NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123

Industrial Relations Commission New South Wales Medium Neutral Citation: NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 Hearing dates: 5 November 2012 Decision date: 13 November 2012 Jurisdiction: Industrial Relations Commission Before: Boland J, President, Walton J, Vice-President, Bishop C Decision: (1) Leave to appeal is granted. (2) The appeal is upheld to the extent that the Commissioner erred in finding reinstatement was not impracticable. (3) The Commissioner's orders at [115]-[118] of his decision of 1 June 2012 are quashed. (4) The appellant shall pay the respondent 26 weeks' pay at the rate the respondent was receiving at the time of the termination of his employment by the appellant. (5) The stay order made by Boland J, President on 9 August 2012 is dissolved. Catchwords: UNFAIR DISMISSAL - Application by security officer for reinstatement on grounds dismissal was unfair - Application granted at first instance - Dismissal followed incident where security officer slapped patient in an acute specialized psychiatric unit - Held at first instance that slap was an instinctive reaction and self defensive, it was not wilful or premeditated and conduct was not "of such a nature as to strike out an essential element in the contract of service" - APPEAL - Application for leave to appeal and appeal by employer - Whether slapping a patient was contrary to the essential terms of the employment contract - Whether the Commissioner erred by not finding that although the respondent's conduct did not justify instant dismissal his conduct justified dismissal on notice - Whether the Commissioner erred in failing to give proper weight to relevant matters regarding the impracticability of reinstatement - Whether the Commissioner had power to order that the respondent's name be removed from the NSW Health Service Check Register - Leave to appeal granted - Appeal upheld to the extent that the Commissioner erred in finding reinstatement was not impracticable - Appellant to pay the respondent 26 weeks' pay at the rate the respondent was receiving at the time of the termination of his employment by the appellant Legislation Cited: Industrial Relations Act 1996 Cases Cited: Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 Austin v NF Importers Pty Ltd [2005] NSWIRComm 353; (2005) 146 IR 113 Autobake Pty Ltd v Budd & Grainger (1986) 19 IR 18 Box Valley Pty Ltd v Price [2000] NSWIRComm 484; (2000) 97 IR 484 Briginshaw v Briginshaw (1938) 60 CLR 336 Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 Casari v Sydney South West Area Health Service [2009] NSWIRComm 103; (2009) 185 IR 217 Dismissal of Union Delegates at Homebush Abattoir, Re [1966] AR (NSW) 371 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Hargreaves v NSW Health Services Northern Sydney Local Health District [2012] NSWIRComm 1012 Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 Humphries v Cootamundra Ex-Services and Citizen's Memorial Club [2003] NSWIRComm 211; (2003) 128 IR 37 Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 National Union of Workers, NSW Branch (on behalf of Khan) v Cuno Pacific Pty Ltd [2005] NSWIRComm 388; (2005) 146 IR 441 New South Wales Nurses' Association (on behalf of Prior) v South Eastern Sydney & Illawarra Area Health Service [2007] NSWIRComm 164; (2007) 164 IR 225 Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199; (1994) 57 IR 50 Pastrycooks, Biscuit Makers & Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Patterson v Newcrest Mining Limited (Industrial Relations Court of Australia, Full Court, 6 June 1996, unreported, per Wilcox CJ) Perkins v Grace Worldwide Australia Pty Ltd (1997) 72 IR 186 Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 Samad v Public Service Board (NSW) (1983) 5 IR 464 Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73 Category: Principal judgment Parties: NSW Health Services Northern Sydney Local Health District (Appellant) Bryan Hargreaves (Respondent) Representation: Ms K Nomchong SC (Appellant) Mr D O'Sullivan of counsel (Respondent) Bartier Perry, Lawyers (Appellant) Health Services Union NSW (Respondent) File Number(s): IRC 710 of 2012 Decision under appeal Citation: Hargreaves v NSW Health Services Northern Sydney Local Health District [2012] NSWIRComm 1012 Date of Decision: 2012-06-01 00:00:00 Before: Ritchie C File Number(s): IRC 1559 of 2011