Borthistle v NSW Health [2012] NSWIRComm 1001

Industrial Relations Commission New South Wales Medium Neutral Citation: Borthistle v NSW Health [2012] NSWIRComm 1001 Hearing dates: 23/01/12, 24/01/12 Decision date: 27 February 2012 Before: Ritchie C Decision: Catchwords: Mental Health Nurse terminated. Given first and final warning for bringing a bat onto the ward. Same nurse seen transferring an animal from one cage to another outside entrance to hospital. Respondent's belief that nurse had wilfully breached directive. Nurse believed what she had done during lunchtime not in breach of directive. Nurse terminated. Issue of meaning of words "ward", "unit" and "campus". Commission found in favour of Nurse and ordered reinstatement. Legislation Cited: Industrial Relations Act, 1996 Cases Cited: Adami v Maison de Luxe Ltd(1924)35 CLR. Schokman v RTA (2010) NSWIRComm 1011 James v Griffith City Council NSW IR Comm 1137. Rose &Telstra Corporation Ltd (AIRC Ross VP (Q 9292) 4/12/98. Bankstown City Council v Paris (1999) 93IR209. Outboard World v Muir (1993) 51 IR 167 Byrne & Anor v Australian Airlines Limited (1995) 185 CLR 410. Category: Principal judgment Parties: New South Wales Nurses Association ( on behalf of Christine Borthistle) and NSW Health. Representation: Respondent : Ms T Randall of Anderson Randall Solicitors. File Number(s): IRC 1565 of 2011

DECISION 1The New South Wales Nurses Association on behalf of its member Ms Christine Borthistle filed a claim for unfair dismissal under section 84 of the Industrial Relations Act, 1996 ( the Act) on 30 September 2011 against Northern NSW Local Health District ( the respondent). 2Conciliation before Connor C took place on 27 October , 3 November and 9 November 2011 when directions were given for the filing and serving of evidentiary material. 3The hearing was held in Lismore over two days when all the evidence was heard. Final submissions were sought by both parties to be in writing after they had read transcript. Commission reserved the ability to hold a further hearing if he had questions for either or both of the parties.