Industrial Relations Commission New South Wales Medium Neutral Citation: Johnson v Health Secretary in respect of the Far West Local Health District [2020] NSWIRComm 1061 Hearing dates: 28 August 2020 Date of orders: 28 August 2020 Decision date: 28 August 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: Finding for the respondent on the Motion Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – motion to set aside summons to produce – relevant principles – whether documents sought for a legitimate forensic purpose – whether confidentiality and public interest should preclude disclosure Legislation Cited: Industrial Relations Act 1996 (NSW) ss 3, 84, Ch 2 Pt 7, 146 Cases Cited: Vizzone v Commissioner of Police (2020) NSWIRComm 1034 Category: Procedural and other rulings Parties: Christine Gaye Johnson (Applicant) Health Secretary (Respondent) Representation: A Knox (Applicant) M Foran of Counsel (Respondent) File Number(s): 2020/194311 Publication restriction: No EX TEMPORE Judgment 1. These proceedings involve an application for relief in relation to unfair dismissal brought pursuant to s 84 of the Industrial Relations Act 1996 (NSW) by Christine Johnson against the Health Secretary in respect of the Far West Local Health District. 2. On 20 July 2020 Ms Johnson issued a summons to the respondent, seeking documents in seven categories. On 29 July 2020 the matter came on for a return of summons before the Registrar. The respondent produced documents in response to categories 2, 3, 5 and 6. Following concerns raised by the respondent in respect of categories 1 and 4 of the summons, the Broken Hill Town Employees' Union ("BHTEU"), which appeared for Ms Johnson, undertook to clarify what documents were sought. 3. On the same day, the BHTEU wrote to the respondent setting out the documents requested in respect of categories 1 and 4. Those documents were contained in a list of what I will call seven "sub-categories". 4. On 30 July 2020, the respondent filed a notice of motion, seeking to have categories 1, 4 and 7 of the summons set aside. The motion was supported by an affidavit of Fiona Lawrance, the Director People and Culture of the Far West Local Health District, sworn on 30 July 2020. 5. That motion came before me for directions on 31 July 2020. On that day, Ms Ferry of the BHTEU confirmed that the documents in the seven sub-categories would be taken as satisfying categories 1 and 4 of the summons and that production of those documents would "obviate the request under category 7". I made directions enabling the respondent to file an amended application, if it sought to do so, in respect of the seven proposed sub-categories. 6. On 18 August 2020, the respondent filed a further notice of motion, seeking to set aside category 1 of the summons to the extent that it requires production of documents concerning: "a. The allegations and actions referred to at paragraph 6 of the Respondent's Reply dated 15 July 2020; and b. The allegations and actions referred to in the first dot point of a letter by Mr Agis, dated 29 August 2017 regarding a first and final warning given to the Applicant about inappropriate workplace behaviour." ("Motion") 1. The Motion was supported by an affidavit of Ms Lawrance sworn on 14 August 2020. 2. I understand, from what has been put by the parties, that of the seven sub-categories identified by the BHTEU on 29 July 2020, it is only sub-categories 2 and 4 which are the subject of objection. Those sub-categories reflect, in broad terms, the categories of documents to which objection is taken in the Motion. 3. Sub-category 2 calls for documentation in respect of "[t]he allegations and actions referred to at paragraph 6 of the Respondent's Reply dated 15 July 2020". For context, par 6 of the respondent's Reply states: "On 8 January 2020, the Respondent found that the Applicant had breached the Code of Conduct for a second time due to inappropriate workplace behaviour. She was again warned that further breaches of the Code of Conduct could result in the termination of her employment." 1. Sub-category 4 calls for documents in respect of "[t]he allegations and actions referred to in the letter of termination by Mr Agis dated 23 June 2020, concerning the first dot point, namely, 'On 29 August 2019 you were issued a first and final warning regarding inappropriate workplace behaviour'." 2. In short, sub-categories 2 and 4 seek documents concerning earlier disciplinary action taken against Ms Johnson in respect of alleged inappropriate workplace behaviour. That disciplinary action was referred to by the respondent in its submissions today as the "Behavioural Warnings" and, for ease of reference, I will adopt the same nomenclature. 3. The respondent objects to producing the documents on three grounds. The first is that the documents have no relevance. The second is that, as Ms Johnson could not appeal the Behavioural Warnings under Ch 2 Pt 7 of the Industrial Relations Act, the Commission "should exercise caution in entertaining a challenge to the behavioural warnings in the guise of it being relevant to the dismissal". And three, the need to preserve confidentiality of the complaints, particularly in "a small regional hospital facing considerable systemic challenges". 4. In submissions today, Mr Foran of counsel, who appeared for the respondent, expanded on this last point by directing the Commission's attention to public interest considerations said to arise from provisions such as ss 3 and 146 of the Industrial Relations Act. 5. In response, Mr Knox for Ms Johnson submitted that the fact that Mr Agis referred to the prior warnings in the letter of termination is evidence of the fact that he considered them in making his decision to dismiss and that, therefore, they are "clearly of forensic relevance". He submitted that a simple assertion by the respondent that Mr Agis was not influenced by them is a matter for the hearing and does not satisfy the most basic notion of procedural fairness and natural justice. 6. Today Mr Knox drew particular attention to concerns with the process that had allegedly been undertaken by the Local Health District in encouraging employees to "dob people in". Mr Knox described this as the antithesis of what the procedures applying throughout NSW Health require. He also contended that this practice was contrary to Ms Lawrance's evidence as to the impact on the Local Health District and the Broken Hill Hospital of having to divulge otherwise confidential information. 7. I have, in earlier decisions, summarised the principles to apply in matters such as this, including most recently Vizzone v Commissioner of Police (2020) NSWIRComm 1034 at [13] and [14]. I do not propose to read those passages out. It is enough to note that the authorities require that a party seeking production of a document under a summons identify a legitimate forensic purpose for which access is sought. Further, documents or materials to which access is sought, at a preliminary stage, by a party must show or be capable of showing apparent relevance to an issue in the principal or main proceedings. Access to documents sought by a party may be granted where those documents "could possibly throw light on the issues in the main case". 8. As I have said, this is an unfair dismissal case. The question that will ultimately be determined by the Commission is whether the termination of Ms Johnson's employment was harsh, unreasonable or unjust. It is not apparent to me, on the state of the file at the moment, that broader issues as to the alleged practice of the Human Resources Department of the Local Health District, in encouraging employees to dob each other in, will in fact be a relevant consideration in the proceedings, if such a practice exists at all. 9. I am not, therefore, satisfied that the documents sought to be produced have any apparent relevance to an issue in the main proceedings. I have had regard in this context to par 38 of the respondent's submissions, which is in these terms: "Further, by these submissions the Respondent gives notice to the Applicant and the Commission that it does not propose to rely on the conduct the subject of the Behavioural Warnings to establish that the misconduct on 28 April 2020 in fact occurred and/or that it warranted dismissal. It will rely on the conduct the subject of the warnings on 3 December 2019 (sonography practice) and the conduct on 28 April 2020." 1. Further, Mr Foran confirmed today that, to the extent that reliance is placed on the Behavioural Warnings, it will be limited to the purpose of proving that Ms Johnson had knowledge of the respondent's code of conduct and her obligations under it. 2. I have also have had regard to the following submissions in the outline of submissions filed on behalf of Ms Johnson. At par 12 it is stated: "The conduct of soliciting complaints against the Applicant is at odds with Ms Lawrance's sworn affidavit, paragraphs 10 to 19 and demands full inquiry." 1. At par 7, going backwards, unfortunately, it was stated: "The Applicant's evidence will be six allegations, the subject of the 8 January 2020 second formal warning were, at least in part, if not wholly, solicited by the People and Culture Unit of the Respondent." (Emphasis in original, footnote omitted) 1. At par 21, the submissions conclude as follows: "The Applicant, evidenced by her s 98 of the Industrial Relations Act 1996 application, did not accept as being fair and reasonable the warning of 8 January 2020, but such application was prevented by the operation of s 92(1)(b). That being so, nothing prevents this application made under Part 6 s 83 which is expressly applicable to any public sector employee unfettered by any limitation or qualification of the type of s 92(1)(b)." (Emphasis in original) 1. These submissions lend weight to the respondent's contentions that Ms Johnson is seeking to run, under the guise of an unfair dismissal application, an appeal of or review into the warning of 8 January 2020. These proceedings do not, of themselves, provide a proper forum in which that should occur. It would be necessary for Ms Johnson to demonstrate that any concerns with the warning issued in January 2020 are directly relevant to the termination of her employment. 2. I have had regard to the respondent's expressed concerns regarding confidentiality and the public interest. I do not place great reliance on those grounds. To the extent that there are confidentiality concerns, they are likely to be capable of being dealt with through appropriate orders by the Commission. 3. I note further that in her affidavit of 14 August 2020, Ms Lawrance deposed, at par 15, "If a matter needs to be disclosed after it is raised confidentially, I can speak with the staff member concerned and explain to them why it must be disclosed." I would think that the same would apply if an order was made for the production of documents under a summons in these proceedings. 4. Having noted that and in light of my earlier comments, it is not necessary to explore this further. 5. I find in favour of the respondent on the Motion. Having done so, I would observe, as I did during this morning's hearing, that any ruling on a summons is necessarily a point in time exercise. My findings on the Motion are based on the information currently available to the Commission and the state of the evidence. If there is a material change in the cases being advanced by the parties, there is nothing to prevent the BHTEU filing a further summons on behalf of Ms Johnson, if that is considered warranted. Whether or not there can be any proper objection to such a summons can only be determined on the state of the evidence at that time. 6. In light of my findings, I order that category 1 of the summons dated 20 July 2020 be set aside, to the extent that it requires production of documents concerning: 1. the allegations and actions referred to at par 6 of the respondent's Reply dated 15 July 2020; and 2. the allegations and actions referred to in the first dot point of the letter of Mr Agis dated 23 June 2020, regarding a first and final warning given to the applicant about inappropriate workplace behaviour. 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: 15 September 2020