Sarson v Fire and Rescue NSW (No 2) [2026] NSWIRComm 1043 | Case summary

Medium Neutral Citation: Sarson v Fire and Rescue NSW (No 2) [2026] NSWIRComm 1043

Hearing dates: 9 March 2026

Date of orders: 20 May 2026

Decision date: 20 May 2026

Jurisdiction: Industrial Relations Commission

Before: Commissioner McDonald

Decision: (1) The Applicant’s claim for relief pursuant to s 213 of the Industrial Relations Act 1996 (NSW) in respect of the matters set out in paragraph 3 of the Application for Relief from Victimisation filed on 30 October 2026 is dismissed.
(2) The Applicant has leave to amend his Application for Relief for Victimisation to include claims of victimisation in relation to:
(a) the deduction of alleged overpayments from his pay on and after 16 October 2025; and
(b) decisions made on and after 9 March 2026 to continue his suspension from duty.
(3) The Applicant has leave to amend his Application for Relief from Victimisation to delete the paragraphs under the heading “Remedy” and in lieu thereof insert Schedule A to the Application for Leave filed on 12 January 2026, with the exception of:
(i) the word “inherent” in the first paragraph;
(ii) paragraphs 1 – 5 under the heading “Declaratory Relief”.
(4) The Applications for Leave to Amend filed on 12 January 2026 and 4 February 2026 are otherwise dismissed.
(5) The Applicant is directed to file and serve by 4pm on 27 May 2026, an Amended Application for Relief from Victimisation to reflect Orders (1), (2) and (3)
(6) The matter is listed for directions on 2 June 2026 at 2pm.

Catchwords: EMPLOYMENT AND INDUSTRIAL LAW –Victimisation – Application for Leave to Amend –Whether necessary in the interests of justice to allow amendments – Whether sufficient reason to allow claims made out of time – No evidence led as to reason why claims made out of time – Consideration of obligations of litigant-in-person
CIVIL PROCEDURE – Powers of Court or Tribunal to require production of documents protected under the Public Interest Disclosure Act 2022 (NSW)

Legislation Cited: Civil Procedure Act 2005 (NSW), ss 64, 65
Fire and Rescue NSW Act 1989 (NSW), ss 69, 70
Fire and Rescue NSW Regulation 2023 (NSW), reg 37
Industrial Relations Act 1996 (NSW), ss 170, 210, 213
Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025 (NSW)
Industrial Relations Commission Rules 2022, r 5.6
Public Interest Disclosure Act 2022 (NSW), s 64
Uniform Civil Procedure Rules 2005, r 7.3
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited: Chalik v Chalik [2025] NSWCA 136
Davis v Amalgamated Television Pty Limited [1998] IR 364
Grant v Commissioner of Police [2025] NSWIRComm 1000; 337 IR 419
Grant v Commissioner of Police (No 2) [2025] NSWIRComm 1060
Hurrell v Queensland Cotton Corporation Limited [2003] NSWIRComm 139; (2003) 125 IR 145
Janssen v South Western Sydney Local Health District [2017] NSWIRComm 1076
Julie Pritchard v Measurement Resources Pty Limited [2006] NSWIRComm 1151
May v Costaras [2025] NSWCA 178
Nobarani v Mariconte [2018] HCA 36; 265 CLR 236
Prehn v Department of Environment and Conservation [2006] NSWIRComm 222
PSA v Commissioner of Police [2025] NSWSC 624
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
Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (obo Saraceno) v Commissioner of Police [2024] NSWIRComm 1001
Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059
Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep)
Richard Kinninmont v Ku-ring-gai Council [2019] NSWIRComm 1029
Sutton v Be Australia WD Pty. Ltd (No 2) [2015] NSWIC 9
Swaran Lata Kumar v Macquarie Partnership Lawyers [2005] NSWIRComm 202
Taylor v Tweed Shire Council [2006] NSWIRComm 125

Texts Cited: Fire and Rescue NSW Procedural Guidelines for the Management of Conduct
Practice Note 33 – Use of Generative Artificial Intelligence
Premier's Memorandum M1994-35

Category: Procedural rulings

Parties: Andrew Sarson (Applicant)
Fire and Rescue NSW (Respondent)

Representation: Counsel:
P Willink (Respondent)
Solicitors:
Kingston Reid (Respondent)
Other:
Applicant (self-represented)

File Number(s): 2025/418790

Publication restriction: None

DECISION

Before the Commission is an application filed by the Applicant, Dr Andrew Sarson, seeking leave to amend his Application for Relief from Victimisation. The proposed amendments involve additional prayers for relief and additional claims of victimisation arising from detriments Dr Sarson alleges he suffered as a result of action taken by the Respondent. Dr Sarson accepts that most of the proposed additional claims of victimisation are out of time to be made. Consequently, to the extent required, Dr Sarson seeks leave to bring the additional claims, out of time.
By his application, Dr Sarson also seeks an order for disclosure of the identity of a complainant pursuant to s 64 of the Public Interest Disclosure Act 2022 (NSW) (PID Act).
Dr Sarson is a firefighter with Fire and Rescue NSW (FRNSW). He is employed as a station officer attached to St Mary’s Station, although as at the date of the hearing of this application he was suspended on full pay. He is unrepresented in this proceeding.
Dr Sarson filed his Application for Relief from Victimisation on 30 October 2025 against “Fire and Rescue NSW” (Initial Application).
Pursuant to s 70 of the Fire and Rescue NSW Act 1989 (NSW), the Industrial Relations Secretary is, for the purposes of proceedings before this Commission, taken to be the employer of the Applicant, except where the proceedings relate to the dismissal, suspension or reinstatement of members of permanent or retained fire brigades, or the powers of the Commissioner of Fire and Rescue NSW with respect to the discipline, promotion or transfer of those members. Pursuant to s 69 of the Fire and Rescue NSW Act the Commissioner is to have and may exercise all the functions of employer of the members of fire brigades including the matters excluded under s 70. The Respondent has not applied to have the name of the Respondent amended, but has nonetheless filed all documents under the name “Industrial Relations Secretary on behalf of Fire and Rescue NSW”. It is possible that, as the proceedings relate to the suspension of Dr Sarson, at least in part, that the proper name of the Respondent should be the Commissioner rather than the Industrial Relations Secretary. As no application has been made to amend the name of the Respondent and given the uncertainty as the correct identification of the Respondent, I do not propose to vary the name of the Respondent at this stage, but this issue should be addressed by the Respondent following the delivery of this decision.
On 12 January 2026, following an unsuccessful conciliation, Dr Sarson filed an application for leave to amend the Initial Application to include additional prayers for relief (First Leave Application). On 4 February 2026, pursuant to a direction I made on 28 January 2026, the Applicant filed a further application for leave to amend the Initial Application (Application for Leave to Amend). By that application Dr Sarson also seeks leave, pursuant to s 213(4) of the (NSW) (), to “amend the application so as to include out-of-time detriments”.

Background

I set out below a summary of the background giving rise to this proceeding, as revealed from the limited evidence tendered at the hearing of the application noting that the application presently before me is interlocutory and consequently there may be other relevant factual matters that have not been the subject of evidence tendered on the application and there may some ‘facts’ which would be contested on a final hearing. For present purposes and consistent with authority, I have taken Dr Sarson’s case at its highest, based on the material available to me.
Dr Sarson did not file or rely upon any statements or affidavits at the hearing of this application, although a direction was made on 28 January 2026 that he file and serve evidence to support the application for leave and an outline of submissions, by 4 February 2026. It seems Dr Sarson, who is not a lawyer and is unrepresented, intended to rely on the matters set out and attached to, his Application for Leave to Amend, as his evidence on the application. Ultimately, I accepted some of the documents attached to the Application for Leave to Amend into evidence. The following summary is based on those documents and an affidavit affirmed by Christa Lenard, the solicitor for the Respondent, which was tendered by the Respondent.
On 13 January 2025 the Applicant reported that he twisted his knee getting out of a fire truck. A claim for workers’ compensation was made and provisionally accepted by the Respondent’s insurer. At some stage prior to June 2025 (the exact date is not clear on the evidence currently before me) Dr Sarson returned to work performing alternative duties for FRNSW, under a remote work arrangement.
On or about 21 May 2025, FRNSW received information that Dr Sarson was presenting himself as a medical doctor offering to issue medical certificates to other firefighters. Subsequently, FRNSW was informed that Dr Sarson was working on a full-time basis as a Junior Medical Officer at Nepean Hospital. FRNSW maintains that Dr Sarson had not declared any secondary employment to FRNSW, although this is disputed by Dr Sarson.
On 12 June 2025 Ruth Barlow, Director, Professional Standards, FRNSW, wrote to Michael Pappas, Rehabilitation Coordinator at Nepean Blue Mountains Local Health District (NBMLHD), advising that the Professional Standards Branch of FRNSW was “undertaking an assessment of the information received” and seeking information regarding Dr Sarson’s employment with NBMLHD, including advice as to whether Dr Sarson was qualified and authorised to provide medical certificates and/or prescriptions. In the letter (12 June Letter), Ms Barlow asserted that Dr Sarson had not declared any secondary employment to FRNSW and conflict of interest concerns had been raised with the Professional Standards Branch. It is not clear on the evidence before me when Dr Sarson became aware of the 12 June Letter.
On 8 July 2025 Dr Sarson was notified, by letter from Ms Cheryl Steer, Acting Deputy Commissioner, Field Operations, of misconduct allegations against him; that Mr David Madden, an independent investigator had been engaged to conduct an investigation into the allegations; and that Dr Sarson was suspended on full pay pursuant to reg 37 of the Fire and Rescue NSW Regulation 2023 (NSW) (8 July Letter). The letter identified the “general nature of the allegations” and informed Dr Sarson that he would be provided with detailed allegations “as soon as practicable”. The allegations against him were expressed as follows:

“1. Over the approximate period, January 2024 to June 2025, you did not act with honesty and integrity, concerning your secondary employment, including with (but not limited to) Nepean Blue Mountains Local Health District (NBMLHD).

The generalised, further particulars to the allegation are:

a. You did not submit secondary employment declarations, or otherwise seek approval for your secondary (or external) employment;

b. you took paid leave from Fire and Rescue NSW (FRNSW), to undertake secondary employment, without approval from FRNSW. The paid leave taken from FRNSW included, but was not limited to:

i. Personal Carers leave

ii. Consolidated leave

iii. Annual leave

iv. Long Service leave

v. Sick leave

vi. Sick leave workers compensation

Your alleged actions, as set out in the generalised Allegation are in breach of various FRNSW policies and procedures, including but not limited to the Regulation, the Code of Conduct and Ethics, the Conflict of Interest Policy and the Fraud and Corruption Policy and Prevention Plan.

The nature of the breaches of policy and procedure, including the specific provisions, will be provided to you when you are provided with the detailed particulars of the Allegations.”

On 23 July 2025 Ms Barlow wrote to Dr Sarson (23 July Letter) advising that in accordance with Fire and Rescue NSW Procedural Guidelines for the Management of Conduct - Part 1 and Premier's Memorandum M1994-35, Dr Sarson’s suspension had been reviewed, however no change had been identified to warrant the suspension being lifted. In addition, Ms Barlow issued numerous directions to Dr Sarson in the 23 July Letter, including that he not undertake any secondary employment including work for another employer or self-employment.
On 1 and 2 September 2025 Dr Sarson submitted a document to FRNSW headed “Formal Notice of Concerns Regarding Improper Collection and Disclosure of Personal Information” which I understand was a complaint about the sharing of Dr Sarson’s employment records by FRNSW and NBMLHD. In this correspondence Dr Sarson also requested that consideration be given to lifting the direction prohibiting him from undertaking any secondary employment, including work for another employer or self-employment. [1]
On 12 September 2025 Dr Sarson lodged a complaint with the Professional Standards Branch that he had been subjected to an "unjustified deduction of pay arising from a misclassification of my sick leave as 'unauthorised leave'**” during the period 28 May 2025 to 29 June 2025. It seems that the alleged unauthorised leave may have been subsequently reclassified by FRNSW as sick leave, with deductions from Dr Sarson’s pay ceasing in or around November 2025. [2]
Sometime prior to 22 September 2025 Mr Michael Morris was appointed Deputy Commissioner, Field Operations and consequently became the decision maker in relation to the allegations of misconduct made against Dr Sarson. By letter dated 22 September 2025 Dr Sarson made a complaint that Deputy Commissioner Morris had a conflict of interest in handling his misconduct matter. [3]
On 14 October 2025 Ms Barlow wrote to Dr Sarson (14 October Letter) advising that the Professional Standards Branch had reviewed his complaint concerning Deputy Commissioner Morris and assessed that there was no identified conflict of interest that would preclude Deputy Commissioner Morris acting as the decision maker in Dr Sarson’s misconduct matter.
On 28 November 2025 Dr Sarson lodged with FRNSW a “Notification of Injury, Illness Exposure or Near Miss” alleging a psychological injury as a result of “Fire & Rescue NSW ongoing victimisation, bullying and mismanagement of workers compensation injury.”
On 12 December 2025 Deputy Commissioner Morris, wrote to Dr Sarson (12 December Letter) providing full particulars of the allegations made against Dr Sarson (which were not put into evidence); advising of next steps in the investigation; possible outcomes if the allegations were substantiated; addressing Dr Sarson’s complaints about the misclassification of his leave and collection and disclosure of personal information; advising that the prohibition on Dr Sarson engaging in secondary employment would not be lifted; and, repeating the directions that had previously been issued.

The Initial Application

In the Initial Application, the Applicant alleged that he had been victimised because he was “entitled to a benefit or claims a benefit under the Workers Compensation Act 1987, the Workplace Injury Management and Workers Compensation Act 1998, or other entitlements for a workplace injury” being a so-called protected attribute prescribed in s 210(1)(j) of the IR Act. The particulars of the victimisation were expressed as follows:

“3 With reference to section 210(1)(j)(A) of the Industrial Relations Act 1996 (NSW), correspondence was issued by Ms Ruth Barlow, Director of the Professional Standards Branch, Fire & Rescue NSW, to Mr Michael Pappas, Rehabilitation Coordinator at Nepean Blue Mountains Local Health District, concerning my active and approved workers' compensation claim with Fire & Rescue NSW. The correspondence sought information regarding my secondary employment, purportedly to assess the legitimacy of my workers' compensation claim, thereby constituting an act of victimisation in connection with the exercise of my workplace rights under the workers' compensation scheme.

4 Fire & Rescue NSW subsequent investigation arising from the victimisation was initiated by Zone Management of Metro West 1, which at the time was headed by Mr Michael Morris. At the time I had disclosed to Mr Morris personal details regarding my workplace injury and employment circumstances that are now directly relevant to the allegations. I raised this as a potential conflict of interest; however, Fire & Rescue NSW asked Mr Morris to comment on the matter himself and subsequently retained himself as the decision-maker.”

Based on the above it may be understood that Dr Sarson asserted that, by reason of his entitlement to and/or claiming of workers’ compensation, the Respondent had imposed the following detriments on him:
(on or about 12 June 2025) seeking information from NBMLHD regarding his secondary employment (Seeking Information Detriment);
(on or about 8 July 2025) subjecting him to a misconduct investigation (Investigation Detriment) and suspending him on pay (Suspension Detriment); and
(on or about 14 October 2025) deciding to retain Deputy Commissioner Morris as the decision maker in relation to the investigation against him despite Dr Sarson raising a conflict of interest concern (Decision Maker Detriment).
Dr Sarson sought the following relief in the Initial Application:

“1 Pursuant to 213 1 (a) seek orders for cessation of suspension and for employment to reinstated.

2 Pursuant to 213 2 (c) Order for Fire & Rescue NSW to repay - payroll deductions equalling to $8,395.46.

3 Pursuant to 213 2 (e) Fire & Rescue NSW to cease victimisation and to cease investigation arising from victimisation.

4 Order for Fire & Rescue NSW to amend leave records to recognise period of approved workers compensation leave.

5 Order for Fire & Rescue NSW to pay compensation equal to lost income at a rate of $3,198.44 p/w from 03 October until relief from victimisation.

6 Order for Fire & Rescue NSW to pay compensation of $83159.44. An amount equal to 6 months of future earnings.”

As noted above, the Initial Application was filed on 30 October 2025. It is now well established, and was not contested by Dr Sarson, that in accordance with s 213(3) of the IR Act, an application for relief from victimisation must be filed within 21 days after the alleged contravention, that is, 21 days from the date of each asserted detriment. [4]
Dr Sarson acknowledged in the Initial Application that the application was filed more than 21 days after the contravention(s) occurred (although I note this was not the case with respect to the Decision Maker Detriment) and stated that his reasons for the application being filed late were:

“At the time, the allegations leading to my suspension were not explicitly defined, and the nature of the inquiry initiated by Ms Barlow was not disclosed to me, rendering the victimisation unknown until the substance of her correspondence was later revealed. This conduct constitutes adverse action and victimisation connected to my lawful exercise of workplace rights under the workers' compensation framework.”

I pause at this juncture to make two observations. First, no decision has yet been made as to whether the Commission will accept the Initial Application, pursuant to s 213(4) of the IR Act, to the extent it makes claims with respect to contraventions of s 210 that occurred more than 21 days prior to the date the Initial Application was filed, namely, 30 October 2025. The Seeking Information Detriment, the Investigation Detriment and the Suspension Detriment occurred more than 21 days before the Initial Application was filed.
For reasons discussed below, a claim of victimisation based on the Seeking Information Detriment cannot be sustained and I propose to order that that part of Dr Sarson’s claim be dismissed.
Whether the Commission will accept the application, made out of time, in respect of the Investigation Detriment and the Suspension Detriment is a question for another day. The claim based on the Decision Maker Detriment was made within time and may proceed to hearing, subject to the Respondent’s motion to have the claim summarily dismissed.

The Proposed Amended Application

It is fair to say that the Application for Leave to Amend filed on 4 February 2026 is more than a little confusing, in part because much of it takes the form of submissions, in part because it is unclear to what extent the proposed amendments in the First Leave Application filed on 12 January 2026 continued to be pressed, and in part because the proposed amended particulars of victimisation were unclear.
During the hearing of the application, I endeavoured to clarify with Dr Sarson what relief he seeks, what prescribed protected attributes he relies upon and what detriments he asserts he suffered as a result of allegedly prohibited action by the Respondent.
Arising from my exchanges with Dr Sarson I understand that, in lieu of the relief sought in the Initial Application, Dr Sarson seeks the following relief, as was set out in Annexure A to his First Leave Application filed on 12 January 2026: [5]

“A. Immediate Relief

An order pursuant to s 213(l)(a) that any suspension cease and that the Applicant be restored to the position, duties, classification, and employment status he would have held but for the victimising conduct.

a. To the extent applicable, an order setting aside any termination, dismissal, or cessation of employment arising wholly or partly from the victimising conduct.

b. Return to prior position with regards to capacity for work relating to any current or future workers compensation claim.

c. No detrimental action with regards to employment transfer that would adversely affect the applicant financially or practically.

…

C. Cessation and Protective Orders

An order pursuant to s 213(2)(e) restraining the Respondent from continuing, recommencing, or relying upon any investigation, disciplinary process, or adverse administrative action arising from or connected with the victimising conduct.

An order restraining the Respondent from subjecting the Applicant to any further detriment arising from or connected with the matters the subject of these proceedings.

D. Rectification of Records

An order requiring the Respondent to correct, amend, and/or annotate all employment, payroll, and leave records to reflect approved workers' compensation leave and the findings of this Commission, and to remove or appropriately qualify any adverse entries arising from the victimising conduct.

E. Monetary Relief (Non-Final)

An order pursuant to s 213(2)(c) requiring the Respondent to repay any unlawful or improper payroll deductions, including but not limited to the sum of $8,395.46. FRNSW HR payroll to repay what is remaining of this amount amount (sic) of "overpayment" that was deducted due to incorrect misclassification of leave.

F. Ancillary Relief

Interest on any monetary amounts awarded, as the Commission considers appropriate

Costs, in the discretion of the Commission.

Such further or other orders as the Commission considers appropriate to give effect to these findings.”

In addition, as was set out in the Application for Leave to Amend, Dr Sarson seeks the following additional forms of relief:

“□ An order that the Respondent cease and rectify the payroll deductions alleged to be unlawful and arising from the misapplication of the Applicant's workers compensation entitlement.

□ An order that the identity of the complainant be revealed under s64 (2)(g) [of the Public Interest Disclosure Act 2022 (NSW)] "the identifying information is disclosed for the purposes of proceedings before a court or tribunal OR (h) The disclosure of the identifying information is necessary to deal with the disclosure effectively."

□ Such other procedural or declaratory relief as the Commission deems just.”

I note that the first of those proposed orders essentially replicates the order sought in the First Leave Application under “D”.
The Application for Leave to Amend also included a prayer for the Commission to make an interlocutory order under s 64 of the PID Act in the following terms:

“An order that the Respondent disclose to the Applicant within 7 days the identity of any complainant or notifier whose information formed the basis of any misconduct allegation taken against the Applicant. Including but not limited to;

□ The identity of the Public Interest Disclosure Complainant pursuant to the s64 (2)(g), (h) of the ACT

□ With regards to the Applicants calendar that contained a QR code to a website owned by the Applicant.

○ The original photograph supplied to the Applicant including metadata that was provided to PSB

○ The identity of the photographer who supplied the calendar to PSB

o The commentary that accompanied the calendar submitted to PSB”

By the Application for Leave to Amend Dr Sarson does not seek to expand the basis upon which he alleges he was victimised, that is, he does not seek to add any additional protected attributes. The sole basis upon which Dr Sarson asserts he was victimised is because he was/is entitled to a benefit and/or claims a benefit under the Workers Compensation Act 1987, the Workplace Injury Management and Workers Compensation Act 1998, or in relation to other entitlements for a workplace injury, [6] being the matters prescribed in s 210(1)(j) of the IR Act*.*
Annexed to the Application for Leave to Amend was a document which was referred to interchangeably as “Appendix 1” and “Appendices A” (Appendix 1). This document contains a schedule of the detriments Dr Sarson asserts he suffered as a result of actions by the Respondent because of the matters referred to in s 210(1)(j).
In Appendix 1 Dr Sarson asserted that he suffered a number of detriments that FRNSW did not cause directly, such as NBMLHD deciding to investigate Dr Sarson for misconduct, but which Dr Sarson asserts were “triggered by”, or “casually linked to”, the Respondent’s contravention of s 210.
Cases which have confirmed that time runs to bring a victimisation claim from the date of each asserted detriment are referring to detriments caused directly by the action of the employer (or industrial organisation), the imposition of such detriments being the manifestations of the employer’s (or industrial organisation’s) contravention of s 210. Detriments suffered by an employee as a consequence of an employer’s (or industrial organisation’s) earlier action, that is, the ongoing effects of an earlier prohibited action, are not relevant for the purposes of calculating time under s 213(3) as such detriments do not, in themselves, constitute a contravention of s 210, although they may evince an earlier contravention. This was made clear in Richard Kinninmont v Ku-ring-gai Council [2019] NSWIRComm 1029 at [12] and [13] [7] where Commissioner Constant accepted the respondent’s submission that “the Act, in terms of the time limitations under s 213, necessarily addresses the act of victimisation at the time it occurred, not its ongoing effects, so that time runs from the time of the act of the victimisation which is complained of”.
The detriments listed in Appendix 1 that were not the direct result of action by the Respondent, but rather, are a consequence of action taken by the Respondent, cannot constitute a contravention of s 210 by the Respondent and so are not relevant for the purposes of calculating time and cannot in themselves constitute victimisation. However, if there is a casual connection to any contravention by the Respondent, the Commission may, subject to s 213(1) and (2), grant relief in respect of consequential detriments suffered by Dr Sarson.
The table at [41] below sets out the particulars of victimisation as contained in Appendix 1. Subject to what I say in the following paragraph, the first four columns of the table are identical to the first four columns in Appendix 1. The fifth column contains the date the 21-day filing period ended with respect to the asserted detriment, as calculated by me. I have not included a deadline date where the detriment alleged could not constitute a contravening act by the Respondent for the reasons discussed at [38] – [39] above.

| Item | Date**(**s) | Particulars of Alleged Detriment | Attribution to FRNSW | 21-day period ends | | 1 | 6 May 2025 | Denial of alternate roster despite significant health issues and absence of suitable duties | Direct FRNSW decision | 21 May 2025 | | 2 | 28 May - 29 Jun 2025 | Illness absence covered by medical certificate and certificate of capacity; later misclassified as unauthorised leave | FRNSW misclassified | The alleged misclassification did not take place during the stated date range, but rather in or around 25 July 2025 (see Item 11) | | 3 | 12 Jun 2025 | FRNSW letter to NBMLHD alleging misconduct/ conflict of interest re secondary employment. Initiating act | Initiating act by FRNSW | 3 July 2025 (This is what I have termed the Seeking Information Detriment) | | 4 | 17 Jun 2025 | RTW [8] advisor conduct: adverse assumptions; medical restrictions treated as negotiable | Flow-on from Item 3 | 8 July 2025 | | 5 | 17 Jun 2025 | Direction to change work location and roster inconsistent with medical capacity | Flow-on for Item 3 | 8 July 2025 | | 6 | 25 Jun 2025 | NBMLHD Initial review treating matter as serious misconduct | Triggered by FRNSW disclosure | N/A | | 7 | 27 Jun 2025 | NBMLHD formal misconduct investigation commenced; immediate suspension recommended | Procured by FRNSW | N/A | | 8 | 27Jun -27 Nov 2025 | Reciprocal disclosure of employment records between NBMLHD and FRNSW | Continuing FRNSW Involvement | The precise dates of the alleged disclosure are not specified, however the deadline range would be 18 July 2025 – 18 December 2025 | | 9 | 2-3 Jul 2025 onward | NBMLHD suspension of pay; loss of allowances and career progression | Casually linked to FRNSW action | N/A | | 9A | 8 July 2025 | Investigation Detriment and Suspension Detriment | | 29 July 2025 | | 10 | 23 July 2025 | FRNSW direction prohibiting all secondary employment | Direct FRNSW order | 13 August 2025 | | 11 | 25 July 2025 | Payroll classified absences as unauthorised leave; $8,395.46 deduction | FRNSW payroll action | 15 August 2025 | | 12 | 1 – 21 Aug 2025 | Repeated follow-ups seeking correction of payroll error; no response | FRNSW failure to act | Assuming that FRNSW’s failure to take action over the stated period is the alleged detriment the deadline range would be 22 August 2025 – 11 September 2025 | | 13 | 22 Sep 2025 | FRNSW letter asserting investigation for timesheet fraud | Procedural fairness | 13 October 2025 | | 14 | 16 Oct 2025 | Payroll deduction applied: ARR – Overpayment recovery | Direct FRNSW Detriment | 6 November 2025 | | 15 | 16 Oct 2025 | RACGP advised Applicant could not commence 2026 training due to suspension | Information traceable to FRNSW | N/A | | 15A | 17 Oct 2025 | Decision Maker Detriment | | 7 November 2025 | | 16 | 18 Oct [2025] [9] | Further payroll deduction applied: ARR – overpayment Recovery | Direct FRNSW detriment | 8 November 2025 | | 17 | Aug – Nov 2025 | Continuing fortnightly payroll deductions | Repeated FRNSW acts | Insufficient particularisation to calculate deadline. Latest possible deadline would be 21 December 2025 | | 18 | 12 Dec 2025 | FRNSW decision to maintain prohibition on secondary employment | Fresh FRNSW decision | 2 January 2026 | | 19 | Sep 2025-Jan 2026 | Mortgage arrears notices and final demand | Consequential financial detriment | N/A | | 20 | 3 Sep 2025 | Council rates recovery notice | Consequential detriment | N/A | | 21 | 14 Jan 2026 | Sydney Water restriction notice | Consequential detriment | N/A | | 22 | 1 Dec 2025 | Psychological injury from prolonged investigation and hardship | Flow-on from FRNSW conduct | N/A | | 23 | 30 Jan 2026 | Applicant’s complaint treated as misconduct without investigation | Procedural breach | 20 February 2026 | | 24 | 31 Jan 2026 | Sale of assets to meet financial commitments | Consequential detriment | N/A |

At the hearing Dr Sarson submitted that Item 10 in Appendix 1, which was particularised as “FRNSW direction prohibiting all secondary employment” also included an additional detriment, namely the decision by FRNSW to maintain his suspension from duty, on base pay, following review. The 23 July Letter informing him of this decision, [10] referred to a requirement under FRNSW’s Procedural Guidelines for the Management of Conduct – Part 1 and Premier’s Memorandum M1994-35, to review his suspension every 30 days. Consequently, Dr Sarson maintained that a fresh act of victimisation occurred every 30 days when his suspension was not lifted. [11] I understand that Dr Sarson seeks to make a claim in respect of each unsuccessful review of his suspension, although these reviews were not particularised in Appendix 1.
Dr Sarson argued that if he is not permitted to make a claim for relief in respect of any of the above alleged detriments on the basis they have been made out of time he should nevertheless be permitted to rely on the alleged “antecedent conduct as factual background essential to the proper characterisation, and intent of the in-time conduct”. [12] Dr Sarson submitted that this was consistent with what I said in Grant v Commissioner of Police *(*No 2) [2025] NSWIRComm 1060 specifically at [30-[36] of that decision. In fact, I said nothing to that effect in those paragraphs, or in that case. However, in Grant v Commissioner of Police [2025] NSWIRComm 1000; 337 IR 419 at [79] I explained, by reference to Davis v Amalgamated Television Pty Limited [1998] IR 364, that “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.”
The Application for Leave to Amended contained the following paragraph:

“As observed in Grant **(**No 2), the Commission noted that: "A single decision or finding may create a ripple of consequences that evolve over time ... A detriment is not confined to the moment of decision but may reside in its ongoing effects, provided the connection remains live and causally linked. Further, in Public Service Association v Commissioner of Police [2024] NSWIRComm 1062,[91-92] the Commission upheld the exclusion of newly introduced detriments that had not been pleaded in time, reinforcing the need for timely and procedurally proper amendment of victimisation allegations. The case underscores the procedural discipline exercised by the Commission, while recognising that background facts may still be relevant where they materially affect a properly pleaded, in-time detriment.”

The quote attributed to me in Grant No 2 is not found in the decision and the Full Bench did not, at [91] – [92] of 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 uphold the exclusion of newly introduced detriments that had not been pleaded in time. Rather, at [49], the Full Bench upheld my decision at first instance that an alleged act of victimisation that had only been particularised in the applicant’s written reply submissions could not form part of the applicant’s claim.
Dr Sarson is unrepresented. Nonetheless this does not excuse the submission to the Commission of inaccurate material. As Chief Justice Bell made clear in May v Costaras [2025] NSWCA 178 at [15], all litigants, whether represented by lawyers or not, are under a duty not to mislead the court or their opponent. I do not know whether generative artificial intelligence was used by Dr Sarson when he prepared the Application for Leave to Amend, but in any event, as made plain in the Commission’s Practice Note 33 – Use of Generative Artificial Intelligence, at [18], the author of written submissions and summaries of argument must verify that all citations, legal and academic authority and case law and legislative references exist, are accurate and relevant to the proceedings. It appears that this was not done in this case.

Applicable Principles

The approach the Commission is to take when considering an application to amend an application for relief from victimisation, including where the amendment seeks to introduce claims that are made out of time, may be summarised as follows:
the power to grant leave to amend is found in s 170 of the IR Act, rather than ss 64 or 65 of the Civil Procedure Act 2005 (NSW): Kinninmont at [22] – [23];
s 170 of the IR Act allows the Commission to permit amendments that it “considers necessary in the interests of justice”;
when considering what is “necessary in the interests of justice” the Commission will consider, inter alia, the reason the amendments are said to be “necessary”, any delay in bringing the application to amend, the prospects of success of the claim and any prejudice to the opposing party: see e.g. Sutton v Be Australia WD Pty. Ltd *(*No 2) [2015] NSWIC 9; Kinn**inmont at [26]; Hurrell v Queensland Cotton Corporation Limited [2003] NSWIRComm 139; (2003) 125 IR 145 at 150.
the provisions of s 213(4), which apply to “making the application” are relevant in determining “the interests of justice” where the amendment sought seeks to introduce claims that are made out of time: Kinninmont at [23];
where the amendment seeks to introduce claims out of time, the onus rests on the applicant to establish that sufficient reason exists for the Commission to exercise the discretion to allow the claims to be brought out of time and an exercise of that discretion is to be an exception rather than the rule: s 213(4); Kinninmont at [26]; Taylor v Tweed Shire Council [2006] NSWIRComm 125 at [21];
where the amendment seeks to introduce claims out of time the Commission must have regard to:

(a) the reason for, and the length of, the delay in making the application: s 213(4)(a); (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected: s 213(4)(b); and (c) the conduct in relation to which the order is sought – this has been interpreted to refer to whether the conduct of the employer was a cause for any delay on the part of the applicant, however it can also refer to the nature of the allegations of victimisation: s 213(4)(c); Kinninmont at [46]; Julie Pritchard v Measurement Resources Pty Limited [2006] NSWIRComm 1151 at [38]; Janssen v South Western Sydney Local Health District [2017] NSWIRComm 1076 at [38] – [39].

In the present matter I must assess each of the proposed claims particularised in Appendix 1, that is, each alleged detriment said to constitute victimisation, against the above listed matters.

Disallowance of Untenable Claims

There are two categories of alleged detriment particularised in Appendix 1 which cannot constitute tenable claims of victimisation.
The first is all the alleged acts of detriment that occurred prior to 3 July 2025.
As noted at [35] above*,* the only basis upon which Dr Sarson asserts he was victimised is because he was/is entitled to a benefit and/or claims a benefit under the Workers Compensation Act 1987, the Workplace Injury Management and Workers Compensation Act 1998, or in relation to other entitlements for a workplace injury, being the matters prescribed in s 210(1)(j) of the IR Act.
Sub-section 210(1)(j) was introduced into the IR Act pursuant to the Industrial Relations and Other Legislation Amendment *(*Workplace Protections) Act 2025 (NSW) and commenced operation on 3 July 2025. In Grant *(*No 2) at [26] I explained that:

“ …if an employee suffered a detriment as a result of action taken by the employer prior to 3 July 2025, the substantial and operative cause of which was because of a new protected matter referred to in s 210(1), regardless of when that new protected matter arose, the employee will not be entitled to relief. However, if the existence of the new protected matter arose prior to 3 July 2025, but the detrimental actions of the employer, that is, the act of victimisation occurred after 3 July 2025, the employee would, prima facie, be entitled to relief.”

Items 1 – 7, part of Item 8, and Item 9 of Appendix 1 (see table at [41]) allege detriment as a result of action taken by the Respondent (and NBMLHD) prior to 3 July 2025, the cause of which, so Dr Sarson contends, was because of a protected matter that only became protected on and after 3 July 2025. Consequently, Items 1 – 7, part of Item 8, and Item 9 have no prospects of success.
Item 3 - the Seeking Information Detriment - is a detriment included in the Initial Application. As it is clear that there is no prosect of this claim succeeding, I propose to dismiss Dr Sarson’s claim for relief pursuant to s 213 of the IR Act in respect of the matters set out in paragraph 3 of the Initial Application.
Item 8 alleges that Dr Sarson suffered a detriment as a result of the “[r]eciprocal disclosure of employment records between NBMLHD and FRNSW” during the period 27 June 2025 – 27 November 2025. Disclosure of records after 3 July 2025, prima facie, may be capable of constituting a claim of victimisation as alleged.
As Items 1 and 2 and 4 – 9 have no prospects of success, I do not grant leave for the Initial Application to be amended to include claims based on these alleged detriments. Item 8 is considered further below, to the extent it makes a claim in respect of conduct on or after 3 July 2025 and before 27 November 2025.
Dr Sarson may, consistent with my remarks in Grant v Commissioner of Police at [79], choose to lead evidence of the matters particularised in Items 1 – 9 in support of his case in respect of other alleged acts of victimisation, however whether such evidence will be admitted will be a matter for consideration at the final hearing.
The second category of alleged detriment particularised in Appendix 1 which cannot constitute tenable claims of victimisation are those detriments which are not the result of direct action by the Respondent, but rather may be the consequence of action taken by the Respondent, for the reason discussed at [38] – [39] above. These are the detriments particularised at Items 15, 19 – 22 and 24. Leave will not given for these matters to be relied upon as acts of victimisation.

The Applicant’s Case

Dr Sarson submitted that the amendments should be allowed because he is a self-represented litigant without formal legal training and “any prior deficiencies in pleading are procedural rather than substantive” and the “amended material clarifies, but does not fundamentally alter, the factual matrix already known to the Respondent”. [13] He submitted that the amendments were necessary to have the substance of his dispute determined on the merits. [14] He submitted that:

“The gravamen of the Applicant’s case has been clear from the outset: it alleges detriment because the Applicant exercised rights under workers compensation legislation, protected by s 210(1)(j)(i).”

As already observed Dr Sarson did not rely on any statement or affidavit in support of his application. My exchanges with Dr Sarson during the hearing of the application suggest that it was not until I explained to Dr Sarson during a directions hearing on 28 January 2026 the need to particularise each detriment alleged to have been imposed by the employer because of a matter referred to in s 210, that is, each act of victimisation, did he appreciate that this was necessary. [15] There was no evidence to this effect or any evidence as to Dr Sarson’s attempts to obtain advice from a lawyer or a union and consequently the Respondent was denied an opportunity of cross examining Dr Sarson as to his apparent understanding as to what was required to properly bring each of his claims of victimisation or his ability and/or efforts to obtain professional assistance in bringing his claim.
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 [16] at [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.”

When Saraceno was delivered the presumption that an employee who suffers a detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in section 210 alleged by the applicant to be the cause of the detrimental action was found in s 210(2). Following the commencement of the Industrial Relations and Other Legislation Amendment *(*Workplace Protections) Act 2025 (NSW) on 3 July 2025, the presumption is now found in s 213(5), however the amendment does not alter what I said in Sara**ceno at [51].
Commissioner Constant also explained what an applicant needs to do when bringing a victimisation claim in Kinninmont at [78] (with emphasis added):

“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.”

The amendments sought by Dr Sarson are not, “procedural rather than substantive”. Each alleged detrimental act constitutes a separate allegation that the Respondent victimised Dr Sarson, in contravention of s 210. While it is the case that the Respondent has understood since the proceeding commenced that Dr Sarson asserts he was victimised because Dr Sarson exercised rights under the workers compensation legislation, it has not understood each of the actions of FRNSW Dr Sarson asserts constituted victimisation, beyond those identified in the Initial Application.
It may be the case that at the time of filing the Initial Application and the First Application for Leave, Dr Sarson was not aware of the need to identify each alleged act of victimisation, however as already observed, an unrepresented party is as much subject to the rules as any other litigant. If a lack of understanding of what was required is the reason why Dr Sarson did not include the additional alleged detrimental acts in the Initial Application or the First Application for Leave, he needed to give evidence to this effect. He should have been aware of the need to do this given that the lack of evidence explaining the reason for delay in bringing claims was discussed and criticised in Grant v Commissioner of Police at [98], which decision was expressly referred to in the Application for Leave to Amend at [3], [5] and [10].
It is the case that the Commission is not bound to act in a formal manner, is not bound by the rules of evidence, may inform itself on any matter in any way it considers to be just and is to act according to equity, good conscience and the substantial merits of the case without regard to the technicalities of legal forms. However, I do not consider that allowing Dr Sarson to give evidence from the bar table, in circumstances where he ought to have realised, given the cases he referred to in his Application for Leave to Amend, of the need to explain the reason for his delay, would be just. To allow him to do that would be to give Dr Sarson, as a litigant in person, more favourable treatment than would be afforded a represented litigant and would be unfair to the represented Respondent. [17]
In arriving at the conclusion that Dr Sarson has not provided any reason for the delay in bringing the further victimisation claims I have had regard to the paragraph in the Initial Application explaining the reasons for the late application which I set out in full at [25], although strictly this paragraph is not evidence.
The difficulty with this paragraph is that it raises more questions than answers. It suggests that the conduct of the Respondent was such that Dr Sarson was unaware of the (alleged) victimisation “until the substance of [Ms Barlow’s] correspondence was later revealed.” It may be inferred that Dr Sarson is referring to the 12 June Letter to NBMLHD and that until he became aware of that letter it had not occurred to him that he had been victimised by reason of making a workers’ compensation claim. Two problems emerge from this contention.

The Respondent’s Case

In summary, the Respondent argued that Dr Sarson should not be granted leave to amend his application because:
all of the proposed amendments are out of time (the Respondent initially accepted that Item 23 of Appendix 1 was within time, but later withdrew that concession, as discussed below);
there is no proper explanation as to why the amendments sought did not form part of the Initial Application and/or were not brought sooner;
the additional allegations of victimisation have limited prospects of success; and
leave would result in prejudice to the Respondent, as the “Respondent is entitled to arrange its affairs on the basis that claims cannot be made once time has elapsed” [18] and due to impairment in the recollections of witness arising from the lapse of time; and
the additional particulars are “embarrassing and vague”. [19]
The argument that the additional allegations of victimisation have limited prospects of success was really limited to those allegations that I have already dealt with under the heading “Disallowance of Untenable Claims”. I did not understand that the Respondent seriously contended that the other allegations had such limited prospects of success that they would, had they been made on time, be liable to be struck out.

Item 8 – Reciprocal disclosure of employment records between NBMLHD and FRNSW

As recorded at [55] above, disclosure of records by FRNSW to NBMLHD after 3 July 2025, prima facie, may be capable of constituting a claim of victimisation as alleged. However, I decline to grant leave to allow a claim to be brought for this alleged act or acts of victimisation for the following reasons:
Dr Sarson has not explained why the disclosure of employment records prior to 30 October 2025 was not included as an act or acts of victimisation in the Initial Application filed on 30 October 2025 or why disclosure of employment records prior to 12 January 2026 were not included as an act or acts of victimisation in the First Leave Application filed on 12 January 2026, in circumstances where Dr Sarson was aware of the disclosure by early September 2025 as he had lodged with FRNSW a ““Formal Notice of Concerns Regarding Improper Collection and Disclosure of Personal Information” on 1 and 2 September 2025;
Dr Sarson has not sufficiently particularised the claim represented by Item 8, including specifying the dates upon which the alleged disclosure or disclosures occurred, how the disclosure occurred and what comprised the “employment records” disclosed; or otherwise explained in evidence any difficulty he has in providing those particulars; and
the delay in identifying the alleged contravening act or acts is significant in the context of a 21-day limitation period – in the order of 195 days (if measured from 3 July 2025 to 4 February 2025,) or 48 days (if measured from the alleged last day of disclosure, namely 27 November 2025 to 4 February 2025).
I considered whether the reference in the Initial Application to Ms Barlow’s request for information from NBMLHD regarding Dr Sarson’s employment with NBMLHD, namely the 12 June Letter, as an act of victimisation, could be regarded as sufficient identification of the victimisation alleged in Item 8 to permit the amendment on the basis that it was no more than a clearer articulation of the claim, but I do not consider that to be the case. The factual matrix comprising the claim identified in Item 8 (noting that the factual matrix encompassed by Item 8 is far from properly particularised) clearly goes beyond the 12 June Letter.
Dr Sarson tendered in evidence, over objection, some documents, including final notices and debt recovery notices, indicating he is experiencing some financial hardship. I understand that he hopes to obtain relief from his financial difficulties via this proceeding. Dr Sarson did not explain however, how his financial difficulties were the result of the disclosure of his employment records (or other contravening conduct of the Respondent, noting that, at the time of the hearing, he was suspended on full pay) or moreover, how the loss of the ability to seek redress specifically in respect of FRNSW’s disclosure of employment records to NBMLHD would cause him particular hardship. That said, the Respondent also did not lead any evidence as to the hardship or prejudice it would suffer if the claim were to proceed, instead relying on generally accepted notions that an employer is entitled to consider itself free from suit once legislated time limits have passed [20] and an extended lapse of time can impair the recollections of witnesses and the compromise the overall integrity of the evidence.

Item 10 – FRNSW direction prohibiting all secondary employment and affirming suspension

As recorded at [14], by the 23 July Letter Dr Sarson was directed not to engage in secondary employment. The delay in identifying this as a discrete act of victimisation is 175 days. I decline to grant leave to allow a claim to be brought for this alleged act of victimisation for the following reasons:
the absence of any explanation for the delay;
the length of the delay;
the 23 July Letter clearly imposed detriments on Dr Sarson such that there was no excuse for not including them in the Initial Application; and
on balance I am not persuaded that any hardship Dr Sarson will experience by reason of not being able to bring a claim in respect of Item 10 of Appendix 1 overcomes the lengthy and unexplained delay in bringing the claim.
As noted at [42] above, at the hearing Dr Sarson submitted that the 23 July Letter included an additional detriment, namely the decision by FRNSW to maintain his suspension from duty, on base pay, following review pursuant to a requirement under FRNSW’s Procedural Guidelines for the Management of Conduct – Part 1 and Premier’s Memorandum M1994-35, to review his suspension every 30 days. Dr Sarson submitted that each decision to maintain his suspension arising from the periodic reviews constituted a separate, actionable act of victimisation. I agree. Prima facie, a decision made every 30 days to maintain Dr Sarson’s suspension is capable of constituting a separate act of victimisation.
The Respondent argued that the initial suspension on 12 June 2025 was in fact a permanent decision and there was no further, separate, detrimental acts. The Respondent referred to the 12 June Letter which stated:

“… I have decided to suspend you from duty, with pay, pursuant to Section 37 of the Regulation, until the finalisation of the investigation and associated administrative functions, through to the conclusion of this matter.

However, counsel for the Respondent accepted that this statement and the requirement to reconsider the suspension every 30 days was difficult to reconcile. [21] If there was and is a requirement to conduct a review every 30 days, I consider that a decision thereafter to maintain the suspension is capable of being an act of victimisation. However, I do not propose to grant leave to allow the decision made on 23 July to be included in Dr Sarson’s claim, for the same reasons why I do not propose to grant leave to allow a claim to be brought in respect of the direction that Dr Sarson not engage in secondary employment.
Again, while Dr Sarson will be prohibited from bringing a claim pursuant to s 213(1) arising from the direction prohibiting secondary employment and the confirmation of his suspension on 23 July 2025, he is not prohibited from seeking to adduce evidence of these matters in support his other actionable claims of victimisation.

Item 11 – Payroll classified absences as unauthorised leave

Dr Sarson tendered in evidence a letter dated 25 July 2025 from Natalie Deitz, Manager Payroll which read, in part, as follows:

“Dear Andrew,

Please be advised that for the pay period ending 24/07/2025, your payslip shows an overpayment amounting to $8395.46.

The reason for this overpayment was due to payment of unauthorised leave 16/06/2025, 18/06/2025 to 05/0712025 and relieving allowances 19/06/2025 to 05/07/2025. You were not entitled to this amount due to being absent on unauthorised leave 16/06/2025 and 18/06/2025 to 05/07/2025.

It is proposed to recover this amount under the provisions of clause 17.8.1 of the Crown Employees (Fire and Rescue NSW Permanent Firefighting Staff) Award 2023, on a fortnight basis, equivalent to 10% of your gross fortnightly pay until the full amount is recovered. Deductions will commence from the pay period ending 21/08/2025.”

The 12 December Letter reveals that Dr Sarson made a complaint to Professional Standards about “unjustified deductions from [his] pay” on or about 12 September 2025, that he provided a medical certificate covering the period of 28 May 205 to 29 June 2025 and as a result absences during this period were reclassified as sick leave and he was “reimbursed accordingly”. I understand - based on information given by Dr Sarson from the bar table - that Dr Sarson maintains that he has not been fully reimbursed for the deductions made from his pay, which he says were made as an act of victimisation because he had made a workers’ compensation claim.
The re-classification of Dr Sarson’s absences as unauthorised leave on 25 July 2025 occurred 194 days before Dr Sarson particularised this as an act of victimisation in the Application for Leave to Amend. The claim is thus 173 days out of time. There is no explanation for this lengthy delay and Dr Sarson has otherwise not established that sufficient reason exists for the Commission to exercise the discretion to allow a claim in respect of this alleged act of victimisation to be brought out of time. However, for reasons explained below, I do propose to allow Dr Sarson to bring a claim of victimisation in respect of two payroll deductions made to recover alleged overpayments.

Item 12 – Repeated follow-ups seeking correction of payroll error; no response

I decline to grant leave for Dr Sarson to amend his application to bring a claim of victimisation arising from a failure by FRNSW to respond, during the period 1 – 21 August 2025, to Dr Sarson’s ”follow-ups seeking correction of payroll error” on the basis that the claim is not properly particularised and is out of time, with no explanation for the delay.

Item 13 – FRNSW letter asserting investigation for timesheet fraud

This proposed claim is also inadequately particularised. It seems that Dr Sarson may have received a letter on or about 22 September 2025 which asserted he was being investigated for “timesheet fraud”. It is not clear whether this is a different investigation to the investigation of which Dr Sarson was notified in the 8 July Letter. I do not believe it is. In any event, to the extent this constituted a separate detrimental act, the deadline for bring a victimisation claimed based on it was 13 October 2025, that is, before the Initial Application was filed.
I decline to grant leave for Dr Sarson to amend his application to bring a claim of victimisation based on a letter from FRNSW dated or received on 22 September 2025 asserting that he was being investigated for timesheet fraud on the basis on the basis that the claim is not properly particularised and is out of time, with no explanation for the delay.

Items 14, 15 and 17 – Payroll deduction applied: ARR Overpayment recovery and continuing fortnightly payroll deductions

Dr Sarson tendered in evidence two pay slips showing deductions made from his pay identified as “Overpayment Recovery”. He submitted that these deductions – made due to the reclassification of absences as unauthorised leave as discussed at [84] – were made “within time.” The first deduction was taken from his pay on 16 October 2026 and the second from his pay on 30 October 2026. It is unclear whether there were further deductions made thereafter. It may be inferred from the 12 December Letter that no deductions took place after 12 December 2025.
In the Initial Application Dr Sarson sought the following relief:

“2. Pursuant to 213 2(c) Order for Fire & Rescue NSW to repay – payroll deductions equally to $8,395.46.

…

Order for Fire & Rescue NSW to amend leave records to recognise period of approved workers compensation leave.”

While it is the case that the deduction of alleged overpayment of wages was not identified as a particular of victimisation in the Initial Application, I am prepared to accept, based on the relief claimed in the Initial Application, that Dr Sarson had made a claim, within time, in respect of deductions from his pay made on and from 16 October 2025. I also consider that each deduction can constitute a separate act of victimisation as it is an independent action taken by the Respondent each time it occurs. As Dr Sarson is unrepresented, it is appropriate to afford him some leniency, by allowing him to better particularise a claim that was made in the Initial Application. I propose to grant leave to allow Dr Sarson to do that.
In deciding to allow Dr Sarson this indulgence I have considered the impact this may have on the Respondent, who, while on notice of the claim by reason of the Initial Application, can rightly complain that he did not fully understand until now what was put against him. However, it seems to me that the claim is limited to a discrete period of time, and concerns actions that are the subject of documentation, such that the Respondent should be able to readily respond to the claims.

Item 18 – FRNSW decision to maintain prohibition on secondary employment

As set out at [20] above, Deputy Commissioner Morris informed Dr Sarson, in the 12 December Letter, that he had decided that the prohibition on Dr Sarson engaging in secondary employment would not be lifted. Dr Sarson asserted this constituted an act of victimisation.
The 12 December Letter post-dated the commencement of this proceeding. I would have had no hesitation in granting Dr Sarson leave to include the decision to maintain the prohibition on his secondary employment as a further act of victimisation had he sought leave within 21-days of 12 December 2025, but he did not do so.
The deadline for bringing a claim of victimisation based on this action expired on 2 January 2026. Despite this, the allegation was not included in the First Leave Application filed on 12 January 2026 and was only particularised in the Application for Leave to Amend filed on 4 February 2026, 33 days late.
In circumstances where no explanation has been provided for this lengthy delay and I am unpersuaded that any hardship Dr Sarson will experience by reason of not being able to bring a claim in respect of Item 18 of Appendix 1 outweighs the lack of explanation, I decline to grant leave to Dr Sarson to amend his application to bring a claim of victimisation arising from the decision, made on or about 12 December 2025, not to lift the prohibition on Dr Sarson engaging in secondary employment. Dr Sarson may of course, seek to adduce evidence of the decision in support his other actionable claims of victimisation.

Item 23 – Applicant’s complaint treated as misconduct without investigation

As the Respondent submitted, this allegation could not be comprehended on its face. As Dr Sarson was unrepresented and the allegation appeared to concern an act of FRNSW that had occurred after the commencement of the proceeding and within 21 days of the filing of the Application for Leave to Amend, I asked Dr Sarson during the hearing what Item 23 was referring to.
Dr Sarson referred to the complaint he had made to Professional Standards Branch, on or around about 12 September 2025 regarding the deductions from his pay, as I set out at [16] above. It seems on or about 30 January 2026 Dr Sarson asked for an update in respect of that complaint. This correspondence was not tendered in evidence, although it was in the Court Book. Dr Sarson explained from the bar table:

“The reply that I received in relation to that was that related to the response from the decision maker, where he said they had reversed my leave, the decision to amend leave has been made. “However, if you’re found [guilty] of misconduct, that’s going to be changed again.

…

And the allegations put to me on [the] 12th make that attempt that I made to rectify those dates, they put them as allegations of misconduct that I retrospectively sought to have records changed. ” [22]

I understand that the response Dr Sarson received on 30 January 2026 to his inquiry was to refer him to what Deputy Commissioner Morris had told him in the 12 December Letter. That was:

“I refer to your complaint received by Professional Standards (PSB) on 12 September 2025, in which you provided a copy of a medical certificate covering the period of 28 May to 29 June 2025, and claimed that you had been subjected to an "unjustified deduction of pay arising from a misclassification of my sick leave as 'unauthorised leave'."

I understand that this period has been reclassified as sick leave and that you have been reimbursed accordingly. However, please note that it is alleged in Annexure A that you were absent without leave from FRNSW, on various dates between 28 May and 29 June 2025, which you sought to have changed to sick leave, only after being advised of the commencement of an investigation into your alleged conduct (see Allegation 3(a)).

Should the investigation determine that the leave should be classified as unauthorised, you may be required to repay the amount that has been reimbursed to you.

Additionally, on 20 October 2025, I note that you emailed Mr Michael Baldi, Executive Director, People and Culture Directorate, requesting that your alternative duties shifts for 8, 10, and 16 May 2025, be amended to workers compensation sick leave. Please note that it is alleged in Annexure A that you worked alternative duties on 8, 10 and 16 May 2025, which you sought to have changed to workers compensation sick leave, only after being advised of the commencement of an investigation into your alleged conduct (see Allegation 3(b )). Therefore, this leave will not be reclassified at this time.

Should the investigation determine that your alternative duties were incorrectly classified, FRNSW will update your personnel records accordingly.”

Properly understood, the allegation of victimisation contained in Item 23 is an allegation that FRNSW had victimised him be alleging he had engaged in misconduct by attempting to amend, after the investigation into his conduct had commenced in July 2025, the basis upon which he was absent from work. That allegation was made however in the 12 December Letter and was simply repeated in the correspondence received on 30 January 2026. No additional detriment was imposed on Dr Sarson on 30 January 2026.
As there is no tenable claim in respect of Item 23 as expressed, I do not propose to grant leave to allow Dr Sarson to amend his application to include such a claim. To the extent there is a tenable allegation of victimisation arising from the allegation made against Dr Sarson that he had engaged in misconduct by attempting to amend the basis upon which he was absent from work, such claim is out of time and I decline to grant leave to allow Dr Sarson to amend his application to include this claim for the same reasons that I declined leave in respect of Item 18. As with Item 18, Dr Sarson may seek to adduce evidence of these allegations of victimisations in support his other actionable claims of victimisation.

Claims concerning ongoing maintenance of suspension of employment

As explained at [80], pr**ima facie, a decision made every 30 days to maintain Dr Sarson’s suspension is capable of constituting an act of victimisation. Dr Sarson seeks to include in his claim each of those separate decisions.
While I have rejected his claim to include those decisions which occurred more than 21 days before he filed his Application for Leave to Amend for the reasons discussed above, consistent with the approach taken by Sams DP in Swaran Lata Kumar v Macquarie Partnership Lawyers [2005] NSWIRComm 202, (where the Applicant experienced ongoing victimisation after the proceeding had commenced), and making allowance for the fact that Dr Sarson is unrepresented, I consider that Dr Sarson should be permitted to make a claim under s 213 in respect of any decisions to maintain his suspension that occurred on or after 9 March 2026, being the date of the hearing of his application to amend, at which time he made it clear that he was seeking to bring a claim in respect of those decisions. [23]
There is little to no prejudice to the Respondent in allowing Dr Sarson to bring these claims, given they relate to more recent actions and in relation to which Dr Sarson could be entitled to bring separate proceedings in any event.

Claims for Orders pursuant to s 64 of the PID Act

Dr Sarson’s claim for orders to be made pursuant to s 64 of the PID Act are misconceived. Section 64 provides:

64 Identifying information not to be disclosed

(1) Information tending to identify a person as the maker of a voluntary public interest disclosure (identifying information) is not to be disclosed by a public official or an agency.

(2) However, subsection (1) does not prevent the disclosure of the identifying information if—

(a) the person consents in writing to the disclosure of the identifying information, or

(b) it is generally known the person is the maker of the voluntary public interest disclosure as a result of the person’s voluntary self-identification as the maker, or

(c) after consulting the person, the public official or agency reasonably considers it necessary to disclose the identifying information to protect a person from detriment, or

(d) it is necessary the identifying information be disclosed to a person whose interests are affected by the disclosure, or

(e) the identifying information has previously been lawfully published, or

(f) the identifying information is disclosed to a medical practitioner or psychologist for the purposes of the practitioner or psychologist providing medical or psychiatric care, treatment or counselling to the individual disclosing the information, or

(g) the identifying information is disclosed for the purposes of proceedings before a court or tribunal, or

(h) the disclosure of the identifying information is necessary to deal with the disclosure effectively, or

(i) it is otherwise in the public interest to disclose the identifying information.

Note.

Section 43 provides for an agency’s public interest disclosure policy to include procedures to ensure the agency’s compliance with this section.

(3) To avoid doubt, a person does not voluntarily self-identify as the maker of a voluntary public interest disclosure merely by making the disclosure in confidence.

(4) A provision of 1 of the following Acts prevails over this section to the extent of an inconsistency—

(a) the Independent Commission Against Corruption Act 1988,

(b) the Ombudsman Act 1974,

(c) the Law Enforcement Conduct Commission Act 2016.

(5) This section applies in addition to, and does not derogate from, a restriction or prohibition on the disclosure of information imposed by—

(a) another Act or law, or

(b) an order of a court or tribunal.

Note.

However, section 83 authorises an agency to provide information relating to a public interest disclosure to another agency if doing so is reasonably necessary for the exercise of either agency’s functions under this Act. Section 83 prevails to the extent of an inconsistency with another Act or law.

(6) In this section—

counselling includes psychological counselling.

medical practitioner has the same meaning as in the Health Practitioner Regulation National Law (NSW).

psychologist has the same meaning as in the Health Practitioner Regulation National Law (NSW).

The 8 July Letter informed Dr Sarson that the complaint it had received which precipitated the investigation and suspension, met “the criteria of a Public Interest Disclosure (PID), as specified under Part 2 of the Public Interest Disclosure Act 2022 (the PID Act).”
Dr Sarson submitted that disclosure of the complaint “is necessary to afford natural justice and to enable the Commission to determine whether the in-time detriments arose from workers compensation issues or constituted reprisal related to the Applicant's medical work.” [24]
Leaving aside that Dr Sarson’s proposed inquiry has the potential to undermine his victimisation claims as brought, s 64 of the PID does not provide the Commission with any power to order the disclosure of a public interest disclosure (PID) or identifying information of the maker of a PID. Section 64 simply sets out in sub-s 64(2) circumstances whereby identifying information will not be prevented from being disclosed by reason of sub-s 64(1). One of those circumstances is if the information is to be disclosed for the purposes of proceedings before a court or tribunal. In other words, sub-s 64(1) does not operate to thwart a court’s or tribunal’s powers to compel production of information for the purposes of proceedings.
It is open to Dr Sarson, once the scope of his application is settled, to seek leave pursuant to Uniform Civil Procedure Rules 2005, r 7.3, to issue a Summons for Production pursuant to s 164 of the IR Act and r 5.6 of the Industrial Relations Commission Rules 2022, to obtain production of documents which are relevant to the issues in dispute in the proceeding. If and when a proper request by way of summons is made for relevant documents which may be protected from disclosure by sub-s 64(1) of the PID Act, the Commission may, given the terms of sub-s 64(2)(g), compel the production of the documents and if necessary, overrule any objection taken to their production based on sub-s 64(1).

The Prayers for Relief

As explained at [31] above, in lieu of the relief sought in the Initial Application, Dr Sarson now seeks the relief as was set out in Schedule A to his First Leave Application filed on 12 January 2026.
That relief included five declarations, however Dr Sarson abandoned those claims at the hearing of the Application for Leave to Amend. [25]
While there may well be argument about whether the Commission has power to make all of the remaining orders sought and whether there are otherwise sufficient prospects of success in respect of some of the orders sought, (e.g. the claim for repayment of the specific sum of $8,395.46 said to be deducted from Dr Sarson’s pay on account of the alleged overpayment due to the reclassification of leave), I consider that Dr Sarson should be permitted to amend his application to include the relief set out in the First Application for Leave, save for the prayers for declarations.
I also consider that the reference to the Commission’s “inherent” powers in the first paragraph of Schedule A should be removed as the Commission has no inherent power.

Orders

I make the following orders:
The Applicant’s claim for relief pursuant to s 213 of the Industrial Relations Act 1996 (NSW) in respect of the matters set out in paragraph 3 of the Application for Relief from Victimisation filed on 30 October 2026 is dismissed.
The Applicant has leave to amend his Application for Relief for Victimisation to include claims of victimisation in relation to:

(a) the deduction of alleged overpayments from his pay on and after 16 October 2025; and (b) decisions made on and after 9 March 2026 to continue his suspension from duty.

The Applicant has leave to amend his Application for Relief from Victimisation to delete the paragraphs under the heading “Remedy” and in lieu thereof insert Schedule A to the Application for Leave filed on 12 January 2026, with the exception of:

(i) the word “inherent” in the first paragraph; (ii) paragraphs 1 – 5 under the heading “Declaratory Relief”.

The Applications for Leave to Amend filed on 12 January 2026 and 4 February 2026 are otherwise dismissed.
The Applicant is directed to file and serve by 4pm on 27 May 2026, an Amended Application for Relief from Victimisation to reflect Orders (1), (2) and (3)
The matter is listed for directions on 2 June 2026 at 2pm.

Janet McDonald

Commissioner

Addendum (55.6 KB, rtf)

**********

Endnotes

This information is set out in a letter from Deputy Commissioner Morris to Dr Sarson dated 12 December 2025, Ex A6.

Ibid.

This information is set out in or inferred from, a letter from Ms Barlow to Dr Sarson dated 14 October 2025, Annexure CL-4 to Ex R1.

Richard Kinninmont v Ku-ring-gai Council [2019] NSWIRComm 1029 at [10]; Grant v Commissioner of Police [2025] NSWIRComm 1000; 337 IR 419 at [86].

Dr Sarson had also sought various declarations, however abandoned those claims at the hearing of the Application for Leave to Amend: Tcpt, 9 March 2026, p 4(9)-(10).

Tcpt, 9 March 2026, p 5(34)-(45).

By reference to see Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059 at [6]; Janssen v South Western Sydney Local Health District [2017] NSWIRComm 1076 at [17] and Prehn v Department of Environment and Conservation [2006] NSWIRComm 222.

I understand this acronym refers to “return to work”.

Appendix 1 records the date as 18 October 2024, however that is clearly a typographical error.

Ex A 1.

Tcpt, 9 March 2026, p 11 (47)-(48).

Application for Leave to Amend at [A].

Application for Leave to Amend at [8].

Tcpt, 9 March 2026, p 11 (34)-(36).

Tcpt, 9 March 2026, p 47(19)-(28).

Upheld on appeal 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 and on judicial review: PSA v Commissioner of Police [2025] NSWSC 624

Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) at 25, quoted with approval in Nobarani v Mariconte [2018] HCA 36; 265 CLR 236 at [47] and Chalik v Chalik [2025] NSWCA 136 at [68].

Respondent’s Outline of Submissions at [34].

Repondent’s Outline of Submissions at [19] and [21].

Kinninmont at [45].

Tcpt 9 March 2026, p 43(3).

Tcpt, 9 March 2026, pp 50(49)-51(3), (10)-(12).

Tcpt, 9 March 2026, p 9(37)-(39).

Application for Leave to Amend at [19].

Tcpt, 9 March 2026, p 4(9)-(10).

Amendments

19 June 2026

Addendum added.

Sarson v Fire and Rescue NSW (No 2)

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