Pelechowski v NSW Land & Housing Corp

FEDERAL COURT OF AUSTRALIA

Pelechowski v NSW Land & Housing Corp [1999] FCA 1110

INDUSTRIAL LAW – Termination of Employment – alleged termination on basis of applicant being a whistle-blower – Serious Misconduct – Failure of Applicant to address substance of performance of conduct

KARL PELECHOWSKI v NSW LAND AND HOUSING CORPORATION
NG 2875 of 1995

JUDICIAL REGISTRAR:    WALKER
DATE:  13 AUGUST 1999
PLACE:  SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 2875 OF 1995

BETWEEN:	KARL PELECHOWSKI Applicant
AND:	NEW SOUTH WALES LAND AND HOUSING CORPORATION Respondent
JUDICIAL REGISTRAR:	WALKER
DATE OF ORDER:	13 JULY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Application be dismissed

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 2875 OF 1995

BETWEEN:	KARL PELECHOWSKI Applicant
AND:	NEW SOUTH WALES LAND AND HOUSING CORPORATION Respondent

JUDICIAL REGISTRAR:	WALKER
DATE:	13 JULY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE CLAIM:

1. Mr Pelechowski, the applicant in these proceedings, filed his application for unlawful termination on 14 July 1995 and, later on 20 October 1995, an affidavit in support.  The matter came before the Court on a number of direction hearings and was listed for hearing for eight days commencing on 4 November 1996.  These dates were vacated when the Court became aware of criminal proceedings instituted by the applicant against the Director of the NSW Land and Housing Corporation, pursuant to the Protected Disclosures Act 1994.  (The NSW Land and Housing Corporation is referred to as “the Department” hereinafter.)  Despite these proceedings having been dismissed on the basis of no prima facie case on 27 May 1997, the matter remained dormant until called over by the Court on 23 April 1999 to determine its status.  Subsequently, it was set down for hearing for three weeks commencing on 28 June 1999.

2. The applicant relied on his evidence attested to in his Affidavit of 19 October 1995 as well as oral evidence.  From this evidence the claim would appear to be as follows:

   a.Breach of s 170 DE(2) in that the termination was harsh, unjust or unreasonable (this section now invalid).

   b.Breach of s 170 DC in that the applicant did not have an opportunity to respond to the allegations against him.

   c.Breach of s 170 DF(1)(a) that the applicant was terminated because of temporary absence from work because of illness or injury.

   d.Breach of s 170 DF(1)(e) that the applicant was terminated for the filing of a complaint, or the participation in proceedings, against his employer involving alleged violation of laws or regulations or recourse to competent administrative authorities.

   e.Breach of s 170 DF(1)(f) that he was terminated because of physical disability, perceived mental disability, race and family responsibilities.

   f.Breach of s 170 DB(1) that the applicant was not given the statutory period of notice pursuant to the Act.

3. Added to these breaches of the Act, the applicant alleges…