Industrial Relations Commission New South Wales Medium Neutral Citation: Jaggi v Health Secretary in respect of the Western Sydney Local Health District [2022] NSWIRComm 1032 Hearing dates: 25, 26, 27, 28 and 29 October 2021; final submissions received 4 February 2022 Date of orders: 29 April 2022 Decision date: 29 April 2022 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: I order that: (1) the Health Secretary pay to Mr Jaggi a sum equivalent to 12 weeks' pay calculated at the rate of $1,979 per week, less applicable taxation; and (2) the payment be made on or before 20 May 2022. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Termination – Statutory rights – Unfair dismissal – whether employer able to rely on repudiation of employment in the context of statutory employment – whether conduct amounted to repudiation in any event – whether employer affirmed contract – whether employer otherwise had grounds to dismiss – reliance on misconduct discovered post-employment – whether dismissal unreasonable or harsh – principles to apply on question of remedy EMPLOYMENT AND INDUSTRIAL LAW – Victimisation – whether applicant dismissed or otherwise subjected to detriment on the basis of a proscribed reason – principles to apply on the question of relief – whether orders sought by the applicant are within the power of the Commission to award Legislation Cited: Defamation Act 2005 s 14 Fair Work Act 2009 (Cth) ss 789FC, 789FF Government Sector Employment Act 2013 ss 68, 69, Sch 1 Pt 1 Government Sector Employment (General) Rules 2014 Pt 7, Pt 8 Health Services Act 1997 s 115 Industrial Relations Act 1996 ss 3, 84, 89, 163, Ch 5 Pt 1, ss 210, 213 Occupational Health and Safety Act 2000 s 23 State Records Act 1998 s 21 Work Health and Safety Act 2011 Pt 5 Cases Cited: Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia and Grivell [1999] SASC 300 Bartlett and Cini v Mario's Fresh and Frozen Foods [2006] NSWIRComm 1084 Briginshaw v Briginshaw (1938) 60 CLR 336 Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm 117 Clarke v Metropolitan Meat Industry Board [1967] AR (NSW) 16 Concut Pty Ltd v Worrell (2000) 75 ALJR 312; [2000] HCA 64 Corrective Services NSW v Danwer [2013] NSWIRComm 61 Davie v Industrial Relations Secretary (Department of Justice, Corrective Services NSW) (No. 2) [2019] NSWIRComm 1056 Denise McKay v Department of Family & Community Services [2018] NSWSC 44 Director of Public Employment, by his agent the Director-General of the Department of Juvenile Justice v Public Service Association (on behalf of Brown) (2008) 184 IR 134; [2008] NSWIRComm 221 Director-General of Education v Suttling (1987) 162 CLR 427 Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071 Earney v Australian Property Investment Strategic Pty Ltd [2010] VSC 621 Foran v Wight (1989) 168 CLR 385 Hamod v State of New South Wales and Anor [2011] NSWCA 375 Hansen v Secretary of the Department of Transport – as head of the Transport Service and exercising the employer function of staff of Roads and Maritime Services [2016] NSWIRComm 1011 Jones v Dunkel (1959) 101 CLR 298 Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 Manly Council v Byrne and Anor [2004] NSWCA 123 Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 North v Television Corporation Ltd (1976) 11 ALR 599 NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059 Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 Silsbury v Health Secretary in respect of Western Sydney Local Health District [2021] NSWIRComm 1004 Swaran Lata Kumar and Macquarie Partnership Lawyers [2005] NSWIRComm 202 Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 Vaulin v City of Parramatta Council [2020] NSWIRComm 1058 Visscher v Giudice (2009) 239 CLR 261 Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311; [2010] VSC 9 Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8 Texts Cited: Nil Category: Principal judgment Parties: Vikram Jaggi (Applicant) Health Secretary (Respondent) Representation: V Jaggi (Self) D Holmes, Western Sydney Local Health District (Respondent) File Number(s): 2020/313961 and 2020/313985 Publication restriction: No decision 1. Vikram Jaggi was employed as a Finance Business Support Officer with the Western Sydney Local Health District ("WSLHD"). His employment was terminated on 14 October 2020. 2. As a consequence of that termination, on 3 November 2020 Mr Jaggi filed: 1. an Application for Relief from Victimisation ("Victimisation Application") pursuant to s 213 of the Industrial Relations Act 1996 ("IR Act"); and 2. an Application for Relief in relation to Unfair Dismissal pursuant to s 84 of the IR Act ("Unfair Dismissal Application"). 1. On 21 May 2021 I ordered that the Victimisation Application and the Unfair Dismissal Application be joined. 2. The hearing of these proceedings took place over five days. Mr Jaggi was self-represented. He relied on: 1. a statement he had prepared dated 18 June 2021 ("Jaggi Statement"); 2. written outlines of submissions in respect of each of the Victimisation Application and Unfair Dismissal Application, both dated 18 June 2021; and 3. a written outline of submissions in reply dated 3 September 2021. 1. The Health Secretary relied on: 1. a statement of Elizabeth Andersen dated 4 August 2021 ("Andersen Statement"); 2. a statement of Namita Biswal dated 30 July 2021 ("Biswal Statement"); 3. a statement of David Holmes dated 30 July 2021 ("Holmes Statement"); 4. a statement of Kaushaliya Kumar dated 30 July 2021 ("Kumar Statement"); 5. a statement of Catherine Ladomatos dated 28 July 2021 ("Ladomatos Statement"); 6. a statement of Richard Law dated 30 July 2021 ("Law Statement"); 7. a statement of Graeme Loy dated 3 August 2021 ("Loy Statement"); 8. a statement of Barry Mitrevski dated 30 July 2021 ("Mitrevski Statement"); 9. a statement of Nicole Truelove dated 29 July 2021 ("Truelove Statement"); and 10. a written outline of submissions filed on 4 August 2021. 1. At the conclusion of the hearing I made directions that the parties file and serve closing written submissions. Closing submissions were received from Mr Jaggi on 10 December 2021 ("Mr Jaggi's Closing Submissions"), from the Health Secretary on 24 January 2022 ("Health Secretary's Closing Submissions") and from Mr Jaggi in reply on 4 February 2022 ("Mr Jaggi's Reply Submissions"). 2. The evidence and submissions filed by the parties relied total more than 2,500 pages. The transcript of the hearing comprises 555 pages. Having considered that material, I have determined that it is not necessary that I endeavour to summarise or exhaustively paraphrase the effect of each witness' evidence or the submissions. It is also not necessary to resolve every factual contest between the parties, or to address every contention and argument made. To do so would be to write a book. I will refer to the evidence and submissions only as necessary to explain the decision I have made. Mr Jaggi was self-represented 1. As Mr Jaggi was self-represented, I was guided by the following observations of Beazley JA in Hamod v State of New South Wales and Anor [2011] NSWCA 375: "309. Courts have an overriding duty to ensure that a trial is fair: Dietrich v R [1992] HCA 57; 177 CLR 292. This entails ensuring that the trial is conducted fairly and in accordance with law: MacPherson v The Queen [1981] HCA 46; 147 CLR 512 per Gibbs CJ and Wilson J at [16] 525. The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented: R v Zorad (1990) 19 NSWLR 91 at 94-95. ..." 1. That guidance led to me adopting a relatively informal approach to the proceedings, and being considerably more active than I might otherwise have been in assisting Mr Jaggi to present his case. I provided some guidance to Mr Jaggi in his cross-examination of the Health Secretary's witnesses, to clarify his lines of enquiry and to assist in making sure that they remained pertinent to the matters before the Commission. I made my own enquiries of witnesses. I encouraged the Health Secretary's advocate, David Holmes, a Senior IR/ER Specialist with the WSLHD, to forbear from making unduly formal or technical objections to matters advanced by Mr Jaggi. I acknowledge with gratitude that Mr Holmes generally took a cooperative approach to my intervention in the proceedings. 2. Further in this regard, in conducting the proceedings I had regard to the objects contained in s 3 of the IR Act, and in particular that of resolving industrial disputes by conciliation and, if necessary, by arbitration in a prompt and fair manner and with a minimum of legal technicality (s 3(g)). I also had in mind s 163(1) of the IR Act, which provides: 163 Rules of evidence and legal formality (1) The Commission— (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 1. At the same time, Mr Jaggi did not come across as an unsophisticated litigant. In the presentation of his case he demonstrated a good comprehension of litigation principles. His submissions revealed a solid grasp of legal reasoning, which included statutory interpretation and legal analysis supported by authorities. I am confident that Mr Jaggi had every opportunity to present his case in full. Questions of credibility 1. There was a significant number of factual contests between the parties, with a resultant conflict in the evidence adduced by Mr Jaggi on the one hand, and the Health Secretary on the other. This conflict extended to inferences which the Commission was asked to draw, or not to draw, from certain alleged facts. 2. It is perhaps not surprising, then, that Mr Jaggi invited the Commission to make adverse findings as to the credibility of several of the witnesses called by the Health Secretary. I do not accept Mr Jaggi's submissions in this regard. I accept that in some respects the evidence of some of the witnesses, and in particular Mr Mitrevski and Ms Kumar, needs to be considered in light of an antipathy towards Mr Jaggi they demonstrated during their oral testimony. However, from my reading of the evidence as a whole and my observations of the witnesses, I find no reason to impugn the credibility of any of them. 3. The Health Secretary's Closing Submissions explored at length the various grounds on which it was said that I should make adverse findings as to Mr Jaggi's credit. These submissions, which were in some respects unnecessarily strident, occupied ten pages. 4. I am mindful that Mr Jaggi was self-represented, and that in the witness box it may have been difficult for him to draw the line between applicant and advocate. Even allowing for this, however, I observed Mr Jaggi to be a guarded, evasive and difficult witness. His evidence was at times inconsistent and variable, apparently changing in the face of challenges thrown up in cross-examination. 5. It follows that I have approached Mr Jaggi's testimony with some caution. In the face of a conflict between the evidence of Mr Jaggi and that of one of the Health Secretary's witnesses, and in the absence of clearly corroborative documentary evidence, I have preferred the evidence of the Health Secretary. Factual background 1. Set out below are the facts which I have found form the background to these proceedings. 2. Mr Jaggi commenced employment with the WSLHD on 8 April 2019 as a Health Manager Level 2 Finance Business Support Officer. He reported to Kaushaliya Kumar, who at the time was the Manager Management Accounting, District Directorates for the WSLHD. 3. By June 2019 Ms Kumar had developed concerns regarding Mr Jaggi's ability to perform his duties. These were not resolved despite Ms Kumar providing "more intensive support" to Mr Jaggi. [1] Ms Kumar discussed her concerns with Elizabeth Andersen, the Deputy Director of Finance for the WSLHD, on 17 June 2019. While Ms Kumar wished to explore the termination of Mr Jaggi's employment, Ms Andersen resisted that suggestion. She encouraged Ms Kumar to continue to provide additional support and coaching to Mr Jaggi. She asked Ms Kumar to set up a work plan for him. 4. At about the same time, Ms Kumar also raised her concerns with Catherine Ladomatos, who was the Senior HR Business Partner, District Directorates for the WSLHD. Ms Kumar sought to place Mr Jaggi on a performance improvement plan ("PIP"). Ms Ladomatos considered that this was premature and that Mr Jaggi needed to be given an opportunity to understand where he was falling short before progressing with a PIP. Like Ms Andersen, Ms Ladomatos suggested that Ms Kumar work with Mr Jaggi to develop a work plan, "which would provide clear expectations round the requirements of his role". [2] 5. On 19 August 2019 Ms Kumar provided Mr Jaggi with a draft work plan, scheduled to run from August to November 2019 (although the work plan itself bears the date "November 2020"). Ms Kumar proposed to meet Mr Jaggi to finalise the work plan in late August 2019. 6. As it transpired, that meeting did not eventuate. Ms Kumar unexpectedly took a period of leave for personal reasons, returning to work on 9 September 2019. On 16 September 2019 she commenced a secondment to the Ministry of Health. The proposed work plan was not implemented. 7. In mid-September 2019 Mr Jaggi lodged a complaint against Ms Kumar ("Kumar Complaint"). He met with Ms Ladomatos to discuss the Kumar Complaint on 16 September 2019. Ms Ladomatos conducted a risk assessment in respect of the matter. 8. On 30 September 2019 Ms Ladomatos completed a document titled "Assessment Form – Staff Complaint – Bullying and Harassment". In that document, she found that the policy described as "NSW Health PD2011_018 'Bullying – Prevention and Management of Workplace Bullying in NSW Health'" ("Bullying and Harassment Policy") applied to the Kumar Complaint. While Ms Ladomatos did not expressly make a finding that Ms Kumar had breached that policy, she set out a number of recommendations, including: [3] "• It is recommended that Ms Kumar receive counselling from her manager around her gaps in her communication and management style. • Ms Kumar be offered workplace training programs to assist her in developing her coaching and communication skills and to modify her task oriented style to suit differing personality types. • It is recommended that Ms Kumar receive formal leadership coaching and/or mentoring that can provide assistance with how to better manager her stress levels. • It is recommended that the performance of Mr Jaggi be reviewed by an alternative Manger [sic- Manager] and any gaps addressed through coaching. It is also recommended that a Work Plan and Development Plan be completed by Mr Jaggi and his acting Manager to clearly identify an agreed approach to his development." 1. Ms Andersen received Ms Ladomatos' assessment on 17 October 2019. She considered and accepted the assessment and Ms Ladomatos' recommendations. 2. On 21 October 2019 Mr Jaggi received a letter from Ms Ladomatos informing him of the outcome of the Kumar Complaint. That letter stated in part: "I refer to your complaint of 30 September 2019 wherein you verbally detailed allegations of bullying and harassment against your line manager, Ms Kaushaliya Kumar. I note that in line with provisions of NSW Health PD2011_018 Prevention and management of Workplace Bullying, a comprehensive assessment into your complaints has occurred and having reviewed your submissions and those from the respondent and witnesses I can advise you that reasonable management action has taken place. …" (Italics in original) 1. Following Ms Kumar's departure from the WSLHD on secondment, Richard Law, Senior Finance Business Partner, Finance Department for the WSLHD, had been assigned the responsibility for the Management Accounting team. He became Mr Jaggi's direct supervisor. 2. Mr Law perceived shortcomings in Mr Jaggi's performance "immediately". [4] He had regular discussions with Mr Jaggi about his work performance, during which Mr Jaggi demonstrated an unwillingness to accept criticism. Mr Law discussed with Ms Andersen his concerns about Mr Jaggi's performance throughout December 2019 and January 2020. 3. Mr Law also discussed these concerns with Nicole Truelove, the Senior HR Business Partner, District Directorates for the WSLHD. Ms Truelove advised Mr Law to develop an "action log" to "formalise the performance communication with Mr Jaggi". [5] 4. Mr Law provided Mr Jaggi with the action log on 17 January 2020, in a meeting attended also by Ms Andersen. 5. Mr Law continued to have "regular informal coaching discussions with Mr Jaggi". [6] 6. On 26 February 2020 Ms Andersen met with Mr Jaggi to discuss tasks that had not been completed. 7. On 2 March 2020 Ms Andersen and Mr Law met with Mr Jaggi to discuss his failure to complete work which was due for completion that day. 8. Also on 2 March 2020, at 6.55pm Mr Jaggi sent an email to Namita Biswal, the HR Director, District Directorates for the WSLHD, stating: [7] "I believe you look after my department. I need to discuss some issues in relation to the management style of Elizabeth Andersen. Could you please arrange a time with me?" 1. In reply, Ms Biswal informed Mr Jaggi that she would have Ms Truelove make contact with him. The following day, 3 March 2020, Ms Truelove made arrangements to meet Mr Jaggi on 5 March 2020. 2. On 3 March 2020 Ms Andersen instructed Mr Law to implement a performance improvement process. I digress to observe that in her oral testimony Ms Andersen drew a distinction between the commencement of what she described as a "performance improvement process" and the implementation of a "performance improvement plan", or PIP. A PIP may, but need not, be implemented as a result of a performance improvement process. 3. Also on 3 March 2020, at 7.22pm Ms Andersen sent an email to Ms Truelove seeking to "document a series of minor incidents over the last week with Vikram Jaggi" which had "culminated in a low-level confrontation yesterday evening (2 March 20)". [8] 4. Mr Jaggi met with Ms Truelove, as arranged, on 5 March 2020. During the meeting, and in an email to Ms Truelove sent the following day, he detailed some of the instances of what he described as the inappropriate behaviour of Ms Andersen and, to a lesser extent, Mr Law ("March 2020 Complaint"). Mr Jaggi informed Ms Truelove that he did "not wish to lodge a formal bullying and harassment complaint as it [would] further deteriorate the relationship and therefore, would like these issues to be sorted out informally in the first instance". [9] 5. Ms Truelove met with Ms Andersen and Mr Law on 11 March 2020 to inform them of the March 2020 Complaint. 6. On 16 March 2020, Ms Andersen and Mr Law developed an updated action log to detail every task for which Mr Jaggi was responsible. They came to the view that Mr Jaggi was failing to meet all of his "deliverables". 7. At a meeting on 25 March 2020, at which Mr Jaggi had union representation, he was informed by Mr Law and Ms Truelove that it had been decided that he needed more formalised support, and that the action log would be replaced by a work plan. The work plan was provided to Mr Jaggi on 27 March 2020. It was proposed to commence on 30 March 2020. 8. On 2 April 2020 Ms Andersen spoke to Ms Truelove, raising her concerns that in her view Mr Jaggi was not accepting feedback and was failing to follow directions to complete tasks assigned to him. Ms Truelove advised Ms Andersen to place Mr Jaggi on a PIP. 9. On 7 April 2020 Mr Law informed Mr Jaggi that he was to be placed on a PIP, and invited him to attend a meeting in this regard on 9 April 2020. 10. Mr Jaggi was absent from work on sick leave from 8 to 15 April 2020 inclusive. 11. On 16 April 2020 Mr Jaggi informed Ms Truelove by email that he needed to "put up a workplace bullying and harassment complaint" against Ms Andersen and Mr Law. [10] 12. Mr Jaggi was absent from work on sick leave from 21 April until 3 May 2020 inclusive. Due to some uncertainty as to when Mr Jaggi would be returning to work, several PIP meetings were arranged and had to be re-scheduled. 13. On 30 April 2020 Mr Jaggi lodged a complaint under the Bullying and Harassment Policy, in which he alleged that Ms Andersen, Mr Law and Ms Truelove had engaged in bullying and harassment in breach of that policy ("April 2020 Complaint"). Ms Biswal was appointed to investigate the complaint, despite Mr Jaggi having requested that the WSLHD engage an independent investigator. Mr Jaggi was redeployed to a different section of the WSLHD for the duration of the investigation, commencing 6 May 2020. 14. On 13 August 2020 Ms Biswal completed a document titled "Fact Find Report", which set out the process that she had undertaken to investigate the April 2020 Complaint and her findings ("Biswal Report"). In short, the Biswal Report identified seven concerns arising from the April 2020 Complaint. Of these, five were not substantiated and the remaining two were substantiated in part. However, Ms Biswal concluded that the April 2020 Complaint "did not meet the test of either bullying or harassment" within the meaning of the Bullying and Harassment Policy, but could constitute a grievance and should be evaluated in line with policy PD2016_046 Resolving Workplace Grievances. [11] 15. On 14 August 2020 Mr Jaggi lodged a grievance against Ms Andersen for instructing that Family and Community Services ("FACS") Leave which he had taken be recharacterised as Carers Leave ("August 2020 Complaint"). Mr Jaggi expressed dissatisfaction that Ms Andersen had changed the leave type without requesting any additional information from him and also disputed Ms Andersen's authority to effect the change. Ms Biswal assessed the grievance and informed Mr Jaggi that Ms Andersen had acted appropriately. 16. On 26 August 2020 Mr Jaggi met with Barry Mitrevski, the Director Finance for the WSLHD, and Kim Daniel, the Director HR Business Partners for the WSLHD. Mr Jaggi had a support person from his union in the meeting, albeit by telephone. Mr Jaggi was provided with a letter from Mr Mitrevski dated 25 August 2020, advising him of the outcome of investigation into the April 2020 Complaint. He was informed that he would return to the Finance Directorate on 31 August 2020 and be placed on a PIP. 17. In an email to Mr Mitrevski sent on 27 August 2020, Mr Jaggi challenged the investigation process undertaken by Ms Biswal and her findings. He requested that the matter be further investigated by an external investigator. Mr Mitrevski responded on 1 September 2020, stating his view that the matter had been properly investigated and that the appointment of an external investigator was neither necessary nor appropriate. 18. Being dissatisfied with the outcome Ms Biswal's investigation, on 30 August 2020 Mr Jaggi commenced proceedings in the Fair Work Commission pursuant to s 789FC of the Fair Work Act 2009 (Cth) seeking an order under s 789FF of that Act against the WSLHD, Ms Andersen and Mr Law to prevent him being bullied ("FWC Application"). 19. On 31 August 2020 Mr Mitrevski and Ms Daniel met with Mr Jaggi, and informed him that his PIP would commence with immediate effect and run until 5 October 2020. 20. On or about 1 September 2020 Ms Andersen and Mr Law became aware of the FWC Application. Mr Law requested of Ms Andersen and Mr Mitrevski that he be relieved of the responsibility of supervising Mr Jaggi out of concern for his own well-being. Ms Andersen assumed Mr Jaggi's line management. 21. From 31 August 2020 to 2 September 2020, Ms Andersen provided Mr Jaggi with significant one-on-one support. After Mr Jaggi questioned the value of this support, it became less intensive. By the end of the week Mr Jaggi had achieved only one of the six tasks required by the PIP to be completed. 22. On 8 September 2020 a meeting was convened to review Mr Jaggi's progress on the PIP. The meeting was attended by Mr Jaggi, Ms Andersen, Ms Biswal and Mr Mitrevski. Mr Jaggi was informed that his performance in the first week of the PIP had not been satisfactory and that if there was not a significant improvement in his performance the PIP process may be shortened and he might be asked to "show cause" why his employment ought not to be terminated. 23. At the end of the meeting, Mr Jaggi said words to the effect: 1. "There is no point continuing this process as the organisation has an outcome in mind"; [12] or 2. "So what's the point of continuing[?]. Looks like your mind is already made up"; [13] or 3. "It is not worth me continuing this. I am going to go." [14] 1. Shortly after the meeting, Mr Jaggi left work to attend to his mother, who had called him complaining of health issues. Before leaving, he sent an email to Ms Andersen explaining his whereabouts. In an email in reply sent at 10.36am on 8 September 2020, Ms Andersen expressed concern for the welfare of Mr Jaggi's mother and asked Mr Jaggi to send through information required for a meeting to be conducted by others later that day. 2. Ms Andersen sent a further email to Mr Jaggi at 6.17pm on 8 September 2020. In that email Ms Andersen, amongst other things: 1. once again expressed concern for Mr Jaggi's mother; 2. provided a summary of the outcome of the meeting earlier that day; 3. offered feedback in relation to Mr Jaggi's performance; 4. attached an amended work plan; and 5. advised Mr Jaggi that a further review meeting would be conducted on 14 September 2020. 1. Ms Andersen sent another email to Mr Jaggi on 9 September 2020 regarding work-related matters. 2. Also on 9 September 2020, Ms Biswal sent an email to Mr Jaggi providing further feedback regarding the meeting of 8 September 2020 and the PIP process more generally. In that email, Ms Biswal stated that "management remains willing to provide support in this PIP process and I would strongly encourage you to participate in this for the purpose of improving your performance" and that "Barry [Mitrevski] continues to be willing to support this process in the hope that you will succeed". [15] 3. On 10 September 2020 Mr Jaggi applied for FACS Leave for his absences on 8 and 9 September 2020. That application was subsequently approved by Ms Andersen. 4. On or about 10 September 2020 Mr Jaggi brought a workers compensation claim. He remained off work. 5. As a consequence of the Health Secretary raising a jurisdictional objection to Mr Jaggi's application to the Fair Work Commission, on 11 September 2020 he commenced proceedings in this Commission pursuant to s 213 of the IR Act. ("First IRC Application"). (The matters arising from the First IRC Application were ultimately subsumed by the Victimisation Application. The proceedings to which First IRC Application gave rise were discontinued by consent on 21 April 2021.) 6. In early October 2020 Ms Biswal prepared a brief to Graeme Loy, the Chief Executive of the WSLHD, recommending that Mr Jaggi's employment be brought to an end on the basis that Mr Jaggi had repudiated his employment contract. [16] In the proceedings this document was referred to as the "Repudiation Brief", and for consistency I will adopt the same term. In preparing the Repudiation Brief, Ms Biswal sought and obtained the assistance of Mr Holmes and Dominika Nambiar, the Director Industrial Relations/Employee Relations for the WSLHD. 7. Ms Biswal submitted the Repudiation Brief to Mr Mitrevski for approval on 9 October 2020. Mr Mitrevski approved the Repudiation Brief on 13 October 2020 and forwarded it to Mr Loy. Mr Loy accepted the recommendation in the Repudiation Brief on 14 October 2020. 8. Also on 14 October 2020 Mr Loy signed a letter addressed to Mr Jaggi. The letter was titled "Repudiation of Employment Contract". It stated, amongst other things: [17] "I note that at the formal PIP meeting on 8 September 2020, you indicated that you felt there was no further point in your participation in the PIP and you immediately left the workplace. This followed advice provided to you that your progress in the PIP was not meeting the required standard and the offer of additional support to meet the required standard. I note your conduct from April 2020 when the PIP was first provided to you – up until 8 September 2020 – manifested an intention not to perform the duties assigned to you or participate in the PIP process at all. This followed an unfortunate course of conduct from the commencement of your employment whereby now the working relationship has become untenable to lawfully and reasonably manage of your performance [sic]. As a consequence, I have drawn the conclusion that you no longer intend to be bound by the essential terms of your employment contract. Therefore, I consider that your employment contract has been discharged at law by virtue of your conduct. For abundance of clarity, your employment contract is discharged as a matter of law. As your employment has concluded at law, no notice period or payment in lieu of notice is applicable. …" The Repudiation Brief 1. Mr Loy deposed that the Repudiation Brief formed the basis of his decision to "discharge [Mr Jaggi's] contract of employment". [18] It is necessary to examine the contents of the Repudiation Brief in some detail. 2. Under the heading "Key reasons", the Repudiation Brief stated: "As detailed below, Mr Jaggi has engaged in a course of conduct culminating in a meeting of 08 September 2020, where he has manifested an intention to no longer be bound by the essential term that he perform the inherent requirements of his role and abide by the requirement that he participates in a Performance Improvement Plan. This constitutes a repudiatory breach of contract. Separately, the District has rights to terminate the contract with notice in respect of non-performance to the required level and alleged gross misconduct… On any view, the relationship of trust and confidence between the NSW Health Service and Mr Jaggi has utterly broken down and there is no prospect for the relationship to recover. The emergence of a repudiatory breach gives rise to a right to discharge the contract of employment at law as an alternative to termination with notice. The District must elect between the different rights. In all the circumstances, repudiatory breach is the better construction and the stronger ground to conclude the relationship." 1. Mr Loy deposed that his decision, as contained in his letter of 14 October 2020, was "based entirely on the 'key reasons' outlined in the Repudiation Brief". [19] In oral evidence he confirmed, however, that his decision was informed by the entirety of the Repudiation Brief. This is something to which I will return. 2. Leaving aside the correctness of the legal opinions it contained, to which I will also return, in my view the Repudiation Brief presented Mr Loy with an incomplete and misleading narrative as to the events that gave rise to it. There are three broad observations to make in this regard. 3. First and most significantly, the Repudiation Brief contained a heading "Mr Jaggi's conduct is vexatious and malicious". The commentary underneath this heading referred only to the Kumar Complaint (which was described as having been "reviewed and not substantiated"), the April 2020 Complaint, the FWC Application and the First IRC Application. The Repudiation Brief otherwise referred to Mr Jaggi's "vexatious complaints and inappropriate conduct" and "incessant complaining" as having a detrimental impact on the health and welfare of other staff. 4. I note the evidence set out at [24] and [26] above. In addition, Ms Biswal deposed that Ms Kumar's behaviour "was inconsistent with the expectation of a senior manager in the Health Service" and that she "advised the Director Finance to…manage [Ms Kumar's] performance". [20] In light of this evidence, it is difficult to comprehend how it could properly have been asserted that the Kumar Complaint was "reviewed and not substantiated". There is certainly no justification to describe it as vexatious, much less malicious. 5. Similarly, the Biswal Report does not permit a description of the April 2020 Complaint as being "vexatious and malicious". Ms Biswal accepted that two of Mr Jaggi's concerns had been substantiated in part, and that while they did not rise to the level of bullying and harassment, they were properly to be dealt with as grievances. 6. The FWC Application was made in response to Mr Jaggi's dissatisfaction with the outcome in the Biswal Report. During her oral testimony I had the following exchange with Ms Biswal: [21] "Q. And it was in your view vexatious for Mr Jaggi to have brought the Fair Work Commission complaint because he had not accepted the outcome of the investigation and wanted to take it further and made exactly the same complaint to the Fair Work Commission? A. Yes Commissioner. … Q. I guess you wouldn't be suggesting would you that if an employee is unsatisfied with the way that an internal complaint is handled and they use whatever legislative means they have to further [pursue] that, that would not in itself be vexatious? A. No Commissioner. Q. It would be wrong to classify that particular claim as vexatious, now leaving aside we're talking here about the Fair Work Commission claim and his questions about jurisdiction. But [pursuing] a legislative remedy because an employee is unhappy with an outcome is not of itself vexatious? A. I agree with that. Q. And it's perhaps understandable, again we're talking in theory, I understand we're talking in theory that if an employee gets a one page letter saying your complaint has been rejected, has requested information as to why [and] is not provided with that information, they might feel compelled to search for an alternative remedy? A. I can see that viewpoint." 1. This exchange highlights the inappropriateness of describing the FWC Application as vexatious and malicious. The same observation can be made in respect of Mr Jaggi's First IRC Application, given that it was made as a consequence of the Health Secretary (understandably) challenging the jurisdiction of the Fair Work Commission to deal with the FWC Application. 2. The second concern I have with the Repudiation Brief relates to statements it contains that Mr Jaggi "has manifested an intention not to perform the duties assigned to him or participate in the PIP process at all"; that he had "sought to evade by various means the lawful and reasonable performance management"; and that throughout April 2020 "several attempts were made to implement a PIP but each time Mr Jaggi absented himself from the workplace, indicating his intent to avoid participating in a PIP". The Repudiation Brief fails to qualify these statement, and especially the last, by explaining to Mr Loy that on each occasion Mr Jaggi "absented himself" he was on approved sick leave. While a chronology at the back of the Repudiation Brief makes reference to Mr Jaggi having "called in sick", it does not dispel the impression created by the document that Mr Jaggi was improperly evading performance management. 3. In this regard it is relevant that Mr Law deposed that he had no concerns with the sick leave taken by Mr Jaggi in April 2020. Ms Truelove stated that she had not been involved in any situation where anyone had raised with Mr Jaggi concerns as to his taking of sick leave. 4. A third and similar concern arises from the description of Mr Jaggi's conduct following the meeting on 8 September 2020. The Repudiation Brief states that after the meeting Mr Jaggi "immediately left the workplace" and that he had "not returned to work since that meeting". The only reference to the reason for Mr Jaggi leaving work on 8 September 2020 is to be found in the chronology in the Repudiation Brief, which refers to Mr Jaggi having "later advised by email that his mother was unwell and needed care" (my emphasis). 5. Mr Jaggi's email to Ms Andersen was sent prior to him leaving the office. That aside, the Repudiation Brief makes no mention of Mr Jaggi having been approved for FACS Leave on 8 and 9 September 2020 and subsequently being off work due to an alleged work injury. 6. I had the following further exchange with Ms Biswal during her testimony: [22] "Q. Well I can say that we've heard evidence from Ms [Andersen] that she did approve the FACS leave for those two days. Was there a reason why you didn't mention that Mr Jaggi left the workplace to attend to his sick mother? A. But I did mention [it] Commissioner, if I could kindly take you to my chronology and I just need to find it. If you look against 8 September the first entry against 8 September the fine the last line Mr Jaggi left work immediately following the meeting and later advised by email that his mother was unwell and needed care. Q. I appreciate that it's in the chronology but don't you think that it paints a potentially misleading picture on the first page of the document to suggest that Mr Jaggi attended a meeting, indicated he felt that there was no further point of participation and then just left. Don't you think that creates a slightly misleading impression of Mr Jaggi's conduct on that day? A. I can see where you're coming from however there was a pattern of behaviour here. Q. Sorry we'll come to the pattern of behaviour but I'm saying that's not, what you have put in that paragraph is not the whole story is it? A. No it's not. Q. And unless Mr Mitrevski and Mr Loy were careful to review all of the chronology they would not know from reading the context that Mr Jaggi left work on 8 September to attend to his sick mother, that right? A. That's correct. Q. And if we come to the context that you talk about, on p 3 in the second paragraph you say, sorry it says 'throughout April 2020 several attempts were made to implement a PIP but each time Mr Jaggi absented himself from the workplace indicating his intent to avoid participating in a PIP'. Are those your words? A. They are. Q. Was there a time throughout April 2020 when Mr Jaggi absented himself from the workplace at the time of a PIP meeting that he was not, that he did not apply for and was paid sick leave? A. I cannot answer that question with certainty. Q. If there, if it were the case that the evidence showed that that every time that Mr Jaggi was absent when a PIP meeting had otherwise been called was subsequently authorised sick leave, is that also indicative of this document not representing the full story? A. I respectfully disagree with that, in my view the document does demonstrate a picture that I was trying to paint at that point for the chief executive. Q. I understand but what you are trying to paint the picture that I suggest that what you're trying to paint there is the picture of Mr Jaggi, to use my words, to gain in [sic – game] the system, but [sic – that] he was making himself scarce whenever there was a PIP meeting rolling around so as to avoid his, so as to avoid participating in the PIP? A. That's correct. Q. And you don't think that it was relevant in the context of the chief executive determining the seriousness of Mr Jaggi's conduct in this regard that he might have been made aware of the fact that at least on some of these occasions Mr Jaggi might have been on sick leave which was subsequently approved? A. I hear your point. … Q. In the next sentence 'Mr Jaggi has not returned to work since that meeting'. Mr Jaggi as I say was on personal leave or FACS leave on the 8th and 9th of September and thereafter embarked on workers compensation. You're aware of that? A. I am. Q. Firstly are those your words? A. They are. Q. Do you think that perhaps, withdraw that. Do you think that it would have been relevant information for the decision maker to know that Mr Jaggi was off on workers compensation and that explains his absence since the meeting on 8 September? A. Yes however we've been asked to keep those issues separate in a sense, yes. Q. My point is that it might, it might create the impression for someone who is not across the detail of [the] case that on 8 September Mr Jaggi had left the workplace in a fit of pique and hadn't come back. Do you accept that construction is available? A. I do however I also put to you that that was a fact he did not return to workplace. Q. Yes but it's not the whole story is it? A. Yes it's not the whole story. Q. And so it could create the impression as I say that Mr Jaggi left the workplace in a fit of pique on 8 September and had not returned? A. Yes I agree. Q. Was that your intention? A. My intention was not to withhold the facts however I guess I take [your] point perhaps I indivertibly [sic] omitted including certain other facts that should have been included in here." 1. This passage demonstrates that the picture that Ms Biswal sought to paint for Mr Loy was by no means the full one. The consequences of this are highlighted in the following exchange I had with Mr Loy: [23] "Q. At the bottom of page one, the second last paragraph it refers to Mr Jaggi immediately leaving the workplace. What did you understand that to mean? A. I understood that he was in a meeting with management around his performance improvement plan, that he indicated that there was no point in doing it and that he'd left the workplace and gone home. Q. Do you know why he left the workplace? A. Well, because my understanding from that is that because he did not support or intend to participate in the performance improvement plan. Q. That was the takeaway from that paragraph for you? A. Correct. Q. Does it make a difference if you were aware that Mr Jaggi had to leave the workplace to attend to his sick mother? A. Yes, that would make a difference. Q. And that that was both 8 and 9 September for which an application for Family and Community Service Leave was made. Would that colour your impression as to Mr Jaggi's leaving the workplace immediately? A. I would - if that information had have been in there then I would have asked. I would have enquired as to the - if I knew there was a different reason for ceasing the meeting other than the advice that was in there around there was no point participating in the PIP which is different looking after an unwell relative or mother, then I would have said that, you know, and I normally say it quite a lot at work is that family comes first, we have to make sure that Mr Jaggi's mother was okay and then resume the meeting around the PIP is what I would have done-- Q. But 14 October, the repudiation brief of 14 October was, to your mind, creating the impression that Mr Jaggi had left the meeting and the workplace to indicate that he wasn't going to play ball anymore? A. That's correct. Q. And that, to go to the next paragraph, also informed your reading of how Mr Jaggi had manifested an intention not to perform the duties assigned to him, correct? A. That's correct. Q. It would be a completely different complexion of course, wouldn't it, that Mr Jaggi might've left a meeting, even if he left the meeting before being invited to do so, but then left the workplace to attend to his sick mum? A. That would be - that would be a very different scenario and we would support Mr Jaggi through that and then when he came back to work we would resume the process by which we would've been undertaking. Q. Does it surprise you that's not what happened? What you just said, that you would support him and when he came back to the workplace you'd pick up where you left off? A. It surprises that he left - if that was the case he left because his mother was unwell that's a fact I did not know. Q. Thank you. If I go to page 3 of six the second paragraph, at the top, under the heading, 'Significant performance gaps' et cetera 'starting throughout April 2020'. You see that photograph [sic – paragraph]? A. I do, thank you, Commissioner. Q. Mr Jaggi took you to this, 'But each time Mr Jaggi absented himself from the workplace indicating his intent to avoid participating in a PIP' again what did you take - sorry, I'll go back a step. What did you understand that to mean? A. So, to me that is a reflection of a pattern of behaviour of Mr Jaggi not, not being willing to participate in a performance improvement process as it relates to his employment. Q. What if he was on sick leave on each of those occasions, which was approved and paid by the Local Health District? A. Then I wouldn't expect him to attend a performance meeting if he is on sick leave. Q. Would you be slightly more cautious about drawing the conclusion that being absent was itself indicative of an intent to avoid participating in a PIP? A. I would if - yes, I would-- Q. Thank you. A. --if he was off - sorry. Yes. Q. If the only evidence available to me was that Mr Jaggi was absent from the workplace throughout April 2020 when meetings were scheduled but on each occasion he was on sick leave, which had been approved and paid, you would agree that I'd be hesitant to say that that of itself was indicative of the motives that have been attributed to him in this document? A. What it would do for me is to ask the question of is the sick leave - is the sick leave related to the process and do we need to do an independent medical assessment to see if that is, if that is-- Q. Exactly right. Exactly right. The impression that you drew from this document is that Mr Jaggi was using various means to avoid participating in a PIP? A. Correct. Q. And it might have coloured your perception of the message that was being sent to you if they had said but each time he was on authorised sick leave? A. Correct. Q. So when you go back to the first paragraph on the previous page, on page 2 where the authors of the document say that Mr Jaggi has sought to evade by various means the lawful and reasonable performance management, that also then seems to cast in a more sinister light the fact that Mr Jaggi simply took what were his entitlements? A. Quite possibly, yes. I mean so that says to me that there have been a number of mechanisms that Mr Jaggi has undertaken to avoid the process, being absent for reasons of sickness is - I would not-- Q. That's right. It suggests to you that Mr Jaggi has been, to use the phrase, gaming the system. He's been doing what he can to avoid facing the music, to mix my metaphors? A. Yeah, correct. Q. But if the only evasion was him taking sick leave, which was not challenged in any formal sense, then that casts a completely different complexion on the message that the authors of this document were trying to send. Would you agree? A. I would agree. Q. Thank you. And again, in a similar vein, Mr Jaggi took you to page 3 and there is a heading, 'Mr Jaggi's conduct is vexatious and malicious'. Any fair reading of this document, Mr Loy, surely, is that the examples that are provided under that head are all being presented by the authors as being vexatious and malicious complaints by Mr Jaggi, correct? A. Correct. Q. So it's not just vexatious, and minds might differ as to what that word means, but malicious, that's a high level of allegation don't you think? A. Yeah, I suppose, yes. Q. I mean one can be vexatious, one can make a whole lot of - as you said there's a difference between something being unsubstantiated and being vexatious, and it might be vexatious because complaints are being made incessantly with no substance. But this is more, this is malicious. And that suggests a degree of bad faith, of malice, don't you agree? A. Yes, I do. And in my interpretation of this that's the linking to the impact on the safety of the staff as a result of that process. Q. Yes, but only if it's correctly the case that the complaints were vexatious and malicious, correct? A. Yeah, that would make sense. Q. So if someone mischaracterises the complaints as being vexatious and malicious, the fact that if a complaint is made genuinely it might have an impact on the safety and welfare of staff because people react differently to different triggers? A. Yeah. Q. But your concerns about the safety of staff are going to be far less if the complaints are legitimate if misguided as opposed to if they are vexatious and malicious. Do you agree? A. I would - if a - a complaint that's not substantiated may well be a perception that there is an issue that there's not and, yes, people are and it is an ongoing challenge for us as management that people who are the recipient of complaints against them, it does create a stressful environment for them. So that is a regular occurrence for people who have - particularly managers who get the complaint, yeah. Q. I understand, Mr Loy, that any workplace complaint and any workplace investigation into a complaint can have an impact on a person's health and wellbeing. We can't speak for everybody, some people are more robust than others when it comes to these things. But my point is that your concern about safety of employees and the risks to the organisation would be far higher if the allegation to you, or the suggestion to you, is that an employee like Mr Jaggi has been doing this vexatiously and maliciously rather than making a number of complaints which were just unsubstantiated? A. Yes, that would be a true statement." 1. Based on all of the matters referred to above, I consider that the Repudiation Brief was incomplete and, as a consequence, misleading. Its tone and content allowed for no outcome other than for Mr Loy to accept the recommendation that Mr Jaggi's employment be brought to an end. That is the "picture" which the authors of the document apparently sought to paint. Not only was the Repudiation Brief misleading; Mr Loy appears to have been misled. Unfair Dismissal Application Relevant legal principles 1. Section 84 of the IR Act allows for applications to be made to the Commission by employees who have been dismissed and who claim that their dismissal is "harsh, unreasonable or unjust". It is now well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61 ("Danwer"): "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted." 1. To be entitled to any remedy under the Act, the onus is on Mr Jaggi to prove that his dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. 2. However, where the dismissal of an employee is justified on the basis of an allegation of misconduct, it will be for the employer to establish that the alleged misconduct in fact occurred and warranted dismissal: Wang v Crestell Industries Pty Ltd (1997) 73 IR 454 at 464; Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 at 83-84. 3. The misconduct must be established on the balance of probabilities, but at a satisfactory level of proof: Briginshaw v Briginshaw (1938) 60 CLR 336. This requires the Health Secretary to make out her case "in a convincing way": NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at [29]. The basis for the termination 1. The Health Secretary's primary position is that in his conduct up to and including the meeting on 8 September 2020, Mr Jaggi repudiated the employment contract, by evincing an intention to no longer be bound by the employment contract or to no longer perform the contract according to its terms. The Health Secretary claims to have accepted that repudiation so as to bring the employment to an end. However, it was submitted that other grounds existed that would otherwise have warranted the termination of Mr Jaggi's employment. 2. In her outline of submissions filed on 4 August 2021 the Health Secretary submitted: "34. On 14 October 2020, the Respondent elected to discharge the contract of employment for repudiatory breach of contract (Loy Statement). 35. Had it not done so, alternative bases for dismissal of the Applicant arose from: a. Gross misconduct in refusing to participate in the Performance Improvement Plan as directed; b. The inability of the Applicant to perform the inherent duties of his role to the required standard over the course of 18 months, despite intensive support; c. Misconduct in the form of: i. Deceit and abandonment of the workplace without authorisation…; ii. Correspondence threatening colleagues with lawsuits…; iii. Failure to declare a pre-existing health condition relevant to his ability to safely complete the demands of his role as required… d. The breakdown of the relationship of trust and confidence at the Applicant's initiative; e. Serious misconduct identified post-employment, in the form of the repeated and unauthorised distribution of the Respondent's sensitive financial records and unauthorised creation and misappropriation of a Microsoft Outlook '.PST archive' containing a swathe of documents from the Applicant's NSW Health Microsoft Exchange account (Holmes statement)." 1. In the Health Secretary's Closing Submissions it was contended: "13. On 14 October 2020, the Respondent elected to discharge the contract of employment for repudiatory breach of contract. 14. Had it not done so, alternative bases for dismissal of the Applicant arose from serious misconduct identified post-employment, in the form of the repeated unauthorised distribution of the Respondent's sensitive financial records and unauthorised creation and misappropriation of a Microsoft Outlook '.PST archive' containing a swathe of documents from the Applicant's NSW Health Microsoft Exchange Account. 15. Otherwise, the Respondent submits that the relationship of trust and confidence has broken down at the Applicant's initiative and cannot be reinstated, because of: a. Gross misconduct by the Applicant in refusing to participate in the Performance Improvement Plan as directed; b. Misconduct in the form of: i. Correspondence threatening colleagues with lawsuits after they participated in a statutory process; ii. Failure to declare a pre-existing health condition relevant to his ability to safely complete the demands of his role as required; and iii. Deceit and abandonment of the workplace without authorisation. c. The inability of the Applicant to perform the inherent duties of his role to the required standard over the course of 18 months, despite intensive support. … 50. At the time of dismissal, the Applicant wrote to his colleagues personally threatening them with lawsuits and demanding cash payments in respect of informal statements they had made. This conduct was not minor or technical as it was committed against staff who were participating in a statutory process exploring the Respondent's liability to the Applicant under the Workers Compensation Scheme pursuant to the Workers Compensation Act 1987 (NSW). Moreover, the conduct was perceived by staff as threatening, vindictive and inappropriate – This breaches were not minor or technical perceived by his colleagues as threatening, vindictive and inappropriate – and was in direct breach of the Respondent's policies, Code of Conduct, and his contract of employment. 51. There is no suggestion that the Respondent was aware that the Applicant had repeatedly distributed the Respondent's sensitive financial records to a private email address and later misappropriated a Microsoft Outlook '.PST archive' from the NSW Health IT Network onto his personal computer. These breaches were not minor or technical given that the .PST archive contained every email and calendar record from the Applicant's NSW Health Microsoft Exchange account and were essential terms notified to the Applicant in his contract of employment, NSW Health Policy, and on a 'splash screen' of terms that the Applicant was required to accept as a condition of access to the NSW Health IT Network. 52. Additionally, the Applicant admitted to creating a copy of the .PST file on a USB thumb drive." (Reproduced verbatim, footnotes omitted) 1. There is a difference in language between par 35 of the Health Secretary's submissions of 4 August 2021 and par 15 of the Health Secretary's Closing Submissions. It is not immediately apparent whether the allegations in those paragraphs are separately pressed as warranting the termination of Mr Jaggi's employment. For an abundance of caution, I will proceed on the assumption that they are. 2. I observe that in the Health Secretary's Closing Submissions particular emphasis was placed on the allegations at pars 14, 51 and 52 of the extract at [90] above. Can the Health Secretary rely on repudiation of the employment contract? 1. Mr Jaggi was employed in the NSW Health Service, within the meaning of s 115 of the Health Services Act 1997. Were he to engage in misconduct his employment was liable to be terminated under s 69 of the Government Sector Employment Act 2013 ("GSE Act"), which relevantly provides as follows: 69 Misconduct—Public Service and other prescribed government sector employees (1) In this section— government sector agency means— (a) a Public Service agency, and … misconduct extends to the following— (a) a contravention of this Act or an instrument made under this Act, (b) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act, (c) taking any action against another employee of a government sector agency that is substantially in reprisal for a disclosure made by that employee of the alleged misconduct of the employee taking that action, (d) a conviction or finding of guilt for a serious offence. The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment. serious offence means an offence punishable by imprisonment for life or for 12 months or more (including an offence committed outside New South Wales that would be an offence so punishable if committed in New South Wales). (2) The person who exercises employer functions in relation to an employee of a government sector agency is responsible for dealing with any misconduct by that employee in accordance with this section. (3) The government sector employment rules may deal with the following— (a) misconduct by employees of government sector agencies, (b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness). (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions: (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), (c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee), (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee. … 1. The Ministry of Health is a "Public Service agency" within the meaning of s 69(1)(a): GSE Act, Sch 1, Pt 1. 2. Part 8 of the Government Sector Employment (General) Rules 2014 ("GSE Rules") is titled "Misconduct – procedural requirements". It contains a number of provisions setting out the process by which allegations of misconduct are to be dealt with, including the making of findings under s 69(4) of the GSE Act. It is not necessary that they be reproduced. 3. In the context of statutory employment, to the extent that the employment relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship: Director-General of Education v Suttling (1987) 162 CLR 427 at 437 (Brennan J). 4. Informed by this principle, the Commission has previously determined that for the purposes of provisions such as s 69 of the GSE Act, the question of whether an employee's misconduct warranted summary dismissal at common law "is a concept with which [the legislation] does not concern itself": Director of Public Employment, by his agent the Director-General of the Department of Juvenile Justice v Public Service Association (on behalf of Brown) (2008) 184 IR 134; [2008] NSWIRComm 221 ("Brown") at [23]. Concepts underpinning summary dismissal, such as conduct amounting to a repudiation of the contract, are not part of the statutory scheme governing public sector employment: Danwer at [29]. 5. I acknowledge that Brown and Danwer dealt with a different question to that which is currently before the Commission. The question in those cases was whether, to warrant termination of employment under s 69 (or its predecessor), the employee's misconduct must be such as to warrant summary dismissal at common law. The cases do however confirm the principle, enunciated in Suttling, that in the context of statutory employment the legislation governing the employment relationship does not give way to the common law. 6. By asserting a common law repudiation of the employment contract, the Health Secretary was and is effectively seeking to circumvent the requirements of s 69 of the GSE Act and Pt 8 of the GSE Rules. This would elevate the common law over the legislation governing the employment relationship. To my mind, this was not an avenue available to the Health Secretary. Repudiation of employment is not a ground on which the Health Secretary can rely in this case. 7. That said, as the question informs other grounds on which the Health Secretary relied, it is worth exploring the basis on which the Health Secretary asserted repudiation. As will be seen, I am not satisfied that repudiation can be made out (even were it open to the Health Secretary to rely on it). 8. In Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 the plurality observed: "44. …The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it." (Footnotes omitted) 1. The legal principles applying to the repudiation of an employment contract were explored by Ross J in Whittaker v Unisys Australia Pty Ltd (2010) 192 IR 311; [2010] VSC 9 at [27]-[45]. That analysis was, with respect, conveniently summarised by Hargrave J in Earney v Australian Property Investment Strategic Pty Ltd [2010] VSC 621 as follows: "77. The applicable legal principles governing the repudiation of an employment contract were recently analysed by Ross J in Whittaker v Unisys Australia Pty Ltd. I respectfully adopt that analysis, which may be summarised as follows: (1) The term repudiation is used in a number of senses. … (2) It is not necessary to prove a subjective intention to repudiate. The test is an objective one. (3) Whether there has been repudiation is a question of fact. (4) Repudiation is not to be inferred lightly. It is a serious matter. (5) Repudiation may be evidenced by a single act or by an accumulation of conduct in circumstances where no individual act on its own constitutes a repudiation. (6) Repudiation does not bring an end to a contract. It is necessary for the innocent party to elect to accept the repudiation. (7) Repudiatory conduct may be 'cured' by the party in breach, but only prior to the acceptance of the repudiation. Accordingly, once the innocent party has elected to terminate the contract for breach, it cannot thereafter be cured. (8) In the context of employment contracts, a significant diminution in remuneration, status or responsibility may constitute a repudiation. Whether or not this is so is a question of fact in each case. (9) There may be a significant diminution in status or responsibility, even where the employee retains the same remuneration and title. (10) However, there are circumstances where a considerable change in the nature of an employee's duties may not amount to a repudiation. Although an employer cannot usually force changes of status and responsibility upon an employee, the circumstances of a particular case may permit a degree of flexibility in approach, with each party being required to provide 'some reasonable give and take'. In such cases, repudiation may not be inferred in the absence of serious non-consensual intrusions upon the status or responsibilities of the employee." (Footnotes omitted) 1. In support of the contention that Mr Jaggi had repudiated his employment contract, Ms Biswal deposed: [24] "160. …However, in this case it was obvious that Mr Jaggi had evinced an intention not to be bound by his employment contract by failing to participate in a Performance Improvement Plan. 161. Mr Jaggi's refusal to continue in the PIP frustrated either the improvement of his performance, or an assessment of his ability to perform that would enable an outcome to the process. 162. In consultation with Ms Luci Caswell, Director of People and Culture and Ms Dominika Nambiar, Director IR/ER, it was agreed that as Mr Jaggi's conduct in the first week of the PIP and the PIP meeting on 08 September 2020 demonstrated he was not going to further participate in the PIP, this was something known as a 'repudiatory breach of contract'. His conduct was considered in the overall context of Mr Jaggi's attempts since 2019 to avoid performance management." 1. The evidence tends overwhelmingly to demonstrate that Mr Jaggi's performance was unsatisfactory. Ms Kumar identified problems within a short period of Mr Jaggi commencing employment with the WSLHD, and they were consistent with concerns raised subsequently by Mr Law and Ms Andersen. In his evidence, Mr Jaggi adduced a large amount of documentation to call into question the examples which had been offered by Ms Kumar and Mr Law as purportedly demonstrating their concerns. Mr Jaggi cross-examined each of Ms Kumar and Mr Law at length on these matters. 2. In this respect, Mr Jaggi's approach fell into the category of "not being able to see the forest for the trees". To the extent that he was able to obtain concessions on particular examples of alleged poor performance, they did not undermine the evidence of the witnesses who reaffirmed under cross-examination, robustly, consistently and convincingly, that Mr Jaggi's performance was simply not up to standard. I find that this was the case. 3. The evidence also demonstrates that throughout his employment Mr Jaggi was unable or unwilling to accept criticism of his performance or to admit to any shortcomings. Rather than working constructively and proactively with his managers to address any concerns, Mr Jaggi engaged in extensive email correspondence which either challenged the process, sought to lay blame for any deficiencies on others or made requests for clarification or further information which, in all the circumstances, were unnecessary or unreasonable. 4. Mr Jaggi maintained this approach on the commencement of the PIP on 31 August 2020. I am satisfied that Mr Jaggi did not properly engage in the PIP. The considerable amount of documentary evidence he produced demonstrates attempts to challenge the process that had been adopted by the WSLHD or to seek clarification as to what was expected of him. While these are ordinarily matters which an employee might properly raise, in light of all of the evidence I am left with the impression that Mr Jaggi was being disingenuous and obstructive. 5. That said, I do not accept Ms Biswal's assertion that Mr Jaggi had attempted "since 2019 to avoid performance management" (my emphasis). The evidence in totality does not properly allow for a finding to that effect. 6. In relation to the meeting on 8 September 2020, each of Ms Andersen and Ms Biswal deposed that the meeting had come to an end when Mr Jaggi left. Mr Mitrevski stated that Mr Jaggi left before the meeting was concluded, but I prefer the evidence of Ms Andersen and Ms Biswal. There is no suggestion that Mr Jaggi conducted himself other than courteously. 7. It is clear that management at the WSLHD were "at their wits' end" as to how to manage Mr Jaggi. Their frustration with him comes across in their email correspondence and, in particular, the Repudiation Brief. In many respects, their frustration is understandable given Mr Jaggi's conduct. 8. However, having regard to the fact that "repudiation is not be lightly inferred", I am not convinced that Mr Jaggi can properly be said to have repudiated his contract of employment. Mr Jaggi's failure to constructively engage in the PIP process in the week commencing 31 August 2020 may have been designed to delay or frustrate the PIP, and his words in the meeting of 8 September 2020 might have reflected cynicism if not fatalism about the process, but to my mind this conduct falls short of evincing an intention not to be bound by his employment contract or to perform the contract in accordance with its terms. 9. There is an additional consideration. Even were I to have been satisfied that Mr Jaggi had repudiated his employment contract, to my mind the Health Secretary was not able to purport to accept that repudiation on 14 October 2020. 10. It is well-established that in the event that a party repudiates a contract of employment, the innocent party may elect to accept the repudiation and treat the contract as having been terminated, or elect to affirm the contract: Visscher v Giudice (2009) 239 CLR 261. The repudiation may be accepted expressly or, more often, by implication from conduct: Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia and Grivell [1999] SASC 300 at [36]. 11. It is the Health Secretary's case that it was Mr Jaggi's conduct up to and including the meeting on 8 September 2020 which amounted to a repudiation of his employment contract. That repudiation was not accepted until 14 October 2020. The Health Secretary submitted that this delay was immaterial as no election needed to be made for as long as Mr Jaggi remained absent from work. The Health Secretary's position was put most eloquently by Ms Biswal (in what is properly to be regarded as a submission) as follows: [25] "169. As Mr Jaggi did not return to the workplace following 8 September 2020 and proceeded on workers compensation, no question as to whether we would accept his repudiatory conduct arose. That is, the time delay did not impact the ability to recognise the repudiation of contract." 1. I do not agree with this proposition. Continuation of the employment contract is not necessarily conditional on the employee's ongoing presence at work. Further, following the meeting on 8 September 2020: 1. Ms Andersen sent two emails to Mr Jaggi (on 8 and 9 September 2020) asking him to attend to work-related tasks; 2. Ms Andersen sent an additional email to Mr Jaggi on 8 September 2020 attaching a revised work plan and scheduling a further PIP review meeting for 14 September 2020; 3. on 9 September 2020 Ms Biswal sent an email to Mr Jaggi confirming that he had the support of management in the PIP process in the hope that he would succeed in improving his performance; and 4. at some stage on or after 10 September 2020 Mr Jaggi's application for FACS leave for 8 and 9 September 2020 was approved by Ms Andersen. 1. None of these actions is consistent with the Health Secretary accepting that the employment contract had been repudiated at the meeting on 8 September 2020. Rather, the circumstances fall into the category described by Gaudron J in Foran v Wight (1989) 168 CLR 385 at 458 as follows: "A party to a contract which has been repudiated may either terminate the obligations under the contract or affirm the contract. …A party is taken to have affirmed the contract if he or she does an act which is consistent only with its continued existence…" (References and footnotes omitted) 1. Even had I found that Mr Jaggi had repudiated his employment contract, I would have found that through the conduct of management of the WSLHD the Health Secretary had affirmed that contract. Other purported grounds of termination 1. It is necessary to consider the other grounds on which the Health Secretary contended that Mr Jaggi's employment could otherwise have been terminated. Gross misconduct in refusing to participate in the PIP as directed 1. In the alternative to her reliance on repudiation, the Health Secretary sought to argue that the allegedly repudiatory conduct in which Mr Jaggi engaged amounted to "gross misconduct…in refusing to participate in the Performance Improvement Plan as directed", warranting the termination of employment. 2. The question which arises is whether such conduct would amount to misconduct warranting termination of Mr Jaggi's employment within the terms of s 69 of the GSE Act. 3. In Denise McKay v Department of Family & Community Services [2018] NSWSC 44 Button J observed: "106. Secondly, it is true that the concept of misconduct is not defined in the GSE Act, and is in that sense open-ended. It is also true that the section extends the concept to a number of particular circumstances, without being exclusive in that extension. Nevertheless, I think that the nature of the extension is important: it suggests that Parliament regarded the concept of misconduct as not otherwise encompassing those circumstances without the extension. …" (Emphasis in original) 1. As to the meaning of "misconduct", I note the following observations by Smithers and Evatt JJ in North v Television Corporation Ltd (1976) 11 ALR 599 at 608-609: "It is of assistance to consider the expression 'misconduct' by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression 'misconduct' as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment." 1. For the reasons set out at [107]-[111] above, I am not persuaded that Mr Jaggi's conduct amounted to misconduct of the kind described in North as justifying his dismissal. I am also not satisfied that the Health Secretary has made out that Mr Jaggi refused to participate in the PIP. He may have been difficult and to an extent insubordinate, and his behaviour may ultimately have been counter-productive, but his conduct fell short of a refusal to participate. 2. It is relevant to observe that as at 9 September 2020 Ms Andersen and Ms Biswal had expressed their commitment to the continuation of the PIP process. Correspondence threatening colleagues with lawsuits 1. On or about 13 October 2020 Mr Jaggi served on Ms Biswal a letter purporting to be a concerns notice pursuant to s 14 of the Defamation Act 2005. The letter alleged that in email correspondence Ms Biswal had defamed Mr Jaggi. The letter invited an offer of the "modest amount of AUD 20,000" without prejudice to Mr Jaggi's "entitlement to receive compensation for the loss caused by the defamation". [26] A similar letter (inviting an offer of $10,000) was served on Deb Anstee, the WSLHD's Return to Work Coordinator, on 13 October 2020. 2. The defamation alleged by Mr Jaggi arises from an email chain relating to Mr Jaggi's workers compensation claim which was apparently shared with Mr Jaggi by his treating doctor. It includes emails between Ms Andersen, Ms Biswal, Mr Holmes and Ms Anstee on 10 and 11 September 2020. The observations and comments by the authors of the emails are, at the least, unguarded. 3. It is in the light of these circumstances that I have considered Ms Biswal's evidence that she found the letter "quite threatening, vindictive, inappropriate and a breach of NSW Health's Code of Conduct". It is not unreasonable that Mr Jaggi took umbrage at the tone and content of the emails. His conduct in sending the letters to Ms Biswal and Ms Anstee may have been inflammatory and they may have been confronting for the recipients to receive. The letters are certainly unlikely to have assisted in the maintenance of the employment relationship. However, the conduct does not rise to the level of misconduct warranting the termination of Mr Jaggi's employment. Failure to declare pre-existing health condition 1. The Health Secretary alleged that Mr Jaggi had committed misconduct by failing to declare "a pre-existing health condition relevant to his ability to safely complete the demands of his role as required". This submission was based on the evidence of Ms Biswal as follows: [27] "26. On 11 September 2019, Mr Jaggi lodged a workers compensation claim for 'aggravation of previous chronic recurrent lower back pain' with a date of injury of 23 August 2019. … 27. Mr Jaggi did not disclose the existence of a pre-existing health condition relevant to his role at the time of recruitment. I note the job demands checklist of his position description noted a 'constant' need to remain seated to perform his tasks. Mr Jaggi signed the position description and declared that he had no pre-existing health condition. 28. Had Mr Jaggi disclosed that the condition…a risk assessment would have been undertaken to assess his ability to safely complete the role, and appropriate accommodations would have been implemented to prevent the aggravation of that condition…" (Emphasis in original) 1. Mr Jaggi contended that the doctrine of condonation and waiver applied to this allegation, with the result that the Health Secretary was precluded from relying on it to justify the termination of his employment. 2. It has previously been suggested that common law concepts such as condonation or waiver of the right of summary dismissal for serious breach of the employment contracts are not relevant to dismissals within the context of s 69 of the GSE Act: Hansen v Secretary of the Department of Transport – as head of the Transport Service and exercising the employer function of staff of Roads and Maritime Services [2016] NSWIRComm 1011 at [80], relying on Danwer. I see no reason to depart from that approach. It is certainly arguable that s 69 does not on its terms allow for the possibility of misconduct being condoned, or management being able to waive its rights to dismiss an employee for alleged misconduct. 3. However, s 69(4) of the GSE Act allows for a range of disciplinary outcomes in the event of employee misconduct. To my mind, facts which might ground condonation or waiver at common law may be relevant to a determination as to the nature of the disciplinary action that might be taken against an employee. By extension, such facts may bear on the consideration of the Health Secretary's submissions as to the seriousness with which the alleged misconduct is to be viewed. 4. For these reasons, I do not accept Mr Jaggi's submissions based on condonation or waiver. I do, however, regard it as relevant when considering the Health Secretary's submissions as to the seriousness with which I should view Mr Jaggi's alleged misconduct, that she is relying on conduct of which the WSLHD apparently became aware in September 2019 to justify a dismissal on 14 October 2020. 5. In any event, I am not persuaded that the Health Secretary has discharged her onus to make out that any failure by Mr Jaggi to declare his pre-existing condition amounted to misconduct, much less misconduct warranting the termination of his employment. She has failed to establish that Mr Jaggi knew or ought to have known that his condition might have rendered him unable "to safely complete the demands of his role". 6. Further, the "job demand" to which Ms Biswal referred was one of 44 in a table which appears to have accompanied Mr Jaggi's letter of appointment. To the extent that Mr Jaggi's condition might have posed a problem to him "remaining in a seated position to perform tasks", the Health Secretary failed to convince me that Mr Jaggi's failure to disclose his condition was deliberate or wilful, as opposed to simply inadvertent. Deceit and abandonment of the workplace 1. The Health Secretary alleged that Mr Jaggi was guilty of misconduct through "deceit and abandonment of the workplace without authorisation". Ms Biswal stated: [28] "30. On 26 November 2019, Mr Jaggi left work early to attend a workers compensation case conference with his [nominated treating doctor] and Ms Anstee. However, it later emerged that the case conference had been cancelled…" 1. Ms Truelove deposed: [29] "113. Mr Jaggi has consistently displayed dishonest and deceitful behaviour on multiple occasions. 114. For example, specifically in relation to his workers compensation claim, Mr Jaggi incorrectly advised his managers of the amount of time he needed to be performing exercises at work, informed his doctor that his managers were preventing [him] from doing his exercises and left work early under the guise of having a case conference, despite telling his recover at work coordinator that work was too busy to release him and that that case conference would need to be rescheduled…" 1. Email correspondence between Ms Truelove and Mr Law on 27 November 2019 suggests that on 26 November 2019 Mr Jaggi absented himself from the workplace to attend a case conference related to his workers compensation claim, but that conference had not proceeded. Mr Law stated under cross-examination that Mr Jaggi had attended for work that day but had been absent for a period of several hours. In the email correspondence, Ms Truelove raised the possibility of treating the matter as misconduct, although there is no evidence that anything came of that. 2. I acknowledge that if Mr Jaggi absented himself from the workplace without authorisation it would amount to misconduct. Once again, the fact that the conduct was known to management at the time and nothing was done about it impacts on my consideration of the Health Secretary's submissions as to the seriousness with which the conduct should now be viewed. 3. I accept on the evidence that on 26 November 2019 Mr Jaggi was absent from the workplace for several hours without authorisation. This was misconduct, but not of such seriousness warranting termination of employment. 4. To the extent that it is alleged that Mr Jaggi made misrepresentations as to the time required to perform his exercises, or to the effect that management was preventing him from performing his exercises, the Health Secretary has failed to discharge her onus to make out that Mr Jaggi's conduct amounted to misconduct. 5. Generally in respect of the Health Secretary's submissions in connection with this ground, I observe that in light of the evidence a submission that Mr Jaggi was guilty of "deceit and abandonment of the workplace" is hyperbolic. Inability to perform the inherent requirements of his position 1. There are two impediments to the Health Secretary retrospectively relying on this ground to justify the termination of Mr Jaggi's employment. First, the Health Secretary has failed to comply with the requirements of s 68 of the GSE Act and the requirements of Pt 7 of the GSE Rules. It is not open to her to purport the terminate the employment (albeit retrospectively) without having done so. 2. Second, the Health Secretary failed to make out on the evidence that as at 14 October 2020 Mr Jaggi's performance warranted the termination of his employment. As already observed, each of Ms Andersen and Ms Biswal had confirmed the continuation of the PIP, with a further review meeting scheduled for 14 September 2020. Mr Jaggi was on approved FACS Leave or workers compensation after 8 September 2020, and so was unable to continue with the PIP. Breach of confidentiality 1. Mr Holmes deposed as follows: [30] "3. In reviewing the evidence filed by Mr Jaggi in these proceedings, I became concerned that Mr Jaggi had relied on emails from his NSW Health email account that had been printed in his evidence in a 'Microsoft Outlook Memo format' with the account listed as mkjaggi@hotmail.com. … 5. On this basis, I apprehended that Mr Jaggi must somehow have obtained a copy of his NSW Health email archive in a transferable .PST format and placed that on his personal computer's Microsoft Outlook software under the primary account 'mkjaggi@hotmail.com'. … 7. On review of Mr Jaggi's email account, I found a series of emails indicating that from 9 September 2020 Mr Jaggi had requested extracts of his NSW Health outlook account into a Microsoft Outlook .PST file. … … 11. … I apprehended that Mr Jaggi must [have] copied the .PST files from his work computer to his personal computer and added the .PST file as a supplementary data file in Microsoft Outlook under an account titled 'mkjaggi@hotmail.com'. There does not appear to be any other explanation for the request or the presentation of Mr Jaggi's evidence. 12. I noted it is common knowledge that an extract of a .PST file contains all the emails, attachments, notes, calendar entries and other records associated with a Microsoft Exchange Outlook email account. By obtaining the .PST file, Mr Jaggi obtained a swath [sic] of NSW Health corporate records that he had no entitlement to hold. 13. Additionally, on review, I located an overwhelming number of instances where Mr Jaggi had forwarded emails from his NSW Health email account to his personal email accounts. Many of these emails contain confidential financial reports, budgets and other sensitive corporate information that Mr Jaggi had no right to distribute. …" 1. It is well established that an employee's dismissal may be justified on grounds on which the employer did not act and of which the employer was unaware when the employee was dismissed: Concut Pty Ltd v Worrell (2000) 75 ALJR 312; [2000] HCA 64 at [29]; Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 373 (Starke J) and 377 (Dixon J). 2. The letter of appointment under which Mr Jaggi came to be employed with the WSLHD provided: [31] "Compliance with NSW Health Policies In accepting this position you agree to support the NSW Health CORE values of collaboration, openness, respect and empowerment. In accepting this position, you agree to be bound by and comply with NSW Health Policy Directives, and any relevant local workplace procedures, as are in place, or issue, or amended from time to time, including but not limited to the NSW Health Code of Conduct. … Confidentiality You will be bound by privacy law and ethical practice to maintain confidentiality. … Privacy Responsibilities The Privacy and Personal Information Protection Act 1998 (PPIPA) and the Health Records and Information Privacy Act 2002 (HRIPA) requires all staff/contractors and other health service providers who, in the course of their work, have access to personal information (PPIPA) or personal health information (HRIPA), to comply with the requirements of these Acts and the New South Wales Health Privacy Manual for Health Information (2015). It is the responsibility of all staff to ensure privacy of personal information by following LHD privacy and security procedures in relation to any personal information accessed during the course of their duties. Recordkeeping Responsibilities The State Records Act requires public officials to 'make and keep full and accurate record of their official activities'. This applies equally to the paper and electronic record-keeping environment. Record keeping is the responsibility of all staff members. Staff should ensure that records are created, captured into authorised recordkeeping systems, maintained, protected from unauthorised use, retained and disposed of in line with LHD policy on corporate records management." (Reproduced verbatim) 1. Attached to Mr Holmes' statement were extracts from NSW Health PD2015_049 Code of Conduct ("Code of Conduct") and NSW Health PD2014_012 NSW Health Communications – Use & Management of Misuse of NSW Health Communications Systems Policy Directive ("Confidentiality Policy"). The obligations imposed on employees by the Code of Conduct were said to include the following: "4.5 Maintain the security of confidential and/or sensitive official information […] 4.5.2 Not use or release official information or records without proper authority. 4.5.3 Maintain the security of confidential and/or sensitive information, including that stored on communication devices. 4.5.4 Not disclose, use or take advantage of information obtained in the course of official duties, including when they cease to work in NSW Health." 1. The Confidentiality Policy required staff to "ensure that they keep all information they may obtain or have access to, in the course of their work, private and confidential". 2. The Health Secretary submitted that Mr Jaggi's conduct in forwarding emails to his private email address was a material breach of his obligations as an employee, and of s 21 of the State Records Act 1998, warranting the termination of his employment. 3. Mr Jaggi submitted that the WSLHD was aware, or ought to be taken to have been aware, of the conduct alleged against him prior to 14 October 2020. He argued that the evidence disclosed that he had received advice from staff of the WSLHD to download the material from the .PST file to his personal account. He further contended that from the information he had presented in connection with his earlier complaints, management should have become aware that he had forwarded some work-related emails to his personal address, and yet had raised no objections. On this basis, Mr Jaggi contended that the Health Secretary had condoned his behaviour and/or waived her rights to rely on the alleged misconduct to terminate his employment. 4. For the reasons set out at [130] above, Mr Jaggi is unable to rely on condonation and waiver. Even were that not the case, I am not persuaded that the facts on which Mr Jaggi relied would be sufficient to amount to condonation or to demonstrate that the Health Secretary had waived her rights to terminate his employment. The evidence falls short of demonstrating that the Health Secretary had "full knowledge of an act amounting to misconduct justifying summary dismissal" but elected "to treat the contract as still subsisting": Clarke v Metropolitan Meat Industry Board [1967] AR (NSW) 16 at 21, quoted with approval in Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325; [2001] NSWIRComm 117 at [31]. 5. The question is whether Mr Jaggi's conduct would amount to misconduct warranting termination of his employment within the terms of s 69 of the GSE Act. 6. There was no real contest that Mr Jaggi had forwarded a large number of emails from his NSW Health account to his personal email account. He largely admitted to doing so for the purposes of ensuring that he had the evidence necessary to advance his claims against the Health Secretary, and it is reasonably apparent from the large volume of evidence he adduced in this matter that he has used those records for that purpose. I am satisfied that Mr Jaggi breached the terms of his employment, including those imposed by his letter of appointment, the Code of Conduct and the Confidentiality Policy. 7. Mr Jaggi argued that his conduct did not warrant the termination of his employment. In broad terms, his contentions came down to the proposition that he should not be held accountable for any breach as the Health Secretary had failed to take sufficient steps to ensure that he was aware of his obligations. He contended that the Health Secretary had failed to provide him with adequate training and instruction on the handling of confidential and sensitive information and had, moreover, not properly identified the material as being "private" or "confidential". 8. The Health Secretary led no evidence of training received by Mr Jaggi during the course of his employment with the WSLHD. He was cross-examined on this point but could not recall receiving training specifically directed towards the maintenance of confidentiality. 9. Even taking this into account, I find the arguments advanced by Mr Jaggi to be unconvincing. Mr Jaggi's obligations in relation to maintaining confidentiality of work-related material were set out in his letter of appointment, in the Code of Conduct and in the Confidentiality Policy. His suggestion that it was incumbent on the Health Secretary to mark every document that was sought to be protected from disclosure as "private and confidential" is unrealistic, and was in any event unnecessary in the context of the clearly articulated obligations on him. 10. I am satisfied that Mr Jaggi's conduct amounted to misconduct within the meaning of s 69(1) of the GSE Act. In assessing the seriousness of the misconduct I am mindful that: 1. Mr Jaggi did not seek to secure particular documents that he considered would be relevant to his claims against the Health Secretary. He copied the entirety of his Microsoft Outlook account. Mr Holmes' evidence that these records "contained confidential financial reports, budgets and other sensitive corporate information" was uncontroverted; 2. there is no evidence that Mr Jaggi has further disseminated the information or used it for purposes other than in pressing is claims against the Health Secretary, including in these proceedings; and 3. there is also no evidence of the Health Secretary making any demand of Mr Jaggi that he delete and no longer use the information. 1. On balance, I am persuaded that Mr Jaggi's misconduct in this regard warranted the termination of his employment. 2. I am aware that allowing the Health Secretary to rely on after-acquired knowledge to justify a termination that might otherwise be unjust, without regard to s 69 of the GSE Act or Pt 8 of the GSE Rules, might seem at odds with the discussion at [96]-[98] above. However, it would be ludicrous to suggest that the Health Secretary would be precluded from relying on evidence of misconduct of which she becomes aware after termination because legislative procedures which are no longer applicable (the employment relationship having already been terminated) have not been complied with. Procedural fairness issues 1. There was a singular failure by the Health Secretary to afford Mr Jaggi any procedural fairness in the process culminating in the termination of his employment. 2. As already stated, s 69 of the GSE Act and Pt 8 of the GSE Rules impose obligations on the Health Secretary as to the procedure for investigating and making findings in respect of allegations of misconduct, and the disciplinary options available in the event of substantiated misconduct. 3. Further, one of the workplace policies applying to Mr Jaggi's employment was PD2018_031 Managing Misconduct ("Managing Misconduct Policy"). [32] It describes its "purpose" as setting out "the requirements for managing potential and/or substantiated misconduct by staff of the NSW Health Service". The policy has a list of "mandatory requirements", which include: "• A person who is subject of a misconduct process must be given adequate opportunity to respond to any allegations, adverse findings, and proposed disciplinary action, prior to any final decision being made." 1. In wrongly characterising Mr Jaggi's conduct as amounting to a repudiation of his employment contract, the Health Secretary proceeded on the erroneous foundation that it was not necessary for her to meet the requirements of the GSE Act, the GSE Rules or the Managing Misconduct policy. 2. The Health Secretary's failure in this regard is compounded by the WSLHD's preparation of and reliance on the Repudiation Brief. Mr Loy deposed that he relied on the Repudiation Brief to make his decision as he did not have "low level details of all the complaints and the issues and the management processes". [33] For the reasons set out at [68]-[83] above, I consider that the Repudiation Brief provided Mr Loy with an incomplete and misleading understanding of the circumstances then prevailing. More's the point, presenting the Repudiation Brief to Mr Loy, and the decision being made to terminate Mr Jaggi's employment based on its contents, without giving Mr Jaggi a chance to respond to it was unfair. 3. Procedural fairness issues also arise in respect of attempts by the Health Secretary to rely on allegations of misconduct of which it was aware, but had not raised with Mr Jaggi, prior to 14 October 2020. This is emphasised in those instances where the misconduct predated the dismissal by 11 months or more. Was the dismissal harsh? 1. Mr Jaggi submitted: [34] "136. The Applicant submits that the dismissal is harsh in its consequences for his personal, professional, and economic situation. He is the only bread winner of his family and has a dependent mother. The injuries that the Applicant has suffered while being employed with the Respondent has had an impact on his abilities to secure work in physically intensive employment fields. The injuries that the Applicant has suffered while being employed with the Respondent has dampened his chances to secure employment outside of NSW Health due to the perceptive concerns regarding future workers compensation claims regardless of full recovery. The bullying and harassment that he experienced since he joined the Respondent in April 2019 has had a lot of impact on his mental health, self-esteem, and his personal and social life. And the way he was dismissed and harassed afterwards in the litigation, has only worsened the circumstances for him." 1. Mr Jaggi further submitted that the dismissal was harsh because the Health Secretary did not consider his psychological condition at the time his employment was terminated. There is certainly no evidence that management at the WSLHD gave any real consideration to the potential impact on Mr Jaggi of the termination of his employment. 2. Mr Jaggi has not, however, adduced sufficient evidence to substantiate the submissions reproduced at [166] above. His submissions were more at the high level of contending "that this summary dismissal had multifaceted impacts on his life". [35] In support of this contention he cited the following passage from the decision of Sams DP in Youssef and Western Sydney Area Health Service [2002] NSWIRComm 8: "119. … Summary dismissal for misconduct has other serious immediate and long term implications for an employee. These implications were discussed in Franklins v Webb, 72 IR 257 at 261: We consider that the significance of decisions by employers to dismiss employees in circumstances such as occurred here cannot be over-emphasised. Mr Webb is a man of advancing years with long service and an unblemished employment record. The consequences for him of the employer's decision to dismiss are considerable - not only pecuniary considerations arise but also issues such as loss of self-esteem and confidence, difficulty in obtaining future employment and loss of social standing; tremendous upset upon the individual concerned and his family, with serious consequences quite unanticipated at the time of dismissal, must also be taken into account. It is considerations such as those which seem to us to have motivated the Commission in Court Session to remind employers of the need to be fully satisfied after proper investigation that the employee has committed the conduct to support dismissal. I also refer to my comments in Hill v Department of Juvenile Justice (unreported, Matter IRC6474 of 1999, 27 July 2000): The serious unproven allegations made against the applicant have gravely impugned his reputation. Left to stand unchallenged, these allegations would seriously hamper his future employment prospects, damage his reputation and more than likely, deleteriously affect his well being and that of his family. It is the Commission's duty - indeed, its obligation - to correct the injustices the applicant has so plainly suffered. I unreservedly intend to do so." 1. I accept, with respect, his Honour's observations and recognise that all of the detriments that he identified may arise as a consequence of an employee being summarily dismissed. However, Mr Jaggi does not discharge the onus he bears in these proceedings by relying on such authority and effectively asking the Commission to assume harshness based on that authority. He needs to substantiate his submissions with evidence. 2. Mr Jaggi went on to submit: [36] "141. The Applicant's claims that his recovery from physical injuries was impacted by, and delayed, due to the psychological injuries in multi-faceted manner. The psychological injuries not only had the physiological impacts on his recovery but motivational as well. … 142. The Applicant therefore submits that the constant bullying and harassment had a significant indirect impact on the recovery of physical injuries and the resultant incapacity. It follows that the Respondent's argument that the Applicant did not suffer any detriment as a result of dismissal, because of his physical injuries and resultant incapacity, is not sound. 143. The Applicant claims that discerning the impact of victimisation on physical injuries in a complex medical situation like this would be an attempt of applying science to an abstract situation which will inevitably produce a notional and hypothetical outcome. The Applicant therefore submits that the Commission determine the Applicant's partial incapacity due to physical injuries a direct and compete result of the constant bullying and harassment he was subjected to for a significant period of time. Though complicated but the balancing act of Commission's discretion in such a determination is well justified by its primary objective to act as 'deterrent' for the Respondent for future." 1. These submissions not only misapprehend Mr Jaggi's onus in these proceedings, but seek to circumvent it. They are tantamount to a suggestion that the Commission not trouble itself with evidence but simply take at face value Mr Jaggi's submissions. They are misguided. 2. Mr Jaggi has failed to persuade me that the dismissal was harsh on the basis that he has asserted. 3. An element of harshness can, however, be seen in the manner in which the termination was effected. In the letter to Mr Jaggi of 14 October 2020 informing him that his employment was at an end, Mr Loy stated that "as your employment has concluded at law, no notice period or payment in lieu of notice is applicable". For the reasons already canvassed in this decision, this assertion contained both a false premise and a consequently misguided conclusion. 4. As at 14 October 2020 Mr Jaggi was entitled to one months' notice of termination, or payment in lieu, pursuant to cl 20(i) of the Health Employees' Conditions of Employment (State) Award, which applied to Mr Jaggi's employment by virtue of cl 5 of the Health Managers (State) Award. Conclusions 1. The Health Secretary did not have a basis to bring about the termination of Mr Jaggi's employment on 14 October 2020, based on the facts then known to her. As at 14 October 2020 the dismissal was unjust. 2. This finding must be qualified, however, in light of the knowledge subsequently acquired by the Health Secretary that Mr Jaggi had improperly stored work-related documents on his personal computer and used them for purposes other than in the performance of the duties of his position, and my finding at [158] above that this conduct amounted to misconduct warranting dismissal. Having regard to those matters, the dismissal should not now be regarded as unjust. 3. The approach adopted by the Health Secretary denied Mr Jaggi procedural fairness. To the contrary, the evidence discloses a level of antipathy towards him, an avid but misguided desire to take opportunistic advantage of what was perceived to be misconduct amounting to repudiation so as to bring the employment to an end, and a lack of regard for Mr Jaggi's interests or welfare in the implementation of that process. 4. I find that the dismissal was unreasonable. 5. I find that the termination of employment on 14 October 2020 without notice, or payment in lieu of notice, was harsh. I do not consider that the matters outlined at [176] above can operate to extinguish an award entitlement that arose on that day. That is, the after-acquired knowledge may justify the dismissal, but cannot extinguish an entitlement arising from the act of dismissal taken by the Health Secretary: Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20. 6. I would add this. In light of my findings at [262] and [268] below, the following observations of Sams DP in Swaran Lata Kumar and Macquarie Partnership Lawyers [2005] NSWIRComm 202, to which Mr Jaggi referred me, are apposite: "223 It would seem unarguable that any dismissal of an employee which was found to be the culmination of a pattern of victimisation, would be found to be unfair. This is most certainly the case here. Such a result merely demonstrates the overlapping features of concurrent proceedings brought under s 210 and s 84 of the Act." Victimisation Application Relevant legal principles 1. The Victimisation Application is brought pursuant to s 213 of the IR Act on the basis of alleged breaches by the Health Secretary of s 210 of the IR Act. Those sections relevantly provide: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person— … (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 … (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011, 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. … 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, (b) order the employer to promote or otherwise advance an employee in his or her employment, (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, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service). … 1. The Act does not define the term "victimise" as it appears in s 210. In Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064 ("Kininmont") the Chief Commissioner observed: "60. In Public Service Association of New South Wales v Teterycz [1998] NSWIRComm 415, the Full Bench considered the meaning of 'victimisation': ...the word 'victimise' in s 210 should be construed on a basis which corresponds with the meanings of the word 'victim' where last appearing in the definition of that word, namely, 'one who suffers some injury, hardship or loss, is badly treated or taken advantage of or the like'. The word 'victimise' is defined, inter alia, as 'to make a victim of; to cause to suffer discomfort, inconvenience, etc'; and where used in s 210 should therefore be interpreted as 'cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment'. 61. In Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance [2017] NSWIRComm 1036 ('Bruce') Commissioner Newall considered, at [16] to [21], the construction and operation of the rebuttal presumption pursuant to s 210(2). Commissioner Newall stated (at [16]): As the Commission pointed out in Graham Davis v Amalgamated Television Services Pty Limited [1998] NSWIRComm 289, 'victimisation' itself is not defined in terms in the Act. In my view its meaning is to be inferred from the provisions of subs. 210(2), which refers to an employee 'suffering any detriment'. The statutory scheme therefore operates by setting out in subs.210(1) a series of bases on which an employer is prohibited from acting toward an employee, and then by providing that where a 'detriment' is suffered by an employee by reason of 'detrimental action' by the employer, there is a rebuttable presumption that the detriment was for one of the prohibited reasons set out in s.210, if the necessary underlying factual situation contemplated in any of the sub-sections of s.210 can be established. 1. Mr Jaggi placed some reliance on the rebuttable presumption created by s 210(2) of the IR Act. His submissions seemed to suggest that in order for the presumption to arise, and for the onus then to fall on the Health Secretary to rebut that presumption, it was sufficient for him to establish, firstly, that he had claimed a benefit or taken action of the kind protected by s 210(1) and, secondly, that something adverse later happened to him. In Mr Jaggi's Closing Submissions he contended (at par 196) that it was "needless to identify the causal link separately for every detriment that is being listed in the victimisation proceedings" as most of those detriments "are simply a continuation of the same series of 'detrimental actions' that [he] suffered after he raised complaint against Ms Andersen on 2 March 2020". 2. In Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 ("Twentieth Superpace Nominees") the Full Bench observed: "43. Turning to the matter of the onus, we consider that the terms of s 210(2) are clear: once an employee or prospective employee has demonstrated detriment as a result of an action by an employer or industrial organisation and the alleged cause of that detriment falls within the classes of victimisation in s 10(1), then it is presumed that employee or prospective employee was victimised. The employee will be required to prove the elements of the alleged reason for victimisation being the elements of one or more of the paragraphs in s 10(1) (for example, an applicant under s 210(1)(j) will need to prove the existence of a complaint about a workplace matter concerning safety for the purposes of that sub-section). In the face of the presumption in s 210(2), the onus is then on the employer or industrial organisation to show that the 'alleged matter' was not 'a substantial and operative cause of the detrimental action'." 1. In Kininmont the Chief Commissioner observed: "78. The nature of proceedings under s 213 of the IR Act, and the obligation on the respondent to adduce evidence of the central issue to rebut the reverse onus mean there is a need for an allegation to identify precisely and distinctly the alleged reason, or the alleged intent, for the contravening conduct so that the respondent can lead evidence in the proceedings to rebut the presumption. An applicant wishing to take advantage of the presumption, in addition to making the allegation in a form that meets the requirements of s 210, must provide sufficient information about the action, and the related reason and/or intent for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of s 210. 79. Before an employer can disprove an alleged contravention it must be clearly stated. It is impermissible in this statutory scheme to require the respondent to distil or interpret, or go looking for, the allegations to which it must respond, and about which it must lead evidence in order to displace the presumption. …" 1. Consistent with this authority, it is for Mr Jaggi to identify the causal connection between any alleged detrimental action and a proscribed reason before the presumption in s 210(2) arises. Mr Jaggi's submission to the contrary cannot be accepted. 2. It is convenient to address at this point a submission advanced by the Health Secretary as to the operation of s 210(1)(j) of the IR Act, one of the provisions which Mr Jaggi alleged was breached by the Health Secretary. Specifically, in her written submissions filed on 4 August 2021, the Health Secretary contended that while the March 2020 Complaint was a "complaint" about a "workplace matter", it did not attract s 210(1)(j). The contention was not put in the Health Secretary's Closing Submissions. However, in her Closing Submissions (at pars 2 and 184) the Health Secretary stated that she continued to rely on her earlier submissions. As a consequence, I consider it necessary to address the matter. 3. The Health Secretary submitted that a complaint with reference to something which is "not safe or a risk to health" must relate to matters under Pt 5 of the Work Health and Safety Act 2011 ("WHS Act"). She referred to the history of s 210(1)(j), including its introduction into the IR Act by the Occupational Health and Safety Act 2000 ("OHS Act"). She drew my attention to s 23 of the OHS Act, which was titled "Unlawful dismissal or other victimisation of employee", and to the note to that provision which referred to ss 210(1)(j) and 213 of the IR Act as providing remedies for a breach of the section. 4. The Health Secretary submitted: [37] "156. Part 5 of the WHS Act is entitled 'Consultation, representation and participation' and contains a series of provisions relating to the same. The provisions facilitate and relate to the collective representation of workers via workgroups and the establishment and role of health and safety representatives, health and safety committees, and issue resolution, including escalation via provisional improvement notices and inspectors. There is also provision for workers to cease unsafe work. 157. Similarly, paragraph (j) is contained in Chapter 5 of the IR Act which is titled 'Industrial Organisations', under Part 1 which is entitled 'Principles of Association'. The other grounds set out in s 210(1)(i)-(ic) inclusive do not relate to industrial matters but rather to the making of reports of breaches of other laws. 158. It is clear that the complaint with referencing 'safe' and a 'risk to health' relied upon must be matters under Part 5 of the WHS Act." 1. The conclusion reached by the Health Secretary is by no means clear to me. The effect of the submissions appears to be that s 210(1)(j) is confined in its operations to employees who are exercising a collective or representative role under the WHS Act. It would follow that an individual such as Mr Jaggi who was not acting in such a capacity but was simply raising health and safety concerns on his own behalf would not be protected by the provision. 2. The Health Secretary called in aid of her submissions the observations of the Full Bench in Twentieth Superpace Nominees as follows: "32 For the protection under section 210(1)(j) to be enlivened, it is necessary for the applicant to also show that the complaint was about, inter alia, a workplace matter that the person considers is not safe or a risk to health. In its written submissions, the appellant accepted that the Commission found that Mr Purdy was in his employment with Mills Transport actively involved in occupational health and safety matters, as opposed to having a concern about the mere imposition of fines, although the appellant contended that the actions related to this did not amount to making a complaint. 33 The section requires first, that the complaint relates to a 'workplace matter' and secondly, one that the person 'considers is not safe or [is] a risk to health'. As already mentioned, the section should be read broadly to give effect to the legislative intention of the protection against victimisation provisions as seen in the Second Reading Speech. As such, 'workplace matter' should be read to include any matter arising in connection with a workplace. In the case of Mr Purdy, the overloading of sugar bins was clearly a 'workplace matter' as the filling and delivery of those bins was the responsibility of Mr Purdy as an employee. 34 As to the second requirement, the references to 'safe' and a 'risk to health' should also be construed broadly. In this regard, we consider that these terms should be read in the context of the Occupational Health and Safety Act 2000 and specifically of s8 of that Act deals with the safety of employees (s8(1)) and non-employees (s8(2)). While Mr Purdy's complaints did not allege that the overloading of the sugar bins posed a safety risk to employees, he was concerned about the consequences for other road users. We are satisfied that this constitutes a complaint 'about a workplace matter that the person considers is not safe or a risk to health', in this case the safety of other road users. 35 Finally, we observe that from a policy viewpoint, every reasonable avenue should be available to an employee to raise occupational health and safety concerns without fear of victimisation or retribution and, accordingly, it is appropriate that s210(1)(j) should be construed broadly." 1. These observations argue against, rather than support, the Health Secretary's proposed approach to the construction of s 210(1)(j). The Health Secretary failed to take into account the observations of the Full Bench that "the section should be read broadly to give effect to the legislative intention of the protection against victimisation provisions" (at [33]), that "the references to 'safe' and a 'risk to health' should also be construed broadly (at [34]), and that "every reasonable avenue should be available to an employee to raise occupational health and safety concerns without fear of victimisation or retribution and, accordingly, it is appropriate that s 210(1)(j) should be construed broadly" (at [35]). 2. Clearly, the Full Bench had regard to the OHS Act to assist in determining the meaning to be given to "safe" and a "risk to health". In context, though, there is nothing in the Full Bench's reasoning to reflect a conclusion that s 210(1)(j) was confined to matters arising under the OHS Act. Similarly, the fact that the OHS Act may have made specific reference to ss 210(1)(j) and 213 of the IR Act does not support a conclusion that the provisions were intended to be confined to matters arising under the OHS Act, or its successor. Indeed, such a construction would appear to be at odds with the approach that the Full Bench articulated. 3. Moreover, the construction proposed by the Health Secretary is at odds with the plain and grammatical terms of s 210(1)(j). The use of the disjunctive "or" makes it clear that a "complaint about a workplace matter that the person considers is not safe or a risk to health" stands separately to victimisation against a person for "exercising functions" under Pt 5 of the WHS Act. The Health Secretary's position would require the introduction of a comma after the words "exercises functions" in the provision, and I am not persuaded that the provision should, let alone must, be read that way. 4. In Vaulin v City of Parramatta Council [2020] NSWIRComm 1058 Webster C observed, in relation to s 210(1)(j): "114. Accordingly, for the Applicant to establish his claim under s 210(1), to the point of requiring the Respondent to call evidence to demonstrate the prohibited reason was not a substantial and operative cause of the action, the Applicant is required to prove that: (1) he has made a complaint; and (2) the complaint was about: (a) a workplace matter, and (b) a matter the Applicant considers is: (i) not safe, or (ii) a risk to health; and (3) he has suffered a detriment as a result of an action by the Respondent; and (4) allege that the detriment suffered is because of the complaint." 1. The Health Secretary drew my attention to this passage, only to immediately contend that the Commissioner was in error. I disagree. I reject the Health Secretary's proposed construction of s 210(1)(j). Detrimental actions claimed by Mr Jaggi 1. The Victimisation Application alleged that the WSLHD had taken six identified "detrimental actions" against Mr Jaggi in retribution for him having engaged in 11 "protected actions", causing him to have suffered 10 identified detriments. An annexure to the Victimisation Application comprising 44 pages set out what was said by Mr Jaggi to be the factual basis for his claims. 2. There was some movement in Mr Jaggi's claim between the filing of the Victimisation Application and his Closing Submissions. In the latter, the following "detrimental actions" are identified or alleged: 1. being placed on the PIP ("Ground 1"); 2. the continued attempts by the WSLHD to organise PIP implementation meetings on 23, 24 and 27 April 2020 while Mr Jaggi was on approved sick leave ("Ground 2"); 3. the unfair and biased investigation into the April 2020 Complaint ("Ground 3") 4. the reduction in the period of the PIP from three months to one month ("Ground 4"); 5. the change in his reporting line, the premature termination of the PIP after one week and the threat to issue him with a "show cause notice" ("Ground 5"); 6. having his employment terminated ("Ground 6"); 7. the denial of procedural fairness and natural justice in the process culminating in his dismissal ("Ground 7"); 8. non-compliance with cl 20 of the Health Employees' Conditions of Employment (State) Award ("Ground 8"); and 9. non-compliance by the Health Secretary with NSW Health policy directive PD2013_006 Injury Management and Return to Work ("Ground 9"). 1. The Health Secretary submitted that Mr Jaggi's Closing Submissions put forward new claims or reframed claims previously put before the Commission. I would be loath to allow Mr Jaggi to rely on claims that had not been raised prior to the hearing or to hold the Health Secretary to the reverse onus in respect of any new alleged detriments or alleged breaches of s 210(1) of the IR Act: Kininmont at [81]. However, while I agree to an extent with the Health Secretary's submissions that Mr Jaggi's Closing Submissions are confusing and vague, I am satisfied that on a proper construction they do not contain new claims but rather restate or reframe Mr Jaggi's previous submissions in the proceedings. 2. I turn now to address the grounds on which Mr Jaggi alleged that the Health Secretary breached s 210(1) of the IR Act. Ground 1 1. Mr Jaggi contended that the Health Secretary "did not have any valid reason to place him on [a] PIP and it was initiated in reprisal to his complaints against Ms Andersen and Mr Law on 2 March 2020" [38] , in breach of s 210(1)(j) of the IR Act. He claimed that as a result of this detrimental action he had suffered psychological stress, reputational loss, loss of confidence and self-esteem and the termination of his employment. 2. In the Health Secretary's Closing Submissions it was submitted: "189. The evidence shows: a. Ms Andersen's request for a formal performance improvement process was made on 3 March 2020, 2 days before the Applicant's complaint. Ms Andersen's request arose out of significant performance failings she had observed in the period 26 February 2020 to 2 March 2020. … b. The Applicant at no stage stated to Ms Truelove either in person or via his subsequent email that he was making a complaint of bullying and harassment or that he considered the environment not safe or a risk to health. The Applicant raised a concern with Ms Truelove about a lack of consultation in the workplace and that he felt talked down to by Ms Andersen and by Mr Law. c. Ms Truelove advised Ms Andersen of the Applicant's concerns on 11 March 2020. Ms Andersen agreed to facilitate a meeting with the Applicant and Mr Law to consult and discuss their mutual working relationships. The Applicant was advised of this on 12 March 2020. d. The work plan was amended at Ms Truelove's suggestion to better detail the expectations of the Applicant's employment. It didn't change his role. New tasks were not introduced, instead they broke down the sub-tasks of the tasks the Applicant was already required to complete in order to make the expectations explicitly clear. e. The existence of significant performance concerns was explicit from the commencement of the March 2020 work plan. f. A decision was made on 2 April 2020, under the HR advice of Ms Truelove, to move to a formal PIP from 6 April 2020 following a series of concerns that indicated the work plan was the [sic] not the appropriate tool to manage the Applicant's work plan including: i. The Applicant not completing month-end tasks as directed; ii. Journal deadlines not being met as per the work plan; iii. Failure to follow proper accounting practices; iv. Uncooperative and argumentative, arguing with every reasonable instruction, creating pressure on other team members; v. Lack of compliance with Ministry of Health rules for intra-Health transactions; vi. Continued inability to prioritise his own workload and lack of time management skills. g. Prior to 5 March 2020, the Applicant was repeatedly advised of significant performance concerns and had been the subject of coaching, action plans and work plans prior to the implementation of the work plan. This included: i. On 19 August 2019, when Ms Kumar provided the Applicant with a draft work plan following significant performance concerns that had emerged in mid-June 2019; ii. On 17 January 2020, when Mr Law met with the Applicant and provided him with an action log following significant performance concerns that had emerged from September 2019…; iii. On 26 February 2020, when Ms Andersen met with the Applicant to inquire into why the ICT forecasts due in January 2020 had not been completed…; iv. On 2 March 2020, when Ms Andersen and Mr Law met with the Applicant to review his work regarding the ICT forecast… h. The Applicant was provided with a work plan on 18 August 2019 and 17 January 2020… i. The Applicant was explicitly advised of the concerns leading to the PIP at the meeting on 6 April 2020 and on 7 April 2020, the Applicant provide with formal correspondence to the same effect. The concerns were also made explicit to the Applicant in the PIP document annexed to that correspondence. j. Ms Andersen, Ms Biswal, Mr Law, Mr Mitrevski and Ms Truelove have all denied that the implementation of the work plan or PIP was retaliatory to the Applicant raising a complaint against Ms Andersen. k. The evidence otherwise discloses no causal connection between the alleged detrimental action and the matters raised by the Applicant above." (Footnotes omitted) 1. Mr Jaggi submitted that the Commission ought to reject the Health Secretary's evidence to the effect that there were significant concerns with his performance prior to March 2020. He further submitted that the Commission should draw an inference that after the March 2020 Complaint Ms Andersen, Mr Law and HR staff of the WSLHD "deliberately created an extremely hostile working environment for [him] in order to set him up to fail". [39] 2. I consider that the extract from the Health Secretary's Closing Submissions at [202] above is an accurate summary of the Health Secretary's evidence in connection with this ground. Moreover, and despite Mr Jaggi urging me to do otherwise, I find that the evidence ought to be accepted. The evidence does not support the drawing of the inference sought by Mr Jaggi. 3. As the Health Secretary submitted, Ms Andersen, Ms Biswal, Mr Law, Mr Mitrevski and Ms Truelove all denied that the implementation of the work plan or PIP was in retaliation for Mr Jaggi raising a complaint against Ms Andersen. In the context of a history of performance concerns having been raised about Mr Jaggi's performance, both with Mr Jaggi and as between members of the management team, that evidence is entirely credible. I repeat the observations made at [104]-[105] above. 4. I find that the Health Secretary has rebutted the presumption arising under s 210(2) in respect of Ground 1. 5. I do not accept Mr Jaggi's submission that there was no valid reason to place him on the PIP. The evidence is overwhelmingly to the contrary. 6. It is relevant to observe that the decision to place Mr Jaggi on a PIP was not done peremptorily or with unseemly haste. Rather, the WSLHD had generally adopted a patient and cautious approach in its management of Mr Jaggi. In June 2019 Ms Kumar had made enquiries as to whether Mr Jaggi's employment could be terminated, or in the alternative be placed on a PIP. She was encouraged by Ms Andersen and Ms Ladomatos to give Mr Jaggi a further opportunity to demonstrate his abilities, and advised to place Mr Jaggi on a work plan instead. 7. Similarly, when Mr Law and Ms Andersen had formed their own concerns as to Mr Jaggi's capabilities, Ms Truelove and Ms Biswal resisted their initial attempts to place Mr Jaggi on a PIP, instead preferring once again that Mr Jaggi have the expectations of his role explicitly made clear and be given an opportunity to demonstrate that he was able to perform that role. It was only when Mr Jaggi failed to accept any criticism of his performance, and was more concerned with challenging the people and process involved rather than constructively responding to feedback, that the PIP was implemented. 8. Mr Jaggi has failed to establish that either the March 2020 Complaint or the April 2020 Complaint was a substantial and operative cause for him being placed on a PIP. I find that Ground 1 is not made out. Ground 2 1. Mr Jaggi's Closing Submissions contained the following contentions: "178. Evidence shows that: i. Ms Truelove continued to organise PIP implementation meetings on 23, 24 and 27 April 2020 while the Applicant was on approved sick leave. … ii. On 27 April 2020, around 8:15am, the Applicant informed Mr Law that he is not well and will not be attending work until 4 May 2020 and provided him the medical certificate. … iii. On 27 April 2020, at 4:26pm, Ms Truelove sent an email to the Applicant and said: We have attempted to meet with you on five separate occasions over the past three weeks to discuss the implementation of the attached documents. On each of these occasions you have not attended the workplace or made yourself available to participate in these discussions. As such we are deeming the attached PIP effective as of Monday 4th May 2020, noting you are currently on leave until that date. … iv. Ms Biswal gave evidence that the PIP was to implement on 4 May 2020 regardless of Applicant's absence on sick leave. … 179. The Applicant submits the Commission to draw an inference that (a) his previous complaints against Ms Andersen and Mr Law and (b) claiming sick leave entitlements under the Award/Workers Compensation Act, are the substantial and operative reasons for the Respondent to treat him in an extremely harsh manner by implementing the PIP while he was on sick leave suffering from anxiety and depression…and therefore is a breach of IR Act within the meaning of s 210(1)(e), (g) and (j) of the IR Act. … 151. Detriment: It was harsh and unreasonable for the Respondent to threaten the Applicant with a deemed implementation of the PIP when he was on a certified sick leave. It was extremely stressful for the Applicant especially when he was dealing with anxiety and depression. The Applicant submits these circumstances to be taken into consideration while determining the quantum of compensation in the nature of general damages." (Reproduced verbatim) 1. I am not persuaded that Mr Jaggi has established that the alleged detriment – which he described as being the implementation of the PIP while he was on sick leave –amounts to a contravention of s 210(1) of the IR Act. 2. As observed at [46] above, there was uncertainty as to when Mr Jaggi would be returning to work. PIP implementation meetings were organised and subsequently rescheduled as a consequence of Mr Jaggi being unable to attend as a result of sick leave. The submission that the meetings were organised "while [Mr Jaggi] was on approved sick leave" is accurate, but not the whole story. Further, the observations made in the email from Ms Truelove to Mr Jaggi of 27 April 2020 referred to in the extract reproduced at [211] above anticipates the implementation of the PIP on the date on which Mr Jaggi was expected to return to work. There was nothing "extremely harsh" in the manner in which the WSLHD treated him. 3. I find that Ground 2 is not made out. Ground 3 1. This ground relates to the appointment of Ms Biswal to investigate the April 2020 Complaint, the conduct by Ms Biswal of that investigation and the veracity of the findings in the Biswal Report. Without detracting from the entirety of Mr Jaggi's submissions, his complaint can be distilled to this: management of the WSLHD were colluding to terminate his employment and so Ms Biswal, who was biased against Mr Jaggi and also had self-interest to protect, was appointed so as to achieve a predetermined outcome of dismissing his complaint. 2. The salient assertions made by Mr Jaggi in respect of this ground were: 1. he requested that the April 2020 Complaint be investigated by an external independent investigator. One of the reasons he put forward for making this request was his belief that the HR staff of the WSLHD were not independent; 2. without recourse to Mr Jaggi, and contrary to his request, Mr Mitrevski appointed Ms Biswal to conduct the investigation; 3. Ms Biswal was biased against Mr Jaggi. Further, one of the complaints raised by Mr Jaggi concerned the implementation of the PIP. As Ms Biswal had been involved in the decision to place Mr Jaggi on the PIP, she was in a position of conflict; 4. Ms Biswal consequently went into the investigation having pre-determined the outcome; 5. Ms Biswal's investigation was peremptory and inadequate. She did not interview Mr Jaggi or the witnesses he suggested she speak to; 6. allegations made against Mr Jaggi during the course of the investigation were accepted as true, without him having an opportunity to respond; 7. the findings in the Biswal Report are consequently unsound; and 8. the subsequent closure of the April 2020 Complaint was unfair. 1. As a result of these alleged detrimental actions, Mr Jaggi claims to have suffered reputational loss, psychological stress and the termination of his employment. 2. Mr Mitrevski deposed that he did not appoint Ms Biswal to conduct the investigation. Rather, this decision was made by Luci Caswell, the WSLHD's Director of People & Culture. However, he stated that "Ms Biswal had repeatedly shown herself to be a person of high character and integrity whom [he] trusted", and who he expected "would complete a thorough assessment". [40] Mr Mitrevski denied that there was a predetermined outcome in the investigation. 3. Ms Biswal deposed: [41] "124. Ms Luci Caswell, Director People and Culture was made aware that Mr Jaggi had requested an external investigation. She was also provided the signed Risk Assessment. 125. After noting my declared conflict of interest as Ms Truelove's line manager, and giving due consideration to my experience in undertaking complex investigations, nature of complaint and resources, Ms Caswell, assigned me as the Lead Investigator in this matter. To ensure fairness, independence and lack of bias, Ms Kim Daniel, Director HR Business Partners was tasked to review my Report prior to its finalisation. … 129. …Prior to its finalisation the Report was reviewed by my manager Ms Kim Daniel, Director HRBPs, to ensure independence and mitigate any actual or perceived bias,. It was then sent to Mr Mitrevski for review and recommendation. … 197. …I utterly reject the suggestion that my investigation was conducted with a predetermined outcome in mind. There is no connection between Mr Jaggi's various complaints and my findings. …" (Sic) 1. The Health Secretary submitted that the evidence disclosed no causal connection between the alleged detrimental action and the matters on which Mr Jaggi relied. 2. Mr Jaggi submitted: [42] "196. In response, the Applicant submits that it is needless to identify the causal link separately for every detriment that is being listed in the victimisation proceedings. Though these detriments are listed individually for ease of reference, it does not mean that they are disassociated events. Most of the detriments are simply a continuation of the same series of 'detrimental actions' that the Applicant suffered after he raised complaints against Ms Andersen on 2 March 2020. 197. Based on the established evidence and inferences, the Applicant submits the Commission to draw an inference that the Respondent's evidence is not credible and convincing and is therefore insufficient to rebut the presumption that the Applicant's B&H [sic – bullying and harassment complaint] was discarded in an utterly unfair manner in reprisal to his complaints against Ms Andersen, Mr Law, and the HR and it was covertly decided to discipline him instead." (Emphasis in original) 1. I have already dealt with the submission at par 196 of the above extract at [183]-[186] above. Contrary to his submission, Mr Jaggi does indeed bear the onus of establishing the causal connection between him having taken action of a kind protected by s 210(1) of the IR Act and any detriment on which he relies to make out the contravention. 2. At its highest, Mr Jaggi's case is that the action taken to dismiss the April 2020 Complaint was in reprisal for having made that and other complaints against Ms Andersen, Mr Law and Ms Truelove (assuming her to be "the HR" to which Mr Jaggi referred). I am not entirely persuaded that this is relevantly a "detriment", as such a finding would require a basis to consider that a different outcome would have resulted were Ms Biswal not to have been appointed to conduct the investigation, or were it conducted in a different manner. Nothing in the evidence leads me to that view. 3. In any event, Ms Biswal denied that in making her findings she was acting in retaliation against Mr Jaggi. She and Mr Mitrevski denied that the investigation was set up with a predetermined outcome in mind. I accept that evidence. To the extent that the presumption in s 201(2) is enlivened, I find that the Health Secretary has rebutted it. 4. Mr Jaggi has failed to persuade me that a breach of s 210(1) arose from the appointment of Ms Biswal to investigate the April 2020 Compliant, the manner of her doing so or from her findings. It does not discharge Mr Jaggi's onus to submit, in effect, that an inference of victimisation ought to be drawn from what is said to be a general pattern of behaviour by WSLHD management. 5. Further, it is not sufficient for Mr Jaggi to cast doubt on the quality of Ms Biswal's investigation, such as her alleged failure to interview all relevant witnesses, including Mr Jaggi, or to allege bias. Even were I to be satisfied that Ms Biswal was motivated by bias or conducted an incompetent investigation or both, and I am not, that is not enough. To find a breach of s 210(1) I would need to be persuaded that the fact of him having made complaints was a substantial and operative cause for the bias and for the manner in which the investigation was conducted. I am not so persuaded. 6. I find that Ground 3 is not made out. Ground 4 1. The factual premise of Ground 4 is that the PIP provided to Mr Jaggi on 7 April 2020 was said to operate for approximately three months, from 6 April 2020 until 1 July 2020. In contrast, the PIP provided to him on 31 August 2020 was said to operate for a little over a month, until 5 October 2020. Mr Jaggi submitted that the period was reduced "to set [him up] to fail in the PIP and fast-track the predetermined dismissal process", and he asked the Commission to draw an inference to that effect. [43] 2. Two observations can be made about these submissions. First, Mr Jaggi once again relied on the Commission drawing inferences in the absence of him discharging his onus to make out his case on the evidence. In any event, I am not satisfied that the evidence supports the drawing of the inference sought by Mr Jaggi. 3. Second, Mr Jaggi failed to ascertain precisely how the alleged detriment would constitute a breach of s 210(1) of the IR Act. That is, he has not established that the decision to reduce the period of the PIP (even assuming that to be a detriment) was caused in whole or in part by him taking an action protected by the section. The presumption under s 210(2) is not enlivened. 4. Even were that not the case, I am satisfied that the following evidence led by the Health Secretary would rebut the presumption. Mr Mitrevski deposed: [44] "39. I am advised that at paragraphs 88-92 of the Applicant's Victimisation Submissions, he claims that I determined to reduce the PIP period from 3 months to 1 month in order to create a 'hostile, unsupportive, frustrating and confusing working environment for the Applicant'. 40. I reject that. My decisions were taken consistent with HR advice from Ms Biswal." 1. For her part, Ms Biswal deposed under cross-examination: [45] "Q. Just going back to my question, what was your reason to say reduction of three months to one month was reasonable, how did you come to that conclusion? A. The question was not put to me like that, I was simply asked would a four week PIP be adequate and my response was yes. Is it possible to break down the task to ensure that Vikram, yourself, had every opportunity to succeed in that PIP or through that PIP. In discussions with Ms Andersen I was advised that the PIP would be really structured, you would have daily tasks and you would have a lot of support. Additionally if you look at the contents of the PIP it's a very broad - broadly described requirements. It was talking about abiding by reasonable management directive. It was an expectation that you were timely in terms of meeting your datelines, that your communication was effective, you had adequate analytical skills, financial analytical skills and assessment skills. This was the content of your PIP. There was a separate document that sat next to it which was the work plan document that listed the tasks on a day to day basis. So if you look at the PIP alone there is nothing in the PIP to say that you did not achieve that on a monthly basis, and if you had shown an improvement there was no reason why the PIP would not be extended which is a very normal practice that we would follow, or reduce the contents of the PIP just to limit it to the areas that remained outstanding. Q. You're saying that the PIP was initially three months, for whatever reasons you just gave it was brought down to one month, then the plan was if the one month goes well then we will extend it, the one month goes well then we will extend it, is that what you're trying to say? A. No, that is not what I'm trying to say. First of all the question that was put to me was not in the terms of is it okay to reduce a PIP from 12 weeks to four weeks. That was not a question that was put to me. I was asked is a four week PIP adequate, and my response was yes it is provided it is reasonable and achievable, and I had a conversation with Ms Andersen, we went through the PIP, I was satisfied that those are expectations of every - almost every employee abiding by the code of conduct as in following reasonable management direction, effective communication, meeting your deadlines, having financial analytical skills and there was one more thing that I'm missing but that was the content of your PIP document." 1. I find that Ground 4 is not made out. Ground 5 1. There are three elements that make up Ground 5. The first is the change in Mr Jaggi's reporting line on 1 September 2020, which resulted in him reporting to Ms Andersen rather than Mr Law. He submitted that the Commission should "draw an inference that the reason he was treated harshly by changing his reporting line to Ms Andersen without any consultation or prior notice or an opportunity to bring a support person, was to set a hostile working environment and to use the resultant failures to terminate his employment". [46] 2. Mr Jaggi is once again asking the Commission to draw an inference in the absence of positive evidence making out his contentions. He failed to demonstrate how a change in reporting lines led to any material change in the manner in which he was treated, such as to amount to a "hostile working environment" or him being "treated harshly". There is no basis on which I would draw an inference that reporting to Ms Andersen would necessarily be more "harsh" or "hostile" than reporting to Mr Law. 3. I acknowledge that Mr Law requested that he no longer have supervisory responsibility for Mr Jaggi on being made aware of the FWC Application. He deposed: [47] "59. …[O]nce I became aware that Mr Jaggi had filed an Application for a Stop Bullying Order in the Fair Work Commission before even returning to the team, I realised that Mr Jaggi had not returned in good faith and would not be making an effort to improve performance. I advised Ms Anderson and Mr Mitrevski that I no longer felt able to manage Mr Jaggi. I was concerned about the impact of Mr Jaggi's conduct on my mental health and my team. I was extremely stressed. Both Ms Anderson and Mr Mitrevski agreed and relieved me of that responsibility and Ms Anderson took carriage of managing Mr Jaggi's challenging behaviour and performance concerns." (The spelling of "Anderson" is as per the original) 1. It is of some significance in the context of Mr Jaggi's submissions that Ms Andersen did not request that she take over the line management of Mr Jaggi. While Mr Law had asked her to be relieved of those duties, the decision was ultimately made by Mr Mitrevski who, in a meeting attended also by Ms Biswal, asked Ms Andersen to take on the management responsibilities of Mr Jaggi, to which she consented. 2. Ms Andersen stated that "Mr Law was removed from managing Mr Jaggi at Mr Law's request because of the acute stress that Mr Jaggi was causing him". [48] 3. Mr Mitrevski stated that "Mr Law could not cope with Mr Jaggi and requested to be relieved of managing him to protect his mental health". [49] He rejected a submission made by Mr Jaggi during the proceedings that the reporting line was changed to create a "hostile, unsupported, frustrating and confusing working environment" to "set him up to fail and a consequence terminate his employment" as a result of the FWC Application. 4. Ms Biswal referred to Mr Law requesting that he be relieved of managing Mr Jaggi as "Mr Jaggi's conduct had a material impact on Mr Law's mental health and it was not appropriate for him to continue to manage Mr Jaggi". [50] 5. Based on this evidence, even had Mr Jaggi established that the change in his reporting line constituted a form of detriment, the FWC Application was not a substantial and operative cause of the change. The change was introduced to protect Mr Law's well-being. 6. The second and third elements of Ground 5 are the alleged premature termination of the PIP after one week and the threat to issue Jaggi with a "show cause notice". These assertions can be dealt with reasonably shortly, as they are not borne out by the evidence. 7. There is no evidence that the WSLHD terminated the PIP after one week or issued Mr Jaggi with a "show cause notice". The highest level to which the evidence rose was that during the meeting on 8 September 2020 Ms Biswal informed Mr Jaggi that if there was no noticeable improvement in his performance over the second week of the PIP, the PIP may be cut short and Mr Jaggi might be issued with a "show cause notice". 8. Despite Mr Jaggi submitting that it was "extremely harsh" for such a threat to be made, [51] there was nothing heavy-handed, unfair or inappropriate in him receiving such a caution. In the first place, it was entirely consistent with the Health Secretary's obligations under the GSE Act and the GSE Rules. In the second place, it afforded Mr Jaggi "fair warning" of the consequences of continued underperformance. 9. I find that Ground 5 is not made out. Grounds 6, 7 and 8 1. Taken together, these grounds allege that the Health Secretary took detrimental action against Mr Jaggi by: 1. terminating his employment; 2. failing to afford him procedural fairness in the process culminating in that termination, including by failing to comply with the Misconduct Policy; and 3. failing to provide him with notice, or payment in lieu of notice, on termination in breach of cl 20 of the Health Employees' Conditions of Employment (State) Award. 1. In respect of Ground 6, Mr Jaggi relied in large part on the contents of the Repudiation Brief and Mr Loy's reliance on it to bring the employment relationship to an end. Mr Jaggi submitted that his employment was terminated due to: 1. the Kumar Complaint; 2. the April 2020 Complaint; 3. taking sick leave and being absent due to workers compensation in April 2020; 4. the August 2020 Complaint; 5. the FWC Application; and 6. the First IRC Application filed in this Commission on 11 September 2020. 1. Mr Jaggi claimed that these action were protected by ss 210(1)(e), (g) or (j) of the IR Act and that the Health Secretary's conduct was therefore in breach. 2. The Health Secretary's Closing Submissions included the following contentions: 227. The evidence shows: … g. The Respondent elected to discharge the contract of employment for repudiatory breach of conduct. The decision was based on the matters in the 'key reasons' of the Repudiation Brief. h. Ms Biswal explicitly rejects a causal connection between the Applicant's claims complaints and the decision to recognise repudiation. i. Mr Loy explicitly denies terminating the Applicant on the basis of the matters claimed by the Applicant. j. The evidence otherwise discloses no causal connection between the alleged detrimental action and the matters raised by the Applicant above. 228. The Respondent submits that even if the Respondent's construction of the Applicant's conduct is found to be legally incorrect, the error in law does not give rise to an inference of victimisation. 229. In respect of the brief, the evidence shows: a. Mr Loy made his decision on the basis of the 'key reasons' within the brief. … d. Ms Biswal considered the Applicant to be vexatious, on the basis of a series of events where she could witness behaviour where, when the Applicant was not satisfied with a reasonable assessment of an issue, the advice he was given [he would keep escalating]. e. Ms Biswal agreed that merely filing a complaint in the Fair Work Commission or being unsatisfied with an internal complaint and seeking a legislative remedy would not be vexatious. f. Ms Biswal rejected the criticism that the brief did not represent the full story, instead stating that in her view the document demonstrates a picture she was trying to paint for the Chief Executive. g. Ms Biswal stated that she had no intention of conveying that the filing of the Fair Work Commission Complaint and the complaints in the Industrial Relations Commission were 'vexatious and malicious'. Instead, she stated it was his conduct in totality. h. Ms Biswal indicated that the words 'vexatious' and 'malicious' were a summary of her opinion at the time. 230. Relevantly, at the time of drafting the brief, Ms Biswal had reached conclusions in her Investigation report that: a. the Applicant's conduct was 'vexatious'. b. The Applicant demonstrated a pattern of behaviour, wherein he lodged formal complaints against his managers any time his performance or capability were being questioned. c. The Applicant's pattern of complaints or taking sick leave appeared to be an attempt to distract attention from his performance issues. d. The Applicant demonstrated deceitful behaviour. e. The Applicant was vexatious, vindictive, mischievous. 231. There was a basis in fact for Ms Biswal's view. … 233. Moreover, at the date of dismissal, the Applicant had engaged in conduct including threats of litigation and demands for payment against his colleagues that the Respondent considered 'malicious, improper, and bullying'. 234. The malicious conduct is also indicated in the Applicant's conduct in preparing for litigation against his employer in respect of claims that had yet to arise (because the conduct said to give rise to those claims was yet to occur). 235. The Respondent submits that Ms Biswal's assessment that the Applicant was 'vexatious and malicious' was both factually accurate and reasonably open to her on the basis of the Applicant's conduct within the course of his employment." (Footnotes omitted) 1. There are a number of observations to make in respect of these submissions. First, whether Ms Biswal genuinely held the opinions expressed in the Repudiation Brief is not to the point. The question is whether a substantial and operative reason for the decision to terminate the employment relationship was one of the proscribed reasons alleged by Mr Jaggi. The Health Secretary does not discharge her onus by asserting, in effect, that the victimisation ought to be excused on the basis that it was occasioned by a genuinely held belief. 2. Second, the conclusions allegedly reached by Ms Biswal as summarised in par 230 of the extract at [249] above appear designed to provide a gloss on the Repudiation Brief. While it is possible to see all of those conclusions reflected in the Repudiation Brief, in one form or another, the document did not stop with opinions as to Mr Jaggi's character or integrity. It encouraged Mr Loy to find that the employment relationship ought to be brought to an end for reasons including that Mr Jaggi had made "vexatious and malicious" complaints. 3. I have dealt extensively with the Repudiation Brief at [68]-[83] above. I will not traverse that ground again. 4. Third, it follows that whether there was a basis in fact for Ms Biswal's opinion as to Mr Jaggi's conduct or character is of no great assistance. 5. Fourth, while Ms Biswal stated that "there was no causal connection between Mr Jaggi's various complaints and the decision to recognise repudiation", [52] this is properly to be regarded as a conclusion and submission, rather than evidence. Whether there was such a causal connection is a matter for the Commission to determine. It is also relevant that the "decision to recognise repudiation" was made by Mr Loy. 6. Fifth, the matters set out at par 232 of the extract at [249] above do not assist in the analysis of the Repudiation Brief. The events to which that paragraph refers post-dated the preparation of the Repudiation Brief and its presentation to Mr Loy. There is no evidence that those matters were before Mr Loy at the time he made his decision. 7. This leads to the decision itself. Mr Loy stated: [53] "9. My decision to recognise the repudiatory conduct and discharge the Applicant's contract of employment was based entirely on the 'key reasons' outlined in the Repudiation Brief. Response to the Applicant's Claims 10. I have been advised of the contents of Paragraphs 18-22 of the Applicant's Unfair Dismissal Submissions alleging, inter alia, that: a. The Respondent attempted to impair the ability of the Applicant to prepare his matters. b. The Respondent wants to control the use of evidence in these proceedings according convenience and advantage. [sic] c. The Respondent sought to treat the Applicant in the harshest possible way in reprisal to his complaints against a senior director of the Respondent. d. The Respondent did not provide an opportunity to make out a defence statement to devoid him of his legal right to seek interlocutory relieve [sic] under s 84 of the Industrial Relations Act 1996 (NSW) (IR Act). 11. I have been advised of the contents of paragraphs 116-145 the Applicant's Victimisation Submissions, alleging, inter alia, that I determined to terminate his employment on the basis of conduct that was protected from detrimental action by the Victimisation provisions within s 110 [sic] of the IR Act. 12. I deny the claims raised by the Applicant in paragraphs 10 and 11 of my statement. My decision was based on the key reasons contained in the Repudiation Brief alone." (Emphasis in original) 1. The "key reasons" set out in the Repudiation Brief are reproduced at [69] above. 2. However, under cross-examination, Mr Loy gave the following evidence: [54] "Q. Mr Loy, would you like to just tell us in the key reason, you mean the entire, all the paragraphs was the reason that I was terminated, is that-- A. So on that brief there are one, two, three, four paragraphs under the heading 'Key reasons'. Q. Yes. A. They were the reasons alone with which this contract was repudiated. Q. Mr Loy, like the way this brief has been constructed the section that you have referred is the key section or the key reasons, but what I'm trying to find out, Mr Loy, is that you haven't read the rest of the brief at all and read just the key reasons and approved the brief. Is that what you meant? A. No. No I. Q. So, Mr Lloyd, when you say that they are the - they are the only reasons that were the key reasons but you have gone through the entire brief, is that correct? A. That's - I state - yes, so I have been through the brief before I made a decision. My decision to recognise that, as in my statement in item 9, was based on, entirely on the key reasons outlined in that repudiation brief. Q. Yes, Mr Loy, I understand that. My question to you is when you approved that brief did you read the entire contents of the brief? HOLMES: He just-- WITNESS A. I did." 1. In response to some questions from me Mr Loy deposed: [55] "Q. If we go to the repudiation brief itself you've said, and again today, that you based your decision on the key reasons in that section on the first page of the repudiation brief, but you also acknowledged that you couldn't have stopped reading at that point and been fully informed as to what you were being asked to approve, correct? A. Correct. Q. And so you couldn't read the key reasons without reading the rest of the repudiation brief to place it all into context? A. That's correct Commissioner." 1. Viewed in the context of the totality of the evidence, I do not accept Mr Loy's written evidence that the reasons for his decision to purportedly accept Mr Jaggi's repudiation of the employment contract are to be confined to the "key reasons" in the Repudiation Brief. It is clear that his decision was informed by the entirety of the document. 2. The Repudiation Brief listed the Kumar Complaint, the April 2020 Complaint, the FWC Application and the First IRC Application as examples of Mr Jaggi's "vexatious and malicious" conduct. In further answer to questions from me Mr Loy stated: [56] "Q. … So finally in answer to a question from Mr Jaggi you said that you had regard to the contents under the heading, 'Mr Jaggi's conduct is vexatious and malicious' to inform your decision that the relationship of trust and confidence had broken down, correct? A. Correct. That's correct, Commissioner. Q. And so the characterisation of those various complaints must necessarily have impacted on your decision as to whether the relationship had been broken down, correct? A. That's correct." 1. In so far as Mr Jaggi alleged a breach of s 210(1)(g) and (j) of the IR Act, the Health Secretary has not rebutted the presumption arising under s 210(2). I am satisfied that the fact that Mr Jaggi had made the Kumar Complaint, the April 2020 Complaint, the FWC Application and the First IRC Application was a substantial and operative cause of Mr Loy's decision to bring the employment relationship to an end. 2. The Repudiation Brief made no mention of the August 2020 Complaint, and there is no evidence that Mr Loy was aware of it. There is no basis on which to find that the Health Secretary victimised Mr Jaggi as a consequence of him having made that complaint. 3. Similarly, the Repudiation Brief made no express reference to Mr Jaggi having taken sick leave. Ms Biswal was of the opinion that Mr Jaggi had misused his sick leave entitlements so as to avoid the PIP process, and that this informed her opinion that he had repudiated the employment contract. While this leaves open the argument that the decision to prepare the Repudiation Brief and the terms in which it was couched may itself have been a detrimental action, that is not the case that Mr Jaggi presented. 4. My exchange with Mr Loy set out at [82] above makes it clear that he had no knowledge of the sick leave that Mr Jaggi had taken. He stated under cross-examination that he made no further enquiries after receiving the Repudiation Brief. There was no basis on which he would have been aware of, or drawn an inference in relation to, Ms Biswal's suspicions as to Mr Jaggi's use of sick leave. If these matters were not in the knowledge of Mr Loy as the decision-maker, they cannot have informed his decision, in whole or in part. 5. Grounds 7 and 8 can be dealt with in short order. I have already found that Mr Jaggi was denied procedural fairness in the process resulting in the termination of his employment and that he did not receive the notice, or payment in lieu, that he was entitled to receive under the Health Employees' Conditions of Employment (State) Award. The Health Secretary's case was that the process was appropriate, and no notice was required to be provided or paid, in circumstances where Mr Jaggi had repudiated the employment contract. I am satisfied that this was the reason for which the WSLHD adopted the process it did and elected not to provide Mr Jaggi with notice or payment in lieu. On that basis, I find the Health Secretary has rebutted the presumption arising under s 210(2). 6. In making this finding, I recognise that I have also found that Mr Jaggi had not repudiated his employment contract and that the Health Secretary had proceeded on a false premise in that regard. However, all that s 210(2) requires is that a respondent satisfy the Commission "that the alleged matter was not a substantial and operative cause of the detrimental action". This would ordinarily require a respondent to identify what it asserts was in fact the substantial and operative reason for it taking the action. But nothing in the provision requires that the Commission be satisfied that the reason asserted by a respondent was, for example, sound, well-founded, legal or even fair. If it is not, other remedies may be available to the employee. They do not, however, arise under Ch 5 Pt 1 of the IR Act. 7. I find that Ground 6 is substantiated to the extent set out at [262] above. Grounds 7 and 8 are not made out. Ground 9 1. In Mr Jaggi's Closing Submissions, he set out the basis for this ground as follows: "87. The Applicant submits that the dismissal was harsh because the Respondent did not consider the Applicant's injuries, psychological in specific, at the time of terminating his employment. The Respondent was informed that the Applicant was suffering from suicidal tendencies prior to 14 October 2020… 88. The Applicant therefore submits the Commission to consider these circumstances in determining the quantum of compensation in the nature of general damages. 89. The Respondent had failed to provide any explanation for not consulting with the Applicant's Nominated Treating Doctor (NTD) and the rehabilitation provider prior to terminating his employment. 90. The Applicant submits the Commission to draw an inference that the Respondent deliberately ignored consulting with the Applicant and his NTD because it would have prompted the Respondent to initiate a Return-to-Work plan and potentially providing the Applicant with suitable duties in due course. And this would have jeopardised the Respondent's legal advice to terminate the Applicant's employment alleging that he left the workplace on 8 September 2020 indicating not to return to perform his role." 1. It is difficult to discern from these submissions the contravention of s 210(1) alleged by Mr Jaggi. 2. In any event, the Health Secretary correctly submitted that under the Injury Management and Return to Work Policy a prerequisite to the development and implementation of a return to work plan is, logically enough, the worker having capacity to return to work. Mr Jaggi had been assessed as having no work capacity from 10 September 2020. As at 2 October 2020, this incapacity was expected to last until 25 October 2020. There is no reason why the WSLHD would have contemplated the implementation of a return to work plan prior to the termination of Mr Jaggi's employment. 3. There is no evidence that the WSLHD deliberately avoided compliance with the Injury Management and Return to Work Policy so as not to undermine the basis on which it purported to bring the employment to an end. There is further no basis on which such an inference could be drawn. 4. I find that Ground 9 is not made out. Failure by the Health Secretary to call witnesses 1. Mr Jaggi submitted that inferences should be drawn from the failure of the Health Secretary to call evidence from the following: 1. Ms Nambiar, from whom Ms Biswal received advice regarding Mr Jaggi's alleged "repudiatory breach of contract"; [57] 2. Ms Caswell, who was also involved in the provision of that advice and who was responsible for the appointment of Ms Biswal to investigate the April 2020 Complaint; 3. Ms Daniel, who was appointed to and did review the Biswal Report to guard against bias arising out of any conflict of interest that Ms Biswal may have had; and 4. Nisha Scrampickal, Senior HR Business Partner, who made enquiries of Ms Biswal as to setting the proposed duration of the PIP in August 2020. 1. Mr Jaggi submitted that an inference should be drawn that these witnesses were not called as their evidence would not have supported the Health Secretary's case. While the case was not mentioned in his submissions, I have presumed that Mr Jaggi relies on Jones v Dunkel (1959) 101 CLR 298. 2. I do not propose to consider at length the significant jurisprudence as to the principles for which Jones v Dunkel stands (or does not stand). It is sufficient to state that the case identifies two inferences that may flow from the unexplained failure of a party to call a witness whom that party would be expected to call. First, the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. Second, the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn: Manly Council v Byrne and Anor [2004] NSWCA 123 at [51]. 3. Three conditions must be met before a Jones v Dunkel inference would be drawn: 1. the witness not called would be expected to be called by the party against whom the inference is sought to be drawn; 2. the witness' evidence would elucidate a particular matter; and 3. the witness' absence is unexplained. 1. There is no compulsion on the Commission to draw the inference: see Manly Council v Byrne at [52]. 2. I am not satisfied that inferences of the kind sought by Mr Jaggi ought to be drawn. Put simply, the Health Secretary would not necessarily have been expected to call evidence from Ms Nambiar, Ms Caswell, Ms Daniel or Ms Scrampickal. Each of these witnesses was essentially involved in a process or processes which culminated in actions taken by Ms Biswal or Mr Loy. Both Ms Biswal and Mr Loy gave evidence and were able to be challenged, and were challenged, on their reasoning and motivations. In the circumstances, it would not necessarily be expected that the other witnesses identified by Mr Jaggi would have been called. Conclusions 1. The Victimisation Application is premised to a significant degree on the contentions that until March 2020 there were no concerns or issues in the employment relationship, other than for the matters raised and addressed through the Kumar Complaint. However, after Mr Jaggi complained about Ms Andersen in March 2020, the relationship deteriorated. So much so, that Ms Andersen colluded with Ms Biswal, Ms Truelove, Mr Law and Mr Mitrevski to retaliate and secure Mr Jaggi's dismissal. This extended to arranging for Ms Biswal to conduct, in effect, a sham and biased investigation into the April 2020 Complaint so as to clear the way for his dismissal. 2. For the reasons stated above, this narrative is not borne out by the evidence. Further, it demonstrates the same unwillingness to countenance any criticism or suggestion of fault as Mr Jaggi demonstrated during his employment with the WSLHD. 3. That said, I have found that the fact that Mr Jaggi had made the Kumar Complaint, the April 2020 Complaint, the FWC Application and the First IRC Application was a substantial and operative cause of Mr Loy's decision to bring the employment relationship to an end. This was in breach of s 210(1)(g) and (j) of the IR Act. To that extent, I find in favour of Mr Jaggi on the Victimisation Application. Relief 1. In light of the conclusions and findings set out at [175]-[179], [262], [268] and [282] above, it is necessary to consider whether the Commission should provide Mr Jaggi with a remedy. 2. There is an overlap in the relief that Mr Jaggi seeks in respect of each of the Unfair Dismissal Application and the Victimisation Application. In the former, Mr Jaggi seeks reinstatement "with continuity of service and payment of economic loss up until the effective date of reinstatement". The Victimisation Application described the relief sought by Mr Jaggi as follows: "The Applicant claims an order for: 1. reinstatement to his previous role of Finance Business Support Officer with the Respondent pursuant to section 213(2)(a) [of the IR Act]; 2. the payment of [the] whole of the amount of remuneration and 'other financial benefits' lost and forgone from the date of termination (14 October 2020) to the date of reinstatement pursuant to section 213(2)(a). Other financial benefits include employer's superannuation contributions; tax benefits due to salary packaging; leave entitlements including annual leave and long service leave; and compensation on account of any adverse income tax implications due to delayed salary payments upon reinstatement. 3. the continuity of service for all employment related matters. 4. the advancement in his employment from mid-level to high-level in the Health Managers Level 2 classification as defined in [the] Health Managers (State) Award 2019. 5. the Respondent to introduce appropriate measures and arrangements to ensure the health and safety of the Applicant post reinstatement. 6. the Respondent to take appropriate actions into the negligent and malicious conduct of its Human Resources Department and Workers Compensation Department. 7. a compensation [sic] of $250,000 for the potential economic loss due to the impact of psychological disorders suffered by the Applicant on his employability and career advancement as a result of the Respondent's negligence and unfair treatment." 1. Due to the overlap in the relief sought, I will consider separately the relief claimed by Mr Jaggi in each of the Unfair Dismissal Application and the Victimisation Application, having regard to the legislation that applies to each. My determination as to remedy will encompass both of the applications. Unfair Dismissal Application 1. The remedies available following a finding that a dismissal was harsh, unjust or unreasonable are contained in s 89 of the IR Act, which is relevantly in these terms: 89 Orders for reinstatement, re-employment, remuneration, compensation (1) Reinstatement The Commission may order the employer to reinstate the applicant in his or her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. (2) Re-employment If the Commission considers that it would be impracticable to reinstate the applicant, the Commission may order the employer to re-employ the applicant in another position that the employer has available and that, in the Commission's opinion, is suitable. … (5) Compensation If the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may 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. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave. … Reinstatement 1. It is well established that under the IR Act reinstatement is the primary remedy if a finding is made that a dismissal was harsh, unreasonable or unjust: Dumas v Industrial Relations Secretary (on behalf of Department of Communities and Justice) [2019] NSWIRComm 1071 ("Dumas") at [24]; Raeburne v Department of Justice and Attorney General [2011] NSWIRComm 48 at [62]-[63]. The Commission can only consider an alternative remedy if reinstatement is impracticable: Dumas; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 ("Perkins"). 2. In Perkins the Court observed (at 191): "Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party." 1. In Dumas the Full Bench observed: "34. What is clear from the authorities is that there is a range of circumstances that may make reinstatement impracticable. [In] one context, it may be impracticable because it is impossible, for example where the position in question no longer exists. In another context, it may be impracticable to reinstate an employee because the break down in the employment relationship is such that it simply is 'not practicable' to expect that the relationship issues that led to the dismissal of the employee can be overcome and the employment relationship effectively re-established. The later example was clearly envisaged in the second reading speech introducing the remedy scheme for unfair dismissals. This example also makes clear that whether it is practicable to reinstate an employee means something more than 'possible'. 35. As stated by Wilcox CJ in Nicholson at pages 60-61: 'It is important to note that Parliament stopped short of requiring that, for general compensation to be available, reinstatement be impossible. The word "impracticable" requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability of a reinstatement order in a commonsense way. If a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer's business, it may be "impracticable" to order reinstatement, notwithstanding that the job remains available.'" 1. I am wholly convinced that reinstatement is not practicable in this case. As at 14 October 2020 there was an almost complete breakdown in the relationship between Mr Jaggi on the one hand and Mr Law, Ms Andersen, Ms Biswal, Ms Truelove and Mr Mitrevski on the other. This is highlighted by Mr Law's request that he no longer have supervisory responsibility for Mr Jaggi due to concerns over his psychological well-being. Having observed Mr Law the proceedings, I see no reason to regard his request as unreasonable or histrionic. 2. I observed a degree of antipathy towards Mr Jaggi from the Health Secretary's witnesses, which may have exacerbated or accelerated the breakdown in the relationship. However, I have reached the view that Mr Jaggi's behaviour was the predominant cause of the breakdown. 3. The relationship can only have been further damaged by the matters put forward by both Mr Jaggi and the Health Secretary in these proceedings. This is reflected in part in the matters canvassed at [12]-[16] above. 4. Further, Mr Jaggi framed his case on the premise that the Health Secretary's witnesses improperly colluded with a view to securing the unjust termination of his employment and to resist his workers compensation claim, to leave him without any income. He expressly described several of the witnesses as being biased against him. More seriously, he accused several of the witnesses of having falsified documents or of presenting untruthful evidence to the Commission (in which respect I repeat my observations at [13] above). 5. For her part, the Health Secretary led the following evidence: 1. Ms Andersen described Mr Jaggi as "the single most challenging employee that I have ever encountered in my career" [58] and that she "would never support the re-employment of Mr Jaggi because he is dishonest, unreliable"; [59] 2. Ms Kumar described Mr Jaggi as "unreliable and dishonest, as evident with him fabricating events to portray me in a negative light". [60] (In considering this evidence I am mindful that Ms Kumar is no longer employed with the WSLHD); 3. Mr Law described Mr Jaggi as "the most unreliable and dishonest team member I have ever worked with in my entire career" and stated that he would never want to work with Mr Jaggi again; [61] and 4. Ms Truelove stated that "Mr Jaggi is the most comprehensively deceitful person I have ever encountered in my career". [62] 1. While this evidence is couched in unrestrained if not hyperbolic terms, based on the evidence and observing the demeanour of the witnesses, including Mr Jaggi, during the course of the proceedings I accept that these views are genuinely held and that there is some basis for them. 2. A further consideration is that I have found Mr Jaggi's performance during his employment to have been wanting. Throughout his employment and during these proceedings he steadfastly refused to accept that he may not have measured up to standard in any respect. This attitude is unlikely to change were he to be reinstated. That is, I would not expect that Mr Jaggi would engage in a more constructive or proactive way to understand and to meet the expectations of him. Returning Mr Jaggi to the workplace in those circumstances would be a recipe for disaster. Re-employment 1. Mr Jaggi did not expressly seek re-employment. The Health Secretary submitted that in the absence of evidence of other available positions into which Mr Jaggi might be redeployed, the Commission cannot order re-employment. 2. In Mr Jaggi's Reply Submissions he contended: "88. …The current stage of the proceedings is to determine if the dismissal is unfair within the meaning of section 84 of the IR Act. Determining a remedy should be the second stage in this process and parties be asked by the Commission to make short and appropriate submissions, and call evidence if required." 1. This submission misapprehends the process customarily adopted by the Commission. The two-stage approach to unfair dismissal proceedings which Mr Jaggi proposes would be, at the least, an anomaly. While that is not necessarily a barrier to adopting Mr Jaggi's suggestion, I do not propose to do so. 2. For the reasons set out at [290]-[296] above, I do not consider that re-employment would be practicable. Compensation 1. The Commission's task in assessing compensation was summarised in Bartlett and Cini v Mario's Fresh and Frozen Foods [2006] NSWIRComm 1084: "27. Section 89(5) is concerned with loss of income, not any assessment of damages. It is fairly settled law now in this State that such monetary compensation is neither punitive, punishing an employer for any wrongdoing on his part, nor designed to enrich the dismissed employee at the expense of his former employer: Henderson v Rural Lands Protection Board (1997) 74 IR 142 at p.150. 28. Nevertheless, there is still a level of speculation in determining the appropriate level of remuneration for the two employees. Section 89(6) does not prescribe a simple mathematical formula in the assessment of monetary compensation - a sum representing the amount of income over the period of six months immediately prior to the dismissal, compared and contrasted with the remuneration received in the alternative employment and considered against the length of time that an employee was out of work: D and R Commercial Pty Limited v Flood (2002) 113 IR 344 at p.363. The only jurisdictional limitation is the six month ceiling in s 89(5): the rest is a matter for the Commission's discretion." 1. The Health Secretary's Closing Submissions stated: "182. Relevantly: a. The Applicant's pre-injury income was $1,979.00 a week. b. The Applicant remained incapacitated from completing his ordinary duties until 20 May 2021 (more than six months post-dismissal). c. The Applicant received weekly workers compensation benefits (rather than ordinary wages) for approximately four weeks prior to dismissal at the rate of $1902.76. d. The Applicant received a further 11 weeks of weekly benefits post dismissal at $1902.76 ($20,930.36), and was subsequently awarded a further 21 weeks of weekly benefits post- dismissal at the rate of $1,600 gross a week pursuant to s37 of the Workers Compensation Act 1987 (NSW) ($33,600.00). e. The Applicant has not filed evidence of his attempts to mitigate loss post 20 May 2021. 183. If the Applicant had not been dismissed, he would not have received any income additional to that which he received in weekly benefits for the six months post dismissal." 1. These submissions seem to suggest that the Commission's discretion to award compensation is limited to the loss sustained by an applicant in the six months following dismissal. That is not what s 89(5) of the IR Act provides for. The extent to which Mr Jaggi sustained any loss as a result of his dismissal is a significant consideration, but is not the only one. 2. I have found that there was no basis for the termination of Mr Jaggi's employment on 14 October 2020. He should not have been dismissed that day, and certainly not without notice. However, even had he not been dismissed I am sure that the employment relationship would not long have survived. 3. Assuming Mr Jaggi returned to work, noting his absence due to a work-related injury, I have no doubt that the PIP would have been reactivated. As already observed, it is improbable that Mr Jaggi would have engaged in a more constructive or proactive way in the PIP process following his return. The patience of the WSLHD appears to have been exhausted, and steps would have been taken to bring the matter to a conclusion one way or the other. Whether on the basis of s 68 or s 69 of the GSE Act, Mr Jaggi's employment would almost certainly have come to an end at the conclusion of the process required by those provisions and the GSE Rules. He would have been provided with notice of termination, or (more likely in the circumstances) received a payment in lieu of notice. 4. I am persuaded that an award of compensation ought to be made. Its quantum should reflect these matters. Victimisation Application 1. The powers of the Commission to grant relief in respect of the Victimisation Application are contained in s 213 of the IR Act, which is reproduced at [181] above. In Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059 ("Morawsky") Newall C observed: "21. The power given to the Commission is to enforce the provisions of, particularly, s 210; certainly sections 209, 210, 211 and 212 in whole, but s.210 particularly, is not to 'grant relief' or to 'inquire into', it is to 'enforce'. That is why the steps which are set out in the sub-sub-sections to sub-section 213(2) must be seen as a comprehensive code of the Commission's relevant powers. The Commission is not at large, just to enquire about and say anything it likes about an application of this kind, it has certain enforcement powers and they are codified in sub-section 213(2) and they are no wider than that." 1. In Davie v Industrial Relations Secretary (Department of Justice, Corrective Services NSW) (No. 2) [2019] NSWIRComm 1056 ("Davie") the Full Bench observed: "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. 75. It is also relevant that in making an order under s 89(5) the Commission is not necessarily confined to placing an employee in the position they would have been in but for the unfair termination of their employment. In assessing compensation the Commission must take into account the extent to which the applicant mitigated or sought to mitigate his or her loss: s 89(6). Subject to doing so and the limitation on the quantum of the compensation, the power of the Commission to make a money order is within the Commission's discretion: D & R Commercial Pty Limited v Flood (2002) 113 IR 344; [2002] NSWIRComm 88 at [64]. There is a level of speculation in determining the appropriate level of compensation: see Bartlett and Cini v Mario's Fresh and Frozen Foods [2006] NSWIRComm 1084 at [27] and [28]." Reinstatement and related orders 1. Mr Jaggi seeks orders providing for: 1. reinstatement to the role of Finance Business Support Officer with the WSLHD; 2. payment for the remuneration and "other financial benefits" he lost from the date of termination to the date of reinstatement; 3. continuity of service for all employment-related matters; and 4. the advancement in his employment from mid-level to high-level in the Health Managers Level 2 classification contained in the Health Managers (State) Award 2019. 1. For the reasons set out at [290]-[296] above, I decline to make an order for Mr Jaggi's reinstatement or that he be advanced in his employment. I add that the evidence does not support an order for his advancement. The evidence is more to the contrary. 2. The orders Mr Jaggi seeks to recover remuneration and other financial benefits he lost, and to maintain continuity of service, are expressed in terms to suggest that they would be consequential to an order for reinstatement. To that extent, they fall away. 3. However, noting the failure of the Health Secretary to provide Mr Jaggi with notice of termination, or payment in lieu, an order is warranted under s 213(2)(c) for a payment to Mr Jaggi for "the whole or any part of the amount of remuneration or other financial benefits lost or foregone" as a result of his dismissal. Orders requiring the Health Secretary to take remedial action 1. Mr Jaggi seeks orders requiring the Health Secretary to: 1. introduce appropriate measures and arrangements to ensure his health and safety following his reinstatement; and 2. take appropriate actions into the negligent and malicious conduct of its Human Resources Department and Workers Compensation Department. 1. In relation to the first of these proposed orders, three observations can be made. First, as I have declined to order Mr Jaggi's reinstatement, the premise underpinning the proposed order is removed. 2. Second, I have significant doubts as to whether such an order is available under s 213(2). Mr Jaggi did not explain the basis on which such an order could be made. It might arguably be a "consequential order" within the meaning of s 213(2)(g), although this was not put by Mr Jaggi and I remain to be convinced of this. However, given the determinations I have otherwise made, it is not necessary to decide the question. 3. Third, the proposed order is couched in general and vague terms. It is not clear what obligations the order would impose on the Health Secretary and what steps the Health Secretary would be required to take to comply with it. 4. This last observation applies equally in relation to the second of the proposed orders. What, precisely, are the "appropriate actions" that the Health Secretary would be required to take? 5. More significantly, the second proposed order is premised on the assumption that the Human Resources Department and Workers Compensation Department of the WSLHD have engaged in "negligent and malicious conduct". This has not been established. General damages 1. Finally, Mr Jaggi seeks an order requiring that the Health Secretary pay to him the sum of $250,000 "for the potential economic loss due to the impact of psychological disorders suffered by the Applicant on his employability and career advancement as a result of the Respondent's negligence and unfair treatment". It is, for all intents and purposes, a claim for general damages. 2. The Health Secretary submitted that s 213(2) does not confer on the Commission the power to make an order for the payment of compensation in the nature of general damages. 3. In response to this contention, in Mr Jaggi's Reply Submissions he drew my attention to the following observations of Murphy C Silsbury v Health Secretary in respect of Western Sydney Local Health District [2021] NSWIRComm 1004 ("Silsbury"): "52. … 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'." 1. In that case, Murphy C was dealing with a notice of motion seeking an order that an application which had been brought pursuant to s 213 of the IR Act be summarily dismissed. As the passage above makes clear, the question before the Commissioner was whether the matter ought to be dismissed having regard to relevant principles, including that the claim was "so obviously untenable that it cannot possibly succeed". The Commissioner was not, at an interlocutory stage, prepared to conclusively determine whether or not s 213(2) permits an order for compensation in the nature of general damages. The case certainly does not stand as authority for the proposition that such jurisdiction exists. The Commissioner's observation that such a claim would be "novel and likely to face significant jurisdictional hurdles" is noteworthy in this regard. 2. Other than referring to Silsbury, Mr Jaggi did not expand on the source of the Commission's jurisdiction to make an order for general damages under s 213(2). The only provisions which appear to be relevant in this regard are ss 213(2)(c), being the only one that expressly anticipates the payment of money, and s 213(2)(g), which allows for "consequential orders". 3. I have significant doubts as to whether an order for the payment of general damages could properly be regarded as a "consequential order". That said, this is not a matter which Mr Jaggi put to me. In the absence of him having advanced any arguments as to the applicability of s 213(2)(g) I will take the matter no further. 4. Having regard to the observations of Newall C in Morawsky set out at [307] above and those of the Full Bench in Davie at [72], reproduced at [308] above, I am inclined to the view that to the extent that it allows for an order for the payment of money, s 213(2) is confined to an order for the payment of "the whole or any part of the amount of remuneration or other financial benefits lost or foregone" under s 213(2)(c). That provision is not couched in the terms of compensation so much as restitution. 5. For these reasons, I agree with the Health Secretary that it is not within the power of the Commission to make an order for general damages of the kind sought by Mr Jaggi. 6. Even were this conclusion to be incorrect, Mr Jaggi has failed to discharge his onus to prove, firstly, that he has suffered loss or damage that would give rise to a claim for general damages and, secondly, how they are to be quantified. Indeed, Mr Jaggi seemed intentionally not to seek to quantify his claim, in apparent reliance on the Commission exercising its discretion to determine an appropriate amount. 7. In Mr Jaggi's Closing Submissions he repeatedly drew attention to particular events or circumstances, and made a submission to the effect that the Commission "consider the circumstances in determining the quantum of compensation in the nature of general damages". [63] This does not discharge Mr Jaggi's onus. In this regard it is sufficient to refer to par 143 of Mr Jaggi's Closing Submissions, which is reproduced at [170] above, and my observations at [171]. Conclusion 1. Having regard to all of the circumstances of this case, I have determined that an order for compensation in favour of Mr Jaggi in an amount equivalent to 12 weeks' pay, at the rate which he was being paid at the time of his dismissal, would be fair and just. This amount encompasses compensation in respect of the Unfair Dismissal Application and an order for payment under s 213(2)(c) of the IR Act in respect of the Victimisation Application, noting my observations at [312] above. Foreshadowed application for costs 1. In her Closing Submissions, the Health Secretary submitted: "262. In the event the Commission orders Compensation in respect of either the Unfair Dismissal or Victimisation matters, the Respondent requests to be heard on any question of costs." 1. The request to be heard "on any question of costs" makes this a slightly confusing submission. A question of costs will only arise on application by a party. Mr Jaggi made no such application. I will presume, then, that the submission is to be read as a request to be heard on the question of costs. That is, that the Health Secretary anticipates making an application for costs. 2. The request is a little surprising. However, I have no wish to discourage a party from exploring their statutory rights, much less predetermine an outcome in the absence of evidence and submissions. I will make directions to allow for the making and determination of any application for costs which either party wishes to advance. Orders and directions 1. I order that: 1. the Health Secretary pay to Mr Jaggi a sum equivalent to 12 weeks' pay calculated at the rate of $1,979 per week, less any applicable taxation; and 2. the payment be made on or before 20 May 2022. 1. I direct that: 1. a party wishing to make an application for costs must file and serve any evidence in support of that application, and written submissions of no more than five pages in support of that application, by 4.00pm on 20 May 2022; 2. the other party must file and serve any evidence in reply, and written submissions in reply of no more than five pages, by 4.00pm on 10 June 2022; 3. any application for costs will be determined in Chambers, "on the papers"; and 4. in the event that neither party files and serves evidence and submissions in accordance with direction (1), it will be presumed that the parties do not wish to be heard on the question of costs and the proceedings will be closed. Damian Sloan Commissioner ********** Endnotes 1. Kumar Statement, par 25 2. Ladomatos Statement, par 13 3. ibid., Tab K p 73 4. Law Statement, par 15 5. ibid., par 24 6. ibid., par 45 7. Truelove Statement, Exhibit NT-1, Tab 9 8. ibid., Tab 10 9. Jaggi Statement, par 22 10. Biswal Statement, Exhibit NB-1, Tab 39 11. Mitrevski Statement, Tab 2, p 37 12. Andersen Statement, par 59 13. Biswal Statement, par 157 14. Mitrevski Statement, par 26 15. Jaggi Statement, Annexure VJ-29, p 227 16. Loy Statement, Annexure GL-1 17. ibid., Annexure VJ-32 18. Loy Statement, par 9 19. ibid. 20. Biswal Statement, par 38 21. Tcpt, 29 October 2021 pp 120(23)-121(12) 22. ibid., p 122(29)-125(37) 23. Tcpt, 28 October 2021, pp 30(23)-33(34) 24. Biswal Statement, 30 July 2021 25. ibid. 26. Jaggi Statement, Tab VJ-31, p 247; Biswal Statement, Tab 68 27. Biswal Statement 28. ibid. 29. Truelove Statement 30. Holmes Statement, 30 July 2021 31. Biswal Statement, Tab 1A 32. Jaggi Statement, 18 June 2021, Annexure VJ-35 33. Tcpt, 28 October 2021, p 30(7-8) 34. Mr Jaggi's Closing Submissions 35. ibid., par 92 36. ibid. 37. Outline of Respondent's Submissions, 4 August 2021 38. Mr Jaggi's Closing Submissions, par 152 39. ibid., par 168 40. Mitrevski Statement, par 13 41. Biswal Statement 42. Mr Jaggi's Closing Submissions 43. ibid., par 206 44. Mitrevski Statement 45. Tcpt, 29 October 2021, pp 101(5)-102(34) 46. Mr Jaggi's Closing Submissions, par 213 47. Law Statement 48. Andersen Statement, par 87 49. Mitrevski Statement, par 42 50. Biswal Statement, par 198 51. Mr Jaggi's Closing Submissions, par 217 52. Biswal Statement, par 199 53. Loy Statement 54. Tcpt, 28 October 2021, p 10(10-38) 55. ibid., p 30(12-21) 56. ibid., p 35(35-44) 57. Biswal Statement, par 162 58. Andersen Statement, par 100 59. ibid., par 103 60. Kumar Statement, 30 July 2021, par 50 61. Law Statement, par 63 62. Truelove Statement, par 152 63. Paragraphs 62, 88, 145 and 181 Amendments 24 January 2023 - Correction made to cross-referencing in Paragraphs [325] and [329]. 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: 24 January 2023