Recent decisions of NSW Administrative Decisions Tribunal

While we remain one of the few organisations continuing to report on decisions of the NSW Industrial Relation Commission, the seriously decreasing number of matters being litigated in this forum poses great pressures on the identification of cases that are of relevance to investigators.

Accordingly, this month we will look at recent decisions from a NSW tribunal that appears to have a growing volume of matters to deal with – the NSW Administrative Decisions Tribunal.
Over the last months, a number of cases of relevance have been decided on. These two from its Appeal Panel are seen as providing relevant and timely guidance to you:

Tweed Shire Council ordered to reveal identity in GIPA appeal

In a case before the Appeal Panel of the NSWADT in October 2013 a development company, Leda Developments, sought details of the identity of a person who had been in an email exchange with Council’s director of planning, Mr Vince Connell, objecting to the company’s large development.

When the matter was decided by the NSWADT in May, 2013 it found, on balance when assessed against the requirements of GIPA, that the public interest consideration against the disclosure of person A’s name and email address outweighs the public interest consideration in favour of disclosure.

On appeal to the Appeal Panel, Leda Developments drew the Tribunal’s attention to internal references in the texts released that suggested person A had made their enquiries to Mr Connell on behalf of an ‘association’ and submitted that any reference to an organisation could not be treated as ‘personal information’ within the meaning of GIPA. The Appeal Panel agreed with this submission, upholding the appeal and permitting disclosure of the name of the organisation but not of person A.

Leda Developments Pty Ltd v Tweed Shire Council [2013] NSWASPAP 50

 

ADB decision to dismiss complaints of racial discrimination + victimisation overturned

Sitting as the appeal bench of the NSW Anti-discrimination Board, the Appeal Panel has highlighted the difficulties employers face in dealing with complaints from employees that contain minimal details.

In May 2012 Grazyna Imielska working as a technical Assistant at RNS Hospital complained she was being discriminated against due to her race (Polish) and age (54) by being deemed ineligible to apply for appointment as a trainee sonographer (performing ultrasounds) in 2010 due to the Hospital’s policy of only appointing employees who were already employed as radiographers.

She also made complaints about comments made by managers who met with Ms Imielska after she had complained, or who made casual remarks to Ms Imielska about not being able to understand her, or inquiring about whether she had grandchildren.

At first instance, the Tribunal dismissed Ms Imielska’s complaints on the basis that her complaints lacked substance and did not disclose a specific contravention of the Anti-Discrimination Act 1977. On appeal, the Appeal Panel held more than just an assertion of insufficient grounds is needed to dismiss complaints of race discrimination and that instead, the Tribunal at first instance should have made deeper enquiries.

On the issue of victimisation, the Appeal Panel commented that “there is rarely direct evidence of a link between alleging discrimination and the victimising behaviour. Respondents do not typically tell an applicant that they are being punished for having made a complaint. Nevertheless there may be evidence from which such an inference can be drawn and the Tribunal appears not to have acknowledged that that was a possibility.”
Accordingly, they upheld the appeal and set aside the Tribunal’s decision at first instance.

Imielska v Northern Sydney Local Health District [2013] NSWADTAP 49

 

Implications of these decisions for investigators

  • The Tweed Council decision further clarifies the approach of the ADT to applications for access to confidential documents held by Councils. It shows the ADT will continue its preference for protecting the names of individuals under GIPA on the basis that this outweighs the public interest to disclose such details. However, by being ready to disclose other details, the ADT appears to be signalling a limit to this protection – for example, one that could result in redacted details of investigation reports being released under GIPA.
  • The NSLHD decision puts organisations on notice that a lack of specificity in discrimination or other ADB complaints may not be sufficient to allow the Board or ADT on appeal to simply dismiss the complaint – unless efforts to clarify the complaint can be demonstrated by the employer.

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