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[2026] NSWIRComm 1109
General information, not legal advice.
Industrial Relations Commission (NSW)
2026-11-02
Deputy President Howell
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Muhammad v Transport Secretary o/b Transport for NSW [2026] NSWIRComm 1109
Hearing dates: 15 October 2026
Date of orders: 02 November 2026
Decision date: 02 November 2026
Jurisdiction: Industrial Relations Commission
Before: Deputy President Howell
Decision: 1. The Commission accepts the Application (now pressed as an Amended Application) out of time, insofar as it alleges unlawful victimisation arising from the conduct described in my reasons for decision as Detriments 4, 5 and 6. The application to extend time in relation to the conduct described as Detriments 1, 2, 3 and 7 is refused.
2. The Applicant is directed to file a Further Amended Application reflecting this decision by 4:00pm on Friday 13 November 2026.
3. The matter is listed for Directions at 9:15am on Tuesday 17 November 2026 via AVL.
Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Victimisation – Application filed out of time – Whether the Commission should accept the application out of time – Proceedings commenced in FWC within time – Commission accepted sufficient reason to accept application out of time
Legislation Cited: Industrial Relations Act 1996 (NSW)
Cases Cited: Agar v Hyde [2000] HCA 41; 201 CLR 552
Child Protection (Working with Children) Award 2014 [2015] NSWIRComm 8
Davis v Amalgamated Television Pty ltd (1998) 81 IR 364
Federated Municipal and Shire Council Employees’ Union of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311
General Motors Holdens Pty Ltd v Bowling (1976) 51 ALJR 235
General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125
Gopinath v Health Secretary in respect of Northern Sydney Local Health District [2025] NSWIRComm 1113
Grant v Commissioner of Police [2025] NSWIRComm 1000; (2025) 337 IR 419
Grant v Commissioner of Police (No 2) [2025] NSWIRComm 1060
Nagle v Tilburg (1993) 51 IR 8
PSA v Commissioner of Police [2025] NSWSC 624
Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police, New South Wales Police Force [2024] NSWIRComm 1001
Saridas v Papuan Oil Search Ltd [2022] NSWSC 825
Unuafe v Commissioner of Police [2015] NSWIRComm 1007
Walter v Transport Secretary [2026] NSWIRComm 1008
Wasilewicz & Ors v Industrial Relations Secretary o/b the Director of Public Prosecutions (No.2) [2026] NSWIRComm 1091
Texts Cited: Nil
Category: Procedural rulings
Parties: Applicant:
Wasim Muhammad
Respondent:
Transport Secretary o/b Transport for NSW
Representation: Applicant:
Self-Represented
Respondent:
Solicitors:
Mr James Zeng
Director, Legal – Employment, Safety & Liability Transport for NSW
File Number(s): 2026/00290878
Publication restriction: Nil
These proceedings were commenced by an application under s 213 of the Industrial Relations Act 1996 (NSW) (the IR Act) on 14 July 2026. It currently proceeds under an Amended Application for relief from victimisation, filed on 7 August 2026 (the Amended Application).
The Applicant, Mr Wasim Muhammad, was employed as a Transport Service Senior Executive in the Transport Service of NSW (TfNSW), working within the Sydney Metro project from 3 July 2023 until his employment ended on 25 May 2026 by way of redundancy. At the time of termination, the Applicant was employed in the position of Associate Director, Surveillance & Verification, Sydney Metro (the Position).
The Amended Application relies upon ss 210(1)(k), (l)(i), and (r) of the IR Act, which relevantly provide:
(1) An employer or industrial organisation must not victimise an employee or prospective employee because the person—
…
(k) has a characteristic protected from discrimination under the Anti-Discrimination Act 1977, or
(l) makes a complaint or inquiry—
(i) about the person’s employment, or…
…
(r) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator, within the meaning of the Transport Administration Act 1988, or a person employed in the Transport Service.
The Amended Application identifies seven acts of the Respondent that are alleged to be a detriment (“hardship, disadvantage or loss”), sufficient to ground a finding of unlawful victimisation, including the termination of the employment.
This decision deals with a Notice of Motion filed by the Respondent on 1 September 2026 (the Motion), seeking that the proceedings be dismissed or otherwise set aside on two bases:
the Application was filed substantially out of time, and there is no sufficient reason for the Commission to exercise its discretion to accept it out of time; and/or
neither the Application nor the Amended Application have reasonable prospects of success.
It is convenient to address each in turn.
(a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought.
The Application was filed on 14 July 2026. To have been within time, any contravention would have had occurred no later than 23 June 2026. All seven of the contraventions asserted by the Applicant occurred well before 23 June 2026, and so any of the contraventions alleged in the Application (or Amended Application) to proceed the Applicant (who bears the onus) must satisfy the Commission that there is “sufficient reason” to extend time.
Two mandatory considerations in that connection are the length of the delay and the reason for the delay in making the Application.
Shorn of some of the descriptive circumstances that are irrelevant to the Motion, the seven detriments alleged to establish contraventions of s 210 can be summarised in this way (which I will, for convenience, refer to as Detriments 1 – 7):
Failure to “implement the approved Surveillance & Verification establishment, while continuing to hold the Applicant accountable for the operational, governance and safety consequences of those unfilled positions.” I understand the various acts said to enliven the protection concern reports made by the Applicant over 2024/2025, but the actual detriment materialised in April 2025 when the Applicant’s attempts to recruit into various positions in his area of responsibility were denied (resulting in a formal complaint by the Applicant in relation to the conduct of a senior HR business partner, Ms Carley McAllan).
Commencement of a Performance Improvement Program (PIP). The initial meetings around this plan date to 29 July 2025, but the plan itself commenced in September 2025 and was successfully completed by November 2025.
The continued involvement of Ms McAllan “in matters affecting the applicant’s employment” after her “formal removal” from those matters on 2 September 2025.
Predetermination of the Applicant’s exclusion from the restructured organisation, evident by the Applicant having been advised on 18 November 2025, before the completion of the consultation process connected with said restructure, that there would be no equivalent role at the Applicant’s substantive grade in the proposed structure.
Administering the “mobility process” in connection with said restructure in a manner contrary to published policy and while the Applicant was on approved annual leave. The precise date of this detriment is not entirely clear, but the acts or omissions must be in a window of time between 1 April 2026 and 21 May 2026.
Terminating the Applicant’s employment effective 25 May 2026.
Failing to conduct a review of a grievance lodged by the Applicant in accordance with the Respondent’s published Grievance Management Procedure (specifically, a failure to conduct what was described as Stage 2 of said grievance procedure). The grievance was lodged on 18 May 2026 and was appointed to a reviewer on 20 May 2026. That grievance related to the dismissal of the Applicant’s complaint (ie grievance procedure Stage 1), on 8 May 2026. The Applicant was advised on 22 May 2026 by the reviewer that the Stage 2 grievance process had been concluded, with no issues identified in the original findings and outcome. The Applicant was also notified of his impending redundancy in the same correspondence, and the letter of separation he would later receive would be dated 21 May 2026, one day prior to his Stage 2 grievance outcome.
(a) The conduct said to constitute Detriment 1 has two foundational difficulties:
(i) Even on the Applicant’s case articulated in MFI1, it occurred prior to 3 July 2025. As such, insofar as that alleged contravention is reliant upon s 210(1)(k) or (l)(i) it is misconceived. Those protections did not exist until the commencement of the Industrial Relations and other Legislation Amendment (Workplace Protections*) Act 2025* (NSW) [2] and so cannot have been contravened by detriments imposed prior to 3 July 2025*.* Insofar as it relies upon s 210(1)(r) (formerly s 210(1)(ib) prior to 3 July 2025), none of the evidence to which I was taken by the Applicant said to establish a “report [about] a matter relating to the safety or reliability of railway … operations to … a person employed in the Transport Service”, is reasonably capable of characterisation as a report of that kind. [3] (ii) The alleged contravention is not properly articulated. A pleading point of itself would not necessarily defeat an application to extend time, but in the course of the hearing I sought to clarify the nature of the Applicant’s case in this connection. In answer, the Applicant’s concern about that matter was articulated as a general complaint about the fairness of him being held to account for difficulties in achieving the responsibilities of his position, in circumstances where he had been unable to recruit sufficient staffing resources, despite repeated complaints/concerns being raised by him about the problems arising from the lack of resources. That is a general complaint about the fairness of the Respondent’s conduct, not an allegation of a contravention of s 210.
(b) There is nothing to indicate the PIP that grounds the contravention reliant upon Detriment 2 had any material adverse impact on the Applicant. The evidence shows it was commenced in September 2025 and successfully completed in November 2025. In the course of the hearing on 15 October 2026, the Applicant indicated he sought to maintain an allegation grounded in the PIP so that he could rely upon it to establish a pattern of behaviour said to be relevant to contraventions grounded Detriments 4, 5 and 7. As explained during the hearing, it is unnecessary for an alleged contravention to be maintained in order for evidence of the relevant events to be admissible in proceedings concerning other alleged contraventions later in time. As was noted by Commissioner McDonald (as the Deputy President then was) in Grant v Commissioner of Police at [79]: [4]
*“…*even if relief is not available in respect of out of time acts of victimisation, the fact that the earlier acts occurred may be relevant evidence in a particular case to establish that the particular act or omission for which relief is sought, in fact constituted victimisation.”
(c) The contravention alleged in Detriment 3 appears misconceived. There is no evidence that Ms McAllan was formally removed from involvement in matters affecting the Applicant’s employment (at least not outside of an initial period whilst the Professional Standards and Conduct Unit was undertaking a review of a complaint made by the Applicant). [5] (d) The contravention alleged in Detriment 7 concerns the way in which a grievance notified by the Applicant [6] was handled. The grievance was essentially an appeal against the conduct that underpins Detriment 5. In short, the grievance raised concern about the failure of the Respondent to properly administer his ‘mobility’ period under relevant policy, after he had been notified that he had been displaced by the restructure. There is no independent harm alleged, separate to the harm that ultimately arose from the failure to properly administer the mobility policy (indeed, in the Amended Application, it is contended “the grievance process itself became part of the continuing course of detrimental treatment affecting his employment”). [7] As noted above, the Applicant need not be permitted to raise a separate contravention in order for the evidence about what transpired in connection with this grievance to be relevant to the alleged contravention arising from Detriment 5.
That leaves the contraventions alleged reliant upon Detriments 4, 5 and 6, which will be dealt with in turn. It is convenient to deal with Detriment 6, the termination of employment, first.
The contravention alleged in Detriment 6 is the termination of the Applicant’s employment on 25 May 2026, in what he describes as the “discrete ultimate detriment”. [8] The loss of employment is, from the perspective of an employer’s conduct, significant (s 213(4)(c)).
The delay in bringing the application was 28 days. That is not an insignificant period (being longer than the 21 days ordinarily allowed by the IR Act to bring such an application). That delay is, however, largely explained (s 213(4)(a)).
It is not in dispute that the Applicant had incorrectly filed a general protections application (Form F8) with the Fair Work Commission (FWC) on 15 June 2026. The Applicant, by his own admission, knew of a 21-day timeframe in filing an application based on his own enquiries, prior to contacting a lawyer (which he did on 15 June 2026). He filed in the FWC that day. I am satisfied he did that after having had a brief telephone conversation with a lawyer (based in Victoria), and consistently with the advice given. [9]
As an employee of TfNSW under s 68D of the Transport Administration Act 1988 (NSW), the FWC had no jurisdiction to hear the general protections matter. The Respondent raised that jurisdictional objection in the FWC proceedings in an email to the FWC on 25 June 2026. [10] The Applicant then attempted to obtain legal advice. The Applicant brought the Application in this Commission on 14 July 2026 (noting he had unsuccessfully attempted to file in this Commission a couple of days earlier). The Applicant has sporadically obtained legal advice but has been substantively self-represented in these proceedings. I am satisfied he acted with reasonable expedition after having had the jurisdictional objection raised by the Respondent in the FWC proceedings.
In terms of “hardship” on the Respondent if an extension of time were granted (s 213(4)(b)), there is no real evidence of any material “hardship” arising from the extension of time. The Respondent has been aware from at least 15 June 2026 (within 21 days of the termination of the Applicant’s employment), that the Applicant was contesting his termination, including on grounds that essentially reflect what is now contained in the Amended Application. They can hardly have been taken by surprise when the Applicant filed these proceedings.
I am satisfied that the Applicant has established a sufficient reason for the extension of time in connection with the contravention alleged arising from Detriment 6.
The contraventions alleged in Detriments 4 and 5 concern the predetermined exclusion of the Applicant in relation to the organisation’s restructure, and subsequent cessation of the mobility process in a manner that was inconsistent with the relevant published policy.
“The program requires Transport to use the mobility program for all new or vacant roles where they are to be filled for greater than 12 months for award and agreement level – six months or more for Senior Executive roles. If a suitable placement cannot be made, only then can the role be filled via internal and external (with relevant approvals) recruitment arrangements under the Transport Core Recruitment Procedure.”
The conduct of the employer alleged in Detriments 4 and 5 is intrinsically connected with Detriment 6: that is to say, the Applicant’s termination of employment made effective by way of redundancy on 25 May 2026 is, in real terms, not separable from the conduct alleged in connection with Detriments 4 and 5 (allegedly excluding him from the proposed organisational restructure prior to the formal consultation process even commencing, and allegedly failing to afford him the mobility process the relevant policy contemplates).
Whilst the conduct alleged in Detriments 4 and 5 occurred significantly earlier in time (and as such require a much greater extension of time), proceedings in connection with Detriment 6 (the termination) will require an examination of the substantial and operative reasons for the imposition of that Detriment. It would be artificial to exclude an extension of time in connection with alleged Detriments 4 and 5 in that context. I acknowledge the extension of time required (particularly for Detriment 4) is significantly greater than for Detriment 6, but the Respondent will not likely suffer any materially additional hardship from that delay in the Applicant having brought the proceedings. It will still need to address the substantial and operative reasons for the Applicant’s redundancy.
On balance, I am satisfied the Applicant has established a sufficient reason to permit an extension of time in connection with alleged Detriments 4 and 5 to warrant the Commission accepting them, despite them being significantly out of time.
“[25] That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under [the relevant provision] could justifiably conclude that the proceedings had no reasonable prospect of success.
[26] Where an application under [the relevant provision] requires consideration of apparently complex questions of fact, then the caution uttered by Lord Hope is relevant (58). The importance of those considerations is amplified if the case involves resolution of issues of law and fact, or mixed law and fact.”
In order to establish a contravention of s 210 in the substantive hearing, the Applicant needs to: [23]
establish that he has suffered a detriment within the meaning of s 210(2);
establish the existence of a protected matter, as listed in s 210(1); and
allege that the detriment was suffered because of the protected matter referred to in s 210(1).
At that point, the reverse onus of proof in s 213(5) is engaged. To paraphrase what was said by Mason J (with whom Gibbs J, Stephen J and Jacobs J agreed) in General Motors Holdens Pty Ltd v Bowling (1976) 51 ALJR 235 at [241] of a historical analogue to s 210, once those matters have been established, the Applicant (in order to succeed) is not bound to adduce evidence that the Respondent was actuated by any of the alleged proscribed reasons, the reasons for imposing the detriment being a matter peculiarly within the knowledge of the Respondent. The plain purpose of s 213(5) is to throw onto the Respondent the onus of proving that which lies peculiarly within its knowledge.
On the evidence before me:
There does not appear to me to be any real dispute as to the facts underlying Detriments 4, 5 or 6: that is to say, there is no dispute the Applicant was advised, in the meeting on 18 November 2025, that there was no position at his level for him in the new structure, or that his mobility period was not extended despite being on annual leave, or that his employment was terminated; and
There is no real dispute that any of those things are capable of establishing a “detriment”, which is to say, on the ordinary broad and general meaning of the word: “to cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment.” The concept of detriment extends to matters which may have indirect adverse impacts on employees (as opposed to the direct loss of remuneration), such as the loss of opportunity to work. [24]
There can be little doubt that the Applicant can lead evidence to establish facts necessary to attract the protection of subsections 210(1)(k) and (l)(i). In particular, as I understand the way the Applicant puts his case, that he made a series of complaints and/or enquiries “about his employment”.
In those circumstances, the substantive issue in the main proceedings would be whether a substantial and operative reason for the imposition of the detriments, objectively assessed, [25] was any of the protected characteristics relied upon. That is a matter of fact on which the Respondent bears the onus of proof. Without meaning any disrespect, on the evidence before me, the Respondent has not come close to establishing a sufficiently high degree of certainty as to the outcome of the proceedings to justify summary dismissal.
In light of the above findings, I make the following Orders:
The Commission accepts the Application (now pressed as an Amended Application) out of time, insofar as it alleges unlawful victimisation arising from the conduct described in my reasons for decision as Detriments 4, 5 and 6. The application to extend time in relation to the conduct described as Detriments 1, 2, 3 and 7 is refused.
The Applicant is directed to file a Further Amended Application reflecting this decision by 4:00pm on Friday 13 November 2026.
The matter is listed for Directions at 9:15am on 17 November 2026 via AVL.
**********
IR Act s 213(4).
See Grant v Commissioner of Police (No 2) [2025] NSWIRComm 1060 at [26]; Gopinath v Health Secretary in respect of Northern Sydney Local Health District [2025] NSWIRComm 1113 at [24]-[26]; Walter v Transport Secretary [2026] NSWIRComm 1008 at [34]-[35].
The only evidence to which I was taken capable of meeting that description was an email sent on 5 August 2025, sent after the alleged contravention: Ex 2 CB p 568.
[2025] NSWIRComm 1000, by reference to the Full Bench decision in Davis v Amalgamated Television Pty Ltd (1998) 81 IR 364 at 395-396.
Ex 2 CB p 588.
Ex 2 CB p 743-744.
Ex 2 CB p 31.
Ex 2 CB p 163.
As the Applicant noted in an email sent to the relevant lawyer on 2 July 2026, after the Respondent had raised its jurisdictional objection in the FWC proceedings: Ex 2 CB p 203.
Ex 2 CB p 200.
Ex 2 CB p 74.
Ex 2 CB p 463.
Ex 2 CB pp 94-95.
Ex 2 CB p 103.
Ex 2 CB p 460.
Ex 2 CB pp 184-185; pp 799-816.
Ex 2 CB p 800.
Which I understand to be based on Uniform Civil Procedure Rules 2005 (NSW) r 13.4(1)(b).
Wasilewicz & Ors v Industrial Relations Secretary o/b the Director of Public Prosecutions (No.2) [2026] NSWIRComm 1091 at [7], referring to Newall C in Unuafe v Commissioner of Police [2015] NSWIRComm 1007 at [9]; Agar v Hyde [2000] HCA 41; 201 CLR 552 at [57].
(2000) 201 CLR 552 at 575-576 [57].
Child Protection (Working with Children) Award 2014 [2015] NSWIRComm 8 at [23]-[24], referring to Federated Municipal and Shire Council Employees’ Union of Australia, New South Wales Division v Energy Australia (1999) 90 IR 311, Nagle v Tilburg (1993) 51 IR 8 and General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125; Grant v Commissioner of Police [2025] NSWIRComm 1000; (2025) 337 IR 419 at [140]-[142], which in turn adopted the convenient summary of principle by Schmidt AJ in Saridas v Papuan Oil Search Ltd [2022] NSWSC 825 at [16]-[18].
(2010) 241 CLR 118 at [25].
PSA v Commissioner of Police [2025] NSWSC 624, effectively endorsing the summary by (then) Commissioner McDonald in Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police, New South Wales Police Force [2024] NSWIRComm 1001 at [31].
Davis v Amalgamated Television Services Pty Ltd (1998) 81 IR 364 at 380-381.
See s 213(5) of the IR Act.
Muhammad
Transport Secretary o/b Transport for NSW
[2000] HCA 41
[1964] HCA 69
[2025] NSWSC 624
[2026] NSWIRComm 1008
[2026] NSWIRComm 1091
(1998) 81 IR 364
(1999) 90 IR 311
(1976) 51 ALJR 235
(1964) 112 CLR 125
(2025) 337 IR 419
(1993) 51 IR 8
(2000) 201 CLR 552
(2010) 241 CLR 118
A table summarising the relevant dates taken from the Respondent’s submissions shows the length of delay as follows:
Detriment 1 occurring on 12 June 2024, with the 21-day period concluding on 4 July 2024, totalling 760 days out of time;
Detriment 2 occurring on 8 September 2025, with the 21-day period concluding on 30 September 2025, totalling 287 days out of time;
Detriment 3 occurring on 28 July 2025, with the 21-day period concluding on 19 August 2025, totalling 329 days out of time;
Detriment 4 occurring on 18 November 2025, with the 21-day period concluding on 10 December 2025, totalling 216 days out of time;
Detriment 5 occurring on 1 April 2026, with the 21-day period concluding on 23 April 2026, totalling 82 days out of time;
Detriment 6 occurring on 25 May 2026, with the 21-day period concluding on 16 June 2026, totalling 28 days out of time; and
Detriment 7 occurring on 22 May 2026, with the 21-day period concluding on 15 June 2026, totalling 29 days out of time.
The Applicant identifies a marginal difference in the relevant date for some of the alleged contraventions. Those differences are, in context, of no real significance in determining whether the Applicant has demonstrated a “sufficient reason” to accept the Application out of time. For the purpose of this exercise, in light of the documents in the Court Book I was taken to during the hearing (which it is unnecessary to detail in these reasons), I accept the Applicant’s “clarified dates” for Detriment 1 and Detriment 5 identified in MFI1, as 24 April 2025 and 1 April 2026 respectively.
I am not satisfied the Applicant has established a sufficient reason for extending time for contraventions in connection with Detriments 1, 2, 3, or 7. My reasons for that conclusion can be shortly stated:
The length of the extension of time required for any of those contraventions is substantial (even the last Detriment being in excess of four weeks out of time, which is more than the 21 days ordinarily allowed by the IR Act).
Insofar as Detriments 1 – 3 are concerned, the Applicant has not provided any real explanation for the delay in bringing the Application regarding those contraventions.
Insofar as the nature of the contraventions are concerned:
Each of these alleged Detriments are very significantly out of time. The Applicant has not provided any real explanation for the delay in bringing these proceedings. That counts significantly against an extension of time.
As for the employer’s conduct, on 18 November 2025, the Applicant attended a consultation meeting to discuss proposed changes to the Engineering, Design and Assurance Team, organised by Executive Director Gabriel McGowan prior to any formal announcements. [11] At this meeting the Applicant was told by Mr McGowan “[the proposed changes] would mean, you would be unplaced in the new structure…there are no like roles proposed at your substantive grade.” [12] The Applicant was encouraged to apply for other roles but could not be guaranteed a placement. In any event those roles would have fallen short of the Applicant’s then grade of 1A. It was even suggested if he could not secure a role at the lower grade, then “… obviously it would be no role and redundancy as per your contract.” Put simply, the Respondent was already suggesting the Applicant would not have a role at grade or potentially at all, despite the preliminary nature of the meeting and despite the imminent commencement of the proposed restructure consultation process.
Detriment 5 concerns the termination of the “mobility period” applied to the Applicant, following the conclusion of the consultation process surrounding the restructure (connected with Detriment 4). The “mobility period”, broadly described, is a period identified in a relevant policy that follows an employee having been given advice that they have been displaced from their position following a restructure. During that period an employee’s salary is maintained whilst the employee attempts to secure an alternate position. Termination on the grounds of redundancy does not usually arise until the completion of the mobility period, and then, only if no alternate position is found.
On 26 March 2026, the Applicant received a generic email from a Kirsty McConville of the TfNSW Mobility Team (meaning an email not directed to him personally) advising that his mobility period commenced that day and will conclude by 21 May 2026. [13] What followed was a sequence of internal email correspondence. The Applicant contested having ever received proper notification of the commencement of the mobility period. He raised a number of other matters, including requesting (and being denied) a pause in the mobility period in light of a period annual leave (a matter dealt with in the relevant policy). He sought an extension of his mobility period after he lodged a formal grievance on 2 April 2026 [14] (which was connected with the failure to extend his mobility period due to a period of annual leave, consistent with what he maintained the relevant policy provided).
Additionally, the Applicant contends that the Respondent failed to comply with the relevant policy mobility period conditions, by externally advertising jobs for which he may have been suitable for before they were preferentially offered to him as a person in their mobility period. The Applicant received notification of certain roles through an external advertising source on 11 April 2026, [15] and those same roles (already externally advertised), were recommended to him via the mobility team several days later on 14 and 15 April 2026. [16] The TfNSW Mobility and Redeployment FAQs provide: [17]
Even if there were real disputes about whether Detriments 4, 5 and 6 occurred, or could as a matter of law establish a detriment sufficient to ground a finding of unlawful victimisation, that would involve either a question of fact that looks broadly to whether the employee is worse off than if the impugned act or omission had not occurred, or a disputed matter of law. In either case, it would not be appropriate to summarily dispose of the proceedings where such a material factual dispute, and/or a substantial legal question existed.