Diaz v Health Secretary in respect of NSW Health Pathology (No 2) [2022] NSWIRComm 1006

Industrial Relations Commission New South Wales Medium Neutral Citation: Diaz v Health Secretary in respect of NSW Health Pathology (No 2) [2022] NSWIRComm 1006 Hearing dates: 17 February 2022 Date of orders: 23 February 2022 Decision date: 23 February 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The notice of motion brought by Mr Diaz seeking non-disclosure orders pursuant to s 164A of the Industrial Relations Act 1996 is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – unfair dismissal – for non-publication orders – relevant principles – whether the applicant's circumstances warrant a departure from the principle of open justice Legislation Cited: Industrial Relations Act 1996 s 164A Cases Cited: Day v Smidmore (No 2) [2005] NSWIRComm 406 Dr A and Health District [2014] NSWIRComm 28 Texts Cited: Nil Category: Procedural rulings Parties: Dil Diaz (Applicant) Health Secretary (Respondent) Representation: D Diaz (Self) J Gautray, NSW Health Pathology (Respondent) File Number(s): 2021/188504 Publication restriction: No

decision 1. The Commission has before it a notice of motion filed by Mr Diaz on 1 February 2022 ("Motion") seeking non-disclosure orders pursuant to s 164A of the Industrial Relations Act 1996 ("Act"). The Motion sets out the orders sought by Mr Diaz as follows: "I seek an order under s 164 A (a) i, ii, (b), (c), (d) non disclosure act to 1. restrict and prohibit, 1.1. disclosure of my name, address, pictures, private, sensitive and confidential information about or related to medical reports or medical reports itself, information about sex and gender identity, any identifiable information, materials that leads to identification 1.2. publication/broadcasting of documents, materials with above information 1.3. the content/reports/evidence received in private or public by commission that discloses the above information of the case to the public 1.4. the disclosure of the above information itself, related information by the representative of respondent, respondent to other staff and public 1.5. and the respondent from disclosing, sharing, documenting (verbally, electronically or physically) proceedings of evidence before commission, and the contents of a document containing above information lodged or/and received by the commission in relation to the proceedings 2. retrieve, withdraw and amend any existing publication (physical, electronic, audio, visual) to comply with the requested order as per the attached affidavit under s 164 A (a) i, ii, (b), (c), (d) non-disclosure act." (Sic) 1. The grounds and reasons set out in the Motion are as follows: "due to past negative exposure, and serious concerns of vilification, harm to honor, reputation, safety and health and suffering as referred in the affidavit, 1. to reasonably protect my privacy and confidential, sensitive information 2. to prevent of further disparage, harm to dignity, safety and health of myself and my loved ones 3. to prevent further damage, prejudice to personal, professional life, social life, economical burden, past, present and future employment" (Sic) 1. The Motion is supported by an affidavit sworn by Mr Diaz on 1 February 2022 ("Affidavit"). The contentions in the Affidavit may be summarised as follows: 1. he and his family would be subject public opprobrium if he was identified through the proceedings and his personal information was disclosed; and 2. he was subjected to "poor treatment" as an employee of NSW Health Pathology, including breaches of privacy and confidentiality. This raises in Mr Diaz "serious concerns" that NSW Health Pathology may publicly disclose matters arising in these proceedings to the detriment of his public standing and career prospects. 1. The Health Secretary filed an outline of submissions in respect of the Motion on 4 February 2022. The tenor of those submissions suggested that the Health Secretary opposed the making of non-disclosure orders, or at least did not consider that Mr Diaz had made out the case for such orders to be made. 2. However, during a directions hearing of the proceedings on 17 February 2022 Mr Jack Gautray, the Manager Industrial Relations for NSW Health Pathology who appeared for the Health Secretary, stated that the Health Secretary did not actively oppose the making of the orders sought. Rather, the Health Secretary considered this to be a matter for the Commission and her submissions were intended to assist in outlining the principles to be applied by the Commission in exercising its discretion. 3. Also at the directions hearing on 17 February 2022, directions were made to allow Mr Diaz to file and serve any additional submissions on which he sought to rely in respect of the Motion. On receipt of those submissions, and anything further that the Health Secretary wished to put in response, the Commission would determine the Motion "on the papers". 4. On 21 February 2022 the Registry received an email from Mr Diaz setting out his further submissions ("Further Submissions"). Having considered those submissions carefully in the context of the Motion, I have determined not to reproduce or even paraphrase them. Suffice it to say, the Further Submissions provide significantly more clarity as to the basis for Mr Diaz's request for non-disclosure orders than was apparent from the Motion and the Affidavit. 5. On 23 February 2022 the Registry received an email from Mr Gautray providing the Health Secretary's response to Mr Diaz's Further Submissions. Contrary to the position put on 17 February 2022, but more consistent with the submissions received on 4 February 2022, the Health Secretary submitted, in effect, that non-disclosure orders ought not be made. The email asserted that the Health Secretary "maintains that [Mr Diaz] has not established that any of the non-disclosure orders are 'necessary' 'in the interests of justice'". It further stated that Mr Diaz had not proven the factual basis on which the orders were sought, including the conduct he alleged had occurred during his employment and the impact that any disclosure of personal information would have on him. The Health Secretary stated that there was no intention that Mr Diaz's personal information would be disclosed or published to the general staff of NSW Health Pathology or to the public.