Laing and The Northcott Society [2002] NSWIRComm 365

Industrial Relations Commission of New South Wales

CITATION : Laing and The Northcott Society [2002] NSWIRComm 365 APPLICANT PARTIES : Ms Emma Tawase Laing RESPONDENT The Northcott Society FILE NUMBER: 6286 of 2001 CORAM: Sams DP Termination of employment - unfair dismissal - conduct of proceedings - inspection of residential care facility - allegations of poor performance over a long period - written and verbal warnings - duty of care to severely disabled persons - code of conduct and ethics - final incident warranted dismissal - conflict of evidence - business records relied upon - evidence exaggerated - disciplinary interviews - union involvement - procedural fairness - whether dismissal harsh, unreasonable or unjust - compensation sought - costs foreshadowed. CATCHWORDS : Held, difficulties in the work environment caring for severely disabled persons - duty of care absolute and paramount - long history of poor performance - single incidents would not necessarily warrant dismissal - findings made on each incident - employer entitled to have regard for history of verbal and written warnings - applicant in breach of her duty of care - no issues of procedural unfairness - dismissal with notice justified - applicant's onus not discharged - Commission declines to intervene in dismissal - proceedings concluded save for any costs application. LEGISLATION CITED : Industrial Relations Act 1996 Byrnes v Jakona Pty Ltd [2002] FCA 41 Western Suburbs District Ambulance Committee v Tipping (1957) AR (NSW) 273 Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 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) CASES CITED : Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8 CGEA Transport Ltd t/as Southtrans v Transport Workers Union of Australia [2001] NSWIRComm 287 Hunt v Hornsby Shire Council [2001] NSWIRComm 242 Hornsby Shire Council v Hunt [2002] NSWIRComm 158 HEARING DATES: 08/29/2002; 08/30/2002; 10/25/2002 DATE OF JUDGMENT: 12/20/2002