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

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

Although the notifier's claim that Mr Akester was denied procedural fairness on the basis of breaches of his privacy was without merit, the remainder of the notifier's case was not hopeless. Issues concerning alleged prejudice of the decision maker, whether the conduct constituted misconduct or a breach of confidentiality, and whether the formal warning was harsh raised arguable questions of fact and law. The high threshold for dismissal as frivolous under s 162(2)(h) was therefore not met.

Jurisdiction
Australia
Judgment Date
21 April 2020
Procedural Posture
Industrial Dispute / Notice of Motion to Dismiss Proceedings as Frivolous Under S 162(2)(h) of the Industrial Relations Act 1996 (nsw)
Outcome
Notice of Motion dismissed.
Legal Topics
['frivolous Proceedings' 'procedural Fairness' 'workplace Misconduct' 'confidentiality Obligations' 'disciplinary Warning']
['industrial Relations' 'employment Disciplinary Proceedings'] ['frivolous Proceedings' 'procedural Fairness' 'workplace Misconduct' 'confidentiality Obligations' 'disciplinary Warning']

Case Brief

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Procedural Posture

Industrial Dispute / Notice of Motion to Dismiss Proceedings as Frivolous Under S 162(2)(h) of the Industrial Relations Act 1996 (nsw)

Legal Issues

  1. 1 ['Whether the proceedings commenced by the notifier should be dismissed as frivolous under s 162(2)(h) of the Industrial Relations Act 1996 (NSW).' "Whether the notifier could possibly succeed in claiming Mr Akester was denied procedural fairness in the respondent's disciplinary process." 'Whether the notifier could possibly succeed in claiming Ms Smitham was prejudiced as decision maker.' 'Whether the notifier could possibly succeed in claiming the disciplinary decision and formal warning were unreasonable, unjust or harsh.']

Ratio Decidendi

Although the notifier's claim that Mr Akester was denied procedural fairness on the basis of breaches of his privacy was without merit, the remainder of the notifier's case was not hopeless. Issues concerning alleged prejudice of the decision maker, whether the conduct constituted misconduct or a breach of confidentiality, and whether the formal warning was harsh raised arguable questions of fact and law. The high threshold for dismissal as frivolous under s 162(2)(h) was therefore not met.

Court Disposition

Notice of Motion dismissed.

Orders

  • ['The Notice of Motion seeking that the matter be dismissed on the basis that it is frivolous pursuant to s 162(2)(h) of the Act is dismissed.' 'The matter be listed for directions by telephone at 2 pm on 24 April 2020.']