Lambert v Secretary, Ministry of Health in respect of Hunter New England Local Health District [2023] NSWIRComm 1005

Industrial Relations Commission New South Wales Medium Neutral Citation: Lambert v Secretary, Ministry of Health in respect of Hunter New England Local Health District [2023] NSWIRComm 1005 Hearing dates: 18 January 2023 Date of orders: 18 January 2023 Decision date: 18 January 2023 Jurisdiction: Industrial Relations Commission Before: Acting Industrial Registrar Delgoda Decision: Notice of Motion to set aside the Summons for Production is dismissed. The applicant to produce documents under Schedule 2 category 2 of the Summons to Produce. Category 1 and 3 of Schedule 2 to the Summons has been satisfied by the applicant. Catchwords: Nil Legislation Cited: Privacy Act 1988 and Industrial Relations Act 1996 Cases Cited: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Texts Cited: Nil Category: Procedural rulings Parties: Mr Lambert (Applicant)

Secretary, Ministry of Health in respect in respect of Hunter New England and Local Health District. (Respondent) Representation: Mr Lambert for himself: Counsel: N/A

B Edgehill Solicitors: Sparke Helmore Lawyers File Number(s): 2021/00364705

EX TEMPORE DECISION 1. This is an application by the applicant, Mr Lambert, to set aside a Summons for Production, issued by the respondent to the applicant on 12 December 2022. 2. The background to this matter is that Mr Lambert filed an unfair dismissal application under the Industrial Relations Act on 23 December 2021. He claimed that he was placed on no pay leave from September 2021, when he ought to have been placed on leave with pay. He claimed that he should have been put on eight weeks' pay. In the application for the unfair dismissal, he also claimed compensation as an order for the decision of his employer, being harsh, unreasonable, and unjust. 3. The documents sought under the summons basically fall under three categories. They are any applications made for work by Mr Lambert from 23 September 2021 and any responses he might have had from potential employers, any bank statements, any documents reflecting any pay he might have received from other employers, and finally documents in relation to wages that he might have received in respect of work carried out from 21 September 2021 to date. 4. Mr Lambert filed written submissions on 10 January 2023 and the respondent filed submissions on 13 January 2023, in accordance with directions and I am appreciative that both parties have accommodated the Commission and attended via teleconference, so that any oral submissions could be made, and any clarifications could be provided to the Acting Registrar today. 5. Regarding the summons, the submissions made by Mr Lambert with respect to the documents sought in respect of applications, resume, etc (category 1 of Schedule 2), he has provided that no such documents exist, mainly because any applications were made orally. I consider that the summons has been answered by Mr Lambert in respect of this request. 6. I also note that Mr Lambert's submissions were that in respect of Category 3, payslips wage records, etc, that no such documents exist and again, I consider that the documents in relation to category 3 of Schedule 2 of the Summons has also been answered by Mr Lambert and I do not believe any further documents need to be provided for the summons. 7. Mr Lambert has stated that he is willing to provide any documents to the Commission, however, he is not happy to provide these to the respondent because of privacy concerns. His claim is basically that access to providing financial statements is a breach of his privacy. 8. In the Notice of Motion, Mr Lambert is basically seeking orders to set aside the summons. 9. With respect to the financial transactions and bank statements, the applicable principles or test to determine whether a summons should be set aside, are basically provided in caselaw. The test for determining whether a summons to produce should be set aside is whether the documents sought have any legitimate forensic purpose. That is basically, whether the document sought is relevant for this matter and for the issues raised. 10. In considering this matter, the relief sought is a determination as to whether the applicant was correctly placed on leave without pay and whether any compensation should be paid in relation to the decision made by the employer to dismiss Mr Lambert. 11. I would like to say first, that throughout this Notice of Motion, and from the time that submissions were provided, Mr Lambert has always been willing to provide these documents to the Commission. His main concern has been that his privacy has been affected, so I appreciate that Mr Lambert has been, throughout the proceedings, wanting to be co-operative and there was no unwillingness to produce these documents to the Commission. 12. Regarding privacy, I also would like to mention that Mr Lambert raised concerns about how the summons was served. While service was done properly, I do note that again concerns in relation to privacy was raised because the summons was not put in an envelope. It is not required that the document be placed in an envelope, however it is a consideration for parties in future to consider what is appropriate when serving documents and having consideration for the privacy of parties. 13. While I appreciate that Mr Lambert has shown that he is willing to co-operate with the Commission, I believe that in addition to the privacy concerns, Mr Lambert has not provided these documents to the respondent, mostly because he has not been familiar with how the Commission operates. The Commission would not be deciding whether the decision to terminate the applicant was harsh, separately to the issue of compensation on the 30th ( of January). When the Commissioner hears the matter, basically he will need all the information that is required, for him to decide as to whether the (unfair dismissal) application made by Mr Lambert should be upheld or not and whether his employer's decision was harsh or unreasonable and at the same time, the Commissioner would consider the appropriate remedy and the orders sought by the applicant. 14. For this reason, I hold that the information sought by the respondent in relation to payslips, in relation to the financial information sought, in schedule 2, category 2 is relevant. 15. Mr Lambert has also raised the Privacy Act and he has referred to Part 2 of the Privacy Act to say that he does not consider that he must comply with the summons because it is in contravention of the rights prescribed by the Privacy Act. I have had regard to s 3 of this Act, with respect to collection of information. I am of the view that the summons has been served under the Industrial Relations Act 1996 and this Act overrides the privacy considerations stated in the Privacy Act. 16. Therefore, my orders are that the Notice of Motion be dismissed and that the documents under Schedule 2(2), be produced by the applicant. R. DELGODA ACTING INDUSTRIAL REGISTRAR