ARTICLE · 22 APRIL 2023

Warning or retaliation? NSW IRC now has the power to decide

People + Culture Strategies

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This decision gives clarity and confirms the broad powers of the NSW IRC in response to claims of victimisation.

AustraliaEmployment and HR

Kirryn West James

Tavishi Arora

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The employee filed a victimisation application with the Commission seeking to have the written warning withdrawn, claiming it was issued as a form of retaliation.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.

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