Anna Nikolis and South Eastern Sydney & Illawarra Area Health Service, a Division of NSW Health Service [2009] NSWIRComm 1091

Industrial Relations Commission of New South Wales

CITATION: Anna Nikolis and South Eastern Sydney & Illawarra Area Health Service, a Division of NSW Health Service [2009] NSWIRComm 1091

APPLICANT PARTIES: Anna Nikolis RESPONDENT South Eastern Sydney and Illawarra Area Health Service

FILE NUMBER(S): IRC 2385 of 2008

CORAM: Bishop C

CATCHWORDS: Unfair dismissal - allegations of secondary employment without approval - breach of code of conduct - evasion and untruthfulness alleged - applicant lodged grievance with employer alleging bullying and harassment - claimed secondary employment known and approved by manager - claimed allegation raised in response to grievance - meetings held - letters sent to gain information - two separate periods of absence impacted on processes followed - information from secondary employer and responses from applicant relied on in decision to terminate - applicant not seeking reinstatement due to medical condition - in receipt of workers compensation payments - sought re-employment or monetary compensation. HELD - on balance of probabilities misconduct took place - applicant evasive and not responsive to specific allegations - some issues re procedure - overall not procedurally unfair - termination not harsh, unjust or unreasonable - application dismissed.

LEGISLATION CITED: Industrial Relations Act 1996 Workplace Injury Management and Workers Compensation Act 1998

Bankstown City Council v Paris (1999) 93 IR 209 Biviano & others and Sydney South West Area Health Service [2006] NSWIRComm 1176 Briginshaw v Briginshaw (1938) 60 CLR 336 Budlong v NCR Australia Limited [2003] NSWIRComm 288 Byrne and Frew v Australian Airlines Limited (1995) 185 CLR 410 Carlton and United beverages Limited and Philip Brunt [ 2006] NSWIRComm 98 Ferns and Department of Corrective Services [2005] NSWIRComm 9 New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigades [2005] NSWIRComm 1170 New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Azzopardi) and Sutherland Shire Council [2008] NSWIRComm 1080 CASES CITED: New South Wales Nurses' Association (on behalf of Colin Prior) v South Eastern Sydney & Illawarra Area Health Service [ 2002] NSWIRComm 35 North v Television Corporation Ltd (1976) 11 ALR 599 NUW (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 Outboard World Pty Ltd v Muir (1993) 51 IR 167 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White No. 3 (1990) 35 IR 70 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108 Robert Lawrence and Attorney General's Department [2004] NSWIRComm 59 Sams v Contact Point International Pty Ltd [ 2001] NSWIRComm 18 Sharma and Sydney South West Area Health Service [ 2006] NSWIRComm 1157 Simmons and Rockdale City Council [ 2006] NSWIRComm 1010 Transport Workers' Union of New South Wales (on behalf of Paul Robert Jasper) and Sutherland Shire Council [ 2004] NSWIRComm 26 Western Suburbs District Ambulance v Tipping (1957) AR 273