Fraser v Industrial Relations Secretary on behalf of the Department of Customer Service

Decision

1. This is an application (the "Motion") brought by the respondent to set aside a summons for production issued by the plaintiff to the respondent on 13 September 2021 (the "Summons").
2. The Motion also sought alternative orders pursuant to section 164A(1)(d) of the Act to protect the identity of any witness who provided evidence in the investigation in relation to any documents provided under the Summons.
3. It is necessary to provide some background to the substantive application. The applicant has been employed by the respondent as an inspector and as at 12 January 2021 based at the respondent's Wollongong operational base.
4. On 12 January 2021 the applicant submitted a formal written complaint regarding alleged work, health and safety contraventions in the workplace to the People and Culture team of the respondent (the "Complaint").
5. In correspondence dated 2 June 2021, Erica Machon, Director of People Services, informed the applicant that the allegations in the Complaint were not substantiated. This correspondence also stated that there had been an external factual investigation into complaints undertaken by a Sarah Nicita of Aurora Workplace Investigations.
6. On 22 June 2021, Rick Bultitude, Director, Investigations and Emergency Response, directed the applicant to work from the respondent's Parramatta office (the "Direction").
7. The applicant by way of application seeks orders pursuant to section 213 of the Industrial Relations Act 1996 (NSW) (the "Act") arising from an alleged contravention of section 210 of the Act (the "Application").
8. The Application alleges that the respondent contravened sub-section 210(i)(j) as the Direction was given because of the Complaint.
9. The applicant filed and served evidence his evidence in chief and outline of submissions in the substantive proceedings on 17 September 2021.
10. The documents sought under the Summons are set out in the schedule as follows: 1. This Summons. 2. A copy of any investigation report, including any drafts, with respect to the Complaint submitted in writing by Mr Colin Fraser and dated 12 January 2021 to the Department of Customer Service or SafeWork concerning matters related to his employment. 3. A copy of any Documents evidencing recommendations made or conclusions drawn by the Department of Customer Service or SafeWork with respect to the Complaint. 4. A copy of all Documents prepared by, on behalf of, or submitted to the Department of Customer Service or SafeWork with respect to its consideration, investigation or determination of the Complaint including statements, records of interviews, notations to file, emails, internal memoranda, recommendations, and reports. At the discretion of the Respondent, the Respondent may redact the contact details (but not the name) of an interviewee from a statement that that interviewee has made. 5. A copy of all Documents evidencing consideration and or dealing with the Complaint by Amber Chandler, Sarah Nicita and or Rick Bultitude. 6. The 2019 report written by Wendy Klassen titled, "Independent Investigation into Workplace Cultural Review in the Metropolitan Operation and Sector Initiatives." The schedule also defined the Complaint in category 2 as being the one made on 12 January 2021 by the applicant.