Industrial Relations Commission New South Wales Medium Neutral Citation: Mustafa Rahman v Secretary, Ministry of Health in respect of Sydney Local Health District [2021] NSWIRComm 1032 Hearing dates: 12 January 2021 Decision date: 12 January 2021 Jurisdiction: Industrial Relations Commission Before: Industrial Registrar, Morgan Decision: Notice of motion determined. Catchwords: UNFAIR DISMISSALS - Notice to Produce - NOTICE OF MOTION Legislation Cited: Industrial Relations Act 1996 Industrial Relations Commission Rules 2009 Cases Cited: Attorney General of NSW v Chidgey [2008] NSWCCA65 Estriech v Leon [2012] NSWIRComm 84 Rinehart v Rinehart [2018] NSWSC 1102 Vizzone v Commissioner of Police [2020] NSWIRComm 1034 Category: Procedural rulings Parties: Mr K Bolwell (Applicant) Mr A. Britt of Counsel on behalf of the Respondent Ms J. Rex (Respondent) File Number(s): 2020/187907 and 2020/266802 Publication restriction: Nil DECISION 1. On 24 June 2020 and 29 September 2020 Mustafa Rahman (The Applicant) lodged with the Industrial Registry two applications for relief from unfair dismissal from the Health Secretary in respect of Sydney Local Health District and Health Secretary in respect of South West Sydney Local Health District (The Respondents). 2. Commissioner Sloan conducted conciliation and directions with the parties on a number of listings. Ultimately conciliation was unsuccessful, standard directions were made and leave was granted to each party to issue a notice to produce. The Applicant issued a notice to produce on The Respondents, it appears that documents relating to item two have been provided to the applicant. There appears to be correspondence between the parties regarding the specificity of the items I and IV, ultimately the parties were unable to agree and on 18 November 2020. The Respondent filed a notice of motion with a supporting affidavit to set aside items I and IV of the notice to produce. 3. In the listing before Industrial Registrar Morgan, directions were made to file short submissions regarding the notice of motion and there was agreement that the decision could be made in the absence of the parties. This decision is the result of notice of motion being determined on the papers. 4. For clarity I have read each of the applications that have been filed and the associated employers' reply as well as the submissions each party filed in regards to the notice of motion. 5. Item one of the Notice to Produce seeks that the Respondent produce 'the personnel files for the entirety of the Applicants employment' with the Respondents. On a number of occasions the Applicant was asked by the representatives of the Respondent to narrow the scope of the request. The Respondent agreed to produce all training records and records of disciplinary proceedings or counselling but declined to produce pay records, leave records, wage adjustments and other items that may fall within that scope of 'personnel file'. The Notice of Motion filed by the Respondents is seeking for the Commission to set aside this item as well as item IV due to a lack of forensic purpose. The Applicant pressed in correspondence between the parties and in submissions for the motion that the entire personnel file be produced. 6. Whilst the submissions from the Applicant and the Respondents advanced their respective cases, I believe the Applicant has misapprehended the purpose of rule 2.7 Industrial Relations Commission Rules 2009 (Commission rules) on page 6 of their submissions filed on 15 December 2020. Specifically rule 2.7 refers to leave to access documents held by the Industrial Relations Commission, currently the Industrial Relations Commission does not have possession of the documents sought in the notice of motion as such the requirements outlined in the Uniform Civil Procedure Rules (UCPR) do apply in this instance. We should also consider the definitions of 'file' in division 1 of the Commission rules and documents and leave requirements for access to files and items held within the Commission as per rule 2.7. 7. I have considered the submissions made by the Applicant and the Respondent and note that the principles surrounding subpoenas and in the case of the Commission, a summons to produce are fairly well established. When looking at a summons to produce we consider the principles of setting aside a summons or a subpoena in Estriech v Leon [1] and look at the authorities of the Attorney-General v Chidgey [2] , and I also considered the commentary in Vizzone v Commissioner of Police [3] . Whilst this motion is for the setting aside of a notice to produce many of the principles are in common. Specifically when considering legitimate forensic purpose Beazley JA rejected the argument that merely relevant might be sufficient (Attorney General v Chidgey). Rinehart v Rinehart takes it further by stating "it must be shown that it is likely the documentation will materially assist on an identified issue or there that there is a reasonable basis beyond speculation that it is likely the documentation will." [4] 8. It is acknowledged by both parties that the Applicant's dismissal was due to alleged misconduct as opposed to other reasons for dismissal such as performance or attendance. Central to the issue is whether the Applicant inappropriately restrained a patient in a mental health unit of the Respondent and subsequent conduct regarding the restraint. For thoroughness I note the Applicant suggests the possibility of other reasons for termination that may become a reason to obtain access to other information in the Applicant's personnel file. [5] Such other reasons do not appear to be a feature in this case. 9. Item IV of the Notice to Produce seeks to access 'all correspondence to, from and mentioning Mr Rahman relating to the above matters'. The Respondent sought from the Applicant to narrow the scope of the item. The Applicant was reticent to do this to the point where it is said 'it is not clear what part of "all records" is not understood. We seek all records' and "Ditto for point III above" [6] . It is not until the Applicant's submissions are filed on 15 December 2020 that the Applicant sought leave of the Commission to amend the Notice to Produce to insert the dates 2 November 2019 and 16 August 2020. [7] 10. There is no indication from the Applicant's submissions or elsewhere as to who should be included in this scope or what the Applicant meant by 'relating to the above matters'. [8] Nor is there any explanation of what is expected from the correspondence what could possibly throw light on the issues in the main case. 11. I have again considered the submissions made by both parties and the principles associated with the legal test for legitimate forensic purpose, I make the following orders: 1. The Respondent is to produce material from the Applicants' personnel file related to training, disciplinary proceedings and counselling no later than 4pm 18 January 2020, the balance of the notice to produce item I is set aside. 2. Set aside item IV of the notice to produce issued on 29 October 2020. 3. Listed for directions on 20 January 2021 at 9.15am before the Industrial Registrar 4. Parties to communicate with the intent to obtain consent regarding the filing of evidence for hearing listed on 3-5 March 2021 by the listing on 20 January 2021 before the Industrial Registrar. MELINDA MORGAN INDUSTRIAL REGISTRAR ********** Endnotes 1. Estriech v Leon [2012] NSWIRComm 84 2. Attorney General of NSW v Chidgey [2008] NSWCCA65 3. Vizzone v Commissioner of Police [2020] NSWIRComm 1034 4. Rinehart v Rinehart [2018] NSWSC 1102 5. Applicant submissions filed 15 December 2020 page 8. 6. Annexure JR4 General Affidavit filed 18 November by Juliette Rex 7. Page 6 of submissions dated 15 December 2020 8. Page 1 Notice to Produce filed 29 October 2020 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 April 2021