Kinninmont v Ku-ring-gai Council

Background

1. The applicant was employed as Team Leader Development Assessment (Team North). During the period of the investigation into his conduct and at the time of the termination of his employment, the applicant's employment was governed by the Local Government (State) Award 2017 (the "Award").
2. On 23 April 2018, while the applicant was on annual leave, a member of staff informed the applicant's supervisor's manager, Mr Miocic, of concerns about the applicant's behaviour, and that subsequently, other members of staff complained to Mr Miocic about the applicant's behaviour.
3. On 30 April 2018, the applicant and his support person attended a meeting with: Mr Miocic; the applicant's direct manager, Mr Corrie Swanepoel; and Ms Keato. The applicant was informed at this meeting that allegations about his conduct had been made but details of the allegations were not provided to the applicant. At this meeting, Ms Keato informed the applicant that he would be placed on alternate duties while the allegations were investigated.
4. The applicant was on various forms of leave or suspension from the workplace from 30 April 2018 to 13 September 2018. The respondent's leave system annexed to the affidavit of Mr Kidd sworn 3 May 2019, records the following leave and/or absences from work: 1. 30 April 2018 until 13 July 2018 - sick leave pursuant to cl 21 of the Award supported by medical certificates; 2. 16 July 2018 until 7 August 2018 - sick leave pursuant to cl 21 of the Award supported by a WorkCover medical certificate dated 16 July 2018 stating that the applicant was unfit for work; 3. 8 August 2018 until 20 August 2018 - annual leave pursuant to cl 21 of the Award supported by a WorkCover medical certificate stating that the applicant was unfit for work but he had exhausted his sick leave; 4. 21 to 24 August 2018 -- annual leave pursuant to cl 21 of the Award but not supported by a medical certificate stating that the applicant was unfit for work; 5. there is no record of leave for 27 and 28 August 2018; 6. 29 August 2018 to 10 September 2018 - suspended with pay; and 7. 11 September 2018 to 14 September 2018 - leave without pay.
5. The applicant obtained a WorkCover NSW Certificate of Capacity dated 16 July 2018 and was paid sick leave for the period 16 July 2018 to 7 August 2018. The Workers Compensation insurer, StateCover, disputed liability on 14 November 2018.
6. Pinnacle Integrity ("Pinnacle") was briefed by the respondent to carry out an investigation into the allegations against the applicant. The respondent says that the investigation commenced on or about 2 May 2018.
7. On 3 May 2018 the applicant received a letter dated 2 May 2017. It is accepted that the correct date of the letter should be 2 May 2018. This letter informed the applicant, amongst other things: In accordance with Council's Code of Conduct Administrative Procedures a preliminary assessment of the allegations made against you has been undertaken. Based on this assessment the matter has been identified as a "code of conduct complaint" … In accordance with Clause 6.4(c) of Council's Code of Conduct you are now required to attend an interview in order to address these allegations. During this interview, details of the allegations will be provided to you by the Investigator and a response from you will be sought. You may also elect to provide a written response to the matters at hand and you may request an additional period of time to prepare this. The purpose of this interview is to afford you with an opportunity to respond to the allegations before any determinations are made.
8. The letter referred to in [18] also informed the applicant that he would be interviewed on 8 May 2018 as part of the investigation.
9. On 17 May 2018, Mr Graeme Kelly of the United Services Union wrote to the respondent. The letter contained the following request: … we request that the Council immediately put in writing the allegations with particulars to allow our Member to know the case he has to meet and importantly permit our Member the opportunity to respond fully in writing if required. We consider this a reasonable request and a necessary one having regard to our Member's condition. It will also allow our Member a fair and reasonable opportunity to respond appropriately; noting that Council have requested our Member present relevant information and documents during the interview investigation which is clearly unreasonable given Council has not yet to disclose details of the allegations.
10. On 14 June 2018, the applicant's then solicitors: provided to the respondent a medical report from Dr Maria Annese; sought further particulars of the complaint against the applicant; and informed the respondent that the applicant wished "to submit a written reply to any allegations made against him once he was aware of what they are in sufficient particularity to enable a reply to be prepared".
11. The report from Dr Annese referred to in [21] stated, amongst other things: … [Mr Kinninmont] has been directed to attend an interview whilst not knowing the allegations he has to defend. This has placed him in a very isolated spot. This isolation as well as the lack of knowledge about what the allegations are have meant that his anxiety has become severe … … … I do feel that Mr Kinninmont's symptoms would be alleviated if he were to be provided with any allegations against him in writing and prior to attending any further interview or return to work.
12. On 15 June 2018, the respondent wrote to the applicant's representatives asserting amongst other things: 1. the allegations had not been provided to the applicant because he was "absent from work and certified as unfit for duties"; 2. an independent medical assessment undertaken by Dr Adam Martin of the Australian Medico-Legal Group confirmed: 1. the applicant was "fit to receive specific details of the subject allegations in order to enable the investigation process to proceed"; and 2. the applicant was "unfit for duties in any capacity"; 1. in accordance with the advice summarised in [23(2)], "a letter detailing the specific allegations against [the applicant] is currently being prepared and will be provided to him by close of business on 22 June 2018"; and 2. the respondent was seeking "further clarification from Dr Martin as to [the respondent's] fitness to attend an interview (following receipt of the written allegations) in order to afford him the opportunity to respond to the matters at hand".
13. On or around 25 June 2018, the respondent informed the applicant of the details of the three allegations.
14. The allegations and the findings of Mr White as set out in the Report prepared by Pinnacle (see below at [34]) are: Allegation 1 a) It is alleged that between 2006 and 2018 Mr Kinninmont acted contrary to Part 3, General Conduct Obligations, of the Ku-ring-gai Council Code of Conduct, in that you acted in an intimidating and bullying manner towards staff members. … Sustained b) In 2006 and 2007 Mr Kinninmont demonstrated behaviour towards a female staff member by physically standing over her, invading her personal space and playing 'mind games' with her. … Not sustained c) lt is alleged that Mr Kinninmont asked a female staff member if she was a lesbian. Mr Kinninmont also questioned her about her divorce which caused her to cry and then he said, ''You show your weakness at work by crying." On another occasion Mr Kinninmont questioned her partner's virility. His behaviour towards her caused her to avoid Mr Kinninmont, notwithstanding he was her then team leader. She considered Mr Kinninmont's behaviour to be bullying, harassing and intimidating. … Sustained d) Between 2007 and 2014 Mr Kinninmont isolated a female staff member in the workplace causing her work colleagues to avoid acknowledging her. She cited an example where she and another officer arrived at work to find, unbeknownst to them, that Mr Kinninmont and other team members had taken a flex day to go on a boat. The isolation caused her to be distraught and she would cry, felt scared, threatened and alone. … Not sustained e) In August 2016 a male staff member, after being tasked by his Manager, submitted an assessment report to Mr Kinninmont concerning the Gordon Airbridge. Mr Kinninmont publicly and aggressively berated him and accused him of being deceitful, disrespectful and cutting him out of the process in directly dealing with his Manager. The staff member was embarrassed and humiliated. To avoid any further confrontation with Mr Kinninmont, the staff member changed his behaviour to not engage anyone at work other than for work purposes. … Sustained f) In March 2018 Mr Kinninmont approached a male staff member about an email from another department to him, concerning a modification in an unrelated matter. Mr Kinninmont questioned him about the application and accused him of being disrespectful and of going behind his back and speaking to the Manager about the matter. … Not sustained g) In April 2018 a female staff member was tasked by the Manager and in responding by email to the Manager copied in Mr Kinninmont. Mr Kinninmont accused her of undermining him and demanded an apology for doing the wrong thing by you and for grandstanding. She feared that challenging Mr Kinninmont would result in him allocating her additional work to Inundate her in retaliation. … Sustained h) It is alleged that between 1 January and May 2018, being aware of a staff member's involvement in the Council-related dismissal of another council employee, Mr Kinninmont said to her that she was the reason that the officer lost her job. She considered Mr Kinninmont's comments in her presence about the officer to be emotional harassment. … Sustained Allegation 2 a) It is alleged that on known and unknown dates between 2006 and May, 2018 Mr Kinninmont acted contrary to Part 3, General Conduct Obligations, of the Ku-ring-gai Council Code of Conduct, In that Mr Kinninmont acted in an offensive manner in making comments to his staff. … Sustained b) On an unknown date Mr Kinninmont made comment "Nice tits", regarding a female staff member's anatomy after seeing a photograph of her and her husband. She said the comment made her feel uncomfortable. A witness to the exchange stated the comment was Inappropriate, demeaning and sexually Inappropriate. The officer found the comment offensive. … Not sustained c) On an unknown date in a conversation with a female staff member, Mr Kinninmont named a staff member and said that the staff member "masturbated" about another named Council employee. The officer found the disclosure mortifying and unprofessional with confidence being breached. … Not sustained d) On separate occasions on unknown dates Mr Kinninmont said to male staff member, that he was a "fucktard" and said of another absent staff member that ''He is a cunt." … Sustained e) In early 2018 Mr Kinninmont approached a female staff member and asked her what her opinion was of "golliwogs". She found the comment to be a racial slur and inappropriate. … Sustained f) On 17 April 2018 Mr Kinninmont asked a male staff member whether he was upset at this stage of his life that he did not have a wife or investment property. He found the comment offensive. Sustained Allegation 3 a) It is alleged that Mr Kinninmont has acted contrary to Part 3, General Conduct Obligations, of the Ku-ring-gai Council Code of Conduct, in that he regularly absented himself from the workplace without management or other approval. … Sustained b) Frequented the gym or other non-work-related activities; advising staff members not to schedule meetings between 12pm and 2pm as that was his "gym time". … Sustained (c) Dally sign in / sign off records on time sheets do not correlate with other records relevant to his arrival and departure from the workplace. … Sustained
15. The applicant's then legal representative wrote to the respondent on 29 June 2018 stating, amongst other things: 1. Mr Kinninmont wishes to respond to the allegations in writing. Our client will respond as his state of health permits. To require him to do otherwise would be an unjustified interference with his right to take sick leave; 2. The Council, despite requests from our client to be informed of the allegations made against him, refused to provide them to him prior to your letter and thereby exacerbated his current illness. … … 4. All allegations need to be examined and recast, if pressed, having regard to the date of the adoption of the Code of Conduct by the Council in fairness to our client. Our client will await receipt of the re-stated allegations before completing his written response and in that regard will need at least two weeks to do so following receipt of the re-stated allegations.
16. The applicant's then legal representative wrote to the respondent on 4 July 2018 stating, amongst other things: … Mr Kinninmont will answer the allegations in writing as his state of health permits.
17. On 17 July 2018 the applicant provided a written response to the allegations of over 25 pages together with 90 pages of annexures ("Written Response to the Allegations"). The respondent says that the applicant did not request an interview prior to the investigation being concluded or that further persons be interviewed by the respondent in the Written Response to the Allegations or at all.
18. In the concluding remarks of the Written Response to the Allegations the applicant states: 162. I have not been able to reply in full to the various allegations because of the inadequate particulars which have been given to me. As indicated in the body of my response I may wish to supplement these submissions once I receive the particulars I have sought. … 164. Once the allegations are properly particularised I will need a reasonable time to consider them. I would be prepared to consider making a statutory declaration incorporating my response in due course. 165. I reserve all my rights regarding appropriate compensation for the dislocation of my life, inconvenience, loss of reputation, expense and continuing illness this investigation has caused.
19. The applicant says in his affidavit sworn 17 December 2018: 14. … I expected a response to my request for further information and a further opportunity to be provided so that I had a full and proper opportunity to respond to the allegations against me, in particular at interview. At no time during this investigation or even upon request for details was I told who the investigator was or receive any correspondence or communication at all from them.
20. On 25 July 2018 Mr Shane White of Pinnacle emailed Mr Kidd raising two issues arising from the applicant's response to the allegations for consideration. The issues were: a "procedural fairness" point raised by the applicant about further particulars of some allegations including the names of witnesses; and speaking to witnesses about the allegation of the applicant's absence from the workplace and possible inaccurate time recording.
21. On 31 July 2018 Mr Kidd emailed Mr White. This email included the following: For the matter of simplicity, Mr Kinninmont has accurately identified the officer(s) related to a number of specific allegations, and a few where he has it wrong. He has not provided any mitigating factors in his response to the time sheet recording and reconciliation against the car park access and egress records. … Council considers that Mr Kinninmont has been provided with sufficient information in order to enable him to respond to the allegations which is in fact evidenced by his response. Can Pinnacle please advise on how many matters we would be able to finalise if we were to set aside the allegations Mr Kinninmont was unable to sufficiently respond to due to what he claims to be 'lack of detail'? Based on this, we would be seeking to finalise the matters he has accurately identified the complainant and responded to, after which we can further examine the other matters should this be necessary.
22. The respondent says that where the applicant had not been able to identify the complainant correctly from the information the respondent had provided to him, the respondent did not proceed with any action in respect of those allegations.
23. The respondent says Mr Kidd received a draft of the report from Pinnacle on 9 August 2018 and, on 13 August 2018, Mr Kidd received the final version of the report from Pinnacle ("Pinnacle Report").
24. The respondent says that on or about 9 August 2018 Mr Kidd forwarded the draft report from Pinnacle to Ms Keato and, on 14 August 2018, Mr Kidd provided the Pinnacle Report together with a summary of the Pinnacle Report prepared by him to the then Acting General Manager, Mr David Marshall ("Summary Report"). The Summary Report included the following: CONCLUSION All participants to this investigation requested that the confidentiality of their identity be maintained based on fears they held about their safety and repercussions from Mr Kinninmont, only broad allegations were able to be put to Mr Kinninmont; as such, whilst all allegations were provided to Mr Kinninmont, certain particulars were excluded which might tend to identify those persons. As a consequence, Mr Kinninmont claimed that he did not have sufficient detail to properly respond to those allegations. After consideration and in the interests of procedural fairness, Council determined not to proceed with those matters. As such, they are not relied upon as evidence in the investigation, nor has it been taken into consideration in determining Mr Kinninmont's behaviour on the balance of probabilities, and the benefit of the doubt was extended to Mr Kinninmont in these cases. Notwithstanding the above consideration, there was sufficient evidence provide during the course of the investigation to support the veracity of nine (9) of the fourteen (14) allegations regarding Mr Kinninmont's behaviour having occurred as a pattern of behaviour, and a group of people, repeatedly. … RECOMMENDATION … 1. Mr Kinninmont is provided a copy of the Summary Investigation and requested to provide a response. 2. A review of the response is undertaken to identify any new or mitigating factors. 3. Following this review, if no new or mitigating information is provided, Mr Kinninmont's employment contract is terminated.
25. The respondent says that on 16 August 2018, Mr Marshall authorised the action in the recommendations provided to him by Mr Kidd and set out in [35].
26. On 28 August 2018 Mr Miocic, on behalf of the respondent, sent to the applicant a letter which: attached the Summary Report which set out the findings of the investigation including that each of the allegations had been sustained, and the recommendation that as a consequence the applicant's employment be terminated "on the basis of [his] failure to comply with Council's Code of Conduct"; attached the Council's Code of Conduct; and invited the applicant to respond within one week to the recommendation that his employment be terminated ("Show Cause Letter") as follows: Your written response, detailing the reasons for your behaviour and any basis upon which you believe Council should reconsider the recommended action, is required to be provided to me by 5pm on Wednesday 5 September 2018. A meeting can be convened should you wish to provide your response in this context so please advise me prior to the aforementioned date if this is your preference.
27. On 29 August 2018 Ms Keato informed the applicant by email of the sub-allegations relied upon to sustain the three allegations and those sub-allegations not relied upon by the respondent in determining the outcome or the recommendations. There were a number of errors in the numbering of the sub-allegations in the email of 29 August 2018 which caused confusion. These errors were corrected by Ms Keato in an email to the applicant on 30 August 2018 which set out a detailed description of the allegations together with the finding or whether the allegation was not relied upon. Although this numbering does not reflect the way the allegations were set out at [25] the information contained in the email of 30 August 2018 accurately reflected the findings in the Pinnacle Report.
28. The respondent then gave the applicant until 7 September 2018 to respond to the recommendations.
29. Ms Harvey, the applicant's solicitor in these proceedings, wrote to the respondent on 5 September 2018 informing the respondent that the applicant required certain questions to be answered and sought confirmation that the respondent would hold the time in abeyance for the applicant to respond.
30. The respondent wrote to the applicant on 5 September 2018 responding to the applicant's questions and informing the applicant that the time to respond to the recommendation that the applicant's employment be terminated remained 7 September 2018.
31. On 6 September 2018, the applicant commenced the Threatened Unfair Dismissal Application which included the following: 10. In the event that the Respondent does not agree to maintain the status quo prior to conciliation and/or hearing of this matter, or withdraw the proposed disciplinary action of dismissal, the Applicant will be making an interlocutory application for such an order.
32. On 7 September 2018 at 12:24 PM, the applicant's legal representative, Ms Harvey, sent an email to Ms Keato attaching the Threatened Unfair Dismissal Application. This email was copied to Mr McKee and Mr Miocic. In this email the applicant's legal representative sought confirmation that the respondent would withdraw any contemplated disciplinary penalty and not terminate the applicant's employment until the Threatened Dismissal Application was determined.
33. Mr McKee deposes in his affidavit sworn on 12 February 2019 that he "does not recall reading the content of the email … [He] did not open the file attached to the email [the Threatened Unfair Dismissal Application] and [doesn't] recall recognising at the time that there was an attachment" to the email referred to in [43].
34. On 7 September 2018 at 12:27 PM the applicant sent an email to the respondent responding to the Show Cause Letter ("Response to the Show Cause Letter"). The respondent says that the Response to the Show Cause Letter was the first time that the applicant informed the respondent that he sought to be interviewed and requested certain persons be interviewed.
35. The respondent says that the applicant's request to be interviewed in the email referred to at [45] occurred following the deadline the applicant had been provided to make such a request. The respondent says that in accordance with the content of the Show Cause Letter the applicant was required to inform the respondent if he wished a meeting to be convened before the "aforementioned date" of 5 September 2018 as set out in the letter of 28 August 2018 which was extended to 7 September 2018 as set out in paragraph [38], thus the respondent says the request needed to be made before the date of 7 September 2018.
36. On 7 September 2018 at 12:50 PM, Ms Keato sent an email to the applicant's legal representative in which she stated: … [Mr Kinninmont's] response to the investigation findings and recommendations will now be considered in the context of the information examined during the investigation process and a final recommendation will be made. I anticipate that Mr Kinninmont will be advised of the outcome of this process next week.
37. At 12:54 PM on 7 September 2018 the applicant's representative responded to the email referred to in [47] stating that the applicant "requires an opportunity to meet and provide additional response materials".
38. At 1:19 PM on 7 September 2018, the applicant's legal representative repeated the request for confirmation that the respondent would withdraw any contemplated disciplinary penalty and not terminate the applicant's employment until the Threatened Unfair Dismissal Application was determined.
39. There were further exchanges of emails on 7 September 2018 as to the date by which the applicant was to notify the respondent whether he wanted an interview.
40. Mr Kidd prepared an analysis of the Response to the Show Cause Letter referred to in [45] which he provided to Ms Keato on 11 September 2018 ("Review of the Response to Show Cause").
41. On 11 September 2018 the applicant's solicitor repeated the request referred to in [49].
42. Mr McKee says that on 11 September 2018 he received an email from Ms Keato seeking approval to terminate the employment of the applicant with several attachments being the Pinnacle Report; the Response to the Show Cause Letter and the analysis prepared by Mr Kidd referred to at [51]. Mr McKee says he: reviewed the material he had been provided concerning the applicant; formed the view that the matters may amount to serious misconduct; and approved the decision to dismiss the applicant.
43. The applicant was informed of the termination of his employment effective immediately by letter from Mr McKee dated 13 September 2018. The letter set out the allegations that had been sustained and stated: In summary, the allegations that you have acted contrary to Sections 3.1, 3.2 and 3.3 of Council's Code of Conduct and Council's Bullying and Harassment Free Workplace Policy against Council staff and have falsified timesheet recordings are substantiated.
44. Mr McKee says that he saw the Threatened Unfair Dismissal Application for the first time on 28 November 2018 and that he did not have any discussions with Ms Keato about that application prior to the termination of the applicant's employment.
45. Mr McKee deposes in his affidavit sworn 12 February 2019: 15. I reviewed the documents provided to me and noted the allegations that had been substantiated. Based on these documents alone (and my understanding of the allegations) I formed the view that the allegations that had been substantiated in the investigation were capable of amounting to serious misconduct. 16. I provided the approval for the termination of Mr Kinninmont's employment by email to Ms Keato on 11 September 2018. … I did not discuss the matter with Ms Keato before sending that email. 17. I did not take the threatened unfair dismissal application into account in forming my views regarding the outcome of the investigation. The threatened unfair dismissal application played no part in any of my decisions given I was unaware of the claim at the time I approved the termination of Mr Kinninmont. The termination arose for the reasons set out in the termination letter.

The Statutory Scheme

1. The Amended Victimisation Application is made pursuant to s 213 of the IR Act which relevantly provides: (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).
2. The primary provision in the IR Act for victimisation claims is s 210 which relevantly provides: (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person - ….. (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 ... (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action.
3. There is no definition of "victimise" in the IR Act.
4. In Public Service Association of New South Wales v Teterycz [1998] NSWIRComm 415, the Full Bench considered the meaning of "victimisation": ...the word "victimise" in s 210 should be construed on a basis which corresponds with the meanings of the word "victim" where last appearing in the definition of that word, namely, "one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like". The word "victimise" is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience, etc"; and where used in s 210 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/her employment".
5. In Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance [2017] NSWIRComm 1036 ("Bruce") Commissioner Newall considered, at [16] to [21], the construction and operation of the rebuttal presumption pursuant to s 210(2). Commissioner Newall stated (at [16]): As the Commission pointed out in Graham Davis v Amalgamated Television Services Pty Limited [1998] NSWIRComm 289, 'victimisation' itself is not defined in terms in the Act. In my view its meaning is to be inferred from the provisions of subs. 210(2), which refers to an employee 'suffering any detriment'. The statutory scheme therefore operates by setting out in subs.210(1) a series of bases on which an employer is prohibited from acting toward an employee, and then by providing that where a 'detriment' is suffered by an employee by reason of 'detrimental action' by the employer, there is a rebuttable presumption that the detriment was for one of the prohibited reasons set out in s.210, if the necessary underlying factual situation contemplated in any of the sub-sections of s.210 can be established.
6. On the question of onus, in Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 ("Superpace"), the Full Bench observed at [43]: ...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 industrial organisation and the alleged cause of that detriment falls within the classes of victimisation in s 210(1), then it is presumed 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(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 purposes of that sub-section). 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".

The pleadings and the reverse onus

1. The applicant alleges at paragraph 5 of the Amended Victimisation Application that the respondent victimised him by: (a) Terminating the employment of the Applicant because of the threatened dismissal proceedings (s 210 (1)(g)); and/or (b) Failing to apply correct policy and procedure in relation to investigation and disciplinary action because of the threatened dismissal proceedings; and/or (c) Failing to provide procedural fairness and natural justice because of the threatened dismissal proceedings; and/or (d) Ignoring claims in respect of section 210(1)(e) and (f); (e) Failing to: (i) apply correctly the policies and procedures set out at paragraph 9a, 9b, and 9c under the heading "B: Particulars of Victimisation"; and (ii) provide procedural fairness because of the Applicant's use of leave entitlements pursuant to cl 21 of the Local Government State Award 2017 ("Local Government Award"); (f) Closing the investigation prematurely and without warning because of the Applicant's use of leave entitlements, pursuant to cl 21 of the Local Government Award.
2. The Amended Victimisation Application states at paragraph 6: The employment of the Applicant was terminated by the Respondent in circumstances where: (a) Threatened dismissal proceedings were on foot; (b) The Respondent had been served with a copy of initiating process for threatened dismissal proceedings IRC 2018/273735; (c) A request was made of the Respondent, a model litigant, to preserve the status quo until conciliation or the hearing of the threatened dismissal proceedings; (d) The respondent did not answer the request or engage in reasonable communications with the Applicant's representatives regarding preservation of the status quo; (e) The respondent has not taken steps it is legally obligated to take in relation to the proposed disciplinary action and the Applicant's response to it; (f) Over the course of the investigation into the Applicant's conduct the Applicant utilised various forms of leave in clause 21 of the Local Government State Award 2017 ("Local Government Award"), being benefits to which the Applicant is entitled under the industrial relations legislation or an industrial instrument.
3. The Amended Victimisation Application states at paragraph 7: The threatened dismissal proceedings set out the deficiencies in the investigation process, allegations, and are relied upon in this victimisation claim.
4. The applicant did not state in paragraph 7 whether the alleged failures are relied upon as a detriment, a cause of a detriment, or as context.
5. In opening submissions the applicant's claim was described by his counsel as: 1. the detriment of the Dismissal was because of the Threatened Unfair Dismissal Application, the proposed injunctive proceedings, and because the applicant sought a benefit under cl 36 of the Award, that is the applicant sought that the investigative procedures that had not been followed, be followed, and the relevant benefit under the Award is evident from the content of the Threatened Dismissal Application; 2. the respondent's failure to complete the investigation in accordance with its procedures and the relevant guidelines and cl 36 of the Award was a detriment, and this detriment was because of the Threatened Unfair Dismissal Application, the proposed injunctive proceedings and because of the fact that he was on leave pursuant to cl 21 of the Award; 3. the detriment that the applicant did not receive a response in relation to the request that the status quo remain pending the threatened legal proceedings was because of the Threatened Unfair Dismissal Application.
6. After the hearing of the evidence in these proceedings, the applicant summarised his case in his final written submissions as: a. [he] was dismissed from his employment … (detriment) because of: i. the threatened unfair dismissal proceedings; ii. the threatened injunctive proceedings; or iii. the benefit the Applicant had under clause 36 of the Local Government State Award 2017 (Award); b. the Respondent failed to undertake and complete the investigation into the complaints made against the Applicant in accordance with the relevant policies, procedures and guidelines (detriment) because of: i. the threatened unfair dismissal proceedings; ii. the threatened injunctive proceedings; or iii. the leave over the period of the investigation the Applicant took pursuant to clause 21 of the Award; c. the failure by the Respondent to respond to the request that the status quo remain (detriment) because of: i. the threatened unfair dismissal proceedings; or ii. the threatened injunctive proceedings.
7. The applicant also included with his final written submissions a table of what he purports to be 33 specific detriments suffered by him: 1. Guillotine of investigation; 2. Failure to let investigator complete the investigation; 3. Failure to let investigator interview additional witnesses; 4. Failure to interview witnesses identified in the applicant's response to the allegations; 5. [Failure to provide the revised allegations letter as recommended by investigator for the purpose of procedural fairness]; 6. Failure to obtain the investigator's full consideration of the response of the applicant; 7. Substitution of the respondent's own legal conclusions about the evidence for that of independent investigator; 8. Failure to communicate with applicant about status of the investigation; 9. Failure to advise the applicant the investigation was concluding; 10. Failure to ensure the applicant was provided with an interview pursuant to undertaking by the respondent; 11. Potentially the skipping of policy steps around meeting with the General Manager; 12. Failed to advise the applicant the Procedures for Administration of the Code of Conduct would not be applied; 13. Assertion that there was non-participation in the investigation by the applicant; 14 [Left Blank]; 15. Detriment because of 5 (b) (c) & (d)] of the Victimisation claim arising because of threatened dismissal proceedings (which includes the threatened interlocutory relief); 16. Failure of the respondent to arrange interview of the applicant by the investigator; 17. Failure to arrange interview by the investigator of witnesses nominated by the applicant in his response to the show cause, which again names witnesses both in the response and the threatened dismissal proceedings which formed part of the response; 18. Failure to interview witnesses nominated by the applicant at all; 19. Substitution of the opinion of Rodney Kidd for that of the independent investigator; 20. Errors and omissions by Rodney Kidd in analysis of show cause response, including failure to identify consistency in the procedural fairness steps required by the investigator and expressly requested by the applicant, untruthfulness/negligence or oversight in the analysis of the show cause response capable of affecting a decision to terminate employment; 21. Speed of decision-making and related failure to give due and proper consideration to concerns raised/requests made and the response; 22. Failure to meet with the applicant as requested to discuss his response to the show cause; 23. Failure to continue/reopen an investigation the respondent incorrectly considered closed; 24. Procedural unfairness created by Rodney Kidd assessing the response to the show cause without input from the investigator; 25. Failure to respond to status quo request (request to maintain employment during threatened dismissal proceedings); 26. Failure of Rodney Kidd to consider threatened dismissal application which formed part of the show cause response; 27. Failure of John McKee to fully consider the threatened dismissal application which formed part of the show cause response; 28. Removal of the threatened dismissal application from material sent to the decision maker, given it included details of procedural unfairness and witnesses he believed should be interviewed; 29. Failure to provide the meeting with the general manager to provide the decision; 30. Failure to respond to requests or questions; 31. Failed to advise the applicant the Procedures for Administration of the Code of Conduct would not be applied; 32. [left blank]; and 33. Dismissal in the absence of all above being detriment under 5a of the victimisation claim. (Emphasis in original)
8. The applicant submits that each of the alleged detriments in the table referred to in [69] was suffered by him because of: the Threatened Unfair Dismissal Application; the threatened injunctive proceedings; or the leave he took pursuant to cl 21 of the Award over the period of the investigation.
9. The table was amended during oral submissions, amongst other things, to include number 5 and amend number 21 as set out above. An examination of the contents of the table discloses: 1. number 2 duplicates number 1; 2. number 4 duplicates number 3 and substantial overlap with numbers 17 and 18; 3. number 7 duplicates number 6 and substantial overlap with numbers 19, 20, 24 and 26; 4. number 9 duplicates number 8; 5. number 16 overlaps with number 10; 6. substantial overlap of numbers 22 and 29 with number 11; 7. number 31 duplicates number 12; 8. numbers 14 and 32 are blank; 9. number 15 appears to be a heading, 10. number 25 restates the separately identified failure to respond to the request to maintain the status quo; 11. number 30 to some extent duplicates number 25 to some extent; and 12. number 33 is a conclusion rather than an asserted detriment.
10. The respondent aptly describes the applicant's claims in these proceedings as "a moveable feast in respect to the alleged action caught by s 210 and the alleged detriments or detrimental action" and says that the applicant should not be allowed to make additional claims by way of final submission particularly given the reverse onus on the respondent.
11. Comparing the claims set out in the applicant's final submissions and referred to in [68] with the claims set out in the Amended Victimisation Application: 1. there were no claims at paragraph 5 of the Amended Victimisation Application, the paragraph which sets out the allegations of victimisation, that the Dismissal was as a consequence of the injunctive proceedings or because of the benefit to which the applicant was entitled under cl 36 of the Award or because the applicant sought that the investigative procedures that had not been followed, be followed; 2. there were no claims at paragraph 5 of the Amended Victimisation Application that the alleged failure to undertake and complete the investigation into complaints made against the applicant in accordance with relevant policies, procedures and guidelines was as a consequence of the injunctive proceedings being a breach of s 210(1); and 3. there was a lack of clarity in the applicant's allegations in the Amended Victimisation Application about the respondent's failure to respond to the request in the correspondence of 6 and 7 September 2020 referred to at [42] and [43] which requested the respondent to preserve the status quo. The respondent's alleged failure to respond was not set out in paragraph 5 of the Amended Victimisation Application as a claim of victimisation or a detriment. Paragraph 6 sets out the alleged circumstances of the Dismissal and sub-paragraphs 6(c) and (d) refer to the alleged failure of the respondent to respond to the status quo request at the time of the Dismissal. These paragraphs do not allege that the failure to respond was a detriment nor that the failure to respond was a detriment. Importantly, there is no claim in the Amended Victimisation Application dealing with a failure to respond to the status quo request because of the threatened unfair dismissal proceedings or because of the threatened injunctive proceedings; and 4. there is no claim at all in relation to the threatened injunctive proceedings.
12. The respondent says that the claims not set out in the Amended Victimisation Application should not now be considered by the Commission and if the Commission were to move beyond the Amended Victimisation Application then the respondent would be denied procedural fairness. The respondent submits that the Commission should hold the applicant to the Amended Application in respect to both the alleged "breaches" of s 210(1) and the alleged detriments for each of those breaches.
13. In his final submissions the applicant does not press separately the claim that the respondent failed to provide procedural fairness and/or natural justice because of the Threatened Dismissal Application as alleged in paragraph 5c or because of the leave he took as alleged at paragraph 5e. However, the table referred to in [69] which the applicant says are detriments suffered by him includes particulars of the alleged failure to provide procedural fairness and natural justice steps within the relevant procedures, policy and guidelines.
14. In Paula Lee v Energy Australia (No 4) [2011] NSWIRComm 120, in discussing s 210, the Full Bench considered at [10] to [11] the public interest of the reverse onus and the importance of requiring the employer to adduce evidence to displace this: [10] The respondent bears the onus of rebutting a statutory presumption that the appellant was victimised by the redeployment. [11] Section 210(2) is Parliament's recognition that the reasons for detrimental action against an employee are, of necessity, peculiarly within the knowledge of the employer. Therefore, to avoid liability the employer must negate the statutory presumption that its conduct has been for the reasons condemned by s 210(1): Heidt v Chrysler Australia Limited (1976) 13 ALR 365 at 373. The statutory imposition of the reverse onus is not a technical requirement; it serves the important public interest of ensuring that justice is done and that the legislative prescription is not defeated by the inability of an applicant to adduce evidence upon a central issue.
15. In Bruce Commissioner Newall considered the importance within the sequence of determinations by the Commission in a victimisation matter of the finding of a detriment because once the detriment is determined, the reverse onus applies: 19 The finding as a matter of fact that a detriment has occurred is a serious finding. It gives rise to a presumption that the Act has been breached. It is a finding to be made at the civil standard of proof. 20 Of course, it is clear from a comparison of the provisions of Part 1 of Chapter 5 of the Act with the predecessor provisions, which required victimisation to be established at a criminal standard of proof, that the present provisions were drafted with an intention that it be less difficult to establish a circumstance of victimisation. So far as it is relevant, the Second Reading Speech (23 November 1995) makes that express assertion, and as the Full Bench of the Commission observed in Twentieth Superspace Nominees, s.210 is a protective provision and ought be so construed. 21 Nevertheless a finding that there has been a 'detriment' is one which could not be made on the basis of indirect inferences, and certainly not by assumption. Such a finding could only be made on evidence, and in my view a finding that there has been a detriment is a finding of sufficient gravity that the cautionary words of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 ought be borne in mind in assessing the evidence, a view that is reinforced by the provisions of s.140 of the Evidence Act 1995.
16. The nature of proceedings under s 213 of the IR Act, and the obligation on the respondent to adduce evidence of the central issue to rebut the reverse onus mean there is a need for an allegation to identify precisely and distinctly the alleged reason, or the alleged intent, for the contravening conduct so that the respondent can lead evidence in the proceedings to rebut the presumption. An applicant wishing to take advantage of the presumption, in addition to making the allegation in a form that meets the requirements of s 210, must provide sufficient information about the action, and the related reason and/or intent for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of s 210.
17. Before an employer can disprove an alleged contravention it must be clearly stated. It is impermissible in this statutory scheme to require the respondent to distil or interpret, or go looking for, the allegations to which it must respond, and about which it must lead evidence in order to displace the presumption. It is not sufficient for the applicant to assert that the respondent could have asked for further and better particulars. Although the Commission is not a court of strict pleadings, this does not absolve a litigant from being required to enunciate its case in a consistent and clear manner and the respondent cannot be held to the reverse onus in respect of matters not clearly articulated in the Amended Victimisation Application but raised in final submissions.
18. The applicant did not seek to further amend the Amended Victimisation Application, seek an extension of time to rely on additional grounds, or give reasons why the claim could not have been formulated in the manner set out at [68] above. I agree with the respondent that the applicant must be held to the claims in the Amended Victimisation Application with respect to both the alleged breaches of s 210(1) and the alleged detriments caused by each of those breaches.
19. To the extent that the applicant has re-cast his claim as summarised in his written submissions and final oral submissions in a manner which expands, or is different from, the claims set out in the Amended Victimisation Application, the respondent cannot be held to the reverse onus in respect of any new alleged detriments or alleged breaches of s 210(1) submitted at that point in the proceedings.
20. The Amended Victimisation Application does not clearly identify the alleged failure to respond to the status quo request as a detriment nor articulate the cause said to be in breach of s 213 of the IR Act for this alleged detriment. It would be procedurally unfair to force the respondent to satisfy the Commission on the civil standard of proof, that the Threatened Unfair Dismissal Application and the threatened injunctive proceedings were not substantial and operative causes of the alleged detriment of the failure to respond to the status quo request.
21. The respondent cannot be required to displace the reverse onus with respect to matters alleged in the table filed with the applicant's final submissions that go beyond the allegations in the Amended Victimisation Application particularly given the lack of exactitude or care demonstrated in the preparation of the table. The detriments contained in the table set out at [69] are not accepted as separate grounds of detriments in addition to the matters set out in the Amended Victimisation Application, nor are they accepted as particulars of the matters pleaded in the Amended Victimisation Application unless there is a sufficient, relevant reference to these particulars in the Amended Victimisation Application. I also do not consider that the respondent can be required to displace the presumption in relation to matters that were included in the Threatened Unfair Dismissal Application but not set out in the Amended Victimisation Application other than by the purported reliance in paragraph 7.

The detriments in the Amended Victimisation Application

1. In order for his application to be successful, the applicant must first establish on the evidence, the detriment he suffered as a result of action by the respondent: Superpace at [43].

The Dismissal

1. The respondent concedes that terminating the applicant is a detriment for the purposes of s 210 of the IR Act.

Alleged failure to undertake and complete the investigation into complaints made against the applicant in accordance with policies, procedures and guidelines

1. The applicant says that the following policies, procedures and guidelines were not properly followed by the respondent and relies on this failure as a detriment: 1. Procedures for the Administration of the Code of Conduct ("Code of Conduct Procedures") which the applicant says the respondent represented to the applicant applied; 2. Local Government Industry Guidelines on Workplace Investigations made pursuant to cl 36C(i) of the Award ("Guidelines"); and 3. Code of Conduct Investigation Procedure ("Council Investigation Procedure").

Code of Conduct Procedures

1. The respondent conceded during the hearing that the Code of Conduct Procedures were not applied to the applicant but says the applicant incorrectly asserts that parts of the Code of Conduct Procedures apply to him where they do not.
2. Part 5 of the Code of Conduct Procedures states: 5.4 Enquiries made into staff conduct that might give rise to disciplinary action must occur in accordance with the relevant industrial instrument or employment contract and make provision for procedural fairness including the right of an employee to be represented by their union.
3. The respondent says the effect of cl. 5.5 of the Code of Conduct Procedures is that despite the content of the letter dated 2 May 2017 referred to at [18], the parts of the Code of Conduct Procedures dealing with investigation and disciplinary action do not apply to the applicant, rather it is the Award and contract of employment which are the relevant documents or instruments which apply to employee disciplinary matters.
4. The applicant says that he was advised by the respondent that the Code of Conduct Procedures applied to him but he was never informed by the respondent that these procedures did not apply to him at any time prior to the Dismissal; thus he had an expectation these procedures would be applied. Consequently, the applicant asserts that the respondent was obligated to apply the Code of Conduct Procedures because of its representations to the applicant and estopped from asserting that they did not apply to the applicant and argues that the Code of Conduct Procedures were incorporated into the applicant's employment contract.
5. The applicant is correct that there was nothing preventing the respondent from applying the Code of Conduct Procedures. I do not consider it is necessary in this claim for victimisation to consider whether the Code of Conduct Procedures were incorporated into the applicant's employment contract because I agree with the applicant that even if the respondent was not legally obligated to apply all of the provisions of the Code of Conduct Procedures, on the evidence before the Commission the applicant had a reasonably held expectation, based on representations from the respondent, that the Code of Conduct Procedures would be applied to him, and the respondent admits certain parts were not applied.
6. I accept that the applicant suffered a detriment by the respondent not applying the Code of Conduct Procedures when the respondent had previously represented it would apply these procedures.

Guidelines

1. The applicant claims that s 440AA of the Local Government Act 1993 (NSW) and the Guidelines require that he and any witnesses be interviewed. The applicant claims that the respondent breached the Guidelines by not interviewing the applicant after 7 September 2018 because the Threatened Unfair Dismissal Application was served on the respondent.
2. The applicant says that even if the rights under the Guidelines apply only to the investigation and do not exist once the investigation is complete, which he accepted in cross-examination, the Guidelines gave him an entitlement to be interviewed during evidence gathering in the investigation and prior to the Show Cause Letter being sent on 28 August 2018. Despite this, under cross-examination, the applicant also: 1. acknowledged he was provided with the findings from the investigation in the respondent's letter dated 28 August 2018; 2. said there were no other provisions of the Guidelines that were not complied with after the investigation was completed; 3. accepted that his legal representatives said he would respond to the allegations in writing; and 4. accepted that there was no request by him to be interviewed for the purpose of responding to the allegations, and prior to September 2018 there was no written request by him to be interviewed or for nominated witnesses to be interviewed.
3. Accordingly, the applicant has not established on the evidence that the respondent failed to apply the Guidelines.

Council Investigation Procedure

1. The applicant sets out in his written submissions the main clauses in the Council Investigation Procedure he alleges have been breached in addition to those identified in the detriment table as follows: a. Clause 1.2.4 - the investigator is not setting out to prove that a person is guilty of an offence. They are setting out to gather facts. All relevant facts must be gathered, not only those that include a person's involvement into a complaint. b. Clause 1.2.4 - Parties involved in an investigation process are entitled to identify witnesses in order to verify the information they have provided and the investigator is required to make an assessment of the validity and need to interview such witnesses provided by the parties. c. Clause 1.2.5 - The investigator must always be independent and must be seen to be independent. d. Clause 1.2.7 - Where there is a conflict between maximising the effectiveness of the investigation as a means of getting to the truth and ensuring appropriate fairness is afforded to the relevant officer council will give priority to ensuring that the council officer is treated fairly. e. Clause 2.1.4 - When possible the investigator is to provide the complainant and respondent, with a status report on where the investigation is up to and an expected time for completion, as the investigation progresses. f. Clause 2.1.5 - A meeting with the Council employee against whom the allegations are made will be arranged where they will be advised of the outcomes of the investigation and any recommendations agreed to by the General Manager. g. Clause 2.1.5 - Following determination by the General Manager, a meeting will be arranged with the employee where they will be advised of the outcomes of the investigation and any recommendations agreed to by the General Manager.
2. Mr Kidd gave evidence that it was his decision not to interview Mr Walsh and Mr Bax in respect of Allegation 3. Reading cll 1.2.4 and 1.2.7 together, it is my view that there was a decision to prioritise the efficiency of getting to the truth, rather than prioritising procedural fairness to the applicant by virtue of Mr Kidd's decision to reject the investigator's "assessment of the validity and need to interview such witnesses provided by the parties". Further, Mr Kidd agreed in cross-examination that in his view he had breached cl 1.2.7 of the Council Investigation Procedure.
3. I also accept that there has been a failure to apply strictly the terms of cl 2.1.5.
4. I do not accept that the decision of Mr Kidd not to accept the recommendation of Mr White to interview Mr Walsh and Mr Bax or provide additional details to the applicant as set out at [32] represented a lack of independence of the investigator. Mr Kidd considered that the allegations found to be sustained by Mr White on the material and evidence available to him were sufficient to move the matter to the next step. This did not compromise Mr White's independence with respect to his assessment of the evidence or his findings, particularly when in the investigator's view there was sufficient evidence to establish Allegation 3.

What is the effect of the detriments arising from not applying strictly the relevant Procedures?

1. The applicant's evidence establishes that aspects of the Code of Conduct Procedures, and Council Investigation Procedure, were not applied. The applicant has not established a breach of the Guidelines.
2. The applicant refers to specific clauses of the Code of Conduct Procedures which put obligations on the investigator, including the requirement for a draft report which was not prepared. The detriments, according to the applicant are: 1. the loss of opportunity for the applicant to make comments on the draft report or to face the investigator; 2. the removal of the opportunity for the investigator to consider the applicant's response; and 3. the denial of an opportunity to overturn a finding made by the investigator.
3. The applicant says that the decision of Mr Kidd not to interview Messrs Walsh and Bax, in breach of the Council Investigation Procedures, created the following detriments suffered by him: 1. failure to have the investigator consider these responses; and 2. the denial of an opportunity to overturn a finding made by the investigator.
4. The respondent says that simply because the applicant may have wished matters to have occurred such that he preferred one course rather than another, cannot, of itself, amount to a detriment if there is no objective evidence to permit the one course to be said to be detrimental as against the other.
5. The respondent submits, and I agree, that the applicant has not led evidence to establish that the lost opportunities in respect of the procedures that were not applied had a detrimental effect apart from the lost opportunities themselves and that the same criticism can be made for the majority of matters in the table prepared by the applicant.
6. The applicant says it is not possible to lead evidence of the impact of the policies not being applied in this hypothetical situation and the detriment is that if representations are made that certain procedures would be applied and the applicant was never informed that those procedures would not be applied, that would be an element of unfairness, or a disadvantage or detriment.
7. I do not accept that it was not possible for the applicant to lead evidence in what he refers to as a "hypothetical situation". In relation to the detriment alleged of not obtaining evidence from Messrs Walsh and Bax, the applicant could have brought evidence in these proceedings from the two people concerned to say, "if I had been interviewed this is what I would have told the interviewee", then the Commission would have direct evidence, not some inference, as to the effect of the detriment. Alternatively, the investigator could have been called and asked to assume certain matters, and if those matters are made out on the evidence, would he have changed his mind.
8. Counsel for both parties addressed at some length in their oral submissions: whether the Commission can infer a detriment from the failure to apply a policy or procedure.
9. Commissioner Newall considered the question of inference in Bruce at [21] as set out at [77] above and he returned to the matter at [46]: I say again for want of any doubt, 'detriment' within the meaning of the Act cannot be made out on assumptions or vague inferences. The case was from the outset about Mr Bruce. Mr Bruce came before the Commission and gave evidence. It was at all times open to him to give any evidence he wished about, for example, stress associated with the transfer, or damage to professional standing and alienation attached specifically to any of the asserted detriments. He did not do so. The Commission cannot assume his evidence for him.
10. The applicant says the Commission must reject the respondent's submission that there was no evidence of detriment and relies on Davis v Amalgamated Television Services Pty Limited [1998] 81 IR 364 ("Davis"), on which Commissioner Newall had relied in Bruce, to submit "[i]f you victimise someone then you are causing a detriment to them" and that the word "victimise" in s 210 should be construed on a basis which corresponds with the meanings of the word "victim": "one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like". The word "victimise" is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience, etc."; and where used in s 210 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/her employment".
11. The applicant seeks to distinguish Bruce on the basis that what was in issue in Bruce whether the investigation should have been undertaken as a clinical investigation or a disciplinary investigation. The Ambulance Service had moved under the disciplinary process and the applicant in that case had said that the detriment that he suffered is that it should have been a clinical investigation, as opposed to a disciplinary investigation. Commissioner Newall disagreed with that submission. The applicant says the determination in respect of inference in Bruce is not relevant in this case because he was told which policies were going to be applied and the fact that those policies were not applied is sufficient in itself to establish the detriment.
12. If an employer does not apply procedures such as those asserted by the applicant then the employee has suffered a loss of opportunity, and consequently, a failure to follow a beneficial policy may be a detriment in itself. However, the applicant came before the Commission and gave evidence. As in Bruce, it was at all times open to the applicant to give any evidence he wished about the failure to respond or what steps he would have taken if there had been a response to his request one way or the other. The applicant had the opportunity to lead whatever evidence he wished to show what other information he would have given to the General Manager beyond that in the Response to the Show Cause Letter. The applicant did not do so.
13. The applicant chose not to call the investigator or other witnesses or lead evidence as to what he would have told the General Manager. As the respondent submitted, the applicant chose not to lead any evidence as to any real detriment other than a res ipsa loquitor breach of the policies and therefore because of that he suffered a detriment.
14. There is little or no evidence that, if the applicant had been given an opportunity to respond to allegations in the manner he asserts he should have been, what that response would have been, or if the witnesses were interviewed what they would have said, in addition to what is stated in his responses. In these circumstances the respondent says that the Commission cannot be satisfied that the failures to follow the procedures are detriments.
15. Further, the respondent submits that it is entirely plausible that witnesses might have been called and disagreed with what the applicant submits. The respondent says the Commission could draw an adverse inference on the basis of Jones v Dunkel (1959) 101 CLR 298, because they were not called to support the applicant's case. I have not drawn such an inference.
16. In this statutory scheme, once a detriment and the condition under s 210(1) which is the purported reason for the detriment are established, then the presumption, or reverse onus, applies, and the respondent must prove the asserted reason was not the reason for the relevant detriment. It is therefore necessary that the applicant establish, on the evidence, that the policies or procedures that should have been, or were expected to be, applied were not applied, and that because of this failure the applicant suffered a disadvantage. The disadvantage is to be established not on an inference or an inexact proof, indefinite testimony or indirect inferences, but on direct evidence (see Bruce at [21] and [46]).
17. The Commission cannot infer the consequences of the lost opportunities. Proof of a detriment beyond the lost opportunity is not achieved by saying the applicant expected to have a meeting but did not, or because two witnesses were not interviewed. The applicant must establish what he would have said if the meeting occurred such that not having the meeting caused a detrimental effect.
18. If the applicant had led any evidence that disclosed that if he had been provided the opportunities under the procedures he said were denied to him that this would have changed the findings in the investigation report that were relied on, or altered the outcome of termination of employment, then he would have established a detriment beyond the lost opportunity. He has not done that.
19. If the respondent is unable to displace the reverse onus in relation to the reasons the applicant alleges for the non-application of the procedures and thus there is a finding of victimisation in relation to the failure to apply the procedures, but the respondent is able to displace the onus for the separately pleaded detriment of the Dismissal then this will be relevant to the remedy in this matter.

Alleged reasons in breach of s 210(1) of the IR Act for the Dismissal and the respondent's failure to complete the investigation in accordance with the Code of Conduct Procedures and the Council Investigation Procedures

1. The respondent must establish that the reasons in breach of s 210(1) claimed by the applicant were not substantial and operative causes of the detriments established by the applicant: Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050 ("Challinor") at [8]).
2. In this instance, the reverse onus applies to the alleged reasons for the detriments of the Dismissal and the non-application of the Code of Conduct Procedures and the Council Investigation Procedures.
3. The requirement that the detrimental action be taken "because" of the reasons alleged to be in breach of s 210(1) means that it is necessary to determine whether the respondent dismissed the applicant and/or did not apply the relevant procedures for the particular reasons alleged by the applicant. Whether the respondent has discharged the "reverse onus of proof" is to be resolved at the end of a proceeding and upon consideration of the entirety of the evidence adduced.
4. I agree with the respondent's submission that the question is not merely one of causation and there is a significant difference between a person's reasons for engaging in particular conduct, and the objective circumstances that led the person to engage in that conduct. The fact that there is a close factual or temporal connection between the detriment and the reasons allegedly in breach of s 210(1) may bear on the determination of the true reason for the decision. However, to discharge the burden of proof it is not necessary for the decision-maker to establish that the reason for the detrimental action was entirely disassociated from the relevant alleged reasons. This is reinforced by the provisions in the IR Act referring to the substantial and operative cause of the respondent's actions. The IR Act clearly envisages that the exercise of a "right" or receipt of a benefit under legislation or an industrial instrument, may be considered so long as it is not "a substantial and operative cause of the actions".

Substantial and operative provision

1. The Commission is not undertaking a broad-ranging assessment of the respondent's actions and processes in these proceedings. The Commission's consideration must focus on the "substantial and operative reason", the meaning of which was considered by the Court of Appeal in Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305 ("Bindaree") by Chief Justice Bathurst with whom the President of the Court of Appeal, her Honour Justice Beazley, agreed, held at [53]: The question of whether the injury was a substantial and operative cause of the worker's dismissal is a question of fact to be decided by reference to all the circumstances including the employer's evidence as to such cause.
2. The Chief Justice continued in Bindaree at [58]-[61]: 58. I also do not agree with the Full Bench that the word operative is superfluous in the section. Section 244(2) recognises that there could be more than one cause for the dismissal. The presumption will be rebutted if it is shown that the injury is not a substantial cause and one that is operative on the decision-maker at the relevant time. In General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, the respondent was alleged to have been dismissed by reason of him being a delegate of an industrial organisation. Such a dismissal was an offence under s 5(1) of the Conciliation and Arbitration Act 1904 (Cth). Section 5(4) of that Act provided as follows: "In any proceeding for an offence against this section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge." 59. Mason J (as his Honour then was) with whom Stephen and Jacobs JJ agreed, described the operation of the section in the following terms at 616: " ... The importance which s 9 of the Conciliation and Arbitration Act 1904-1915 (the ancestor of the present s 5) then had may be ascertained from the dissenting judgment of Isaacs J in Pearce v W D Peacock & Co Ltd [1917] HCA 28; (1917) 23 CLR 199 at 205, where his Honour said of s 9: '... it is designed, among other things, to preserve organizations, so that the method selected by Parliament for settling disputes shall not be thwarted. The provision casting the onus on the defendant employer means that the fact that the dismissed employee was a member of an organization must not enter in any way into the reason of the defendant ...' The majority decided for the employer because there was evidence to support the magistrate's finding that the employer was not actuated by the reason alleged in the charge. The protection of trade unions and their representatives from discrimination and victimisation by employers does not require an interpretation as extreme as that favoured by Isaacs J. It would unduly and unfairly inhibit the dismissal of a union representative in circumstances where other employees would be dismissed and thereby confer on the union representative an advantage not enjoyed by other workers, to penalize a dismissal merely because the prohibited factor entered into the employer's reasons for dismissal though it was not a substantial and operative factor in those reasons. The Australian Industrial Court did not apply Isaacs J's interpretation. In the light of what was said by Barwick CJ and Walsh J in connection with the words 'for the reason that' in s 66b(2)(d) of the Trade Practices Act 1965-1971 in Mikasa (NSW) Pty Ltd v Festival Stores [1972] HCA 69; (1972) 127 CLR 617 at 634-5 and 646; [1972] HCA 69; [1972-73] ALR 921 at 929-30 and 937, the Industrial Court has held (see Roberts v General Motors- Holden's Inc (1975) 30 IIB 2085) that an employer is actuated by a particular reason or circumstance, if that reason or circumstance was 'a substantial and operative factor' influencing him to take that action. The Industrial Court has thereby rejected, rightly in my opinion, the notion that sub-s (1) is speaking of the sole or predominant reason actuating the employer." 60. The words substantial and operative used by Mason J were adopted when s 244(2) was amended to its present form. The word operative emphasises that the dismissal must have been a matter which actuated the employer to dismiss the employee. 61. What I have said, in my opinion, is consistent with authority. As has been stated in a number of cases, any inquiry as to causation has to be undertaken by reference to the purpose of the inquiry: Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232 at [63]; Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at [98]; Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 at [50]- [58]; I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109 at [56]. The inquiry in the present case is directed to the reason for the dismissal of the worker for the purpose of considering whether he or she has a valid claim for reinstatement. Once that is recognised the actuating purpose of the employer is relevant.
3. Although there are some differences between the relevant provisions of the IR Act and the Fair Work Act 2009 (Cth) the Commission has followed the High Court decisions in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 ("Barclay") and Construction, Forestry, Mining and Energy Union and BHP Coal Pty Ltd [2014] HCA 41 ("BHP Coal") when considering the application of s 210 and when and how the presumption is rebutted (see for example Bossak v Health Secretary in respect of Murrumbidgee Local Health District [2020] NSWIRComm 1009).
4. In Challinor, Commissioner Stanton (unaffected by appeal) considered the impact of the High Court decisions in respect of Part 3-1 of the Fair Work Act 2009 (Cth) including Barclay and BHP Coal Pty Ltd as follows: [70] The High Court subsequently found that adverse action had not been taken when the employer dismissed an employee for holding an "anti-scab" sign on a picket line. The employee's conduct was considered lawful industrial activity. A majority of the Court accepted that BHP's reason for dismissing the employee was not motivated by his conduct but rather, by his disregard for applicable workplace policies. The High Court applied Barclay. At [7]-[9] French CJ and Kiefel J stated: The focus of the enquiry as to whether s 346(b) has been contravened is upon the reasons for Mr Brick taking the adverse action. This is evident from the word "because" in s 346, and from the terms of s 361. The enquiry involves a search for the reasoning actually employed by Mr Brick. The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500 at 517 [45]; see also at 542 [127]. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1], French CJ and Crennan J observed that it would ordinarily be difficult for an employer who has taken adverse action to discharge the onus of proof in s 361 without calling direct evidence from the decision-maker as to his or her reasons. The court is not obliged to accept such evidence. It may be unreliable for a number of reasons. For example, other objective evidence may contradict it. However, s 346 does not involve an objective test. In Bendigo, Gummow and Hayne JJ explained that it is misleading to use the terms "objective" or "subjective" to describe the enquiry in s 346. To speak of objectively ascertained reasons risks the substitution by the court of its own view, rather than making a finding of fact as to the true reason of the decision-maker. (references omitted) [71] In the light of BHP Coal, the success or otherwise of an adverse action claim against the employer may turn on the meaning of the words "because of" set out in s 351 of the FW Act where the employer may be in a position to argue that it did not seek to discipline or dismiss a particular employee because of his or her political opinion but rather for breach of a workplace policy or rule. [72] 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 proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made. [73] The authorities cited by the parties suggest that it would ordinarily be difficult for an employer who has taken adverse action to discharge the onus of proof in s 361 of the FW Act without calling direct evidence from the decision-maker as to his or her reasons particularly bearing in mind the onus lies with the employer to show that it did not take adverse action for a prohibited reason. [Underlined emphasis added]
5. Her Honour Justice Mortimer in Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27 considered the difference between a "connection" and a "reason" and the use of the term a "particular reason". This is relevant to this Commission's consideration of the terms "because of" and "substantial and operative reason". Her Honour stated: [179] The High Court's decision in Barclay clarified a number of matters, in particular about the operation of the statutory presumption in s 361 of the Fair Work Act. In their reasons, members of the Court emphasised that such a presumption, combined with the nature of the inquiry being one as to the "particular reason" of the decision-maker and involving an assessment of the state of mind of the decision-maker (rather than a wholly objective inquiry), meant that the presumption would rarely be effectively rebutted without direct testimony from the decision-maker: at [42]-[45] per French CJ and Crennan J, at [101], [127] per Gummow and Hayne JJ, at [146] per Heydon J. As French CJ and Crennan J observe at [50] (see also Gummow and Hayne J at [86] and Heydon J at [149]), citing General Motors-Holden's Pty Ltd v Bowling (1976) 12 ALR 605 at 617 per Mason J, the rationale for the presumption (and the correlative reverse onus) is that the burden should fall on the person whose own knowledge might best explain the reason for her or his conduct or decision. … [188] "This difference between a "connection" and a "reason" may, with respect, be elusive. Possession of a protected attribute is clearly insufficient, and it may also be accepted that if the occasion for adverse action happens to coincide with manifestation of a protected attribute (such as political opinion or industrial activity), that is insufficient. If, however, more than this is meant by the use of the term "connection" then it seems to me as a matter of fact in a given case there may well be an overlap with a "reason" for the adverse action. So too the distinction between an employer not having to prove adverse action was "entirely disassociated" from a prohibited reason, but having to prove the prohibited reason was not "substantive and operative" reason. Repeating that these will be questions of fact to be determined on the evidence in a particular case does not remove the difficulty of the somewhat fine distinctions being drawn in the authorities. With respect, they also illustrate the difficulties in paraphrasing, or moving away from, the statutory language which here relevantly requires that an employer prove action was not taken for reasons which "included" a prohibited reason."
6. Applying the authorities considered above to this matter, the respondent's evidence must satisfy the Commission that on the civil balance of probabilities, the respondent's actions were not a substantial and operative cause of the detrimental action. It is also clear that the test is not an objective test: Bindaree Beef Pty Ltd at [63].

Alleged reasons in breach of s 210(1) for the Dismissal

1. The applicant alleges in his opening submissions that the reasons for the Dismissal were: the Threatened Unfair Dismissal Application in breach of s 210(1)(g) of the IR Act; or the injunctive proceedings in breach of s 210(1)(g) of the IR Act; or the benefit the applicant had pursuant to cl 36 of the Award in breach of s 210(1)(e) of the IR Act.

The Threatened Unfair Dismissal Application and the threatened injunctive proceedings

1. The respondent concedes that in filing the Threatened Unfair Dismissal Application the applicant was participating or proposing to participate in proceedings relating to an industrial matter.
2. The Threatened Unfair Dismissal Application was commenced on 6 September 2018 and served on the respondent on 7 September 2018. Therefore, this basis of a victimisation claim as a reason for the detriments of the Dismissal and the lost opportunities under the relevant procedures, can only apply to conduct on or after 7 September 2018, being the date the applicant's solicitor informed the respondent of the Threatened Unfair Dismissal Application.
3. The applicant submits that the Threatened Unfair Dismissal Application and the threatened injunctive proceedings are two distinct proceedings. As set out at [42] the applicant threatened an interlocutory application for orders to maintain the status quo within the Threatened Unfair Dismissal Application. However, there was no mention of the threatened injunctive proceedings being a reason for the detriments alleged in the Amended Victimisation Application.
4. No interlocutory application or injunctive proceedings were commenced. Had such an application been commenced these proceedings would have arisen under the Threatened Unfair Dismissal Application. The applicant did not need to commence further proceedings in order to seek orders to prevent the termination of employment. Accordingly, they are not separate proceedings.
5. It is not necessary to treat the threatened injunctive proceedings and the Threatened Unfair Dismissal Application as separate matters falling within s 210(1) to consider allegations and submissions on the basis that the threat of an order from the Commission which would prevent the respondent from dismissing the applicant, rather than the usual orders from the Commission in a successful unfair dismissal claim of reinstatement, back-pay and/or compensation, was a substantial and operative reason for the Dismissal and/or the failure to apply the policies and procedures as alleged.

The Dismissal

1. In order to rebut the presumption that the Dismissal was because of the matters alleged by the applicant, the respondent led evidence from Mr McKee, the decision-maker in respect of the Dismissal.

Claim that the Dismissal was because of the Threatened Unfair Dismissal Application

1. Prior to the filing of the Threatened Unfair Dismissal Application the respondent had formed the view that the applicant was facing dismissal. As set out at [35], Mr Kidd recommended termination to Mr Marshall on 14 August 2018 and Mr Marshall approved the recommendation on 16 August 2018 which resulted in the issuing of the Show Cause Letter.
2. That the applicant was facing dismissal at the end of August 2018 is manifestly clear from the Show Cause Letter of 28 August 2018, well before the Threatened Unfair Dismissal Application was commenced. It is also clear that the applicant and his solicitor thought dismissal was likely or the Threatened Unfair Dismissal Application would not have been filed nor would they have sought a commitment that the respondent would not dismiss the applicant.
3. On 7 September 2018, Mr Miocic became aware of the Threatened Unfair Dismissal Application. However, Mr Miocic was not the decision-maker in respect to the Dismissal.
4. On 11 September 2018 Mr Kidd completed the review of the Response to the Show Cause Letter. Mr Kidd's evidence is that he did not receive a copy of the Threatened Unfair Dismissal Application until 14 September 2018 which was after he had made a recommendation that the applicant be dismissed; therefore his recommendation could not have been motivated or actuated by the Threatened Unfair Dismissal Application.
5. The applicant submits that the evidence shows that Mr Kidd may have become aware of the Threatened Unfair Dismissal Application between 7 September 2018 and 10 September 2018. Accepting the applicant's submissions about Mr Kidd's knowledge of the Threatened Unfair Dismissal Application at their highest, it is clear from Mr Kidd's evidence that even if he knew about the Threatened Unfair Dismissal Application because he had opened and read one of the emails attaching it or referring to it, the Threatened Unfair Dismissal Application was not a substantial and operative reason for his recommendation to dismiss the applicant.
6. Mr Kidd had, on 14 August 2018, sent to Mr Marshall a recommendation that the applicant's employment be terminated. This was well before the Threatened Unfair Dismissal Application was commenced. Mr Kidd undertook the review of the Response to the Show Cause Letter and ended up at the same recommendation, as nothing the applicant submitted in the Response to the Show Cause caused Mr Kidd to change his views about the substantiated allegations.
7. Even if Mr Kidd's recommendation was substantially and operatively the result of his knowledge of the Threatened Unfair Dismissal Application, which I do not consider it was, the evidence of the decision-maker, Mr McKee, as to the reasons for the Dismissal is the most probative evidence for the Commission to consider in order to determine if the respondent has displaced the presumption that it dismissed the applicant because of the Threatened Unfair Dismissal Application.
8. Mr McKee deposes in his affidavit of 12 February 2019 that on 11 September 2018 he reviewed the material he had been provided concerning the applicant and he approved the decision to dismiss the applicant. The email trail between Ms Keato and Mr McKee shows that Ms Keato sent the recommendations to Mr McKee at 4:45PM and Mr McKee approved the recommendations by email eight minutes later at 4:53PM.
9. Mr McKee's evidence is that he could not have taken the Threatened Unfair Dismissal Application into account because on 11 September 2018 at the time he approved the recommendation to terminate the applicant's employment, he was not aware of those proceedings. . Mr McKee's evidence is that on 28 November 2018 he saw the Threatened Unfair Dismissal Application for the first time. Mr McKee could not recall the emails about the Threatened Unfair Dismissal Application that were put to him in cross-examination.
10. The applicant challenges the reliability of Mr McKee's evidence in chief and under cross-examination that he had not opened the email referred to in [44] and he had not read any of the 16 emails in evidence that referred to the Threatened Unfair Dismissal Application, in particular an email trail headed "re: HRPM: Richard Kinninmont - threatened dismissal" marked "Exhibit A25" and says the Commission should not accept that Mr McKee had first seen the Threatened Unfair Dismissal Application on 28 November 2018.
11. Mr McKee admitted that he was informed about matters relating to the applicant by Ms Keato and Mr Miocic both verbally and by email. In cross-examination Ms Keato said that she did not discuss the Threatened Unfair Dismissal Application with Mr McKee directly.
12. Mr Marshall gave evidence under cross-examination that he did not provide updates to Mr McKee about the applicant and he did not remember discussing the Threatened Unfair Dismissal Application with Mr McKee.
13. The applicant says that in order for his evidence to be accepted, Mr McKee must not have read any email that made reference to the Threatened Unfair Dismissal Application before the Dismissal. It is not sufficient to displace the presumption in s 210(2) for Mr McKee to give evidence that he does not recall reading any email.
14. The applicant says further that in cross-examination, Mr McKee sought to change his evidence regarding the documents he reviewed for the approval of the Dismissal. This was a significant change from the evidence in the McKee First Affidavit.
15. Mr McKee's oral and written evidence about the number and content of the attachments to the email he received on 11 September 2018 and the documents he reviewed before approving the termination of the applicant's employment was confusing. In my view some of the confusion is explained by the fact that two documents (the Response to the Show Cause Letter and the analysis of that response) were attached as one document. I accept the evidence of Mr McKee that he does not remember reading an email which referred to the Threatened Unfair Dismissal Application. Further, while it is possible that Mr McKee opened an email and scanned its contents, I also accept what Mr McKee stated in cross-examination: If Ms Keato was copied into an email and I was also on the list, I would have left it to her, I wouldn't have necessarily read that email.
16. This is consistent with the evidence in Mr McKee's affidavit of 12 February 2019. However, the evidence of Mr McKee leaves open the possibility that Mr McKee did read an email referencing the Threatened Unfair Dismissal Application which he does not recall.
17. The applicant says the existence of this possibility means that Mr McKee's evidence that he was not aware of the Threatened Unfair Dismissal Application before his approval of the Dismissal could not be accepted to rebut the presumption in s 210(2) of the IR Act and the respondent has not discharged its onus. I do not agree. The presumption that must be displaced is that the Threatened Unfair Dismissal Application was a substantial and operative cause of the Dismissal, not that it was a matter about which he was aware at some time.
18. I agree with the submission of the respondent that it follows from Barclay that the onus of proving that the applicant's complaints and proceedings were not substantial and operative factors in taking the action the respondent did is to be discharged on the balance of probabilities in the light of all the established evidence.
19. It is one thing for the Commission to accept the possibility that Mr McKee may have opened, or seen, or even read, an email that he does not recall reading because the contents of which were matters he left to others to manage. It is another thing entirely, even with the presumption operating against the respondent, to accept, in the face of the evidence of the reason for the Dismissal being the sustained findings of the investigation as set out in the Summary Report, that the Threatened Unfair Dismissal Application was a substantial and operative reason for the Dismissal.
20. Applying Barclay to this matter, the respondent's witnesses' direct testimony, in particular that of Mr McKee, satisfies the Commission that, on the civil balance of probabilities, that the reason for the Dismissal was the findings of the investigation and the Threatened Unfair Dismissal Application was not a substantial and operative cause of the Dismissal and the presumption has been rebutted.
21. The applicant says that Mr McKee gave no evidence regarding the threatened injunctive proceeding and on that basis alone, the respondent has failed to rebut the presumption in s 210(2) of the IR Act. As I do not consider that the Threatened Unfair Dismissal Application and the threatened injunctive proceedings are separate proceedings, and the applicant has not referred to the threatened injunctive proceedings in the Amended Victimisation Application, I do not consider that this is a relevant consideration.

Claim that the Dismissal was because of a benefit that the applicant had under cl 36 of the Award

1. The Amended Victimisation Application alleges that the failure to abide by the policies, procedures and guidelines was an act or acts of victimisation and this failure was detrimental to the applicant. These alleged detriments are considered in this decision.
2. The applicant has sought, at the hearing, and in written submissions, to recast claims that breaches of the Guidelines being asserted benefits under cl 36 of the Award, are the basis of a breach of s 210 (1) as well as being alleged detriments.
3. Although there is a reference to cl 36 of the Award at paragraph 9 of the Amended Victimisation Application, the claim that the Dismissal was because of a benefit that the applicant had under cl 36 of the Award was not a claim made in the Amended Victimisation Application and will not be considered by the Commission. If the Commission was to allow this that would be procedurally unfair to the respondent and I decline to consider the recast allegation on this basis.

The alleged failure to complete the investigation into the complaints made against the applicant in accordance with the relevant policies, procedures and guidelines

1. The applicant has established that the failure by the respondent to apply properly the Code of Conduct Procedures and the Council Investigation Procedure resulted in losses of opportunity. The applicant has not established specific detriments beyond the lost opportunities.
2. The applicant alleges the reasons that the respondent failed to undertake and complete the investigation into the complaints made against the applicant in accordance with the relevant procedures were because of: the Threatened Unfair Dismissal Application in breach of s 210(1)(g) of the IR Act; or the injunctive proceedings in breach of s 210(1)(g) of the IR Act; and/or the leave over the period of the investigation the Applicant took pursuant to cl 21 of the Award in breach of s 210(1)(e) of the IR Act;
3. The applicant alleges the respondent failed to apply properly the Council Procedures for the Administration of the Code, and the Council Investigation Procedure by: 1. "guillotining" of the investigation on 31 July 2018, which includes: 1. not obtaining further particulars of some of the allegations; and 2. the failure to interview two witnesses, Messrs Bax and Walsh; and 1. declining the applicant's request on 7 September 2018 to meet with the General Manager and to provide additional response materials to the General Manager at that meeting.

The Threatened Unfair Dismissal Application

1. The Threatened Unfair Dismissal was filed after the alleged guillotining of the investigation took place, thus it cannot be a reason, let alone a substantial and operative reason for, or cause of, the decision to take the action to end the investigation.
2. As set out at [139] Mr Kidd may have become aware of the Threatened Unfair Dismissal Application between 7 September 2018 and 10 September 2018 which is inconsistent with his evidence in the last sentence of paragraph 24 of his affidavit of 12 February 2019 that he was not aware of the Threatened Unfair Dismissal Application until 14 September 2018. However, Mr Kidd was not responsible for the decision to decline the applicant's request on 7 September 2018 to meet with the General Manager and to provide additional response materials. Accordingly, Mr Kidd's knowledge of the Threatened Unfair Dismissal Application is not material to the Commission's determination as to whether the Threatened Unfair Dismissal Application was a substantial and operative cause of the decision to decline the applicant's request.
3. Ms Keato was the decision-maker in respect of the decision to decline the applicant's request on 7 September 2018 to meet with the General Manager. Ms Keato's evidence is that the applicant was required to make the request before the date of 7 September 2018 and he did not make this request, through his lawyer, until the date of 7 September 2018 which was too late.
4. During cross-examination of Ms Keato on the question of the meeting request being declined, the following exchange occurred: Q. … could I take you to the Code of Conduct Investigation Procedure page 65, I take you to page 73 of that procedure. At the second paragraph of page 73, the start of Mr Kinninmont's exhibits, it states "Where there is a conflict between maximising the effectiveness of the investigation as a means of getting to the truth and ensuring appropriate fairness is afforded to the relevant officer, council will give priority to ensuring that the council officer is treated fairly", right. I'm putting to you that the fact that Mr Kinninmont missed, didn't give you a request for a face-to-face meeting prior to 7 September, they gave you one some twelve and a half hours late, I put it to you that that's unfair that the council rejected his request? A. I disagree with you. Q. And it was you that made the decision not to allow Mr Kinninmont to have a face-to-face meeting? A. In accordance with the process we were following, yes, I made that decision.
5. The applicant submits that the evidence given by Ms Keato is that she did not take into account the Threatened Unfair Dismissal Application regarding the outcome of the investigation and the recommendations she made to terminate the applicant's employment. I agree with the applicant that Ms Keato did not give any evidence that she did not take into account the Threatened Unfair Dismissal Application in any other decisions she made.
6. The evidence of Ms Keato does not displace the presumption that the reason that the meeting request was declined was the Threatened Unfair Dismissal Application.

Leave the applicant took pursuant to cl 21 of the Award

1. The respondent concedes that in the period 30 April 2018 until 24 August 2018 the applicant made a claim to be paid sick leave (30 April 2018 - 7 August 2018) and annual leave (8 August 2018 - 24 August 2018) which are benefits under the Award.
2. The applicant says: the applicant's sick leave played a significant role in the respondent prematurely bringing an end to the investigation; Mr Kidd's acknowledgement in cross-examination of the delay to the investigation of the sick leave is evidence that the respondent brought a premature end to the investigation because the applicant claimed a benefit under the Award; and the respondent has not rebutted the presumption that the use of sick leave was a cause of the respondent's action.
3. The following exchange occurred in cross-examination of Mr Kidd: Q. And you knew that during most of that period he was entitled to take sick leave? A. Certainly he was on sick leave he provided medical certificates- Q. Yeah that's right. And so this delay was because he [had the] benefit of sick leave wasn't it? A. Part of it yes and also we were unable to get any clearance from his doctor to participate in the early stages of his sick leave.
4. The respondent says that a distinction needs to be drawn between being away from work and that impact on the investigation and being entitled to sick leave and sets out in its written submissions: 96. Clause 21 provides for various types of leave. The only evidence of the Applicant taking any of the leave found in clause 21 is Sick leave and Annual leave. In respect to sick leave clause 21(A) provides that "Employees who are unable due to illness or injury to attend for duty shall be entitled during each year of service to sick leave of 3 weeks at the ordinary rate of pay." 97. The clause only provides for a benefit of being paid whilst on sick leave. The clause does not provide a benefit not to attend for work or be absent from work. 98. To the extent the Applicant asserts the sick leave provision provides a benefit to be absent from work; the Applicant is in error. The actual absence from work is a different issue to the payment of sick leave. 99. In taking into account the Applicant's absence whether on sick leave or not the Respondent was not acting contrary to s210(1)(e). 100. Further, the evidence of Ms Keato was the Applicant would not have been treated differently if was unwell and not on sick leave. (Footnotes omitted)
5. The respondent relies on the decisions of the majority, Jessup and Perram JJ, in Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76 to establish the difference between being on sick leave and being absent.
6. Justice Jessup and Justice Perram dismissed the appeal and upheld the primary judge's determination that the employer's reason for the relevant adverse action, the removal of weekend work, was the employee's absences from work and the consequential unpredictability of attendance, and not that the employee had taken personal leave. The majority noted the distinction between the act done which is said to be an exercise of a workplace right, on the one hand, and the thinking of the decision-maker with respect to that act, on the other hand.
7. The respondent's evidence demonstrates it was the length of time since the complaints had been made about the applicant's conduct and the consequent length of the investigation which was partly as a consequence of the applicant's absence from the workplace that impacted Mr Kidd's decision to end the investigation when he did. It was not the applicant's use of leave entitlements. The respondent has displaced the presumption.

Conclusion and remedy

1. The applicant submits that even if the Commission determines that the substantial reason why Mr McKee dismissed the applicant was the findings in the investigation, the Dismissal can be impugned and the applicant should be reinstated with back-pay and an investigation conducted in accordance with the relevant policies and procedures. The applicant submits that the new investigation might find that the applicant did not engage in the conduct that was alleged and sustained.
2. The applicant says further, that unless the respondent had complied with the requirements under the Award it could not take any of the steps that are noted under the heading "Penalties" which include termination of employment, and as a consequence the applicant should be reinstated with back-pay. I do not agree.
3. This is not an industrial dispute or an unfair dismissal claim. In victimisation proceedings the role of the Commission is not to determine whether the decision of the respondent was fair, appropriate or the type of decision that the Commission would have made. The Commission is only concerned with determining the actual reason or reasons which motivated the decision-maker. Even if those reasons are harsh, unjust or unreasonable, if the Commission finds they were the reasons that motivated the decision-maker and not the matters alleged by the applicant in breach of s 210, the presumption is rebutted: Janssen v South Western Sydney Local Health District [2018] NSWIRComm 1022.
4. The respondent has discharged the onus of establishing that the applicant's complaints and proceedings were neither an actuating purpose nor a substantial and operative reason for the Dismissal. The respondent says that any relief awarded to the applicant must flow from the breach found against the respondent. The respondent argues that the loss of employment and the remuneration foregone is only as a result of the Dismissal; if the Dismissal was not as a result of a reason prohibited under s 210(1) then the applicant cannot be reinstated.
5. The respondent has not discharged the onus of establishing that the Threatened Unfair Dismissal Application was not an actuating purpose or a substantial and operative reason for the failure to comply with the procedures in not interviewing Messrs Bax and Walsh and not providing the applicant with the opportunity to meet with the General Manager before the termination of the applicant's employment. However, there is no evidence before the Commission from which the Commission could form a view that, if these things had happened, the respondent would not have terminated the applicant's employment.
6. Commissioner Webster recently considered the remedy of reinstatement in a victimisation case in which she found that the employer had not displaced the presumption that the termination of employment was because of a reason in breach of s 210(1): Vaulin v City of Parramatta Council [2020] NSWIRComm 1058. Commissioner Webster applied the principles relating to the question of impracticability set out in Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071 in declining to exercise her discretion to reinstate the employee. In my view this consideration is also relevant in this context. It would be impracticable, in all of the circumstances of the applicant's case, which include an unsuccessful challenge to the truthfulness of the decision-maker, Mr McKee, about the reasons for the termination of the applicant's employment, and the consequent damage to the trust and confidence of the employer/employee relationship, to reinstate the applicant.
7. It is appropriate in this case to exercise the Commission's discretion to order that the respondent pay the applicant, "the whole or any part of the amount of remuneration or other financial benefits lost or foregone": s 213(2)(c) of the IR Act, for the period it would reasonably have taken to organise the interviews with the witnesses and a meeting between Mr McKee and the applicant.
8. A reasonable estimate of the period of time it would have taken for these matters to be completed is two weeks. Accordingly, I award the applicant an amount that puts him in the same position in which he would have been had he continued to be employed by the respondent for an additional two weeks.

Orders

1. I make the following order: 1. The respondent is ordered to pay to the applicant, within 21 days of today's date, a sum equivalent to two weeks' pay calculated at the rate applicable to the position occupied by the applicant immediately before the Dismissal on 13 September 2018.

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: 22 September 2020