Scott White v Industrial Relations Secretary in respect of Corrective Services NSW (No 2) [2023] NSWIRComm 1100

Industrial Relations Commission New South Wales Medium Neutral Citation: Scott White v Industrial Relations Secretary in respect of Corrective Services NSW (No 2) [2023] NSWIRComm 1100 Hearing dates: 9 October 2023 Date of orders: 9 October 2023 Decision date: 09 October 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: Hearing to proceed in person, as listed. Catchwords: CIVIL PROCEDURE — Hearings — Adjournment or conduct of hearing by AVL Category: Procedural rulings Parties: Applicant: Scott White

Respondent: Industrial Relations Secretary in respect of Corrective Services NSW Representation: Applicant: Mr S White (by AVL)

Respondent: Mr M Foran of Counsel File Number(s): 2022/00045725 Publication restriction: Nil

EX TEMPORE decision 1. The substantive hearing of this application was listed for hearing in person today in Parramatta. The applicant seeks to appear by Audio-Visual Link (AVL), submitting that he has COVID-19 and he would risk infecting others if he appeared in person. 2. The Commission has had an opportunity to consider the matters, the evidence of the applicant, and the submissions of the parties. The Commission has determined to proceed with the hearing today in person. These are the reasons for that decision. 3. This matter was listed for hearing in person for five days beginning today. It has been listed for today since June 2023 and prior to that time was listed for five days in June 2023, which listing was made in February 2023. The arrangements for an in-person hearing in Parramatta have been in place for nine months. 4. Mid last week the applicant sought to adjourn the hearing, or that it be conducted by AVL. The Commission received submissions on Friday morning last week as to adjourning the proceeding, which was the applicant's principal position, or, alternatively, that the matter should proceed by AVL. 5. For reasons given last Friday, the Commission determined that the matter would proceed as listed, in person beginning today. At that time the applicant communicated to the Commission that he would not attend, submitting that the Commission should hear the matter fully, even in his absence. 6. Albeit in submissions made after giving his evidence, the applicant says that, less than 30 minutes after the mention on Friday, he called the Industrial Registrar to ask about accommodation proximate to the Commission in order that he could attend in person today. 7. At 3.15pm last Friday the applicant wrote to the Industrial Registrar by email, advising that he had COVID and setting out a range of matters, including New South Wales Government policy and referring to the fact that the WHO still lists COVID-19 as a deadly pandemic. The tone of that email and his oral evidence is that of a person intent to comply with the New South Wales Government recommendations as to COVID. This is jarringly at odds with the position of the applicant from the time he was directed by his employer to be vaccinated and his conduct of the proceedings. 8. The applicant asks the Commission to accept he has COVID and seeks to avoid risking infecting others when he has, amongst other examples of process and advice ignored, previously denied the existence, severity, infectiousness and dangers of COVID-19. He accepts he has no symptoms and the only evidence the Commission has is his oral evidence. 9. The respondent submitted that there is no supporting evidence such as a picture of a Rapid Antigen Test (RAT) result, proof of the purchase of a RAT by the applicant, nor supporting evidence from any other person that he took the RAT, and it was positive. This is true. There is nothing but Mr White's direct evidence. 10. The respondent also submitted that there is no evidence of the applicant having made any arrangements to travel to Parramatta. This is also true. The most we have is the applicant's submission that he spoke to the Industrial Registrar about proximate accommodation. Taken at its highest, that contact with the Industrial Registrar shows an enquiry. An enquiry about doing the opposite of what the applicant told the Commission he planned to do, just 30 minutes earlier. 11. Tellingly, in cross-examination the applicant repeatedly refused to answer the direct question of whether he accepted that COVID-19 existed, despite being given multiple opportunities to directly answer that question. In the absence of accepting the existence of COVID-19, it is incongruent that the applicant would have tested himself for COVID-19 or see the need to isolate based on the outcome of such a test. 12. The Commission concludes that it is not satisfied that the applicant has COVID-19. There is no supporting evidence to the oral testimony of the applicant. Ordinarily the Commission would accept such evidence unless there is a proper basis to disbelieve that evidence. 13. The Commission has concluded, on the balance of probabilities and taking into account the seriousness of the finding, and the consequences that will flow from that finding, that it does not accept the applicant's evidence. The content of the applicant's email and his oral testimony as to following the New South Wales Government's recommendations are utterly at odds with his position over two years. 14. His refusal to directly answer questions of acceptance of COVID-19's existence leaves little room for doubt that the direct answer would not have been helpful to the applicant. Even his reason for taking the RAT, that he was concerned about infecting other people on public transport, is at odds with his conduct over two years. 15. Accordingly, the Commission does not accept that the applicant has COVID. The applicant, therefore, has no reason not to be in attendance in Parramatta this morning for the conduct of the hearing.