In these proceedings, the New South Wales Nurses and Midwives' Association ("Association") represents Ms Karamjeet Kaur, a registered nurse employed at Westmead Hospital ("Hospital"). The Hospital falls under the auspices of the Western Sydney Local Health District ("WSLHD").
Ms Kaur's employment with the WSLHD commenced on 6 August 2018, when she was assigned to Ward D5C of the Hospital. In early 2019 Ms Kaur successfully applied for a placement to a program titled "Transition to Perioperative Practice Program" ("TPP Program"). Unfortunately, Ms Kaur was unable to meet the requirements of that Program.
Apparently as a consequence of her work performance on the TPP Program, concerns were held by Hospital management as to Ms Kaur's clinical competence. Her performance has been under near-constant review and appraisal by the WSLHD since approximately April 2020.
In 2021 the WSLHD proposed to assess Ms Kaur's clinical competence. On 11 June 2021 the Association notified the Industrial Registrar of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 ("IR Act"). At the heart of that dispute was whether Ms Kaur should be assessed in a perioperative environment - for which the WSLHD had determined Ms Kaur to be unsuitable - or in a ward role ("First Notification").
On 12 July 2021 the Association filed a further notification pursuant to s 130, contending that the process by which the WSLHD intended to conduct the competency assessment in respect of Ms Kaur was in contravention of applicable policies ("Second Notification").
In the context of the First and Second Notification, the parties reached agreement as to where Ms Kaur would be placed for the purposes of the competency assessment and as to the assessment process. Consistent with that agreement, from 19 July 2021 Ms Kaur participated in a four week education and learning plan in a surgical ward.
Ms Kaur's competence was assessed on 13 August 2021. In her report, Dalya Holowinski, a Nurse Educator, stated:
"…I gave Ms Kaur my opinion that I feel she is best suited to a clinic environment where she can spend time with her patient and is not constantly under stress to care for the complex inpatient needs. We also discussed the fast paced day surgery environment and I expressed that I thought this would still be difficult for her to achieve given the fast paced environment.
…
In my professional assessment Ms Kaur would be best suited to a clinic environment not an in patient area. Ms Kaur is currently not suitable to work in an acute inpatient ward area like B3a. I believe that she would continue to struggle with a light patient load and would not be able to complete all the tasks required on a day to day basis. Ms Kaur's ability to converse with her patients and spend time with them by addressing their concerns and requirements is best suited to a clinic environment that does not necessarily come with the added in patient flow and acuity issues."
New South Wales Nurses and Midwives' Association (on behalf of Kaur) v... [2021] NSWIRComm 1084 | Case summary | Zoe
On 8 September 2021 Janelle Matic, the Acting General Manager of the Hospital, wrote to Ms Kaur. The letter stated, in part:
"Unfortunately, despite this additional intensive support, it has been determined that your performance remains below the minimum requirements of your role, both in terms of the minimum required standards of practice and the risks posed to patients. It is evident that you remain unable to meet the requirements of your duties as a Registered Nurse within the hospital ward environment or within perioperative services.
The assessor concluded that you are not suitable to work in an acute patient ward area. …
She recommended that you may be suited to a clinic environment (i.e. not a hospital environment) that does not come with the added inpatient flow and acuity issues. …
…
On this basis, I propose to recommend to the Chief Executive that your employment be terminated under s 68 of the Government Sector Employment Act 2013 (GSE) for unsatisfactory performance, subject to anything you may wish to say."
("Show Cause Letter")
On 10 September 2021 the Association filed a further notification pursuant to s 130 of the IR Act ("Third Notification"). The Association contended that the WSLHD had failed to comply with the agreement reached in the context of the First and Second Notifications. It also argued that the WSLHD had failed to consult with the Association and Ms Kaur in respect of her workers compensation return-to-work plan.
Regarding that workers compensation claim, the evidence available to me suggests that Ms Kaur suffered a work-related injury on 26 October 2020, in the form of a rash on her hands. Liability for that injury was accepted by the WSLHD's workers compensation employer.
Ms Kaur has been working to an injury management plan. Most recently she was assigned to COVID screening duties for staff and visitors at the Hospital. However, Ms Kaur is not receiving workers compensation payments as a consequence of an assessment of, firstly, her work capacity for suitable employment and, secondly, her average earnings over the period June to August 2021.
On 14 September 2021 I ordered, by consent, that the proceedings resulting from the First, Second and Third Notifications be joined. On 21 September 2021 I made directions in anticipation of the joined proceedings progressing to arbitration on 13, 14 and 15 December 2021.
On 30 September 2021 the Association filed a notice of motion ("Motion") seeking:
"An Interim Order maintaining Ms Kaur's employment in her current Covid [sic] Screening role pending the outcome of the substantive hearing of the matters in dispute set down for arbitration on 13, 14 and 15 December 2021".
The Motion was supported by an affidavit of Debra Hannan, an Industrial Officer of the Association, affirmed on 2 October 2021.
On 7 October 2021 the Association filed a document setting out the orders that it sought from the Commission pursuant to the Motion ("Proposed Orders"), which were:
"1. The Respondent is not to dismiss Ms Kaur. Consequently, the current 'show cause' process against Ms Kaur is to be suspended.
2. Ms Kaur is an injured worker for the purposes of the Workers Compensation and Workplace Injury Management Act 1998 [sic], the Respondent is obliged to continue to seek to provide Ms Kaur with suitable employment pursuant to s 32 of that Act.
3. Accordingly, Ms Kaur is to continue to be employed in her current role attending to Covid [sic] screening or, alternatively, is to be redeployed to a position which accords with her qualifications, skills, experience and classification.
4. Any further orders the Commission deems appropriate for the resolution of this industrial dispute."
The Health Secretary opposes the Motion and the making of the Proposed Orders. The Health Secretary read an affidavit of Kristin Adair, the Director Human Resources at the Hospital, sworn on 11 October 2021.
With the consent of the Association, I granted leave to the Health Secretary to adduce some additional evidence-in-chief from Ms Adair at today's hearing. The Association cross-examined Ms Adair on limited aspects of her affidavit.
I digress to observe that each of the Motion, Ms Hannan's affidavit and Ms Adair's affidavit collectively traversed in some detail the relevant history giving rise to these proceedings. In light of the interlocutory nature of these proceedings I have not sought to reproduce that history to the same extent, drawing out only as much as I consider necessary to provide context to this decision.
Two primary questions arise from the Motion:
1. whether the Proposed Orders are necessary to give effect to cl 48(vii) of the Public Health System Nurses' and Midwives' Award 2021 ("Award"); and
2. even if not, whether the Commission should make the Proposed Orders pursuant to its powers under s 137(1)(c) and s 136(1)(d) of the IR Act.
Ms Kaur's employment is subject to the Award. Clause 48 of the Award sets out procedures to be followed to avoid or resolve grievances or disputes. It relevantly provides:
48. Disputes
…
(vi) During these procedures normal work must continue and there must be no stoppages of work, lockouts, or any other bans or limitations on the performance of work.
(vii) The status quo before the emergence of the issue must continue whilst these procedures are being followed. For this purpose, 'status quo' means the work procedures and practices in place:
(a) immediately before the issue arose; or
(b) immediately before any change to those procedures or practices, which caused the issue to arise, was made.
The Employer must ensure that all practices applied during the operation of these procedures are in accordance with safe working practices.
…
In her affidavit Ms Hannan deposed:
"12. I further state that the work procedures and practices in place before the issue arose (i.e. the threat to terminate her employment) included that Ms Kaur was recommended to be supported in obtaining a clinical role, was undertaking a clinical role (Covid [sic] screening role) including under the workers compensation scheme and as such, her employment should continue on the basis identified in Paragraph 1 of the Notice of Motion." (Emphasis in original)
In its outline of submissions the Association submitted:
"14. Subclause 48(vii) of the Award requires the parties to observe the 'status quo' from prior to the dispute. In this case, Ms Kaur was subject to practices and procedure governed by workplace policies, at the outset of the dispute process specifically PD2013_006 Workplace Injury and Return to Work and PD2016_040 Managing for Performance. These policy directives constitute policies and procedures in place at the time the dispute was commenced and their implementation resulted in Ms Kaur being placed in the Covid [sic] Screening role. Neither policy includes a process which results in dismissal - the show cause process being initiated after this matter had been subject to a dispute. Accordingly, the continuation of those procedures necessitates, as far as is practicable and safe, Ms Kaur continuing to work in the Covid [sic] Screening role." (Italics in original)
The Association's position is that cl 48(vii) of the Award precluded the WSLHD from issuing the Show Cause Letter and prevents it from progressing that process, including taking any action to terminate Ms Kaur's employment.
The Association is correct in its submission at par 14 that cl 48(vii) "requires the parties to observe the 'status quo' from prior to the dispute". However, it is necessary to pay careful regard to the meaning of "status quo" as defined in the clause.
This was the subject of analysis by the Commission in New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District [2019] NSWIRComm 1025 in which the Full Bench observed:
"33. To understand the Status Quo Provision one may ask how work was done prior to the notification of the dispute or prior to any change of work procedure or practice that is the subject of the dispute.
…
41. The Appellant argued that it is consistent with the purpose for which it contends to construe the words 'work procedures and practices' as used in the Status Quo Provision broadly and to mean the particular circumstances that affect an employee at the time a dispute arises. Accordingly, in this matter, the particular circumstances relating to Ms Mines at the time the dispute was notified were that whilst allegations were being investigated in respect of her, she had no adverse findings against her and this was the status quo that should be retained while the dispute remained unresolved.
42. The difficulty with that contention is that it requires the Status Quo Provision to change the status quo, a result which is clearly antithetical or at least oxymoronic. In this case for example if the Policy Directive does not require production of the investigation report, the Status Quo Provision cannot be used to force a change in or departure from the established work practice. That is clearly contrary to the express terms of the subclause.
43. As the authorities make clear, in interpreting the Status Quo Provision, its context must be considered. Consistent with the overall purpose of the dispute resolution clause (to provide for the orderly and fair disposition of disputes and to avoid, if possible, industrial disputation), subclause 48(vi) provides that, 'During these procedures normal work must continue and there must be no stoppages of work, lockouts, or any other bans or limitations on the performance of work'. In interpreting subclause 48 (vii), it must be read in conjunction with, and not in isolation from subclause 48 (vi). The Status Quo Provision informs the parties of how work is to continue while the dispute remains unresolved. It is consistent with the broader purpose of the dispute resolution clause that the purpose of subclause 48(vii), read with subclause 48(vi), is to facilitate a means by which 'business will continue as is it usually does' whilst a dispute remains unresolved.
44. It would be inconsistent with this purpose, if the Status Quo Provision were to be interpreted as operating to stop a party from continuing in their business as they usually would while the dispute remains unresolved.
45. A particular issue with the contention put by the Appellant with respect to the purpose of the Status Quo Provision is that while it argued that it operated so to prevent prejudice to either party, it was unable to explain how the status quo would be determined where prejudice might be visited upon more than one party to an award while the dispute resolution procedure was being worked through.
46. So for example, in the context of the current dispute relating to the provision of an investigation report to Ms Mines in her investigation, if the Status Quo Provision operates to freeze the investigation while that issue works its way through the dispute resolution process, the Respondent is not able to complete its investigation, possibly for an extended period, which may prejudice its accuracy as witnesses' memories of relevant events fade and the evidence becomes stale. Accordingly, if the Appellant's contention were accepted, a dispute about the way in which the Policy Directive was being applied to a particular employee in respect of alleged misconduct would have the effect of immediately staying the investigation. That is work would not continue in conformity with established practice.
47. The potential mischief this situation would visit upon the parties to the Award if the Status Quo Provision were to be interpreted this way was not adequately addressed by the Appellant. It would be significant for the Commission to make an Award where one party could effectively stop the other from doing what they would otherwise be legally and contractually entitled to do by notifying a dispute to the other. Further, if the Appellant's interpretation were accepted, there is no clear means by which a party who is negatively impacted by such a freeze could seek to have it lifted until the dispute were resolved. Had it been intended that the Status Quo Provision operate in this way, the text of the Award would have clearly articulated that intent. It does not. Indeed, the Commission is being asked to strain to find this alternative meaning advanced by the Appellant. The justification to strain in that way is not, however, present.
48. That is not to say that a party is without remedy. To the extent that there is material prejudice to a party in a dispute, the party is able to make application to the Commission for relief, including interim relief pursuant to s.136(1)(d) of the Act. Indeed, this was a course open to the Appellant in this matter, where the Commission could have undertaken a proper analysis of the appropriateness of making an order preventing the employer from continuing the investigation, pursuant to the relevant principles. In determining such an application, the Commission would apply the principles generally applicable to the granting of interim orders for relief, including whether there is a serious question to be tried; whether irreparable harm will be suffered by Ms Mines; and where the balance of convenience lies."
The effect of the Full Bench decision is that the language of cl 48(vii) does not call for or require that there be no change to the personal circumstances of a particular employee, provided that any change that is visited on them is consistent with "the work procedures and practices in place" prior to the dispute arising.
From par 14 of the Association's submissions, the contention appears to be that only those policies that were being applied at the time the dispute arose are relevant. That is, that the WSLHD cannot invoke other work practices or procedures pending the determination of the dispute.
There are two observations to make in this regard. First, it would appear that the association relies too much on the use of the word "policy" in cl 48(vii) and does not give due weight to the use of the word "practices". Second, given the Full Bench decision, I do not accept that the WSLHD is somehow constrained to only apply or to continue to only apply the policies that had been invoked at the time the dispute arose. If a particular work procedure or practice was in place prior to the dispute arising, the terms of cl 48(vii) do not preclude them being applied by the WSLHD to Ms Kaur's circumstances.
In this case, the WSLHD has purported to invoke s 68 of the Government Sector Employment Act 2013. In consequence, it has issued Ms Kaur with the Show Cause Letter, the effect of which is to invite submissions as to why her employment ought not be dismissed pursuant to s 68. There is nothing before me to suggest that this was not a practice in place prior to the dispute arising or that what the WSLHD is doing is inconsistent with the broader practices that applied within the WSLHD, apart from the particular policies that might have been expressly invoked in respect of Ms Kaur.
Proposed Orders 1 and 3 are, therefore, at odds with the reasoning of the Full Bench in New South Wales Nurses and Midwives' Association v Health Secretary on behalf of Western NSW Local Health District, which I am bound to follow. To the extent that the Association relies on the Award as the basis for seeking them, I find that it has not made out its case.
The question which remains is whether the Association has otherwise made out a basis for the interim relief it has sought.
The power of the Commission to make orders preserving the status quo pending the resolution of the underlying dispute was recognised by Sams DP in Barrier Industrial Council dispute with Broken Hill Chamber of Commerce and Others re Breach of Award and The Construction, Forestry, Mining and Energy Union (New South Wales Branch) dispute with Broken Hill Chamber of Commerce and Others re alleged breach of Award [2002] NSWIRComm 232 at [20]-[23], upheld on appeal in Broken Hill Chamber of Commerce and CFMEU (NSW Branch) [2002] NSWIRComm 244.
The Proposed Orders would operate in a manner analogous to an interlocutory injunction, effectively precluding the WSLHD from progressing the "show cause" process to finality. The approach to apply when determining whether to grant such relief was articulated in Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [19] and [65], in passages which have been cited with approval by the Commission in several decisions: see for example Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 at [32]-[34].
I am also guided by the observations of Boland J in Australian Services Union and Sydney Water Corporation [2005] NSWIRComm 156 at [65]-[68] and of the Full Bench in Sydney Water Corporation and Australian Services Union (New South Wales and Australian Capital Territory Branch) (2005) 146 IR 388; [2005] NSWIRComm 305 at [36]-[43].
Put simply, in the present proceedings there are two questions to be answered in deciding whether to make the Proposed Orders. First, whether the Association has shown that there is a serious question to be tried as to its entitlement to relief. That is, whether there is a sufficient likelihood of success by the Association in the substantive proceedings to justify the preservation of the status quo pending the final hearing. Second, whether the inconvenience or injury which Ms Kaur would be likely to suffer if the Motion were dismissed outweighs or is outweighed by the inconvenience or injury which the WSLHD would suffer if the relief were granted. That is, whether the balance of convenience favours the granting of an injunction.
In answering these questions, the Commission is obliged by s 146(2) of the IR Act to have regard to the objects set out in s 3 of the IR Act. Relevantly for present purposes, those objects include the provision of a framework for the conduct of industrial relations that is fair and just (s 3(a)) and providing for the resolution of industrial disputes in a prompt and fair manner and with a minimum of legal technicality (s 3(g)). I am also mindful that s 163(1)(c) of the IR Act requires the Commission "to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms".
The evidence of Ms Hannan suggests that the Association considers that the particular grievances that underpinned the First and Second Notifications have largely been addressed: see Ms Hannan's affidavit at par 10. The Third Notification is directed towards the withdrawal of the Show Cause Letter and securing Ms Kaur's ongoing employment with the WSLHD.
In its written submissions, the Association contended:
"11. The dispute involves an employee who has, the notifier alleges, been subject to a grossly unfair process over the course of several years; including a failure in the employer's basic duty of care and a performance management process which was vexatious and cruel and which has led to the temporary deterioration of Ms Kaur's confidence and ability. It is not unlikely, should the notifier demonstrate its case, that a substantive order be made in its favour in the final hearing."
The Association's case seems to be premised on four "limbs":
1. Ms Kaur has been subject to a management process that has miscarried, adversely affecting her confidence, wellbeing and performance;
2. both the Clinical Nurse Educator and the External Assessor involved in the most recent education plan and assessment process, respectively, determined that Ms Kaur could be considered for a clinical role;
3. if Ms Kaur is appointed to a suitable alternative position, she will be able to rebuild her confidence and skills, allowing her in turn to rebuild her nursing career; and
4. the WSLHD is obliged to or should provide Ms Kaur with that opportunity.
From the terms of Proposed Order 2, the Association places reliance on what it contends are the obligations of the Health Secretary pursuant to the Workplace Injury Management and Workers Compensation Act 1998 ("WIM Act"). There are two observations to make in this regard.
First, as I observed in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (obo Brown) v Industrial Relations Secretary on behalf of the Department of Communities and Justice [2021] NSWIRComm 1060 at [23], it is not for the Commission to enforce the WIM Act. At most, the obligations arising from that legislation may inform the exercise of the Commission's discretion under the IR Act.
Second, from the evidence it appears that Ms Kaur is no longer in receipt of workers compensation payments. Under the terms of s 49 of the WIM Act, to which the Health Secretary referred me, the Health Secretary appears to be under no obligation to provide suitable duties. Section 49(1) provides that "the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker". The evidence suggests that the Health Secretary is not "liable to pay compensation to" Ms Kaur. For this reason I am not persuaded on the evidence currently available that the WIM Act operates to impose an obligation on the Health Secretary at this time to maintain Ms Kaur in suitable employment.
That said, to the extent that the Association makes out its case that Ms Kaur's present circumstances are, at least in part, the product of the WSLHD's mismanagement, there are certainly options available to the Commission under the IR Act to provide Ms Kaur with redress. In short, and very much on balance, I accept that there is a serious question to be tried, even if questions may remain as to the relief which may ultimately be available.
In the Motion the Association contended:
"22. There would be irreparable harm done to Ms Kaur's prospects in her career as a Nurse if she was not able to continue in employment with the Respondent to attain her competencies within her current scope of practice. She would suffer financial detriment if terminated and not working through the course of the proceedings.
23. The applicant is currently undertaking work suitable for her pay rate and classification in the Award. The work is useful and would have to be undertaken by a different Registered Nurse in the absence of the applicant. The work will be available and ongoing throughout the course of the proceedings. There have been no allegations by the Respondent that Ms Kaur has any shortcoming in performing her current work. Accordingly, there is no significant financial or other cost to the Respondent in circumstances where they continue to employ the applicant through these proceedings.
24. The balance of convenience favours Ms Kaur remaining employed in the role she is currently undertaking whilst the substantive issues identified in Paragraph 1 are determined."
In its outline of submissions the Association submitted:
"9. The harm done to Ms Kaur, should she be terminated prior to the conclusion of these proceedings is clear. Ms Kaur would be without pay which would significantly affect her life and cause difficulty in funding basic housing and living expenses. A period without work would potentially have a harmful impact on Ms Kaur's mental health and work preparedness as she is already a worker who has been subject to a tumultuous process. Ms Kaur is currently an injured worker which would diminish the possibility of her accessing short term employment while the proceedings are ongoing.
10. The potential harm done to the respondent should the order sought today be made is minimal. Ms Kaur is performing useful work which is undertaken by other Registering [sic] Nursing staff. The proceedings have a fixed endpoint which is less than 8 weeks away. Accordingly, an order to continue employing Ms Kaur in that time is not onerous. The balance of convenience clearly favours the Commission making this order."
In her affidavit, Ms Adair deposed that:
1. in Ms Adair's opinion, Ms Kaur is not safe to practice in any nursing role in the WSLHD;
2. the employment costs that the WSLHD would incur were the Proposed Orders to be made would be $3,953.80 per fortnight;
3. the work that Ms Kaur is currently undertaking (COVID screening at the Hospital) is supernumerary. The WSLHD does not require her to perform that work; and
4. the Hospital has a large number of staff unable to perform their substantive employment due to COVID-19 service shutdowns. Some of these would be denied the opportunity to rotate through the COVID-screening duties for as long as Ms Kaur remains.
Regarding the Association's submissions, there are two observations to make. First, the Commission has no evidence as to Ms Kaur's personal and financial circumstances. It is not possible for the Commission to determine, other than at an unhelpful level of generality, the financial, personal or health consequences that any termination of Ms Kaur's employment would visit on her.
Second, there is a presumption in the Association's submissions that the hearing of these proceedings in December 2021 represents "a fixed endpoint". The submission necessarily assumes that the resolution of these proceedings will occur at the same time that the hearing takes place. Even having regard to Mr Dunstan's submissions today that the Association would endeavour to ensure that the arbitration proceeded as currently scheduled, I cannot make any commitments as to when the final result of the proceedings will be known. I certainly cannot give an undertaking to the parties today that my decision will be handed down ex tempore at the conclusion of the proceedings on 15 December 2021.
Turning to Ms Adair's evidence, it must be said that the opinion she expressed as to whether Ms Kaur could safely perform the duties of a nurse in the Western Sydney Local Health District needs to be approached with some caution. Hearing her oral evidence today, Ms Adair accepted that she is not a clinician and that her opinion was derived from the information made available to her, including the assessment of the Nurse Educator and External Assessor to which I have previously referred. On my understanding of her testimony, her view was premised more on whether Ms Kaur could return to work in a nursing role at the Hospital as opposed to whether there was a "primary health care environment" operated by the WSLHD more broadly into which Ms Kaur would be placed.
Even so, serious questions have been raised as to Ms Kaur's clinical competence. To some extent, these are reflected in the evidence and submissions put on by the Association. These are matters to which I must have regard.
There was also some contest as to whether in performing COVID screening Ms Kaur is properly to be regarded as "supernumerary", as deposed by Ms Adair. Ms Adair's oral evidence was to the effect that she would not expect an able-bodied nurse to ordinarily be assigned to those duties. Rather, they are more likely to be made available to employees of the WSLHD whose roles have been impacted by COVID shutdowns or who may, for example, be confined to restricted duties.
Also in relation to the balance of convenience, the Association urged on the Commission that each of the First, Second and Third Notifications were brought pursuant to s 130 of the IR Act. The powers given to the Commission to grant relief in respect of those proceedings are constrained by ss 136 and 137 of the IR Act. Mr Dunstan submitted that in considering the balance of convenience, the Commission should only have regard to the relief currently available under the IR Act.
I am not particularly persuaded by these submissions as I consider that it requires a somewhat artificial and unrealistic construction of the current circumstances. If Ms Kaur's employment is terminated by the Health Secretary, one would expect that she, with the assistance of the Association, would explore all avenues available for redress. It would be surprising beyond words if a forensic decision was made to pursue relief only in the context of the proceedings currently before the Commission and not explore other avenues for redress that might be available under the IR Act. The existence of additional avenues of redress are clearly relevant to a determination of the balance of convenience in the present circumstances.
Having regard to the evidence and submissions, I am not satisfied that Ms Kaur would suffer any inconvenience or injury as a result of being dismissed by the Health Secretary - assuming that to be the outcome of the current "show cause process" - which could not be remedied through appropriate orders under, for example, s 89 or ss 100D and 100C of the IR Act.
For these reasons I find that the balance of convenience favours the Health Secretary.
It follows that I am not persuaded that the Association has made out its case for the making of the Proposed Orders, or any orders, pursuant to the Motion.
[2]
Order
The Motion is dismissed.
Damian Sloan
Commissioner
[3]
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Decision last updated: 27 October 2021
Parties
Applicant/Plaintiff:
New South Wales Nurses and Midwives' Association (on behalf of Kaur)
Respondent/Defendant:
Health Secretary in respect of the Western Sydney Local Health District