Barac, Brian v Central Sydney Area Health Service [1998] FCA 1162

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW – Industrial Relations Act 1988 (NSW) – termination of employment of worker – whether valid reason for dismissal connected with employee's conduct Industrial Relations Act 1988 (NSW) ss 170DB(1), 170DC, 170DE(1) BRIAN BARAC v CENTRAL SYDNEY AREA HEALTH SERVICE NI 3809 of 1995

BRANSON J SYDNEY 17 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NI 3809 of 1995

BETWEEN: BRIAN BARAC

Applicant

AND: CENTRAL SYDNEY AREA HEALTH SERVICE

Respondent

JUDGE(S): BRANSON J

DATE OF ORDER: 17 september 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the judicial registrar be affirmed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NI 3809 of 1995

BETWEEN: BRIAN BARAC

Applicant

AND: CENTRAL SYDNEY AREA HEALTH SERVICE

Respondent

JUDGE(S): BRANSON J

DATE: 17 september

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION The applicant, Brian Barac ("Mr Barac") was employed at Royal Prince Alfred Hospital ("RPAH") from 14 July 1986 to 6 September 1995. He initially worked as a theatre orderly and then, from 28 October 1991, as a trainee anaesthetic technician. The respondent is a body corporate constituted by s 17 of the Health Services Act 1997 (NSW). RPAH is a public hospital conducted and managed by the respondent. On 6 September 1995 Mr Barac's employment at RPAH was terminated. Mr Barac brought proceedings under the then Industrial Relations Act 1988 (Cth) ("the Act") claiming reinstatement or compensation. Section 170DB(1) of the Act provides: "An employer must not terminate an employee's employment unless: (a) the employee has been given either the period of notice required by subsection (2), or compensation instead of notice; or (b) the employee is guilty of serious misconduct, that is, misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period". Section 170DC of the Act provides: "An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless: (a) the employee has been given the opportunity to defend himself or herself against the allegations made; or (b) the employer could not reasonably be expected to give the employee that opportunity." Section 170DE(1) of the Act provides: "An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service." A judicial registrar held that the respondent had a valid reason for terminating Mr Barac's employment without notice and had not failed to give Mr Barac an opportunity to defend himself against the allegations made. She dismissed his application. The application before me is an application for review of the decision of the judicial registrar.