New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164

Industrial Relations Commission of New South Wales

CITATION: New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164

APPELLANT New South Wales Nurses' Association (on behalf of Colin Prior) PARTIES: RESPONDENT South Eastern Sydney and Illawarra Area Health Service

FILE NUMBER(S): IRC 3446 of 2006

CORAM: Wright J President; Harrison DP; Staff J

CATCHWORDS: Unfair dismissal - Appeal - Leave to appeal - Applicant dismissed for misconduct - Allegation of assaulting a resident of an aged care facility - Denial of allegation by appellant - Whether Commissioner made errors of fact in relation to his findings - Whether failure to apply Briginshaw standard - Finding by Commissioner that misconduct had occurred - Finding that dismissal was not harsh, unreasonable or unjust - Held - Weight of evidence in appellant's favour - Error in evaluating evidence - Findings of fact not reasonably open at first instance - Failure to take into account objective evidence of what occurred - Commissioner erred in finding that dismissal was not harsh, unreasonable or unjust - Appellant's conduct not of such a nature as to strike at an essential element in the contract of service - Miscarriage of justice - Failure of respondent to provide appropriate training re management of aggression and violence in the workplace did not render the dismissal harsh, unjust or unreasonable - Erroneous approach - Self evident requirement not to assault persons in care or under employee's control - Appellant's reliance on lack of training misplaced - Leave to appeal granted - Appeal upheld - Decision of Commissioner set aside - Reinstatement primary remedy - Discretion - Reinstatement on terms not less favourable with continuity of service - Orders for lost remuneration.