Discrimination cases — costs and interim order

Cases

Discrimination cases — costs and interim order

$90,000 costs payable in unfair dismissal/discrimination case; Interim order pending result of victimisation claim.

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$90,000 costs payable in unfair dismissal/discrimination case; Interim order pending result of victimisation claim.

$90,000 costs payable in unfair dismissal/discrimination case

A man who had been awarded reinstatement plus almost $45,000 damages for unfair dismissal when his employer (Queensland Department of Corrective Services) forced him to retire on medical grounds (knee injuries) has now been awarded almost $90,000 in costs by the Queensland Anti-Discrimination Tribunal.

Background

The man, a 54-year old prison officer, had injured both his knees in non-work-related accidents. The Tribunal found that he could still perform the genuine occupational requirements of his job without risk to the health and safety of himself or others, although at a below average performance level. Therefore, discrimination had resulted from lack of consultation with him about his injuries and his plans for future surgery, failure to allow him to complete workplace rehabilitation programs that he had commenced, forcing him to have a medical examination, and then forcing him to retire.

A later decision considered his application to have the employer pay his legal costs. He lodged a claim for payment of costs of just over $90,000 and the Tribunal ordered the Department to pay almost all ($89,776.52) of this amount.

In context of unfair dismissals

The employee's legal costs of this case were almost exactly double the amount of damages he received. This is significant given that many employees no longer covered by 'unfair dismissal' protections under the WorkChoices legislation will now have to consider pursuing remedies under anti-discrimination legislation instead - although, in this particular case, the employee would have retained the choice of both options as WorkChoices had not commenced at the relevant time.

Toganivalu v State of Queensland & Anor (No. 2) [2007] QADT 3 (6 February 2007)

The original decision is reported in another article.

Related

Previous WorkCover claim - employee unfairly sacked

Interim order pending result of victimisation claim

An employee of RailCorp NSW applied for an interim order preventing the finalisation of three disciplinary investigations into his conduct, until after a claim of victimisation he had lodged with the NSW Anti-Discrimination Board had been determined.

He claimed that the investigations had commenced after he had given evidence on behalf of another RailCorp employee in a discrimination case she had instigated against RailCorp. After the investigations commenced, he lodged his own complaint with the Board, of victimisation by RailCorp, claiming the investigations commenced because he had given evidence in the case. The investigations had not concluded at that time and no disciplinary action had been taken, so the employee applied for an interim order to prevent any further action being taken against him.

The alleged issues being investigated were: sharing confidential information about job applicants, failing to do graffiti inspections of RailCorp property, and allowing alcohol on RailCorp premises during a work party.

Real issue to be tried

The Board granted the interim order. It found that there was 'a real issue to be tried', taking into account the proximity of the investigations to the employee's giving evidence, the number of investigations and the fact that the employee had been subject to previous disciplinary action only once in 35 years of employment. These issues outweighed the 'public interest' in having the disciplinary investigations finalised expeditiously. In other words, the 'balance of convenience' in this case rested with the employee.

Masters v Rail Corporation New South Wales [2007] NSWADT 45 (27 February 2007)

Related

Stop order sought to block dismissal

  

 

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