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25.1.10 Where the Client institutes Grievance Procedures against Disciplinary Action
In cases involving disciplinary action, a member may have the right to commence a grievance procedure against their supervisor or employer.
The processing of a claim for compensation should not be deferred pending the outcome of the grievance procedure, but should be decided on the facts and evidence available to the Delegate at the time of claim determination. This can be justified on several grounds:
- even if a grievance procedure results in a different disciplinary outcome, this does not necessarily mean that the original disciplinary action was 'unreasonable'
- the outcome of the grievance procedure should not be prejudged by a Delegate. As Cooper J pointed out in Chenhall v Comcare (1992):
The Act does not in my view contemplate that as part of the process of determining an entitlement to compensation the applicant or its Delegate is required to make a determination as to the guilt or innocence of the employee of alleged misconduct...
If the outcome of the grievance procedure relevantly alters the facts relied on in determination of the claim, the determination may be varied by reconsideration under S62 of the SRCA.