McFarlane v Corrective Services NSW [2018] NSWIRComm 1073

Industrial Relations Commission New South Wales Medium Neutral Citation: McFarlane v Corrective Services NSW [2018] NSWIRComm 1073 Hearing dates: 23 August 2017 Date of orders: 20 November 2018 Decision date: 20 November 2018 Jurisdiction: Industrial Relations Commission Before: Stanton C Decision: The unfair dismissal application by Kenneth McFarlane is dismissed Catchwords: UNFAIR DISMISSAL – Correctional Officer First Class-16 years' service - out-of-hours criminal conduct – assault of fellow Officer - intoxication - not guilty plea before Local Court - conviction of Assault Occasioning Actual Bodily Harm - District Court appeal affirmed finding of guilt - good behaviour bond for 12 months – comments of District Court Judge considered - procedural fairness considered – video evidence examined - seriousness of applicant's conduct against regulatory context governing applicant's employment considered – dismissal not unjust or unreasonable – harshness considered against mitigating factors – mitigating factors do not outweigh seriousness of applicant's misconduct – dismissal not harsh – dismissal not harsh, unjust or unreasonable - application dismissed Legislation Cited: Industrial Relations Act 1996 Crimes (Sentencing Procedure) Act 1999 Government Sector Employment Act 2013 Government Sector Employment Rules 2014 Industrial Relations (General) Regulation 2015 Cases Cited: Commissioner of Australian Federal Police v Butler and another [1989] FCA 473; 91 ALR 293 Concut Pty Ltd v Worrell and Another (2000) 103 IR 160 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 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 Loty and Holloway v Australian Workers Union 1971 AR 95 Outboard Marine Pty Ltd T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 Parmalat Food Products Pty Ltd v Walilo FWAFB [2011] FWAFB 1166 Perkins v Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 Wittensleger and Australian Securities and Investments Commission [2015] AATA 902 NSWIRComm 57 Category: Principal judgment Parties: Kenneth McFarlane (Applicant) Industrial Relations Secretary on behalf of the Secretary, Department of Justice (Corrective Services NSW) (Respondent) Representation: Counsel: Mr R Reitano (Applicant) Ms R Graycar (Respondent)