New South Wales Nurses' Association (on behalf of David Harding and Western Sydney Area Health Service [2002] NSWIRComm 35

Industrial Relations Commission of New South Wales

CITATION : New South Wales Nurses' Association (on behalf of David Harding and Western Sydney Area Health Service [2002] NSWIRComm 35 APPLICANT PARTIES : New South Wales Nurses' Association, on behalf of David Harding RESPONDENT Western Sydney Area Health Service FILE NUMBER: 4577 of 2001 CORAM: Sams DP Termination of employment - unfair dismissal - allegations of gross misconduct - illegal drug use and procurement - failure to inform management of serious breaches of Code of Conduct - duty of care to mentally ill patients - threats and physical violence - credibility of witnesses - balance of probabilities - self incrimination - s128 of the Evidence Act - privilege of union documents - flawed investigation - treatment of witnesses - reinstatement sought. CATCHWORDS : Held, Commission has no power to grant certificate under s128 of Evidence Act - no special grounds for union documents to be regarded as privileged - applicant breached Code of Conduct - applicant failed to report serious incidents - applicant failed to provide appropriate level of duty of care - applicant involved in illegal drug use and procurement - applicant's evidence on crucial matters not credible - employer's investigation not without flaws - employer's demands on other employees during investigation not appropriate - applicant afforded procedural fairness - allegations proven on balance of probabilities - dismissal not harsh, unjust or unreasonable - application dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Evidence Act 1985 Briginshaw v Briginshaw (1938) 60 CLR 336 Wang v Crestell Industries Pty Ltd, 73 IR 454 Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70 Franklins Ltd v Webb, 72 IR 257 Standley v Electronics Boutique Australia Pty Ltd (unreported, Sams DP, IRC4516 of 1998, 18 March 1999 Byrne & Anor v Australian Airlines (1985) 185 CLR 10 Andric v Franklins Ltd [2001] NSWIRComm 1001 (11 January 2001) Crown Employees (State) Award No 2, 52 IR 376 Hill v Department of Juvenile Justice (unreported, Sams DP, IRC6474 of 1999, 27 July 2000) Perkins v Grace Worldwide (Aust) Pty Ltd, 72 IR 186 NSW Public Service Professional Officers Association v Forestry Commission, 39 IR 46 Oswald v NSW Police Service, 90 IR 42 Macleay Valley Health Service v Jeffree, 58 IR 187 CASES CITED : Jones v Dunkel (1958) 101 CLR 298 Burke v McGirr, 87 IR 54 Shop Distributive & Allied Employees' Association v Jewel Fod Stores, 22 IR 2 Bigg & Anor v NSW Police Service, 80 IR 434 Electricity Commission of New South Wales t/as Pacific Power v Crump, 48 IR 296 Busways v Johnson, 55 IR 255 Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8 Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Bowman, and City of Sydney Council [2001] NSWIRComm 91 Johnson v Catholic Education Office, Diocese of Parramatta, 87 IR 57 Abboud v The State of New South Wales (Department of School Education), 92 IR 32 Antonakopoulos v State Bank of New South Wales, 91 IR 385 Foster v Woolworths Limited (unreported, Sams DP, IRC6385 of 1999, 27 October 2000) Rapp v Wauchope RSL Club, 81 IR 434 John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (unreported, Sheppard J, Matter 259 of 1972, 14 September 1972) HEARING DATES: 09/28/2001; 10/03/2001; 10/04/2001; 10/05/2001; 11/23/2001 DATE OF JUDGMENT: 04/05/2002