New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89

Industrial Relations Commission of New South Wales

CITATION: New South Wales Nurses' Association on behalf of Debbie Rudder v Booroongen Djugun Aboriginal Corporation [2007] NSWIRComm 89

APPELLANT New South Wales Nurses' Association PARTIES: RESPONDENT Booroongen Djugun Aboriginal Corporation

FILE NUMBER(S): 2539 of 2006

CORAM: Sams DP; Boland J; Grayson DP

CATCHWORDS: Appeal - application for leave to appeal - termination of employment - unfair dismissal - summary dismissal for serious and wilful misconduct - other incidents involving allegations against appellant - decision of Commissioner at first instance - finding that misconduct had occurred - finding that dismissal was not harsh, unreasonable or unjust - requirement to be properly satisfied about the strength and reliability of evidence - onus on employer - other incidents did not justify dismissal - no direct sworn evidence that alleged misconduct had occurred - failure to call material witnesses - no explanation for failure to call witnesses - onus not discharged when based on accepting the credit of investigators - second hand evidence relied upon - integrity of investigators not impugned - allegations of serious misconduct denied - reliance on reports from persons not even eyewitnesses to alleged misconduct - hearsay upon hearsay - weight of evidence clearly in appellant's favour - accusers not called to give evidence - statements not allowed - appellant unable to test evidence of accusers - possibility of vendetta - management team had no direct knowledge - Jones v Dunkel principle - error in evaluating evidence - Commissioner erred in finding that dismissal was not harsh, unreasonable or unjust - reinstatement appropriate remedy - no evidence that other employees could not work with appellant - four years previous good service - appellant's critics no longer employed - leave to appeal granted - substantial injustice - appeal upheld - decision of Commissioner set aside - reinstatement on terms no less favourable with continuity of service - orders for lost remuneration - extempore decision and orders made - proceedings re-listed to clarify orders made - order of payment of lost remuneration of no effect - intention of order - intention not to have no practical effect - slip rule invoked - order rescinded and replaced to correct intention of Full Bench.