Casari v Sydney South West Area Health Service (No 2) [2010] NSWIRComm 95

Industrial Relations Commission of New South Wales

CITATION: Casari v Sydney South West Area Health Service (No 2) [2010] NSWIRComm 95

PARTIES: Carlos Casari (Appellant) Sydney South West Area Health Service (Respondent)

FILE NUMBER(S): IRC 2428 of 2008

CORAM: Boland J President; Walton J Vice-President; Kavanagh J

CATCHWORDS: APPEAL - UNFAIR DISMISSAL - Full Bench of the Industrial Relations Commission held on appeal that dismissal of appellant was unfair but reinstatement impracticable - Full Bench ordered re-employment with back payment to date of dismissal on the condition the appellant resigned immediately - Court of Appeal held that Full Bench exceeded it jurisdiction - Matter remitted to Full Bench - Whether Full Bench should receive new evidence regarding appellant's suitability for reinstatement - Full Bench considered appellant had suffered profound injustice but no basis established to grant leave to adduce new evidence - Maximum compensation ordered

LEGISLATION CITED: Industrial Relations Act 1996

Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539 Casari v Sydney South West Area Health Service [2009] NSWIRComm 103; (2009) 185 IR 217 CASES CITED: CCH Australia Ltd v Bowen (1998) 79 IR 206 Director General, New South Wales Dept of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47 Orr v Holmes (1948) 76 CLR 632

HEARING DATES: 1 June 2010

DATE OF JUDGMENT: 15 July 2010

Mr A G Rogers of counsel (Appellant) D'Agostino Solicitors LEGAL REPRESENTATIVES: Mr M J Kimber SC with Mr I Taylor of counsel (Respondent) Maddocks Lawyers