Shanahan v Australian Industrial Relations Commission (No 2)

[2006] FCAFC 175

Full Court of the Federal Court

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Interrogate

Catchwords

1. Workplace Relations
2. › Termination of employment
3. › Harsh, unjust or unreasonable termination
4. › Valid reason for termination
5. › Whether misconduct requires wilfulness
6. › Whether psychiatric condition negating wilfulness relevant to valid reason inquiry
7. › Workplace Relations Act 1996 (Cth), ss 170CE(1)(a), 170CG(3)
1. Administrative Law
2. › Judicial review
3. › Jurisdictional error
4. › Constructive failure to exercise jurisdiction
5. › Whether failure to consider particular legal issue constitutes jurisdictional error
6. › Whether issue must have been raised before the tribunal
1. Administrative Law
2. › Judicial review
3. › Prerogative relief
4. › Mandamus and certiorari
5. › Whether applicant entitled to relief where point not raised before tribunal

Quick Take

The common law requirement of wilfulness for misconduct (per [name withheld] v London Chronicle) is not an essential statutory ingredient of the 'valid reason' inquiry under s 170CG(3)(a) of the Workplace Relations Act 1996 (Cth). Where psychiatric evidence establishes only that conduct is 'consistent with' a condition (rather than a 'direct result' of it), the tribunal is not obliged to determine whether involuntary conduct can constitute misconduct. A party cannot establish constructive failure to exercise jurisdiction based on a legal point not raised before the tribunal.