Industrial Relations Commission of New South Wales CITATION: NSW Nurses Association (on behalf of Debbie Rudder) v Booroongen Djugun Aboriginal Corporation [2006] NSWIRComm 343 APPELLANT New South Wales Nurses Association (on behalf of Debbie Rudder) PARTIES: RESPONDENT Booroongen Djugun Aboriginal Corporation FILE NUMBER(S): IRC 2539 of 2006 CORAM: Sams DP; Boland J; Grayson DP CATCHWORDS: Appeal - Leave to appeal - Unfair dismissal - Summary dismissal - Application for relief refused at first instance - Evidence relied upon in finding dismissal justified was not sufficient to satisfy Briginshaw standard of proof - Leave to appeal granted - Appeal upheld - Reinstatement ordered LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336 New South Wales Nurses' Association (on behalf of Debbie Maree Rudder) and Booroongen Djugun Aboriginal Corporation [2006] NSWIRComm 1005 HEARING DATES: 01/11/2006 EXTEMPORE JUDGMENT DATE: 11/01/2006 APPELLANT Mr M J Kimber, SC NSW Nurses Association Mr C Blair LEGAL REPRESENTATIVES: RESPONDENT Mr P Newall of counsel with Ms Winram Solicitor: Mr M Diamond Ebsworth & Ebsworth Lawyers JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: SAMS DP BOLAND J GRAYSON DP 1 November 2006 Matter No IRC 2539 of 2006 New South Wales Nurses' Association (on behalf of Debbie Maree Rudder) v Booroongen Djugun Aboriginal Corporation Application by New South Wales Nurses' Association (on behalf of its member Debbie Maree Rudder) for leave to appeal and appeal from a decision of Commissioner McLeay given on 31 May 2006 in matter No IRC 2821 of 2005 JUDGMENT OF THE COMMISSION Extempore [2006] NSWIRComm 343 1 This is an appeal from a decision of McLeay C given on 31 May 2006 (New South Wales Nurses' Association (on behalf of Debbie Maree Rudder) and Booroongen Djugun Aboriginal Corporation [2006] NSWIRComm 1005) in which the Commissioner found that the summary dismissal of Debbie Maree Rudder, by the respondent, Booroongen Djugun Aboriginal Corporation, was not harsh, unreasonable or unjust. Accordingly, the Commissioner dismissed the application made under s 84 of the Industrial Relations Act 1996 in which the appellant sought reinstatement of Ms Rudder to her former position as an Assistant in Nursing with the respondent. 2 The reasons given by the respondent for summarily dismissing Ms Rudder were insubordinate behaviour towards management; dereliction of duty and intimidation of other members of staff. 3 Having heard the submissions of the parties and considered the evidence and decision at first instance, we are satisfied that the Commissioner erred in a number of respects. Accordingly, we have decided that this Full Bench should intervene by granting leave to appeal and setting aside the Commissioner's decision in order to correct a substantial injustice. 4 In particular, we do not consider the nature and quality of the evidence upon which McLeay C relied in finding that summary dismissal was justified was such as to satisfy the civil standard of proof as that standard was explained by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, which we consider is the appropriate standard to be applied in this case. In short, the evidence relied upon by the Commissioner did not establish to the relevant standard that Ms Rudder was guilty of the serious and wilful misconduct of which she was accused. 5 We shall give full reasons for judgment in due course. In the meantime, we make the following orders: (1) Leave to appeal is granted; (2) The appeal is upheld and the decision of McLeay C of 31 May 2006 in matter No IRC 2821 of 2005 is set aside; (3) Debbie Maree Rudder is reinstated to her former position as an Assistant in Nursing with the respondent on terms not less favourable to Ms Rudder than those that would have been applicable if Ms Rudder had not been dismissed; (4) Ms Rudder's continuity of service shall be taken as not having been broken by the dismissal; (5) The respondent shall pay to Ms Rudder an amount of remuneration she would have otherwise received had she not been dismissed from the period beginning 31 May 2006 to the date of reinstatement; (6) Reinstatement shall take effect within 14 days or such other date as may be agreed between the parties. _______________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.