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

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

The Full Bench held that Lynch AC erred in finding the dismissal harsh. Mr Dimovski's deliberate misconduct over an extended period, involving salacious, homophobic and offensive statements about his immediate supervisor to junior staff and conduct designed to undermine that supervisor, was serious and justified dismissal. His age, 22 years of service and prior record did not make the dismissal harsh when weighed against the misconduct.

Jurisdiction
Australia
Judgment Date
17 October 2011
Procedural Posture
Appeal and Cross Appeal Concerning Application for Relief From Alleged Unfair Dismissal Under Pt 6 of Ch 2 of the Industrial Relations Act 1996 / Full Bench Appeal From Decision and Orders of Acting Commissioner Lynch
Outcome
Leave to appeal granted; appeal upheld; orders of Lynch AC set aside; respondent's application dismissed; leave to cross-appeal granted; cross-appeal dismissed.
Legal Topics
['unfair Dismissal' 'misconduct' 'harsh, Unjust or Unreasonable Dismissal' 're Employment' 'workplace Discrimination and Harassment' 'code of Conduct Breach']
['industrial Relations' 'employment Law'] ['unfair Dismissal' 'misconduct' 'harsh, Unjust or Unreasonable Dismissal' 're Employment' 'workplace Discrimination and Harassment' 'code of Conduct Breach']

Case Brief

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Procedural Posture

Appeal and Cross Appeal Concerning Application for Relief From Alleged Unfair Dismissal Under Pt 6 of Ch 2 of the Industrial Relations Act 1996 / Full Bench Appeal From Decision and Orders of Acting Commissioner Lynch

Legal Issues

  1. 1 ['Whether Lynch AC erred in finding that dismissal was too harsh because Mr Dimovski had an unblemished record of 22 years and was 60 years of age with little likelihood of future employment.' 'Whether Lynch AC erred in ordering re-employment under s 89(2) of the Industrial Relations Act 1996.' "Whether Lynch AC erred in finding that the dismissal was not unjust or unreasonable and that Mr Dimovski's misconduct was of such seriousness as to warrant dismissal." 'Whether an inference was available that Mr Dimovski intended to prevent or remove Mr Dimeglio from his position in an improper way.']

Ratio Decidendi

The Full Bench held that Lynch AC erred in finding the dismissal harsh. Mr Dimovski's deliberate misconduct over an extended period, involving salacious, homophobic and offensive statements about his immediate supervisor to junior staff and conduct designed to undermine that supervisor, was serious and justified dismissal. His age, 22 years of service and prior record did not make the dismissal harsh when weighed against the misconduct.

Court Disposition

Leave to appeal granted; appeal upheld; orders of Lynch AC set aside; respondent's application dismissed; leave to cross-appeal granted; cross-appeal dismissed.

Orders

  • ['Leave to appeal is granted.' 'The appeal is upheld.' 'The orders of Lynch AC are set aside.' 'The application by the respondent for reinstatement, or re-employment, or monetary compensation, is dismissed.' 'The stay orders made on 20 July 2011 are dissolved from the date of this decision.' 'Leave to cross-appeal...