Industrial Relations Commission New South Wales Medium Neutral Citation: Westaway v Health Secretary in respect of Northern Sydney Local Health District [2024] NSWIRComm 1021 Hearing dates: 27 March 2024 Date of orders: 27 March 2024 Decision date: 27 March 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: In matters 2024/96239 and 2024/96535: (1) neither the Health Secretary nor the Northern Sydney Local Health District are to dismiss Denys Westaway for the reasons set out in a letter dated 23 February 2024 from Simon Hill to Denys Westaway pending the hearing and determination of the proceedings; and (2) the name of the respondent be amended to Health Secretary in respect of Northern Sydney Local Health District and that the name of the proceedings be amended accordingly. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Termination — Statutory rights — Unfair dismissal — Threatened dismissal EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Injunctions Legislation Cited: Industrial Relations Act 1996 ss210, 213 Cases Cited: Perry Janssen v Health Secretary (in respect of South Western Sydney Local Health District) [2018] NSWIRComm 1042 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woefl v Department of Attorney-General and Justice, Corrections, Corrective Services New South Wales [2012] NSWIRComm 33 Silsbury v Health Secretary in respect of Western Sydney Local Health District [2021] NSWIRComm 1004 Category: Procedural rulings Parties: Denys Westaway (Applicant) Health Secretary in respect of Northern Sydney Local Health District (Respondent) Representation: J Joshi (Health Services Union NSW) with J McDonald (Health Services Union NSW) (Applicant) A Herning (Northern Sydney Local Health District) with B Wawrzyk (Northern Sydney Local Health District) (Respondent) File Number(s): 2024/96239 & 2024/96535 Publication restriction: Nil EX TEMPORE decision 1. Denys Westaway has two applications before the Industrial Relations Commission of New South Wales (Commission). One is an unfair dismissal application which, in substance, is an application in relation to what he says is a threatened dismissal. He has also filed an application for relief from victimisation pursuant to s 213 of the Industrial Relations Act 1996 (IR Act). 2. Neither matter has been conciliated. 3. Originally in the s 213 application, but this morning, by leave, in both matters, on his behalf the Health Services Union seeks an order to the effect that Mr Westaway not be dismissed until the hearing of his applications. Is there a threat of dismissal or of victimisation? 1. In support of his original application for relief from alleged victimisation, Mr Westaway filed an affidavit which is marked as A2 in these proceedings. In that affidavit he sets out at a very high-level allegations that the disciplinary procedure to which he has been subjected arises because of union activity, membership or assertion of other rights in the workplace which, on their face, would be protected by s 210 of the IR Act. He also denies that certain of the conduct of which he is accused which may lead to his dismissal has been engaged in by him. 2. It is clear from Mr Westaway's evidence that Mr Simon Hill, who from a letter of 23 February 2024 appears to be the chief executive of the hospital at which Mr Westaway works as part of the Northern Sydney Local Health District, has set out that Mr Hill proposes to recommend to the chief executive of the local health district that Mr Westaway be dismissed. 3. On its face, I am satisfied that that is a threat of dismissal. 4. The applicant has referred the Commission to the matter of Silsbury v Health Secretary in respect of Western Sydney Local Health District [2021] NSWIRComm 1004. At [16] of Silsbury, the Commissioner reached the same conclusion in relation to a very similar matter in which the person without the power to make the final decision proposed to make a recommendation for dismissal. 5. In any event, I think it speaks for itself as a threat of dismissal. It is clearly portended in the letter of Mr Hill, and I quote from Mr Hill's letter on p 3 of his letter set out in the affidavit of Mr Westaway in support of his original application: "… I have serious concerns pertaining to your continual workplace behaviours. Therefore, I am proposing to recommend that the Chief Executive terminate your employment contract with NSLHD accordingly. … you have the opportunity to respond to current misconduct report and my proposed disciplinary action to show cause why your employment contract with NSLHD should not be terminated …" 1. I am satisfied that there is a threat of dismissal. 2. That, of course, would constitute, on its face, a detriment which could constitute victimisation pursuant to s 210 of the IR Act. Power of the Commission to make interim orders 1. I referred the parties to a decision of Boland J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woefl v Department of Attorney-General and Justice, Corrections, Corrective Services New South Wales [2012] NSWIRComm 33 in which Boland J considered the power of the Commission to make an interim order and concluded that it clearly does and says that there are two tests to be applied. At para 34 of his decision Boland P says: "[34] Thus, the two tests to be applied are: (i) whether there is a sufficient likelihood of success by the three officers to justify in the circumstances the preservation of the status quo pending the final hearing, status quo in this case being understood to be the suspension of the three officers on pay; (ii) whether the inconvenience or injury which the three officers would be likely to suffer if their interlocutory applications were refused outweighs or is outweighed by the injury which the respondent would suffer if the applications were granted. The second test may be referred to as the balance of convenience test." 1. I observe that the learned President had found that the question of irreparable damage was a matter to be considered within the second test and not as a separate test. 2. I have had an opportunity to review a decision of Kite CC Perry Janssen v Health Secretary (in respect of South Western Sydney Local Health District) [2018] NSWIRComm 1042 at [30] where Kite CC concludes that Boland's J decision in Woelfl is unaffected by the changes to the Commission after the decision in Woelfl. Application of legal tests to current applications Prima facie cases 1. I therefore proceed to determine whether, on the material before me, there is a prima facie case. 2. I turn first to the unfair dismissal application. 3. I have some reservations that the material set out by the applicant rises to the level necessary to establish a prima facie case. However, as the applicant submitted, there is a denial by him that he has engaged in the conduct. There is a question as to whether the conduct rises to the level to warrant dismissal and, accordingly, on balance, conclude that there is a prima facie case. 4. I am reinforced in this outcome because the respondent will allege in defending any dismissal that the applicant engaged in misconduct, and it will be a matter for the respondent to prove to the Commission's satisfaction that the misconduct in fact occurred. 5. Turning to the s 213 application, I am satisfied that there is a prime facie case and largely that is because, whilst many of the assertions as to the improper motive which the applicant ascribes to the respondent's conduct are put at a very high level, fundamentally applications under s 213 do not require the applicant to prove the conduct was for the prohibited reasons but, rather, to assert on a rational basis that a detriment has been suffered and it is because of a prohibited reason. At that point the onus shifts to the respondent to establish that the conduct did not occur for a reason that was prohibited, being a substantial and operative cause of the respondent's action. 6. I have no evidence from anyone who could constitute a decisionmaker at any level at the respondent and, therefore, if the evidence were left where it sits now, it is almost inevitable that the applicant would succeed. 7. Accordingly, in both proceedings I find that there is a prima facie case established by the applicant. Balance of Convenience 1. The applicant filed an affidavit setting out financial difficulties which he would suffer if he was dismissed and asserted that there was a risk he would lose his house as he would be unable to make mortgage payments and had other costs which he would be unable to meet if he was dismissed and had to seek reinstatement and compensation by way of backpay. This evidence from the applicant was unchallenged and, indeed, no questions were asked of the applicant by the respondent of these matters. 2. The applicant's evidence as to the loss which will be suffered by him and the basis on which these losses are asserted likely make out a basis on which he will suffer a loss which cannot be compensated by reinstatement and backpay. The evidence led by the applicant as to his expenses was thin and did not include any evidence as to income earned by him and his wife, but I note that this was not challenged by the respondent or tested in any way. 3. One other matter is relevant in favour of the applicant, being that at no point has he been suspended and, therefore, it might be understood that the respondent is content to have the applicant in its workplace performing work and being paid whilst it works through its processes. 4. There is, contrary to the submission of the applicant, some detriment or inconvenience to the respondent in being unable to complete its disciplinary processes and having to keep in its employ a person who it asserts, and it has concluded this, who it asserts has engaged in serious misconduct, but this must be balanced against the more serious loss which the applicant would suffer. 5. Accordingly, on the balance of convenience, I find that it would be appropriate to make the orders sought by the applicant. Orders 1. The Commission orders that in matters 2024/96239 and 2024/96535: 1. neither the Health Secretary nor the Northern Sydney Local Health District are to dismiss Denys Westaway for the reasons set out in a letter dated 23 February 2024 from Simon Hill to Denys Westaway pending the hearing and determination of the proceedings; and 2. the name of the respondent be amended to Health Secretary in respect of Northern Sydney Local Health District and that the name of the proceedings be amended accordingly. C Muir Commissioner ********** 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 March 2024