Department of Health v Perihan Kaplan [2010] NSWIRComm 65

Industrial Relations Commission of New South Wales

CITATION: Department of Health v Perihan Kaplan [2010] NSWIRComm 65

PARTIES: Director-General of NSW Health Department, Health Support Services Division (Appellant) Perihan Kaplan (Respondent)

FILE NUMBER(S): IRC 1838 of 2009

CORAM: Walton J Vice-President; Haylen J; Bishop C

CATCHWORDS: APPEAL - unfair dismissal - five allegations of misconduct - three allegations substantiated - first and final warning issued to respondent - disciplinary meeting held - respondent's employment terminated after threat made against female employee - previous aggression towards same employee - finding first instance dismissal was harsh - parties heard as to the question of leave to appeal at outset - leave to appeal partially granted - leave was otherwise refused - question as to whether trial judge erred in finding dismissal was harsh unreasonable or unjust - meaning of the expression 'harsh' - mitigating factors - balance of personal and mitigating considerations against the gravity of misconduct - seriousness of threat understood - assessment as to whether the respondent was incapable of rational behaviour at the time of the meeting - failure of the appellant to place sufficient weight upon the mental state of the respondent - adequate reasons given for the decision that the termination was harsh - second part of the appeal - exercise of discretion under s 89 Industrial Relations Act 1996 - leave granted - serious and discrete errors of law in the exercise of powers under s 89(2) - failure to give adequate reasons as to why re-employment was preferred over reinstatement - a 'displaced person' may constitute former position for purposes s 89(1) - question as to whether it was impracticable to reinstate or reemploy was not adequately resolved against facts and circumstances of the matter - appeal upheld - question of appropriate orders to be made in disposition of the appeal - further oral submissions on appropriate orders to be made in appeal - stay of proceedings not dissolved