Kumari v State of New South Wales, NSW Treasury

1. The Applicant asserts that the actions 1 - 4 as listed above occurred "immediately following the Applicant's submission of protected disclosures to the Secretary of NSW Treasury on 17 January 2025" (Reply at 2.1). As regards the failure of the Respondent to acknowledge or otherwise address the Applicant's formal complaints dated 3, 4 and 8 March 2025 the Applicant also appears to allege that this was the result of her protected disclosures, which I understand she says were made on 17 January 2025 and 3, 4 and 8 March 2025.
2. In response to the Respondent's solicitor's request that the Applicant "identify which subsection in s 210(1) was the alleged cause of my client's victimisation" the Reply stated (at 3]:

" The Applicant submits that the conduct giving rise to these proceedings, when considered in its entirety, engages multiple subsections of section 210(1), based on the totality of the conduct alleged and the evidentiary material provided to the Commission. The Applicant respectfully submits that the Commission is not confined to considering only those subsections of section 210(1) of the Industrial Relations Act 1996 (NSW) that are expressly identified below. Consistent with its fact-finding function and discretionary powers, the Commission may make such orders as are appropriate in relation to any subsection of section 210(1), or any other relevant provision, where supported by the evidence before it.

The following subsections of section 210(1) are specifically engaged by the conduct alleged and are of direct relevance to the Commission's consideration of the Applicant's claim of victimisation:

a) 210(1)(e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or

b) 210(1)(f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or

c) 210(1)(g) participates, or proposes to participate, in proceedings relating to an industrial matter, or

d) 210(1)(j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011, or"

1. The Reply does not identify the facts said by the Applicant to meet the elements of s 210(1)(e), (f), (g) and (j).
2. I pause at this point to refute any notion that the Commission is not confined to considering only the matters prescribed in s 210(1) when determining whether an employer (or industrial organisation) has victimised an employee (or prospective employee). Leaving aside that the Commission is a statutory body whose powers must be found in legislation, section 210 prescribes a list of attributes or circumstances which must apply to an employee, before a finding could be made that an employee has been victimised as proscribed by the provision. Even if a court with inherent jurisdiction were to consider the question, it could not find a contravention of s 210 in the absence of at least one of the matters prescribed in s 210(1).

1. Before setting out the arguments of the parties, it is helpful to set out what the evidence relied upon by the parties reveals as to the chronology of events.
2. The Applicant is employed as an economist with NSW Treasury. She has been unfit to work by reason of a psychological injury since either 21 February 2022 or 30 May 2022 and has been in receipt of workers compensation benefits. The exact date on which the Applicant ceased work and/or commenced receipt of workers' compensation is not relevant for present purposes. It is not disputed that the Applicant has not worked since at least May 2022 and was in receipt of weekly workers' compensation payments until 18 January 2025. The Application asserts that the Applicant "suffered significant psychological injury while employed at NSW Treasury in 2022 due to workplace discrimination, harassment, retaliation, alienation and bullying". The Application does not particularise this claim.
3. The Applicant was required by the Respondent's workers compensation insurer, Allianz, to attend an Independent Medical Examination (IME) by telephone on 17 January 2025. She did not attend the IME.
4. On 17 January 2025, the Applicant's solicitor, Mr Thakur, wrote to the Secretary of the NSW Treasury, alleging that very senior personnel of NSW Treasurer "may be implicated in corrupt conduct" and stating:

"In this regard, we respectfully draw your attention to Sections 7,8, and 9 of the Independent Commission Against Corruption Act 1988 (the ICAC Act). Furthermore, in accordance with Section 11 of the ICAC Act, which imposes a "Duty to notify Commission of possible corrupt conduct," there exists a clear duty to notify the Commission wherever there is possible corrupt conduct.

It is our understanding, however, that the aforementioned legislative requirements have not been duly observed, despite the presence of records suggesting corrupt conduct and other matters within the jurisdiction of ICAC NSW.

Accordingly, we respectfully request that you take such steps as you deem necessary in relation to this matter and, should you notify the Commission about this compliant, please provide us with a copy of the notification."

1. The letter did not provide any details of the alleged corrupt conduct or otherwise explain the factual basis for the serious allegations made in the letter. On the face of it, the letter raises a real question as to whether, in sending the letter, Mr Thakur breached r 21.4 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015.
2. On 20 January 2025, Allianz sent a letter to the Applicant, care of Mr Thakur, which relevantly read as follows:

"Bindu, we are writing in relation to previous notices sent to you via your solicitor Mr Harsh Thakur regarding an Independent Medical Examination appointment that was made for 11:00am on 17/01/2025 with Dr Juan (Carlos) D'Abrera, psychiatrist, via telehealth.

We advised you that you must reasonably establish that you were complying with the requirements of S.119 of the Workplace Injury Management and Workers Compensation Act 1998 by attending this appointment.

Based on the information outlined below, we are not satisfied that you have met the requirements outlined in S.119 of the Workplace Injury Management and Workers Compensation Act 1998.

▪ Allianz has received confirmation from Medilaw that you did not attend the appointment with Dr D'Abrera at 11:00am on 17/01/2025

Accordingly, subject to the provisions of S.119(3) of the Workplace Injury Management and Workers Compensation Act 1998, your right to weekly payments (S.119(3)(b)) is suspended effective 18/01/2025.

The suspension of your entitlements will be in force unless you satisfy the requirements detailed below.

This notice of decision is given in accordance with Section 119 of the 1998 Act and Section 78 of the 1998 Act

This decision was made by Peter L, Team Manager, on 20 January 2025 and was reviewed and confirmed by Melissa R_,_ Technical Specialist, on 20 January 2025.

To enable your weekly payments of compensation to be reinstated you must now comply with the following obligations:

▪ Advise Allianz or our legal representatives, Hall and Wilcox, that you agree to submit yourself to a further Independent Medical Examination. You may provide this advice through your solicitor, Mr Thakur.

▪ Confirm your agreement and participation in the Independent Medical Examination selection and booking process. You may provide this confirmation through your solicitor, Mr Thakur.

▪ Attend a rescheduled Independent Medical Examination. This examination is to be booked by Allianz, through Hall and Wilcox, following the confirmation of the two points above.

Important information

If you comply with all of these obligations, your weekly benefits will be reinstated from the date that you are compliant with all of these obligations.

Please note that under Section 119A of the 1998 Act, the resumption of weekly benefits does not entitle you to receive payment for the period of the suspension where you were not meeting the required obligations."

1. The letter went on to outline the ability of the Applicant to seek a review of the decision or to dispute the decision.
2. On 23 January 2025 the Deputy General Counsel, NSW Treasury, sent an email to Mr Thakur attaching a letter dated 20 January 2025 requiring the Applicant to attend a fitness for duty assessment via Teleheath on 3 February 2025 in accordance with reg 15 of the Government Sector Employment Regulation 2014 (NSW) (GSE Regulation). Regulation 15 of the GSE Regulation provides:

15 Fitness for duty

(1) For the purposes of this clause, a Public Service employee is not fit for duty if the health of the employee -

(a) may render the employee a risk to the health and safety of other Public Service employees or the general public, or

(b) is likely to be seriously affected by the employee remaining on duty or, if the employee is absent from duty, by the employee resuming duty.

(2) If the agency head has reason to believe that a Public Service employee is not fit for duty, the agency head may direct the employee to submit to such medical examination or other health assessment as the agency head may, on the advice of a nominated medical assessor, consider necessary.

(3) A Public Service employee to whom an agency head gives a direction under subclause (2) -

(a) must, if on duty, cease duty immediately, and

(b) must not resume duty until the completion of the medical examination or other health assessment concerned unless the concurrence of a nominated medical assessor is first obtained or a certificate is furnished by a medical practitioner that the employee is fit for duty.

(4) If the agency head receives a health assessment from a nominated medical assessor that a Public Service employee is fit for duty and the employee is absent from duty, the agency head is to direct in writing that the employee must resume duty.

(5) If the agency head receives a health assessment from a nominated medical assessor that a Public Service employee is not fit for duty -

(a) the agency head is to direct in writing that the employee must cease duty immediately or, if absent from duty, must not resume duty, and

(b) the employee must not resume duty unless the agency head, on the advice of a nominated medical assessor, approves the resumption of duty in writing.

(6) If a direction has been given to a Public Service employee under subclause (4) or (5), the nature of the leave, if any, to be granted to the employee during the absence from duty is to be determined by the agency head after consideration of any relevant advice of the nominated medical assessor.

(7) The agency head is to give the health care professional providing a health assessment of a Public Service employee under this clause any requested information about the employment of the employee that is reasonably required for the purpose of providing the assessment.

(8) In this clause -

nominated medical assessor means a person or body, or a person who is a member of a class of persons, nominated by the Public Service Commissioner for the purposes of this clause.

1. The Deputy General Counsel's letter of 20 January 2025 was not put in evidence, but the saliant contents of the letter are able to be gleaned from subsequent emails between her and Mr Thakur. The emails commence with an email from Mr Thakur dated 24 January 2025 requesting that the Deputy General Counsel "disclose the source of the information contained in [her] email and its attachments, including a detailed explanation of the methods by which such information was obtained and subsequently verified." Mr Thakur also sought "a comprehensive clarification of the legal basis for the application of the provisions referenced in your correspondence."
2. In an email to Mr Thakur dated 28 January 2025 the Deputy General Counsel stated:

"As set out in my letter dated 20 January 2025, Treasury has the authority to direct Ms Kumari to attend a medical assessment under s 15 of the GSE Regulation. The basis for this direction, as explained in my letter, is the advice from Ms Kumari's doctor that she has no current work capacity until 19 February 2025 in circumstances where she has had no work capacity since February 2022."

1. Mr Thakur replied by email the same day requesting "a detailed response to the issues raised therein, rather than proceeding to a decision suo moto."
2. The Deputy General Counsel replied to Mr Thakur on 29 January 2025 again explaining the source of the power to direct that the Applicant to attend a medical assessment and the basis for the exercise of that power and explaining that if the Applicant "considers Treasury possesses inaccurate information about her medical condition or work capacity, she may provide her material and evidence to Dr Smith for his consideration during the assessment on 3 February 2025."
3. On 2 February 2025, Mr Thakur sent an email to the Secretary of NSW Treasury. It commenced by stating that the email "addresses the same matter previously raised in our letter dated January 17, 2025." In short, the email:

(1) complained about the use of different terminology for the medical assessment the Applicant had been directed to attend;

(2) stated that the "directive appears to be predicated on inaccurate and misleading information, including an alleged request for the scheduling of a 'specialist assessment' on our client's behalf, as well as the citation of an irrelevant statutory provision without explanation of its applicability, despite our specific request for clarification. We have serious concerns that official government records may have been manipulated or misrepresented to construct a false narrative, potentially with the intent of improperly influencing legal determinations";

(3) suggested that the Applicant's salary had been "unlawfully suspended by Allianz's letter dated January 20, 2025" and alleged that "no documentation had been provided that outlines the legal authority justifying this action";

(4) alleged conflicts of interest by certain named employees within NSW Treasury; and

(5) stated a concern that "our complaint may have been disclosed to NSW Treasury senior officials implicated in this matter, which undermines the integrity of the process and the protections that should be afforded to Ms Kumari" and demanded that "no individual implicated in corrupt conduct directly or indirectly participates in any further decisions affecting Ms Kumari."

"In light of the seriousness of these issues, we request your response by close of business on February 5, 2025, addressing the following:

1. Legal basis of [the Deputy General Counsel]'s email and attachments, supported by evidence and explanation.

2. An explanation as to why the matter has not been reported to ICAC NSW, notwithstanding the evidence contained in the records of NSW Treasury.

3. Confirmation that Ms Kumari's legal protections and safety are being adequately safeguarded."

1. On 6 February 2025, Mr Thakur sent a further email to the Secretary of the NSW Treasury demanding "the immediate reinstatement of compensation under the Workers Compensation or, alternatively, a legally valid justification, including the precise statutory provision and supporting evidence upon which the decision to suspend payments is based" and that the Applicant "is not subjected to any further retaliation or misuse of official position for unlawful purposes."
2. On 7 February 2025 and 10 February 2025, the General Legal Counsel for the Respondent, responded to Mr Thakur's email communications to the Secretary. These letters were not put into evidence, but a significant part of the content of them was set out in Mr Thakur's subsequent correspondence.
3. On 13 February 2025, Mr Thakur sent a further lengthy email to the Secretary of the NSW Treasury contesting matters that the General Legal Counsel had written in his letters to Mr Thakur dated 7 and 10 February 2025. It suffices to record that in the email Mr Thakur:

(1) made allegations of breaches of the Public Interest Disclosures Policy (PID Policy) and Public Interest Disclosures Act 2022 (NSW) (PID Act);

(2) alleged that "as a direct consequence" of the breaches of the PID Policy and the PID Act, "and in contravention of the safeguards enshrined in the PID Act, Ms Kumari' weekly payments were suspended without lawful justification";

(3) repeated his allegations of conflicts of interest and made allegations of misconduct by the General Legal Counsel in the withholding of information from ICAC;

(4) made various demands for information and documents related to the General Legal Counsel's determination that the Applicant's report was not a public interest disclosure in accordance with the requirements of the PID Act;

(5) made various demand for information, confirmations and documents related to the General Legal Counsel's determination that the Respondent had no duty to report anything to ICAC, because "Ms Kurmari had not provided reasonable grounds for the allegation of corrupt conduct";

(6) again demanded "specific legal authority" for the directive the Deputy Legal Counsel had issued to the Applicant; and

(7) again demanded a response setting out "the legal basis for the delay, refusal, or rejection of the reinstatement of weekly wages under the Workers Compensation".

1. On 19 February 2025 Mr Thakur sent an email to the Secretary of NSW Treasury attaching a Certificate of Capacity for the Applicant dated 17 February 2025. The Certificate stated that the Applicant has no current work capacity from 20 February 2025 to 18 August 2025.
2. On 21 February 2025, the Deputy Legal Counsel wrote to the Applicant, care of Mr Thakur, noting that the Applicant did not attend the medical assessment arranged for 3 February 2025 and had given no notice of, or explanation for, the non-attendance. The letter requested that an explanation for the non-attendance be provided by 7 March 2025 and advised of a further direction, issued by the Director Business Partnering and Talent, to attend a fitness for duty assessment on 11 March 2025. The letter enclosed various documents related to the assessment. The letter concluded as follows:

"Failure to attend the assessment on the 11th of March 2025 without reasonable excuse may lead to the commencement of a misconduct investigation against you under pt 8 of the Government Sector Employment (General) Rules 2014. One possible outcome of a misconduct investigation is a finding that you have engaged in misconduct under s 69 of the Government Sector Employment Act 2013 (the GSE Act). If such a finding is made, Treasury may terminate your employment under s 47(1)(h) of the GSE Act.

I also draw to your attention s 47(1)(d) of the GSE Act and the power it provides to terminate employment where an employee is unable to perform the duties of the role assigned because of physical or mental incapacity.

I draw s 47(1)(d) and (h) to your attention so that you are aware of the legal options available to Treasury in relation to your unfitness for work."

1. On 3 March 2025 Mr Thakur sent an 8-page email to the Secretary of NSW Treasury. The email is headed, "Unlawful Adverse Actions against Ms Bindu Kumari, Protected under the Public Interest Disclosures Act 2022 and Workers' Compensation".
2. The email, like those before it, makes numerous complaints, allegations and demands, this time directed to the content of the Deputy Legal Counsel's letter of 21 February 2025. In summary, the email, inter alia:

(1) alleges that factual statements contained in the Deputy Legal Counsel's letter were false or inaccurate and could constitute an offence under the Crimes Act 1900 (NSW);

(2) sought a confirmation that a work, health and safety risk assessment with respect to the Applicant attending the medical assessment had been conducted and alleged that the risk of her attending the medical assessment outweighed the benefit;

(3) disputed the authority of the Director Business Partnering and Talent to direct the Applicant to attend the medical assessment;

(4) disputed that the Applicant had engaged in misconduct, that any reliance on s 47(1)(d) and (h) of the GSE Act was "legally flawed" and asserted that any "attempt to terminate her based on medical incapacity would constitute disability discrimination under the Anti-Discrimination Act 1977 (NSW).";

(5) complained that the "Privacy and Consent to Release Medical Information" form that was enclosed with the letter and which the Applicant was required to complete, referred to "NSW Fire and Rescue" and "NSW Transport" (which regrettably was in fact in the case);

(6) made various demands for information, confirmations and documents;

(7) alleged corrupt conduct by the Deputy Legal Counsel; and

(8) again, demanded reinstatement of the Applicant's workers' compensation.

"We have serious concerns that NSW Treasury first suspend Ms Kumari's compensation and is now intending to terminate Ms Kumari's employment arbitrary, unlawful or illegal basis, which appears to be in retaliation for her corrupt conduct complaint submitted to you on January 17, 2025.

Please be advised that we require all information and documents requested in this email by COB March 3, 2025, to provide us an opportunity to respond to you by COB on March 4, 2025, i.e. [the Deputy General Counsel's] timeline. Failure to provide the above evidence within the stipulated timeframe will release Ms Kumari from any obligation to comply with instructions in [the Deputy General Counsel's] email dated February 21, 2025.

In addition, this email also constitutes a formal complaint of unlawful discrimination in the workplace on the grounds of Ms Kumari's disability, race, color, descent, national origin or ethnic origin, or immigrant status. Ms Kumari believes that she is being treated less favourably than somebody else would have been in her position.

Further, this email also constitutes a formal complaint concerning the above matters, which we consider is not safe or is a risk to health of Ms Kumari."

1. The General Legal Counsel responded to Mr Thakur's email of 3 March 2025, by email dated 3 March 2025, which, inter alia, complained that Mr Thakur continued to breach r 33 of the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 by sending correspondence to the Secretary instead of the Deputy Legal Counsel.
2. Mr Thakur sent a further email to the General Legal Counsel on 4 March 2025. The General Legal Counsel replied to that email on 5 March 2025 which elicited a further response from Mr Thakur on 8 March 2025. In that email Mr Thakur, inter alia:

(1) stated "we are still awaiting investigation by a qualified official into the corrupt conduct complaints submitted to [the Secretary], including, but not limited to, the complaint dated March 3, 2025, and the provision of an opportunity for our representation in the process.";

(2) referred to the "corrupt conduct complaint" against the Deputy Legal Counsel dated 3 March 2025 and invited reference to "section 307B, 307C, 249K of Crimes Act 1900, Part 3 Protection of State records (21 Protection measures) State Records Act 1998, and Section 21 of the Privacy and Personal Information Protection Act 1998 (NSW)."[2]; and

(3) requested "the specific legal provision upon which you are relying to prevent us from submitting a corrupt conduct complaint to [the Secretary]".

1. Mr Thakur's email of 8 March 2025 concluded with:

"We wish to bring to your attention our serious concerns regarding the victimisation of the complainant, Ms Kumari."

1. The Respondent submitted that the Application discloses no reasonable cause of action for two reasons:

(1) the alleged detrimental action (which the Respondent identified as the suspension of the Applicant's workers compensation payments), was not action "by" the Respondent, rather it was a statutory prescribed consequence under s 119(3) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIMWC Act) caused by the Applicant's refusal to submit herself to an examination under that section;

(2) there is no basis in law to find that the protected attributes identified by the Applicant caused any victimisation.

1. Section 119(1) - (3) of the WIMWC Act provide:

(1) A worker who has given notice of an injury must, if so required by the employer, submit himself or herself for examination by a medical practitioner, provided and paid by the employer.

(2) A worker receiving weekly payments of compensation under this Act must, if so required by the employer, from time to time submit himself or herself for examination by a medical practitioner, provided and paid by the employer.

(3) If a worker refuses to submit himself or herself for any examination under this section or in any way obstructs the examination -

(a) the worker's right to recover compensation under this Act with respect to the injury, or

(b) the worker's right to the weekly payments,

is suspended until the examination has taken place.

"Allianz, the Respondent's insurer with respect to the Applicant, had the power to issue a direction to the Applicant under s 119(1). The Applicant refused to submit herself to an examination under s 119(1). Because of the Applicant's refusal, by automatic operation of s 119(3), the Applicant's right to weekly payments was suspended. That was not action taken by any person, rather, it was a statutorily prescribed consequence of the Applicant's own conduct."

1. The Respondent says that Allianz (rather than the employer, as referred to in s 119) had the power to direct the Applicant to attend an examination by reason of cl 12 of Part 3 of Sch 3 of the Workers Compensation Regulation 2018 (NSW) which provides:

12 Subrogation

The Insurer can use the name of the Employer in any proceedings to enforce, for the benefit of the Insurer, any order made for costs or otherwise. The Insurer has the right of subrogation in respect of all rights which the Employer may have against any person or persons who may be responsible to the Employer or otherwise in respect of any claim for any injury covered by this Policy. The Employer must execute such documents as may be necessary for the purpose of vesting any of those rights in the Insurer, as and when required to do so by the Insurer.

1. The Respondent submits, at RS [16], that even if Allianz did not have the power to direct the Applicant to attend the examination "that could not transform the suspension of the Applicant's weekly payments ... into "action by" the Respondent".
2. The Respondent also submits, at RS [17], that as the suspension of the payments occurred on 20 January 2025 (actually 18 January 2025), that is, more than 21 days before the date the Application was filed, the Application is out of time under s 213(3) of the IR Act and "although the Commission may have a discretion to accept the Application out of time despite an applicant making no formal application for an extension of time there is no reason why the Commission would accept the Application in the present case."
3. At RS [18] - [26] the Respondent submitted that none of the protected attributes identified by the Applicant, being the attributes prescribed in s 210(1)(e), (f), (g) and (j) are capable of being established. At RS [25] the Respondent submitted that to the extent that the Applicant's complaints of 3, 4 and 8 March 2025 "are capable of being complaints under s 210(1)(j) of the IR Act, a conclusion which may be strongly doubted, the relevant protected attribute could not have caused the alleged victimisation [of suspension of workers compensation payments and entitlements] because the complaints occurred after the alleged victimisation in January 2025."
4. In the alternative, the Respondent submitted that the Application should be struck out in its entirety pursuant to r 14.28 because it discloses no reasonable cause of action or had a tendency to cause prejudice, embarrassment or delay in the proceeding. At RS [29] - [30] the Respondent submitted:

"The Respondent submits that the Application and the Reply are unintelligible, ambiguous, vague or too general, and should be struck out for that reason.

In the Reply, the Applicant asserts that "a comprehensive factual and evidential foundation" for her victimisation application was set out in her Application. This is incorrect. The Application is a 51-page bundle of unintelligible emails by the Applicant through her legal representative to the Respondent complaining about a number of perceived issues. It would be contrary to the just, quick and cheap resolution of the proceeding, to require the Respondent to wade through over 50 pages of incomprehensible material to piece together the case it is required to meet."

1. The Respondent noted at RS [32] - [39] that the Applicant has been given ample opportunity to plead her case and was on notice that if she failed to do so the Respondent may file a summary dismissal and/or strike out application.
2. The AS failed to grapple with any of the factual and legal arguments raised in the RS. Rather the AS outlined, reasonably accurately, the legal principles that apply to summary dismissal applications and submitted, without reference to any specific matter, that the high threshold required before a matter will be summarily dismissed, had not been reached. On page 2 of the AS the Applicant submitted:

"The following documents have been filed in support of the application:

●The Application for Relief from Victimisation, filed on 10 March 2025;

● Email correspondence dated 1 April 2025; and

● A detailed Response with annexures, dated 11 April 2025;

● Transcripts of proceedings dated 20 March, 4 April, and 15 April 2025.

These documents collectively identify the essential elements of the Applicant's case, including the nature of the alleged adverse action, detriment suffered, the protected disclosures made, the statutory framework relied upon, and the specific relief sought under section 213(2). The application is particularised, supported by contemporaneous evidence, and procedurally compliant.

The Respondent has not provided any substantive response to the claims made, nor has it meaningfully engaged with the issues raised by the Applicant. Instead of seeking clarification or utilising procedural avenues such as a request for further and better particulars, the Respondent has opted to prematurely invoke summary procedures. This approach is inconsistent with principles of procedural fairness."

1. On page 2 - 3 of the AS the Applicant submitted that the Respondent has bypassed a procedural step in filing its motion instead of (again) advising the Applicant that the particulars she had given her solicitor's letter of 11 April 2025 were inadequate. The Applicant submitted on page 5 of the AS that summarily dismissing proceedings brought under s 213 "before pleadings are closed, and without engaging with the merits, risks undermining the statutory objectives of the [IR] Act." The Applicant then went further and submitted:

"The circumstances surrounding the filing of the Motion suggest that it was initiated in response to the Applicant's assertion of her rights under the Industrial Relations Act 1996 (NSW), rather than as part of a procedurally measured or necessary step. It was filed without first raising any concerns about the adequacy of the Applicant's particulars and in the absence of procedural engagement consistent with the Respondents earlier foreshadowed approach.

This sequence of events raises concerns as to procedural fairness and the appropriate use of interlocutory mechanisms. It may also give rise to a further allegation of victimisation for the purposes of section 210(1)(g) of the Act.

The Commission is respectfully invited to consider whether the procedural conduct adopted by the Respondent amounts to an abuse of process and a continuation of the adverse treatment alleged in the substantive application."

1. It is abundantly clear that the Applicant's claim for relief from victimisation is untenable and cannot succeed.
2. At the outset let me say that there is nothing special about a victimisation claim brought pursuant to ss 210 and 213 of the IR Act which inoculates it from summary dismissal, contrary to the Applicant's submissions. Victimisation claims in particular, require careful articulation of the claim due to the reverse onus of proof established by s 210(2). As I explained in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police [2024] NSWIRComm 1001 at [51]:

"51. The nature of proceedings under s 213 of the IR Act and the obligation on a respondent to rebut the presumption set up pursuant to s 210(2) means that it is important that the respondent understands precisely:

1. what action the employee alleges the respondent engaged in that caused the employee detriment; and

2. which of the protected matters listed in s 210(1) it is alleged the employee enjoyed,

so the respondent can first, if it wishes, answer the allegation that the employee suffered detriment by reason of the respondent's action and/or that the employee enjoyed one of the protected matters listed in s 210(1) and then, if it considers it needs to do so, lead evidence to satisfy the Commission that the alleged matter referred to s 210(1) was not a substantial and operative cause of the detrimental action. As Chief Commissioner Constant explained in Kinninmont v Ku-ring-gai Council [2020] NSWIRComm 1064:

78. The nature of proceedings under s 213 of the IR Act, and the obligation on the respondent to adduce evidence of the central issue to rebut the reverse onus mean there is a need for an allegation to identify precisely and distinctly the alleged reason, or the alleged intent, for the contravening conduct so that the respondent can lead evidence in the proceedings to rebut the presumption. An applicant wishing to take advantage of the presumption, in addition to making the allegation in a form that meets the requirements of s 210, must provide sufficient information about the action, and the related reason and/or intent for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of s 210.

79. Before an employer can disprove an alleged contravention it must be clearly stated. It is impermissible in this statutory scheme to require the respondent to distil or interpret, or go looking for, the allegations to which it must respond, and about which it must lead evidence in order to displace the presumption. It is not sufficient for the applicant to assert that the respondent could have asked for further and better particulars. Although the Commission is not a court of strict pleadings, this does not absolve a litigant from being required to enunciate its case in a consistent and clear manner and the respondent cannot be held to the reverse onus in respect of matters not clearly articulated in the Amended Victimisation Application but raised in final submissions."

1. I agree with the Respondent that the Application failed to properly articulate or particularise the Applicant's claim and it is entirely contrary to the just, quick and cheap resolution of the proceeding to require the Respondent to wade through over 50 pages of largely inscrutable material, much less transcript of conciliations and directions hearings, to understand the case it has to meet. At the very least the Application needs to be entirely struck out and amended. The question then is, is there an arguable case on the material filed, such that leave to amend should be granted? The answer to that is no.
2. Before explaining why, I must reject the Applicant's submission that the Respondent's motion was either further victimisation of the Applicant or an abuse of process. Such submissions should not have been made. The Application as filed is clearly deficient. The Respondent had every right to request further and better particulars and upon not be satisfied with the response and after giving the Applicant ample opportunity to provide further particulars and putting the Applicant on notice at least twice that it may apply for summary dismissal, to file a motion for summary dismissal. It is concerning indeed that the Applicant's solicitor stated, on page 5 of AS, that the motion "was filed without first raising any concerns about the adequacy of the Applicant's particulars". That is simply not borne out on the evidence.
3. I have endeavoured to understand from the filed material, what the Applicant contends constitutes victimisation by the Respondent contrary to s 210 of the IR Act. If an arguable claim were revealed by the material, instead of summarily dismissing the claim, it may have been appropriate to strike out the Application, with leave to amend. However, I could discern no such claim.
4. To the extent any claim is made for victimisation due to events in 2022, such claim cannot succeed as it is out of time and in any event, there is no allegation that a matter referred to in s 210(1) was the cause of these events.
5. Drawing on my analysis set out at [41] and [46] above, I understand the balance of the Applicant's claim to be that:

(1) her workers' compensation payments were suspended, along with any associated entitlements such a superannuation, on 18 January 2025, due to her having made an unparticularised complaint of corrupt conduct against senior officials of NSW Treasury on 17 January 2025;

(2) she was not afforded paid leave following the suspension of her workers compensation payment on 18 January 2025, and her leave records were amended, due to her having made an unparticularised complaint of corrupt conduct against senior officials of NSW Treasury on 17 January 2025;

(3) on 21 February 2025, the Respondent threatened a misconduct investigation or termination of the Applicant's employment, based on inaccurate and incorrect information, due to her having made the complaints set out in her solicitor's correspondence dated 17 January 2025, 2 February 2025, 6 February 2025, 13 February 2025, and 19 February 2025; and

(4) she did not receive a response to her complaints dated 3, 4 and 8 March 2025 due to the sending of the emails referred to above, and perhaps from the complaints themselves.

1. The first and second alleged acts of victimisation cannot succeed for a number of reasons. First and foremost, it cannot succeed because the complaint the Applicant made, via her solicitor, on 17 January 2025, did not engage a sub-section of s 210(1). The complaint referred only to unspecified "corrupt conduct" within the meaning of the ICAC Act. The Applicant may be entitled to certain protections under the ICAC Act or the PID Act by reason of having made such a complaint, however it is not caught by anything prescribed in s 210(1). Neither the ICAC Act or the PID Act come within the definitions contained in the Dictionary to the IR Act of "industrial relations legislation" or "industrial instrument", as referred to in s 210(1)(e) and (f). This is fatal to the Applicant's claims.
2. Further, the cessation of workers compensation payment and with it, the cessation of any related benefits, was not the act of the Respondent, but was either a "statutory prescribed consequence of the Applicant's own conduct", as asserted by the Respondent, or the action of Allianz, the workers compensation insurer, specifically the two decision makers identified in Allianz's letter dated 20 January 2025. As I said in Jaggi v Burwood Council [2025] NSWIRComm 1025 at [236}:

"Victimisation must arise from the action of the employer which causes a detriment to an employee. That the employer must have engaged in some kind action, is recognised by s 210(2) which refers to an employee suffering "detriment as a result of action by the employer"."

1. Lastly, the alleged detriment occurred more than 21 days before the Application was filed and accordingly the Application is out of time under s 213(3) of the IR Act. The 21-day time limit begins to run as at the date of each asserted detriment suffered by an employee: Grant v Commissioner of Police [2025] NSWIRComm 1000; 337 IR 419 at [86]. No extension of time has been sought by the Applicant.
2. The third alleged act of victimisation, that is, that on 21 February 2025, the Respondent threatened a misconduct investigation or termination of the Applicant's employment, based on inaccurate and incorrect information, due to her having made the complaints set out in her solicitor's correspondence dated 17 January 2025, 2 February 2025, 6 February 2025, 13 February 2025, and 19 February 2025, also cannot succeed as nothing contained in those complaints engages a sub-section in s 210(1).
3. Nothing in those complaints refers to any benefit under or breach of, industrial relations legislation or an industrial instrument, consequently neither s 210(1)(e) or (f) are engaged.
4. The only proceedings relating to an industrial matter in which the Applicant is or was participating are these proceedings, which commenced on 10 March 2025, after the letter of 21 February 2025 was sent. There is no evidence that the Applicant was proposing to participate in any other proceedings relating to an industrial matter. Section 210(1)(g) is thus not engaged.
5. The first time any complaint is made that could be considered to be complaint about a workplace matter that the person considers is not safe or a risk to health so as to engage s 210(1)(j), is contained in Mr Thakur's email to the Secretary of NSW Treasury dated 3 March 2025. Consequently, s 210(j) was not engaged on 21 February 2025.
6. For completeness, I note that the absence of a protected attribute is also fatal to any claim that the Respondent's action in directing the Applicant, on 23 January 2025 or 21 February 2021, to attend a medical assessment pursuant to reg 15 of the GSE Regulation, constituted victimisation, although no such claim was made in any event.
7. The final alleged act of victimisation, that is, that the Applicant did not receive a response to her complaints dated 3, 4 and 8 March 2025 due to the sending of the emails referred to above, and perhaps from the complaints themselves, also cannot succeed.
8. Assuming that a failure to respond to the Applicant's complaints, as set out in her solicitor's emails of 3, 4 and 8 March 2025, can constitute a detriment for the purposes of s 210, and I have grave doubts about that, the allegation is not borne out by the facts. The email of 3 March 2025 was responded to by the Respondent's General Legal Counsel on the same day. The email of 4 March 2025 was responded to by the General Legal Counsel on 5 March 2025. All of the emails were responded to by the Crown solicitor on 27 March 2025.
9. Plainly the Applicant is dissatisfied with the responses her solicitor has received, and she takes issue with the Respondent's apparent inaction in relation to her alleged protected disclosures of corrupt conduct; with the Respondent's and/or Allianz's application of the WIMWC Act; and with the Respondent's application of the GSE Act and/or GSE Regulation, however even if the Applicant's concerns are justified (about which I express no view), this does not constitute victimisation for the purposes of s 210. Victimisation is a statutory concept. To obtain relief for victimisation pursuant to s 213 the Applicant must establish the existence of a protected attribute in s 210(1) of the IR Act and allege that she has suffered a detriment because of the protected attribute; and the Respondent must fail to satisfy the Commission that the protected attribute was not a substantial and operative cause of the detrimental action.
10. The only possible protected attribute that arises in this case is the complaint made on 3 March 2025, that the suspension of compensation and the threatened termination of Mr Kumari's employment was "not safe or is a risk to health of Ms Kumari." While is it debatable that this meets the requirements of s 210(1)(j), particularly in circumstances where Ms Kumari has not been at the workplace since 2022, the only alleged detriment that the Applicant suffered because of this attribute was a failure by the Respondent to respond to the complaint and to the emails of 4 and 8 March 2025. As already observed that simply cannot be established on the evidence.

1. In the premises, I am satisfied that there is no legally tenable cause of action and that it is not in the public interest to allow scarce judicial resources to be wasted in dealing with this hopeless Application. The proceedings should be dismissed, along with the Applicant's notice of motion which was filed after the Respondent's motion seeking summary dismissal.
2. If the Applicant conscientiously considers, after obtaining appropriate legal advice, that her rights under the PID Act, the WIMWC Act, the GSE Act, the GSE Regulation, the Anti-Discrimination Act 1977 (NSW) or any other Act, have been impinged upon she should seek whatever recourse is indicated under those Acts.
3. I order:

The proceedings commenced by Application for Relief from Victimisation filed on 10 March 2025, including the Applicant's notice of motion filed on 20 May 2025, is dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005.

[1] Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police [2024] NSWIRComm 1001 at [31], approved by the Full Bench in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Commissioner of Police, New South Wales Police Force [2024] NSWIRComm 1062 at [40].