Hansen v Secretary of the Department of Transport – as head of the Transport Service and exercising the employer function of staff of Roads and Maritime Services [2016] NSWIRComm 1011

Industrial Relations Commission New South Wales Medium Neutral Citation: Hansen v Secretary of the Department of Transport – as head of the Transport Service and exercising the employer function of staff of Roads and Maritime Services [2016] NSWIRComm 1011 Hearing dates: 2 & 3 March 2016 Date of orders: 30 March 2016 Decision date: 30 March 2016 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The unfair dismissal application by Paul Anthony Hansen is dismissed. Catchwords: UNFAIR DISMISSAL – out-of-hours conduct – criminal convictions – possession of child abuse material – act of indecency towards a person under the age of sixteen – whether a direct connection between the criminal activity and the person's employment is necessary to justify dismissal – whether repudiation of the employment contract is necessary to justify dismissal – relevance of common law principles to public sector employment – gravity or seriousness of the misconduct – conduct involving the sexual exploitation and abuse of children – breaches of the Code of Conduct – behave in a lawful manner – not bring employer into disrepute – dismissal not unreasonable or unjust – procedural issues – no opportunity to be heard prior to decision to dismiss – failure to afford procedural fairness did not render dismissal unfair – factors weighing in favour of finding of harshness considered – seriousness of applicant's conduct – dismissal not harsh – giving of untruthful evidence – further basis for refusing discretionary relief – application dismissed Legislation Cited: Criminal Code Act 1995 (Cth) Industrial Relations Act 1996 Public Sector Employment and Management Act 2002 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Transport Administration Act 1988 Transport Administration (Staff) Regulation 2012 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne v Australian Airlines Ltd, Frew v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 Appellant v Respondent (1999) 89 IR 407 Farquharson v Qantas Ltd (2006) 155 IR 22 Kevin Cooper v Australian Taxation Office ([2015] FWCFB 868) Rose v Telstra Corporation Ltd - unreported, Print Q9292, Dec 1444/98, 4 December 1998 Kevin Cooper v Australian Taxation Office ([2014] FWC 7551) Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 New South Wales Attorney-General's Department v Miller (2007) 160 IR 185 Director of Public Employment by his agent the Director-General of The Department of Juvenile Justice and Professional Officers' Association Amalgamated Union of NSW (On Behalf of Elvin Brian Brown) [2008] NSWIRComm 221; (2008) 184 IR 134 Public Employment Office Department of Attorney General and Justice (Corrective Services NSW) v Silling [2012] NSWIRComm 118 (31 October 2012) Corrective Services NSW v Danwer [2013] NSWIRComm 61 (16 July 2013) Lawrance v Commissioner of Police [2010] NSWIRComm 149 (12 November 2010) Silling v Corrective Services NSW [2011] NSWIRComm 1056 (16 December 2011) Shonit Kumar Danwer v Corrective Services NSW [2013] NSWIRComm 1009 (27 May 2013) Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 Heugh v Central Petroleum Ltd (No 5) [2014] WASC 311 Category: Principal judgment Parties: Paul Anthony Hansen (Applicant) Roads and Maritime Services (Respondent) Representation: Counsel: P Moorhouse (Applicant)