South Eastern Sydney and Illawarra Area Health Service v Dimovski [2011] NSWIRComm 139

Industrial Relations Commission New South Wales Medium Neutral Citation: South Eastern Sydney and Illawarra Area Health Service v Dimovski [2011] NSWIRComm 139 Hearing dates: 22 September 2011 Decision date: 17 October 2011 Jurisdiction: Industrial Relations Commission Before: Boland J, President, Haylen J, Tabbaa C Decision: The Full Bench makes the following orders in the appeal: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) Orders of Lynch AC are set aside. (4) The application by the respondent for reinstatement, or re-employment, or monetary compensation is dismissed. (5) The stay orders made on 20 July 2011 are dissolved from the date of this decision. The Full Bench makes the following orders in the cross-appeal: (1) Leave to cross-appeal is granted. (2) The cross-appeal is dismissed. Catchwords: APPEAL - Application for leave to appeal and appeal by employer - CROSS-APPEAL - Application by employee for leave to cross-appeal and cross-appeal - Security officer dismissed for misconduct - At first instance dismissal found to be harsh but not unjust or unreasonable - Dismissed employee re-employed at lower level - On appeal and cross-appeal whether dismissal was unjust or unreasonable and whether dismissal was harsh - Derogatory and insulting language used by security officer to junior officers regarding manager - Inference available that dismissed employee intended to have manager removed from his position - Dismissal not harsh - Appeal by employer upheld - Cross-appeal by employee dismissed Legislation Cited: Independent Commission Against Corruption Act 1988 Industrial Relations Act 1996 Protected Disclosure Act 1994 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Dimovski v South Eastern Sydney and Illawarra Area Health Service [2011] NSWIRComm 1029 Category: Principal judgment Parties: South Eastern Sydney and Illawarra Area Health Service (Appellant in Matter IRC2011/1248; Respondent in Matter IRC2011/1523) Jorgo (George) Dimovski (Respondent in Matter IRC2011/1248; Appellant in Matter IRC2011/1523) Representation: Mr J Murphy of counsel (Appellant in Matter IRC2011/1248; Respondent in Matter IRC2011/1523) Mr D Mahendra of counsel (Respondent in Matter IRC2011/1248; Appellant in Matter IRC2011/1523) Bartier Perry (Appellant in Matter IRC2011/1248; Respondent in Matter IRC2011/1523) Cain Kensit Messenger, Solicitors & Attorneys (Respondent in Matter IRC2011/1248; Appellant in Matter IRC2011/1523) File Number(s): IRC 1248 of 2011 IRC 1523 of 2011 Decision under appeal Citation: Dimovski v South Eastern Sydney and Illawarra Area Health Service [2011] NSWIRComm 1029 Date of Decision: 2011-06-22 00:00:00 Before: Lynch AC File Number(s): IRC 1309 of 2010