Industrial Relations Commission New South Wales Medium Neutral Citation: White v Industrial Relations Secretary in respect of Department of Communities and Justice [2023] NSWIRComm 1037 Hearing dates: 12 April 2023 Date of orders: 26 April 2023 Decision date: 26 April 2023 Jurisdiction: Industrial Relations Commission Before: Deputy Industrial Registrar R Delgoda Decision: 1 The Respondent to produce documents in category 16 of the summons to produce, by 5 May 2023. 2 The Respondent has complied with categories 2, 17 and 18 of the summons to produce through the production of documents on 22 February 2023. 3 The Respondent to produce further documents by 5 May 2023, specifically, performance appraisals, if any, of Mr White for the last 1 year of his employment with the Respondent, under Category 7 of the summons to produce. 4 The Respondent to produce by 5 May 2023, any documents relating to the mental health of Mr White held by the Respondent, from 1 June 2021 to 10 February 2023 under Category 8 of the summons to produce. 5 The Respondent to produce by 5 May 2023, any medical reports relating to the mental health of Mr White, obtained, or held by the Respondent, from 1 June 2021 to 10 February 2023 under Category 8 and 10 of the summons to produce. 6 Categories 9 and 11-14 of the summons to produce is set aside. 7 Categories 19-26 of the summons to produce is set aside. 8 Documents may be produced electronically. 9 Liberty to apply for an extension of time to produce the documents. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – summons to produce – need to establish legitimate forensic purpose – apparent relevance to the issues in dispute – setting aside a summons to produce – oppression – documents to be identified with precision Legislation Cited: Industrial Relations Act 1996 ss 84, 89 and 175 Cases Cited: Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145A. Fraser v Industrial Relations Secretary on behalf of the Department of Customer Service (SafeWork NSW) [2021] NSWIRComm 1090. Welch v Commissioner of Police [2023] NSWIRComm 1002. Brasell-Dellow & Ors v State of Queensland (Queensland Police Force & Ors) [2021] QIRC. Tony Azzi (Automobiles) Pty Limited & 3 ors v Volvo Car Australia Pty Limited [2006] NSWSC 283 Davidson v Commissioner of Police (No 3) [2022] NSWIRComm 1102 Texts Cited: NIL Category: Procedural rulings Parties: Scott Richard White (Applicant) Industrial Relations Secretary (Respondent) Representation: Counsel: M Foran (Respondent) Solicitors: A Rogers (Respondent) W Jardine (Respondent) File Number(s): 2022/00045725 Publication restriction: N/A DECISION 1. This is an application by the Industrial Relations Secretary in respect of Department of Communities and Justice (respondent on the substantive matter "the Respondent") seeking certain orders, through a Notice of Motion filed on 27 February 2023 in response to a summons to produce issued on 10 February 2023. The orders sought by the Respondent are firstly to set aside categories 7-14 and 19-26 of the summons to produce and secondly, that categories 2, 17 and 18 of the summons have been complied with through the production of documents on 22 February 2023. 2. The summons for categories 1, 3-6 and 15 have been answered and this is not disputed by Scott White (the applicant in the substantive matter, "Mr White"). In its submissions the Respondent stated that category 16 has also been complied with. However, category 16 has not been included in the index to the documents produced. Mr Foran, Counsel for the Respondent is to obtain instructions. This category remains unanswered. Matters in dispute 1. Categories 2, 17 and 18 of the summons had been fully complied with, though the production of documents on 22 February 2023 is in dispute. Categories 7-14 and 19-26 where documents have not been produced at all are also in dispute. Both parties filed written submissions and I have read both submissions. I will first deal with categories 2,17 and 18 of the Summons and then with the latter categories. Category 2: All correspondence to other DCJ personnel in relation to the applicant 1. The respondent submitted that the applicant's personnel file was produced which contained such correspondence. The Respondent stated that this category was not directed to any issue in the proceedings i.e., there was no apparent relevance to the issues and in addition, that what was sought was so broad, that it was oppressive. 2. In their written submissions, both parties have cited the case of Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145A. In accordance with this case, a party seeking documents must establish a legitimate forensic purpose. This means, the documents sought must have apparent relevance to the issues in the proceedings or have a bearing on cross examination. 3. In Fraser v Industrial Relations Secretary on behalf of the Department of Customer Service (SafeWork NSW) [2021] NSWIRComm 1090, Commissioner O'Sullivan points out that the burden falls on the party seeking the document to precisely show the apparent relevance of the document to the issues in dispute. 4. What are the issues to be determined by the Commissioner? There is quite a disparity between the parties, as to what is to be determined. Mr White advised that the issue was not limited just to his termination but that it was about an "agenda…to damage the population, either to kill them or injure them" and that it was about a crime against humanity. (I will deal with this submission more in detail later). Mr Foran' submission for the Respondent was that the issues were limited to whether the direction for vaccination was lawful and reasonable and whether the decision to terminate was harsh, unjust, or unreasonable. To decide what is in issue (and thereby what documents are relevant), I refer to the claim filed. 5. This is a s 84 application under the Industrial Relations Act 1996 ("the IR Act"). s 84(1) of the IR Act states as follows: S84 Application for remedy by dismissed employee (1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable, or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part. 1. Under a s 84 application, the substantive claim is that the dismissal of the applicant is harsh, unjust, and unreasonable. This is what the Commissioner is required to decide: whether the decision to terminate was harsh, unjust, and unreasonable. In this determination, the Commissioner may consider whether the direction to vaccinate is lawful. See Welch v Commissioner of Police [2023] NSWIRComm 1002 which referred to the case of Brasell-Dellow & Ors v State of Queensland (Queensland Police Force & Ors) [2021] QIRC. The latter case determined that the Commissioner of Police had the power to make directions "to ensure the efficient and proper functioning of the Police Service" and therefore the direction to vaccinate was lawful. Whether the policy or direction is lawful is a statutory test. Whether the decision to terminate Mr White is harsh, unjust or unreasonable would be determined according to facts surrounding his termination. The issues before the Commissioner are therefore limited to whether the direction was lawful and whether the decision to terminate is harsh, unjust, and unreasonable. 2. When seeking documents, in line with Secretary of the Department of Planning, Industry and Environment v Blacktown City Council, the applicant must show that the documents have an apparent relevance to the above issues. 3. In addition, even where a document is relevant to the issues, a summons may set aside on the grounds that it is oppressive. A summons may be found to be oppressive where it is too wide or does not provide the recipient with reasonable degree of particularity the document(s) that need to be produced. See Tony Azzi (Automobiles) Pty Limited & 3 ors v Volvo Car Australia Pty Limited [2006] NSWSC 283 where it was held that the documents must be identified with a degree of precision. 4. Has Mr White identified with precision, what further material he is seeking and if so, are they relevant to the issues in dispute? Mr White indicated that he was not familiar with the process and that is why he may not have identified the documents he is seeking precisely. From what he said during the hearing it appears what he is seeking are the views of anyone "who had an objective view point on …Covid pandemic" besides ATAGI. He clearly stated that the reason he was seeking documents within this category was "to create the larger picture, that this is..a campaign of democidal attack on the population of the planet." 5. In Tony Azzi (Automobiles) Pty Limited & 3 ors v Volvo Car Australia Pty Limited it was held that whether a production of a document imposes an "undue burden" on the extent and the cost of the exercise of identifying the documents to produce. I note the evidence from Ms Katrib through the affidavit sworn on 27 February 2023 that the Respondent only has a small employee relations team, and it does not engage external solicitors on a regular basis. I find that the documents sought are too wide and it would be burdensome when what is sought is not particularised and hence oppressive. 6. In addition, as stated above, this is a s 84 application. If the application was a different application, such as a judicial review application or under criminal law, the wider purpose may have been relevant. The criminal law cases cited by Mr White in his submissions also may have been relevant then, but they are not relevant to the unfair dismissal application filed by Mr White. Category 17: All documents sent to you from DCJ generally and CSNSW re: the safety and efficacy of Covid-19 vaccine 1. Counsel for the respondent offered to do a search of the inbox for Ms O'Brian to determine whether the above documents exist. However, the documents sought must be relevant to the issues identified. Do material containing the efficacy and safety of the Covid-19 vaccine help to determine whether the direction for vaccination is lawful? During the hearing I inquired whether the risk assessment addressed the risk of the vaccination. Mr Foran expressed that the risk assessment did not cover this aspect and nor is the Respondent required to do so. I understand the Respondent's position is that employees were to find out the risks of the vaccination, as it affects each person, through their doctor. 2. To determine whether the information relating to the efficacy and safety of the Covid-19 vaccination was relevant to the issue of whether the direction for vaccination was lawful, I referred to case law. In line with Brasell-Dellow & Ors v State of Queensland above, what is relevant to determining whether the policy is lawful is to determine whether the respondent had the power to make and implement the Covid-19 vaccine Policy. Documents in relation to the safety and efficacy of the Covid-19 vaccine is not relevant to determining whether the respondent had such a power. Nor is a document regarding the safety and efficacy of the vaccine of relevance to determining whether the decision to terminate Mr White was harsh. 3. I note that a risk assessment has been provided by the Respondent. Mr White stated that he believes that the risk assessment is probably "a lie". He also inquired for a follow up risk assessment to determine whether the Respondent had been wrong in its assessment. Mr Foran made submissions that Mr White can cross examine witnesses if he believes that the risk assessment is unreliable. He submitted that it is true that the Respondent has now employed people who are not vaccinated and that the Respondent is entitled to adjust its policies according to changing circumstances. 4. I agree with Counsel's submissions that the policy was implemented with the information or risk assessment available at the time and that a risk assessment after the vaccination policy was implemented is not relevant to the issue of whether the policy was lawful and reasonable at the time it was implemented. I find no further documents within this category are required to determine the issues before the Commissioner. Category 18: Internal Memos/Correspondence re: encouraging/enhancing vaccine uptake with employees 1. The Respondent says that this has been complied with because of documents already produced. I note what has already been produced including Commissioner's instructions regarding the vaccination, all department wide messages from the Secretary and all updates from the Commissioner regarding the vaccination. 2. During the hearing Mr White identified specifically that what he wanted was any document referring to whether an employee would be "blacklisted" throughout the NSW public service if a vaccination was not obtained. He said this was due to a meeting held where Ms O'Brien had informed him that this would be the case. 3. I have reviewed the Message from the Acting Secretary on 18 October 2021 produced by the Respondent. From this message it is apparent that if you did not comply with the mandate to vaccinate, "you would not be able to work" throughout DCJ. 4. Whether you would not be able to work throughout the public service is not relevant to determining whether the vaccination policy implemented by DCJ is lawful and whether the direction is harsh, unjust, or unreasonable. Record of any such meeting is not relevant to the issue before the Commissioner. Documents not produced: Categories 7-14 Category 7: All correspondence regarding the applicant's work performance 1. The respondent submits that Mr White was dismissed for not complying with a direction and that performance is not an issue. I take note that performance is not the basis of the dismissal. I note that there is already in evidence a document showing that an increment in salary that was due, was approved without any deferment (See affidavit of Ms Kabir sworn on 27 February 2023). 2. Mr White says that performance is relevant to reinstatement. While the respondent has objected to reinstatement, under s 89 of the IR Act it is a remedy that needs to be considered by the Commissioner should he find the decision to terminate unlawful or harsh, unjust, or oppressive. 3. Performance of Mr White has an 'apparent' relevance in such an event. I consider performance appraisals of Mr White could be relevant. Category 8: All correspondence regarding the applicant in the respondent's possession 1. During the hearing Mr White specified that the correspondence sought was limited to any correspondence held by the Respondent about any issues raised about his mental health. I will deal with this category along with category 10. Category 9: All information regarding work performance and conduct 1. I have addressed work performance above. About conduct, the Respondent stated that this category was both unclear and oppressive. At the hearing Mr White said that the Respondent is stating that he is unemployable because of his attitude and the documents he wants are ones to prove that he was always timely, that he was never pulled up for not doing his work and documents to prove an attitude of compliance. He stated this was relevant for his reinstatement. 2. The Respondent stated that the general nature of the documents sought was oppressive and Mr White's chances of being reinstated was doomed due to harassing correspondence towards the staff after his termination. 3. Mr White would need to identify with a degree of particularity, what type of document would show what he is seeking. I note that annexure AKI 'Increment progression of salary' attached to the Affidavit of Ms Katrib approves the salary increment based on conduct, punctuality, performance, attendance, and sick leave. This may be sufficient. If there other such documents such as recommendations that Mr White believes exist, he would need to specify such. Otherwise, it is too broad for identification. Category 10: All medical records pertaining to the applicant 1. The Respondent has stated that there is no forensic purpose to this category. Mr White advised that around mid-last year he had been contacted by a representative for the Ministry of Health stating that they have had a report from a person in Corrective Services that he was mentally unstable. He advised that on several occasions, he received calls requesting him to attend Lismore Base hospital/Community Mental Health Unit. Mr White stated that this was relevant to showing that the Respondent was harassing/intimidating him. 2. This is an unfair dismissal application. In determining whether the objection to this category of documents should be upheld or not, I return to the issues to be determined by the Commissioner. The relevant question is firstly is the vaccination policy lawful and are documents raising any issues about the mental health of Mr White relevant to determining this question? In line with case law cited above, the relevant question is whether the Respondent had the power to issue the vaccination policy. Medical reports or correspondence about the mental health of Mr White have no relevance at all to this part. 3. The second question is whether the decision to terminate Mr White is harsh, unjust, or unreasonable. Should the Commissioner make a finding that it was harsh, again under s 89 of the IR Act, the Commissioner may consider reinstatement or re-employment as a remedy. Under s 89(5) of the IR Act, compensation is to be considered a remedy only if reinstatement or re-employment is impracticable. Any medical report or correspondence held by the Respondent, raising any issue about the mental health of the applicant has an 'apparent' relevance to what may be weighed by the Commissioner in determining whether reinstatement or re-employment is impracticable. Category 11: Material Safety Data Sheet: re Covid-19 Vaccine 1. The respondent has objected to producing the above on the basis that there is no legitimate forensic purpose to this category. Counsel for Respondent also submitted that this is for the manufacturer to do not for the business. 2. A safety data sheet, precisely called a Material Data Sheet provides information about the composition of the vaccine, the substances and hazards associated with the substance. Is it relevant to the issues? 3. As before, Mr White advised that his case involved a wider matter of proving that there is a "grand conspiracy to poison the population of the planet with injectable biological/chemical/technological terrorist weapon" and the issues were larger than his termination of employment. It is to prove this wider conspiracy that he needs further correspondence than what was produced and why he wants the Data sheet. He said he has requested the data sheet numerous times without being provided one. I note that Mr White's recent written submissions indicate allegations of a conspiracy and a breach of the Crimes Act 1900. 4. He further stated that he could have made an informed choice if this information had been provided. 5. I refer to the case of Davidson v Commissioner of Police (No 3) [2022] NSWIRComm 1102 where the Commission's jurisdiction under s175 of the IR Act was considered and its limits, where an application under s 84 of the IR Act is brought. The facts of the case are briefly, the appellant commenced employment with the Police force in 2011 as a customer service officer. In 2014 she was placed on temporary contracts in the position of senior accounts manager. She suffered several work-related injuries. The work cover certificates of capacity stated she had capacity to work 5 hours per day/3 days a week. The appellant's case under s 84 of the IR Act was that she should be reinstated to her former position on a part time basis as per the certificate of capacity. It was argued that failure to employ her on this basis constituted a breach of the Workplace Injury Management and Workers Compensation Act 1988. 6. The relevance and significance of this case is that the appellant was pressing for an outcome where, in determining applications under s84 of the IR Act, the Commission must "consider and determine any claim that any other legislative provision has been breached or has not been complied with, by specifically addressing and determining the terms of that legislative provision". 7. Before setting out the deliberations by the Full bench, it is useful to refer to s 175 of the IR Act: "175 Powers of Interpretation The Commission may for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument)." The full bench stated: "Two things should be noted about the Commission's power from the face of the section. Firstly, it is expressly only for the purpose of exercising the functions of the Commission. Secondly, s175 provides that the Commission "may" determine those matters… … A party seeking to have the Commission exercise the power in s175 of the IR Act must establish that it is appropriate, as a matter of discretion, for the Commission to exercise that power." The full bench stated "...The restriction as to purpose means that any determination by the Commission cannot be for the purpose of granting any relief available under an act other than one which vests the Commission with jurisdiction. Whether the Commission should proceed to determine any question concerning the application, interpretation or operation of another law will depend on it being relevant to the purpose… In the current matter, the purpose must be to determine whether the dismissal of the appellant was unfair. The "question" for determination is whether the alleged breach of the "relevant law" rendered the dismissal harsh, unreasonable, or unjust." 1. The point of the above decision to the current case is that the "purpose" of Mr White's claim before the Commissioner must be to determine whether his dismissal was unfair, not whether there is a "conspiracy to poison the population of the planet". The Commission's power under s175 of the IR Act to apply or interpret any law, including the IR Act is limited to its purpose. 2. I can only allow documents relevant to the issue before the Commissioner. The safety data sheet while may be relevant to the wider purpose of proving a conspiracy is not relevant to the decision as to whether the Covid Vaccination Policy is lawful nor in the determination whether termination of Mr White was harsh, unjust, or unreasonable. Category 12: All correspondence with other NSW & Australian Government Departments outside the CSNSW re: applicant 1. In line with case law sited above, the category of documents sought is too broad and onerous. Its relevance is not particularised. Category 13: All official and unofficial/personal correspondence regarding the harm caused by Covid-19 Vaccine and CSNSW vaccine policy 1. I refer to the comments made above with reference to the decision of Davidson v Commissioner of Police. The Commission can only determine on the issue of unfair dismissal and not on a wider purpose of conspiracy as requested by Mr White. Category 14: All contemporaneous notes referencing the Applicant – specifically for the meeting between the Applicant and the Addressee with Balunda-a Councillor Peter Heaven present re: CSNSW vaccine mandate policy 1. Relevance has not been established. Category 19-26 of the summons to produce: Category 19: All documents from the CSNSW Commissioner re: CSNSW vaccine policy Category 20: CSNSW Mask mandate data sheet establishing mask effectiveness Category 21: WHS PPE initial risk assessment & follow up risk assessments re: COVID-19 policy Category 22: All documents and data regarding DCJ 'Exceptional Circumstances' panel & numbers for how many employees applied & how many were granted 'Exceptional Circumstances' Category 23: CSNSW report/s of effectiveness of CSNSW vaccine mandate policy Category 24: All documents regarding injuries/illness/sick days of CSNSW employees pre and post-Covid-19 vaccination mandate policy Category 25: Correspondence from other CSNSW employees regarding CSNSW vaccine mandate policy & enforcement Category 26: All financial records regarding expenditure/cost to the operating of Balunda-a enforcing the CSNSW vaccine mandate policy 1. In line with Davidson v Commissioner of Police, the "purpose" of Mr White's claim before the Commissioner must be to determine whether his dismissal was unfair, not the wider purpose of a conspiracy as stated by Mr White. 2. Mr White has not established the relevance of the documents sought to the issues to be determined. orders I make the following orders: 1. The Respondent to produce documents in category 16 of the summons to produce by 5 May 2023. 2. The Respondent has complied with categories 2, 17 and 18 of the summons to produce through the production of documents on 22 February 2023. 3. The Respondent to produce further documents by 5 May 2023, specifically, performance appraisals, if any, of Mr White for the last 1 year of his employment with the Respondent, under Category 7 of the summons to produce. 4. The Respondent to produce by 5 May 2023, any documents relating to the mental health of Mr White held by the Respondent, from 1 June 2021 to 10 February 2023 under Category 8 of the summons to produce. 5. The Respondent to produce by 5 May 2023, any medical reports relating to the mental health of Mr White, obtained or held by the Respondent, from 1 June 2021 to 10 February 2023 under Category 10 of the summons to produce. 6. Categories 9 and 11-14 of the summons to produce is set aside. 7. Categories 19-26 of the summons to produce is set aside. 8. Documents may be produced electronically. 9. Liberty to apply for an extension of time to produce the documents. Ruwinie Delgoda Deputy Registrar ********** Amendments 28 April 2023 – 1. Typographical corrections made to Order 1. Date of compliance changed from 1 May 2023 to 5 May 2023. 2. Typographical correction made to Paragraph [30]. 3. Additional Paragraph included for Category 14 of the summons to produce. 4. Names of Categories for Categories 19-26 of the summons to produce, added. Amendments 26 April 2023 - Minor correction to Cover Sheet. 28 April 2023 - 28 April 2023 – 1. Typographical corrections made to Order 1. Date of compliance changed from 1 May 2023 to 5 May 2023. 2. Typographical correction made to Paragraph [30]. 3. Additional Paragraph included for Category 14 of the summons to produce. 4. Names of Categories for Categories 19-26 of the summons to produce, added. 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: 28 April 2023