Ruth Tabvuma v NSW Health Secretary, Ministry of Health in respect of South Western Sydney Local Health District [2025] NSWIRComm 1080

"The Respondent does ...not dismiss the Applicant until the hearing and determination of matter IRC 2025/00298516"

1. The threat of dismissal is said to be found in a letter dated 1 August 2025 (described below), in which the Applicant was invited to show cause why she ought not be dismissed (the Show Cause letter). No final decision to dismiss has yet been made. The interlocutory application was heard before me on 12 September 2025. At the conclusion of the hearing, the Respondent gave an undertaking not to proceed with any decision to dismiss the Applicant prior to 4:00 pm on Monday, 22 September 2025, to allow time for this decision to be issued.

1. The applicant was first employed by the Respondent in December 2003 (after an earlier period of engagement through an agency in 2002) as a registered nurse employed by the Respondent in various roles. Since 2012 the applicant has held the position of Clinical Nurse Consultant (after hours) at Bankstown-Lidcombe Hospital within the Southwestern Sydney Local Health District (SWSLHD).
2. From in or around 2016/17 the Applicant has also worked casual shifts at Ryde Hospital in the Northern Sydney Local Health District (NSLHD).
3. By letter dated 11 April 2025 the Applicant was advised that allegations had been made against her relating to working 64 shifts between 6 May 2024 and 11 April 2025 without secondary employment approval and failing to complete the entirety of her shift at Bankstown- Lidcombe Hospital on 3 April 2025. The Applicant was also directed, following a risk assessment, to perform alternative duties on day-shift in the Intensive Care Unit. She attended a meeting regarding the allegations that afternoon and thereafter commenced on paid sick leave, from which she has not returned.
4. By letter dated 2 June 2025, the Applicant received an updated letter of allegations in similar terms but with additional dates included in relation to the alleged failure to complete the entirety of her shift at Bankstown- Lidcombe Hospital and with the addition of a further allegation that the applicant failed to perform the entirety of her shift at Bankstown- Lidcombe Hospital before commencing a rostered shift at Ryde Hospital on dates specified in a schedule to that letter.
5. The Applicant responded to the initial allegations by email dated 13 April 2025, and to the subsequent letter of allegation by way of correspondence from her legal representative dated 3 June 2025 and 11 June 2025.
6. By letter dated 1 August 2025, the Respondent made findings substantiating the allegations and invited the Applicant to show cause as to why her employment should not be terminated (the Show Cause letter). Relevantly the Show Cause letter stated:

"I have also made a preliminary decision about what action to take in response to the findings of misconduct. In coming to this decision, I have considered the nature and seriousness of your conduct; any risks it poses for SWSLHD's patients, your previous employment history, and any mitigating circumstances. On this basis, you are asked to show cause as to why your employment should not be terminated based on substantiated findings of misconduct."

(i) No record of secondary employment approval (after 2017).

(ii) A review of roster records from Ryde Hospital and an admission that the applicant did engage in secondary employment at Ryde Hospital,

(iii) Swipe card access reports from the staff car park;

(iv) eMR data showing that the applicant did not make any patient entries before or after she swiped out of the staff car park prior to the completion of her shift (emphasis added).

1. The Applicant provided a response to the Show Cause letter on 29 August 2025 (by way of statutory declaration). In that response the applicant requested access to additional material beyond a record of the car park swipe records including patient records and other clinical records to enable her to further respond to the findings.
2. Following discussions in the Commission arrangements were subsequently made for the Applicant to inspect documents at Liverpool Hospital on 10 September 2025. A dispute remains between the parties as to whether the Applicant and her representative were afforded sufficient time to review the extensive documentation provided, and whether the relevant electronic medical record (eMR) data was made available to the Applicant.
3. This issue is likely to be contested during the substantive proceedings. However, it is not a matter that requires determination for the purposes of the present interlocutory application before me.
4. I note at the conclusion of the hearing before me on 12 September 2025, the Respondent agreed to extend the time for the applicant to provide a further response to the Show Cause letter until Tuesday 16 September 2025.

1. On 5 August 2025, before the finalisation of the Show Cause process, the Applicant commenced unfair dismissal proceedings (based on the Show Cause Letter being a threat of dismissal) seeking relief under s 89(7) of the IR Act.
2. The matter was listed before me for conciliation and directions on 13 August 2025. At the request of the parties, conciliation was adjourned to allow the parties to confer directly. The matter was subsequently listed before me on 1 September 2025, 2 September 2025 and 8 September 2025.
3. At the report-back on 8 September 2025, the Applicant sought an urgent interlocutory hearing for the purpose of obtaining interim orders to prevent her dismissal. Directions were issued for the filing of evidence and submissions.
4. In support of the application the Applicant relied upon a statutory declaration signed on 28 August 2025 but filed on 11 September 2025 (Exhibit A1) and a Statement filed on 11 September 2025 (Exhibit A2).
5. The Respondent relied upon an Affidavit of Shyam Iyer affirmed and filed in the proceedings on 12 September 2025 and an outline of submissions filed on 12 September 2025 (Exhibit R3).
6. The parties written submissions were supplemented by oral submissions in the interlocutory hearing and both the Applicant and Mr Iyer were cross examined during the proceedings.

1. I have carefully read the parties submissions. It is not necessary to set them out in detail in this decision. The main contentions of the parties are summarised below.
2. It was not in issue in these proceedings that the Commission has jurisdiction to hear a threatened dismissal and to make the order sought by the Applicant not to dismiss the employee in accordance with the threat, or that the Show Cause letter sent to the applicant constituted a threat of dismissal.
3. It was accepted by the parties that the determination of this matter involves the exercise of discretion by the Commission and in exercising this discretion the Commission must consider and apply the following principles:

(1) whether there is a serious question to be tried or that the applicant has made out a prima facie case.

(2) where the balance of convenience lies.

1. The applicant further contended that to inform the exercise of that discretion, the Commission will need to consider as a separate test that the applicant will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted with reference to Schmidt J's decision in Hill [1]. The Respondent submitted that whether irreparable harm will be suffered is just a factor going to the question of the balance of convenience and not a separate factor[2]. I accept the Respondent's submission.
2. The principles in this respect are well settled in this Commission and were concisely summarised by then President, Boland J in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woefl v Department of Attorney-General and Justice, Corrections, Corrective Services New South Wales [2012] NSWIRComm 33 at [28] - [34] referring to earlier authorities:[3]

(1) whether there is a sufficient likelihood of success by the applicant to justify in the circumstances the preservation of the status quo pending the final hearing, in the present context being the Applicant remaining employed on alterative duties or sick leave pending the final determination of the matter.

(2) where the balance of convenience lies: that is, whether the inconvenience or injury which the applicant would be likely to suffer if her interlocutory application was refused outweighs or is outweighed by the injury or inconvenience which the respondent would suffer if the application was granted[4], and the Applicant was ultimately unsuccessful in the substantive proceedings.

(1) Whilst she did not hold current secondary employment approval for 2023 and 2024, such approval was obtained annually from 2016/2017 to 2022 through the performance development review process with her former manager, Ms Campbell.

(2) No performance development review was conducted by her current manager, Ms Varghese, in 2023 or 2024, and as a result, the usual approval forms were not submitted.

(3) She denies allegations of unauthorised early departures from Bankstown-Lidcombe Hospital to commence duties at Ryde Hospital, except for one occasion (3 April), which she states was approved by the After Hours Nurse Manager.

(4) She disputes the accuracy and reliability of car park swipe data as evidence of attendance.

(5) She contends that the allegations were raised only after she lodged a complaint in April 2025 regarding the use of TOIL in lieu of overtime, contrary to the applicable award (Exhibit A1, [24]- [30]).

(6) Applicant has given evidence that both her former manager, Ms Linda Campbell, and her current manager, Ms Mariamma Varghese, were aware of her engagement in secondary employment at Ryde Hospital. She states that this arrangement was discussed openly, including during bimonthly operational meetings, and that a HealthShare request was made in November 2024 in relation to her employment at Ryde. The Applicant further contends that her employment records at Ryde Hospital were accessible to the Northern Sydney Local Health District (NSLHD), suggesting that her secondary employment was neither concealed nor unknown to management (I observe that this evidence will need to be weighed against the formal policy requirements and any documentation - or lack thereof - relating to approval). The Respondent's case hinges on the car park swipe records and the absence of signed secondary employment forms other than in 2017.

1. The Respondent's central contentions on prima facie case may be summarised in this way:

(1) The Respondent's evidence demonstrates the Applicant did not have secondary employment approval, despite having been reminded of the requirement to have it in September 2024 and worked 64 shifts at Ryde Hospital between 6 May 2024 to 11 April 2025 without an approved secondary employment application form.

(2) On 49 occasions the Applicant otherwise failed to perform the entirety of her rostered shifts without prior approval from management (based on various records including swipe card access records and eMR data showed no patient entries before or after the Applicant swiped in or out of the car park).

(3) For those reasons she has breached the Code of Conduct and the Secondary Employment Policy.

(4) The Applicant, for various reasons, has failed to make out a sufficient likelihood of success to justify the preservation of the status quo pending the final hearing.

1. There are a number of significant factual disputes in this matter that will need to be resolved in any substantive hearing many of which will be contingent upon determinations of credit. In oral submissions, the Respondent contended that the Commission should assess the Applicant's credit and the reliability of her evidence in determining whether she has a reasonable likelihood of success. I do not accept that submission. It is well established that interlocutory proceedings are not the appropriate forum for resolving contested factual matters or making determinations on credibility, which are properly reserved for the final hearing.
2. As stated in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622-623 the Commission must assess whether, on the basis that the evidence remains as it is, there is a probability that the applicant will be entitled to relief at trial. The Applicant need not show that it is more probable than not that at trial the plaintiff will succeed: it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending trial"[5]. This approach was recently affirmed by Howell C in Peat v Industrial Relations Secretary o/b Department of Communities and Justice (NSW Sheriff's Office) [2025] NSWIRComm 1067 at [17], citing Beecham and Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57.
3. The threshold for interlocutory relief is the existence of a serious question to be tried. It is not appropriate to undertake a pre-emptive evaluation of the merits or to resolve factual disputes, including those turning on credit, at the interlocutory stage.
4. The Respondent did not adduce evidence from the decision maker or the Investigator in these interlocutory proceedings. It is unclear whether any interviews were conducted or whether witness statements were obtained from anyone including Ms Parajo (the complainant), Ms Mariamma Varghese, or Ms Linda Campbell to rebut the Applicant's assertion that Ms Varghese was aware of her secondary employment. The Respondent did not lead evidence that secondary employment approval would have been refused, if permission had been sought (it does not appear to be in dispute it had previously been approved at least in 2016/2017, although I recognise there is a factual dispute from that time on).
5. I understand that the Respondent accepts that Ms Varghese did not conduct performance reviews in 2023 or 2024. Clauses 9.1 and 9.2 of the Secondary Employment Policy requires employees to review secondary employment with their manager during annual performance reviews, and managers to facilitate such discussions.
6. From a procedural fairness perspective, there is no evidence that the Applicant was provided with the investigation report, witness statements, interview records including from anyone at Ryde Hospital, or other documentary material, apart from what was viewed on 10 September 2025.
7. For the purposes of the present interlocutory application, on the basis of the material presently before the Commission (noting the investigation report has not been provided), I am satisfied that the Applicant has established a prima facie case sufficient to justify the granting of interim relief (in particular, as to whether dismissal was unreasonable and/or harsh). However, this finding does not finally dispose of the matter. I now turn to consider the balance of convenience.

1. On the question of the balance of convenience the Applicant appears to advance essentially two contentions:

(1) that the balance of convenience is "unarguably" in the Applicant's favour because in not making the order the Applicant will suffer "permanent damage" referred to in her statements. The permanent damage referred to appears to be she will be subjected to the Service Check Register (SCR) and be, in all practicality, unemployable in the NSW Public Health System and there are no positions at her level in the private health system; and

(2) based on the overwhelming practice of the Commission, even if ultimately successful the applicant would be likely to be awarded compensation and not be reinstated so her employment should be preserved while the merits of her case are determined.

1. I will deal with the second point first. I am not persuaded by this argument. In this respect the applicant will be in no different a position than any other employee who has been dismissed and is able to commence unfair dismissal proceedings under s 84 of the Act and seek relief in the form of reinstatement in this Commission. In this regard reinstatement remains the primary remedy under the Act. Each case turns on its own facts. I do not accept there is an "overwhelming practice" of the kind alleged.
2. As was recently observed by President Taylor J in Boncales v Secretary, Department of Education (No 2)[6] and adopted by Howell C in Health Services Union o/b Mr Tony Thomas v Health Secretary in respect of HealthShare[7] any submission that the harm in question is irreparable needs to take account of the fact that if the applicant is indeed dismissed, the applicant will have the capacity to commence proceedings under s 84 of the Act seeking relief for unfair dismissal which, if established, facilitates orders for reinstatement and full back pay.
3. In assessing the balance of convenience in the present matter, there is a complete absence of evidence regarding the applicant's financial circumstances. No material has been provided outlining her income, regular expenses, or financial obligations, including mortgage or rental payments and other liabilities. There is also no evidence presented of the usual kind that might be relied upon to demonstrate that the applicant would suffer particular prejudice or injury to the effect that if the applicant was terminated that these commitments would become unsustainable such that she would be compelled to sell her home or relocate due to an inability to service debt or secure alternative employment.
4. Very limited information was provided regarding the Applicant's personal circumstances. The Applicant is 56 years old, and I accept that her age is a relevant factor that may make it more difficult for her to obtain alternative employment.
5. There was no information presented as to the applicant's accumulated leave entitlements that may be paid out to her in the event that she is terminated. I can infer from the fact that she has been in receipt of paid sick leave for the last 4 months that the applicant did have considerable accrued sick leave entitlements, that she may lose the benefit of if she is terminated.
6. Balanced against this consideration is the fact that, if the applicant is ultimately successful, accrued but untaken leave entitlements not ordinarily paid out on termination - such as sick leave - may remain available. This is because, under s 89(4) of the IR Act, an order for continuity of employment would preserve an unbroken period of service.
7. While the Applicant contends that placement on the Service Check Register may adversely affect her prospects of securing alternative employment, I accept - despite some reservations - the Respondent's evidence, as set out in Mr Iyer's affidavit, that such placement does not necessarily preclude future employment within NSW Health, as each appointment is subject to a contextual assessment of the misconduct and associated risks.
8. Needless to say if the applicant later succeeds in an unfair dismissal claim under Part 6 of Chapter 2 of the IR Act - obtaining relief under section 89(1) or (2) - then the Service Check Register issue does not arise.
9. While the Applicant submits that the balance of convenience does not favour the Respondent - arguing that the Respondent would not be disadvantaged by the granting of interlocutory relief and would retain access to a technically competent senior nurse - the evidence before the Commission indicates that the Applicant is currently medically unfit for work and has been on indefinite sick leave since April 2025. Although her capacity is subject to review and a medical appointment is scheduled, there is no evidence before the Commission that she will be certified fit to return to work if the order is made.
10. The Respondent identified the following injury or inconvenience:

(1) the Respondent will be prevented from completing its disciplinary process and is therefore having to keep in its employ a person who it considers has engaged in misconduct.

(2) the Applicant has not given an undertaking that she will not seek to work at another Local Health District (or other employer) without a secondary employment approval, and as such in granting the interlocutory order sought the Commission may facilitate further breaches of the relevant policies and codes by the Applicant;

(3) the Respondent would have to continue to pay Applicant in circumstances where the Applicant may not obtain the final relief sought by her; and

(4) the Respondent would be prevented from backfilling the substantive position held by the Applicant.

1. The Respondent also submitted that no particular factors of inconvenience have been identified by the Applicant, other than an anticipated difficulty in securing future employment in either public or private hospitals due to the placement of her name on a service check record.
2. Although none of the individual matters raised by the Respondent are determinative, I accept that, taken together, they weigh against the grant of interlocutory relief. This assessment is not altered by the Respondent's status as a major department within the NSW public sector.
3. The Applicant has not provided sufficient evidence to establish that she would suffer material prejudice if interlocutory relief were refused. While she refers to potential difficulty in obtaining future employment due to the placement of her name on a service check record, this concern alone does not warrant the relief sought. On an assessment of the evidence before me, any disadvantage is capable of being addressed by appropriate Orders under section 89 of the Act if the Applicant is ultimately dismissed and successfully prosecutes an application under s 84 of the IR Act.
4. Having carefully considered the competing arguments of the respective parties and for the reasons set out above, I am not satisfied that the evidence before the Commission is sufficient to support a finding that the balance of convenience favours the Applicant to the extent necessary to justify the making of the interlocutory order.
5. I am not persuaded that a proper basis has been established for the exercise of discretion in favour of the Applicant to restrain the Respondent from terminating the Applicant if that is indeed the ultimate decision in finalisation of the misconduct process. Accordingly, the application is dismissed.

22 September 2025 - Paragraphs 36 and 37 'reinstalment' changed to 'reinstatement'.

Paragraph 26(6) added missing parentheses and 'I observe' to the beginning of the parenthetical section.

[1] Hill v Director General. Department of Education and Training [1998] NSWIRComm.622, 20 November 1998 citing Mason ACJ in Castlemaine Tooheys Ltd & Ors v State of South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153 1)

[2] ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229 at [35] and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woefl v Department of Attorney-General and Justice, Corrections, Corrective Services New South Wales [2012] NSWIRComm 33

[3] ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229 at [25]. Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 the correct approach to determining whether to grant or refuse an interlocutory order under s 89(7) was in accordance with Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; :

[4] Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woefl v Department of Attorney-General and Justice, Corrections, Corrective Services New South Wales [2012] NSWIRComm 33 at [34].

[5] Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65]

[6] Boncales v Secretary, Department of Education (No 2) [2025] NSWIRComm 11 at [26] - [27].

[7] [2025] NSWIRComm 1065 at [44 to 49].