Brailsford v Liverpool City Council; Arce v Liverpool City Council; Wojciechowski v Liverpool City Council [2016] NSWIRComm 1022

Industrial Relations Commission New South Wales Medium Neutral Citation: Brailsford v Liverpool City Council; Arce v Liverpool City Council; Wojciechowski v Liverpool City Council [2016] NSWIRComm 1022 Hearing dates: 14, 15, 16 & 17 March, 13 May 2016 Date of orders: 09 June 2016 Decision date: 09 June 2016 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: Each of the three applications for reinstatement is granted subject to terms set out in the orders made. Catchwords: UNFAIR DISMISSAL – serious misconduct – unauthorised absences from the workplace – unauthorised breaks – first and final warning – reduction in grade – required to repay pay back to the Council as recovering the time related to the unapproved breaks – start time at 5.00am – requirement to leave depot by 5.15am – plotting runs away from depot – congregating in the one place – socialising – reliability of investigation log – attack on the credit of the applicants – adverse credit findings against applicants not made – socialising constituted misconduct of moderate seriousness – dismissals were harsh, unreasonable and unjust – practicability of reinstatement – orders for reinstatement made – no orders made for back pay Legislation Cited: Industrial Relations Act 1996 Cases Cited: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Edwards v Justice Guidice [1999] FCA 1836 Perkins v Grace Worldwide (Aust) Pty Ltd [1997] 72 IR 186 Department of Health v Perihan Kaplan [2010] NSWIRComm 444 Redmond v Director General NSW Department of Health on behalf of the Ambulance Service of New South Wales [2012] NSWIRComm 147 Electricity Commission of NSW t/a Pacific Power v Nieass & ors (1985) 81 IR 46 Slaveski v Marrickville Council [2015] NSWIRComm 1027 White v Asciano [2015] FWC 7466 Bi-Lo Pty Ltd V Hooper [1992] SAIRComm 63 Category: Principal judgment Parties: David Brailsford, Luis Arce and Harry Wojciechowski (Applicants) Liverpool City Council (Respondent) Representation: Counsel: D Mahendra (Respondent)