Industrial Relations Commission New South Wales Medium Neutral Citation: Mallegowda v Transport Secretary (No 6) [2024] NSWIRComm 1064 Hearing dates: 27, 28, 29, 30, 31 May 2024, 9 September 2024 and 16 October 2024 Date of orders: 17 October 2024 Decision date: 17 October 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner O'Sullivan Decision: Application dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW - Application for relief from victimisation – prospective employer – presumption displaced in respect of detriments – application dismissed Legislation Cited: Fair Work Act 2009 (Cth) Industrial Relations Act 1996 (NSW) Cases Cited: Board of Bendigo Regional Institute of Technology and Further Education v Barclay (2012) 248 CLR 500 CFMEU v Claremont Coal Pty Limited (2015) 253 IR 166 at paragraph 121 Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364 Health Services Union on behalf of Bruce v Government of New South Wales in respect of New South Wales Ambulance (2017) NSWIRComm 1036 at paragraph 16 Paula Lee v Ausgrid No 6 (2013) NSWIRComm 62 Tapia v Lagoon Seafood Restaurant (2003) NSWIRComm 341 Transport Workers' Union of Australia v Qantas Airways Ltd [2021] FCA 873, (2021) 308 IR 244 Twentieth Superpace Nominees v TWU (2006) NSWIRComm 218 Texts Cited: NIL Category: Principal judgment Parties: Shashikanth Mallegowda (Applicant) Transport Secretary (Respondent) Representation: S Prasanna (tutor for the applicant, 16 October 2024) Counsel: M Watts (Respondent) Solicitors: Sparke Helmore (Respondent) File Number(s): 2023/70222 Publication restriction: NIL ex tempore decision 1. This is a decision in relation to an application made by Mr Mallegowda that he was victimised as a prospective employee by the respondent in these proceedings, contrary to s 210 of the Industrial Relations Act 1996 (NSW) (the "Act"). 2. This application has a long and tortuous history and has been the subject of numerous listings for both the substantive and interlocutory hearings. 3. In reaching my decision, I have considered the numerous written submissions filed by the parties and, in particular, those filed by the applicant and respondent after the conclusion of the evidentiary part of the hearing on 27 to 31 May 2024. Also, I have taken into consideration the applicant's submissions of 15 June, 23 June and 22 August and the respondent's submissions of 7 July 2023. I have also had regard to the supplementary oral submissions made yesterday by Mr Prasanna, tutor for the applicant, and Mr Watts, counsel for the respondent. 4. The respondent's witnesses at the hearings were Mr Paul Vickers, Mr Jarrad Perks, Mr Darren Keenan, Mr David Hutchison and Mr Kevin Carty. Putting aside Mr Vickers; Mr Perks, Mr Keenan, Mr Hutchison and Mr Carty were in some way involved in the recruitment process of the applicant. Mr Paul Vickers' evidence was in relation to a subsidiary issue which, for reasons that will become clear, there is no need to turn to in this decision. Background 1. The applicant was, between February 2006 and April 2017, employed by the Roads and Maritime Services which was a precursor to the current respondent. 2. On 5 June 2014 the applicant was charged with contempt of court for threatening a witness in a defamation proceeding that the applicant had commenced. In early to mid August 2016 the applicant was convicted and sentenced to nine months imprisonment with a non-parole period of six months. That sentence was suspended on the basis that the applicant enter into a good behaviour bond. It appears that the conviction and sentence followed a plea of guilty by the applicant in relation to the charge of contempt. 3. On 14 August 2016, the Sydney Morning Herald published an article which identified the applicant as an RMS employee. 4. On 16 August 2016, the applicant was suspended from work and an investigation was conducted in relation to the allegations that he had breached the Transport Code of Conduct by failing to disclose that he had been criminally charged and convicted with a criminal offence. 5. The applicant's employment was terminated with RMS on 31 March 2017 following the investigation. 6. On 6 April 2017 the applicant commenced unfair dismissal proceedings in the Commission pursuant to s 84 of the Act. On 10 April 2017 the applicant made a separate complaint to the Australian Human Rights Commission alleging discrimination and victimisation in regards to the termination of his employment. 7. In July 2017 a settlement which was recorded into a deed of release (the "Deed") was reached with respect to the applicant's unfair dismissal proceeding. The relevant terms of the Deed were as follows: * That the applicant would be provided with a statement of service by RMS which included the words "he resigned from his employment effective 3 April 2017". * A copy of the applicant's resignation letter would be placed on his personnel file. * Specified employees of the applicant would be told that the applicant had resigned. * Questions from prospective employers would be directed to a specified individual at RMS who would answer those questions consistently with the statement of service. 1. In December 2022 the applicant applied for the role of project manager EL3 and at some point, the applicant was identified and informed that he was the preferred candidate for the role. 2. The applicant was then the subject of pre-employment checks which included a criminal record check and previous employment and other checks. 3. The applicant's contempt conviction was identified by Mr Carty on the applicant's criminal record during the applicant's criminal record check. The applicant's criminal record was consequently assessed by TFS professional standards and conduct unit and, in particular, Mr Carty and Mr Keenan, who recommended that the applicant's application for manager EL3 role be rejected. 4. Consequently, on 24 February 2023 at approximately 9.00am, the applicant was told by Mr Perks by way of a telephone call, that his application for employment was unsuccessful. He was also informed in writing, by way of an email from Mr Hutchison at 4.01pm that same day. 5. Later that day on 24 February 2023 the applicant's file was flagged as unsuitable for re-employment. I will refer to that as "red flagging" and the decision, being the decision that the applicant's application for the role of project manager EL3 was unsuccessful, will be referred to as "the Recruitment Decision". The Application 1. The applicant relies on s 213 of the Act, which is in the following terms: Enforcement 213 Enforcement (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following-- (a) order the reinstatement or re-employment of an employee, (b) order the employer to promote or otherwise advance an employee in his or her employment, (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service). (3) An application for an order under this section must be made within 21 days after the contravention concerned. (4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to-- (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought. 1. Sections 209 to s 212 of the Act contain protections for employees from specific action because of certain reasons. In his further amended application, the applicant relied upon subsections 210(1)(d), (e), (g) and (j) of the Act, which are in the following terms: Freedom from victimisation 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person-- ….. (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or …… (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or …… (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011, or The approach 1. The clear prohibition on an employer, prospective employer, industrial organisation under s 210 of the Act is that they must not victimise an employee because of any of the identified reasons in subparagraphs 1(a) through to (g) of s 210, and I will refer to those as "the protected attributes". 2. Although the term "victimise" is not specified in the Act, its meaning is to be inferred from subs 210(2) which refers to an employee suffering any detriment. In that regard, see the case of Health Services Union on behalf of Bruce v Government of New South Wales in respect of New South Wales Ambulance (2017) NSWIRComm 1036 at paragraph 16. 3. In Tapia v Lagoon Seafood Restaurant (2003) NSWIRComm 341, at 296-297, Glenn J, in construing the meaning of "victimise" and "detriment" in the context of sections 210 and 213, reached the following conclusion: "In the use of the word 'detriment' in s 210(2) it can be seen that the legislature has adopted, in part, the definition of 'victimise' as found in Davis at p 381," 1. The reference to the case of Davis, is that of the Full Bench of this Commission in Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364 and at p. 381 the Full Bench stated that the word "victimise", where used in s 210 of the Act: …… should therefore be interpreted as "cause' an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his or her employment". 1. Subsection 210(2) of the Act also contains a presumption which operates on the employer to require it to prove that the protected attribute pleaded by an applicant in ss 210(1) was not a substantial and operative reason for the respondent making the decision alleged by the applicant to be the cause of the detriment suffered. 2. I pause here for a moment to note that in dealing with these principles, a reference to "employer" means prospective employer and to an "employee" to prospective employee. 3. The Full Bench in Twentieth Superpace Nominees v TWU (2006) NSWIRComm 218 at paragraph 43 explained when and how the reverse onus in s 210(2) operates as follows: We consider that the terms of s 210(2) are clear. Once an employee or prospective employee has demonstrated detriment as a result of an action by an employer or an industrial organisation and the alleged cause of that detriment falls within the class of victimisation in subs 210(1), then it is presumed that that employee or prospective employee was victimised. The employee will be required to prove the elements of the alleged reason for victimisation, being the elements of one or more of the paragraphs in s 210 subs 1. For example, an applicant under s 210(1)(j) will need to prove the existence of a complaint about a workplace matter concerning safety for the purpose of that subsection. In the face of the presumption in s 210(2), the onus is then on the employer or industrial organisation to show that the alleged matter was not a substantial and operative cause of the detrimental action. 1. Superpace makes it clear that the reverse onus is not operative until the employee has made out the existence of the detriment and a protected attribute in ss 210(1) of the Act. 2. In Paula Lee v Ausgrid No 6 (2013) NSWIRComm 62 the Full Bench of this Commission applied the reasoning of the High Court in Board of Bendigo Regional Institute of Technology and Further Education v Barclay (2012) 248 CLR 500 in relation to the general protections provisions of the Fair Work Act 2009 (Cth) (the "FW Act"). 3. In Barclay, Gummow and Hayne JJ dealt with the nature of the inquiry required to be undertaken in relation to a general protection of the FW Act and explained that it would be misleading to use the terms "objective" and "subjective" to describe the inquiry into what reason actuated the decision-maker and at paragraph [72] they stated: The High Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some prescribed reason had subconsciously influenced the decision-maker, nor should such an inquiry be made. 1. Also, in relation to the inquiry, Reeves J in CFMEU v Claremont Coal Pty Limited (2015) 253 IR 166 at paragraph [121] provided that this will include: …where the reasoning process is dispersed through an assessment process involving a number of persons, examination of the reasoning process employed by each person whose involvement had a material effect on the ultimate decision. 1. Consistent with the reasoning of Lee J in relation to s 361 of the FW Act in Transport Workers' Union of Australia v Qantas Airways Ltd [2021] FCA 873, (2021) 308 IR 244 at p. 311, following the identification of a detriment, the Commission must be satisfied one way or another that the substantial and operative reason for the decision to impose the detriment did not include a protected attribute alleged by the applicant under ss 210(1). 2. Thus, I am required to determine: 1. Did the applicant prove that he had a protected attribute pursuant to ss 210(1)? 2. Did the applicant prove that he suffered a detriment for the purpose of s 213? 3. If 1 and 2 above are made out, has the respondent satisfied its onus under ss 210(2) that the protected attribute(s) were not an operative and substantial reason for the decision to that gave rise to the detriment? Protected Attribute 1. The applicant in his further amended application from victimisation stated that there were eight grounds of victimisation, which are: 1. exercises functions conferred under this Act. 2. Claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument 3. Participates, or proposes to participate, in proceedings relating to an industrial matter. 4. Makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011 As per the section 169 of the IR Act 1996 and clause 50 of Anti-discrimination Act 1977, the Applicant relies on the following grounds for victimisation they are; 5. Brought proceedings against the discriminator or any other person under this Act. 6. Given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act. 7. Alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act. 8. Otherwise done anything under or by reference to this Act in relation to the discriminator or any other person. 1. At the commencement of the first day of hearing, I requested the applicant to identify which matters he claimed were protected attributes for the purpose of ss 210(1) of the Act. In short, the applicant's answer was as follows. 1. Firstly, that he brought this victimisation claim. 2. Secondly, he participated in proceedings relating to an industrial matter, being the 2017 IRC proceedings. 3. Thirdly, he made a complaint about a workplace matter that he considered was a risk to health and safety and he am internal complaint regarding this in 2011. 1. There were references in his further amended claim regarding other complaints under the ADA Act in 2012 and to the AHRC in 2012, 2017 and 2023, but these were not pressed at the hearing. 2. The respondent has properly conceded that the 2017 IRC proceedings and the 2011 OH and S and internal complaints constitute a protected attribute under ss 210(1)(g) and 210(1)(j) of the Act. 3. I accept that these proceedings and the other complaint to the AHRC are covered by subs 210(1)(g) and subs 210(1)(j) of the Act. 4. These proceedings, the 2017 IRC proceedings and the 2011 OH & S complaints are the protected attributes claimed by the applicant. The Detriment 1. Also, at the commencement of the hearing I requested the applicant identify the detriment he was alleging for the purpose of s 210 and 213. The applicant identified these as: 1. Not being employed to the role he applied for. 2. Having a "red flag" placed on his name in the respondent's computer system which implies that he is not to be employed. 3. Deteriorating mental health. 4. Financial loss. 5. Not reviewing his application according to procedures. 1. The respondent conceded that the failure to employ was a detriment, but they did not concede that the rest constituted a detriment. Further, in relation to the third and fourth detriments identified by the applicant, being the deteriorating mental health and financial loss, the respondent submitted that those are matters relevant to the question of remedy. 2. I agree with the respondent in respect to the proper characterisation of the applicant's health and the financial loss, which is that they are matters which are relevant to remedy and do not constitute a detriment. I further note that the applicant did not refer to these in the context of a detriment in his written submissions filed following the conclusion of the hearing of the evidence. 3. In relation to red flagging, the respondent contends that there is no injury, hardship or loss occasioned to the applicant and, further, it is only an administrative action. However, the red flagging does provide a further impediment for the applicant gaining employment with the respondent should he attempt to do so into the future. This commenced from the time it was entered and, on that basis, falls within the meaning of a detriment as contemplated in Tapia. 4. As for the review failure, the applicant has not identified any policy or procedure that provides for a right or even a possibility to review a recruitment decision, which is consistent with the evidence of Mr Paul Vickers. In light of the above, any such right, particularly given the absence of any evidence of such a policy or procedure or right, there has been no loss or injury and no detriment for the purpose of Tapia. 5. Thus, the detriments suffered by the applicant for the purposes of s 210 and 213 of the Act is, firstly, the failure to employ, which I will refer to as "the Recruitment Decision" and the red flagging which will be referred to as "the Red Flagging Decision". The Onus 1. I now turn to the decision and firstly the decision-maker. The respondent submitted that the real decision-maker for the purposes of the Recruitment Decision was Mr Keenan and for the purposes of the Red Flagging Decision it was both Mr Carty and Mr Keenan (notwithstanding Mr Keenan's evidence that he only made a recommendation based on information provided to him by Mr Carty who reported to him). 2. Further, the respondent submitted that the decision in relation to the Recruitment Decision was made by Mr Keenan, somewhere between 2.42pm and 5.48pm on 23 February 2023. 3. As to the flagging decision, the respondent submitted that this decision was jointly made by Mr Keenan and Mr Carty prior to a message from Mr Keenan to Mr Carty at 2.49pm on 24 February 2023, in which Mr Keenan states: "We're very comfortable with our position. The flag should have been there on the basis he was terminated. I reckon keep progressing." 1. That was in response to a message sent by Mr Carty to Mr Keenan at 2.47pm which states: "I propose not to progress him to 'do not hire' until the situation is resolved. Thoughts?" 1. The effect of the respondent's submissions is that the Commission can accept that the use of the term "keep progressing" is evidence that the process arising from the Red Flagging Decision, had already commenced. 2. In relation to the reason for the decision, the respondent submitted that Mr Keenan had no knowledge of applicant's proceedings before the Commission in 2017 nor of any complaint made by the applicant regarding the risk to his health and safety in 2011 prior to the red flagging, prior to the recruitment decision. 3. Finally, the respondent submitted that even if Mr Keenan was not the decision-maker, all other persons involved in the recruitment and flagging process ie Messrs Perks, Hutchison and Carty, had no knowledge of the 2017 IRC proceedings nor the complaint in 2011. 4. In terms of the decision-maker, the applicant submitted that it could not be Mr Keenan for two principal reasons: 1. In cross-examination Mr Keenan gave an answer to the effect that he was not the decision-maker and merely made recommendations. 2. The respondent's transport core recruitment procedure, which I will refer to as "the policy", provides that it is the hiring manager who has the authority whether to appoint or not to appoint a candidate, and in this case the hiring manager for the position of the applicant, the position the applicant was applying for was Mr Pataka. 1. As to the red flagging, the applicant asserted that it was a Ms Maynard who provided legal advice by way of a number of emails to Mr Keenan and, most notably, one at 1.17pm on 24 February 2024. The basis provided for the submission by the applicant that Ms Maynard was a decision-maker is to the effect that the respondent relied on advice provided by her. 2. A Turning now to the timing of the decisions. The applicant submitted, firstly, that Mr Keenan in an answer to a question under cross-examination as to whether he was aware of the content of the deed - I withdraw that. The applicant submitted that Mr Carty must have known about an earlier IR proceeding. The applicant submitted that Mr Carty must have known about the earlier IRC proceedings of 2017 and the 2011 complaints as he would have accessed the applicant's personnel file because: 1. The policy required it, and 2. because he had referred to the deed of release in an email to Mr Carty on 21 February 2023 at 12.05. In particular, the email stated the following: "Don't forget to read the deed." 1. The applicant submitted that as Ms Maynard was the real decision-maker and she was not called, the respondent has not made out its onus. 2. As to Mr Keenan, the application referred to an answer - relied on an answer provided by Mr Keenan by way of cross-examination that he was aware of the contents of the deed of release of 2017 after he had received the email providing unspecified legal advice from Ms Maynard at 1.17pm on 2025(as said). However, that answer did not specify at what time he had read that email. Further, the applicant submitted that others involved in the recruitment must have known about the 2017 IR proceedings decisions for some unspecified reasons. Consideration 1. It is clear that the applicant's commencement of these proceedings could not and did not play a substantial and operative reason for the decision to take the Recruitment Decision and the Red Flagging Decision. 2. I now turn to when were the Recruitment Decision and the Red Flagging Decision were made. 3. In relation to the Recruitment Decision, this was quite clearly made prior to the applicant being informed by Mr Perks on 24/2/2023 at approximately 9am that he had been removed from the process. 4. As to the Red Flagging Decision, I accept the respondent's submission that it occurred sometime prior to 2.49pm on 24 February 2023, given the message from Mr Keenan which clearly states "keep processing" the red flag, clearly indicating that the process had already started. 5. As to the decision-maker, I reject the applicant's submission that it was Ms Maynard. Any advice provided by Ms Maynard does not constitute the making of a decision. This advice may or may not be followed by the decision-maker, in this case, Mr Keenan. 6. I also reject the applicant's contention that the decision-maker in regard to the recruitment must be Mr Pataka as he is the hiring manager, and the policy required his approval. In any event, Mr Pataka at the time of the Recruitment Decision was not aware of the applicant's 2017 IRC proceedings, nor any complaints made by him in relation to anybody including that of the internal complaints in 2011 concerning work health and safety. 7. As to the Recruitment Decision, the evidence is clear that Mr Keenan made a recommendation which was accepted and communicated by Mr Perks. Accordingly, Mr Keenan was the decision-maker for the recruitment process. 8. As to the Red Flagging Decision, I accept the decision was made by Mr Carty and Mr Keenan as evidenced by the messages of 24 February 2023 at 2.47 and 2.49pm. I am satisfied that neither Mr Carty nor Mr Keenan at that stage or prior to the sending of those messages was aware of the 2017 IRC proceedings and the 2011 OH & S complaint and thus I am satisfied that neither of those protected attributes formed a substantial and operative reason for the Recruitment Decision. 9. The message of 2.49pm, on 24 February 2023 is conclusive of a finding that the reason for Red Flagging Decision is solely that of the applicant's termination of employment. I am further satisfied in terms of finding that the 2017 protected attribute and the 2011 protected attribute did not form a substantial and operative reason for the for the Red Flagging Decision. 10. Thus, I am satisfied that the respondent has met its' onus under ss 210(2) of the Act and the application is dismissed. I so order. ********** Amendments 04 November 2024 - Correction made in Paragraph [28] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2024