Dimovski v South Eastern Sydney and Illawarra Area Health Service [2011] NSWIRComm 1029

Industrial Relations Commission New South Wales Medium Neutral Citation: Dimovski v South Eastern Sydney and Illawarra Area Health Service [2011] NSWIRComm 1029 Hearing dates: 19 April 2011, 21 April 2011 Decision date: 22 June 2011 Jurisdiction: Industrial Relations Commission Before: Lynch C Decision: Unfair dismissal application Catchwords: UNFAIR DISMISSAL APPLICATION - one allegation that the applicant acted in a derogatory manner and spoke words of insult regarding the Security Operations Manager, Joseph Demiglio - disciplinary investigation undertaken - one allegation sustained - dismissal of applicant - unblemished 22 years work record - issues of procedural fairness raised - reinstatement sought - onus and burden of proof tests applicable - one allegation sustained on balance of probabilities - serious misconduct found - no procedural fairness issues to warrant intervention - dismissal not unjust or unreasonable in all of the circumstances - dismissal harsh in all of the circumstances - orders that the applicant be re-employed as a Security Officer not as a Senior Security Officer at another Hospital other than St George Public Hospital. Legislation Cited: Industrial Relations Act 1996 Public Interest Disclosure Act 1994 Cases Cited: Australian Services Union of NSW v Sydney Water Corporation [2008] NSWIRComm 1064 Bankstown City Council v Paris (1999) 93 IR 209 Briginshaw v Briginshaw (1938) 60 CLR 336 Budlong v NCR Australia [2006] NSWIRComm 288 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Department of Health v Perihan Kaplan [2010] NSWIRComm 65 Franklins Limited v Webb (1996) 72 IR 257 National Union of Workers, New South Wales Branch (on behalf of Khan) v Cuno Pacific Pty Ltd (2005) 146 IR 441 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 New South Wales Attorney-General's Department v Miller [2007] NSWIRComm 33 New South Wales Nurses' Association (on behalf of Colin Prior) v South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 Outboard World v Muir (1993) 51 IR 167 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Perkins v Grace World Wide (Aust) Pty Ltd 72 IR 186 Western Suburbs District Ambulance Committee v Tipping (1957) AR NSW 273 Category: Principal judgment Parties: Jorge Dimovski (Applicant)