Gaite v Commissioner of Fire and Rescue NSW [2019] NSWIRComm 1070

Industrial Relations Commission New South Wales Medium Neutral Citation: Gaite v Commissioner of Fire and Rescue NSW [2019] NSWIRComm 1070 Hearing dates: 26 and 27 August 2019 Date of orders: 23 September 2019 Decision date: 23 September 2019 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: 1. The name of the respondent to these proceedings is amended to "Commissioner of Fire and Rescue NSW".

2. Nicholas Gaite is to be reinstated to the position he held with Fire and Rescue NSW immediately before his dismissal on 15 January 2019 on the terms and conditions that applied to his position at that time.

3. Order 2 is to take effect from Tuesday, 8 October 2019.

4. The period between 15 January 2019 and 8 October 2019 is not to count as service by Mr Gaite for any purpose.

5. Despite order 4, the period of employment of Mr Gaite with Fire and Rescue NSW is to be taken as having not been broken by the dismissal. Catchwords: UNFAIR DISMISSAL – senior firefighter – demonstration of pain stimuli on recruits during training session without warning or consent – conduct proven – whether applicant intended to cause injury – whether applicant recklessly caused injury – whether conduct amounted to misconduct warranting immediate termination of employment – no intention to cause harm and conduct not for improper purpose – dismissal not warranted by misconduct established –age, length of service and good record considered – dismissal unjust and harsh – reinstatement not impracticable – reinstatement ordered Legislation Cited: Fire and Rescue NSW Act 1989 (NSW) ss 69, 70 Fire Brigade Regulation 2014 (NSW) reg 3, Pt 3 regs 13, 16, 17, Pt 4 regs 33, 35 Industrial Relations Act 1996 (NSW) ss 84, 88, 89 Cases Cited: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm 117 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 North v Television Corporation Limited (1976) 11 ALR 599 NUW (on behalf of Wayne Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 Outboard World Pty Limited (t/a Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 Re Loty and Holloway v Australian Workers' Union [1971] AR 95 Tredinnick v Commissioner of Police [2016] NSWIRComm 14 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Texts Cited: Encyclopaedic Australian Legal Dictionary Oxford Australian Law Dictionary Category: Principal judgment Parties: Nicholas Gaite (Applicant)