Lee and EnergyAustralia [2010] NSWIRComm 157

Lee and EnergyAustralia [2010] NSWIRComm 157

The Full Bench held that the Commissioner applied the incorrect legal test, failing to address why the appellant was selected for redeployment and not other employees, thus not properly applying the reverse onus required by s 210(2) of the Industrial Relations Act 1996. This constituted an error of law, and the appeal was upheld.

Parties
Appellant: Paula Lee; Respondent: EnergyAustralia
Jurisdiction
Australia
Judgment Date
24 November 2010
Procedural Posture
Appeal / Full Bench Decision Following Leave to Appeal
Outcome
Appeal upheld (from Bishop C's decision); Leave to appeal refused (from Industrial Registrar's decision)
Legal Topics
Victimisation, Reverse Onus, Workplace Health and Safety Complaints, Redeployment, Application of S 210(2) Industrial Relations Act 1996
Industrial Law Victimisation Reverse Onus Workplace Health and Safety Complaints Redeployment Application of S 210(2) Industrial Relations Act 1996

Case Brief

Summary, issues, holding and outcome

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Parties

Paula Lee

Appellant

EnergyAustralia

Respondent

Procedural Posture

Appeal / Full Bench Decision Following Leave to Appeal

Legal Issues

  1. 1 Whether the employer rebutted the presumption that a complaint was not a substantial and operative cause of detrimental action (redeployment) under s 210(2) of the Industrial Relations Act 1996
  2. 2 Whether the Commissioner erred in law in applying the reverse onus test
  3. 3 Whether the respondent was required to explain why the appellant was chosen for redeployment and not other employees

Ratio Decidendi

The Full Bench held that the Commissioner applied the incorrect legal test, failing to address why the appellant was selected for redeployment and not other employees, thus not properly applying the reverse onus required by s 210(2) of the Industrial Relations Act 1996. This constituted an error of law, and the appeal was upheld.

Court Disposition

Appeal upheld (from Bishop C's decision); Leave to appeal refused (from Industrial Registrar's decision)

Orders

  • Leave to appeal is granted (from Bishop C's decision).
  • The appeal is upheld (from Bishop C's decision).