Industrial Relations Commission New South Wales Medium Neutral Citation: Silsbury v Health Secretary in respect of Western Sydney Local Health District [2021] NSWIRComm 1004 Hearing dates: 15 January 2021 Date of orders: 3 February 2021 Decision date: 03 February 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: Strike out motion by respondent dismissed Catchwords: VICTIMISATION – allegations of misconduct – threatened dismissal – unfair dismissal application – order made restraining dismissal – further 15 allegations of misconduct – victimisation application – notice of motion to dismiss victimisation application Legislation Cited: Health Services Act 1997 Industrial Relations Act 1996 Federal Court of Australia Act 1976 (Cth) Oaths Act 1900 Supreme Court Act 1970 Vexatious Proceedings Act 2008 Uniform Civil Procedure Rules 2005 Cases Cited: Attorney-General v Wentworth (1988) 14 NSWLR 481 Davie v Industrial Relations Secretary (Department of Justice. Corrective Services NSW) (No 2) [2019] NSWIRComm 1056 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Majik Markets Pty Limited v Brake and Service Centre Drummoyne Pty Limited (1991) 28 NSWLR 443 Nagle v Tilburg [1993] 51 IR 8 O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 Spencer v Commonwealth of Australia [2010] HCA 28 Stevenson v Barham (1970) 136 CLR 190 Texts Cited: Nil Category: Procedural rulings Parties: Catherine Silsbury (Applicant) Health Secretary in respect of Western Sydney Local Health District (Respondent) Representation: Mr A Gotting of counsel (Applicant) Mr D Gardner, solicitor, Bartier Perry (Respondent) File Number(s): 2020/00329790 Publication restriction: See [23] DECISION 1. On 19 November 2020, the applicant, Catherine Silsbury, filed in the Office of the Industrial Registrar an Application for Relief from Victimisation ("Victimisation Application") pursuant to section 213 of the Industrial Relations Act 1996 ("Act"). The Victimisation Application named the "Secretary of Ministry of Health" as the "First Respondent" and "Western Sydney Local Health District" as the "Second Respondent". The correct title of the respondent in these proceedings is the "Health Secretary in respect of Western Sydney Local Health District" (see section 116H of the Health Services Act 1997). 2. The application sought the following orders: 1. An order that the Respondents not carry out a threat to victimise the Applicant contained in the letter from Dr Emma McCahon to the Applicant dated 10 November 2020. 2. An order that the Respondents pay compensation to the Applicant for the loss suffered by the Applicant from the threat to victimise the Applicant contained in the letter from Dr Emma McCahon to the Applicant dated 10 November 2020. 3. Such further or other order in favour of the Applicant that the Commission considers appropriate. and claims an order for payment of the sum of $20,000 being for: (a) stress, distress, hurt and humiliation; and (b) loss of reputation, caused by the threat to victimise. 1. On 16 December 2020, the respondent filed a Notice of Motion ("Respondent's Motion") seeking the following orders: 1. The proceedings be wholly dismissed: a. for want of jurisdiction: b. as instituted without reasonable cause; c. as frivolous and vexatious; and/or d. as an abuse of process. 2. Such other orders as the Commission sees fit 1. The Respondent's Motion was heard before me on 15 January 2021. At the conclusion of proceedings on that day, I advised the parties that I declined to make the orders sought in the Respondent's Motion and that I would publish my reasons for so doing in due course. This decision sets out my reasons. Background 1. The applicant is a registered medical practitioner. She was conferred with a Bachelor of Medicine and Bachelor of Surgery from the University of Adelaide in 1983. She was conferred with a Graduate Certificate of Health Science (Drug and Alcohol Studies) from Newcastle University in 2002. She was conferred with a Masters of Health Science (Drug and Alcohol Studies) from Newcastle University in 2004. The applicant was conferred with a Masters of Forensic Mental Health from the University of New South Wales in 2012. She has been a Fellow of the Chapter of Addiction Medicine of the Royal Australasian College of Physicians since 2004. 2. The applicant is employed by the respondent as a Staff Specialist and works for Drug Health which is a service within Western Sydney Local Health District ("WSLHD"). Her workplaces include the Centre for Addiction Medicine ("CAM") in the grounds of Cumberland Hospital, the Fleet Street Opioid Treatment Unit and both Cumberland and Westmead Hospitals. 3. In 2017, a person who has been referred to in these and related proceedings as "Confidential Person B" came under the care of the applicant at CAM for a period of time during which he attended a number of appointments with the applicant. 4. In May 2020, the applicant was made aware of a complaint that had been made by Confidential Person B to the Health Care Complaints Commission ("HCCC") about the treatment he had received from the applicant during 2017. 5. After a number of exchanges of correspondence between the applicant and Ms Sara Coutinho of the HCCC and Ms Cheryl McDonald, National Manager – Claims and Legal Services, Medical Indemnity Group Australia, the applicant prepared a letter of apology to Confidential Person B which she personally delivered to the home address of Confidential Person B on 1 June 2020. 6. Following this, the applicant was stood down from performing clinical duties and an investigation was conducted into three allegations of misconduct against the applicant arising from the preparation and delivery of her letter of apology to Confidential Person B. 7. Ultimately, the applicant received a letter dated 16 September 2020 from Dr Emma McCahon, Executive Director Medical Services, WSLHD, advising the applicant that the three misconduct allegations against her were substantiated and that Dr McCahon proposed to accept that WSLHD can no longer have faith and confidence that the applicant should remain in her role, resulting in a recommendation to the Chief Executive that her employment be terminated. Unfair Dismissal Application 1. On 2 October 2020, the applicant filed an Application for Relief in relation to Unfair Dismissal ("Unfair Dismissal Application") on the basis of the threatened dismissal contained in Dr McCahon's letter of 16 September 2020 (Matter No: 2020/00291104). 2. On 13 October 2020, the applicant filed a Notice of Motion ("Applicant's Motion") seeking an order that, until further order or the determination of the Unfair Dismissal Application, she not be dismissed in accordance with the threat of dismissal contained in Dr McCahon's letter of 16 September 2020. The Applicant's Motion was supported by an affidavit sworn by the applicant on 12 October 2020 and filed with the Applicant's Motion on the following day. 3. The applicant's Unfair Dismissal Application was listed for conciliation and directions before Commissioner Webster on 14 October 2020. The matter did not settle on that occasion and was subsequently allocated to me to conduct an arbitration hearing. I listed the Applicant's Motion for hearing before me on 15 October 2020. 4. At the outset of proceedings on 15 October 2020, Mr David Holmes, Senior Industrial Relations / Employee Relations Specialist, WSLHD, who appeared for the respondent, objected to the admission into evidence of the applicant's affidavit of 12 October 2020 on the ground that the person who took or received the affidavit, being the applicant's solicitor, Ms Patricia Marinovic, had not complied with subsections 34(1)(a), (b) and (c) of the Oaths Act 1900, in that Ms Marinovic had not certified on the applicant's affidavit that she had seen the applicant's face and knew who she was or confirmed her identity. That objection received the treatment it deserved and the applicant's affidavit was admitted into evidence. 5. The respondent opposed the order which was sought in the Applicant's Motion restraining the respondent from dismissing the applicant on the ground that Dr McCahon "does not have express or implied delegated authority to terminate employees of the NSW Health Service" nor, presumably, the authority to threaten employees, such as the applicant, with dismissal, which I found that she had done in her letter to the applicant of 16 September 2020. I dealt with this submission as follows: COMMISSIONER: Mr Holmes, I'm against you on that. As far as I'm concerned, a threat of dismissal can be constituted by a proposal to recommend to the relevant authority that has the power to dismiss that that occur. So I regard the letter from Dr Emma McCahon of 16 September 2020 to Dr Silsbury as a threat of dismissal within the meaning of s 89 subs 7. 1. I then made the following order: COMMISSIONER: I make the following order. Until further order or determination of the application, the respondents are not to dismiss the applicant Dr Catherine Silsbury in accordance with the threat of dismissal contained in the letter from Dr Emma McCahon of the second respondent dated 16 September 2020. 1. The Applicant's Motion was adjourned to 11 November 2020 for further hearing before me. 2. Following the making of the order (at [17] above), there ensued an exchange of correspondence between the solicitors for the applicant and the solicitors for the respondent. In an email dated 26 October 2020, from Mr Darren Gardner of Bartier Perry, solicitor for the respondent, it was disclosed that, on 7 October 2020, the Chief Executive of WSLHD had signed a letter of termination of the applicant's employment. It does not appear that the existence of this termination letter was disclosed to Commissioner Webster during the conciliation conference on 14 October 2020. It was certainly not disclosed to me during the arbitration hearing on 15 October 2020. During the hearing on that occasion the submission of the respondent, in opposition to the making of an interim order restraining the dismissal of the applicant, was to the effect that Dr McCahon did not possess the delegated authority to dismiss, or threaten the dismissal of, the applicant (see [16] above). No satisfactory explanation has been proffered by the respondent as to why such a submission was put to the Commission when it was well known to the respondent at that time that the person with authority to dismiss the applicant, the Chief Executive of WSLHD, had already signed a letter purporting to do just that. 3. Upon becoming aware of the termination letter of 7 October 2020, the applicant, on 29 October 2020, filed an amended Notice of Motion repeating the relief claimed in the Applicant's Motion but including reference to the termination letter of 7 October 2020 ("Applicant's Amended Motion"). 4. On 2 November 2020, the solicitors for the respondent requested that the matter be relisted on the basis that the respondent had proposed to the applicant consent orders which it believed would, in effect, avoid the Commission having to hear the Applicant's Amended Motion on 11 November 2020 provided that suitable directions were agreed or made. However, the applicant remained of the view that the matter should proceed to hearing on 11 November 2020. In light of these developments, I listed the matter for directions on 4 November 2020. 5. On 3 November 2020, an unfiled copy of an affidavit sworn by the applicant's solicitor, Ms Marinovic, was forwarded to the Commission. Annexed to the affidavit were items of correspondence that had passed between the legal representatives of the parties between 16 October and 2 November 2020. Later, on 3 November 2020, the solicitors for the respondent forwarded to the Commission draft orders which it would be asking the Commission to make at the directions hearing on 4 November 2020. Those draft orders made reference to further allegations against the applicant and contained an undertaking by the respondent not to dismiss the applicant until further order. 6. On 4 November 2020, I made certain directions, specifically in relation to the provision of the further allegations to the applicant. The hearing of the Applicant's Amended Motion, which was scheduled for 11 November 2020, was vacated and the matter was relisted for report back and directions on that date. Also on that day, by consent of the parties, I made a number of orders pursuant to section 164A(1)(a) of the Act. For abundant caution, I make identical orders in these proceedings in the following terms: The Commission makes the following orders pursuant to s 164A(1)(a) of the Industrial Relations Act 1996 (NSW), effective until further order: 1. prohibiting or restricting the name, initials, identifier number or any other material that identifies or may lead to the identification of any patient or relative of a patient of the Respondent; 2. permitting the parties to redact in documentary evidence, and do such other things reasonably necessary, to protect against disclosure of the identity of any patient or confidential health information process of the Respondent; and 3. the confidential schedule recording the names of Confidential Person A and Confidential Person B be marked "CONFIDENTIAL" and only be accessible to the Commission and the legal advisors of the parties; 4. the investigation report dated July 2020 relating to the Applicant and relied upon by the Respondents ("the Investigation Report") be marked "CONFIDENTIAL" and only be accessible to the Commission and the legal advisors of the parties; 5. the affidavit of the Applicant sworn on 12 October 2020 be marked "CONFIDENTIAL" and only accessible to the Commission and the legal advisors of the parties. 1. On 10 November 2020, Dr McCahon forwarded correspondence to the applicant detailing 15 further allegations of misconduct against her. In that correspondence, it was stated that, "[f]ollowing an initial review of the available evidence pursuant to clause 7.4 of the NSW Health PD2018_031 Managing Misconduct, it has been assessed on the evidence available to WSLHD, the proposed findings in relation to you are" that each of the 15 allegations "is SUBSTANTIATED". 2. During the report back and directions hearing on 11 November 2020, a timetable was put in place for the filing and serving of evidence and outlines of submissions and the Unfair Dismissal Application was scheduled for hearing before me on 3, 4 and 5 February 2021. However, as will be seen later in this decision, those hearing dates were subsequently vacated and the applicant's Unfair Dismissal Application, together with her Victimisation Application, has been listed for hearing before me on 21, 22, 23, 27 and 28 April 2021. Victimisation Application 1. On 19 November 2020, the applicant filed the Victimisation Application (see [1]-[2] above). As stated at [1] above, the Victimisation Application nominated the "Secretary of Ministry of Health" as the "First Respondent" and the "Western Sydney Local Health District" as the "Second Respondent". 2. The "Particulars of victimisation", as stated in the Victimisation Application, are set out below: 1. On 29 September 2020, the Applicant informed Ms Annie Owens of the Ministry of Health, and Dr Emma McCahon and Ms Luci Caswell of the Western Sydney Local Health District ("WSLHD"), of her intention to seek interim relief to restrain the First Respondent from giving effect to a threat of dismissal contained in the letter from Dr McCahon to the Applicant dated 16 September 2020. 2. On 2 October 2020, the Applicant commenced proceedings in the Commission under section 84 of the Industrial Relations Act 1996 (NSW) (the "IR Act"). 3. On 6 October 2020, Mr David Holmes of the WSLHD informed the Applicant that he was acting for the First Respondent. 4. By 7 October 2020, Mr Holmes became aware of the intention of the Applicant to seek interim relief to restrain the First Respondent from giving effect to a threat of dismissal contained in the letter from Dr McCahon to the Applicant dated 16 September 2020. 5. By 7 October 2020, Mr Holmes began to brief the Chief Executive of the WSLHD on the proceedings and the intention of the Applicant to seek interim relief. 6. On 7 October 2020, the Chief Executive of the WSLHD signed a letter of termination of the employment of the Applicant (the "Letter"). 7. One of the purposes of the Chief Executive signing the Letter was to preclude (or to endeavour to preclude) the Applicant from claiming in the proceedings that there was a threat of dismissal (by demonstrating (or attempting to demonstrate) that dismissal had already occurred). 8. Another of the purposes of the Chief Executive signing the Letter was to preclude (or endeavour to preclude) the Applicant from obtaining interim relief. 9. The Chief Executive is likely to have received a briefing by Mr Holmes in relation to the Letter prior to signing the Letter. 10. The Commission should infer from the matters set out in paragraphs 1 to 9 that: (a) by 7 October 2020, Mr Holmes recommended to the Chief Executive that the Chief Executive sign the Letter. (b) one of the operative and substantive reasons for the recommendation of Mr Holmes to the Chief Executive was to preclude (or to endeavour to preclude) the Applicant from claiming in the proceedings that there was a threat of dismissal. (c) another of the operative and substantive reasons for the recommendation of Mr Holmes to the Chief Executive was to preclude (or endeavour to preclude) the Applicant from obtaining interim relief. (c) the Chief Executive accepted the recommendation of Mr Holmes. 11. On 13 October 2020, the Applicant filed a notice of motion in the proceedings seeking interim relief to restrain the First Respondent from giving effect to a threat of dismissal contained in the letter from Dr McCahon to the Applicant dated 16 September 2020. 12. On 13 October 2020, the First Respondent sent to the Commission a series of objections to the Commission granting interim relief. 13. Mr Holmes prepared and sent to the Commission the series of objections. 14. Mr Holmes decided not to inform the Commission of the Letter in the series of objections. 15. Mr Holmes did not inform the Commission of the Letter in the series of objections. 16. On 14 October 2020, the First Respondent participated in a conciliation conference for the proceedings conducted by the Commission. 17. Mr Holmes appeared for the First Respondent in the conciliation conference. 18. Mr Holmes decided not to inform the Commission of the Letter during the conciliation conference. 19. Mr Holmes did not inform the Commission of the Letter during the conciliation conference. 20. On 15 October 2020, the Commission heard the notice of motion. 21. Mr Holmes appeared for the First Respondent to endeavour to resist the interim relief. 22. Mr Holmes decided not to inform the Commission of the Letter at the hearing of the notice of motion. 23. Mr Holmes did not inform the Commission of the Letter at the hearing of the notice of motion. 24. On 15 October 2020, the Commission granted the interim relief. 25. On 15 October 2020, Mr Holmes reported to the Chief Executive the granting of interim relief. 26. The Commission should infer from the matters set out in paragraphs 1 to 25 that: (a) Mr Holmes was annoyed and frustrated that the Commission had granted the interim relief. (b) Mr Holmes reported his annoyance and frustration to the Chief Executive. (c) Mr Holmes decided to attempt to overcome the granting of interim relief by raising further allegations against the Applicant in order to provide additional or alternative justification for the termination of employment of the Applicant. 27. On a date not presently known but anticipated to be between 15 October and 26 October 2020, the WSLHD conducted a review of the emails sent and received by the Applicant from 1 January 2020. 28. The Commission should infer from the matters set out in paragraphs 1 to 27 that: (a) Mr Holmes recommended to the Chief Executive conduct a review of the emails sent and received by the Applicant from 1 January 2020. (b) One of the substantial and operative reasons for the recommendation of Mr Holmes to the Chief Executive was the commencement of proceedings by the Applicant against the First Respondent under the IR Act. (c) Another of the substantial and operative reasons for the recommendation of Mr Holmes to the Chief Executive was the obtaining of interim relief by the Applicant against the First Respondent under the IR Act. (d) the Chief Executive accepted the recommendation of Mr Holmes. 29. On a date not presently known but anticipated to be between 15 October and 26 October 2020, Mr Holmes decided to raise further allegations of misconduct against the Applicant. 30. On 26 October 2020, the solicitors for the WSLHD advised the Applicant that further allegations of misconduct were to be raised against her. 31. The Commission should infer from the matters set out in paragraphs 1 to 30 that: (a) Mr Holmes recommended to the Chief Executive that the WSLHD raise further allegations of misconduct against the Applicant in order to provide additional or alternative justification for the termination of employment of the Applicant. (b) One of the substantial and operative reasons for the recommendation of Mr Holmes to the Chief Executive was the commencement of proceedings by the Applicant against the First Respondent under the IR Act. (c) Another of the substantial and operative reasons for the recommendation of Mr Holmes to the Chief Executive was the obtaining of interim relief by the Applicant against the First Respondent under the IR Act. (d) the Chief Executive accepted the recommendation of Mr Holmes. 32. On a date not presently known but anticipated to be between 15 October and 10 November 2020, Mr Holmes prepared, caused to be prepared or was involved in the preparation of, the further allegations against the Applicant. 33. Some of the further allegations were based on the review by the WSLHD of the emails sent and received by the Applicant from 1 January 2020. 34. On a date not presently known but anticipated to be between 15 October and 10 November 2020, the Chief Executive appointed Mr Holmes to review and making findings in relation to the further allegations against the Applicant. 35. On a date not presently known (due in part to the refusal of the solicitors of the First Respondent on 13 November 2020 to inform the Applicant of the date) but by 10 November 2020, Mr Holmes determined that, by way of initial review, the further allegations were certain and not the subject of contest such that no investigation into the further allegations was necessary. 36. Mr Holmes had actual knowledge that the determination that the further allegations were certain and not the subject of contest was false. 37. The Commission should infer from the matters set out in paragraphs 1 to 36 that: (a) One of the substantial and operative reasons for making the determination was the commencement of proceedings by the Applicant against the First Respondent under the IR Act. (b) Another of the substantial and operative reasons for making the determination was the obtaining of interim relief by the Applicant against the First Respondent under the IR Act. 38. By 10 November 2020, Mr Holmes determined not to provide the Applicant with an opportunity to be heard prior to considering whether the further allegations were sustained. 39. Mr Holmes had actual knowledge that the determination not to provide the Applicant with an opportunity to be heard amounted to a denial of procedural fairness. 40. The Commission should infer from the matters set out in paragraphs 1 to 39 that: (a) One of the substantial and operative reasons for making the determination was the commencement of proceedings by the Applicant against the First Respondent under the IR Act. (b) Another of the substantial and operative reasons for making the determination was the obtaining of interim relief by the Applicant against the First Respondent under the IR Act. 41. By 10 November 2020, Mr Holmes determined that the further allegations were sustained. 42. By 10 November 2020, Mr Holmes determined to find that the conduct reflected in the further allegations was destructive of trust and confidence in the employment relationship. 43. By 10 November 2020, Mr Holmes decided not to provide the Applicant with an opportunity to be heard prior to finding that the conduct reflected in the further allegations was destructive of trust and confidence in the employment relationship. 44. Mr Holmes had actual knowledge that the decided not to provide the Applicant with an opportunity to be heard amounted to a denial of procedural fairness. 45. The Commission should infer from the matters set out in paragraphs 1 to 44 that: (a) One of the substantial and operative reasons for making the decision was the commencement of proceedings by the Applicant against the First Respondent under the IR Act. (b) Another of the substantial and operative reasons for making the decision was the obtaining of interim relief by the Applicant against the First Respondent under the IR Act. 46. By 10 November 2020, Mr Holmes prepared a letter for Dr McCahon to send to the Applicant advising that the further allegations were sustained and that the conduct reflected in the further allegations was destructive of trust and confidence in the employment relationship. 47. On 10 November 2020, Dr McCahon signed the letter. 48. The Commission should infer from the matters set out in paragraphs 1 to 47 that: (a) One of the substantial and operative reasons for preparing the letter was the commencement of proceedings by the Applicant against the First Respondent under the IR Act. (b) Another of the substantial and operative reasons for preparing the letter was the obtaining of interim relief by the Applicant against the First Respondent under the IR Act. 49. On 10 November 2020, the solicitors for the Applicant sought from the solicitors of the First Respondent the provision of information relating to the further allegations. 50. On 13 November 2020, the solicitors for the First Respondent refused to provide the information. 51. On 13 November 2020, the Second Respondent provided the Applicant with the Risk Assessment conducted by Mr Holmes dated 11 June 2020 that recorded that the misconduct allegations were "serious with possible career and reputational risks" to the Applicant. 1. I note from the "Particulars of victimisation", for example particulars 5, 7, 8, 9, 14, 18, 22, 25, 29, 32, 34, 35, 36, 39, 41, 42, 43, 44 and 46, that the Commission is being presented with a number of assertions as to the conduct and state of mind of Mr Holmes and the Chief Executive of WSLHD which are not, at this stage of the proceedings, supported by any probative evidence. I should state that I have not, as yet, formed any opinion as to the veracity or, indeed, the relevance to these proceedings of these asserted facts. 2. Further, at particulars 10, 26, 28, 31, 37, 40, 45 and 48, the Commission is being asked to draw a number of inferences adverse to the respondent from the factual assertions made by the applicant. I should also state that I have not, as yet, drawn any of the inferences that the applicant has invited me to draw, nor have I made any determination as to relevance to these proceedings of these inferences. However, I can and do say at the outset that the asserted level of "annoyance and frustration" being experienced by Mr Holmes, for example at particular 26, will play no part in my ultimate determination of the matters presently before the Commission and will be completely ignored by me. Respondent's Motion 1. On 16 December 2020, the respondent filed a Notice of Motion seeking an order that the Victimisation Application be "wholly dismissed" (see [3] above). The "Grounds and reasons" in support of the Respondent's Motion were stated in the following terms: 1. On 7 October 2020, the Applicant filed in the Commission an application for relief in relation to unfair dismissal in matter 2020/00291104 (UFD Application). 2. On 18 November 2020, the Applicant filed an Application for relief from Victimisation (Victimisation Application) pursuant to s 213 of the IR Act. Remedy sought not available 3. The remedy sought in the Victimisation Application includes a payment for stress, distress, hurt humiliation and loss of reputation (General Damages Sought). 4. The Commission does not have jurisdiction to award the General Damages Sought. Section 213 (2) is an exhaustive provision which limits the Commission's jurisdiction in this regard: Davie v Industrial Relations Secretary (Department of Justice. Corrective Services NSW) (No 2) [2019] NSWIRComm 1056 at [71] to [74]. 5. Orders 1 in the Victimisation Application is otherwise in substance the same remedy sought in the UFD Application. 6. The Victimisation Application has therefore been instituted without reasonable cause. Want of jurisdiction as out of time 7. The Victimisation Application must be brought within 21 days of the alleged contravention: s 213 (3) of the IR Act. 8. The Victimisation Application alleges a number of contraventions for the purposes of s 213 of the IR Act. Those contraventions allegedly occurred from 7 October 2020, and form the underlying premise (based on mere assumption and unreasonable inference) of what is alleged to be substantive and operative reasons for of subsequent alleged actions (also assumed or inferred). The Victimisation Application was filed on 18 November 2020. The Victimisation Application is out of time. Frivolous, vexatious and abuse of process 9. The UFD Application concerns an alleged threatened dismissal. The Applicant remains employed by the Respondent. Matters alleged to be victimisation in the Victimisation Proceedings have occurred within the conciliation and pre-hearings direction processes in the UFD Application. 10. It is contrary to the overriding guiding principles of civil litigation, for the Applicant to agitate separate proceedings on the same factual basis where no substantively different remedy is available, especially when the only certain outcome is further unnecessary costs being incurred by both parties. 11. The Victimisation Application makes serious allegations of 'victimisation' against witnesses of the Respondent in the UFD Application, however does so in a manner that relies on mere assumption and indirect inferences not capable of supporting any finding that there has been a 'detriment' under s.210: Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 at [75]-[79]. 12. The Victimisation Application also improperly seeks to cavll with directions already made by the Commission, after hearing from the parties in submissions in the UFD Application proceedings, especially in relation to undertakings and directions to provide further allegations to the Applicant as complied with by the Respondent. 13. The Victimisation Application refers to matters that were before a Commissioner in conciliation. The Applicant after conciliation made an application under s.173 of the IR Act to disqualify the conciliation Commissioner from arbitrating the UFD Application. It is improper for the Applicant to refer to matters that may or may not have occurred during conciliation. There is a public interest in ensuring that parties can approach the Commission in good faith and without prejudice to participate in confidential conciliation with a view to resolve disputes quickly, cheaply and justly. It is improper and an abuse of process for the Applicant to seek to adduce evidence or to invite the Commission to draw inferences from acts or omissions alleged during conciliation proceedings. 14. In these circumstances, the Victimisation Application has been filed frivolously, vexatiously and as an abuse of process either to embarrass or to intimidate, hinder or obstruct witnesses of the Respondent by making serious, unfair and unsubstantiated claims against individuals who are merely carrying out their duties of employment, including in respect of ongoing investigations the subject of directions already made by the Commission in the UFD Application. Dismissal 15. In all the circumstances, the Victimisation Application is misconceived, an abuse of process and has been instituted frivolously, vexatiously and without reasonable cause, and should properly be dismissed pursuant to s.162(2)(a) and (h) of the IR Act. Costs 16. The Respondents reserve their rights to seek costs against the Applicant, including in relation to costs under ss 181(2)(a) or (b) of the IR Act. Principles governing summary disposal and strike out applications Legislation 1. Section 162 of the Act is in the following terms: 162 Procedure generally (1) The Commission may, subject to this Act, determine its own procedure. (2) The Commission— (a) is to act as quickly as is practicable, and (b) is to conduct its proceedings publicly or, if it considers it necessary, privately, and (c) may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (d) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (e) may sit at any place, and (f) may require a document to be served outside the State, and (g) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (h) may dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious, and (i) may exercise, on its own initiative, any function exercisable by it on application, and (j) may, on its own initiative, inquire into any industrial matter. 1. Subsection 162(2)(h) enables the Commission to dismiss the Victimisation Application at this stage of the proceedings if the Commission considers that the proceedings are "frivolous or vexatious". 2. In addition, rule 13.4 of the Uniform Civil Procedure Rules 2005 ("UCPR") has application to proceedings such as those presently before the Commission. Rule 13.4 is in the following terms: 13.4 Frivolous and vexatious proceedings (cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3) (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings— (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). 1. In addition to the concepts of "frivolous or vexatious", rule 13.4 introduces the concepts of "no reasonable cause of action" and "abuse of the process of the court" into the consideration of a strike out application such as the Respondent's Motion. Authorities 1. In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick CJ stated (at 128-129): The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action—if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal—is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. 1. In Nagle v Tilburg [1993] 51 IR 8, the Full Court of the Industrial Court of New South Wales (Fisher CJ, Hungerford and Peterson JJ) considered the judgement of the High Court in Stevenson v Barham (1970) 136 CLR 190 and that of the Court of Appeal in Majik Markets Pty Limited v Brake and Service Centre Drummoyne Pty Limited (1991) 28 NSWLR 443, and stated (at 11-12): We would draw from those authorities the proposition that whilst it is desirable for a case to be determined at an early stage it is only open to do so at the appropriate stage of the proceedings, that is, where the facts, either established by evidence or plainly agreed in terms, enable the Court to determine what the contract or arrangement is or, at least, the parameters of the contract or arrangement. In other words, it seems to us, unless the facts are sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the question then the appropriate stage has not been reached for such a determination to be made. In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick CJ held that the jurisdiction to terminate an action summarily for want of a cause of action in the plaintiff was to be sparingly employed and ought not to be used save where the lack of the cause of action was clearly demonstrated. 1. In Spencer v Commonwealth of Australia [2010] HCA 28 (1 September 2010), the High Court considered section 31A of the Federal Court of Australia Act 1976 (Cth) which is in the following terms: Summary judgment (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section. (5) This section does not apply to criminal proceedings. 1. The Court stated (per French CJ and Gummow J at [22]-[25]): 22 In the Federal Court and in the Court of Appeal of Queensland, the criterion of a "reasonable prospect" of success has been understood in analogous statutory settings to mean a "real" rather than "fanciful" prospect (White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at 312 [59] and cases there reviewed; Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 235 per Williams JA.). This exegesis adds little to the words of s 31A. The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories. 23 Accepting that there are a number of ways in which s 31A may be applied to empower the Federal Court to dismiss a proceeding, it is to be distinguished, in its application to deficient pleadings, from rules (such as O 11 r 16 of the Federal Court Rules) which provide for the striking out of pleadings. As Lindgren J said in White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at 309 [47]. See also Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920; (2008) 252 ALR 41: "evidence may disclose that a person has or may have a 'reasonable cause of action' or 'reasonable prospects of success', yet the person's pleading does not disclose this. In such a case O 11, r 16 empowers the Court to strike out the pleading but ... s 31A(2) would not empower the Court to give judgment for the respondent against the applicant. A failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success, but the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts." 24 The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128-130 per Barwick CJ; [1964] HCA 69) or on the basis that the action is frivolous or vexatious or an abuse of process (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91 per Dixon J; [1949] HCA 1). The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said ((1983) 154 CLR 87 at 99; [1983] HCA 25. See also Webster v Lampard (1993) 177 CLR 598 at 602-603 per Mason CJ, Deane and Dawson JJ; [1993] HCA 57.): "The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried". More recently, in Batistatos v Roads and Traffic Authority (NSW) ((2006) 226 CLR 256 at 275 [46]; [2006] HCA 27) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde ((2000) 201 CLR 552 at 575-576 [57]; [2000] HCA 41) which included the following: "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130 per Barwick CJ.), but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A (In A v Essex County Council [2010] 3 WLR 509, the criterion of "real prospect of success" was variously equated to whether the plaintiff "could succeed at a trial", whether there was a "triable issue" and whether there was the "least doubt": at 523 [44] per Lord Clarke of Stone-cum-Ebony JSC, 541 [119] per Baroness Hale of Richmond JSC, 544 [133] per Lord Brown of Eaton-under-Heywood JSC and 552 [163] per Lord Kerr of Tonaghmore JSC). That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions. 25 Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. 1. In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71, the following was stated as constituting "summary judgement principles" (per McFarlan JA at [3]): 3 The High Court decision in Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles stated in it are of general application: (a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]). (b) The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success (ibid). (c) Powers to summarily terminate proceedings must be exercised with exceptional caution (ibid at [55]; see also French CJ and Gummow J at [24]). Grounds to strike out Frivolous proceedings 1. There is no definition of "frivolous" in the UCPR. The term is defined in the Shorter Oxford Dictionary as "of little or no value or importance, paltry; (of a claim, charge, etc) having no reasonable grounds; lacking seriousness or sense"; and in the Macquarie Dictionary as "of little or no weight, worth or importance; lacking seriousness or sense". The term "frivolous" is regularly used in conjunction with the term "vexatious", as is the case with rule 13.4 of the UCPR. Vexatious proceedings 1. In Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491, in the context of the Supreme Court Act 1970, s 84(1) (vexatious litigant), Roden J said: 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. The Vexatious Proceedings Act 2008, at section 6, defines "vexatious proceedings" in the following terms: 6 Meaning of "vexatious proceedings" In this Act, vexatious proceedings includes: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings. No reasonable cause of action 1. The test for determining whether a reasonable cause of action is disclosed is that set forth in General Steel Industries Inc v Commissioner for Railways (NSW) (per Barwick CJ at 128-130 at [35] above). His Honour continued as follows: …Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 where he says (at p. 91): "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (at p. 84), in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed. Submissions of the applicant 1. In opposition to the Respondent's Motion, the applicant relied upon written submissions which contained the following: Legal Principles 5. The First Respondent seeks the summary dismissal of the proceedings on the basis of an alleged want of jurisdiction, an alleged institution of the proceedings without reasonable cause, an alleged institution of the proceedings frivolously and vexatiously and as an alleged abuse of process (see Notice of Motion, par A). 6. The bases of dismissal do not turn on a point of law alone. 7. The Commission has a practice of only determining a jurisdictional question at an appropriate stage (that is, where the Commission has the necessary facts before it to reach a clear and final decision on the question) (see, for example, Nagle v Tilburg [1993] NSWIRComm 144; [1993] NSWIRC 72; (1993) 51 IR 8 at 11-12, 13 per Fisher CJ, Hungerford and Peterson JJ). 8. The Commission also has a practice of taking the evidentiary case of the Applicant at its highest (see, for example, NSWNA v Wesley Community Services Limited [2016] NSWIRComm 1013 at [15] per Newall C). 9. The Commission only grants summary dismissal sparingly and in a case which is clearly demonstrated (see, for example, Nagle v Tilburg [1993] NSWIRComm 144; [1993] NSWIRC 72; (1993) 51 IR 8 at 10, 12 per Fisher CJ, Hungerford and Peterson JJ). 10. The Commission only grants summary dismissal where it is satisfied that there is no possibility of the application succeeding, that the application is manifestly groundless or that the application is manifestly faulty that it does not admit of argument (see, for example, Nagle v Tilburg [1993] NSWIRComm 144; [1993] NSWIRC 72; (1993) 51 IR 8 at 12 per Fisher CJ, Hungerford and Peterson JJ; NSW Ministry of Health v HSU [2019] NSWIRComm 1035 at [14] per Sloan C). 11. The Commission regards a proceeding as instituted without reasonable cause where it is satisfied that the proceeding has no substantial prospects of success (see, for example, Dr A v Health District (No 4) [2014] NSWIRComm 56 at [14] per Boland AJ (with whom Stanton and Newall CC agreed); Moore v North Sydney Council [2019] NSWIRComm 1021 at [33], [47] per Constant C). 12. The Commission regards a proceeding as being instituted frivolously where it is satisfied that there is no possibility of the proceeding succeeding or the proceeding is manifestly groundless (see, for example, Peden v Lake Macquarie Refrigeration Pty Limited [2004] NSWIRComm 66; (2004) 134 IR 149 at [20] per Wright and Walton JJ, Macdonald C; Dr A v Health District (No 4) [2014] NSWIRComm 56 at [12] per Boland AJ (with whom Stanton and Newall CC agreed); Moore v North Sydney Council [2019] NSWIRComm 1021 at [33], [47] per Constant C). 13. The Commission regards a proceeding as being instituted vexatiously where it is satisfied that the proceeding was commenced to annoy, harass or embarrass or for some collateral purpose (see, for example, Peden v Lake Macquarie Refrigeration Pty Limited [2004] NSWIRComm 66; (2004) 134 IR 149 at [20] per Wright and Walton JJ, Macdonald C; Dr A v Health District (No 4) [2014] NSWIRComm 56 at [11] per Boland AJ (with whom Stanton and Newall CC agreed); Moore v North Sydney Council [2019] NSWIRComm 1021 at [33], [35], [38] per Constant C). 1. I regard the above statement of legal principles as uncontroversial and I propose to apply them in my consideration of this matter. Determination Legislative Scheme 1. Section 210 of the Act relevantly provides: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person— ………………………… (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or ……………………….. (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or ………………………. (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 1. Section 213 of the Act relevantly provides: 213 Enforcement (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following— (a) order the reinstatement or re-employment of an employee, ………………………. (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, ………………………. (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, ………………………. (g) make consequential orders (including orders concerning continuity of service). (3) An application for an order under this section must be made within 21 days after the contravention concerned. ………………………. 1. I now deal in turn with the various bases upon which the respondent submits that the Commission should summarily dismiss the Victimisation Application. Remedy sought not available 1. The respondent submits that the claim by the applicant in the Victimisation Application for payment of the sum of $20,000 for stress, distress, hurt and humiliation and loss of reputation caused by the respondent's threat to victimise the applicant, is a claim for general damages which the Commission lacks the jurisdiction to award. The respondent relies, in support of this submission, on the decision of the Full Bench of the Commission (Stanton, Sloan and Webster CC) in Davie v Industrial Relations Secretary (Department of Justice. Corrective Services NSW) (No 2) [2019] NSWIRComm 1056 at [71] to [74]. 2. In Davie the Full Bench stated: 69 It is necessary also to consider the effect of s 41(2) of the GSE Act, which provides that a Senior Executive dismissed under s 41 is entitled to such compensation (if any) as may be provided in his or her contract of employment "and to no other compensation or entitlement for the termination of employment". There are two observations we wish to make. 70 Firstly, we do not regard the ability of a Senior Executive to make an application to the Commission under s 213 of the IR Act is properly to be regarded as an "entitlement for the termination of employment". The ability to make the claim does not arise automatically on termination of employment, but is dependent on there being grounds under s 210 on which to argue that the employer has victimised the employee on one of the proscribed grounds. In that context the potential availability of a claim is not an entitlement arising out of the termination of employment, but an avenue in which an employee can seek redress for any unlawful conduct resulting in the termination. 71 In this regard, the orders available to the Commission under s 213(2) are directed to correcting or ameliorating the victimising conduct. Their aim is expressed to be the enforcement of the provisions of Ch 5, Pt 1 of the IR Act. The orders that are available are not expressed in the language of an entitlement flowing to the employee. 72 Secondly, we are disinclined to the view that a monetary order under s 213(2)(c) is properly to be regarded as "compensation … for the termination of employment". The jurisdiction of the Commission to make a payment of money to a successful applicant under s 213(2)(c) is limited to the "amount of remuneration or other financial benefits lost or forgone". It is a remedial order which assists in the enforcement of the IR Act through ensuring to the extent possible that an employee is placed, from a financial perspective, in the position that they would have been in had the unlawful conduct not have occurred. Such an order also seeks to ensure that the employer does not benefit from prohibited detrimental action. 73 The Commission's power under s 213(2)(c) finds a close parallel in s 89(4) of the IR Act. That section provides that if the Commission finds that a dismissal was harsh, unreasonable or unjust and it orders reinstatement or re-employment, it may also order the employer to pay to the applicant an amount that does not exceed the remuneration the applicant would, but for being dismissed, have received before being reinstated or re-employed. Like an order under s 213(2)(c), the effect is in the nature of an order for restitution. 74 This is to be contrasted with an order under s 89(5) of the IR Act, which empowers the Commission, if reinstatement or re-employment is impracticable, to "order the employer to pay to the applicant an amount of compensation not exceeding the amount of remuneration of the applicant during the period of 6 months immediately before being dismissed". It is perhaps significant that s 89(5) expressly refers to "compensation" and s 89(4) does not. 1. In opposing this aspect of the Respondent's Motion, the applicant submitted: 14. The First Respondent asserts that section 213(2) of the IR Act is an exhaustive provision which precludes the Commission from granting compensation for stress, distress, hurt, humiliation and loss of reputation and relies upon Davie v Industrial Relations Secretary (No 2) [2019] NSWIRComm 1056; (2019) 290 IR 180 ("Davie") at [71]-[74] in support of such asserted exhaustiveness (see Notice of Motion, par B4). However: 14.1 As a matter of ordinary language, section 213(2) is not exhaustive, especially given the use of the phrase "in particular" in the chapeau to section 213(2). 14.2 As a matter of context, section 213(2) needs to be construed in light of section 213(1), with section 213(1) enabling the Commission to "enforce" by "order" the "provisions of this Part" (and with section 213(1) thereby being the operative remedial provision of the Part and with section 213(2) being an indication of "particular" orders that could be made). 14.3 As a matter of purpose, section 213(2) is intended to indicate (through the paragraphs in section 213(2)) the types of orders that could be made to "enforce" the "provisions of this Part" but section 213(2) (through the phrase "in particular") is intended to indicate that the paragraphs do not limit the availability of other orders. 14.4 The decision in Davie at [71]-[74] did not state that section 213(2) is exhaustive (or a similar matter). 14.5 The decision in Davie at [71]-[74] addressed an argument that the Government Sector Employment Act 2013 (NSW) was a code of remedies available to a senior executive in respect of dismissal (see Davie at [66]) and that section 213 of the IR Act was accordingly unavailable to provide any other remedy (see Davie at [69]) but the Commission rejected the argument (and so Davie at [71]-[74] was directed to an issue different than exhaustiveness). 14.6 The decision in Davie at [71] stated that the orders under section 213(2) are directed at "correcting or ameliorating" the "victimising conduct" (and thereby did not imply that section 213(2) was exhaustive). 14.7 The decision in Davie at [71]-[74] did not address the ability of an employee to seek an "order", to "enforce" the "provisions of this Part", for the payment of compensation for stress, distress, hurt, humiliation and loss of reputation. 15. No reasonable employer could assert that section 213(2) is an exhaustive provision which precludes the Commission from granting compensation for stress, distress, hurt, humiliation and loss of reputation. No reasonable employer could rely upon Davie at [71]-[74] in support of such asserted exhaustiveness. The First Respondent made an application or instituted proceedings by filing the Notice of Motion. The First Respondent made an application or instituted proceedings frivolously or without reasonable cause by filing the Notice of Motion based on the assertion and in reliance on Davie at [71]-[74] (as the assertion and reliance on Davie had no substantial prospects of success and could not possibly succeed). The Commission should order the First Respondent to pay the costs of the Applicant of and incidental to the Notice of Motion (see section 181(2)(a) or section 182(2)(b) of the IR Act). 1. Contrary to what is put in support of the Respondent's Motion at "Grounds and reasons" paragraph 4 (at [30] above), I do not regard the decision of the Full Bench in Davie at [71]-[74] as being supportive of the contention that subsection 213(2) of the Act is "an exhaustive provision which limits the Commission's jurisdiction in this regard". Whilst I readily accept that a claim for compensation in the nature of general damages, in the context of proceedings brought pursuant to section 213 of the Act, is novel and likely to face significant jurisdictional hurdles, I am unable to conclusively determine, at this stage of the proceedings, that such a claim is "so obviously untenable that it cannot possibly succeed" or is "manifestly groundless" or is "so manifestly faulty that it does not admit of argument". 2. However, a more fundamental reason for rejecting the respondent's submissions on this point is that, regardless of the ultimate fate of the applicant's claim in the nature of general damages, the applicant's claim for an order to the effect that the respondent not carry out the threat to victimise the applicant contained in the letter from Dr McCahon to the applicant dated 10 November 2020, is clearly a claim that the Commission has jurisdiction to grant and a claim that should not be summarily dismissed. 3. I am not persuaded, at this stage of the proceedings, that I should take a scalpel to the applicant's Victimisation Application and excise what might be regarded as the weaker limb of the claim in circumstances where the stronger limb has survived the attempted emasculation of it by the respondent. Want of jurisdiction as out of time 1. I reject this aspect of the Respondent's Motion. It is true that, on the evidence before the Commission, alleged acts by the respondent which might form the basis for a claim of victimisation of the applicant occurred from 7 October 2020, the day when the Chief Executive of WSLHD signed the termination letter which, ultimately, was not served on the applicant. However, the ultimate act of alleged victimisation of the applicant by the respondent was the raising of a further 15 "substantiated" allegations of misconduct in the letter from Dr McCahon to the applicant of 10 November 2020. The Victimisation Application was filed on 19 November 2020, well within the 21 day period specified in subsection 213(3) of the Act. Frivolous, vexatious and abuse of process 1. The respondent has asserted that what the applicant is seeking in the Victimisation Application is "in substance the same remedy sought" in the Unfair Dismissal Application. I reject this assertion. What the applicant is seeking in her Unfair Dismissal Application is that the respondent be restrained from acting upon the threat to dismiss the applicant contained in the letter from Dr McCahon of 16 September 2020 and in the letter from the Chief Executive of WSLHD of 7 October 2020 which has not, as yet, been served on the applicant. 2. The applicant's Victimisation Application is primarily directed to the alleged threat to victimise the applicant contained in the letter from Dr McCahon of 10 November 2020. The applicant claims that the substantial and operative reasons for preparing the letter of 10 November 2020, which set out 15 further allegations of misconduct by the applicant, were that the applicant had commenced proceedings against the respondent under the Act and had obtained interim relief. These alleged reasons are clearly proscribed by section 210 of the Act. 3. There is nothing before me that would support a finding that the applicant's Victimisation Application is frivolous in the sense that it is of little or no value, importance or weight, is paltry, or is lacking seriousness or sense. 4. Further, there is nothing before me that would support a finding that the Victimisation Application is vexatious in the sense that it has been instituted with the intention of harassing, annoying or embarrassing the respondent, has been brought for collateral purposes, or is so obviously untenable or manifestly groundless as to be utterly hopeless. 5. The respondent has asserted that the Victimisation Application "improperly seeks to cavil with directions already made by the Commission… especially in relation to undertakings and directions to provide further allegations to the Applicant as complied with by the Respondent". I understand this to be a reference to the following directions which I made on 4 November 2020: 1. The respondent will, within 7 days provide to the applicant, written particulars of further allegations; 2. The respondent undertakes not to dismiss the applicant until further order; 3. The hearing listed for 11 November 2020 is vacated; 4. The matter is relisted for report back before the Commission on 11 November 2020 at 10.00am. 1. As previously stated, by letter dated 10 November 2020, Dr McCahon advised the applicant of 15 further allegations against her, in relation to which the respondent proposed to find all 15 allegations substantiated following an initial review of the available evidence. It was following receipt of that correspondence that the applicant filed her Victimisation Application on 19 November 2020. 2. I do not regard the filing of the Victimisation Application by the applicant, in response to the 15 further allegations against her as, in any way, seeking to improperly cavil with the directions set out at [60] above. 3. Further, I reject the criticism by the respondent of the Victimisation Application for referring to "matters that were before the Commissioner in conciliation" ("Grounds and reasons" paragraph 13 at [30] above). The particular matter which was the subject of this criticism was the failure of the respondent to alert the applicant and the Commission to the existence of the termination letter of 7 October 2020 until it was referred to in an email from the respondent's solicitor to the applicant's solicitor of 26 October 2020. I regard the applicant's complaints about this failure on the part of the respondent (at "Particulars of victimisation" 14-23 at [27] above) as perfectly legitimate. 4. It follows that I am unable to conclude, at this stage of the proceedings, that the Victimisation Application constitutes an abuse of process and should be struck out. Order 1. I make the following orders: (1) The Notice of Motion filed by the Health Secretary in these proceedings on 16 December 2020 is dismissed. (2) Costs are reserved. John Murphy 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: 03 February 2021