Frank Cunningham and Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) [2017] NSWIRComm 1063

Industrial Relations Commission New South Wales Medium Neutral Citation: Frank Cunningham and Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) [2017] NSWIRComm 1063 Hearing dates: 31 July, and 1 and 2 August 2017 and written submissions on 9 and 16 August 2017 Date of orders: 26 September 2017 Decision date: 26 September 2017 Jurisdiction: Industrial Relations Commission Before: Commissioner Seymour Decision: (1) Appeal allowed.

(2) Respondent to restore Appellant to the position of Assistant Superintendent on and from 10 October 2017.

(3) Respondent to restore Appellant's rate of pay to the level applicable to an Assistant Superintendent on and from 10 October 2017.

(4) Respondent to pay Appellant the difference between the rate of pay he has received since 1 August 2017 and the rate of pay applicable to an Assistant Superintendent, on and from 1 August 2017 until orders (2) and (3) are put into effect. Catchwords: Public sector disciplinary appeal – disciplinary action of demotion for unsatisfactory performance – hearing de novo - disciplinary regime protective - Commission to have regard to all circumstances - overall employment relationship considered - appeal upheld - demotion set aside – consequential order for back pay not made Legislation Cited: Government Sector Employment Act 2013 (NSW) ss 68(2) , 69 Government Sector Employment (General) Rules 2014, rules 35, 36 Industrial Relations Act 1996 (NSW) ss 97, 98, 100B, 100C(2) Cases Cited: Alameddine v Railcorp [2012] NSWTAB 4 Calman v Commissioner of Police [1999] HCA 60; (1999) 167 ALR 91 Goodwin v Secretary of the Ministry of Health (in respect of the Ambulance Service of New South Wales) [2016] NSW IRComm 1044 Grech v State Transit Authority [2014] NSW IRComm 1030 National Union of Workers NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 Pastrycooks Employees, Biscuit Makers and Flour and Sugar Goods Workers' Union v Gartrell White (No 3) (1990) 35 IR 70 Secretary, Department of Justice v Schoeman [2014] NSWIRComm 40 Category: Principal judgment Parties: Frank Cunningham (Appellant) Industrial Relations Secretary on behalf of the Department of Justice (Corrective Services NSW) (Respondent) Representation: Counsel: D Nagle - Appellant A Perigo - Respondent