Commission looks for proof of serious misconduct
The New South Wales Industrial Relations Commission (IRC) recently dealt with two applications filed by a worker: an unfair dismissal application related to a threatened dismissal and an application for relief from victimisation.
The worker, represented by the Health Services Union, sought an order to prevent dismissal until the hearing of the applications.
The worker's affidavit set out high-level allegations that the disciplinary procedure they had been subjected to arose because of union activity, membership, or assertion of other protected workplace rights. The worker also denied engaging in certain conduct that could lead to their dismissal.
The worker, a healthcare worker, showed evidence that a hospital executive had proposed to recommend to the chief executive of the local health district that the worker be dismissed.
The IRC was satisfied that this constituted a threat of dismissal, which could amount to victimisation.
The IRC referred to two tests for the Commission to apply when considering interim orders:
"(i) whether there is a sufficient likelihood of success by the three officers to justify in the circumstances the preservation of the status quo pending the final hearing, status quo in this case being understood to be the suspension of the three officers on pay;” and
“(ii) whether the inconvenience or injury which the three officers would be likely to suffer if their interlocutory applications were refused outweighs or is outweighed by the injury which the respondent would suffer if the applications were granted."
The IRC had some concerns about the unfair dismissal application, but ultimately concluded that there was a prima facie case, reinforced by the fact that the employer would need to prove the alleged misconduct to the Commission's satisfaction.
In considering its decision, the IRC took into account the worker's unchallenged evidence of financial difficulties and the risk of losing their house if dismissed.
The IRC agreed with the worker that he faced a threat of dismissal. It also noted that the worker had not been suspended, suggesting that the employer was content to have the worker in the workplace while working through its processes.
The IRC acknowledged some detriment or inconvenience to the employer in being unable to complete its disciplinary processes and having to keep in its employ a person alleged to have engaged in serious misconduct. However, this had to be balanced against the more serious loss the worker would suffer.
Thus, the IRC issued orders in favour of the worker and said the employer was not allowed to dismiss him until the allegations against him are made out in a proper proceeding.
