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

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

The Health District did not discharge the onus, to the Briginshaw standard, of proving that Dr A forcefully applied the pillow to the patient's face. While Dr A used the pillow inappropriately as a spit shield, this did not justify dismissal. The threatened dismissal was therefore unreasonable and harsh, and an order should be made that Dr A not be dismissed in accordance with the threat.

Parties
Applicant: Dr A; Respondent: Health District
Jurisdiction
Australia
Judgment Date
26 September 2014
Procedural Posture
Application Under S 89(7) of the Industrial Relations Act 1996 (nsw) / Principal Judgment
Outcome
Order made under s 89(7) of the Industrial Relations Act 1996 that the Health District shall not dismiss Dr A in accordance with the present threat to do so.
Legal Topics
Unfair Dismissal, Disciplinary Action, Workplace Misconduct, Standard of Proof
Industrial Law Employment Law Unfair Dismissal Disciplinary Action Workplace Misconduct Standard of Proof

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Parties

Dr A

Applicant

Health District

Respondent

Procedural Posture

Application Under S 89(7) of the Industrial Relations Act 1996 (nsw) / Principal Judgment

Legal Issues

  1. 1 Whether Dr A forcefully applied a pillow to a patient's face amounting to serious misconduct or assault
  2. 2 Whether the Health District is justified in dismissing Dr A based on alleged misconduct
  3. 3 Appropriate standard of proof in disciplinary proceedings involving serious allegations

Ratio Decidendi

The Health District did not discharge the onus, to the Briginshaw standard, of proving that Dr A forcefully applied the pillow to the patient's face. While Dr A used the pillow inappropriately as a spit shield, this did not justify dismissal. The threatened dismissal was therefore unreasonable and harsh, and an order should be made that Dr A not be dismissed in accordance with the threat.

Court Disposition

Order made under s 89(7) of the Industrial Relations Act 1996 that the Health District shall not dismiss Dr A in accordance with the present threat to do so.

Orders

  • The Health District shall not dismiss Dr A from his employment in accordance with its present threat to do so.
  • 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.