Wojtulewicz v. New South Wales Health Department [2009] NSWIRComm 1077

Industrial Relations Commission of New South Wales

CITATION: Wojtulewicz v. New South Wales Health Department [2009] NSWIRComm 1077

APPLICANT Australian Salaried Medical Officers' Federation PARTIES: RESPONDENT New South Wales Department of Health

FILE NUMBER(S): IRC 367 of 2007 and 2123 of 2008

CORAM: Connor C

CATCHWORDS: termination of employment - medical profession - threat of dismissal - employee suspended - proceedings restraining the employer from terminating the services of an employee - allegations of bullying and harassment by applicant - alleged offensive comments, jokes and inappropriate conduct by applicant - claim that proposed dismissal unfair - remedies for unfair dismissal - onus and standard of proof - rules of evidence - claim for reinstatement in employment not pressed - alternative employment sought - the concept of condonation - some allegations against applicant not substantiated - some allegations against applicant considered trivial - some allegations against applicant considered stale - continued employment confirmed - directions to parties to confer over issues in dispute and to locate new employment opportunities for applicant

Anti Discrimination Act 1977 Evidence Act 1995 LEGISLATION CITED: Health Administration Act 1982 Industrial Relations Act 1996 Medical Practice Act 1992 Occupational Health and Safety Act 2000

Antonakopoulos v. State Bank of New South Wales (1999) 91 IR 385 Attorney-General's Department v. Miller (2007) 160 IR 185 Australasian Transport Officers Association v. Department of Motor Transport (1988) 25 IR 235 Australian Salaried Medical Officers' Federation v. Director General of the New South Wales Health Service [2008] NSWIRComm 229 Bankstown City Council v. Paris (1999) 93 IR 209 Bigg v. New South Wales Police Service (1998) 80 IR 434 Blyth Chemicals Limited v. Bushnell (1933) 49 CLR 66 Briginshaw v. Briginshaw (1936) 60 CLR 336 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 Busways v. Johnson (1994) 55 IR 255 Byrne and Frew v. Australian Airlines Limited (1995) 185 CLR 410 Castlemaine Toohey Limited v. State of South Australia (1986) 161 CLR 148 CCH Australia Limited v. Bowen (1998) 79 IR 206 Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 Coles Myer Limited v. Shop Distributive and Allied Employees' Association (1989) 27 IR 299 Electricity Commission of New South Wales v. Nieass (1995) 81 IR 46 Federal Supply and Cold Storage Company of South Africa v. Angehrn (1910) 103 LT 152 Four Sons Pty Limited v. Limsiripothong (2000) 98 IR 1 Hales v. Kerr (1908) 2 KB 601 Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 John Lysaght (Australia) Limited v. Federated Iron Workers Association; re York (1972) AILR 517 Jones v. Dunkel (1959) 101 CLR 298 Re Loty and Holloway and the Australian Workers Union (1971) AR 95 M v. M (1988) 63 ALJR 108 Macleay Valley Health Service v. Jeffree (1994) 58 IR 187 CASES CITED: Maitland v. Royal Blind Society of New South Wales (2004) 138 IR 75 Makin v. Attorney-General for New South Wales (1894) AC 57 Martin v. Osborne (1936) 55 CLR 367 North v. Television Corporation Limited (1976) 11 ALR 599 O'Callaghan v. Loder (1984) 5 IR 320 Oswald v. New South Wales Police Service (1999) 90 IR 42 Outboard World Pty Limited v. Muir (1993) 51 IR 167 New South Wales Public Service Professional Officers' Association v. Forestry Commission of New South Wales (1990) 39 IR 46 Pacific Power v. Crump (1993) 48 IR 296 Parker v. Capital Painters Pty Limited (1996) 68 IR 100 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 PDS Rural Products Limited v. Corthorn (1987) 19 IR 153 Perkins v. Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 Plummer v. Stannard Brothers Launch Service (2005) 145 IR 111 Public Service Association of New South Wales v. Public Service Board of New South Wales (1988) 25 IR 148 R v. Anderson; ex parte Ipec- Air Pty Limited (1965) 113 CLR 117 R v. Smith (1915) All ER Rep.262 St Aloysius College Case (1976) AR 91 Sewell v. New South Wales Police Force (2008) 174 IR 247 State of New South Wales v. Seedsman - unreported Subramaniam v. Public Prosecutor (1956) 1 WLR 965 Tipping's Case (1957) AR 273 Ueckert v. Australian Water Technologies Pty Limited [2000] NSWIRComm 123 Van Huisstede v. Commissioner of Police (2000) 98 IR 57 Wang v. Crestell Industries Pty Limited (1997) 73 IR 454 Watters v. Zig Zag Railway - unreported Western Sydney Area Health Service v. Australian Salaried Medical Officers' Federation (2004) 138 IR 203