Naylor v Health Secretary on behalf of Illawarra Shoalhaven Local Health District [2020] NSWIRComm 1051

Industrial Relations Commission New South Wales Medium Neutral Citation: Naylor v Health Secretary on behalf of Illawarra Shoalhaven Local Health District [2020] NSWIRComm 1051 Hearing dates: 27, 28 and 29 May 2020 Date of orders: 29 July 2020 Decision date: 29 July 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The ISLHD is ordered to pay to Ms Naylor a sum equivalent to 8 weeks' pay calculated at the rate of pay applicable to the position occupied by her immediately before the termination of her employment on 28 January 2020, such payment to be made within 21 days of the date of this order. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – registered nurse dismissed for accessing patient records without clinical justification and dishonesty – whether dismissal harsh, unreasonable or unjust – consideration of remedy to be ordered Legislation Cited: Health Services Act 1997 (NSW) s 116(3) Industrial Relations Act 1996 (NSW) ss 84, 88, 89, 164A Cases Cited: Bartlett and Cini v Mario's Fresh and Frozen Foods [2006] NSWIRComm 1084 Briginshaw v Briginshaw (1938) 60 CLR 336 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071 Industrial Relations Secretary v Fraser (No 2) [2015] NSWIRComm 10 Krix v Director-General, Department of Education and Communities [2014] NSWIRComm 1000 NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 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 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 Category: Principal judgment Parties: Cassandra Naylor (Applicant) Health Secretary (Respondent) Representation: Counsel: L Saunders (Applicant) Solicitors: Bowrey Lawyers (Applicant) J Mattson, Bartier Perry (Respondent) File Number(s): 2020/363371 Publication restriction: Pursuant to section 164A(3) of the Industrial Relations Act 1996 (NSW) the Commission orders that: (a) The patients identified by name and/or MRN identification number in documents lodged with the Commission or received in evidence by the Commission in matter number 2020/00363371 be dei-dentified and referred to in any decision published by the Commission by pseudonym only. (b) The Commission prohibits the publication or broadcast of the patient names and patient MRN identification numbers contained in documents lodged with the Commission (see below) or received in evidence by the Commission in matter number 2020/00363371. The documents subject to this order are: (i) the affidavits of the Applicant, the submissions filed on behalf of the Applicant, the reply submissions filed on behalf of the Applicant; and (ii) the statements of Franca Facci, Angela McHugh and Leanne Savio, the Exhibit "Respondent's Documents" and the submissions filed on behalf of the Respondent. (c) That access to the file of the Commission in matter number 2020/00363371 is restricted to the extent that no person or organisation may be granted access to the files other than a party prior to consultation by the Industrial Registrar with both parties to determine whether there is any objection to such access being granted.