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. Background 1. The Agreed Statement of Facts filed 5 March 2020 (the Agreed Statement of Facts) sets out the relevant background to this matter: Exhibit R3. Relevantly, it provides: "3. On 9 April 2018, between approximately 4:45 pm and 5:50 pm, Mr Akester, then Acting Deputy Director of Clinical Operations, together with Duty Operations Manager Michael O'Connor, called Paramedic Anthony Jenkins into a meeting at sector office, Tighes Hill, to discuss the apparent tampering of Fentanyl vials which had been identified that day at several ambulance stations in the Hunter/New England district (Meeting). 4. Mr Jenkins and Paramedic Peter Fisher were met at the Sector Office by DOM O'Connor and A/DDCO Akester at 4:45pm and asked to attend the meeting. Paramedic Fisher offered to join Mr. Jenkins in the meeting but Mr Jenkins declined the offer. 5. At the conclusion of the Meeting, Mr Akester drove Mr Jenkins to his personal vehicle, located at Belmont Ambulance Station and parted ways with Mr Jenkins. 6. Mr Akester subsequently met with Mr Fisher and relieved him of the remainder of his shift. Mr Akester then rang Inspector Shane Harris, who was the Duty Manager for the evening, to inform him that Mr Fisher was being removed. Mr Akester then gave Mr Fisher a lift back to his personal vehicle at Birmingham Gardens Ambulance Station. 7. In the early morning of 10 April 2018, Sharon Jenkins, Mr Jenkins' wife, reported her husband missing to the NSW Police. 8. At around 3:32 am, NSW Police contacted Inspector Shane Harris of NSW Ambulance, and informed Mr Harris that Mr Jenkins had been reported missing. 9. Mr Harris subsequently contacted Paramedic Paul Robertson, following which Mr Robertson personally commenced a search for Mr Jenkins. 10. At around 4:26 am, Mr Akester called Mr Harris. 11. Mr Akester, Mr Harris and Mr Robertson were among those of the Respondent's staff members who subsequently took part in the search for Mr Jenkins. 12. At approximately 5:18 am on 10 April 2018, Mr Jenkins was located deceased as a result of an apparent suicide. Mr Akester, together with Mr O'Connor, attended the site where Mr Jenkins was located and identified the body found as that of Mr Jenkins. 13. At approximately 7:15 am, Mr Akester attended the Jenkins family home, where Mr Robertson was already present. A conversation ensued between the two parties on the driveway. 14. Also present at the Jenkins family home at this time was Mr O'Connor and Mr Shane Connell, Mr Jenkins' nephew. 15. The Ministry of Health engaged Ms Kylie Nomchong SC to undertake an investigation into concerns raised by Mrs Jenkins, with Ms Nomchong SC subsequently producing a written report assessing the conduct of staff members, including Mr Akester: (a) during the meeting with Mr Jenkins; (b) during the search for Mr Jenkins; and (c) following confirmation of Mr Jenkins' death (Nomchong Report). 16. In the Nomchong Report, Ms Nomchong SC makes observations regarding a number of apparent disclosures made by Mr Akester to a number of individuals during the search for Mr Jenkins and following confirmation of his death. 17. On receipt of the Nomchong Report, the Respondent undertook a disciplinary process with respect to Mr Akester. 18. While the disciplinary process resulted in a number of allegations being put to Mr Akester, it has never been suggested by the Respondent that Mr Akester in any way bore blame for the death of Mr Jenkins. The Respondent's disciplinary process 19. Ms Kalena Smitham, Executive Director People & Culture, was appointed by the Respondent to: (a) put allegations to Mr Akester arising from the Nomchong Report; (b) consider any responses to the allegations provided by Mr Akester; (c) make a factual determination as to whether each allegation was or was not substantiated; and (d) consider any appropriate disciplinary action in circumstances where allegations against Mr Akester were found to be substantiated. 20. On 18 January 2019, the Respondent provided a letter of allegations to Mr Akester (Letter of Allegations)…. 21. Mr Akester was also provided a copy of the Nomchong Report with the Letter of Allegations. The Nomchong Report provided was redacted to show only the findings made by Ms Nomchong SC as they related to Mr Akester. 22. On 31 January 2019, Mr Akester provided a written response to the Letter of Allegations…. 23. On 7 May 2019, the Respondent provided a letter of its preliminary findings to Mr Akester (Letter of Preliminary Findings)….The Letter of Findings indicated that Ms Smitham had formed the following preliminary view of the Allegations on the material available to her: (a) Allegation 1 was not substantiated; (b) Allegation 2.1 was not substantiated; (c) Allegation 2.2 was substantiated; (d) Allegation 2.3 was substantiated; (e) Allegation 2.4 (a) - (b) was substantiated; and (f) Allegation 2.4 (c) was not substantiated. 24. The Letter of Findings also indicated that Ms Smitham's preliminary view that the severest possible penalty being considered was a formal warning. 25. On 15 May 2019, Mr Akester provided a written response to the Letter of Preliminary Findings…. 26. On 30 May 2019, at Mr Akester's request, Ms Smitham met with Mr Akester and his personal representative to discuss Ms Smitham's preliminary view of the Allegations and appropriate disciplinary action, and to allow Mr Akester to respond. 27. On 5 June 2019, a letter confirming Ms Smitham's final decision with respect to the Allegations and Disciplinary Outcome was provided to Mr Akester (Final Decision Letter)….The Final Decision Letter confirmed Ms Smitham's findings as follows: (a) Allegation 1 was not substantiated; (b) Allegation 2.1 was not substantiated; (c) Allegation 2.2 was substantiated; (d) Allegation 2.3 (a), (d) and (f) were substantiated; (e) Allegation 2.3 (b), (c) and (e) were not substantiated; and (f) Allegation 2.4 was not substantiated. 1. The final written allegations that were substantiated related to alleged conversations Mr Akester had on 10 April 2018 with Inspector Shane Harris and Paramedic Paul Robertson as follows: Allegation 2.2 2. On 10 April 2018, Mr Akester disclosed the following information to Inspector Shane Harris: (a) Mr Jenkins had confessed to taking the Fentanyl and using it; (b) Mr Jenkins appeared to be quite relieved at having been caught; and (c) Mr Jenkins said he was at peace with the fact that it was out in the open. Allegation 2.3 (a), (d) and (f) On 10 April 2018, Mr Akester disclosed the following information to Paramedic Paul Robertson: (a) there had been an issue with Mr Jenkins and Fentanyl; ……. (d) Mr Jenkins had admitted to long term drug use; and ……. (f) REDACTED. 1. The Agreed Statement of Facts continues: 28. Also on 5 June 2019, the Respondent issued Mr Akester with a formal warning in response to the substantiated findings. 29. On 6 June 2019, the Respondent provided a letter to Mrs Jenkins detailing, without naming specific staff members, outcomes of the Nomchong Report and its internal disciplinary process…. 30. Mr. Akester first raised his concerns of Ms. Smitham as decision maker in response to the Respondent's final decision (Response to Final Decision) provided by Mr Akester on 12 September 2019…. 31. In the Response to Final Decision, Mr Akester submitted: (a) in respect of allegation 2.3(a), that this was a breach by Mr Harris; (b) in respect of allegation 2.3(d), that this was a breach by Mr Harris; and (c) in respect of allegation 2.3(f), that the discussion was initiated by Mr Robertson and REDACTED. (References to annexures are omitted) Evidence and submissions The notifier's evidence and submissions in respect of the substantive matter 1. In accordance with the directions issued by the Commission on 24 December 2019, on 29 January 2020, the notifier filed an served the following material: 1. a statement of Mr Robert Akester, signed 24 January 2020, with annexures RA-1 through RA-10 (admitted as Exhibit A1 in the Notice of Motion proceedings); 2. a tender bundle of documents 8-1 through 8-8 and accompanying index; and 3. an Outline of Submissions including a schedule of relief sought by the notifier (Notifier's Outline of Submissions). 1. It is necessary to consider the notifier's case as set out in the Notifier's Outline of Submissions in the substantive matter in determining the Notice of Motion. In summary, the notifier contends, broadly, that there are a number of reasons why the relief sought should be granted by the Commission, namely: 1. Mr Akester was denied procedural fairness in the disciplinary process adopted by the respondent which led to the issuing of a formal warning to him (the denial of procedural fairness argument); 2. The findings or a written warning was not open to or reasonably concluded by the respondent on the material available as: 1. Clause 4.5.1 of the NSW Health Code of Conduct does not apply to correspondence between employees; and 2. Allegations 2.2 and 2.3 (a),(d) and (f) do not amount to a breach of confidentiality as described in clauses 4.5.3 and 4.5.4 of the Code of Conduct or misconduct as described in the NSW Health Managing Misconduct Policy (the Managing Misconduct Policy). 1. The decision to issue a disciplinary action by way of a written warning was unfair, harsh and unjust as it was disproportionate to the alleged conduct. 1. The notifier submits that Mr Akester was denied procedural fairness on the basis that: 1. the respondent breached Mr Akester's privacy when: 1. the respondent released Mr Akester's confidential file note to Mrs Jenkins against Mr Akester's consent; 2. the respondent advised Mrs Jenkins that the manager who called for the meeting with Mr Jenkins (Mr Akester) on 9 April 2018 had been disciplined without Mr Akester's consent; and 3. the respondent provided Mrs Jenkins with the Nomchong Report; 1. the respondent failed to adhere to the Managing Misconduct Policy; and 2. the decision maker, Ms Smitham was "prejudiced" and that Ms Smitham: 1. acted as a support person during the investigation conducted by Kylie Nomchong SC for a superior Chief Executive Dr Dominic Morgan and had intimate knowledge of his disclosures during the investigation; 2. did not consider the extenuating circumstances in which the alleged misconduct occurred when determining the appropriate disciplinary action; 3. was likely to be aware of Ms Jenkins' campaign against Mr Akester, inhibiting her capacity to act impartially and objectively; and 4. could not act objectively or impartially as she was prejudiced to the content and potentially her superiors preferred outcome of the investigation. 1. The notifier continued to rely upon these arguments in the Notice of Motion proceedings. The respondent's evidence and submissions with respect to the Notice of Motion 1. The respondent relied upon their written submission filed 13 March 2020 and delivered oral submissions before the Commission in the Notice of Motion. 2. In addition to the Agreed Statement of Facts, the respondent relied upon the following evidence in support of the Notice of Motion: 1. Affidavit of Adam Battagello filed 13 February 2020 (Exhibit R1); 2. NSW Police Force Witness Statement of Robert Akester filed 13 March 2020 (Exhibit R2); and 3. NSW Health Code of Conduct (Exhibit R4). 1. In summary, the respondent submitted that the notifier's case is one which: 1. on its face, cannot possibly succeed; and 2. further, is manifestly groundless, such that the Commission should regard the proceedings as frivolous. 1. The respondent argued that Mr Akester was not denied procedural fairness, and to the contrary, was subjected to a robust disciplinary process. 2. With respect to the alleged breaches of confidentiality, the respondent submitted that there was not a factual basis upon which the argument could be advanced and that in any event, there is no demonstrated link between Mr Akester's right to confidentiality and the procedural fairness of the process adopted by the respondent in reaching the final decision to issue a formal warning. 3. The respondent further argued that there was no evidence put forward from the notifier to support the assertions that Ms Smitham was "prejudiced" in her decision making. 4. With respect to the argument that the outcome was unfair because Mr Akester did not engage in misconduct, the respondent argued, in summary: 1. The notifier's interpretation of clause 4.5.1 of the NSW Health Code of Conduct should be rejected; and 2. In any event, the notifier is unable to dispute the factual findings regarding the conversation he had with Inspector Harris and Paramedic Robertson which are the subject of the substantiated allegations as he has not fully addressed those matters in his evidence. The notifier's evidence and submissions with respect to the Notice of Motion 1. The notifier relied upon their written submissions filed on 10 March 2020 and delivered oral submissions before the Commission with respect to the Notice of Motion. 2. In addition to the Agreed Statement of Facts, the notifier relied upon the statement of Mr Robert Akester dated 24 January 2020 (Exhibit A1) in the Notice of Motion. 3. At the hearing of the Notice of Motion, the notifier sought to tender a further statement of Mr Robert Akester signed 13 March 2020 that had been filed with the Commission on the morning of the hearing, 16 March 2020 (the second Akester statement). The respondent objected to the notifier tendering the second Akester statement on the basis that it merely sought to "plug the holes" identified in the Notice of Motion. The notifier argued that it consolidated the information contained in other material relied upon, however, stated it would not seek to tender the second Akester statement if the respondent was prejudiced by it. The second Akester statement was not tendered into evidence by the Commission on that basis. 4. In summary, the notifier resisted the Notice of Motion, submitting that numerous claims made by the respondent are correctly matters of fact and/or law which admit grounds for an arbitrated industrial dispute noting that the dispute pertains to two questions, namely: 1. Whether the disciplinary process was procedurally fair to Mr Akester; and 2. Whether the decision to issue Mr Akester with a written warning was unreasonably harsh, unfair and unreasonable in the circumstances. 1. With respect to the respondent's submissions relating to the notifier's claim that there has been a denial of procedural fairness, the notifier's response was brief and lacked detail. The notifier submitted at [15]-[18] of their written submissions in the Notice of Motion: In the Notice of Motion at [8] the Respondent claims that the Applicant has not provided enough evidence to satisfy the claim of a denial of procedural fairness. To reiterate [10] of the Applicant's Submissions: Even if a matter is tainted with a procedurally unfair process, if the decision maker made a reasonable conclusion in the circumstance, the decision remains valid. As such, even if the Commission accepts that Mr. Akester was treated in a procedurally fair manner, the Applicant will continue to pursue a determination that the decision was, nevertheless harsh in the circumstances. 1. As to the reasons the notifier argued in the Notice of Motion was harsh, unfair and unreasonable, is was submitted that: 1. Mr. Akester disputes the accuracy of the conversation with Inspector Harris. 2. Exceptional circumstantial considerations were not given due weight in the decision-making process. 3. In any event, even on the material available to the decision maker at the time, the conduct alleged does not rise to the level of misconduct articulated in the Managing Misconduct Policy. Relevant legislation and principles 1. The Notice of Motion seeks that the Commission dismiss the application pursuant to section 162 (2)(h) of the Act. Section 162 of the Act provides for the procedures generally to be adopted by the Commission in conducting matters before it. It is in the following terms: "162 Procedure generally (1) The Commission may, subject to this Act, determine its own procedure. (2) The Commission: (a) is to act as quickly as is practicable, and (b) is to conduct its proceedings publicly or, if it considers it necessary, privately, and (c) may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (d) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (e) may sit at any place, and (f) may require a document to be served outside the State, and (g) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (h) may dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious, and (i) may exercise, on its own initiative, any function exercisable by it on application, and (j) may, on its own initiative, inquire into any industrial matter." 1. Section 163 of the Act also provides for the manner in which the Commission is to conduct proceedings, as follows: "163 Rules of evidence and legal formality (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." 1. The approach the Commission will take with respect to an assessment of frivolity is well settled. In Peden v Lake Macquarie Refrigeration Pty Ltd [2004] NSWIRComm 66, a Full Bench of the Commission cited the test for frivolity as adopted by the NSW Court of Appeal in Rajski v Powell (1987) 11 NSWLR 522 at 524 as follows: "The relief sought is conserved to clear cases where the claim made is "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument' "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action' or where "manifestly to allow them to stand would involve useless expense ..." 1. The Full Bench in Peden, adopting this line of authority, accepted that a claim will be frivolous if "on its face, it cannot possibly succeed, it is manifestly groundless or if it is a paltry or trifling matter": Penden at [20]. 2. Suffice to say, there is a very high threshold that must be met by the respondent to succeed in the Notice of Motion to have the proceedings dismissed on the basis that they are frivolous. If the Commission were to dismiss the proceedings on the basis that they are frivolous, the notifier will be denied the opportunity to be heard with respect to the matters, the subject of the dispute notification. This is a serious consequence to the notifier and the member whose interests they represent in these proceedings. 3. The notifier complained that the respondent has taken an overly legalistic approach in seeking to have the matter stuck out at this stage of the proceedings. The Commission is not bound to act in a formal matter, nor is it bound by the rules of evidence. 4. The Notice of Motion is before the Commission in respect of proceedings where there are no formal pleadings and the notifier has only filed an Outline of Submissions in the substantive matter (as directed by the Commission) and the respondent has not yet filed any evidence or an Outline of Submissions in respect of its case. Consideration Could the notifier possibly succeed with respect to their claim that Mr Akester was denied procedural fairness? 1. As set out above at [12], the notifier claims in the Notifier's Outline of Submissions that Mr Akester was denied procedural fairness in the disciplinary process the subject of the dispute. 2. The notifier claims that the respondent breached Mr Akester's privacy when: 1. the respondent released Mr Akester's confidential file note to Mrs Jenkins against Mr Akester's consent; 2. the respondent advised Mrs Jenkins that the manager who called for the meeting with Mr Jenkins (Mr Akester) on 9 April 2018 had been disciplined without Mr Akester's consent; and 3. the respondent provided Mrs Jenkins with the Nomchong Report. 1. From the submissions of the respondent, there appears to be no factual dispute that the file note created by Mr Akester relating to the meeting with Mr Jenkin's on 9 April 2018 was released to Mrs Jenkins, without the consent of Mr Akester. Mr Akester gives an account of this release at [44]-[55] of Exhibit A1. 2. Mr Akester states that after the release of the file note: 1. Mr Jenkins' daughter, Cindey Jenkins lodged a Privacy Complaint with NCAT leading to an investigation, concluding that he may have breached her privacy, noting no disciplinary action was taken by the respondent in respect of this issue. 2. Mrs Jenkins lodged a complaint to the Ministry of Health which led to the Nomchong Report. 1. In his evidence, Mr Akester attempts to link the release of the file note to "all investigations" that occurred into his conduct. 2. Even if the notifier was able to establish that the release of the file note to Mrs Jenkins caused the commencement of the respondent's investigation into Mr Akester's conduct, the notifier has not articulated how this led to a denial of procedural fairness to Mr Akester in the disciplinary process. The notifier has not filed any evidence or made submissions that enable to Commission to connect the file note being released and a denial of natural justice to Mr Akester. The notifier's claim that procedural fairness was denied on this basis is unable to succeed. 3. The notifier claims that Mr Akester was denied procedural fairness when the respondent advised Mrs Jenkins that the manager who called for the meeting with Mr Jenkins (Mr Akester) on 9 April 2018 had been disciplined (without Mr Akester's consent). 4. Mr Akester's statement at [69]-[71] of Exhibit A1 is relevant to this submission: [69] Upon completion of the misconduct process, NSW Ambulance met with Mrs. Jenkins and informed her that a "senior manager" had been disciplined in the matter relating to her husband. [70] Mrs. Jenkins was also provided with a redacted copy of the investigation report. I was strongly assured that this would never happen. [71] Once again, I made front page news with the hearing "Report confirms 'failure in the decision-making process before paramedic Tony Jenkins' death.' 1. Mr Akester attaches a media article to Exhibit A1 of the Newcastle Herald dated 25 September 2019 titled, "Report confirms 'failure in the decision-making processes' before paramedic Tony Jenkins' Death'": RA-10. The article states that the respondent had taken disciplinary action "against some senior employees after Mr Jenkins was questioned, without an independent support person, at a meeting called without warning on April 9, 2018, only hours before his death, about allegations he used ambulance-issued Fentanyl from Hunter ambulance stations." The article goes on to extensively report on the findings contained in the Nomchong Report. 2. Mr Battagello gives evidence at [6] of Exhibit R1 with respect to the information provided to Mrs Jenkins by the respondent as follows: a. Sharon Jenkins has never been made aware of specific action being taken against a "senior manager", including Mr Akester, within NSW Ambulance. I annex to this affidavit and mark "AB-4" a letter which I am informed by Mr Willis and verily believe was provided to Mrs Jenkins on around 6 June 2019. I am informed by Mr Willis and verily believe that this letter is the only communication of any outcome ever provided to Mrs Jenkins by the Respondent; b. I am informed by Mr Willis and verily believe that the Respondent has never provided Sharon Jenkins a copy of the report prepared by Ms Kylie Nomchong SC. 1. Annexed to Exhibit R1 is a letter to Mrs Jenkins dated 6 June 2019 from Dr Dominic Morgan ASM, Chief Executive of the respondent referred to in Mr Battagello's evidence. The letter documents the key findings of the Nomchong Report and under the heading "NSW Ambulance action against individual staff members", it states: "In accordance with the outcomes and recommendations of the Nomchong Report, I can confirm that NSW Ambulance commenced a disciplinary investigation into the conduct of some of the its staff following the events of 9 April 2018. While informed by the outcomes of the Nomchong Report, the disciplinary investigation is a separate and distinct process considered in the context of applicable NSW Ambulance policies and procedures. An independent decision-maker has determined the action to be taken arising from this investigation based on the information available. I can confirm that appropriate disciplinary action has been taken, however the specific information related to the disciplinary process is confidential." 1. It is not the task of the Commission in this Notice of Motion to deliberate and determine factual contests between the parties. However, considering the notifier's evidence at its highest, based on the material filed with the Commission at this time, the Commission could not find that Mrs Jenkins was told about the outcome of the disciplinary matter relating to Mr Akester. The assertions contained in Mr Akester's account lack the particularity required to be relied upon to make out the factual matter. 2. Little weight could be given to the content of the media article, developed through undisclosed sources, which in any event, does not state that Mrs Jenkins was informed of the outcome of the respondent's disciplinary process as it related to Mr Akester. 3. The notifier's evidentiary case at this stage of the proceedings is problematic. However, even if the notifier is able to establish that Mrs Jenkins was told about the disciplinary outcome relating to Mr Akester, any such disclosure must have occurred after the disciplinary outcome had been decided by the respondent. The notifier argued that the disciplinary process remained ongoing at the relevant time as Mr Akester lodged an appeal of the decision, though it was conceded that the respondent may not have known that an appeal was pending at the relevant times. Despite this, the notifier has not articulated how Mr Akester can be said to have been denied procedural fairness during the disciplinary process by Mrs Jenkins being told about the disciplinary outcome, given the outcome must have already been determined by the respondent at that time it is alleged it was disclosed to her. This aspect of the notifier's claim is unable to succeed. 4. The notifier claims that Mr Akester was denied procedural fairness on the basis that Mrs Jenkins was provided with a copy of the Nomchong Report. The respondent denies that it provided a copy of the Nomchong Report to Mrs Jenkins. The notifier's only evidence that this occurred is an assertion by Mr Akester that this happened, without any particularity, nor specifics of how he acquired this knowledge: Exhibit A1 at [70] as set out above at [41]. Again, the notifier's evidentiary case with respect to this assertion is problematic. 5. However, even if the notifier was able to establish that the Nomchong Report was provided to Mrs Jenkins, the notifier has not put forward an argument as to how this led to a denial of procedural fairness to Mr Akester in the disciplinary process. The claim of a denial of procedural fairness is unable to succeed on this basis, considering the notifier's claim at its highest and assuming it can establish the Nomchong Report was actually provided to Mrs Jenkins. Can the notifier possibly succeed in claiming Ms Smitham was prejudiced as decision maker? 1. The notifier claims that Mr Akester was denied procedural fairness because Ms Smitham was prejudiced in her role as decision maker for the reasons set out above at [12(3)]. The notifier's submissions with respect to this argument are contained in the Notifier's Outline of Submissions at [1]-[9] (commencing at page 6). 2. The notifier claims that Ms Smitham was likely to be aware of Ms Jenkins' campaign against Mr Akester, inhibiting her capacity to act impartially and objectively and was potentially biased towards her superiors preferred outcome of the investigation. It is a serious allegation that Ms Smitham was prejudiced as the decision maker for these reasons. 3. The only evidence before the Commission that might support this aspect of the notifier's claim is the disciplinary outcome imposed by the respondent itself. This is not a sufficient evidentiary basis upon which the Commission could find that Ms Smitham did not act impartially and objectively and was biased for the reasons advanced by the notifier. 4. However, whether Ms Smitham was prejudiced for the reasons alleged is peculiarly in the knowledge of Ms Smitham. While it is upon the notifier to make out these allegations, the Commission is not appraised of all of the evidence that may be adduced by the notifier with respect to this issue. As the decision maker, it is reasonable for the notifier to expect that Ms Smitham will give evidence on behalf of the respondent and that the notifier will have an opportunity to cross-examine her with respect to the allegations made in these proceedings. The Commission is not in a position to determine that this aspect of the notifier's claim is hopeless for the purposes of the Notice of Motion before the notifier is provided with an opportunity to adduce evidence from Ms Smitham. 5. The notifier also argues that Ms Smitham was prejudiced because she acted as a support person for a superior, Chief Executive Dr Dominic Morgan and had intimate knowledge of his disclosures during the investigation conducted by Ms Kylie Nomchong SC. The notifier did not direct the Commission to any specific evidence in support of this submission in the Notice of Motion. The notifier did not make submissions as to how acting as a support person for Dr Morgan or having knowledge of his disclosures during the investigation would prejudice Ms Smitham as decision-maker. 6. In the absence of further evidence and submissions by the notifier, it is difficult to see how the claim that by being a support person for Dr Morgan, Ms Smitham was prejudiced as a decision-maker. However, it is not inconceivable that such a claim could be made out through, for example, further evidence adduced through the cross-examination of Ms Smitham. 7. The notifier further argues that Ms Smitham was prejudiced because she did not consider the extenuating circumstances in which the alleged misconduct occurred when determining the appropriate disciplinary action. While, the notifier did not file any evidence to support this contention, nor develop this point with reference to any particular aspect of the disciplinary process, it gives rise to a question for determination by the Commission, namely, whether the Commission is to consider for itself the appropriate disciplinary outcome or merely review the manner in which that decision was made by the respondent. This is an issue that should be considered in the context of the substantive proceedings. Could the notifier possibly succeed with respect to their claim that the disciplinary decision was unreasonable, unjust or harsh? 1. The notifier submits that the disciplinary outcome was unreasonable, unjust and harsh as set out at [11(2)] and [11(3)] above. 2. The notifier claims that the findings and/or written warning was not open to or reasonably concluded by the respondent on the material available as: 1. Clause 4.5.1 of the NSW Health Code of Conduct does not apply to correspondence between employees; and 2. Allegations 2.2 and 2.3 (a),(d) and (f) do not amount to a breach of confidentiality as described in sections 4.5.3 and 4.5.4 of the Code of Conduct or misconduct as described in the Managing Misconduct Policy. 1. Under the heading, "Purpose", the NSW Health Code of Conduct states: The intent of the Code is to provide a framework to promote ethical day-to day conduct and decision-making. It does not and cannot cover every situation that can arise in the workplace. The Code does not replace the need for common sense in how staff conduct themselves. 1. Clause 4.5.1 sits within the broader obligation in clause 4.5 of "Maintain[ing] the security of confidential and/or sensitive official information." 2. Clause 4.5.1 of the NSW Health Code of Conduct relevantly reads: Staff must: Keep confidential all personal information and records, including not discussing or providing information on social media that could identify patients or divulge patient information. 1. The notifier's submissions with respect to clause 4.5.1 are at [12]-[16] of the Notifier's Outline or Submissions. The notifier argues that this clause relates to patient confidentiality only and that the correct interpretation of 'including not' is that it connects the use of social media to other modes of communications. The notifier does not point to any aspects of the context within which the clause appears to support its argument that it should be given the narrow construction it argues for. These submissions were developed no further by the notifier in the Notice of Motion. 2. The construction advanced by the notifier is not hopeless, though the notifier would need to significantly develop its argument in the substantive proceedings for it to succeed. However, the success of the notifier in this matter is not secured by a finding in its favour with respect to the construction of clause 4.5.1 because the respondent has also relied upon two other clauses contained within the broader obligation under clause 4.5, namely clauses 4.5.3 and 4.5.4 in the following terms: 4.5.3 Maintain the security of confidential and/or sensitive information, including that stored on communication devices 4.5.4 Not disclose, use or take advantage of information obtained in the course of official duties, including when they cease to work in NSW Health. 1. The notifier argues that allegations 2.2 and 2.3 (a),(d) and (f) do not amount to a breach of confidentiality as described in sections 4.5.3 and 4.5.4 of the Code of Conduct or misconduct as described in the Managing Misconduct Policy. 2. The notifier's submissions with respect to this aspect of its case are contained at [18]-[36] of the Notifier's Outline of Submissions. In respect of allegations relating to the conversation Mr Akester had with Inspector Harris, the notifier: 1. contests the factual basis of the findings of misconduct; 2. argues that Mr Akester made relevant disclosures of the meeting with Mr Jenkins as the information was directly relevant to the search for Mr Jenkins which was urgent; and 3. submits that Inspector Harris was already aware of the matters Mr Akester is alleged to have told him about. 1. With respect to the allegations relating to the conversation with Paramedic Robertson, the notifier: 1. contests the factual findings of the respondent with respect to the conversation; 2. argues that the findings could not amount to misconduct because: 1. Mr Jenkins' was already deceased at the time the alleged conversation took place; 2. Mr Akester was attempting to diffuse a highly emotional event; 3. Mr Jenkin's views of REDACTED were common knowledge; and 4. the information alleged to have been conveyed was not confidential or sensitive. 1. The respondent contends that this aspect of the notifier's case is frivolous because Mr Akester has not given an alternative account of the conversations he had with Inspector Harris and Paramedic Robertson in his evidence. 2. While Mr Akester's evidence is lacking in terms of giving a clear alternative account of the conversations that were had with both Inspector Harris and Paramedic Robertson there remains the question of whether the conduct the respondent found occurred, in the circumstances, constituted a breach of confidentiality and constituted misconduct by Mr Akester. Even in the absence of a full account of those conversations by Mr Akester, there remains open the possibility the Commission will find that the conduct as alleged did not constitute misconduct for one or more of the reasons advanced by the notifier. This aspect of the notifier's case is not frivolous and the notifier has demonstrated that they have an arguable case that should be considered by the Commission. 3. The notifier argues that the disciplinary outcome imposed upon Mr Akester was too harsh even if a finding of misconduct is made out, taking into account all of the relevant circumstances. The notifier's submissions on this point are at [37]-[44] of the Notifier's Outline of Submissions under the heading "Possible Disciplinary Action". The respondent considers this aspect of the notifier's case in their submissions in the Notice of Motion at [37]-[40]. 4. While the notifier's evidence has not engaged with the specifics of the conversations which led to the misconduct findings, there is before the Commission a significant amount of evidence about the lead up and surrounding circumstances of the alleged misconduct which may be relevant to an evaluation as whether the disciplinary outcome was harsh. 5. The notifier's claim that the disciplinary outcome was harsh is not hopeless. Conclusion 1. The notifier's claim that Mr Akester was denied procedural fairness on the basis of the breach of his privacy is without merit. The remainder of the notifier's case is not hopeless. Accordingly, the Commission will not dismiss the matter on the basis that it is frivolous. Orders 1. I make the following orders: 1. The Notice of Motion seeking that the matter be dismissed on the basis that is frivolous pursuant to s 162(2)(h) of the Act is dismissed. 2. The matter be listed for directions by telephone at 2 pm on 24 April 2020. Janine Webster Commissioner ********** Amendments 08 July 2020 - Redaction to comments in paragraph 8, paragraph 9 and paragraph 66. 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: 08 July 2020