Case reveals why prompt action matters in workplace disputes
The Industrial Relations Commission of New South Wales recently dealt with workplace victimisation claims from a worker who argued his employer took detrimental actions against him after he questioned changes to his role and responsibilities.
The worker sought relief under sections 210 and 213 of the Industrial Relations Act 1996 (New South Wales), claiming multiple instances of victimisation, including suspension of flexible work arrangements, misconduct allegations, and what he described as ongoing detrimental treatment spanning several months.
The matter highlighted important considerations around time limits for workplace claims and what constitutes detrimental treatment in employment law.
The worker had been in his role since 2000 as a Wide Area Network specialist in Technology Operations. In 2022, he secured a flexible working arrangement allowing him to work from home two days weekly to care for his elderly mother.
Over the next four to five years, the worker maintained that his employer made significant changes to his duties without proper consultation. He stated he had "made many complaints about this since at least 2023."
During submissions to the Commission, the worker explained the core issue: "a large part of all the employment issues that I'm having in the workplace really come back to one core issue – what is my substantive position?"
In July 2023, tensions escalated when the worker emailed his director about taking sick leave while questioning his duties. He wrote: "I really need an answer [from] either [employer] or the Premiers (sic) department as to: 'do I have to do work that is not part of my substantive position?'"
The director responded by suspending the worker's work-from-home arrangement, stating it "doesn't appear appropriate for you." The director also imposed new requirements, including mandatory medical certificates for any sick leave and advance notice for other leave types.
By October 2023, these restrictions remained in place "until further notice," despite the worker's objections. He argued these actions were retaliatory, writing in one email: "I should not be forced to return to work when i have soo much leave just so i can be intimidated and targeted more."
The situation further deteriorated in March 2024 when the employer alleged misconduct during a February meeting, claiming the worker had behaved "unreasonably and unprofessionally" toward his director.
The worker's legal representatives argued that these actions constituted victimisation under section 210 of the Industrial Relations Act 1996, stating: "[by] subjecting [the worker] to disciplinary action because [the worker] made complaints about workplace matter that he considers is not safe or a risk to health, [the employer] has engaged, and is continuing to engage in victimisation."
The worker claimed these actions caused significant distress, damaged his professional reputation, and impacted his wellbeing.
He gave evidence that: "This means that there will always be a record of the fact that misconduct findings have been made, which will impact my career and future opportunities."
The Commission found that most of the worker's claims were filed outside the required 21-day timeframe under section 213(3) of the Industrial Relations Act 1996 (New South Wales).
Commissioner McDonald explained: "The date of the contravention is taken to be the date [the worker] suffered detriment." The Commission emphasised that: "The limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society."
While acknowledging the worker's attempts to resolve matters internally, the Commission noted: "While it is understandable that a person would want to avoid litigation, and all that it entails, that desire, even combined with legitimate efforts to avoid it, is not a basis to be excused from the requirement to commence proceedings within the time stipulated by the legislature."
The Commission ordered that the worker could only proceed with his claim regarding the June 2024 misconduct findings, as this was the only claim filed within the statutory timeframe.
The worker received permission to file an amended application by January 31, 2025, limited to "the alleged act of victimisation constituted by the substantiation, on 17 June 2024, of the allegations made in the letter from [the manager] to [the worker] dated 13 March 2024."
The Commission scheduled the matter for further directions on February 6, 2025, with all other claims being struck out due to time limitations.
