Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064

Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064

The respondent rebutted the presumption that the applicant's dismissal was because of the threatened unfair dismissal proceedings: the decision-maker's evidence and surrounding circumstances showed the dismissal was actuated by the substantiated misconduct findings, not by the proceedings. The applicant established...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
22 September 2020
Procedural Posture
Application for Relief From Victimisation Pursuant to S 213 of the Industrial Relations Act 1996 (nsw) / Principal Judgment After Hearing; Order for Compensation
Outcome
Application succeeded in part; compensation ordered for procedural victimisation, but reinstatement refused and dismissal not found to be victimisation.
Legal Topics
['victimisation' 'reverse Onus' 'dismissal' 'procedural Fairness in Workplace Investigation' 'disciplinary Investigation' 'compensation']
['employment and Industrial Law' 'industrial Relations' 'local Government Employment'] ['victimisation' 'reverse Onus' 'dismissal' 'procedural Fairness in Workplace Investigation' 'disciplinary Investigation' 'compensation']

Source-derived case record

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Procedural Posture

Application for Relief From Victimisation Pursuant to S 213 of the Industrial Relations Act 1996 (nsw) / Principal Judgment After Hearing; Order for Compensation

Legal Issues

  1. 1 ['Whether the applicant suffered detriments for the purposes of s 210 of the Industrial Relations Act 1996 (NSW), including dismissal and failures to apply investigation procedures.' 'Whether the respondent dismissed the applicant because he participated or proposed to participate in threatened unfair dismissal proceedings or threatened interlocutory relief.' "Whether the respondent failed to undertake and complete the investigation in accordance with relevant policies, procedures and guidelines because of the applicant's threatened proceedings or use of leave entitlements." 'Whether the respondent rebutted the statutory presumption in s 210(2) that established detriments were caused by prohibited reasons.' 'What remedy should be ordered if victimisation was established for procedural lost opportunities but not for dismissal.']

Ratio Decidendi

The respondent rebutted the presumption that the applicant's dismissal was because of the threatened unfair dismissal proceedings: the decision-maker's evidence and surrounding circumstances showed the dismissal was actuated by the substantiated misconduct findings, not by the proceedings. The applicant established procedural lost-opportunity detriments arising from failures to apply the Code of Conduct Procedures and Council Investigation Procedure, including not interviewing Messrs Bax and Walsh and not providing an opportunity to meet with the General Manager, and the respondent did not rebut the presumption that the threatened unfair dismissal application was not a substantial and...

Court Disposition

Application succeeded in part; compensation ordered for procedural victimisation, but reinstatement refused and dismissal not found to be victimisation.

Orders

  • ["The respondent is ordered to pay to the applicant, within 21 days of today's date, a sum equivalent to two weeks' pay calculated at the rate applicable to the position occupied by the applicant immediately before the Dismissal on 13 September 2018."]