NSW IRC had not acted in bad faith

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NSW IRC had not acted in bad faith

The claimant alleged actual dishonesty and bad faith against four judges of the NSW Industrial Relations Commission. The allegations were found to be groundless by the NSW Court of Appeal.

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The claimant alleged actual dishonesty and bad faith against four judges of the NSW Industrial Relations Commission. The allegations were found to be groundless by the NSW Court of Appeal.

The claimant bore the onus of making out every element required to justify a grant of relief.

Facts

These proceedings arose out of events occurring in 1997 and 1998, concerning the claimant’s employment with the NSW Department of Community Services (DOCS) as a Residential Care Assistant.

Concerns by the employer that that the claimant was suffering a serious mental illness arose in the course of his employment.

Various doctors made reports. On 30 October 1997, the employer advised the claimant that he had been declared unfit for three months and was to be placed on sick leave. On 26 November 1997, the claimant gained access to his personnel file and discovered documents alleging serious mental illness, and he subsequently sought to appeal from HealthQuest’s decision. In December 1997, he lodged a complaint with the Anti-Discrimination Board.

The claimant applied to the Equal Opportunity Tribunal, seeking an interim order that DOCS place him back on full pay while the matters before the Tribunal were under enquiry. The Tribunal declined to make that order.

Proceedings in IRC

In 2001, the claimant commenced proceedings in the IRC.

On 26 August 2005, Boland J dismissed the claimant’s application. In his reasons for judgment, Boland J found that there had been flaws in the process by which the claimant was referred to HealthQuest and put on leave.

However, Boland J accepted Dr. Roberts’ evidence that, at the time she saw him, the claimant may well have been suffering from significant mental illness and that it was inappropriate that he return to work.

The Full Bench of the IRC on 24 March 2006 refused leave to appeal and dismissed the appeal.

No basis

Regarding Boland J, The Court of Appeal found that the matters alleged against him considered separately and cumulatively, fell far short of raising even a reasonable suspicion of bad faith, much less proof of it to the standard required.

Regarding the Full Bench, in refusing leave to appeal, there was no basis for an allegation of bad faith or dishonesty.

Crewdson v. Industrial Relations Commission of NSW & Ors. [2007] NSWCA 178-NSWCA (Mason P, Hodgson JA and Handley JA) - 25/7/07

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