Last week, the NSW Supreme Court delivered judgment in proceedings that addressed the operation of the ‘reverse onus’ in victimisation proceedings brought under the Industrial Relations Act 1996 (NSW).
In dismissing the application for judicial review of decisions made by the NSW Industrial Relations Commission, both at first instance and on leave to appeal, the Court drew a distinction between a “detriment” that is imposed upon an employee, and the process by which that detriment is implemented. The Court determined that, “[t]he statute is not concerned with a “process”. It is concerned with detrimental action that the employee has identified and established, and with what caused the employer to take it”.
The Court concluded that an applicant for relief must properly identify and particularise the detriment they allege they have suffered, as that is “necessary to give procedural fairness to the employer in proceedings under s 213”. By way of illustration, the Court stated that, “unless any steps (call them A, B and C) that preceded the detrimental action (call it D) which the applicant has identified and established are themselves relied on as separate detriments, A, B and C are relevant only to the extent they bear on the cause of D. And if A, B or C are to be relied on as separate detriments, the applicant must separately identify and establish them”.
The Court otherwise concluded that, before the ‘reverse onus’ on an employer is enlivened, an applicant for relief in victimisation proceedings must positively allege that a detriment has been imposed on them because they have a protected attribute under s 210(1) of the Act.
Martin Watts appeared for the Commissioner of Police, as he did at first instance and on appeal before the NSW Industrial Relations Commission, instructed by Emily Baxter at Kingston Reid. The Commissioner was successful in all three decisions.
A link to the Supreme Court’s decision can be found here.
