Gopinath v Health Secretary in respect of Northern Sydney Local Health District [2025] NSWIRComm 1113

Mr Gopinath filed an Application for Relief from Victimisation (Application) pursuant to s 213 of the Industrial Relations Act 1996 (IR Act) with the Industrial Relations Commission (Commission) on 11 August 2025.
In his application, Mr Gopinath set out his claim in the following terms:

Gopinath v Health Secretary in respect of Northern Sydney Local Health District [2025] NSWIRComm 1113 | Case summary | Zoe

[58]

The particulars set out a series of the applicant's own actions, beginning as early as March 2022 and extending until as late as June 2025. They also set out a series of actions by the respondent, which Mr Gopinath alleged amount to victimisation, also beginning in March 2022, and ending on 22 July 2025 when Mr Gopinath was dismissed by the respondent.
Neither the Application, nor the various submissions filed for Mr Gopinath, sought that the Commission exercise the discretion to accept an application out of time insofar as the victimisation alleged occurred more than 21 days before the Application was made.
During the opening submission of Mr Latham, counsel for Mr Gopinath, the Commission raised the question of whether each of the alleged contraventions occurring more than 21 days before the Application should be accepted by the Commission.
The substance of that exchange was that Application was made in time in so far at it related to the dismissal of Mr Gopinath, and events that formed a continuous series of events leading to that dismissal could properly be considered by the Commission. Any other earlier alleged victimisation, disconnected from the dismissal, was more two and a half years prior to the Application, and there was not sufficient reason to have the Commission determine those acts of alleged victimisation. Mr Latham accepted that, and referenced a decision of the Commission which he submitted came to the same conclusion[1].
Mr Steggles, Senior Human Resources Business Partner with the Northern Sydney LHD, representing the respondent, submitted that while the events which ultimately resulted in Mr Gopinath's dismissal commenced in December 2024, a different process, which resulted in a warning to Mr Gopinath, ended in January 2025. The Commission understood this to be an acceptance that each of the events leading to the dismissal should in totality be determined by the Commission. But further, that any detriment concluded prior to the process leading to dismissal should not be determined by the Commission.
Mr Steggles' submissions accorded with the further particulars filed on 23 September 2025, set out at [7] above, in identifying a warning letter, dated 20 January 2025, separate from the termination process.
Given the overlap between the 20 January 2025 warning letter and the dismissal processes, and that by the time Mr Gopinath received the 20 January 2025 warning letter he had been given a new set of allegations, the Commission concludes that there is a sufficient reason to allow any victimisation constituted by the warning letter of 20 January 2025 to be determined by the Commission.
The Commission considers that they would have seemed to Mr Gopinath a single continuous process, and it is understandable that he properly engaged with the ongoing process set in train by his employer.
To the extent they could be considered separate processes, the Commission nevertheless considers that by engaging in the further misconduct process initiated by his employer, Mr Gopinath participated fully in that process, rather than diverting that process by filing an application alleging that the warning was unlawful victimisation. That engagement should be encouraged and so contributes to a sufficient reason for any victimisation constituted by the warning letter to be accepted for determination by the Commission.
Accordingly, the Commission proceeds to determine the Application on the following basis:

[83]

Because they are not set out in s 2(a) of the Amending Act, Schedule 1[15], [16] and [38] commence on the "date of assent to [the Amending] Act." The Amending Act was assented to on 3 July 2025.
Mr Latham submitted that the provisions set out at schedule 1[38] are clear, and it was therefore obvious that the amended ss 210 and 213 of the IR Act applied to the Application. The respondent made no submissions opposing that outcome.
There is a difficulty with the submission put by Mr Latham, because the provisions of Schedule 1[38] of the Amending Act explicitly state what is to happen in relation to proceedings commenced before 3 July 2025, but do not explicitly say that the sections as amended apply to applications from that date.
It is necessary for the Commission to resolve that issue, albeit that superficially a rational extension of the provisions of Schedule 1[38] is that the amended sections apply to applications from 3 July 2025, regardless of when the alleged act of victimisation happened.
The most serious of the alleged victimisation before the Commission is the dismissal of the applicant. The dismissal was after 3 July 2025. The alleged act of victimisation and the Application are both after the amended sections came into effect. Therefore, the amended sections apply to the Application in so far as it relates to the dismissal.
That some of the protected conduct occurred before the amended sections commenced does not amount to retrospective application of the amendments. The alleged victimisation occurred after the amendments commenced, so the respondent is expected to have known any detriment after that date, even if based on earlier conduct, would amount to victimisation.
The other act of alleged victimisation to be determined is the warning letter on 20 January 2025. For reasons set out at [14]-[17] above, this was accepted out of time.
To apply the amended provisions to an event which occurred nearly 6 months before the amending provisions came into effect, and four months before the amendments were introduced into the Parliament, would require clear legislative intent. That is not present in this case. As set out above at [25]-[26], the most that can be said is that such an intent could be implied from a provision dealing with applications made before the amendments took effect.
Accordingly, the Commission determines to apply the law, as it existed and could have been known to the parties, at the time of the alleged act of victimisation.
The test in this instance is discussed below in considering the history and intent of the amendments. In short, the Commission will, on the evidence before the Commission, seek to determine the subjective intent of the decision maker in determining whether the respondent can discharge the reverse onus as to the alleged victimisation constituted by the 20 January 2025 warning letter. This is the test then set out in s 210(2) of the IR Act.

[106]

Putting aside for the moment the question of unconscious reasons, the change from subjective to objective moves the focus from the reason which the decision-maker believes was their reason, including of course an assessment of whether the Commission accepts that as their reason, to an assessment by the Commission of all the surrounding facts and for the Commission to determine objectively the real reasons for the decision.
Whilst in the majority of cases this will be a more difficult task for the Commission, there is no reason on its face to accept that it should be an impossible task for a respondent.
Indeed, it may well be that in particular circumstances an objective assessment will prove easier for the respondent than a subjective assessment.
It is clear from the Full Federal Court decision in Barclay is that it is likely that the decision-maker will still be required to give evidence as to their reason(s) for their decision. However, even if the Commission accepts that they genuinely believed they had taken the decision for the reasons espoused, that would not be decisive as to the "real reasons" for their decision.
This is to be compared with the previous, subjective, test under which, if accepted, their evidence as to their stated reason would be the end of the enquiry.
It is less clear how conscious or unconscious by biases should be factored into the objective assessment. As is apparent from the High Court decision in Barclay, and as expressly submitted by Mr Latham, an employer clearly cannot give evidence as to the presence or absence of unconscious bias.
Section 213(5)(c) of the IR Act provides that "... the Commission may have regard to conscious and unconscious factors ... when determining of the alleged matter was not a substantial an operative cause of the detrimental action". Presumably "may" is not permissive in the sense Commission may freely choose to have regard to or not to have regard to such matters. Rather it must mean that in matters where the parties raise such issues, or if is otherwise apparent to the Commission that consideration should be given to them, the Commission must do its best to determine, based on the evidence before it, whether such factors are relevant to its determination of the objective reasons for the decision.

[115]

The matters set out in items 3 and 4 of [57] have no equivalent in the previous expression of s 210(1) and so do not found a basis for alleging victimisation.
In cross-examination, Mr Steggles took Mr Gopinath through the majority of the events referenced by the Gopinath, putting to him a series of matters which would have properly laid the basis for the respondent to have lead evidence that the matters and actions protected by section 210 were not a substantial and operative cause of any detriment visited on Mr Gopinath.
The substance of what was put to Mr Gopinath was that the tone and manner of his communication was inappropriate to the point where it constituted rudeness and insubordination. Mr Gopinath repeatedly responded to that suggestion with words to the effect of "my tone was always humble and respectful".
Notwithstanding that unqualified response, Mr Gopinath did concede that letters written by his solicitors on his behalf conceded that his tone could happen been perceived as "overly direct".
It was put to Mr Gopinath that he had issues with women in leadership positions. Mr Gopinath was adamant in his reply stating "absolutely not".
Mr Steggles followed up by taking Mr Gopinath to a letter in which Mr Gopinath had set out the words "please consider appointing a gentleman as head of the district health information services". For the only time in his cross-examination, Mr Gopinath's answer was lacking conviction, and frankly lacking coherence. From his long answer the only coherent sentence was to the effect "I didn't mean it".
Aside from the evidence referenced in the last paragraph, Mr Gopinath's presentation was of a person thoroughly convinced he was completely in the right in all circumstances. Mr Gopinath frequently answered the question he preferred over one which he had been asked and was generally unwilling to concede that there was any fault on his part at all.
The Commission is far from persuaded that Mr Gopinath's interactions with his colleagues, even as he has described them, were generally humble, let alone humble on each and every occasion. On the face of the documents, such as letters or emails, these interactions range from a factual assertion of his entitlement, such as taking sick leave, to what can readily be understood as belligerence when he has effectively demanded to know the location at which his supervisor was working.
All that said, Mr Gopinath's evidence established that he had engaged in a series of conduct which, on their face, constituted conduct by him matching various of the descriptions set out in s 210(1) of the IR Act. Temporally the detriment of being dismissed, and of receiving a written warning, followed these various actions by Mr Gopinath. Consequently, the Commission is satisfied that the reverse onus is engaged. For the avoidance of doubt, by s 213(5) in its current form for the dismissal, and by s210(2) of the IR Act in its previous form for the warning letter of 20 January 2025.
The statutory reverse onus having been engaged, it then falls to the respondent to establish that none of the protected conduct or attributes were a substantial and operative cause of the respondent issuing the warning letter, or dismissing Mr Gopinath.

[129]

Professor Schembri was, as set out in the exchanges above, the person identified by the respondent as the sole decision-maker. It is inevitable that Professor Schembri's evidence would be central to the respondent discharging the reverse onus. This was apparently recognised by the respondent when they suggested a further date, some fortnight after the hearing dates already listed, be set aside for any cross examination of Professor Schembri.
The Commission has no doubt that Professor Schembri is a busy person with a difficult and important role on behalf of the respondent. It is understandable that should time, previously set aside for the hearing and the giving of Professor Schembri's evidence, be freed up that other matters requiring his attendance could be placed in his diary at those times.
What is much more difficult to understand is that the respondent would not contact the applicant to ascertain whether Professor Schembri was required, rather than proceeding to fill his diary without such consultation.
Even more difficult to comprehend is that once the Commission gave leave for the cross examination of Professor Schembri, there does not appear to have been any effort made by the respondent to change arrangements so that Professor Schembri was available for cross examination.
The Commission observes that the material set out above at paragraph [78] and [82] as to the reasons why Professor Schembri was no longer available were not set out in the form of proper evidence. The Commission had only emails sent to the Registry.
At the hearing Mr Steggles maintained the respondent's position that Professor Schembri was not available for cross examination because of the matters set out above. Not even on the basis of information and belief was an affidavit or a witness statement tendered by the respondent to establish the matters in that email.
Perplexingly, one of the parties with whom Professor Schembri was meeting was the person in whose name this proceeding was being defended, namely the Health Secretary.
When the matter was called on as listed for arbitration, Mr Latham suggested that he would require no matter more than 45 minutes and again set out that he was content for cross examination to be conducted via AVL or telephone.
The Commission asked Mr Steggles to enquire as to whether Professor Schembri would make himself available at some point later on the same day, or early the next morning. From the transcript:

[132]

"COMMISSIONER: Mr Steggles, where are we up to in respect of Professor Schembri?

STEGGLES: It hasn't been fruitful, unfortunately, Commissioner. We've attempted - multiple people - on the phone, and just haven't been able to get him touch with him directly. I understand he's with Secretary Susan Pearce today, I think at the Northern Beaches Hospital.

COMMISSIONER: With the respondent in this matter.

STEGGLES: Yes. So unfortunately, we haven't had any luck to get him.

COMMISSIONER: I don't really know what to say at this point. I guess I'll ask it this way, and you can tell me whether you think I'm on my high horse on this matter, but as I see it, the respondent in this matter is a model litigant and you know that one person, at least, - and your case is that one person is the decision maker - and it appears that, - and I accept that - the applicant didn't cover themselves in glory, they were late. But they were a day late, as I understand it, and Professor Schembri's witness statement extraordinarily includes that he was a member of the Administrative Decisions Tribunal and the appeal panel of that tribunal, and yet it seems that when the applicant was a day late, no effort was made to ascertain whether there was some delay that was unexplained.

His diary has been filled, including, extraordinarily, with the person who's the nominal respondent in this matter, and Professor Schembri is there rather than here. I don't really know what I'm to do other than proceed on the basis that he's not available for cross examination, and I don't really know where that leaves you. I don't know how you have a defence without Professor Schembri. Without getting into Mr Latham's other submissions about the other witnesses, but it's unavoidable, - putting aside again the question of objective and subjective intent, which I still can't get my head around at this point, I'm afraid, but it's clear that High Court envisaged the only way in which a respondent can conduct their defence is if the person who's made the decision is here and actually able to give evidence.

The unavoidable implication is that it's for the tribunal hearing the matter to actually be persuaded as to the truthfulness of what is said, but, if it not explicit, it's unavoidable that the High Court anticipated that the tribunal would hear from that person while being cross examined. I mean, you understand where I sit. The likely outcome is that I'm not going to delay the hearing. To the extent that I have any basis to form a view about what the factual matrix is, I don't think it's helpful to you, but it's the only material I have, and it's in a series of email exchanged between the respondent and the registry. I'm going to adjourn until 2pm, at that point we'll start with your case, and we'll see how far we get."[3]

[141]

Allowing for the fact that there was no formal evidence before the Commission, but taking Mr Steggles, and indeed earlier correspondence from the respondent, at face value, the Commission accepts that Professor Schembri had a range of other meetings scheduled on the two days set aside for arbitration, and accepts the explanation provided by the respondent as outlining why that was the case.
When asked, during the arbitration, if he had an application to make given Professor Schembri's unavailability, Mr Steggles did not press an application for Professor Schembri's applicant evidence to be heard on another day.
Professor Schembri's unavailability was, in the totality of the circumstances known to the Commission, a decision taken by Professor Schembri. Professor Schembri was held out by the respondent to be the Chief Executive of the respondent. It is difficult to see that as the decision maker, as the Chief Executive it would not have been possible for Professor Schembri to have determined to attend the arbitration as was expected.
Again, taking Professor Schembri's resume at face value, it is recorded that he was previously a member of the New South Wales Administrative Decisions Tribunal, and in his words "a member of the appeal panel of that tribunal". It is difficult to understand that a former member of that tribunal would not appreciate the significance of being available for cross examination.
The Commission is satisfied that the respondent was repeatedly warned of the risks that it faced if they did not make Professor Schembri available for cross examination, and that it nevertheless persisted in prioritising Professor Schembri's ordinary business meetings over the proceedings of the Commission.
The Commission is satisfied that the decision to proceed without waiting for the convenience of Professor Schembri was the correct decision in all of the circumstances. Any disadvantage visited on the respondent is the inevitable consequence of the decisions made by the respondent.

[146]

Attached to the 12 June 2025 letter was a report supporting the letter of proposed termination. The report sets out two authors of the report, and a decision-maker in respect of the letter proposing termination. All three of these people are different from the purported decision-maker in respect of the applicant's dismissal, Professor Schembri.
It appears from the documentation that the decision maker, in respect of the dismissal, being Professor Schembri, did not have very much to do with preparation of the reports including the investigations leading to the reports. It appears he was not even the decision-maker in relation to the letter of proposed termination.
It is also apparent from the contents of the report that each of the protected conduct raised by the applicant was referenced in some way in the report.
While it was the respondent's submission that read as a whole the reports demonstrated that the various conduct raised by the applicant was expressly rejected as the basis for the warning letter and for the applicant's dismissal, the reports themselves can only be part of the evidence which the respondent would need to provide in order to discharge the reverse onus.
Indeed, in respect of the warning letter, subject to the previous expression of the reverse onus, the documents themselves are of little assistance to the respondent. It is abundantly clear from the High Court's decision in Barclay and from various decisions which have applied that logic that the evidence of the decision-maker in the proceedings in the Commission is fundamental to the respondent discharging its onus. The documents which set out submissions to the decision-maker, and any final documents signed by the decision-maker cannot of themselves be sufficient to discharge the onus when it is the subjective intention of the decision-maker which is the focus of enquiry.
The 20 January 2025 warning letter was not signed by Professor Schembri. The respondent did not file evidence from the author of the letter. Accordingly, the respondent has failed to discharge the onus on it in respect of the 20 January 2025 warning letter.
The Commission has concluded that the same outcome must be reached in respect of the dismissal, although as the test is objective the logic for reaching that conclusion is not as simple as recording the absence of the decision-maker before the Commission.
As observed above at [45]-[53], the objective test now required by s 213(5) requires Commission to consider all of the circumstances in order to determine the "real reason" for the decision to terminate the applicant. Clearly this includes an assessment of the documentary evidence, the applicant's own evidence as well as any evidence from witnesses on behalf of the respondent.
In such circumstances it may be that the Commission did the applicant a disservice in determining to accept Professor Schembri's affidavit for the purpose of having all of the relevant documentation before the Commission. Most of the respondent's documentation setting out its internal processes and reasoning would not otherwise have been before the Commission. In their absence the respondent would have had no evidence of its own on which it could point to an objective basis for the applicant's dismissal not being for a reason proscribed by s 210(1).
In the event, this is assisted the respondent very little. This is because in the absence of Professor Schembri's availability for cross examination, and therefore Commission's decision to afford his evidence other than the documents no weight, the documents lack sufficient context, leave open the possibility that undocumented reasons may have formed a part of the reason for the decision.
Further, as submitted by Mr Latham, the documents disclose a range of other employees of the respondent who were involved in preparing reports and making recommendations on upon which the decision to dismiss the applicant relied. At least three other employees can be identified from the report. None of these people gave evidence for the respondent.
Accordingly, the respondent has failed, by some considerable margin, to discharge the onus of establishing that protected conduct or a protected attribute was not a substantial and operative cause of the dismissal.
Given the foregoing, in this matter it is not necessary for the Commission to expressly determine whether any unconscious reasons infected the decision-makers process. There may have been, but even without that consideration, the respondent has failed to discharge the onus in respect of dismissal.

[150]

As Mr Latham submitted, a Full Bench of the Commission in Ters v Health Secretary in respect of the South Western Sydney Local Health District [2023] NSWIRComm 1009 held that the power conferred by s 213(1) is not limited by the matters set out in s 213(2). It is clear that the Commission has broad powers to remediate acts of victimisation.
The Commission proceeds on the basis that remediating, as best as can be done, should be the guiding principle. This will naturally be largely responsive the victimisation found, and consequences of that victimisation.
Withdrawal of the warning letter of 20 January 2025 was not expressly sought. Nevertheless, it seems proper to the Commission that the respondent be ordered to withdraw that warning, as the most appropriate and direct means to remedy a warning found by the Commission to constitute victimisation.
The Commission satisfied this order is within the powers set out in s 213(1) given the matters address above. It appears to the Commission similar in nature to s 213(2)(e).
Mr Gopinath sought reinstatement and compensation in the form of wages lost since his dismissal. Mr Gopinath contends there is no reason he should not be able to return. The respondent has no evidence relevant to this consideration, even had any weight been given to Professor Schembri's evidence. The respondent simply did not lead evidence, other than as to the absence of victimisation as such, as to reasons why the Commission would not exercise its discretion to reinstate Mr Gopinath.
For the reasons set out above at [65]-[68], there is a basis for the Commission to be sceptical as to the ease with which Mr Gopinath could be reinstated and work harmoniously with all of his colleagues. However, in circumstances where he has so comprehensively succeeded in his application it is appropriate that the Commission order his reinstatement.
The Commission satisfied this order is within the powers set out in s 213 given it is specifically contemplated by s 213(2)(a).
Mr Gopinath should also benefit from an order that his employment be deemed continuous as if his dismissal had never happened. This is the only reasonable outcome given the outcome of the Application.
The Commission satisfied this order is within the powers set out in s 213 given it is specifically contemplated by s 213(2)(g).
The letter dismissing Mr Gopinath sets out that he is to be placed on the Service Check Register (SCR), with consequences for any future job application Mr Gopinath may make across the Health Service. Given that the 20 January 2025 warning letter is to be withdrawn, and Mr Gopinath is to be reinstated, because these were acts of victimisation, there is now no basis on which Mr Gopinath should remain on the SCR. Mr Gopinath should benefit from an order that he be removed from the SCR.
The Commission satisfied this order is within the powers set out in s 213, and in particular that it is a necessary consequential order to properly remediate the victimisation suffered by Mr Gopinath.
The same considerations apply to an order for compensation for lost wages and other financial benefits lost since his dismissal. Mr Gopinath should receive full compensation for such lost wages or benefits such as annual leave amnd long service leave, less any income earned by him during that period.
The Commission satisfied this order is within the powers set out in s 213 given it is specifically contemplated by s 213(2)(c).
Calculating this compensation is somewhat complicated. Based on the letter of dismissal, Mr Goinath was paid out his accrued entitlements to that point. Given the order that his employment be considered continuous, the parties should seek to restore Mr Gpoinath's leave and other accruals to the level they would have been had his employment been continuous. Given that Mr Gopinath may have needed to spend some of the pay out of his entitlements, the parties should calculate the leave and other entitlements and then discuss how to restore the balance. This may include either repayment by Mr Gopinath or use of payments for foregone wages to restore those balances.
The Commission proposes to direct that the parties confer as to the amount which should be ordered, failing which the parties are granted leave to contact the Registry seeking to have the matter relisted for the Commission to determine the quantum of compensation in respect of back pay and restoration of leave balances.
There was no evidence before the Commission which would be a basis for non-economic losses. Accordingly, none is ordered.

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