Kardell v South Eastern Sydney Area Health Service - [1997] IRCA 261

DECISION NO:261/97

CATCHWORDS

INDUSTRIAL LAW - EMPLOYMENT LAW - TERMINATION OF EMPLOYMENT - Consideration of the meaning of VALID REASON - A wide range of allegations were made against the applicant, concerning HER CONDUCT AND PERFORMANCE, almost all of which the respondent failed to prove - In particular, a multiplicity of allegations concerning improper and intimidatory conduct by the applicant were fabrications - The limited extent to which the allegations against the applicant were proven did not establish that her conduct or performance had been such as to warrant the termination of her employment - If the penalty of termination of employment is out of proportion to the seriousness of the conduct complained of, then the termination of employment will not be justifiable, and will not be for a valid reason - TERMINATION OF EMPLOYMENT UNLAWFUL, as not for a VALID REASON.

INDUSTRIAL LAW - EMPLOYMENT LAW - TERMINATION OF EMPLOYMENT - The Acting Chief Executive Officer of the respondent, who made the decision to terminate the applicant’s employment, made that decision upon the basis of a memorandum which contained serious factual errors concerning the applicant’s conduct. Those matters (being mistakes by the author of the memorandum) were never put to the applicant before the termination of her employment - As a result, the applicant never had the OPPORTUNITY TO RESPOND to them required by section 170DC of the Act, and the termination of her employment was UNLAWFUL.

INDUSTRIAL LAW - EMPLOYMENT LAW - TERMINATION OF EMPLOYMENT - REINSTATEMENT - Whether APPROPRIATE - Whether IMPRACTICABLE - Consideration of the principles involved in determining whether it is IMPRACTICABLE to order REINSTATEMENT - REINSTATEMENT is the primary remedy for an unlawful termination of employment, and should therefore be ordered, unless the Court finds it IMPRACTICABLE so to do - “Impracticable” means something less than impossible, but reinstatement will not be impracticable if it is merely inconvenient, difficult, or disruptive, without causing an unacceptable problem, or unacceptable embarrassment, or seriously effecting productivity, or seriously effecting harmony within the employer’s business. Any adverse consequences to the employer are relevant, but it must be remembered that an employee whose employment has been unlawfully terminated has suffered an injustice and that should be made right, if it can.

Workplace Relations Act 1996, ss: 170DC, 170DE(1), 170EDA(1)(a), 170EE, 482

Anthony Smith and Associates Pty Ltd v Sinclair (1996) 67 IR 240

Cox v Australian Meat Corporation Pty Ltd, von Doussa J, Industrial Relations Court of Australia, 14 June 1995, unreported

Fargie v Freedom Foods (Aust) Pty Ltd, Industrial Relations Court of Australia, Parkinson J, 14 October 1996, unreported

Johns v Gunns Ltd, [1995] 60 IR 258

Kerr v Jeroma Pty Ltd, Industrial Relations Court of Australia, Marshall J, 7 October 1996, unreported

Malik v Bank of Credit and Commerce International S.A. (In Compulsory Liquidation) [1997] 3 WLR 95

Nicolson v Heaven and Earth Gallery Pty Ltd [1994] 1 IRCR 199

Patterson v Newcrest Mining Ltd, Industrial Relations Court of Australia, Marshall J, 21 December 1995,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kardell v South Eastern Sydney Area Health Service

Details

AGLC: Kardell v South Eastern Sydney Area Health Service [1997] IRCA 261
Case: [1997] IRCA 261
Decision Date: 08 September 1997

CaseChat Overview and Summary

Kardell brought proceedings against the South Eastern Sydney Area Health Service regarding the termination of her employment. The applicant alleged that her dismissal was unjust, particularly as it related to her conduct and performance as a medical officer. The case was heard in the Industrial Relations Commission of New South Wales, where the primary focus was on the validity of the reasons provided for her termination.

The central legal issues revolved around the interpretation and application of the concept of "valid reason" for dismissal under the applicable employment legislation. The applicant contested the adequacy and sufficiency of the reasons provided by the respondent, arguing that the allegations against her were not substantiated. The court had to determine whether the respondent had demonstrated that the termination was justified based on her conduct and performance.

The court examined the evidence and found that while a wide range of allegations were presented, the respondent failed to prove almost all of them. Specifically, the court highlighted the lack of substantiation for numerous allegations concerning the applicant's conduct and performance. The court concluded that the respondent did not provide sufficient evidence to support the claim that the applicant's conduct warranted termination. Consequently, the court found that the dismissal was not based on a valid reason, and the applicant's termination was therefore unjust. The court ordered the respondent to pay compensation to the applicant for the unlawful termination of her employment.

Orders