Kirkham v Industrial Relations Commission

This matter concerned an appeal to the Full Commission of the Industrial Relations Commission of South Australia, brought by Mr Kirkham against his dismissal. The dispute centred on whether the dismissal was harsh, unjust, or unreasonable, and whether procedural fairness had been afforded to Mr Kirkham during the dismissal process.

The legal issues before the Full Commission included whether the failure to expressly consider a specific ground for dismissal (failure to truthfully answer) rendered the dismissal unjust, and whether a failure to comply with section 54(3) of the Public Sector Management Act 1995 (SA) (PSA) constituted a jurisdictional error or a breach of procedural fairness. The court was required to determine if any such procedural non-compliance had caused injustice to Mr Kirkham and, if so, whether relief should be granted.

The Full Commission, in its decision, found that the failure to expressly advert to the "fail to truthfully answer" ground did not render the dismissal unjust. Furthermore, it concluded that any failure to comply with section 54(3) of the PSA was insignificant and could not reasonably be found to have caused any injustice to Mr Kirkham. The court reasoned that there was no procedural reason to refrain from dismissing Mr Kirkham on the grounds that were amply justified, and that the non-compliance with section 54(3) PSA was inconsequential. Despite acknowledging a jurisdictional error by the Full Commission, the court exercised its discretion to refuse the relief sought by Mr Kirkham, deeming the grant of relief to be futile. Consequently, the plaintiff's action was dismissed.