Diaz v Secretary, Ministry of Health in respect of Pathology No. 3 [2022] NSWIRComm 1028 | Case summary

Industrial Relations Commission (NSW)|2022-03-16

decision

This is an interlocutory application (the "Motion") filed on 14 February 2022 in the Industrial Relations Commission by the Secretary, Ministry of Health (in respect of NSW Health Pathology) (the respondent in the substantive matter), to set aside a summons for production issued by the applicant to the respondent on 7 February 2022.
The Motion is supported by an affidavit of Mr Jack Gautray, the Manager Industrial Relations, NSW Health Pathology, sworn on 14 February 2022 ('Affidavit').
On 16 March 2022, the Motion was listed for hearing before the Registrar where the respondent was represented by Mr Gotting of Counsel and the applicant represented himself.
Pursuant to the timetable provided by the Commission the parties filed brief written submissions both prior and subsequent to the hearing. These were filed by the respondent on 4 March 2022 and followed by an email filed as Further Submissions on 17 March 2022.
Submissions were provided by the applicant, Mr Diaz on 4 March 2022, followed by an email filed as Further Submissions on 16 March 2022.
I read and had regard to those submissions.
Additional documents were sent to the Commission by the applicant on 25 March 2022 to which the respondent objected. On the basis that the opportunity for submissions had already been provided with leave granted for further submissions from all parties on 16 and 17 March 2022, the Commission declined to grant leave to accept these additional documents for consideration.
I note that the respondent wrote to the Commission on 8 February 2022 requesting that the summons to produce not be issued. I note that the summons had however already been issued the day before. This is referred to in paragraph 6 of the respondent's Affidavit.

Background

The substantive matter concerns an application for relief in relation to unfair dismissal under s84 of the Industrial Relations Act 1996 filed by the applicant on 23 June 2021.
Mr Diaz was a Data Manager Analyst in the Clinical Genetics Unit at the Royal Prince Alfred Hospital and commenced employment in November 2016. He was suspended in December 2020. A letter dated 23 April 2021 set out preliminary views of the investigation outcome. That letter extended to 15 pages and included the following reasons: serious misconduct, performance, bullying and harassment, breach of code of conduct. His employment was terminated in June 2021.
Since the application was filed, there have been two previous Notice of Motion proceedings conducted in December 2021 and February 2022 before Commissioner Sloan.
Furthermore, Commissioner Sloan conducted conciliation and directions with the parties on a number of occasions since 29 July 2021.

Summons

The summons is seeking broad category of the documents, paragraphs 1 - 73 including sub-paragraphs.
Data meeting minutes from Feb 2020, Sep 2020 clinical data meetings
Genetics business meeting agendas and minutes from 2020 to 2021 July
Name of the staff who has been handling data manager position since I was suspended and dismissed
There were number of emails written to manager, Dr Lisa Worgan related to some of the important and specific areas, events and aspects as follows. Please provide complete email correspondence between Dr Lisa Worgan and me: 4.1. related to workflow, data meetings, data management work processes specially during 2017 September to November 4.2. leave, sick leave during September-December 2017 and between 2018 to 2020 4.3. before, during and after mediation between 2018 January to August 4.4. about workflow, work processes 2018, 2019, 2020 4.5. about data meeting, related topics, worklists between 2018, 2019, 2020 about patient data collection forms between 2018 to 2020 4.6. about patient death in 2018 4.7. about workplace gossips, scapegoating, exclusion, shouting, yelling, privacy concerns, damage to reputation, risks to safety and health, intrusive behaviour and conduct between 2018 to 2020 4.8. about meetings, conduct related to removal/isolation from team work area and desk changes between Nov/Dec 2019 4.9. about missing patient files, data integrity, risks between 2018 - 2020 4.10. about the need to document changes to workflow and work process in 2018, 2019,2020 4.11. about photo incident in the workplace in Feb 2020 4.12. about requests to have a meeting/conversation with the manager Between 2018 to 2020 4.13. about poor attitude towards my performance and role in the team 2018 to 2020 4.14. about data meeting in Aug to Sep/2020 4.15. about change of data reports structure and content in Aug to Sep/2020 4.16. about signing eMR forms access in Nov/2020 4.17. about role management, performance management between 2018 to 2020 4.18. about alleged performance issues between 2018 - 2020 4.19. about low compliance, mixing of patient files into data management workflow processes, lack of collaboration between 2018 to 2020 4.20. about WHS, safety at work between 2018 to 2020 4.21. about performance appraisal between 2018 to 2020 4.22. about work start times, work hours, pay sheets between 2018 to 2020 4.23. about workflow, eMR, data workflow process, data management, patient file management initiatives between 2018 to 2020 4.24. about restricting necessary after hours work on or about Dec 2019 onwards 4.25. about work handover documents before medical leave 2020 March 4.26. about Performance Appraisal Form on or around Aug/Sep 2020 from Dr Lisa Worgan
Complete correspondence from Mr Stuart Cole to me on or around Nov/Oct 2020 for a work performance meeting triggered by the IMMS report by Mr Ron Fleischer
Complete Correspondence between Mr Stuart Cole and me about lack of/unavailability of necessary tools, access, WHS issues, desk changes, on going difficulties with the management, difficulties in workplace affecting me and the duties of the my role: 2018- 2020, Dec 2019, early 2020, Aug 2020
Complete emails exchange between me and Mr Stuart Cole, Dr Lisa Worgan, Ms Siobhan Cunliffe about TIRA forms
Complete emails exchange between me and Mr Stuart Cole about leave agreement Jan/Feb 2020
IMMS report 2018 triggered by hospital notifications due to a patient death and emails exchanged with Lisa Worgan, Stuart Cole
IMMS report Oct/Nov 2020 by Ron Fleischer about Wait list (for no removing an already seen patient from wait list)
Complete email correspondence with Ms Bronwyn Culling (TrakGene genetic database application customer support staff) from 2018-2020 about TrakGene, escalations/inquiries on data workflow related issues, reporting, clarifications, conventions, software updates
Complete email correspondence from Ms Bronwyn Culling about TrakGene updates/data manager/user communication with Penny Tagalaski as a representative for RPAH genetics data management, processes and the role.
Complete email correspondence with Ms Bronwyn Culling in 2019, 2020 requesting modification history and related aspects of TrakGene database
Complete email correspondence between Ms Rita and myself about patient file archiving correspondence (specially alerting risks stemming from the workflow processes)
Complete correspondence between Mr Ron Fleischer and me about patient file archiving correspondence between 2018-2020
Complete correspondence between Dr Lisa Ewans and me about patient file archiving correspondence between 2018-2020
Complete correspondence between me and team about patient file archiving correspondence
Complete correspondence between Mr Ron Fleischer, Ms Penny and team about patient file archiving correspondence 2019-2020
Complete correspondence between Dr Lisa Worgan and me about patient file archiving correspondence 2018-2020
Complete correspondence between Ms Penny Tagalaski and me about patient file archiving correspondence 2018-2020
Complete correspondence between team and me about missing patient files/displaced/unable to locate patient files
Complete correspondence from Ms Rita Preira and other team members to team about missing/displace/unable to locate patient files
complete correspondence between Bronwyn Culling and Lisa Worgan, and myself about arranging Dec 2019 TrakGene meeting
Complete email and sms correspondence between Ron Fleischer and others team members inviting, organizing and participating in 2019 Dec genetics team Christmas party and Ms Laura Molloy's maternity leave celebration
Complete emails exchange between me and NSW HP injury manager Ms. Imelda Daniel between 2019 to 2020 (limited emails)
Complete emails exchange between me and NSW HP WHS officer Mr Daniel Trazzera between 2019 to 2020 (limited emails)
Complete correspondence between Ms Siobhan Cunliffe and me with regards to some of the specific incidents, events, areas as follows: 1.1. emails exchanged with Ms. Siobhan Cunliffe specifically about 2017 Performance Appraisal, 2017/2018 1.2. about workplace grievance and protection from bullying to HR - Ms Siobhan Cunliffe about "workplace gossip" by Lisa Worgan and certain other staff, hospital notifications and scapegoated for a patient death 2018-2019 1.3. about unjust, poor management response and attitude to performance management, work flow issues between 2017 - 2020 1.4. about unacceptable behaviour and conduct of management and certain team members (Mr. Ron Fleischer, Lisa Worgan, Stuart Cole) towards me 2017-2020 1.5. about workflow issues, unhealthy work environment (in relation to Mr Ron Fleischer, Dr Lisa Worgan) 1.6. about on going and increasing negative conduct of Mr Ron Fleischer (colleague), and management (Dr Lisa Worgan, and Mr Stuart Cole as well as then Dr Ron Trent) towards me 1.7. about requesting support for protection in workplace threats for health, safety, management of poor performance in the workplace 2018-2020 1.8. about requesting support, protection for safety and health in workplace 2018- 2020, specifically Jan-August 2018, 2019, 2019-Dec- Mar 2020, Aug 2020- Nov 2020 1.9. about requesting support for health and safety in the workplace around Nov/Dec 2019 related to unsuitable desk changes 1.10. about distressing photo incident caused by Dr Lisa Worgan, Mr Ron Fleischer around Feb 2020 1.11. about mediation with Dr Lisa Worgan in 2018 and also exchanged with Ms Catherine Keating 1.12. about unacceptable workplace behaviour workshop in 2018, 2019 1.13. about 2019/2020 unrealistic work demands and unreasonable pressure by LW 1.14. about 2020 medical leave, arranging 2020 Performance Appraisal "support person" 1.15. about Jan 2020 signed sick leave and attendance agreement from Ms Siobhan Cunliffe, (which was submitted to Mr Stuart Cole as instructed by Ms Siobhan and Dr Lisa Worgan) 1.16. about requesting for a meeting with HR with HSU-NSW around Aug 2020
Complete emails correspondence between me and Dr Lisa Ewans about reviewing data meeting agenda in 2017, 2018 prior to circulating to the team
Complete emails correspondence between me and Dr Lisa Ewans, team, Lisa Worgan about management and updates to Patient Data Collection Form for Genetics database (TrakGene) in 2017, 2018, 2019
Complete correspondence to team, Lisa Ewans, Lisa Worgan, Ron Fleischer about chaos/issues from multiple versions of undocumented patient data collection forms floating around the office and workflow between 2017 to 2020
Complete correspondence to team, Dr Lisa Ewans and Dr Lisa Worgan about incomplete patient data forms from Clinicians 2017-2020
Emails informing team, Dr Lisa Worgan, Dr Lisa Ewans about difficulties and risks stemming from clinic and data workflow issues, undocumented random changes to workflow processes and patient data collection forms 2017-2020
Emails informing team, Dr Lisa Worgan, Mr Ron Fleisher, Dr Lisa Ewans about workflow, data integrity issues (2017- 2020)
All emails from Ms Catherine Keating (NSW HP HR Staff) to team and Medical Genomics department about arranging Unacceptable Workplace Behaviour Workshop 2018, 2019
Complete emails between Ms. Rita, Ms. Laura Molloy, me, and team in arranging maternity leave lunch for Dr Lisa Ewans in 2019
Complete email correspondence between Dr Lisa Ewans and me in support of her workflow in terms of data management, specially about her contacts/follow up lists before she went on maternity leave in 2019
Complete email correspondence between Dr Lisa Ewans and myself about DQA (data quality audit) initiation in 2018
Complete email correspondence from Dr Lisa Ewans, between myself and her about following up on DQA process, outcomes in 2018
Clinical data audit by Lisa Ewans and Kathleen LeMarquand in 2018 process 39.1. each file ID, each patient data collection form (completed by clinicians) used for that audit (remove dab, encrypt patient name for privacy), 39.2. clinical data audit report 2018
Complete correspondence about (DQA) data quality audit from 2018 to 2020 with team and Dr Lisa Ewans
Complete email correspondence from Dr Lisa Ewans, between myself and her about following up in support of a reasonable DQA process in 2020
Screens of all waitlists (remove MRN, dab, encrypt patient names for respecting privacy) received from me by Mr Ron Fleischer 2019, 2020, and Ms Kathleen LeMarquand 2018
Complete email correspondence between me and team, Ms Rita Pereira, Dr Lisa Worgan, Mr Ron Fleischer regarding waitlists and processes process
Complete email correspondence between me and team, Ms Rita Pereira, Dr Lisa Worgan, Mr Ron Fleischer regarding all wait lists that was given to clinicians since 2018 (remove MRN, dab, encrypt patient names for privacy)
Mr Ron Fleischer's email to me about removal of patient from waitlist on or around Oct/Nov 2020
All email correspondence about waitlist, specifically with Mr Ron Fleischer, Dr Lisa Worgan, Ms Penny, Ms Rita in 2019, 2020
Specifically copies of contact due lists given to Dr Amali Mallawarachchi, Dr Lisa Worgan, Dr Felicity Collins, Dr Lisa Ewans 2018, 2019, 2020 (remove MRN, encrypt patient names for respecting privacy)
Complete email correspondence from me to each team member and whole team about contact due lists from 2018 - 2020
Complete email correspondence between Dr Lisa Ewans and me about an incident related to her contact due list and her patient file taken by Dr Amali Mallawarachchi around Oct 2020
Complete email correspondence with Dr Amali Mallawarachchi about patient follow up/contact due lists, day to day work specially in 2019-2020
Complete email correspondence with Dr Lisa Worgan about patient follow up/contact due lists 2017-2020
Complete emails correspondence with Dr Felicity Collins about patient follow up/contact due lists, day to day work 2017-2020
Complete emails correspondence with Dr Lisa Ewans about contact due lists, related process 2018, 2019, 2020
Email correspondence between me and Ms Rita about retrieval of patient files from external patient file archiving vendor on request by our clinic between 2018 to 2020 (usually by the request of clinicians)
Emails correspondence between me and Ms Rita about appointment letters sent records between 2019 - 2020
Complete correspondence from Ms. Penny to me and between me and her about patient file archiving, also includes emails that included Mr Ron Fleischer and Dr Lisa Worgan 2019-2020
Complete correspondence between Ms Penny and myself about patient data quality, integrity issues Apr 2019 - Nov 2020
Complete correspondence between Ms Penny, myself, IT staff and eMR staff in assisting her to set up a patient labels printer around Aug-Sep 2020
Complete emails to and from team about patient data quality, integrity and TrakGene data management processes between 2018 - 2020
All Emails to and from team, myself and individuals about missing patient files between 2018 - 2020
Email correspondence with Mr Ron Fleischer and Dr Lisa Worgan, Ms Penny and Ms Rita, Dr Lisa Ewans highlighting the importance of documenting a correct file inventory prior to sending out patient files 2018, 2019, 2020
Complete correspondence to team, Dr Lisa Worgan about file piling
Correspondence about organizing W drive : Dr Lisa Worgan and Ron Fleischer around 2018/2019
Emails highlighting to Dr Lisa Ewans, Dr Lisa Worgan and team about duplicate data collection, minimum dataset, data quality
Copy of complete sick leave record from 2016 Nov 13 to 2020 Nov 27
Copy of attendance agreement forms submitted to Mr Stuart Cole/HR/ Dr Lisa Worgan around Feb 2020
Complete email correspondence between me and Dr Lisa Worgan and Mr Stuart Cole about work times changes 2018-2020
Names of the specific staff who lodged the complaint against me.
Witness' 69.1. names for allegations 69.2. names for this matter 69.3. names of those who were interviewed
Witness' 70.1 statements during investigation 70.2. statements for this matter
Complete evidence (oral statements, documentary) stated in allegations/outcomes report against me
Complete information that HR put in creating the SCR 2020
Complete SCR Record as it appears to anyone accessing it and under the search

Principles

The principles surrounding applications to set aside summons to produce under the Industrial Relations Act 1996 (NSW) are well established. The Commission is guided by its own precedents but also those established by Superior Courts. The principles that apply to setting aside summonses are considered by the then President Boland in Inspector Estriech v Leon [2012] NSWIRComm 84.
The parties have referred to much of the relevant case law throughout their submissions.
I refer to the more recent decision of the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, a matter about which I questioned Counsel at the hearing. Relevant to the issue at hand is whether the documents sought can throw light on an issue in the proceedings, which is addressed by Brereton JA below at [89]: I agree with Bell P, for the reasons given by his Honour, that an issuing party is not required to show that it is "likely" (or "on the cards") that the documents sought will materially assist its case, as distinct from that it is "likely" (or "on the cards") that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena. In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute; that they "appear relevant in the sense that they relate to the subject matter of the proceedings"; or that they could possibly throw light on the issues in the case. Moreover, documents will add "in some way" to the relevant evidence in the case if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence.
In my decision not to set aside much of the summons to produce I am persuaded by the new broader test stated in this decision of the Superior Court to determine, namely that the documents sought by the summons may serve to shed light on the issues to be determined in the proceedings.
The Affidavit of Mr Gautray filed by the respondent contains contentions that the summons to produce seeks the production of documents:

that have no apparent relevance,
are oppressive,
lack specificity,
are a fishing expedition and
seek information rather than documents.

The Outline of Submissions filed by the respondent expands upon the matters listed in the Affidavit with the addition that the summons to produce is effectively a request for discovery, citing the relevant principles set out in the following decisions: 1. Lim v Health Secretary [2021] NSWIRComm 1085 2. McIntyre v Commissioner of Police [2021] NSWIRComm 1093 3. New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union v Shellharbour City Council [2021] NSWIRComm 1097
The Health Secretary claims that this summons to produce is effectively a request for discovery citing Lim v Health Secretary [2021] NSWIRComm 1085. I do not accept this submission.
The Outline of Submissions filed by the applicant asserts that the documents requested are directly relevant to his termination matter referencing the extensive contents included in the letter of termination and serve a legitimate forensic purpose.
In his submissions Mr Diaz states that the documents sought are: "directly relevant, have a legitimate forensic purpose to materially provide evidence that the reasons employer used to terminate me was either harsh, unjust, unfair and not genuine."
Mr Diaz submits that the documents sought are specified and relevant to his employment, are not oppressive or onerous. He further rejects the notion that he is going on a wildcard search, fishing or attempting discovery.
The applicant's further submissions provide a table detailing the approximate number of documents for each category which estimates up to 12 documents per category ("Table").
The respondent's further submissions contend there is no evidentiary foundation for the approximate number of documents contained in the applicant's table and that it is inherently unlikely that there are only the number of documents cited for each category with examples. They reiterated that oppression is not considered simply by determining the number of documents but also by determining the process that must be followed to identify the documents to be produced.

Decision and reasons

The respondent produced several documents informally to the applicant shortly before the hearing on 16 March 2022. Accordingly, I consider the summons satisfied with respect to the following six paragraphs [1], [2], [10], [69], [70] and [73]: 1. Data meeting minutes from Feb 2020, Sep 2020 clinical data meetings 2. Genetics business meeting agendas and minutes from 2020 to 2021 July … 10. IMMS report Oct/Nov 2020 by Ron Fleischer about Wait list (for no removing an already seen patient from wait list) … 69. Witness' 69.1 names for allegations 69.2 names for this matter 69.3 names of those who were interviewed … 70. Witness' 70.1 statements during investigation 70.2. statements for this matter … The respondent confirmed that there were no witness statements and instead provided transcript. 73. Complete SCR Record as it appears to anyone accessing it and under the search
Paragraph 3 contains strikethroughs in the applicant's table with nil approximate documents. I find that Mr Diaz meant that this paragraph is not pressed: Name of the staff who has been handling data manager position since I was suspended and dismissed
I have carefully considered the parties submissions in this matter and have taken into account the relevant caselaw.
I allow paragraphs [4] to [9] on the basis of relevance and that these documents may shed light on the case, except for sub-paragraph [4.6] which I reject on the grounds it that it lacks specificity.
I allow paragraphs [11] to [23], [25] to [34], [38], sub-paragraph [39.2], [40], [41], [43], [45] to [67], [71] and [72] on the basis of legitimate forensic purpose and relevance to the issues to be decided as they may provide a background to Mr Diaz's employment.
I reject paragraphs [24], [35], [39.1],[42], [44] and [68] on the basis that I find these documents are not sought for a legitimate forensic purpose and are too wide as to be oppressive.

Orders

Therefore, the orders I make in these proceedings are as follows: 1. I note that documents have been produced in satisfaction of the summons to produce for paragraphs [1], [2], [10], [69], [70] and [73]; 2. I note that paragraph 3 is not pressed; 3. I order the Health Secretary to produce the documents described in paragraphs [4] to [9] except sub-paragraph [4.6], paragraphs [11] to [23], [25] to [34], [38], sub-paragraph [39.2], [40], [41], [43], [45] to [67], [71] and [72]. 4. I set aside the summons in relation to sub-paragraphs [4.6] and [39.1], and paragraphs [24], [35], [42], [44] and [68] of the summons to produce filed by Mr Diaz on the 7 February 2022.
The matter is re-listed before the Industrial Registrar for return of summons pursuant to these Orders on 4 May 2022.
I note the respondent's offer on record that there remains a willingness on their part to explore settlement on a without prejudice basis.
I recommend this matter be listed for a direction hearing at the earliest opportunity and to proceed to determination by way of arbitration. ELIZABETH ROBINSON INDUSTRIAL REGISTRAR

Amendments 20 April 2022 - paragraph [13] - paragraphs 1 - 73 included 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: 20 April 2022

Diaz v Secretary, Ministry of Health in respect of Pathology No. 3

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (9)