In a recent decision, the NSW Industrial Relations Commission (the “Commission”) has confirmed that it has the power to order the withdrawal of a written warning issued by an employer to one of its employees.

In the case, an employee made a complaint to her employer about the conduct of another employee who she alleged was unsafe and a risk to her safety. The employee who made the complaint was then the subject of improper conduct allegations, an investigation followed and the employee was issued with a written warning.

The employee filed a victimisation application with the Commission seeking to have the written warning withdrawn, claiming it was issued as a form of retaliation. The employee relied on a section of the Industrial Relations Act 1996 (NSW) (the “NSW IR Act”) which lists a number of orders that the Commission has the power to make to remedy victimisation.

In the first instance decision, the Commission found that it did not have the power to make an order to withdraw the written warning, as this was not a remedy specifically listed in the NSW IR Act. Therefore, the victimisation application was dismissed.

The employee appealed the original decision on the basis that while the NSW IR Act provides examples of the types of orders the Commission has the power to make, it is not an exhaustive list.

In considering the employee’s appeal, the Full Bench of the Commission (the “Full Bench”) recognised that there were a number of inconsistent judgments relating to this issue, and it was necessary to resolve that controversy through this case.

The Full Bench found that the relevant section of the NSW IR Act is not an exhaustive provision, but rather provides examples of the types of orders that might be made. Therefore, the Commission has the power to make an order withdrawing the employee’s written warning, should it see fit.

In forming its decision, the Full Bench had regard to the principles of statutory construction, earlier decisions regarding this issue, the language of the provision and its history.

The matter will now be substantively heard for determination as to whether the written warning was a form of victimisation and should therefore be withdrawn.

Key takeaways

This decision gives clarity and confirms the broad powers of the NSW IRC in response to claims of victimisation. While the NSW IR Act only applies to employers that are not covered by the Fair Work Act 2009 (Cth) (the “FW Act”) (that is, NSW State and Local Government sector employees) this case is an important reminder for employers to ensure that they take appropriate action to deal with employee complaints, and that they are able to justify any disciplinary decisions in the event that it is construed as being retaliatory.

While the FW Act does not use the language of “victimisation”, the general protections provisions in the FW Act are designed to have the same effect of prohibiting employers from taking retaliatory conduct against an employee for making a complaint, including by issuing them with a written warning. An employee issued with such a warning would be able to commence proceedings at the Fair Work Commission and/or the Federal Circuit and Family Court of Australia alleging that they were subject to adverse action because they exercised a workplace right.