Semaan v Secretary, Department of Education [2023] NSWIRComm 1040

Industrial Relations Commission New South Wales Medium Neutral Citation: Semaan v Secretary, Department of Education [2023] NSWIRComm 1040 Hearing dates: 2 May 2023 Date of orders: 2 May 2023 Decision date: 02 May 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: 1. The proceedings in the IRC Matter No. 2023/22775 (the Proceedings) shall be stayed temporarily for the lesser of a period of 6 months from the date of this decision (2 May 2023) or the applicant being granted a Working with Children Check Clearance, conditional upon the following undertakings being given by the applicant to the Commission: a. The applicant will discontinue the Proceedings in the IRC Matter No. 2023/22775 if the NSW Civil Administrative Tribunal affirms a decision by the Children's Guardian to refuse (or not grant) the applicant's application for a working with children check clearance; and b. If the applicant is successful in the Proceedings, then any orders sought for lost remuneration will exclude the period between the date on which the stay was granted and the date on which the stay was dissolved. c. The applicant will proceed with his Working with Children Check Application and pursue any administrative review of the Office of Children's Guardian's decision with due dispatch. d. Should the applicant be granted a Working with Children Check Clearance for the volunteer class, he will make an application to upgrade his clearance from a volunteer class to a paid class within 7 days. e. The applicant will notify the respondent of any outcome of his Working with Children Check application or any decision made by the Office of Children's Guardian and NCAT within 7 days of the decision. 2. Notwithstanding Order 1, the respondent can file summonses to produce to third parties whilst the proceedings are stayed. 3. No order as to costs. Catchwords: EMPLOYMENT LAW – Unfair dismissal – Interlocutory proceedings – Order sought to stay application while applicant seeks Working With Children Check clearance – relevant principles to apply – interests of justice – public interest – prejudice to both parties – stay ordered for six months Legislation Cited: Civil Procedure Act 2005 (NSW) s 67 Industrial Relations Act 1996 (NSW) ss 3, 84, 162, 163, 164A Workplace Relations Act 1996 (Cth) Cases Cited: Child Protection (Working with Children) Act 2012 Creighton v NSW Department of Education and Communities [2016] NSWIRComm 1015 Dadley v Fire and Rescue NSW [2020] NSWIRComm 1084 Environmental Group Ltd v Croudace (unreported, Supreme Court, NSW, Santow J, No 1468/98, 7 August 1998) McMahon v Gould (1982) 1 ACLC 98 Sanford v Austin Clothing Company Pty Ltd (2000) S8287 Texts Cited: Nil Category: Procedural rulings Parties: Adam Semaan (applicant) Secretary, Department of Education (respondent) Representation: Adam Semaan (self-represented)