Moore v Secretary, Ministry of Health on behalf Northern New South Wales Local Health District [2020] NSWIRComm 1013

Industrial Relations Commission New South Wales Medium Neutral Citation: Moore v Secretary, Ministry of Health on behalf Northern New South Wales Local Health District [2020] NSWIRComm 1013 Hearing dates: 26 February 2020 Date of orders: 28 February 2020 Decision date: 28 February 2020 Jurisdiction: Industrial Relations Commission Before: Commissioner Webster Decision: 1. The application made by Mitchell Moore is accepted.

2. The matter is listed for directions at 2 pm on 4 March 2020. Catchwords: UNFAIR DISMISSAL – jurisdictional objection – whether applicant resigned or was dismissed – evidence inconsistent with intention to resign – employee found to have been dismissed Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: Allison v Bega Valley Council (1995) 63 IR 68 Gunnedah Shire Council v Grout (1995) 62 IR 150 Kelleher and Wagga Wagga Base Hospital [2004] NSWIRComm 187 Richie Robles v Health Secretary in respect of Western Sydney Local Health District [2019] NSWIRComm 1028 Category: Procedural and other rulings Parties: Mitchell Moore (applicant)

Secretary, Minister of Health in respect of Northern New South Wales Local Health District (respondent) Representation: L Maroney of the Health Service Union (applicant)

K Bowden of the respondent (respondent) File Number(s): 2019/339496

Judgment 1. Mitchell Moore was employed by the respondent as a Health and Security Assistant (HASA) at Kyogle Multi-Purpose Health Service (the Health facility). The Health facility falls under the auspices of the Northern New South Wales Local Health District, which in turn forms part of the New South Wales Ministry of Health. 2. On 22 October 2019 Mr Moore filed with the industrial registry an application for relief in relation to an unfair dismissal ("Application") pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ("Act"). In the Application Mr Moore says that he was dismissed on 8 October 2019. 3. When this matter was before the Commission for conciliation the respondent raised a jurisdictional objection to the Application. It contended that Mr Moore had resigned his employment by way of email on 6 October 2019 giving two weeks' notice and that the respondent had accepted his resignation. 4. This decision determines the jurisdictional objection which has been raised by the respondent, namely, whether Mr Moore resigned his employment or if his employment was terminated at the initiative of the respondent. The matter will only proceed if the Commission finds that Mr Moore did not resign his employment. 5. The hearing of the respondent's objection took place on 26 February 2020. Mr Moore was represented by Mr Maroney of the Health Services Union (HSU) while the respondent was represented by Ms Bowden. 6. Mr Moore relied upon evidence contained in a statement by him filed with the Commission on 6 January 2020. He also relied upon the evidence of Mr Peter Kelly, an Organiser employed by the HSU contained in a statement filed on the same date. 7. The respondent relied upon the evidence of Ms Nancy Martin, Executive Officer/Director of Nursing of Multi-Purpose Services of the respondent. 8. All three witnesses were the subject to cross-examination. 9. Both parties filed and relied upon written submissions and gave oral submissions at the hearing. 10. For the reasons set out in this decision, I have determined that the employment of Mr Moore was terminated at the initiative of the respondent.