Shonit Kumar Danwer v Corrective Services NSW [2013] NSWIRComm 1009

Shonit Kumar Danwer v Corrective Services NSW [2013] NSWIRComm 1009

The applicant's off-duty conduct and conviction were matters the respondent could consider, and the decisionmaker legitimately considered the applicant's attitude to the conviction. However, on the particular facts, the applicant's attitude was not shown to be incompatible with his duties as a relatively junior Correctional Services Officer so as to warrant dismissal of an employee with a nine-year unblemished employment record. The ultimate sanction of dismissal was therefore harsh, though not unreasonable or unjust, and reinstatement was not impracticable.

Jurisdiction
Australia
Judgment Date
27 May 2013
Procedural Posture
Application Pursuant to S.84 of the Industrial Relations Act 1996 Concerning Dismissal From Employment / Principal Judgment After Unsuccessful Conciliation and Hearing
Outcome
Applicant reinstated; dismissal found harsh; no order as to remuneration.
Legal Topics
['dismissal Following Criminal Conviction' 'off Duty Conduct' 'harsh, Unreasonable or Unjust Dismissal' 'reinstatement' 'correctional Services Employment Duties']
['industrial Relations' 'employment Law' 'public Sector Disciplinary Action'] ['dismissal Following Criminal Conviction' 'off Duty Conduct' 'harsh, Unreasonable or Unjust Dismissal' 'reinstatement' 'correctional Services Employment Duties']

Case Brief

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Procedural Posture

Application Pursuant to S.84 of the Industrial Relations Act 1996 Concerning Dismissal From Employment / Principal Judgment After Unsuccessful Conciliation and Hearing

Legal Issues

  1. 1 ["Whether the applicant's dismissal following an off-duty criminal conviction was harsh, unreasonable or unjust under s.84 of the Industrial Relations Act 1996." "Whether the applicant's attitude to his conviction and lack of acceptance of wrongdoing was incompatible with his duties as a Correctional Services Officer." "Whether reinstatement to the applicant's former position was impracticable."]

Ratio Decidendi

The applicant's off-duty conduct and conviction were matters the respondent could consider, and the decisionmaker legitimately considered the applicant's attitude to the conviction. However, on the particular facts, the applicant's attitude was not shown to be incompatible with his duties as a relatively junior Correctional Services Officer so as to warrant dismissal of an employee with a nine-year unblemished employment record. The ultimate sanction of dismissal was therefore harsh, though not unreasonable or unjust, and reinstatement was not impracticable.

Court Disposition

Applicant reinstated; dismissal found harsh; no order as to remuneration.

Orders

  • ["The applicant, Mr Shonit Kumar Danwer, is reinstated to his former position of Corrective Services Officer at the Metropolitan Remand Centre with effect from the commencement of the first pay period on or after today's date." "The applicant's period of service shall be treated as not having been broken by his...