Marroun v State Transit Authority [2016] NSWIRComm 1003

Industrial Relations Commission New South Wales Medium Neutral Citation: Marroun v State Transit Authority [2016] NSWIRComm 1003 Hearing dates: 27, 28 January 2016 Date of orders: 04 February 2016 Decision date: 04 February 2016 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Appeal dismissed Catchwords: PUBLIC SECTOR DISCIPLINARY APPEAL – Nature of jurisdiction – jurisdiction protective – Commission to have regard not only to allegations and punishment but all surrounding factors – punishment inappropriate – appellant nevertheless committed other breaches of fundamental employment obligations – Commission must have regard to these – appeal dismissed EMPLOYER DISCIPLINARY INVESTIGATIONS – duty of employee to be candid with employer CREDIT OF WITNESSES – detection of witness in a lie does not necessarily prove truth of alternative proposition of fact – assessment of credit by demeanour – assessment of credit by consistency of evidence – account glaringly improbable POST EMPLOYMENT CONDUCT – social media – public description of employer as 'bastards' and criminals' – conduct renders re-establishment of employment relationship impossible DISCRETIONARY REMEDY – obligation on party seeking discretion of Commission to be candid – disentitling conduct can result in remedy being refused Legislation Cited: Civil Procedure Act 2005 s.56 Industrial Relations Act 1996 s.98, s.100C, 100D Cases Cited: Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91 Chambers v Jobling (1986) 7 NSWLR 1 Director General, Department of Ageing, Disability and Homecare v Lambert [2009] NSWCA 102 Duhbihur v Transport Appeal Board [2005] NSWSC 811; 149 IR 276 Gilmore v Allied Express Transport Pty Ltd [2006] NSWIRComm 16 Martin Evans v NSW Police [2005] NSWIRComm 404 Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Schoeman v Secretary, Department of Justice [2014] NSWIRComm 1028 Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40; 86 NSWLR 749 Telstra Corporation Limited v Streeter [2008] AIRCFB 15 Tweed Shire Council v Hancomatic Music Pty Ltd [2007] NSWCA 350; (2007) Aust Tort Reports 81-922 Category: Principal judgment Parties: Jamal Marroun (appellant) State Transit Authority of the Transport Service of New South Wales (respondent) Representation: Counsel: E W Young (appellant)