Health Services Union NSW v Secretary of the Ministry of Health (on behalf of NSW Ambulance) [2020] NSWIRComm 1029

Industrial Relations Commission New South Wales Medium Neutral Citation: Health Services Union NSW v Secretary of the Ministry of Health (on behalf of NSW Ambulance) [2020] NSWIRComm 1029 Hearing dates: 16 March 2020 Date of orders: 21 April 2020 Decision date: 21 April 2020 Jurisdiction: Industrial Relations Commission Before: Webster C Decision: Notice of Motion dismissed. Catchwords: INDUSTRIAL DISPUTE – Notice of Motion to dismiss proceedings on the basis that they are frivolous – real questions of fact and law to be determined – Notice of Motion dismissed Legislation Cited: Industrial Relations Act 1996 (NSW) Cases Cited: Peden v Lake Macquarie Refrigeration Pty Ltd [2004] NSWIRComm 66 Rajski v Powell (1987) 11 NSWLR 522 Category: Procedural and other rulings Parties: Health Services Union of NSW (notifier/respondent to the notice of motion)

Secretary of the Ministry of Health (on behalf of NSW Ambulance)(respondent/applicant in the notice of motion) Representation: Olivia Forsyth-Sells of Health Services Union NSW (for the notifier)

Adam Battagello of Lander & Rogers Lawyers (for the respondent) File Number(s): 356685 of 2019 Publication restriction: This judgment has been amended since first published on 21 April 2020 (the Original Judgment). An order has been made to permanently remove the Original Judgement from Caselaw NSW.

Judgment 1. In the Notice of Motion, the Secretary of the Ministry of Health on behalf of NSW Ambulance (the respondent) seeks the dismissal of proceedings commenced by the Health Services Union NSW (the notifier) pursuant to section 162(2)(h) of the Industrial Relations Act 1996 (NSW) (the Act) on the ground that the proceedings are frivolous. 2. The proceedings relate to an application by the notifier seeking that the Commission deal with the following actions of the respondent: 1. a finding that NSW Ambulance staff member Mr Robert Akester engaged in misconduct on 10 April 2018; and 2. the decision to issue Mr Akester a formal warning in response to the finding of misconduct (the application). 1. In the application, the notifier complains that: 1. the disciplinary process applied by the respondent was procedurally unfair to Mr Akester; and 2. the decision to issue Mr Akester with a written warning based on the findings in its disciplinary process was unreasonably harsh in the circumstances. 1. The notifier seeks by way of relief the following: 1. a direction that Mr Akester did not engage in misconduct on the morning of 10 April 2018, and that the respondent rescind the disciplinary action; and 2. a recommendation that the respondent rescind the disciplinary action taken against Mr Akester, on the ground that it was unreasonable and unfair to discipline Mr Akester for his conduct. 1. For the reasons set out in this decision, I have determined that some but not all aspects of the notifier's case against the respondent are frivolous. 2. Accordingly, I have ordered that the Notice of Motion be dismissed.