Dispute TWU and Busways Wyong Pty Ltd re alleged dismissal of employee [2010] NSWIRComm 1046

Dispute TWU and Busways Wyong Pty Ltd re alleged dismissal of employee [2010] NSWIRComm 1046

The applicant's conduct on 15 October, 25 November and 30 November 2009 was serious, wilful and deliberate, and struck at the heart of the employment relationship and the obligation of mutual trust and confidence. However, the dismissal was procedurally unfair and harsh because the applicant was not aware before the 30 November meeting that the respondent considered the employment relationship had broken down or that his job was in jeopardy, was afforded only a limited opportunity to show cause, was dismissed without an opportunity to seek counsel from his Union organiser, and the respondent did not consider his work history before summarily dismissing him. Reinstatement was impracticable...

Jurisdiction
Australia
Judgment Date
17 August 2010
Procedural Posture
Notification Under Section 146 B of the Industrial Relations Act 1996 of a Dispute Concerning Alleged Dismissal of Employee / Arbitration of the Dispute Notified by the Union
Outcome
The dismissal was found to be procedurally unfair and harsh; reinstatement was refused as impracticable; compensation was ordered.
Legal Topics
['summary Dismissal' 'unfair Dismissal Remedy' 'serious Misconduct' 'procedural Fairness' 'mutual Trust and Confidence' 'reinstatement' 'compensation']
['industrial Relations' 'employment Law'] ['summary Dismissal' 'unfair Dismissal Remedy' 'serious Misconduct' 'procedural Fairness' 'mutual Trust and Confidence' 'reinstatement' 'compensation']

Case Brief

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Procedural Posture

Notification Under Section 146 B of the Industrial Relations Act 1996 of a Dispute Concerning Alleged Dismissal of Employee / Arbitration of the Dispute Notified by the Union

Legal Issues

  1. 1 ['Whether the misconduct alleged by the respondent was proven.' "Whether the seriousness of the applicant's misconduct justified summary dismissal." 'Whether the respondent afforded the applicant procedural fairness.' "Whether the conduct amounted to a repudiation of the applicant's contract of employment." 'Whether reinstatement or compensation was the appropriate remedy.']

Ratio Decidendi

The applicant's conduct on 15 October, 25 November and 30 November 2009 was serious, wilful and deliberate, and struck at the heart of the employment relationship and the obligation of mutual trust and confidence. However, the dismissal was procedurally unfair and harsh because the applicant was not aware before the 30 November meeting that the respondent considered the employment relationship had broken down or that his job was in jeopardy, was afforded only a limited opportunity to show cause, was dismissed without an opportunity to seek counsel from his Union organiser, and the respondent did not consider his work history before summarily dismissing him. Reinstatement was impracticable...

Court Disposition

The dismissal was found to be procedurally unfair and harsh; reinstatement was refused as impracticable; compensation was ordered.

Orders

  • ['Pursuant to section 89(5) of the Industrial Relations Act 1996, Busways Wyong Pty Ltd is to pay to the applicant an amount of $4,400.00 as compensation within twenty-one days of the date of this decision.' 'Matter No IRC 1910 of 2009 is concluded.']