Dul v Health Secretary, in respect of Sydney Local Health District (No. 2) [2021] NSWIRComm 1024

Industrial Relations Commission New South Wales Medium Neutral Citation: Dul v Health Secretary, in respect of Sydney Local Health District (No. 2) [2021] NSWIRComm 1024 Hearing dates: Matter determined on the papers Date of orders: No orders made Decision date: 25 March 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Murphy Decision: The Commission declined to award costs to the applicant Catchwords: COSTS – notice of motion – applicant sought an award of costs after a successful unfair dismissal application – did respondent unreasonably fail to agree to a settlement of the claim – exchange of offers of settlement – exercise of discretion to decline to award costs Legislation Cited: Industrial Relations Act 1996 Cases Cited: Bankstown City Council v Paris (1999) 93 IR 209 Four Sons Pty Limited v Sakchai Limsiripothong (No 2) (2000) 100 IR 400 IGA Distribution Pty Ltd v Moses (No 3) (2003) 150 IR 145 Phillips v Industrial Relations Commission (NSW) [2006] NSWCA 183 Texts Cited: Nil Category: Costs Parties: John Dul (Applicant)

Health Secretary, in respect of Sydney Local Health District (Respondent) Representation: Counsel: Ms R Kumar (Applicant) Mr A Britt (Respondent)

Solicitors: Mr O Khan, Brydens Lawyers (Applicant) File Number(s): 2020/00184348 Publication restriction: Nil

DECISION 1. On 22 June 2020, the applicant, Mr John Dul, filed in the Office of the Industrial Registrar an Application for Relief in relation to Unfair Dismissal following the termination of his employment on 28 May 2020 by Dr Teresa Anderson AM, Chief Executive, Sydney Local Health District ("Application"). The respondent to the Application was the Health Secretary, in respect of Sydney Local Health District ("SLHD"). The reason given for the dismissal of the applicant from his positon as a Mechanical Fitter and Control Room Operator at Royal Prince Alfred Hospital was that he had swapped two shifts with another employee without authorisation (see Dul v Health Secretary, in respect of Sydney Local Health District [2020] NSWIRComm 1082). 2. The hearing of the Application occurred on 18 and 21 September and 30 October 2020. Written submissions were received on 6 and 13 November 2020. 3. On 3 December 2020, I made the following orders: (1) The applicant is to be reinstated to the position he held at the Sydney Local Health District immediately before his dismissal on 28 May 2020. (2) Order (1) is to take effect on and from Monday 14 December 2020. (3) The applicant is to be paid by the respondent an amount equivalent to the wages he would have earned but for his dismissal for the period 28 May 2020 until 14 December 2020 less the one week's pay that he was paid in lieu of notice and the amount of any other income he has received during that period for work he has performed or in the nature of unemployment benefits. (4) The parties are to confer in order to reach agreement on the amount of back pay payable to the applicant pursuant to order (3). (5) The matter is stood over generally with liberty to the parties to apply to have it relisted on seven days' notice for the purpose of addressing the Commission on the quantum of back pay to be paid to the applicant pursuant to order (3) if agreement cannot be reached pursuant to order (4), and on the question of costs. If that liberty is not exercised by close of business on 23 December 2020 the file will be closed administratively. 1. On 23 December 2020 the applicant filed a Notice of Motion ("Motion") seeking an order that the respondent pay the applicant's costs of and incidental to the proceedings as agreed or assessed on an ordinary basis, and on an indemnity basis after: 1. 17 July 2020; or 2. 20 July 2020; or 3. 21 July 2020; or 4. 18 September 2020. 1. The applicant also sought an order that the respondent pay the applicant's costs of and incidental to the Motion. 2. The Motion was supported by an affidavit affirmed on 21 December 2020 by the applicant's solicitor, Omar Khan, parts of which I have extracted below. Hall Payne Lawyers were the firm that was initially representing the applicant. 5 On 16 July 2020, Hall Payne offered to settle the matter on the following terms: a. The Respondent will pay the Applicant an amount equivalent to 5 months' salary: and b. The Applicant will lodge a notice of discontinuance, the termination of the Applicant's employment will be treated by the Respondent as a resignation, and the parties will enter a deed of release containing the usual terms including mutual release, mutual confidentiality and mutual non­ disparagement (the Non Monetary Terms). 6 On 17 July 2020 at 1:00 PM, the Respondent offered to settle the matter on the following terms: a. The Respondent will pay the Applicant an amount equivalent to 6 weeks' salary: and b. The Non-Monetary Terms. 7 On 17 July 2020 at 4:08 PM, Hall Payne offered to settle the matter on the following terms: a. The Respondent will pay the Applicant an amount equivalent to 3 months' salary: and b. The Non-Monetary Terms. 8 On 20 July 2020 at 11:23 AM, the Respondent offered (for a second time) to settle the matter on the following terms: a. The Respondent will pay the Applicant an amount equivalent to 6 weeks' salary: and b. The Non-Monetary Terms. 9 On 20 July 2020 at 4:40 PM, Hall Payne offered to settle the matter on the following terms: a. The Respondent will pay the Applicant an amount equivalent to 8 weeks' salary: and b. The Non-Monetary Terms. 10 On 21 July 2020, the Respondent offered (for a third time) to settle the matter on the following terms: a. The Respondent will pay the Applicant an amount equivalent to 6 weeks' salary: and b. The Non-Monetary Terms. Respondent's first offer to settle in September 2020 11 In August and September 2020, the Applicant was put to the cost of: (a) filing and serving his evidence; (b) reviewing the extensive evidence filed by the Respondent; and (c) filing and serving his evidence in reply. 12 On 14 September 2020, after all material in the matter had been filed, the Respondent offered to settle the matter on the following terms: a. The Respondent will pay the Applicant an amount equivalent to 16 weeks' salary: and b. The Non-Monetary Terms. ……………………………….. 14 I rejected the above offer on behalf of the Applicant. Applicant's offer to settle in September 2020 15 On 17 September 2020, the Applicant instructed me to offer to settle the matter on the following terms: a. The Applicant be reinstated to his former position; b. The Applicant will receive back-pay from date of the dismissal; c. No need of release; and d. The Applicant's continuity of service will be recognised. ………………………………… Respondent's second offer to settle in September 2020 17 On or around 4 PM on 18 September 2020, at the end of the first day of the hearing, the Respondent: a. Rejected the Applicant's offer of 17 September 2020; and b. Offered to settle the matter in the same terms as the Respondent's offer of 14 September 2020. 18 On or around 5:00 PM on 18 September 2020, I called Juliette Rex, Employee Relations Manager for the Respondent, and rejected the above offer on behalf of the Applicant. 1. Annexed to Mr Khan's affidavit was the exchange of correspondence, the contents of which were accurately summarised in the affidavit. 2. On 25 January 2021, I held a directions hearing on the Motion. On that occasion I made directions for the filing and serving of evidence and outlines of submissions and raised the issue as to whether the Motion could be determined on the papers. 3. On 8 February 2021, the respondent filed an affidavit affirmed by Juliette Rex, Employee Relations Manager for SLHD, on that day. In her affidavit, Ms Rex confirmed the exchange of settlement offers between the parties in September 2020, as summarised in Mr Khan's affidavit of 21 December 2020. 4. After the parties had filed and served evidence and outlines of submissions in support of their respective positions on the costs issue, the Commission, on 2 March 2021, received advice that both parties consented to me determining the matter on the papers. I have proceeded on this basis.