Clarke v Health Secretary (Justice Health and Forensic Mental Health Services) [2021] NSWIRComm 1022

Industrial Relations Commission New South Wales Medium Neutral Citation: Clarke v Health Secretary (Justice Health and Forensic Mental Health Services) [2021] NSWIRComm 1022 Hearing dates: 16 September 2020 Date of orders: 17 March 2021 Decision date: 17 March 2021 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant Decision: The application by Anthony Bruce Clarke pursuant to s 84 of the Industrial Relations Act 1996 filed on 25 June 2020 is dismissed. Catchwords: UNFAIR DISMISSAL – termination of employment on medical grounds – substantive position abolished – redeployment to suitable alternative employment not possible due to applicant's impairment – whether entitled to voluntary redundancy - whether decision harsh, unreasonable or unjust – unfair dismissal proceedings dismissed Legislation Cited: Industrial Relations Act 1996 (NSW) ss 84, 90, 163 Cases Cited: Hamod v State of New South Wales & Anor [2011] NSWCA 375 Riley v WorkCover Authority of New South Wales (2006) 151 IR 396 Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 Category: Principal judgment Parties: Anthony Bruce Clarke (applicant) Health Secretary (Justice Health and Forensic Mental Health Services) (respondent) Representation: Applicant in person

Solicitors: Bartier Perry (respondent) File Number(s): 2020/189719

DECISION 1. The applicant in this matter, Mr Anthony Bruce Clarke, commenced employment as a Registered Nurse with the Health Secretary ("respondent") within the Justice Health and Forensic Mental Health Network ("JH&FMHN") on 10 July 2005. 2. The applicant's employment was terminated on 15 June 2020 "on medical grounds" ("Dismissal") while the applicant was on workers compensation leave. 3. On 25 June 2020, the applicant filed, in the Office of the Industrial Registrar, an Application for Relief in Relation to Unfair Dismissal pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ("Act") ("Application"). The Application asserts that the applicant is entitled to "voluntary redundancy in accordance [with] the NSW Health Service Policy Directive PD 2012-021". 4. The respondent says that: there was a valid reason for the Dismissal; the applicant was provided procedural fairness; the applicant was not entitled to a voluntary redundancy payment; and the Dismissal was not harsh, unjust or unreasonable.