Paula Lee v Ausgrid (formerly Energy Australia) [2012] NSWIRComm 1027

Industrial Relations Commission New South Wales Medium Neutral Citation: Paula Lee v Ausgrid (formerly Energy Australia) [2012] NSWIRComm 1027 Hearing dates: 21 November 2011, 22 November 2011, 20 January 2012 Decision date: 21 December 2012 Jurisdiction: Industrial Relations Commission Before: Tabbaa, C AM Decision: Case dismissed Catchwords: Freedom from victimisation; Rebuttal presumption; Onus on the employer to rebut the presumption; Presumption rebutted if the alleged matter was not a "substantial and operative cause" of the detrimental action; Respondent rebutted the presumption. Legislation Cited: Industrial Relations Act 1996 Cases Cited: Jones v Dunkel [1959] HCA 8; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Australian Competition and Consumer Commission (2007) 162 FCR 643; General Motors Holden Pty Ltd v Bowling (1976) 17 ALR 605; Mikasa (NSW) Pty Ltd v Festival Stores(1972) 127 CLR 617; Category: Principal judgment Parties: Paula Lee (Applicant) Ausgrid (formerly Energy Australia) (Respondent) Representation: Mr J Trew QC (Applicant) Mr Richard Pegg, Toomey Pegg Lawyers (for the Applicant) Mr R Darams, Freehills (for the Respondent) File Number(s): IRC 1371 of 2009

Judgment

Background 1Ms Lee commenced employment with Energy Australia (now known as Ausgrid) in January 1996 as a Project Engineer, Field Computing in the Integrated Assessment Management System (IAMS). 2Ms Lee applied for, and was appointed to, the position of Project Engineer, Field Computing in December 2004. Her role was to prepare and coordinate the implementation of the Energy Australia project to deploy IT screen based technologies to the respondent's employees working in the field. She was working in the field computing team with two other members (Mr Sid Newbury and Mr Kelly). 3She lodged a complaint in 2008 in relation to alleged bullying and intimidatory behaviour by her Manager, Mr Sid Newbery, on the basis that such behaviour was injurious to her health and safety and wellbeing at work. She complained that she felt threatened and intimidated by Mr Newbery and that, until their mediation addressing this was completed and the relationship dealt with, she believed the Respondent was breaching its obligations to provide her with a workplace that was not a risk to her health and safety. 4An investigation was conducted and Ms Lee and her Manager were invited to participate in a mediation process. 5The Applicant commenced the mediation and attended her session however the Respondent discontinued the mediation process prior to any joint session taking place with Mr Newbery. For reasons set out below, the mediation did not eventuate. 6Ms Lee filed an application on 2 September 2009 pursuant to s 213 of the Industrial Relations Act 1996 seeking relief from victimisation. The Applicant sought three orders: (1)Reinstatement; (2)Removal of redeployment classification; and (3)Any other orders. 7Conciliation proceedings were conducted before Cambridge C on 30 September 2009. That conference was adjourned on the basis that the Respondent would attempt to find a position for the Applicant in the IAMS field computing section. Ms Lee received a response on 2 October 2009 advising that the projects were complete and there was no position available for her despite the fact that she was the only employee redeployed. 8Mr Fauld wrote to Mr Ward of Toomey Pegg on 2 October 2009 advising as follows: `"During the conciliation of this matter on Wednesday 30th Energy Australia committed to examining the availability of a position for Miss Paula Lee in IAMS mobile computing as managed by Mr Newbery who stated at the conciliation the projects in mobile computing are complete except for some residual hardware installation in vehicles therefore there's no position available for Miss Lee. Additionally we can clarify that the salary level of the position to which Miss lee is currently redeployed is the same as her current level which is engineer band 2 level 3." 9The matter was subsequently listed for hearing before Bishop C. The decision, issued on 31 March 2010, [2010] NSWIRComm 1016 found that the complaint made by Ms Lee about an unsafe workplace was not the "substantial and operative cause" of her redeployment on 12 August 2009; Ms Lee was redeployed because the particular projects on which she had been engaged had concluded; and there was no more field computing work to which she could be allocated. In summary, Bishop C found that the Respondent had rebutted the presumption that Ms Lee was victimised because of her complaint of bullying and victimisation made on 17 April 2008. An appeal by Ms Lee against the decision of Bishop C was decided by a Full Bench (comprising Walton J. Vice President, Staff J and Tabbaa C) on 24 November 2010 [2010] NSWIRComm 157. The Bench upheld the appeal on the following basis: In our opinion, it is clear that the Commissioner focused on the question of whether, because of a decrease in the work, one of the employees had to leave the relevant section. However, as we have stated, what the Commissioner did not address was why it was the appellant. At its highest, the evidence of the respondent was that there was insufficient work for three persons. Although the appellant complained that she was singled out for redeployment, the Commissioner failed to consider in her conclusions, why the appellant was chosen for redeployment and not one of the other employees. We agree with the submission of Mr Trew that the Commissioner applied the wrong test, or misunderstood the test that should have been applied in its application to the evidence. That was an error of law and must result in the appeal being upheld. 10The matter was remitted to Bishop C to be dealt with in accordance with the Full Bench decision. 11In a further decision dated 23 March 2011, Bishop C [2011] NSWIRComm 1014 granted the Respondent leave in an interlocutory application to adduce further evidence from Ms Lee's Manager, Mr Locking. 12That decision was the subject of a further appeal by the Applicant to a Full Bench of the Commission in [2011] NSWIRComm 20. The Bench (comprising Walton J, Acting President, Staff J and Macdonald C) held, on 2 September 2011, that the orders made by Bishop C were correct although the decision to make those orders was erroneous. The Full Bench held that it would not be just in this matter "to deprive the respondent of an opportunity to put a case to rebut the presumption under s 210...". 13The matter was ultimately remitted to the Commission as currently constituted for finalisation.