Jaggi v Health Secretary in respect of the Western Sydney Local Health District [2022] NSWIRComm 1032

Industrial Relations Commission New South Wales Medium Neutral Citation: Jaggi v Health Secretary in respect of the Western Sydney Local Health District [2022] NSWIRComm 1032 Hearing dates: 25, 26, 27, 28 and 29 October 2021; final submissions received 4 February 2022 Date of orders: 29 April 2022 Decision date: 29 April 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: I order that: (1) the Health Secretary pay to Mr Jaggi a sum equivalent to 12 weeks' pay calculated at the rate of $1,979 per week, less applicable taxation; and (2) the payment be made on or before 20 May 2022. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – whether employer able to rely on repudiation of employment in the context of statutory employment – whether conduct amounted to repudiation in any event – whether employer affirmed contract – whether employer otherwise had grounds to dismiss – reliance on misconduct discovered post-employment – whether dismissal unreasonable or harsh – principles to apply on question of remedy EMPLOYMENT AND INDUSTRIAL LAW – Victimisation – whether applicant dismissed or otherwise subjected to detriment on the basis of a proscribed reason – principles to apply on the question of relief – whether orders sought by the applicant are within the power of the Commission to award Legislation Cited: Defamation Act 2005 s 14 Fair Work Act 2009 (Cth) ss 789FC, 789FF Government Sector Employment Act 2013 ss 68, 69, Sch 1 Pt 1 Government Sector Employment (General) Rules 2014 Pt 7, Pt 8 Health Services Act 1997 s 115 Industrial Relations Act 1996 ss 3, 84, 89, 163, Ch 5 Pt 1, ss 210, 213 Occupational Health and Safety Act 2000 s 23 State Records Act 1998 s 21 Work Health and Safety Act 2011 Pt 5 Cases Cited: Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia and Grivell [1999] SASC 300 Bartlett and Cini v Mario's Fresh and Frozen Foods [2006] NSWIRComm 1084 Briginshaw v Briginshaw (1938) 60 CLR 336 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm 117 Clarke v Metropolitan Meat Industry Board [1967] AR (NSW) 16 Concut Pty Ltd v Worrell (2000) 75 ALJR 312; [2000] HCA 64 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Davie v Industrial Relations Secretary (Department of Justice, Corrective Services NSW) (No. 2) [2019] NSWIRComm 1056 Denise McKay v Department of Family & Community Services [2018] NSWSC 44 Director of Public Employment, by his agent the Director-General of the Department of Juvenile Justice v Public Service Association (on behalf of Brown) (2008) 184 IR 134; [2008] NSWIRComm 221 Director-General of Education v Suttling (1987) 162 CLR 427 Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071 Earney v Australian Property Investment Strategic Pty Ltd [2010] VSC 621 Foran v Wight (1989) 168 CLR 385 Hamod v State of New South Wales and Anor [2011] NSWCA 375 Hansen v Secretary of the Department of Transport – as head of the Transport Service and exercising the employer function of staff of Roads and Maritime Services [2016] NSWIRComm 1011 Jones v Dunkel (1959) 101 CLR 298 Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 Manly Council v Byrne and Anor [2004] NSWCA 123 Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 North v Television Corporation Ltd (1976) 11 ALR 599 NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 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 Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059 Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 Silsbury v Health Secretary in respect of Western Sydney Local Health District [2021] NSWIRComm 1004 Swaran Lata Kumar and Macquarie Partnership Lawyers [2005] NSWIRComm 202 Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 Vaulin v City of Parramatta Council [2020] NSWIRComm 1058 Visscher v Giudice (2009) 239 CLR 261 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311; [2010] VSC 9 Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8 Texts Cited: Nil Category: Principal judgment Parties: Vikram Jaggi (Applicant) Health Secretary (Respondent) Representation: V Jaggi (Self) D Holmes, Western Sydney Local Health District (Respondent) File Number(s): 2020/313961 and 2020/313985 Publication restriction: No