McEwan v 365 Site Services Pty Ltd [2016] NSWCATAD 310

McEwan v 365 Site Services Pty Ltd [2016] NSWCATAD 310

The interim order was refused because, although there was some room for argument as to the legal merits of Mr McEwan's complaints, the balance of convenience favoured 365 Site Services. If the order were refused and Mr McEwan later substantiated his complaints, the Tribunal could award compensation for lost wages and potentially order reinstatement. If the order were granted and the complaints were not substantiated, 365 Site Services would be unable to recover wages paid while Mr McEwan was not providing labour, and the employment relationship of trust and confidence had broken down.

Jurisdiction
Australia
Judgment Date
23 December 2016
Procedural Posture
Application for Interim Order Under the Anti Discrimination Act 1977 (nsw) / Interim Application Pending Determination of Complaints of Discrimination and Victimisation
Outcome
Application refused.
Legal Topics
['interim Orders' 'prima Facie Case' 'balance of Convenience' 'victimisation' 'discrimination on the Ground of Responsibilities as a Carer' 'suspension on Full Pay' 'termination of Employment']
['human Rights' 'anti Discrimination' 'employment'] ['interim Orders' 'prima Facie Case' 'balance of Convenience' 'victimisation' 'discrimination on the Ground of Responsibilities as a Carer' 'suspension on Full Pay' 'termination of Employment']

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Procedural Posture

Application for Interim Order Under the Anti Discrimination Act 1977 (nsw) / Interim Application Pending Determination of Complaints of Discrimination and Victimisation

Legal Issues

  1. 1 ["Whether an interim order should be made prohibiting 365 Site Services Pty Ltd from terminating Mr McEwan's employment pending further order of the Tribunal." 'Whether Mr McEwan had a sufficient prima facie case in complaints of victimisation and discrimination on the ground of responsibilities as a carer.' 'Whether the balance of convenience favoured granting or refusing the interim order.']

Ratio Decidendi

The interim order was refused because, although there was some room for argument as to the legal merits of Mr McEwan's complaints, the balance of convenience favoured 365 Site Services. If the order were refused and Mr McEwan later substantiated his complaints, the Tribunal could award compensation for lost wages and potentially order reinstatement. If the order were granted and the complaints were not substantiated, 365 Site Services would be unable to recover wages paid while Mr McEwan was not providing labour, and the employment relationship of trust and confidence had broken down.

Court Disposition

Application refused.

Orders

  • ["Mr McEwan's application for an interim order prohibiting 365 Site Services Pty Ltd from terminating his employment pending further order of the Tribunal, is refused."]