CFMEU (on behalf of Laming) v Northern Sydney Area Health Service [2004] NSWIRComm 251

Industrial Relations Commission of New South Wales

CITATION : CFMEU (on behalf of Laming) v Northern Sydney Area Health Service [2004] NSWIRComm 251 PARTIES : Construction, Forestry, Mining and Energy Union (New South Wales Branch) (on behalf of Terry Laming) Northern Sydney Area Health Service Asset Services Group FILE NUMBER: 767 of 2004 CORAM: Grayson DP CATCHWORDS : Unfair dismissal, application for reinstatement, employers decison to terminate based on alleged frustration of contract, analysis of doctrine of frustration due to illness and incapacity, absence from work following back injury, back injury not work related, graduated return to full duties proposed by treating doctors, refusal by employer to accommodate graduated return to work, reliance by employer on medical opinion not preferred, rejection by employer of treating doctors opinions, capacity for full range of painting duties attested to by applicant Held, doctrine of frustration inapplicable, dimissal harsh, unreasonable and unjust, applicant's age and assumed difficulty in finding other employment adds to harshness, reinstatement ordered, payment of lost remuneration ordered, continuity of employment ordered Annual Holidays Act 1944 LEGISLATION CITED : Industrial Arbitration Act 1940 Industrial Relations Act 1996 Long Service Leave Act 1955 Bettini v Gye (1876) 1 Q.B.D. 183 Poussard v Spiers (1876) 1 Q.B.D. 410 Jackson v Union Marine Insurance Co. Ltd (1874) L.R. 10 C.P. 125 CASES CITED : Marshall v Harland & Wollff (1972) 1 WLR 899 Finch v Sayers (1976) 2 NSWLR 540 Cachia v State Authorities Superannuation Board (1993) 47 IR 254 Hilton Hotels of Australia Ltd. v Pasovska (2003) 122 IR 428 HEARING DATES: 07/20/2004; 08/09/2004; 08/18/2004 DATE OF JUDGMENT: 09/01/2004