CEO's past connection to worker raises bias concerns and 'victimisation' claim
The New South Wales Industrial Relations Commission (IRC) recently dealt with a case involving a worker's claim of victimisation by their former employer.
The worker alleged that the employer's current CEO, who was previously the CEO of the worker's former employer, refused to appoint them to a new position due to their participation in earlier unfair dismissal proceedings.
The case revolved around issues of employment history, recruitment processes, and the reasons behind the employer's decision not to proceed with the worker's appointment.
Application for Relief
The worker filed an Application for Relief from Victimisation under the state’s Industrial Relations Act 1996 on 26 July 2023.
In their application, the worker set out the basis of their claim, stating that they had been appointed as a senior management accountant at Georges River Council (GRC) in October 2017 on a two-year contract.
However, their employment was "terminated prematurely on 7 January 2019 by the GRC Council under the leadership of Gail Connolly, the then General Manager."
The worker filed an Application for Unfair Dismissal in the IRC. After a three-day hearing in June 2019, the worker claimed that "the Commission determined the Applicant's termination to be unfair within the meaning of Part 6 of the IR Act -Unfair Dismissals." The matter was eventually settled between the parties.
No offer of employment
In June 2023, the worker was shortlisted and interviewed for the role of senior finance business partner at Parramatta Council.
They were offered the position, but a member of the Parramatta Council's Senior Management team refused to sign the offer of employment.
The worker alleged that Connolly, now the General Manager of the supposedly new employer, Parramatta Council, had victimised them within the meaning of section 210(2) of the IR Act by refusing to appoint them to the role "because he participated in the proceedings of an industrial nature i.e. Unfair Dismissal Matter in 2019."
Recruitment process and employer's decision
The IRC examined the recruitment process at the City of Parramatta Council. It found that there was some ambiguity as to whether the worker had been formally offered the position, with various communications suggesting a conditional offer had been made and withdrawn before it became unconditional.
Connolly, in her evidence, stated that she took the decision to end the recruitment of the worker. She articulated clear reasons for her decision, based on her previous observations and understanding of the worker's work ethic during their time at GRC.
She said that the worker had shown problematic behaviour, such as faking injuries and going to the gym during work hours. Meanwhile, Connolly stated that she "would not appoint [the worker] to any position in Council for as long as the functions of section 335 are conferred upon myself."
Worker’s performance
The worker sought to challenge Connolly's assertions about their performance at his past work in GRC, denying allegations of faking injuries or using work time to attend the gym.
The worker also attempted to rely on evidence from the previous unfair dismissal proceedings to establish that they were a high-performing employee at GRC.
However, the IRC said that it did not receive this evidence, as the relevant witness from the earlier proceedings was not called to give evidence in the current matter.
It said that the statements from the previous proceedings did not clearly endorse the worker as a high performer but rather repeated GRC's position that the worker was not dismissed for performance issues but because their services were surplus to GRC's needs.
CEO’s alleged bias
The IRC had to determine whether Connolly's evidence about her involvement in the previous unfair dismissal proceedings should cause doubt about her stated reasons for ending the worker's recruitment at the City of Parramatta Council.
The worker raised several arguments challenging the credibility of the CEO's evidence, which the IRC addressed in turn.
Firstly, the worker denied engaging in misconduct at his previous employer, but the IRC accepted that the CEO genuinely believed he had engaged in such conduct based on reports from her subordinate managers.
Secondly, the worker argued that the CEO's concerns about managing him at his previous employer were implausible, but the IRC found that her expressed views, while perhaps uncharitable and unfair, were consistent with her overall perspective and added to her credibility.
Thirdly, the worker challenged the CEO's evidence regarding his performance at his previous employer, but the IRC noted that it was not necessary to determine whether he was a high-performing, low-performing, or acceptably performing employee. It was sufficient that the CEO's views were genuinely held.
The worker also argued that the CEO should have excused herself from the recruitment process and that her intervention gave rise to a strong inference of an ulterior motive. However, the IRC did not accept this argument.
The Commission’s decision
The IRC concluded that none of the worker's submissions, taken individually or together, undermined the CEO as a witness of truth.
It said that the CEO impressed the IRC as a witness whose evidence was to be believed.
Consequently, the IRC determined that the only reason the employer refused to employ the worker was that the CEO had a strongly negative view of his work performance and work ethic, reinforced by the opinion of a referee.
Thus, the IRC ultimately dismissed the victimisation claim against the employer.
