Lahner v Health Secretary on behalf of Western Sydney Local Health District [2023] NSWIRComm 1060

Industrial Relations Commission New South Wales Medium Neutral Citation: Lahner v Health Secretary on behalf of Western Sydney Local Health District [2023] NSWIRComm 1060 Hearing dates: 15 June 2023 Date of orders: 20 June 2023 Decision date: 20 June 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: Application dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Threatened dismissal on medical grounds – Order sought pursuant to s 89(7) of Industrial Relations Act delaying any dismissal until employee has had the opportunity to obtain a medical report regarding his fitness for duty — Employee had not worked for over three years due to work related injury — No evidence that employee may be assessed to be fit for duties — Evidence indicated that the employee continues to be unfit for duties — No denial of procedural fairness – Application dismissed Legislation Cited: Industrial Relations Act 1996 (NSW), ss 88, 89 Workers Compensation Act 1987 (NSW), Part 8 Cases Cited: Coghlan v Tweed Shire Women's Service Inc [2002] NSWIRComm 21 Davis v Industrial Relations Secretary on behalf of the NSW Rural Fire Service [2019] NSWIRComm 1064 Dietz v Health Secretary in respect of Nepean Blue Mountains Local Health District [2022] NSWIRComm 1107 Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; 214 CLR 1 Category: Principal judgment Parties: Warwick Lahner (Applicant) Health Secretary on behalf of Western Sydney Local Health District Representation: Alan Rodriguez, Industrial Officer, New South Wales Nurses and Midwives' Association (Applicant) James Mattson, solicitor (Respondent)