Hi John,
Touching base following conciliation yesterday and share what unfolded.
Andrew White, IR Manager and Lawyer represented HSNSW, and was joined by an IR Officer. They didn’t put on any response at any point, and made no specific reference to the actual content of my application. The only thing said was that they’re “not unsympathetic.”
During the formal opening session, Andrew made a number of points - most of which was  wrapped in legalese, but from what I could pick up:
They made a quick mention that I wasn’t dismissed under the definition in the Act
That I’m trying to use Section 106 for an unfair dismissal claim under 109A
That I’m seeking emotional damages, which 106 doesn’t enable
That this might be better suited under workers comp or anti-discrimination
That enabling my claim would set a precedence for others to do the same
In the informal conciliation, they did put forward an offer (no actual number) but Justice Paingakulam said it was “less than what would be due in an unfair dismissal claim.” I took that to mean somewhere in the $30–50k range, which is obviously a long way from where I’m sitting.
Justice Paingakulam was kind and fair – as you mentioned she would be. She said to me, “I’m sorry this happened to you. It’s clear you’re a high performer, and it’s clear that ‘Mark’ had a campaign against you, although I don’t know why” (me neither). She also made a point, in front of HSNSW, to say what happened to me was “sickening.” I appreciated that more than I expected to.
She did ask if I had legal help with my application - I told her I’d written it myself, and had it reviewed legally but didn’t provide further information eg; by whom. She didn’t press further, but her questions gave me the impression she had some reservations about whether 106 was the right mechanism. (Just my sense).
Later she said that being “removed from my role” would be considered dismissal, and mentioned that going to hearing would mean I have to relive it all again, to which I told her I already do.
Upon closing in Court Session, HSNSW advised they’ll be filing a motion to strike out my claim and try to move it under unfair dismissal. Their Motion to Strike is due by 4pm on 21 May at 4pm, with the hearing listed for 2pm on 26 May.
As I was leaving, their solicitor handed me his contact details and told me to reach out ahead of the next motion if I wanted to. I won’t be doing that and don’t trust the intention behind it.
My thoughts are:
I genuinely tested myself about whether unfair dismissal was the right path, but I kept coming back to the fact that in the IR Act, there’s no definition like there is in the Fair Work Act for constructive dismissal.
The reference to constructive dismissal is 1 point in an application with 22 pages full of contractual breaches across two years, it wasn’t the centrepiece as you know. And of course an action you suggested they could likely take.
As part of my research and due diligence, I looked at a number of other public sector 106 cases, and most seem to involve some form of ending of employment contract. Additionally, this would circumvent their suggestion of setting any precedence – it’s already been set a number of times.
All in all, in my case, I wasn’t dismissed, I was directed to return to my role in April 2024. So the role was still mine, hence no dismissal.
The idea that this should sit under workers comp or anti-discrimination doesn’t sit right. I explored both, amongst a number of other avenues. The events I went through are so multi-faceted and systemic that the only way it could be looked at wholistically was under 106.
And I believe I deserve to be made whole. That I should be where I would have been, had they not done what they did.
If I’m honest about yesterday, I’m great on paper in writing (when I have time to process properly), but I was a mess in person. In the presence of HSNSW, their coldness, I was very shaky and it was re-triggering. I didn’t manage to speak the way I wanted to.
Justice Paingakulam suggested both during conciliation and closing of court, that I seek legal representation going forward. And I would agree with that - I do need support.
I wanted to ask (and please know there’s zero expectation or pressure), if you’re still practising in this way, if you had capacity, would you consider representing me here? And if so, would you be able to let me know what the costs would be? I completely respect the depth of your experience, and I would absolutely be willing to proceed on that basis and understanding.
And if not, is there anyone you could suggest that I would be able to have a similar level of trust with?