Richard Kinninmont v Ku-ring-gai Council

Industrial Relations Commission (NSW)|2019-04-11

Solicitors: Thrive Workplace Consulting & Legal (applicant) File Number(s): 2018/294553

DECISION

The applicant, Richard Kinninmont, commenced proceedings for relief from victimisation by the respondent, Ku-ring-gai Council, pursuant to s 213 of the Industrial Relations Act 1996 ("the Act") ("the Victimisation Application") on 26 September 2018. The Victimisation Application includes matters relating to the termination of the applicant's employment by the respondent on 13 September 2018, and an investigation in relation to the applicant's conduct which preceded the termination of his employment.
Before the Commission is a Notice of Motion by the applicant filed on 14 February 2019 seeking leave to amend the Victimisation Application. The respondent resists the motion and objects to the Commission granting leave to amend because an application for an order under s 213 must be made within 21 days after the contravention concerned, and accordingly, the amendments are "out of time". The objection has been heard and determined as a preliminary matter.
On 6 September 2018, the applicant filed an application pursuant to s 84 of the Act alleging a threatened dismissal from his employment ("the Unfair Dismissal Application"), which is currently in abeyance.

Amendments sought

The amendments sought by the applicant are set out in the Amended Application for Relief from Victimisation which is Attachment "A" to the Notice of Motion ("the Amended Victimisation Application") and include: 1. at point 5, under the heading "Alleged Victimisation" three additional allegations of victimisation: e. Failing to apply policy and procedure correctly and failing to provide procedural fairness because of the Applicant's use of leave entitlements, temporary absence due to illness or injury and workers compensation claim; f. Closing the investigation prematurely and without warning because of the Applicant's use of leave entitlements, temporary absence due to illness or injury and workers compensation claim; g. Failing to interview or meet with the Applicant when there were multiple requests for the same, and the Applicant was considered medically fit to do so. 1. under the heading "Particulars of Victimisation": 1. at point 6, addition of the following: f. Over the course of the investigation Applicant had been absent due to temporary illness or injury and utilised various forms of leave in clause 21 of the Local Government State Award 2017 (Local Government Award), with most of those periods of absence also the subject of a workers compensation claim that is still under consideration. These benefits are claimed pursuant to section 210 (e). 1. at point 9, addition of the following: Procedures for the Administration of the Code of Conduct and 1. a new point 12: The Respondent provided this explanation in the "Analysis of Kinninmont Response" document as a reason for not completing investigation process and procedure, after the Applicant was deemed fit to fully participate in the investigation, had requested an interview and a meeting with the decision maker: Given the length of time that had elapsed during the investigation process, due to a delay in confirming Mr Kinninmont's fitness to receive the allegations and provide a response, it was determined that the investigation would be finalised based on the evidence examined via the complainants and witnesses' interviews/statements and his response to the allegations.

Evidence and procedural matters

The evidence read by the applicant in support of the motion was an affidavit of Amanda Jane Harvey, solicitor for the applicant, sworn 10 February 2019.
The applicant also relies on: 1. three annexures to the affidavit of the applicant sworn on 17 December 2018 and filed in the substantive proceedings but not read in the hearing of the motion: a redacted copy of an investigation report by Pinnacle Integrity dated 13 August 2018 ("Annexure RK19"), an email from Jennie Keato to Rod Kidd with the subject: "Review of Kinninmont response to show cause" dated 11 September 2018 ("Annexure RK20"), Psychiatric report of the Independent Medical Expert Dr Adam Martin dated 12 June 2018 and a supplementary report of Dr Martin dated 6 July 2018 ("Annexure RK21"); and 2. two annexures to the affidavit of Rodney Charles Kidd sworn 12 February 2018 filed by the respondent in the substantive proceedings but not read in the hearing of the motion: Summary Report of Code of Conduct Investigation ("Annexure C"), and a letter from the Director Development and Regulation of the respondent, Michael Miocic, to the applicant dated 28 August 2018 enclosing a copy of the Summary Report of Code of Conduct Investigation ("Annexure E").
The documents in paragraph 6(2) were accepted by the Commission pursuant to s 163 of the Act and Annexures C and E were accepted only for the purpose of considering the prospects of success of the amendments if leave was granted.
Evidence read by the respondent in defence of the motion was an affidavit of Charles McElroy, a legal practitioner employed by Local Government NSW, the representative of the respondent, affirmed on 2 April 2019.
In addition to oral submissions at the hearing on 11 April 2019, the respondent filed a written Outline of Submissions. I have had regard to the evidence and submissions in making my decision.

Limitation period, power to amend, and other relevant law

Limitation period and "ongoing" detriment

The applicant had 21 days from "after the contravention concerned" to file the Victimisation Application pursuant to s 213 of the Act. The date of the contravention is taken to be the date the applicant suffered detriment (Pritchard v Measurement Resources Pty Limited [2006] NSWIRComm 1151 at [16]).
The applicant concedes that the amendments are sought more than 21 days after the alleged detriment but asserts that the circumstances in this matter disclose ongoing detriment to the applicant which continued until the date of termination of employment, 13 September 2019.
The respondent submits that the authorities make it clear that the Act, in terms of the time limitations under s213, necessarily addresses the act of victimisation at the time it occurred, not its ongoing effects, so that time runs from the time of the act of the victimisation which is complained of (see Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059 ("Morawsky") at 6] and Janssen v South Western Sydney Local Health District [2017] NSWIRComm 1076 ("Janssen") at [17]).
I accept that the respondent's submission reflects the Commission's approach in Janssen, Morawsky and Prehn v Department of Environment and Conservation [2006] NSWIRComm 222.
Nevertheless, as set out in Swaran Lata Kumar v Macquarie Partnership Lawyers [2005] NSWIRComm 202, the ongoing detrimental conduct asserted by the applicant which is alleged to constitute victimisation is a matter relevant to my consideration as to whether to grant leave.

Power to amend

The applicant asserts that the Commission's power to grant leave to amend the Victimisation Application is found in sub-s 213(4) of the Act.
The respondent concedes that s 170 of the Act allows the Commission to make any amendments to proceedings before it at any time in the proceedings that the Commission considers to be in the interests of justice.
The respondent submits that by virtue of s 4 of, and sch. 1 to, the Civil Procedure Act 2005 ("the CP Act"), ss 64 and 65 of the CP Act also potentially allow the Victimisation Application to be amended in certain circumstances.
The respondent submits, and I agree, that s 64 of the CP Act does not apply in this matter because s 170 of the Act creates its own code for dealing with amendments to the proceedings and a specific clause dealing with a particular matter should override a general clause (Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at p 7) ("the Anthony Hordern principle").
The respondent submits that the position in respect of s 65(2)(c) of the CP Act is different, in the sense that it is a specific provision dealing with amending an originating process after the expiry of a limitation period in order to add or substitute a new cause of action that arises from the same or substantially the same facts as those already pleaded.
The respondent says that the authorities on s 65 of the CP Act (and on its former Supreme Court Rules predecessor) articulate three main principles as to the operation of this section: first, that the power contained in s 65 of the CP Act is not a general discretionary power (a more general discretionary power arising under s 64(1) of the CP Act); second that it will be appropriate to permit amendment under s 65 if the claim based on the new cause of action arises out of substantially the same set of facts as those involved in the original claim; and third, that the question as to whether the claim arises out of substantially the same set of facts is to be answered as a matter of general impression, rather than requiring precise similarity of factual circumstances and it is not necessary that all facts be material to each separate cause of action. The respondent further submits that a Court, which in this instance includes the Commission, will not grant leave to allow an amendment under s 65(2)(c) if it would be liable to be struck out had it appeared in the original pleading.
The respondent's submissions on s 65 of the CP Act were not dealt with in any detail by the applicant as he asserts that s 65 of the CP Act is not relevant for, or to, the Commission's determination of the motion. As set out above, the applicant asserts that the Commission's power to grant leave to amend outside the statutory limitation power is contained in s 213(4). Further, the applicant asserts that the Commission's powers as set out in the Act are not limited by specific provisions of the CP Act by virtue of sub-s 4(5) of the CP Act which provides: Subject to any such regulation, this Act does not limit the operation of any other Act with respect to the conduct of civil proceedings.
I do not consider that it is necessary to resolve any conflict between s 65 of the CP Act and s 170 of the Act, on the basis of the Anthony Hordern principle or otherwise, because s 170 of the Act allows for the Commission to make amendments at any stage of proceedings and sub-s 4(5) of the CP Act protects the operation of s 170 of the Act.
Section 170 of the Act allows the Commission to make amendments that it "considers necessary in the interests of justice". I consider that the provisions of sub-s 213(4) which apply to "making the application" are relevant in determining "the interests of justice".
In Morawsky, Commissioner Newall set out the principles relevant to extension of time applications in victimisation matters under s 213(4) of the Act and these were cited with approval by Commissioner Seymour in Janssen at [20]: [9] The general principles applying to waiver of time limits for filing of civil claims at least, which this is, was canvassed at some length by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR at 541. There McHugh J said, in a passage which has been accepted repeatedly by that Court and other Courts since: "The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that where there is delay, the whole quality of justice deteriorates". [10] His Honour goes on, and without reading the whole of the quote, to identify bases from which that central proposition flows, including of course, that people should be able to arrange their affairs on the basis that claims cannot be made once the time period has passed; that has an effect on, particularly, public institutions such as the respondent, which are ultimately taxpayer-funded. [11] His Honour goes on to say that a limitation period is not to be seen as an arbitrary cut-off point, but that it will be the case that even a good case may not be able to run if it is brought out of time and there is no proper basis on which the discretion to admit it should be exercised. [12] In deciding whether to exercise its discretion to allow an out of time application, the Commission must be satisfied that a sufficient reason has been made out by the applicant. The term "sufficient reason" is not defined in the Act. The Full Commission in Griffith Ex-Services Club v Federated Liquor and Allied Industries Employees Union (1993) 51 IR 186 said that it was not appropriate to attempt to formulate a definition of what constitutes a sufficient reason. What that means is that the Commission must then decide whether or not to exercise its discretion in a matter of this kind on the balancing of a range of considerations, including those set out in subs 213(4) of the Act. [13] It is perfectly clear that the prima facie position is that an application brought out of time is excluded and therefore that an applicant bears the positive burden of demonstrating that the justice of the case requires an extension. If an applicant cannot demonstrate that the justice of the case requires an extension, then the prima facie position will prevail, that is the application remains excluded, as the Commission recently held in Tolley v Secretary of New South Wales Ministry of Health [2016] NSWIRComm 1043.
The respondent submits that there is no basis for the Commission to depart from a consideration of the matters in paragraph 24 where an application is amended as distinct from an application being filed. The applicant relies on sub-s 213(4) as the source of power for the Commission to grant leave to amend. Consequently, he does not contradict this submission. Subject to matters of weight, I agree.
The onus is on the applicant to prove that sufficient reason exists for the Commission to accept the amendments to his Victimisation Application out of time and an exercise of discretion is to be an exception rather than the rule: Taylor and Tweed Shire Council [2006] NSWIRComm 125 at [21]. I will make my assessment by reference to the matters contained in paragraphs (a), (b) and (c) of section 213(4). Other matters may also be taken into account, depending on the specific circumstances of each case. In this regard it is relevant to consider the prospects of success of the amendments sought by the applicant: Hurrell v Queensland Cotton Corporation Limited (2002) 125 IR 145 at 150.
I therefore turn to a consideration of the relevant matters.

Length of delay and reason for delay - s 213(4)(a)

The applicant submits that on 8 November 2018 he was provided with investigation and decision-making material of the respondent for the first time, despite requesting this material numerous times earlier. The applicant asserts that this material contains evidence that supports his claim of further incidents of victimisation, the subject of the amendments sought by the motion.
In particular, the applicant relies on not being in receipt of the material in RK19, RK20, and RK21, and therefore unaware of the content of this material until 8 November 2018, as the reason for his delay. By way of example, the applicant points to the following paragraph in Annexure RK20 to support his contention that he has been victimised because of the his use of leave entitlements, and his temporary absence due to illness or injury: Given the length of time that had elapsed during the investigation process, due to a delay in confirming Mr Kinninmont's fitness to receive the allegations and provide a response, it was determined that the investigation would be finalised based on the evidence examined via the complainants' and witness' interviews/statements and his response to the allegations.
On 22 November 2018 the applicant's representative telephoned the respondent's representative to seek consent from the respondent to amend the Victimisation Application to incorporate the additional alleged victimisation of which, he says, he only became aware on 8 November 2018. On 29 November 2018, in response to a request by the respondent's representative, the applicant provided the respondent with a draft copy of the Amended Victimisation Application. The applicant says that once he was aware of the information in RK19, RK20, and RK21 he acted within the 21 days limitation period. The applicant asks the Commission to accept that, in these circumstances, 8 November 2018 is the critical date, rather than the date of the detriment.
I do not accept a limitation period will be extended without limit simply because a party obtains knowledge of evidence or other material that supports that party's case after the limitation period ends. If this were the case then claims may be accepted years after an alleged contravention with great prejudice to the other party and inconsistent with the principles set out by Commissioner Newall in Morawsky and extracted above at [24]. However, the specific circumstances in this case, in which the applicant sought the material from the respondent for some time prior to its receipt are relevant to the exercise of my discretion.
The respondent submits that each of the relevant dates of the alleged detriments in the amendments in the Amended Victimisation Application were out of time not only as at the date the Notice of Motion was filed but were out of date as at 26 September 2018, the date on which the Victimisation Application was filed.
The respondent refers to the dates given by the applicant in an email of 6 December 2018 from the applicant's representative responding to a letter from the respondent's representative dated 4 December 2018: 1. stating that the relevant dates for the victimisation alleged in new paragraphs 5e. of the Amended Victimisation Application (being points a. - d. in the letter of 4 December 2018) and 5g. of the Amended Victimisation Application (being points f. and g. in the letter of 4 December 2018) "run from the time the Council received the IME report of Dr Adam Martin on 7 June 2018 and ongoing to the date of termination and beyond" but noting that the applicant also asserted a right to be interviewed on 5 and 7 September 2018; and 2. suggesting that the relevant date for the victimisation alleged in new paragraphs 5f. of the Amended Victimisation Application (point e. in the letter of 4 December 2018) is August 2018.
The respondent submits that on the basis of the dates supplied by the applicant, the relevant delay for the matters pleaded at 5e. and 5g. of the Amended Victimisation Application from the date that the applicant allegedly suffered the detriment, as set out in the email from the applicant's representative of 6 December 2018, would be from 7 June 2018 to the date that the Notice of Motion was filed, 14 February 2019, a total of 252 days, or 231 days out of time, and in respect of the detriment pleaded at 5f. if the date of 31 August 2018 is taken, 167 days, or 146 days out of time. The length of the delay is relevant to my consideration of whether to grant leave.
It is also relevant that despite allegedly becoming aware of the information contained in the materials on 8 November 2018, the applicant took no steps to provide the respondent with a proposed amendment until 29 November 2018. Then, having been told on 7 December 2018 that any amendment was opposed by the respondent and that the respondent's position was that the date of contravention is taken to be the date the applicant suffered detriment, it took the applicant until 14 February 2019 to file the Notice of Motion seeking leave to amend the Victimisation Application. If the Commission accepted, which it does not, that the date from which the limitation period should be calculated is from the date on which the applicant became aware of the content of RK20, 8 November 2018, then the new matters contained in the Amended Victimisation Claim would be 77 days out of time, a significant period.
The applicant's evidence in the hearing of the motion does not provide a satisfactory reason for this further delay from 7 December 2018 when the respondent's position about the amendments was made clear to the applicant. The applicant's counsel submits that the delay between providing the Amended Victimisation Claim and the filing of the Notice of Motion does not prejudice the respondent because it was on notice of the amendments from at least 29 November 2018.
I consider that, in all of the circumstances, the applicant's reason for the delay from time of the correspondence between the parties in late November / early December 2018 until the filing of the Notice of Motion is unsatisfactory. I have given this factor weight in the exercise of discretion in this matter.

Hardship - s 213(4)(b)

Section 213(4)(b) refers to the hardship that may be caused to the applicant or the respondent if the victimisation application is, or is not, rejected.
The applicant asserts that the hardship to him if the Amended Victimisation Claim is not allowed is that it removes the ability to obtain orders in relation to the matters that he seeks to be included, which could include reinstatement and other consequential orders, such as an order that the investigation be properly conducted in accordance with the guidelines and other provisions, and that this is an important aspect of the applicant's claim.
The respondent accepts that the Commission can reinstate the applicant pursuant to sub-s 213(2)(a) but does not accept that the Commission could make consequential orders pursuant to sub-s 213(2)(g) requiring the respondent to carry out an investigation in the manner in which the applicant thinks an investigation should occur. The respondent submits that such an order is a significant order in its own right. The respondent concedes that sub-s 213(2) does say, "may, in particular, for that purpose", so there is a discretion to go beyond the matters specified in the sub-section, but says that it is a step too far for the Commission to craft orders at the conclusion of a hearing requiring a respondent to take a range of steps in an investigation.
Further, the respondent says that the applicant's claim is futile and therefore the hardship consequent on denying the Amended Victimisation Application is nil. It is in this context that the merits of the applicant's case have particular relevance. It is no hardship to an applicant if he is precluded from running a case he cannot win: Morawsky at [23].
The respondent's submissions regarding the form and content of the orders available to the Commission pursuant to sub-s 213(2), and that the applicant's amended claim is futile, are dealt with below. Nonetheless, I accept that the applicant will experience some hardship in the form of a limitation on his claim if I do not grant leave to amend the Victimisation Application.
It was contended on behalf of the applicant that there was no or little hardship to the respondent if the Amended Victimisation Application was accepted out of time. The applicant refers the content of an email from Mr McElroy to Ms Harvey dated 19 December 2018 about the evidentiary timetable in which Mr McElroy stated: … I don't think the proposed amendment will make much material difference to what we intended to put on so I don't see any issues there.
The respondent asserts that notwithstanding what the applicant says about Mr McElroy's affidavit, at the very least it will have to file further affidavits if amendments are allowed, at least to include paragraphs denying those claims of victimisation. The matters raised by the amendments are not dealt with in the respondent's affidavits in chief, because that was not the claim it had to meet at the time it filed its evidence. .
Despite the content of Mr McElroy's email, and that the respondent has been aware of the issues the applicant raises in the Amended Victimisation Application since 22 November 2018, I accept that there will be some specific hardship to the respondent in dealing with the additional matters raised in the Amended Victimisation Application in its evidence. I also accept that the general consideration that an employer is entitled to consider itself free from suit once legislated time limits have passed is relevant to a consideration of hardship to the respondent. These are relevant to my consideration of whether to allow the Amended Victimisation Application out of time.

Conduct in relation to which the order is sought - s 213(4)(c)

Sub-section 213(4)(c) refers to the "conduct in relation to which the order is sought". In Julie Pritchard v Measurement Resources Pty Limited [2006] NSWIRComm 1151 at [38], the Commission considered pursuant to this sub-section, whether the conduct of the employer was a cause for the delay of the applicant.
The applicant asserts that the conduct of the respondent caused or contributed to the applicant not including the matters which are the subject of the amendments in the Amended Victimisation Application.
The applicant submits that on 28 August 2018 the findings of the investigation were made known to him but he did not receive a copy of the investigation report at that time, he received only a summary of the report. He says that this summary document did not address the actual allegations, and consequently the respondent had to provide the applicant with another document on 30 August 2018 which set out the allegations and whether they were sustained or not pressed. The applicant says that prior to the end of August 2018, Ms Harvey made demands that the threat of the dismissal be removed until the proper process was followed. Subsequently the Unfair Dismissal Application was lodged. Then as a result of findings being made against the applicant in the investigation, he was required to show cause, which he did on 7 September 2018.
On 11 September 2018 there was a review of the response to show cause by the council, so it was an internal review, and that particular document was not shown or supplied to the applicant until on or about 8 November 2018.
On 8 November 2018, the respondent supplied to the applicant: a copy of the investigation report which was redacted so all names had been removed; a review of the response to the show cause, which was an internal document; and reports from Dr Martin, the doctor from whom the respondent had obtained advice as to whether they could supply the allegations or whether the applicant could attend for an interview.
The applicant contends that his representative repeatedly asked for relevant documents and if these had been provided to him when he asked then the matters the subject of the amendments would have been included in the originating Victimisation Application. There was no evidence put before the Commission to establish this. However, I accept, for the purpose of the motion only, that the conduct of the respondent in not providing these materials earlier potentially contributed to the delay.
In Janssen, Commissioner Seymour determined that there was no evidence that the conduct of the employer caused or contributed to the delay (at paragraph [37]). However, Commissioner Seymour also considered that "the conduct generally" and the "nature of the allegations" were relevant to the exercise of her discretion (at paragraphs [38] - [39]).
The respondent acted in a timely manner with respect to the notification of the applicant's intention to amend. Notably on 29 November 2018 it was the representative of the respondent who emailed the applicant's representative seeking a draft copy of the Amended Victimisation Application in order to obtain instructions.
I consider the nature of the allegations under the heading Prospects of Success below.

Prospects of Success of the matters raised by the amendments

The applicant's case as set out in the amendments is that the respondent victimised the applicant: 1. because of the applicant's use of leave entitlements in clause 21 of the Local Government State Award 2017, temporary absence due to illness or injury, and/or his workers compensation claim by: 1. failing to apply policy and procedure correctly and failing to provide procedural fairness (new paragraph 5e.); and 2. closing the investigation prematurely and without warning (new paragraph 5f.); and 1. by failing to interview and meet with the applicant despite multiple requests by the applicant for the same and the applicant was considered medically fit to do so (new paragraph 5g.).
In support of the applicant's contention that the matters pleaded in the amendments give rise to an arguable case, and in addition to the material in RK19, RK20 and RK21, the applicant points to two paragraphs on the final page of Annexure C to Mr Kidd's affidavit that are not contained in Annexure E to Mr Kidd's affidavit, which state: As part of Councils [sic] Conduct of an Investigation Procedure, it would be normal practice for Council to advise Mr Kinninmont of the conclusion of the investigation, provide him advice regarding the outcome and the related recommendation and provide him a period to respond to the recommendation with any new or mitigating evidence. Mr Kinninmont has been on leave since he attended a meeting on the 28 April 2018 and immediately went on leave citing anxiety and depression as the reason for his leave. All of his medical certificates provided were through his General Practitioner; it was not until 7 June 2018 that Council was able to negotiate an appointment with an independent psychologist that Council was able to provide the allegations and obtain a response.
The applicant asserts that the prospect of the amendments to his claim succeeding is good, because of the admissions that have been made by the respondent in Annexures C and E to Mr Kidd's affidavit set out at paragraph 56 and RK20. Further, the applicant submitted that as he is entitled to the benefit of the reverse onus, he clearly has an arguable case.
I have reviewed only a small portion of the evidence that has been filed in this matter and therefore I have not formed any conclusive view about the parties' conduct or liability.
It is apparent on the face of the Amended Victimisation Application that the applicant has an arguable case that policies and procedures were not applied correctly and that he was not interviewed, and thus the investigation was closed prematurely. I agree that the applicant is entitled to benefit from the reverse onus but the reverse onus requires the applicant to establish that the relevant matters in sub-s 210(1) apply to him. It is also apparent from the limited amount of evidence that I have considered, that as the respondent submits, that there are two further factors relevant to an assessment of the claim even on a prima facie basis: 1. whether the applicant's temporary absence due to illness or injury; and his workers compensation claim complaints are not matters within sub-s 210(1)(e) the Act; and 2. whether the relief sought is available under s 213(2) of the Act.

Sub-section 210(1)(e) of the Act

In respect of new paragraphs 5e. and 5f. the applicant alleges he was not treated in accordance with policy and not interviewed because he was making use of leave entitlements in clause 21 of the Local Government (State) Award 2017 and/or he was temporarily absent due to illness or injury; and/or because of his workers compensation claim.
I am of the view that the applicant's use of leave entitlements pursuant to cl. 21 of the Local Government (State) Award 2017 is a matter within sub-s 210(1)(e) of the Act. However, the applicant has not established that being temporarily absent due to illness or injury is a matter within sub-s 210(1)(e) of the Act other than by making use of leave entitlements in clause 21 of the Local Government (State) Award 2017. This is relevant to my exercise of discretion to grant leave to accept the amendments out of time.
Further, "Industrial relations legislation" is defined in the dictionary of the Act as: industrial relations legislation means any of the following Acts and the regulations made under any such Act: This Act Annual Holidays Act 1944 Employment Protection Act 1982 Long Service Leave Act 1955 Long Service Leave (Metalliferous Mining Industry) Act 1963.
Accordingly, the applicant has not established that his workers compensation claim injury is a matter within sub-s 210(1)(e) the Act. This is relevant to my exercise of discretion to grant leave to accept the amendments out of time.
The amendments sought under new paragraph 5g. do not disclose any condition protected from victimisation pursuant to sub-s 210. This is relevant to my exercise of my discretion to grant leave.

Orders under s 213(2)

The applicant concedes that the applicant's use of leave entitlements in clause 21 of the Local Government (State) Award 2017; the applicant's temporary absence due to illness or injury; and his workers compensation claim, the conditions that he now seeks to include in the Amended Victimisation Application and which he asserts are matters which fall under s 210(1)(e), were not the reason for the termination of his employment.
The case advanced by the applicant is that the processes leading up to the termination of his employment were improper or not in accordance with policy or procedure because of the applicant's leave or use of entitlements or benefits under industrial relations legislation or an industrial instrument. This is the alleged victimisation he seeks to include through the Amended Victimisation Application.
The Amended Victimisation Application does not set out any proposed amendments to the orders sought by the applicant. Nevertheless, the applicant submits that the prejudice that would be suffered by him if the amendments are not allowed includes that the applicant, if reinstated, could not obtain orders requiring the respondent to engage in a proper investigation process.
It is unclear under which of the specified orders the Commission may make pursuant sub-s 213(2) that the applicant purports such orders are available.
The respondent submits, and I agree, that such orders are not available under sub-s 213(2)(e) which provides for an order not to carry out threats of victimisation or not to make any further threats. The matters alleged by the applicant: failure to apply policy and/or procedure, failure to provide procedural fairness, closing the investigation prematurely, and denying the applicant capacity to participate in an interview are not threatened actions, they have either occurred or are occurring. Accordingly, I do not see how s 213(2)(e) applies.
The relevant heads of power to make orders are, in the circumstances, limited to sub-ss 213(2)(a), (c) and (g). I have not formed a conclusive view that the orders that the applicant submits he would be precluded from seeking if I were not to grant leave to allow the amendments, such as orders about how an investigation is to proceed, would or would not be available pursuant to sub-s 213(2)(g). However, it is clear that unless the applicant is successful in obtaining reinstatement or re-employment pursuant to sub-s 213(2)(a), any orders pursuant to sub-s 213(2)(g) in relation to an investigation would not be available. This is a matter relevant to my consideration of leave.

Consideration

The prima facie position is that the variations sought to the Victimisation Application are excluded as being out of time. The onus is on the applicant to prove that sufficient reason exists to accept the out of time aspects. I have balanced a range of relevant considerations, in particular those in s 213(4), and the prospects of success of the matters raised by the amendments and the particular circumstances of this matter.
Weighing against the granting of leave in the applicant's favour are the following: 1. the length of time that the amendments were "out of time": the period between the date of the receipt by the Council of the IME Report being the date of the contraventions alleged in new paragraphs 5e. and 5g. and the filing of the Notice of Motion being 252 days; and the period between the approximate date the investigation was closed and the filing of the Notice of Motion being the date of the contravention alleged in new paragraph 5f. being 167 days; 2. a less than compelling reason for delay between 7 December 2018 and 14 February 2019 given on behalf of the applicant, 3. my view that "temporary absence due to illness or injury" and a "workers compensation claim" are not matters within sub-s 210(1)(e) of the Act; 4. my view that the orders relating to the conduct of an investigation are only available if the applicant is reinstated, if at all, such that the significant hardship that the applicant asserts would befall him if the Amended Victimisation Application was not allowed should be discounted; and 5. the applicant's failure to seek any amendments to the orders he seeks in the Victimisation Application.
I consider that it is nevertheless in the interests of justice to allow limited variation of the Victimisation Application out of time, for reasons including the following: 1. I accept on the balance of probabilities that if the applicant had been aware of the content of RK19, RK20, and RK21, in particular that information set out in paragraph 29, then he would have included allegations relevant to these matters in the Victimisation Application. I also accept that the applicant asked for this material prior to the termination of his employment and that the respondent contributed to the delay by not providing this material earlier; 2. once in receipt of the material referred to above, the applicant notified the respondent within 21 days of his intention to amend the Victimisation Application; 3. the applicant has an arguable case that because he claimed the benefit of leave pursuant to clause 21 of the Local Government (State) Award 2017 that the policies and procedures set out in paragraph 9 of the Victimisation Application were not applied correctly and that he was not interviewed, and the investigation was closed prematurely. If the matters pleaded in the Victimisation Application are determined in the applicant's favour then the Commission could make an order pursuant to sub-s 213(2)(a) for reinstatement or re-employment; and/or an order pursuant to sub-s 213(2)(c) and/or consequential orders pursuant to sub-s 213(2)(g); and 4. the limited hardship to the respondent if leave is granted to the applicant to amend the Victimisation Application.

Orders

I order as follows: 1. Leave is granted to the applicant to amend the Victimisation Application to include: 1. at point 5, under the heading "Alleged Victimisation": "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;" 1. under the heading "Particulars of Victimisation" at point 6: "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 was entitled under the industrial relations legislation or an industrial instrument." 1. at point 9, as set out in the Amended Victimisation Application: "being the Procedures for the Administration of the Code of Conduct" and 1. a new point 12: "The Respondent states at page 2 of the memorandum from Rod Kidd to Jennie Keato dated 11 September 2018 headed 'Review of Kinninmont Response to Show Cause': 'Given the length of time that had elapsed during the investigation process, due to a delay in confirming Mr Kinninmont's fitness to receive the allegations and provide a response, it was determined that the investigation would be finalised based on the evidence examined via the complainants and witnesses' interviews/statements and his response to the allegations.'" 1. All other allegations and other amendments contained in the Amended Victimisation Application are rejected on the basis they are brought out of time.

Directions

I direct as follows: 1. The applicant is to file and serve by 4:00pm on 29 April 2019, an amended application for relief from victimisation by the respondent, Ku-ring-gai Council, pursuant to s 213 of the Industrial Relations Act 1996 reflecting the orders set out in (1) and (2) above. 2. Any application by the respondent regarding the filing and service of any additional evidence and any application in respect of any costs thrown away as a consequence of the amendments by the applicant should be made to the Commission by 4:00pm on 1 May 2019. N J CONSTANT Commissioner

Amendments 26 April 2019 - Date of applicant's employment termination altered from 13 September 2019 to 13 September 2018 in paragraph 1; Victimisation Application altered to Amended Victimisation Application in paragraph 43; Paragraph 47 - as in paragraph 43; Local Government State Award 2017 altered to Local Government (State) Award in paragraphs 60, 61, 65, 73(3), 74(1)(a)e.(ii), 74(1)(b)f. 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: 26 April 2019

Industrial Relations Act 1996(NSW)ss 170, 210, 213

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (12)

Cited By (2)