Dr A v Health District (No 2) [2014] NSWIRComm 50

Industrial Relations Commission New South Wales Medium Neutral Citation: Dr A v Health District (No 2) [2014] NSWIRComm 50 Hearing dates: 30 May 2014; 23 June 2014, 8-11 and 14 July 2014, 27 August 2014 Decision date: 26 September 2014 Jurisdiction: Industrial Relations Commission Before: Boland AJ Decision: The Commission makes the following orders: (1) The Health District shall not dismiss Dr A from his employment in accordance with its present threat to do so. (2) Within 14 days of the date of this decision the applicant shall file and serve written submissions on costs. The respondent has a further 14 days in which to reply. Unless a party seeks to be heard orally, the question of costs will be determined on the papers. Catchwords: UNFAIR DISMISSAL - Application for an order under s 89(7) of the Industrial Relations Act 1996 that the employer that the Health District not dismiss the applicant from his employment in accordance with its present threat to do so - Alleged that applicant, a medical practitioner, on two occasions forcefully applied a pillow to a patient's face placing the patient at risk of serious harm - Extensive evidence, including eyewitness evidence, reviewed - Credit of applicant a significant issue - Applicant's evidence unreliable in a number of respects - Balance of probabilities - Briginshaw standard applied - Whether respondent employer entitled to rely on after-acquired knowledge - Whether a witness for the applicant to be regarded as an expert - Respondent employer carried onus of proving misconduct - Onus not discharged - Order made under s 89(7) Legislation Cited: Evidence Act 1995 Health Services Act 1997 Health Practitioner Regulation National Law (NSW) Industrial Relations Act 1996 Workplace Relations Act 1996 (Cth) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Browne v Dunn (1893) 6 R 67 Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 C A Henschke & Co and Anor v Rosemount Estates Pty Ltd [1999] FCA 1561; (1999) 47 IPR 63 Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 103 IR 160; (2000) 75 ALJR 312 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Dr A and Health District [2014] NSWIRComm 28 (Dr A (No 1)). Four Sons Pty Limited v Sakchai Limsiripothong [2000] NSWIRComm 38; (2000) 98 IR 1 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Franklins Ltd v Webb (1997) 72 IR 257 Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427; (1990) 99 ALR 45 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Michael King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019. Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449; (1992) 67 ALJR 170 New South Wales Bar Association v Livesey [1982] 2 NSWLR 231 Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Perfection Dairies Pty Ltd v Finn [2006] NSWIRComm 137; (2006) 151 IR 197 Vujica v TNT Australia Pty Ltd [2014] FWC 4790 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: Australian Law Reform Commission "Examination and Cross Examination of Witnesses", ALRC Report 102 Macmillan Publishing Group Australia, 2014 Macquarie Dictionary On line edition M Sasada and S Smith, "Drugs in Anaesthesia and Intensive Care", 2003, 3rd ed, Oxford University Press Category: Principal judgment Parties: Dr A (Applicant) Health District (Respondent) Representation: A Moses SC with Y Shariff of counsel (Applicant) K Nomchong SC with A Britt of counsel (Respondent) TressCox Lawyers (Applicant) Bartier Perry Solicitors (Respondent) File Number(s): IRC 715 of 2013