Killen v SafeWork NSW and NSW Rural Fire Service (No 3) [2022] NSWIRComm 1017

Industrial Relations Commission New South Wales Medium Neutral Citation: Killen v SafeWork NSW and NSW Rural Fire Service (No 3) [2022] NSWIRComm 1017 Hearing dates: 12 October 2021 Date of orders: 18 March 2022 Decision date: 18 March 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: 1 The decision on internal review is varied to: (1) The 'Brief description of how the provision is being or has been contravened' box on the Improvement Notice is varied so that it reads: (a) 'The PCBU's current policies and procedures are inadequate in failing to have a process or procedure for the oversight of the evaluation and investigation of bullying and other psychosocial hazards such that the evaluation and investigation of such complaints is completed in a timely fashion. (b) The PCBU's current policies and procedures are also inadequate to guide the PCBU in determining how it should respond when an employee makes a bullying or similar complaint against their manager.' (2) The 'Directions as to the measures to be taken to remedy or prevent the contravention or likely contravention' box on the Improvement Notice is varied so that it reads: (a) You must develop, document, implement and maintain a management process to monitor and manage investigations of bullying and other psychosocial hazards such that the evaluation and investigation of such complaints is completed in a timely fashion. (b) You must develop, document, implement and maintain a management process to evaluate whether it is appropriate to leave an employee, who has made a complaint against their manager, reporting to that manager. The process should include considerations as to the seniority of the parties, the known and reasonably anticipated impact of the employee continuing to report to the manager, and possible means to change reporting lines in appropriate cases. (3) The date by which the contravention must be remedied is varied to 18 May 2022. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety — Notices and enforcement — Improvement notice Legislation Cited: Work Health and Safety Act 2011 (NSW) Cases Cited: AFMEPKIU (NSW) (on behalf of its member Mick Amarasinghe) v WorkCover Authority of NSW [2012] NSWIRComm 143 NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4 Sydney Trains v Safework NSW (2017) 266 IR 276 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Growthbuilt v SafeWork NSW 274 IR 317 Killen v SafeWork NSW and NSW Rural Fire Service [2019] NSWIRComm 1078 Category: Principal judgment Parties: James Killen (Applicant) SafeWork NSW (First Respondent) New South Wales Rural Fire Service (Second Respondent) Representation: Counsel: Ms L Saunders (Applicant) Mr M Moir (First Respondent) Ms J Alderson (Second Respondent) Solicitors: PSA Legal Services (Applicant) Clayton Utz (Second Respondent) File Number(s): 2019/188389 Publication restriction: Pursuant to 164A and by consent the Commission ordered on 12 October 2021 that information that identifies or tends to identify the employees who made complaints or the managers about whom the complaints were made shall not be disclosed or published.