Smith v Secretary, Department of Industry [2018] NSWIRComm 1065

Industrial Relations Commission New South Wales Medium Neutral Citation: Smith v Secretary, Department of Industry [2018] NSWIRComm 1065 Hearing dates: 23 April, 18, 19 and 20 June, 23 and 24 July, 18 August and 5 October 2018 Date of orders: 01 November 2018 Decision date: 01 November 2018 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The unfair dismissal application of Graham Smith is dismissed Catchwords: UNFAIR DISMISSAL – allegations of misconduct – applicant diagnosed with dyslexia – offensive email communications – direction to attend counselling interview – applicant challenged direction – applicant claimed dyslexia responsible for his communication style – applicant rejected offer of independent assessment by clinical psychologist – applicant continued to send offensive communications to managers – misconduct allegations – sustained findings of misconduct – applicant dismissed – dismissal of the applicant not harsh unreasonable or unjust – application dismissed Legislation Cited: Anti-Discrimination Act 1977 Government Sector Employment Act 2013 Work Health and Safety Act 2011 Government Sector Employment (General) Rules 2014 Cases Cited: Corrective Services NSW v Danwer [2013] NSWIRComm 61 Smith v Department of Education and Communities [2013] NSWADT 162 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (CSNSW) [2016] NSWIRComm 1036 Category: Principal judgment Parties: Graham Smith (Applicant)

Secretary, Department of Industry (Respondent) Representation: Counsel: Mr A Howell (Applicant) Mr D Mahendra (Respondent)