Corrective Services NSW v Danwer [2013] NSWIRComm 61

Corrective Services NSW v Danwer [2013] NSWIRComm 61

The Commission erred at first instance in applying a repudiation-based test rather than weighing all relevant factors under the statutory regime; objectively, the dismissal was not harsh given the gravity of the offence, lack of remorse, incompatibility of attitude with core duties, and public interest. Orders reinstating Mr Danwer were set aside and quashed.

Jurisdiction
Australia
Judgment Date
16 July 2013
Procedural Posture
Appeal / Leave to Appeal and Appeal of Unfair Dismissal Decision
Outcome
Appeal upheld; previous reinstatement decision set aside and orders quashed.
Legal Topics
['unfair Dismissal' 'public Sector Employment' 'disciplinary Action' 'harshness Test' 'repudiation' 'role of Off Duty Conduct']
['employment Law' 'administrative Law' 'industrial Law'] ['unfair Dismissal' 'public Sector Employment' 'disciplinary Action' 'harshness Test' 'repudiation' 'role of Off Duty Conduct']

Case Brief

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Procedural Posture

Appeal / Leave to Appeal and Appeal of Unfair Dismissal Decision

Legal Issues

  1. 1 ['Whether dismissal of public sector employee convicted of a serious offence was harsh, unjust or unreasonable under Industrial Relations Act 1996' 'Proper approach to considering harshness of dismissal under s 48 Public Sector Employment and Management Act 2002' "Connection between employee's attitude to conviction and suitability for duties as a prison officer"]

Ratio Decidendi

The Commission erred at first instance in applying a repudiation-based test rather than weighing all relevant factors under the statutory regime; objectively, the dismissal was not harsh given the gravity of the offence, lack of remorse, incompatibility of attitude with core duties, and public interest. Orders reinstating Mr Danwer were set aside and quashed.

Court Disposition

Appeal upheld; previous reinstatement decision set aside and orders quashed.

Orders

  • ['Leave to appeal is granted.' 'The appeal is upheld.' 'The decision given on 27 May 2013 by Newall C in Matter IRC 1241 of 2012 is set aside and the orders quashed.']