Paula Lee and Ausgrid (No 6) [2013] NSWIRComm 62

Industrial Relations Commission New South Wales Medium Neutral Citation: Paula Lee and Ausgrid (No 6) [2013] NSWIRComm 62 Hearing dates: 24 May 2013 Decision date: 24 July 2013 Before: Walton J Vice-President; Harrison DP; Staff J Decision: 1. Leave to appeal is granted. 2. The decision of Commissioner Tabbaa given on 21 December 2012 is quashed. 3. The appeal is allowed. 4. It is determined that the respondent has failed to rebut the presumption, pursuant to section 210(2) of the Industrial Relations Act 1996, that the appellant has been victimised by the respondent because of her complaint the subject of her application dated and filed 2 September 2009 in proceedings IRC 1371 of 2009 in the Commission. 5. The remainder of the matter is referred to a Member of the Commission (allocated by the President) to determine whether and, if so, what orders for relief should be made in the proceedings. Catchwords: APPEAL - leave to appeal - victimisation - application and operation of s 210(2) - applicable principles - complaint made by employee of unsafe workplace due to bullying and intimidation - investigation undertaken - employer found complaint not substantiated - employee redeployed - whether employer rebutted presumption that complaint was not a substantial and operative cause of the detrimental action of redeployment - held - failure at first instance to give adequate reasons - findings at first instance fundamentally inconsistent - delay in delivering decision - Commissioner lost advantage in seeing witnesses - review of credit finding at first instance by Full Bench appropriate - - leave to appeal granted - appeal upheld - Notice of Contention dismissed - Industrial Relations Act 1996, s 210, s 213 - Full Bench to consider itself whether presumption under s 210(2) rebutted and if victimisation found - assessment of evidence - found that presumption not rebutted - victimisation - orders per amended application Legislation Cited: Conciliation and Arbitration Act 1904 (Cth) Fair Work Act 2009 (Cth) Industrial Relations Act 1996 Uniform Civil Procedure Rules 2005 Workers Compensation Act 1987 Cases Cited: Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; 274 ALR 570; [2011] FCAFC 14 Bindaree Beef Pty Ltd v The Australasian Meat Industry Employees' Union, Newcastle and Northern Branch on behalf of Riley [2012] NSWIRComm 74 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 290 ALR 647; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) BC201206652 Bull v Lee (No 2) [2009] NSWCA 362 D'Amore v Independent Commission Against Corruption [2013] NSWCA 187 Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1 Fox v Australian Industrial Relations Commission [2007] FCAFC 150; (2007) 97 ALD 617; (2007) 161 FCR 263; (2007) 166 IR 85 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Humphries v Cootamundra Ex-Services and Citizen's Memorial Club [2003] NSWIRComm 211; (2003) 128 IR 37 Paula Lee and EnergyAustralia [2010] NSWIRComm 1016 Lee and EnergyAustralia [2010] NSWIRComm 157; (2010) 99 IR 350 Lee v EnergyAustralia No 2 [2011] NSWIRComm 1014 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470; (2005) 80 ALJR 367; (2005) 223 ALR 171 Paula Lee v Ausgrid (formerly Energy Australia) [2012] NSWIRComm 1027 Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120 Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92; [2003] HCA 62 Twentieth Superpace Nominees Pty Ltd (t/as Specialised Container Transport) v Transport Workers' Union (NSW) [2006] NSWIRComm 218 (2006) 156 IR 323 Category: Principal judgment Parties: Paula Lee (Appellant) Ausgrid (Respondent) Representation: J L Trew QC (Appellant) J S Darams of counsel (Respondent) Toomey Pegg Lawyers (Appellant) Herbert Smith Freehills (Respondent) File Number(s): IRC 28 of 2013 Decision under appeal Citation: Paula Lee v Ausgrid (formerly Energy Australia) [2012] NSWIRComm 1027 Date of Decision: 2012-12-21 00:00:00 Before: Tabbaa C File Number(s): IRC 1371 of 2009