Briginshaw v Briginshaw - [2002] NSWIRComm 35 - NSWIRComm 1999 case summary — Zoe

NSWNSWIRComm

Briginshaw v Briginshaw

[2002] NSWIRComm 35

Industrial Relations Commission (NSW)|1999-03-18|Before: Sams DP, Sheppard J, Mr P

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1999-03-18

Before

Sams DP, Sheppard J, Mr P

Catchwords

10/03/2001
10/04/2001
10/05/2001
11/23/2001 DATE OF JUDGMENT: 04/05/2002

Source

Original judgment source is linked above.

Catchwords

10/03/200110/04/200110/05/200111/23/2001 DATE OF JUDGMENT: 04/05/2002

Judgment (281 paragraphs)

[1]

CITATION : New South Wales Nurses' Association (on behalf of David Harding and Western Sydney Area Health Service [2002] NSWIRComm 35 APPLICANT PARTIES : New South Wales Nurses' Association, on behalf of David Harding RESPONDENT Western Sydney Area Health Service FILE NUMBER: 4577 of 2001 CORAM: Sams DP Termination of employment - unfair dismissal - allegations of gross misconduct - illegal drug use and procurement - failure to inform management of serious breaches of Code of Conduct - duty of care to mentally ill patients - threats and physical violence - credibility of witnesses - balance of probabilities - self incrimination - s128 of the Evidence Act - privilege of union documents - flawed investigation - treatment of witnesses - reinstatement sought. CATCHWORDS : Held, Commission has no power to grant certificate under s128 of Evidence Act - no special grounds for union documents to be regarded as privileged - applicant breached Code of Conduct - applicant failed to report serious incidents - applicant failed to provide appropriate level of duty of care - applicant involved in illegal drug use and procurement - applicant's evidence on crucial matters not credible - employer's investigation not without flaws - employer's demands on other employees during investigation not appropriate - applicant afforded procedural fairness - allegations proven on balance of probabilities - dismissal not harsh, unjust or unreasonable - application dismissed. LEGISLATION CITED : Industrial Relations Act 1996 Evidence Act 1985 Briginshaw v Briginshaw (1938) 60 CLR 336 Wang v Crestell Industries Pty Ltd, 73 IR 454 Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70 Franklins Ltd v Webb, 72 IR 257 Standley v Electronics Boutique Australia Pty Ltd (unreported, Sams DP, IRC4516 of 1998, 18 March 1999 Byrne & Anor v Australian Airlines (1985) 185 CLR 10 Andric v Franklins Ltd [2001] NSWIRComm 1001 (11 January 2001) Crown Employees (State) Award No 2, 52 IR 376 Hill v Department of Juvenile Justice (unreported, Sams DP, IRC6474 of 1999, 27 July 2000) Perkins v Grace Worldwide (Aust) Pty Ltd, 72 IR 186 NSW Public Service Professional Officers Association v Forestry Commission, 39 IR 46 Oswald v NSW Police Service, 90 IR 42 Macleay Valley Health Service v Jeffree, 58 IR 187 CASES CITED : Jones v Dunkel (1958) 101 CLR 298 Burke v McGirr, 87 IR 54 Shop Distributive & Allied Employees' Association v Jewel Fod Stores, 22 IR 2 Bigg & Anor v NSW Police Service, 80 IR 434 Electricity Commission of New South Wales t/as Pacific Power v Crump, 48 IR 296 Busways v Johnson, 55 IR 255 Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8 Federated Municipal and Shire Council Employees' Union of Australia, New South Wales Division, on behalf of Bowman, and City of Sydney Council [2001] NSWIRComm 91 Johnson v Catholic Education Office, Diocese of Parramatta, 87 IR 57 Abboud v The State of New South Wales (Department of School Education), 92 IR 32 Antonakopoulos v State Bank of New South Wales, 91 IR 385 Foster v Woolworths Limited (unreported, Sams DP, IRC6385 of 1999, 27 October 2000) Rapp v Wauchope RSL Club, 81 IR 434 John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, New South Wales Division & Ors (unreported, Sheppard J, Matter 259 of 1972, 14 September 1972) HEARING DATES: 09/28/2001; 10/03/2001; 10/04/2001; 10/05/2001; 11/23/2001 DATE OF JUDGMENT: 04/05/2002

[52]

47 On 15 January 2001, in the presence of Mr Dubberley, Mr Bevan told the applicant he had bought a handgun in Cabramatta. On the same day, Ms Kwok again complained about Mr Bevan. She suggested he may be on stimulants. The applicant met Mr Bevan and raised these issues with him, expressing concern that his actions might be related to the drink driving charge Mr Bevan was soon to appear in court for. The applicant said Mr Bevan became irate and threatened to have him sacked. Mr Bevan said it would be easy to have him sacked, as the Director of Community Mental Health, Mr Graeme Whatmough, hated the applicant. The applicant deposed that Mr Bevan had referred to what he had just " got away with " and again mentioned the buried body. Mr Bevan then calmed down and told the applicant he had a brain lesion and that his girlfriend was using intravenous amphetamines. Mr Bevan asked the applicant for a reference for his court case. The applicant agreed and provided him with a glowing reference. Mr Bevan deposed that the applicant's version of this conversation is an utter fabrication, except for the issue of the reference for court. He said he never in his life had such a " clinically sterile conversation" with the applicant. Mr Bevan said this incident began after he had spoken to Mr Dubberley about a reference. Mr Dubberley had refused. The applicant overheard the conversation and said to Mr Bevan " that shows you a bit of insight for (sic) Phillip doesn't it? - he's not going to give you a reference. " Mr Bevan replied, " that's good coming from an unconvicted rapist ". The applicant whispered in Mr Bevan's ear " if you are going to start calling people a rapist around here, I would be very bloody careful ". Mr Bevan said he never mentioned a brain lesion or that he had buried a body. Mr Bevan deposed that later that day he was called to the applicant's office. The applicant abused him and mentioned the names of two heroin addicts in Merrylands who would do " a favour " for him. Mr Bevan took this as a threat to have him killed. Mr Bevan said the next day he told Mr Antony Mullen, a clinical nurse consultant, that there were issues between himself and the applicant. He asked Mr Mullin to keep quiet about the death threats because he was " frightened ". Mr Bevan said he never told the applicant, or Mr Dubberley, that he had gone to Cabramatta to purchase a gun and had never done so.

[208]

191 Section 128 of the Evidence Act 1985 is in the following terms: 1) This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness: a) has committed an offence against or arising under an Australian law or a law of a foreign country, or b) is liable to a civil penalty 2) Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness: a) that he or she need not give the evidence, and b) that, if he or she gives the evidence, the court will give a certificate under this section, and c) of the effect of such a certificate. 3) If the witness gives evidence, the court is to cause the witness to be given a certificate under this section in respect of the evidence. 4) The court is also to cause a witness to be given a certificate under this section if: a) the objection has been overruled, and b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. 5) If the court is satisfied that: a) the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law, and b) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and c) the interests of justice require that the witness give the evidence, The court may require the witness to give the evidence. 6) If the court so requires, it is to cause the witness to be given a certificate under this section in respect of the evidence. 7) In any proceeding in a NSW court: a) evidence given by a person in respect of which a certificate under this section has been given, and b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, Cannot be used against a person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence. 8) In a criminal proceeding, this section does not apply in relation to the giving of evidence by a defendant, being evidence that the defendant: a) did an act the doing of which is a fact in issue, or b) had a state of mind the existence of which is a fact in issue. 9) A reference in this section to doing an act includes a reference to failing to act.

[225]

204 In other cases, the employee will admit to the misconduct, but will argue that the penalty of dismissal was too harsh. In this regard I refer to Electricity Commission of New South Wales t/as Pacific Power v Crump 48 IR 296: The conciliation commissioner, therefore, in our view of his decision, was concerned that the ultimate sanction of termination of employment was too severe a penalty. That approach was properly open to the conciliation commissioner, notwithstanding his favourable finding as to the action of the appellant, is supported by the decision of Watson J in Metropolitan Meat Industry Board v Australasian Meat Industry Employees' Union, New South Wales Branch [1973] AR (NSW) 231 at 233 as follows: I fail to see why in applying this test to determine whether or not he should intervene, and having in mind the considerations referred to by Sheldon J in Loty's case [1971] AR (NSW) 95 at 99, the commissioner (or the Commission on appeal) is precluded from considering whether or not termination was too severe a penalty in all the circumstances - even if the dismissal was legally justified or even if, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal . The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. (Our italics) See also Busways v Johnson 55 IR 255, Byrne & Anor v Australian Airlines and my comments in Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8.

Briginshaw v Briginshaw

At a glance

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Judgment (281 paragraphs)

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Cases Cited (13)

Cited By (5)