Paula Lee and Ausgrid (No 6) [2013] NSWIRComm 62

Paula Lee and Ausgrid (No 6) [2013] NSWIRComm 62

Leave to appeal was granted and the appeal allowed because the Commissioner failed to give adequate reasons, made fundamentally inconsistent findings, and the delayed decision undermined the reliability of the credit findings. On the evidence, including the 24 July 2009 memorandum, redeployment tracking sheet, cross-examination of Mr Locking and the failure to apply the respondent's redeployment policy, the respondent did not establish that the appellant's workplace safety complaint was not a substantial and operative cause of her redeployment. The respondent therefore failed to rebut the presumption under s 210(2) of the Industrial Relations Act 1996.

Jurisdiction
Australia
Judgment Date
24 July 2013
Procedural Posture
Application for Leave to Appeal and Appeal in Victimisation Proceedings Under the Industrial Relations Act 1996 / Appeal From Decision of Commissioner Tabbaa Dismissing the Application After Remittal
Outcome
Leave to appeal granted; appeal allowed; decision of Commissioner Tabbaa quashed; respondent failed to rebut the s 210(2) presumption; remaining relief issues referred to another Member of the Commission.
Legal Topics
['victimisation' 'reverse Onus Under S 210(2)' 'redeployment' 'workplace Bullying Complaint' 'adequacy of Reasons' 'delay in Delivering Decision' 'credit Findings on Appeal']
['industrial Relations' 'employment Law' 'work Health and Safety' 'appellate Procedure'] ['victimisation' 'reverse Onus Under S 210(2)' 'redeployment' 'workplace Bullying Complaint' 'adequacy of Reasons' 'delay in Delivering Decision' 'credit Findings on Appeal']

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Procedural Posture

Application for Leave to Appeal and Appeal in Victimisation Proceedings Under the Industrial Relations Act 1996 / Appeal From Decision of Commissioner Tabbaa Dismissing the Application After Remittal

Legal Issues

  1. 1 ["Whether leave to appeal should be granted from Commissioner Tabbaa's decision dated 21 December 2012." "Whether the Commissioner failed to give adequate reasons and made inconsistent findings concerning the respondent's witnesses and the reason for redeployment." "Whether delay in delivering the decision undermined the Commissioner's advantage in assessing witnesses and factual findings." 'Whether the respondent rebutted the presumption under s 210(2) of the Industrial Relations Act 1996 that the appellant was victimised because of her workplace safety complaint.' 'Whether the Full Bench should determine the s 210(2) issue rather than remit the whole matter.']

Ratio Decidendi

Leave to appeal was granted and the appeal allowed because the Commissioner failed to give adequate reasons, made fundamentally inconsistent findings, and the delayed decision undermined the reliability of the credit findings. On the evidence, including the 24 July 2009 memorandum, redeployment tracking sheet, cross-examination of Mr Locking and the failure to apply the respondent's redeployment policy, the respondent did not establish that the appellant's workplace safety complaint was not a substantial and operative cause of her redeployment. The respondent therefore failed to rebut the presumption under s 210(2) of the Industrial Relations Act 1996.

Court Disposition

Leave to appeal granted; appeal allowed; decision of Commissioner Tabbaa quashed; respondent failed to rebut the s 210(2) presumption; remaining relief issues referred to another Member of the Commission.

Orders

  • ['Leave to appeal is granted.' 'The decision of Commissioner Tabbaa given on 21 December 2012 is quashed.' 'The appeal is allowed.' 'It is determined that the respondent has failed to rebut the presumption, pursuant to section 210(2) of the Industrial Relations Act 1996, that the appellant has been victimised by the...