Kardell v South Eastern Sydney Area Health Service [1997] IRCA 261

DECISION NO:261/97 CATCHWORDS

INDUSTRIAL LAW - EMPLOYMENT LAW - TERMINATION OF EMPLOYMENT - Consideration of the meaning of VALID REASON - A wide range of allegations were made against the applicant, concerning HER CONDUCT AND PERFORMANCE, almost all of which the respondent failed to prove - In particular, a multiplicity of allegations concerning improper and intimidatory conduct by the applicant were fabrications - The limited extent to which the allegations against the applicant were proven did not establish that her conduct or performance had been such as to warrant the termination of her employment - If the penalty of termination of employment is out of proportion to the seriousness of the conduct complained of, then the termination of employment will not be justifiable, and will not be for a valid reason - TERMINATION OF EMPLOYMENT UNLAWFUL, as not for a VALID REASON. INDUSTRIAL LAW - EMPLOYMENT LAW - TERMINATION OF EMPLOYMENT - The Acting Chief Executive Officer of the respondent, who made the decision to terminate the applicant's employment, made that decision upon the basis of a memorandum which contained serious factual errors concerning the applicant's conduct. Those matters (being mistakes by the author of the memorandum) were never put to the applicant before the termination of her employment - As a result, the applicant never had the OPPORTUNITY TO RESPOND to them required by section 170DC of the Act, and the termination of her employment was UNLAWFUL. INDUSTRIAL LAW - EMPLOYMENT LAW - TERMINATION OF EMPLOYMENT - REINSTATEMENT - Whether APPROPRIATE - Whether IMPRACTICABLE - Consideration of the principles involved in determining whether it is IMPRACTICABLE to order REINSTATEMENT - REINSTATEMENT is the primary remedy for an unlawful termination of employment, and should therefore be ordered, unless the Court finds it IMPRACTICABLE so to do - "Impracticable" means something less than impossible, but reinstatement will not be impracticable if it is merely inconvenient, difficult, or disruptive, without causing an unacceptable problem, or unacceptable embarrassment, or seriously effecting productivity, or seriously effecting harmony within the employer's business. Any adverse consequences to the employer are relevant, but it must be remembered that an employee whose employment has been unlawfully terminated has suffered an injustice and that should be made right, if it can.