015] NSWIRComm 39

Industrial Relations Commission New South Wales Medium Neutral Citation: Zoran Krstic v Marrickville Council; Hussein Zreika v Marrickville Council [2015] NSWIRComm 39 Hearing dates: 11 August 2015, 12 August 2015, 13 August 2015, 14 August 2015, 2 September 2015 Decision date: 03 December 2015 Jurisdiction: Industrial Relations Commission Before: Harrison DP Decision: 1 I find that the allegations of misconduct are proven. Mr Zreika claimed payment for time not worked. Mr Krstic approved payments contrary to his duty to the employer. 2 I find that the mitigating circumstances do not outweigh the gravity of the misconduct. 3 I conclude that termination of employment was not harsh, unreasonable or unjust and decline to intervene. 4 The applications are dismissed and Matters No IRC 148 and 155 of 2015 so concluded. Catchwords: Termination of employment – Dismissal arising from overtime claimed but not worked - Defence that overtime was approved under a Job and Finish scheme not sustained - Further payments claimed for occasional absences approved by Ganger contrary to policy and responsibility to ensure payment only for time worked. Held - Job and Finish not approved – Breach of trust by employees - No procedural unfairness - Employer not penalised for trusting employees. Investigation valid. Mitigating circumstances – length of service – employment record – not sufficient to outweigh gravity of offences. Use of mobile phone records to identify time and location "off the job" adequate to establish without expert evidence on balance of probabilities that employees were absent from work location – better evidence may be required to establish precise location of an employee beyond reasonable doubt. No basis for intervention. Applications dismissed. Legislation Cited: Industrial Relations Act 1996 Local Government Act 1993 No 30 Cases Cited: Clouston & Co Ltd v Cory [1906] AC 122 Electricity Commission of NSW trading as Pacific Power v Nieass & Ors [1995] 81 IR 46 New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigade [2005] NSWIRComm 440 Peter Rochester Gow v Cronulla Sutherland Leagues Club Ltd [2002] NSWIRComm 247 Australian Workers Union v Australian Steel Mill Services Pty [2009] NSWIRComm 1035 Leimonitis and Another v Qube Logistics (Vic) Pty Ltd [2013] FWC 3 Mr N v The Bakery [2010] FWA 3096 Peco Cergoski v Florsheim Australia Limited [1998] AIRC 346 Robert Houston v James Hardie Pipelines [1995] IRCA 286 A Guch v Toyota Motor Corporation Australia Limited [2002] AIRC 260 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Briginshaw v Briginshaw (1938) CLR 336 New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Grose) and Griffith City Council [2006] NSWIRComm 1137 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Buckman v Burdekin (1998) 85 IR 415 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22 In re Loty and Holloway and Australian Workers' Union [1971] AR (NSW) 95 New South Wales v The Commonwealth (Work Choices Case) [2006] HCA 52 Jones v Dunkel (1959) 101 CLR 298 Swain v R [2015] NSWCCA 176 R v Simmons (No 7) [2015] NSWSC 574 R v McGee & McGee [2010] SADC 36 State of Western Australia v Coates [2007] WASC 307 McKay v Commissioner of Police [2005] WAIRComm 2151 Trotter v Astrazeneca Pty Ltd [2006] NSWIRComm 1130 Category: Principal judgment Parties: Mr Zoran Krstic Mr Hussein Zreika Marrickville Council Representation: Counsel: Mr R Moore (Applicants)