Shakir v Department of Family and Community Services [2017] NSWIRComm 1040

Industrial Relations Commission New South Wales Medium Neutral Citation: Shakir v Department of Family and Community Services [2017] NSWIRComm 1040 Hearing dates: 3, 5 July 2017 Date of orders: 13 July 2017 Decision date: 13 July 2017 Jurisdiction: Industrial Relations Commission Before: Newall C Decision: Application dismissed Catchwords: DISMISSAL – misconduct - employee worked for another employer while absent claiming workers compensation – deliberate failure to disclose other employment on medical certificates submitted – employee in receipt of payments from employer on basis of workers' compensation while working full-time in related occupation for second employer - misconduct established – dismissal not harsh unreasonable or unjust – application dismissed MISCONDUCT – deceit practiced by an employee on an employer, whether for gain or not, will generally be a basis for termination DISMISSAL OF EMPLOYEES – decisionmaker has an obligation to be independently satisfied of facts in taking disciplinary action against employee Legislation Cited: Evidence Act 1995 s.140 Government Sector Employment Act 2013 s.69 Industrial Relations Act 1996 ss.84, 88 Government Sector Employment (General) Rules 2014 Part 8 Cases Cited: Bankstown City Council v Paris (1999) 93 IR 209 Briginshaw v Briginshaw (1938) 60 CLR 336 Buchanan v Secretary, NSW Department of Education [2016] NSWIRComm 1045 Byrne v Australian Airlines Pty Ltd (1995) 185 CLR 410 Concut Pty Ltd v Worrell (2000) 103 IR 160 Electricity Commission of NSW t/as Pacific Power v Nieass (1995) 81 IR 46 Qantas Airways Ltd v Gama [2008] 167 FCR 537 Re Dispute – Dismissal of Union Delegates at Homebush Abattoir [1966] AR 371 Re Tooth & Co re Walker and Moar [1972] AR 130 Category: Principal judgment Parties: Ms Khiloud Shakir (applicant) Department of Family and Community Services (respondent) Representation: Mr C McArdle (solicitor) applicant Mr A Joseph (counsel) respondent