Decision maker’s failure to give evidence leads to successful claim
18 September 2020 by Nes Demir
A pool duty manager (Mr Vaulin) made various complaints related to his temporarily increased workload, including that it was beyond the scope of his role, required him to remain back at work beyond his rostered time which was prohibited by his employer and impacted his health. He subsequently made further complaints of bullying, harassment and adverse action.
His employer, City of Parramatta Council, investigated his complaints as well as allegations of misconduct and policy breaches which had been made against Mr Vaulin by the aquatics manager. The Council issued him with formal warnings for his misconduct and failing to follow repeated directions not to stay on site beyond his rostered times. The Council later issued him with a disciplinary letter accusing him of falsifying his timesheet. He was summarily dismissed by the Council’s acting chief executive for repeatedly failing to follow directions and providing false or misleading information.
Mr Vaulin made two claims, one being that he was victimised because he made the various complaints and the second being that he was unfairly dismissed. He discontinued his unfair dismissal matter on the first day of the hearing.
The Council could not discharge its onus of proof to demonstrate the real reason behind the dismissal, because its acting chief executive would not provide evidence. He was retired at the time of the hearing. As such, the Commissioner had to accept the real reason for dismissal was because Mr Vaulin made the various complaints. Mr Vaulin was awarded 12 weeks’ pay.
- The direct testimony of the decision maker is central to a defence to a victimisation claim. The retirement of a decision maker is not a sufficient explanation for their failure to give evidence. Without the decision maker giving evidence, a defence to a victimisation claim cannot be made out. In this case, the Council provided plenty of evidence of its legitimate concerns with respect to Mr Vaulin’s conduct at the time of termination, but still failed due to the absence of evidence from the decision maker.
- There should only be one decision maker. Where there is a group of decision makers, the burden to discharge the onus of proof increases – each and every decision maker will need to satisfy the Commission that the reasons claimed of were not the substantial or operative reasons for the dismissal or other detrimental action taken against the employee.
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