Industrial Relations Commission New South Wales Medium Neutral Citation: Fire Brigade Employees' Union of New South Wales (on behalf of Rampling) v Industrial Relations Secretary (Fire & Rescue NSW) [2020] NSWIRComm 1048 Hearing dates: 11 May 2020 Date of orders: 2 July 2020 Decision date: 02 July 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: 1. The notice of motion filed by Fire and Rescue NSW on 16 April 2020 is dismissed. 2. The matter is listed for directions at 9.30am on 9 July 2020. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – application to dismiss proceedings – whether proceedings frivolous or vexatious – whether Civil Procedure Act 2005 (NSW) requires proceedings to be dismissed – whether notifier should be required to commence fresh proceedings – whether Commission should hear the "questions for determination" posed by the notifier Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59, 60 Government Sector Employment Act 2013 (NSW) s 50 Industrial Relations Act 1996 (NSW) s 3(a), Ch 3, ss 130, 135(2), 136(1)(a), 137, 162, 163 Cases Cited: Attorney General v Wentworth (1988) 14 NSWLR 481 Fire Brigade Employees' Union of New South Wales v Fire and Rescue NSW [2020] NSWIRComm 1016 Peden v Lake Macquarie Refrigeration Pty Limited (2004) 134 IR 149; [2004] NSWIRComm 66 Category: Procedural and other rulings Parties: Fire Brigade Employees' Union of New South Wales (Notifier) Industrial Relations Secretary (Respondent) Representation: Counsel: L Saunders (Notifier) M Easton (Respondent) Solicitors: McArdle Legal (Notifier) Kingston Reid (Respondent) File Number(s): 2018/208229 and 2020/16602 Publication restriction: No INTERLOCUTORY Judgment 1. In these interlocutory proceedings the Commission is asked by the Industrial Relations Secretary, representing Fire and Rescue NSW ("FRNSW"), [1] to dismiss two matters arising from notifications made by the Fire Brigade Employees' Union of New South Wales ("FBEU") pursuant to s 130 of the Industrial Relations Act 1996 (NSW) on behalf of its member, Erin Rampling. Factual context 1. Mr Rampling is employed with FRNSW as a Leading Station Officer. In 2016 he was the subject of a number of complaints in which it was alleged that he had engaged in misconduct. In October 2016 SINC Solutions Pty Ltd ("SINC Solutions") was engaged by FRNSW to conduct an investigation into those complaints. 2. On 4 April 2017 the FBEU, on behalf of Mr Rampling, notified the Industrial Registrar of an industrial dispute pursuant to s 130 of the Industrial Relations Act. In those proceedings, allocated matter number 2017/101024, the FBEU sought further and better particulars of the allegations against Mr Rampling as well as the lifting of restrictions that it alleged had been imposed on him by local management with regard to his position as a Station Commander. That dispute was the subject of conciliation in the Commission but the file was closed without proceeding to arbitration. 3. On 13 April 2017 SINC Solutions published the report of its investigation into the allegations against Mr Rampling. Of the 41 allegations that were investigated, 17 were sustained, 8 were sustained in part, 13 were not sustained and 3 were not able to be determined. 4. On 25 May 2017 Mr Paul McGuiggan, the Assistant Deputy Commissioner Field Operations for FRNSW, wrote to Mr Rampling. The letter outlined the findings contained in the SINC Solutions report and informed Mr Rampling that Mr McGuiggan was considering taking disciplinary action against him. The letter invited Mr Rampling to make a written submission and to provide any additional information he wished to have taken into account, and to request an interview with Mr McGuiggan, before a final decision was made. 5. On 13 November 2017 Mr McGuiggan wrote to Mr Rampling. That letter made reference to a written response to Mr McGuiggan's letter of 25 May 2017 having been provided to FRNSW by the FBEU, on behalf of Mr Rampling, on 5 July 2017. It also stated that Mr Rampling had met with Mr McGuiggan on 8 September 2017. 6. The letter of 13 November 2017 informed Mr Rampling that a finding of misconduct had been made against him as a consequence of which the following "remedial action" was to be taken: 1. Mr Rampling was to receive a warning (which was contained in the letter itself); 2. Mr Rampling was to be transferred to the Zone Office at Ballina, albeit at the same rank; 3. Mr Rampling was to undertake "formal counselling and mentoring"; and 4. Mr Rampling was to be subject to a Conduct Improvement Plan and his performance monitored for a period of 24 months. 1. On 8 December 2017 the FBEU notified a second industrial dispute to the Industrial Registrar. The notification described the dispute as follows: "a. Fire and Rescue NSW (the respondent) wrote to Leading Station Officer Erin Rampling on 13 November 2017 (received 15 November and Attachment A) regarding their decision on disciplinary action as a result of a number of findings of misconduct against him. These findings were contained in the respondent's letter dated 25 May 2017 (Attachment B). b. The Union's response to these findings of misconduct dated 5 July 2017 (Attachment C) included an analysis of the shortcomings of some findings which relied upon other evidence from other allegations that were not sustained, and the fact that the respondent only interviewed complainant witnesses and no others who were present at alleged incidents, and urging the respondent to undertake those interviews before any final decision was made. Unfortunately, that was not taken up, despite it being emphasised by the Union in a final interview with LSO Rampling and the respondent's decision maker on 8 September 2017. c. The Union believes that the findings of misconduct are unsafe, and that LSO Rampling has not been afforded procedural fairness in the course of the investigation. d. The Union therefore seeks a direction from the Commission that the respondent voids all findings of misconduct against LSO Rampling, and interviews all members identified in Attachment C as being present at alleged incidents before making findings on the allegations. Only then can the respondent be said to have satisfied its obligations pursuant to the Fire Brigade Regulations (Attachment D) and Procedural Guidelines for the Management of Conduct (Attachment E)." (Attachments not included) 1. That notification was allocated matter number 2017/374059. Again, that dispute was the subject of conciliation in the Commission but the file was closed without proceeding to arbitration. 2. From late 2017 FRNSW and the FBEU corresponded over the remedial action proposed to be taken against Mr Rampling. History of these proceedings Matter 2018/208229 1. On 6 July 2018 the FBEU notified the Industrial Registrar of a further industrial dispute pursuant to s 130 of the Industrial Relations Act. Amongst other things, the notification: 1. outlined the effect of correspondence between the parties regarding the creation and implementation of the proposed Conduct Improvement Plan; 2. expressed concerns that Mr Rampling was performing the work of an Inspector but being paid as a Leading Station Officer; and 3. asserted that Mr Rampling had been told that he would not be "acting up" at any time, which was not a restriction referred to in Mr McGuiggan's letter of 13 November 2017. 1. The notification described the relief sought in the following terms: "The Union seeks the assistance of the Commission in directing that an agreed, written plan be finalised with regard to LSO Rampling's remedial action within 2 weeks including that he is not to be excluded from acting up to Inspector but will not perform Inspector work unless he is paid at that rate." 1. The matter was assigned number 2018/208299 ("2018 Proceedings"). It was allocated to Murphy C, who between July 2018 and October 2019 unsuccessfully attempted through conciliation to assist the parties to resolve their dispute. On 25 July 2018 and 18 June 2019 the Commissioner made recommendations in the interests of facilitating a resolution. Despite those efforts, the parties were unable to reach agreement. On 16 October 2019 the Commissioner issued a Certificate of Attempted Conciliation pursuant to s 135(2) of the Industrial Relations Act. 2. On 4 December 2019 FRNSW filed a notice of motion seeking to have the 2018 Proceedings dismissed on the basis that the Commission lacked jurisdiction. The notice of motion was heard on 20 February 2020. On 13 March 2020 I dismissed the motion: Fire Brigade Employees' Union of New South Wales v Fire and Rescue NSW [2020] NSWIRComm 1016. Matter 2020/16602 1. On 16 January 2020 the solicitors for the FBEU sent an email to the Commission. In summary, that email raised concerns at a decision made by FRNSW to commence an investigation into allegations that Mr Rampling had engaged in misconduct in November 2019. While not in the prescribed form, and having regard to submissions from FRNSW to the effect that the email raised issues separate to those raised in the 2018 Proceedings, I accepted the email as a further notification of an industrial dispute pursuant to s 130 of the Industrial Relations Act. The matter was assigned number 2020/16602 ("2020 Proceedings"). 2. The matter was allocated to Murphy C who on 24 January 2020 unsuccessfully attempted through conciliation to assist the parties to resolve their dispute. On the same day the Commissioner issued a Certificate of Attempted Conciliation pursuant to s 135(2) of the Industrial Relations Act. 3. On 20 February 2020 I conducted a directions hearing in the 2020 Proceedings. FRNSW stated that it proposed to challenge the jurisdiction of the Commission in the proceedings. I made directions in anticipation of hearing the jurisdictional objection, including that the hearing take place on 11 May 2020. Events giving rise to the present Notice of Motion 1. On 20 March 2020 I conducted a directions hearing in the 2018 Proceedings. During that directions hearing: 1. FRNSW sought to "clarify the nature of the dispute" on the basis that "the initial dispute that was notified to the Commissioner some one and a half years ago…is no longer relevant or is not distinguishable and we are unsure what it is that is indeed being arbitrated"; [2] 2. FRNSW referred to the 2020 Proceedings and said that that dispute "has no purpose and there is no dispute"; [3] 3. the FBEU made an application for the 2018 Proceedings and 2020 Proceedings to be heard together. On the basis that the challenge to the Commission's jurisdiction to deal with the 2020 Proceedings had yet to be dealt with, I suggested that it was premature to deal with such an application; and 4. amongst other things, I directed that the FBEU file and serve the questions that it proposed be put to the Commission for determination in the 2018 Proceedings, that FRNSW file and serve a response to those proposed questions, and that the matter be listed for further directions. 1. On 26 March 2020 the FBEU filed with the Registry of the Commission a document titled "Questions for Determination" ("Proposed Questions"). The Proposed Questions purported to relate to both the 2018 Proceedings and the 2020 Proceedings, notwithstanding that there had been no order for the joinder of those matters. That aside, the Proposed Questions were in these terms: "1. Should, in reflecting the recommendation of Commissioner Murphy made on 18 June 2019, Leading Station Officer Rampling: a. be placed for at least three months as Station Commander on a 24 hour roster at a station reasonably proximate to his home at Ballina NSW, attracting applicable award entitlements b. be considered for acting up opportunities as an Inspector Duty Commander as may arise from time to time c. be acknowledged for having satisfactorily completed the conduct improvement plan imposed on him, and concluding in February 2020. 2. Should the 'findings' of the contractor, SlNC solutions, made against Leading Station Officer Rampling, and accepted by the Respondent as notified to Leading Station Officer Rampling, be set aside in whole or in part in view of them having been arrived at in breach of Clause 38 of the Award, or in the alternative, in view of them being in breach of the general principles of procedural fairness? 3. Should the said 'findings' be held not to arise from fact, in whole or in part? 4. Should the conduct of persons who have conducted themselves in the manner alleged (if they are found to have done so) in the statement of Mr Farr, Mr Gould, Mr McDonald, and otherwise, be held to the prejudice of the Respondent? 5. Should the procedure notified in the correspondence provided by hand at his home to Leading Station Officer Rampling on 20 December 2019, be discontinued as an abuse of process, or for any other reason decided by this Commission? 6. Should Leading Station Officer Rampling be considered on merit for all lateral or promotional positions he may choose to apply for from the date of the Decision of this Commission? 7. Should, in order to preserve the jurisdiction of the Commission, an interim order be made that all lateral or promotional positions to be reasonably encompassed by the proposed order referred to in the question above, be filled only in an acting capacity should they become vacant, pending the final Decision of this Commission?" 1. In a letter to the Registrar of the Commission dated 30 March 2020 FRNSW, through its solicitors, responded at length to the Proposed Questions. FRNSW objected to the Commission determining questions 1 to 6. Question 7 was opposed on the basis that it amounted to a request for an interim order. The letter concluded as follows: "Respondent's characterisation of the dispute 21. On a review of the dispute notification in this matter, we consider this dispute is that the FBEU alleges: (a) As at 6 July 2018, there was purportedly no written plan for LSO Rampling's Conduct Improvement Plan; (b) LSO Rampling was, as at 6 July 2018, being unreasonably restricted from 'acting up' to Inspector roles; and (c) LSO Rampling's CIP was being conducted on an ad hoc basis and lacked structure. 22. The Respondent denies these allegations. 23. In respect to (a), a written plan was agreed to and signed by LSO Rampling on 1 August 2018. 24. In respect to (b), LSO Rampling was required to achieve various targets within the CIP, which involved a number of iterative steps prior to being permitted to act up. This was a reasonable basis to restrict any higher duties. LSO Rampling was permitted to act in higher duties in November 2019. 25. In respect to (c), the written plan executed on 1 August 2018 illustrates that there was clear structure to the CIP. 26. For these reasons, the Respondent submits that matters that were in dispute when the Applicant notified it have changed. There is no longer any utility in pressing it to arbitration. It should be discontinued. The questions that the Applicant has asked the Commission to determine illustrate this point. 27. None of the questions now posed by the Applicant relate to matters it raised in its dispute notification dated 5 July 2018. With respect, it appears that the Applicant's characterisation of this dispute is everchanging for reasons which are unclear to the Respondent. 28. We request the Commission list the matter for a mention by telephone in which the Respondent intends to call for the dispute to be discontinued or otherwise dismissed by the Commission." 1. On 6 April 2020 I conducted a further directions hearing in the 2018 Proceedings. Consistent with its letter of 30 March 2020 FRNSW indicated that it may make an application for orders that the proceedings be dismissed. I directed the FBEU to respond to the letter from FRNSW's solicitors of 30 March 2020 by 9 April 2020. I directed FRNSW to file and serve any notice of motion it sought to bring by 16 April 2020. 2. On 9 April 2020 the solicitors for the FBEU filed with the Registry a document responding to the letter of 30 March 2020. Once again, it purported to relate to both the 2018 Proceedings and the 2020 Proceedings. It is unnecessary to traverse the detail of that letter. It suffices to say that the FBEU pressed for the Commission to consider and determine all of the Proposed Questions. Notice of Motion 1. On 16 April 2020 FRNSW filed the notice of motion foreshadowed on 6 April 2020 ("Motion"). On its face, the Motion related only to the 2018 Proceedings. The Motion sought the following: "1. An order, pursuant to s 162(2)(h) of the Industrial Relations Act 1996 (IR Act) dismissing matter IRC2018/208229; 2. An order dissolving the directions previously issued in these proceedings on 20 March 2020; and 3. Such other orders as the Commission considers appropriate." (Emphasis in original) 1. The Motion contained the following "grounds and reasons": "4. The industrial dispute notification in this matter was filed on 6 July 2018 (Dispute Notification). The Dispute Notification, in accordance with the Industrial Relations Commission Rules 2009 (Rule 5.1), detailed the particulars of the dispute (Dispute). … 8. On 26 March 2020, the Notifier filed seven questions for determination (Questions). … 12. In the Respondent's assessment, the Questions lack sufficient connection to the Industrial Dispute to be arbitrated by the Commission. They ought not be determined by the Commission. 13. The factual matrix between the parties has changed since the Industrial Dispute was filed to the extent that the Dispute is now otiose. The Respondent considers the proceedings are now frivolous and ought be dismissed." 1. At the hearing of the Motion on 11 May 2020, Mr M Easton of counsel, who appeared for FRNSW, confirmed that FRNSW sought to have both the 2018 Proceedings and the 2020 Proceedings dismissed. The FBEU did not object to orders being made to the effect that the Motion be taken to have been filed in both proceedings, and that the first prayer in the Motion be amended to include reference to matter 2020/16602. I made those orders. 2. Mr Easton further confirmed that FRNSW no longer pressed its jurisdictional objection in relation to the 2020 Proceedings. 3. In relation to the second prayer in the Motion, I observe that the directions that I had made on 20 March 2020 were varied by the Registrar on 26 March 2020. In any event, at the request of the parties made by consent on 23 April 2020 I had vacated those directions that day. At that time the second prayer became otiose. Submissions Secretary 1. FRNSW relied on comprehensive written submissions, including submissions in reply. Those submissions traversed at length the Commission's powers and responsibilities under the Industrial Relations Act and the Civil Procedure Act 2005 (NSW). They outlined the objections taken by FRNSW to each of the Proposed Questions. 2. FRNSW's position was effectively summarised in its submissions in these terms: "3. On 16 October 2019, the Commission issued a certificate under s.135 of the IR Act in the 2018 Notification and in February 2020 the Notifier filed extensive evidence in the 2018 Notification proceedings. This filed evidence canvassed events dating back from 2009 onwards. 4. On 26 March 2020, the Notifier filed seven proposed questions for determination, which challenge events and conduct by FRNSW from 2017 onwards and asks the Commission to make findings of fact concerning conduct by LSO Rampling from late 2015 onwards by reference to events from perhaps 2009 onwards. 5. By motion filed 16 April 2020 FRNSW asks the Commission to make orders dismissing the 2018 Notification and the 2020 Notification. 6. FRNSW submits that: a. the subject matter of the 2018 Notification and the 2020 Notification are industrial matters of a kind about which the Commission has jurisdiction to make orders; b. the Commission is required to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms and the conduct of proceedings in the Commission is 'firmly in the hands' of the Commission; c. the parties to proceedings, and their lawyers, are required to prepare and conduct their cases with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues; d. to use the Commission's resources to hear a case that cannot be won is contrary to the obligations placed on the Commission and the parties under s 56 of the Civil Procedure Act 2005 (CPA); e. the Notifier's evidence includes detailed material of events as long ago as 2009. If FRNSW were to attempt to answer each and every alleged fact it would have to call witnesses who have not been involved with LSO Rampling's employment for a decade; f. a significant portion of the Notifier's case cannot be won, insofar as the Commission cannot provide any relevant relief for the majority of the Notifier's complaints even if they are proven; and g. the Commission should dismiss the 2018 Notification and the 2020 Notification recognising that the Notifier has capacity to make a fresh notification in relation to [only] current matters about which that the Commission can provide relief." (Emphasis in original) 1. In his submissions in reply, FRNSW contended as follows: "Notice of Motion 22. The respondent's application is not a strike out application that relies on orthodox General Steel principles - hence the acknowledgement by the respondent at paragraph 6(f) [sic – 6(g)] of its earlier submissions that a fresh application could be filed by the notifier. 23. But the notifier does not appear to appreciate the significance of the Commission being an arbitral body. If the Commission was a judicial body, and if the application brought was within the Commission's power to judicially determine, then save for extraordinary circumstances the Commission would be required to determine the matter. By contrast, as an arbitral body with power to determine matters across a very broad spectrum of issues, the Commission has a discretion to decline to grant relief and also has responsibilities under the CPA. 24. Whilst the notifier bemoans the possibility of a fifth notification, the reality is that if the Commission were to merely allow the notifier to refine its questions for determination, the evidence in the case will remain in its present unsatisfactory state (ie in a state where absent some further intervention by the Commission the respondent will have [to] respond to each and every allegation raised in the evidence in case the Commission might consider it relevant at hearing) and the requirements of the CPA will not be met." FBEU 1. As to whether the 2018 Proceedings and the 2020 Proceedings ought to be dismissed, the FBEU submitted as follows: "6. By its notice of motion dated 16 April 2020, Fire + Rescue sought to have the 2018 proceedings dismissed per s 162(2)(h) of the Industrial Relations Act 1996 (NSW) (the IR Act); that is, on the basis that they were made 'frivolously or vexatiously'. 7. This is a high bar. For an application to be considered 'frivolous' if 'on its face it cannot possibly succeed, if it is manifestly groundless or if it is a paltry or trifling matter': Peden v Lake Macquarie Refrigeration Pty Limited [2004] NSWIRComm 66 at [20]. This requires something akin to hopelessness: the cases must be bound to fail. The question of vexatiousness is related principally to motive - i.e. whether the application has been made to embarrass, harass or for other collateral purposes - but can arise where an application is 'obviously untenable or manifestly groundless': AG v Wentworth (1988) 14 NSWLR 481. 8. The applicant's case must be considered at its highest - if there is some prospect of success, summary dismissal will not be justified. On the FBEU's evidence - and noting the concession by Fire + Rescue that an industrial dispute exists - this is so. 9. Fire+ Rescue has not addressed these principles. … 13. Alternatively it seems that the application is made on the basis of the resources involved in determining the matter, such that the matter continuing would be contrary to s.56 of the Civil Procedure Act 2005 (NSW). 14. Although not put this way, this is [in] reality a proportionality argument. This possibly presents an even higher bar than summary dismissal. A claim will only be dismissed this [sic] if the degree of disproportionality between the interest at stake and the resources required to hear it is so great that the proceedings are correctly considered an abuse of process: Ghosh v NineMSN Pty Ltd [2015] NSWCA 334; see also Armstrong v McIntosh (No 2) [2019] WASC 379. It should also be observed that existence of this power is highly controversial, and there is no appellate authority on the point. 15. These principles are not canvassed in Fire + Rescue's submissions; it is not explained how either threshold is said to be reached. On the face of the material, neither is. … 20. This is more akin to an application striking out pleadings, or dismissing applications on the basis of defective pleading, and should be considered in light of those authorities. … 22. Fundamentally, where defects exists which genuinely prevent a respondent understanding the case against it, but there nevertheless is an arguable cause of action, an applicant should be given opportunity to replead. 23. This is, of course, not a court of pleading. Even more caution should be exercised before dismissing proceedings because of infelicities of expression in the questions for determination." (Emphasis in original, footnote omitted) 1. In relation to the Proposed Questions, the FBEU no longer pressed question 4. It submitted that if there were concerns as to the balance of the Proposed Questions it should be given an opportunity to "make a second attempt". 2. Generally in relation to the Proposed Questions the FBEU contended, in effect, that the relationship between Mr Rampling and FRNSW was and remains tainted by the findings of misconduct made by SINC Solutions. Those findings are unsafe. However, the stigma of the findings remains with Mr Rampling and has led FRNSW to treat him unfairly, including by denying him transfer or promotion and commencing the allegedly "spurious" investigation which is the subject of the 2020 Proceedings. 3. In its written submissions the FBEU contended as follows: "24. Why this bemusing treatment of one person is occurring, is surely a relevant consideration for the Commission to have regard to. How else could the Commission answer that question without being informed of the events and conduct that led [the] parties to their state of dispute." Consideration Dismissal of proceedings 1. The Motion invokes s 162(2)(h) of the Industrial Relations Act as the basis for the dismissal of the proceedings. That section provides that the Commission may dismiss any proceedings before it, if it considers the proceedings are frivolous or vexatious. 2. The question of what would make an application frivolous was considered in Peden v Lake Macquarie Refrigeration Pty Limited (2004) 134 IR 149; [2004] NSWIRComm 66. At [16]-[19] the Full Bench traversed relevant authorities on the question before concluding as follows: "20. In light of the well-established line of authority and the ordinary meaning of the word frivolous, we are satisfied that an application under s 84 will be 'frivolous' if, on its face, it cannot possibly succeed, if it is manifestly groundless or if it is a paltry or trifling matter." 1. As to what would make an application vexatious was considered in Attorney General v Wentworth (1988) 14 NSWLR 481, where Roden J observed (at 491): "It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms: 1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless. …" 1. FRNSW did not squarely address these issues. Indeed, its submissions ran contrary to the argument that the 2018 Proceedings and the 2020 Proceedings were "so obviously untenable or manifestly groundless as to be utterly hopeless". This is evident in the submissions that "a significant portion of the Notifier's case cannot be won, insofar as the Commission cannot provide any relevant relief for the majority of the Notifier's complaints". 2. This was also made clear at the hearing of the Motion. Mr Easton submitted as follows: [4] "But the motion filed by the respondents [sic] is essentially to restore order to these proceedings. … Now we recognise that it's a strike out application in the sense that we're inviting the Commission to dismiss the proceedings but, as I say, it's to dismiss the proceedings, recognising that if there be an ongoing industrial dispute, then the most efficient way for that dispute to be dealt with is to actually start again." 1. Ms L Saunders of counsel, who appeared for the FBEU, submitted: [5] "To some extent what Mr Easton has talked about today moves away from questions of summary dismissal and focuses on principles of case management." 1. I agree with Ms Saunders. I also agree with FRNSW's submissions that the relief sought in the 2018 Proceedings has changed significantly from that described in the notification commencing those proceedings. I also have concerns with some of the Proposed Questions. However, those matters do not provide a sufficient basis on which the proceedings ought to be dismissed in their entirety. Rather, to do so would be contrary to the well-established principles outlined in the authorities referred to above. 2. FRNSW relied on the obligations on the Commission and the parties arising under the Civil Procedure Act. Section 56 states that the "overriding purpose" of the Act and of rules of court is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings". Section 57 describes the objects of case management as being the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources and the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. Section 58 provides that in deciding whether to make any order or direction for the management of proceedings the court must seek to act in accordance with the dictates of justice, which will include having regard to the provisions of ss 56 and 57. Section 59 requires the court to seek to eliminate delays between the commencement of proceedings and their final determination. Section 60 requires a court to seek to ensure that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute. 3. These provisions are relevant to the extent to which the Commission manages these proceedings, including the extent to which it accepts that the Propose Questions ought to be determined. The provisions do not of themselves provide a basis for the dismissal of the 2018 Proceedings or the 2020 Proceedings. 4. Indeed, I have difficulty seeing how the approach suggested by FRNSW – that the 2018 Proceedings and 2020 Proceedings be discontinued, with the possibility of a further notification being filed – would be consistent with the principles set out in the Civil Procedure Act. 5. I add that at the heart of both of the 2018 Proceedings and the 2020 Proceedings is what appears to be a dysfunctional relationship between Mr Rampling and FRNSW. That relationship will hardly be improved if Mr Rampling is forced through the Motion to abandon the work that has been done in relation to the 2018 Proceedings and the 2020 Proceedings and "start again". 6. FRNSW has not established that either or both of the 2018 Proceedings and the 2020 Proceedings are frivolous or vexatious. There is no basis for an order dismissing them under s 162(2)(h) of the Industrial Relations Act. To the extent that the Motion seeks such an order, it must be dismissed. Proposed Questions 1. This leads to a consideration as to the basis on which the 2018 Proceedings and the 2020 Proceedings ought to proceed. This requires an examination of the Proposed Questions. 2. At the outset it has to be borne in mind that the Commission is not a tribunal of strict pleading. The Commission is given broad powers to resolve industrial disputes, including in s 162 of the Industrial Relations Act. While it is relevant to view the Proposed Questions in the context of the dispute originally notified, it is not the case that the Commission is confined to dealing only with the dispute so described. That approach would lead to an outcome where the Commission could not deal with developments occurring during the course of proceedings, other than through the commencement of further proceedings. This would be entirely at odds with the requirement in s 163(c) of the Industrial Relations Act that the Commission is to act "according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms". Proposed Question 1 1. On one reading, Proposed Question 1 seeks to enforce the recommendation made by Murphy C on 18 June 2019. However, I consider the reference to the recommendation to be a distraction. The question is properly to be regarded as setting out some or all of the relief sought on behalf of Mr Rampling in the 2018 Proceedings. While there is a live question as to the extent to which these matters may be the subject of a dispute order under s 137 of the Industrial Relations Act, there is no reason why they might not form the basis of a recommendation or a direction pursuant to s 136(1)(a). Whether or not such a recommendation or direction ought to be made is a question for later determination. 2. To the extent that Proposed Question 1 articulates the relief sought by the FBEU on behalf of Mr Rampling in the 2018 Proceedings, it should be permitted. Proposed Questions 2 and 3 1. Underlying Proposed Questions 2 and 3 is a desire on the part of Mr Rampling to "wipe the slate clean". This is made clear in the FBEU's submissions and to an extent underpins Proposed Questions 1, 5 and 6. It is the FBEU's case that although the findings of SINC Solutions are unsafe, both for substantive and procedural reasons, they still act as a black mark against Mr Rampling which continues to result in him being treated unfairly. 2. Proposed Questions 2 and 3 call on the Commission to conduct, in essence, a "disciplinary appeal" of the SINC Solutions investigation and findings in the hope of a determination by the Commission that the findings of misconduct are unfounded. The question which arises for me, though, is what would be the practical utility of conducting a review (however described) of the SINC Solutions investigation and findings? 3. During the hearing on 11 May 2020 Ms Saunders submitted: [6] "Vindication by the Commission is a very serious matter. It would be taken, one expects, very seriously by Fire & Rescue's officials in the same way as it relied on a third party investigator to form these views in the first place." 1. Of course, there is the possibility that Mr Rampling would not be "vindicated", and that the findings of misconduct are sustained. A large part of the premise of his claims of continuing unfair treatment will have been removed. Mr Rampling will be in no better position. In the meantime, FRNSW will have been put to considerable inconvenience and expense. 2. Even were Mr Rampling to be "vindicated", and the Commission determined that the allegations of misconduct could not be substantiated, that would not necessarily resolve the matter. Given the history of these proceedings, I remain to be convinced that FRNSW would necessarily accept a finding by the Commission that was contrary to that of SINC Solutions. Further, and perhaps more significantly, the Commission is not in a position to impose any alternative finding on FRNSW. 3. The notification commencing the 2018 Proceedings did not call into question the SINC Solutions findings or the manner in which the investigation was conducted. This had been done in matter 2017/374059: see [8] above. That matter did not proceed past conciliation (although there is no evidence of a resolution to the dispute having been agreed). It is not the case that Mr Rampling has been denied the opportunity to challenge the SINC Solutions investigation and findings. 4. I have had regard to the Civil Procedure Act. I am also mindful of the Objects of the Industrial Relations Act which include "to provide a framework for the conduct of industrial relations that is fair and just": s 3(a). 5. On balance, I am not satisfied that it would achieve justice between the parties to allow for the FBEU to pose Proposed Questions 2 and 3. To be clear, I do not intend to allow the FBEU to run a case in these proceedings that seeks to have the Commission conduct a review of the investigation undertaken by SINC Solutions; to overturn the SINC Solutions findings; or to conduct its own investigation into the allegations the subject of the SINC Solutions report. 6. That is not to say that Mr Rampling cannot attempt to place what he describes as the current dispute in context. In response to the FBEU's submissions reproduced at [34] above, Mr Rampling is entitled to inform the Commission of what he believes has led the parties to their "state of dispute". This includes his assertions that he is being treated unfairly, including through being denied transfer and promotion opportunities and being subjected to unwarranted disciplinary investigations. 7. In this regard, though, the focus must necessarily be on the alleged present unfair treatment and what, if any, relief the Commission might grant to address that unfairness. In the current proceedings the Commission's task is to deal with the industrial disputes before it in accordance with Ch 3 of the Industrial Relations Act. It is not merely to provide a forum for Mr Rampling to air historical grievances. The extent to which any historical evidence sought to be adduced by the FBEU is relevant and otherwise admissible must be viewed in that context. 8. At par 24 of its submissions in reply, reproduced at [30] above, FRNSW made reference to the evidence filed in the proceedings as being in an "unsatisfactory state" and submitted that "absent some further intervention by the Commission the respondent will have [to] respond to each and every allegation raised in the evidence in case the Commission might consider it relevant at hearing". I accept that further directions will be required to ensure that FRNSW knows the case it has to answer and the evidence to which it will be required to respond. 9. I have given consideration to FRNSW's submissions as to the inconvenience and cost to which it would be put in having to address evidence of historical grievances. I have considered these submissions in light of the following: 1. SINC Solutions published its findings on 13 April 2017. FRNSW did not notify Mr Rampling of the remedial action to be taken against him until 13 November 2017. 2. The 2018 Proceedings were commenced on 6 July 2018. There were significant attempts made to resolve the dispute by conciliation conducted by Murphy C. Recommendations made by the Commissioner on 25 July 2018 and 18 June 2019 were apparently not accepted. 3. On 4 December 2019, 17 months after the commencement of the 2018 Proceedings, FRNSW applied to have the matter dismissed on the basis that the Commission lacked jurisdiction. Somewhat unusually, but perhaps tellingly, the motion also sought costs against the FBEU. 4. Subsequent to the filing of that notice of motion, but prior to its hearing, the 2020 Proceedings were commenced on 16 January 2020. On 20 February 2020 FRNSW informed me that it wished to challenge the jurisdiction of the Commission to determine that matter as well. That jurisdictional objection was listed for hearing on 11 May 2020. The objection was not formally abandoned until the hearing on 11 May 2020, although I note that jurisdiction was apparently accepted in the submissions on the Motion filed by FRNSW on 30 April 2020: par 6(a) reproduced at [29] above. 5. Within a month of my decision dismissing FRNSW's first notice of motion, FRNSW notified the Commission of its intention to apply to have the 2018 Proceedings dismissed. This led to the Motion currently being considered. 1. In all the circumstances, I acknowledge that a significant amount of time has elapsed since the completion of the SINC Solutions report. However, that is not a delay that can be laid solely at the feet of the FBEU or Mr Rampling. Proposed Question 5 1. Proposed Question 5 clearly relates to the 2020 Proceedings. FRNSW described the question as essentially inviting the Commission to injunct FRNSW from investigating allegations of misconduct against Mr Rampling. If the question is read as describing the order sought by the FBEU on behalf of Mr Rampling, FRNSW would be correct. FRNSW also correctly submitted that it would be unusual for the Commission to preclude an employer investigating allegations of misconduct against an employee. 2. If Proposed Question 5 reflects the relief sought by the FBEU on behalf of Mr Rampling in the 2020 Proceedings, questions might arise as to whether the Commission could an order in the form requested. Again, however, the Commission is not limited to making an order, but can make a recommendation or direction. Whether the Commission would or should grant such relief is a matter for consideration at the hearing. FRNSW may ultimately satisfy the Commission that no relief ought to be granted. That does not prevent the question being posed. 3. Further in relation to Proposed Question 5, there was some debate in the submissions filed by each party as to whether the FBEU was seeking to co-opt the Commission to conduct the investigation which forms the substance of the 2020 Proceedings and, if so, whether the Commission ought to do so. 4. I will express the necessarily tentative view that I am not persuaded that the Commission could or should take on the role of workplace investigator. That is not to say that the 2020 Proceedings could not be maintained whilst FRNSW undertook any necessary investigation. This would allow ready access to the Commission in the event that an issue arose during the investigation requiring the Commission's assistance. Such an approach would not be uncommon. Proposed Question 6 1. Quite properly, FRNSW accepted that the only answer that could be given for Proposed Question 6 is "yes". 2. It is implicit in the question that Mr Rampling will contend that he is not being considered on merit for "lateral or promotional positions". That contention would largely be within the scope of the notification filed in the 2018 Proceedings. It will be a matter for evidence as to whether such an assertion can be made out. There will be the additional question as to what, if any, relief the Commission could grant to remedy that situation. However, that does not mean that the proposed question cannot or should not be posed. Proposed Question 7 1. Proposed Question 7 is not properly a question for determination so much as a request for interim relief. Whether the Commission does in fact have the power to make interim orders in the form sought, as the FBEU contends, is open for debate. However, that is a debate that can only be had at the time the application for any interim relief is made, based on the evidence then available. Orders 1. The notice of motion filed by Fire and Rescue NSW on 16 April 2020 is dismissed. 2. The matter is listed for directions at 9.30am on 9 July 2020. Damian Sloan Commissioner ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 July 2020