Dietz v Health Secretary in respect of the Nepean Blue Mountains Local Health District (No 2) [2023] NSWIRComm 1063

Industrial Relations Commission New South Wales Medium Neutral Citation: Dietz v Health Secretary in respect of the Nepean Blue Mountains Local Health District (No 2) [2023] NSWIRComm 1063 Hearing dates: 6 June 2023 Date of orders: 23 June 2023 Decision date: 23 June 2023 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan and Commissioner Muir Decision: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The decision of Commissioner O'Sullivan of 29 November 2022, that the application in matter 2021/00288596 be dismissed, is quashed. (4) The Health Secretary's notice of motion in matter 2021/00288596, filed on 29 November 2021, is dismissed. (5) The file in matter 2021/00288596 will be returned to Commissioner O'Sullivan for determination in accordance with this decision Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal against decision dismissing unfair dismissal application – whether Commissioner at first instance erred in upholding notice of motion asserting res judicata, cause of action estoppel, issue estoppel and abuse of process – whether Commissioner erred in finding that earlier proceedings had determined the identical issue requiring determination in proceedings before him Legislation Cited: Industrial Relations Act 1996 ss 84, 87, 89, 188, 191 Interpretation Act 1987 s 9 Cases Cited: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Anor v Sunset Power International Pty Ltd trading as Delta Electricity [2018] NSWIRComm 1072 Dietz v Health Secretary in respect of Nepean Blue Mountains Local Health District [2022] NSWIRComm 1107 Hans Peter Dietz v Secretary, Ministry of Health in respect of Nepean Blue Mountains Local Health District [2021] NSWIRComm 1068 Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263; [2005] NSWIRComm 409 Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (2022) 320 IR 249; [2022] NSWSC 1178 Texts Cited: Nil Category: Principal judgment Parties: Hans Peter Dietz (Appellant) Health Secretary (Respondent) Representation: Counsel: J Wherrett (Appellant) D Villa SC (Respondent)