Woloschyn v Industrial Relations Secretary

(a) sharing of inappropriate images in a Facebook group;

(b) showing a pornographic video at the Carrington Fire Station;

(c) submitting inaccurate time sheets in relation to call-outs in his capacity as a retained fire fighter;

(d) pressuring a subordinate with respect to an insurance claim; and

(e) removing employees from the Facebook group he had shared inappropriate images to during the disciplinary investigation.

1. Procedural history
2. On 8 December 2025, the Form 7A unfair dismissal application was filed and the matter was listed for conciliation and directions on 9 December 2025, which did not result in the matter being resolved.
3. The application came back on before the Commission on 10 December 2025 during which the respondent indicated that it would not act on the requirement for the applicant to elect whether to resign or be terminated by 8 December 2025, pending the outcome of this s89(7) application. Following this, orders were made for the filing and serving of evidence and written outlines of submissions and the s 89(7) application was listed for hearing on 23 December 2025.
4. The parties filed and served materials and at the hearing, the applicant relied upon evidence from:

(1) Mr Giacomo Arnott, industrial officer of the Fire Brigade Employees Union ((the "FBEU");

(2) The applicant; and

(3) A medical certificate from a Dr Ardaman Hamidi.

1. The applicant relied upon evidence from Mr Adrian Rook, solicitor for the respondent.
2. Approach
3. The approach to applications under s 89(7) of the Act is uncontroversial are conveniently set out in the decision Commissioner Howell in Health Services Union o/b Mr Tony Thomas v Health Secretary in respect of HealthShare NSW [2025] NSWIRComm 1065 at [41] as follows:

(1) Is there a sufficient likelihood of success by the applicant to justify the preservation of the status quo pending the final hearing, the status quo in this case being Mr Thomas' continuing employment as a truck driver in the Parramatta Linen Service. That is, consideration of the applicant's prima facie case.

(2) Whether the inconvenience or injury which Mr Thomas would be likely to suffer if the interlocutory application were refused outweighs or is outweighed by the injury which the Respondent would suffer if the application was granted. That is, the balance of convenience test.

1. In relation to prima facie case, the High Court in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [65] (per Gummow and Hayne JJ) found that the evidence required is that to establish that the applicant's case has a:

"sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial"

1. As in this case, when the relief sought is not effectively a final determination of the application, the Commission is not required to definitively assess the strength of an applicant's case for final relief: Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536.
2. On the issue of balance of convenience, the Commission considers the risks of doing injustice according to whether orders are granted or refused. In this matter, what would be the loss and convenience to the applicant if orders are not made, compared to the loss to the respondent if they are: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1986] HCA 58 at 155; Esposito v Commonwealth [2013] FCA 546 at [43].
3. Additionally, the balance of convenance can be approached in relation to ss 89(7) applications by considering whether the failure to make or not make the orders would cause irreparable damage to either party: ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229 at [35].
4. Prime Facie Case
5. The applicant's primary submission in relation to prime facie was articulated in the following passage from his written submissions:

Captain Woloschyn provided extensive evidence throughout his interview, and his two submissions, to establish for both the investigator and the decisionmaker that the allegations are, for the most part, simply unable to be established based on the evidence available.

1. A detailed response was provided by the applicant in relation to each allegation and particular of the Allegations with reference to the findings in the investigation report and the applicant's two responses which were annexed to the affidavit of Mr Arnott.
2. For its' part the respondent's submissions with respect to prime facie case are set out in the following passages of its' written submissions (footnotes omitted):

The Commission ought to regard this as a case which will involve a significant burden on the Applicant to demonstrate that his dismissal was harsh, unjust or unreasonable. The substantiated misconduct spans a range of objectively serious conduct, including highly inappropriate conduct of a sexual nature that is admitted by the Applicant, being the playing of a pornographic video while at the fire station and the distribution of highly sexualised material to colleagues. The facebook posts included:

(a) a video of a woman engaging in oral sex;

(b) women clad only in bikinis;

(c) an infected penis; and

(d) a video explaining how to use a dildo.

Sexualised conduct of the nature the Applicant admits he has engaged poses risk to the health and safety of the Respondent's employees. The Respondent has a positive duty to eliminate unwelcome conduct of a sexual nature both the Work Health and Safety Act 2011 (NSW) and the Sex Discrimination Act 1984 (Cth). The operation of the Anti-Discrimination Act 1977 (NSW) makes it unlawful for an employee to engage in unwelcome conduct of a sexual nature in relation to a colleague.

1. I accept that the applicant has not only made out that there is an arguable case but has also pointed out that there is evidence that exists that will support this case. I note the material contained in the applicants 2 responses to the investigator will provide a contention that the alleged misconduct has not been made out.
2. Whilst I am now not convinced that it is necessarily strong case, I am satisfied that that it sufficiently arguable such that the Commission needs to consider the balance of convenience.
3. Balance of convenance
4. Turning to the balance of convenience, the applicant proffers the 5 bases upon which the balance of convenance falls in favour of making the orders, which I will deal with individually late in this decision.
5. On balance of convenience, the respondent contends that the difficulty of the applicant's substantive case given the serious of the allegations underpinning the decision to terminate render means that that the balance of convenience is unaffected by any positive finding regarding arguable case.
6. Reliance is placed on the fact that any monies paid to the applicant would not be able to be recouped by the respondent should the applicant be unsuccessful should the applicant not ultimately receive an order for back pay in the substantive application.
7. I now turn to the 5-basis relied upon by the applicant and the respondent's position with respect to each one and I agree with the respondent on this point.
8. Family & Financial position
9. In his affidavit the applicant provides the following evidence as to his financial concerns regarding potential termination of his employment:

3. I have a young family, with 2 children aged 18 and 15, both still living at home as dependents, and my wife.

4. My wife has stable employment; however her income is insufficient to cover household expenses alone - if I were to be terminated pending the outcome of this matter, regular expenses such as the mortgage and bills would become difficult to cover and would place my family into significant financial stress very quickly

5 My wife earns $1,760 per week pre-tax. The household mortgage is $990 per week. To have $770 per week to pay for bills (land rates, electricity, water, credit card, insurances and anything else that were to come up), groceries, clothing, appliances home improvements, and any other expenses that pop up from time to time would be impossible, especially with two dependents.

6. I have two jobs with the Respondent, essentially doubling the significance of the impact on my household s income should I be terminated prior to the matter being determined.

7. While I understand that if I am successful in the substantive matter, backpay may be awarded, even if this happened, I would find it difficult to meet my household expenses in the meantime. I am advised by my Union representative that the substantive matter could take months and even go close to a year prior to a decision depending on the volume of evidence and complexity of the matter. This will not help me pay my mortgage or other household expenses in the meantime.

1. The applicant submits that this evidence demonstrates that this poses a real strain to the family household finances.
2. The respondent in its' submission refers to the following passage from the decision of Taylor J in Boncales v Secretary, Department of Education (NSW) (No 2) [2025] NSWIRComm 11 at [24]:

That evidence is not, in and of itself, sufficient to demonstrate significant irreparable harm that might tip the balance of convenience in favour of making an order. That is because the evidence does not allow me to properly understand the applicant's financial affairs. I do not have material before me to understand what other sources of income the applicant may be able to access, such as, Centrelink payments, disability support pension payments in respect of the child, if any, capacity to obtain on an emergency basis or otherwise funding from the National Disability Insurance Scheme, access to obtain funds from the in laws, which might include evidence as to their capacity to raise funds against the equity of the home, whether there are other bank accounts and the like, such that I can be satisfied that there is an incapacity to pay for any essential medical treatment.

1. In reliance on this passage from Boncales, the respondent submits that the applicant in this matter has not put before the Commission sufficient evidence for the Commission to understand the applicant's full financial picture, such as savings, investments and other sources of income that the applicant may.
2. Additionally, the respondent in its' written submissions, points to the payment of $79,363.88 gross that the applicant would receive on termination and makes the observation that these amounts would be repaid by the respondent if the applicant is successful on an order for backpay.
3. The applicant also submits that there would be considerable inconvenience regarding taxation of the termination amounts and the readjustment to leave should he be terminated and then subsequently successful in his application.
4. Health and Well Being
5. On the issue of health and wellbeing, the applicant gives evidence as to his history of diagnosed case of PTSD and the management of this condition, including how his work life is integral to this. He gives then gives the following evidence regarding the effect that the making of the Order would be:

While an interim order would not restore those relationships while I remain suspended, it is beneficial to my wellbeing to know I am still an employee and still a part of the team, and being terminated at this point right before Christmas would likely cause a very dramatic change to my wellbeing, as the finality of that employment separation would make it difficult to have those supports maintained

1. The applicant also relies upon a medical certificate of a Doctor S Ardavan Hamidi dated 17 December 2025 dated 17 December 2025. The Doctor in this certificate states:

This is to certify Mr Michael Woloschyn, has been treated for PTSD and Anxiety for the past couple of years which is taking the medication and he feel stable at the moment.

Should he get out of his job (Terminated and re employed) it will dramatically affect his Mental health)

1. In reliance of this evidence, the applicant submits that there is a live potential for irreparable harm to be occasioned to the applicant's health and well being as a result of his employment terminated which a subsequent finding in the applicant's favour would not be able to rectify.
2. On this ground, the respondent notes that the applicant has been suspended from duties since 31 October 2024 and that there is no evidence that a termination now rather than later would exacerbate the applicant's condition.
3. Filling of his position
4. On the ground of filling of position, the applicant asserts that should the Order not be made, then the respondent will move to fill his position with the implication that this would provide an impediment to any subsequent order for reinstatement.
5. In response to this submission, the respondent submits that there is no evidence before the Commission that any subsequent order of the Commission would not be complied with.
6. Alternative employment
7. On alternative employment, the applicant alleges that his inability to find alternative employment somehow impacts on his reintegration into the workplace should there be a subsequent order for reinstatement and the Order not be made.
8. The respondent submits, that any subsequent reinstatement order would be complied with and remedy any inconvenience to the applicant should the Order not be made.
9. Reputational standing
10. The applicant submits that the termination of his employment would cause irreparable reputational damage, not only within the respondent's organisation but also in the Community. In further oral submissions, the applicant submitted that it is not guaranteed that those persons who become aware of the dismissal of the applicant would subsequently become aware of any saucerful outcome of the substantive application in the applicant's favour.
11. In response, the respondent accepts that there will be some reputational damage and submits that the applicant has not adduced any evidence as to how these circumstances are exceptional.
12. Balance of convenience finding
13. There is force to respondent's submission regarding the effect of having to make unrecoverable payments to the applicant that should the Order be made and the applicant be unsuccessful in the substantive application. This has even more force when the applicant will to be performing work for the respondent as he would continue on suspension with pay.
14. I also accept that there will be both financial and psychological detriment occasioned to the applicant and his family, which would not be able fully to remedied if the applicant was to be successful in his substantive application.
15. The evidence of the level of financial detriment occasioned to the applicant is not able to be calculated with any great precision, however I do note the evidence does disclose that the only other source of income to the applicant's family is the applicant's partners wife's' salary of $1,760.00 per week without deduction of tax and there is mortgage repayments of $990.00 per week as well approximately $770.00 per week in other expenses.
16. There is of course the payment that would be made to the applicant of termination monies in the amount of $79,363.88, less tax. It is highly arguable that this amount could be utilised to deal with the expenses incurred by the applicant and his family until the conclusion of the hearing of the substantive matter. This would provide a basis for arguing that the detriment to the applicant is not irreparable given any ultimate order for back pay would make up for this detriment.
17. The difficulty with the above proposition is that the vast majority of the termination payments are for accrued leave and arguably would need to be repaid on an order for reinstatement with back and continuity of employment. Although this outcome is slightly speculative, it is a possibility.
18. As to the issue of the impact on the applicant's health, to the extent that there is anything to be gleaned from the certificate of Dr Hamidi, it is that the Doctor has opined that termination followed by reinstatement will have some unspecified effect on the applicant's mental health.
19. As to the other basis alleged by the applicant that lean towards the balance of convenience, none of these are ones which would lend weight to the making of the Order in that these are ones which would be occasioned to most persons facing dismissal.
20. Overall, I accept that the applicant satisfied the Commission that there is a possibility of irreparable damage to the applicant, both financially and to the applicant's health such that the balance of convenience outweighs the possibility of the respondent incurring the payments of salary that it cannot recoup.
21. Disposition and orders
22. Whilst it is the case that the Commission should be reluctant to interfere with the respondent's ability to terminate an employee where there is the ability for an unfair dismissal claim to challenge this per Boncales at [35], however for the above reasons I find that the applicant has satisfied that there is an arguable case and the balance of convenience favours the making of an Order pursuant to s 89(7) of the Act and I make the following order:

1. The Respondent shall not dismiss the applicant in accordance with the threat of dismissal pending either the hearing and final determination of these proceedings, or further order of the Commission, whichever is the sooner.