Multiple proceedings connected to an investigation

The decision of the Industrial Relations Commission of NSW (IRC) in Silsbury v Health Secretary in respect of Western Sydney Local Health District (WSLHD) is an example of how complex and multi-faceted a workplace investigation can become.

Dr Silsbury was the subject of a workplace investigation in relation to preparing and issuing a letter of apology to a patient.

In 2020, Dr Silsbury issued proceedings in the IRC in relation to the potential disciplinary consequences of the investigation (First Proceeding).

On 15 October 2020, the IRC made an order preventing WSLHD from dismissing Dr Silsbury pending the resolution of that proceeding.

On 19 November 2020. Dr Silsbury issued an application for Relief from Victimisation (Second Proceeding). In the Second Proceeding, Dr Silsbury alleged that, among other things, WSLHD had taken steps in the workplace investigation as a result of the First Proceeding.

WSLHD applied to have the Second Proceeding summarily dismissed. One of the arguments made in support of that application was that the First and Second Proceedings were, in effect, duplicate proceedings and allowing both to proceed would result in “further unnecessary costs being incurred by both parties.”

The IRC rejected the summary dismissal application. It emphasised the high threshold for summary dismissal and found that threshold had not been reached in this case.
The case highlights the complex litigation environment that may arise from a workplace investigation. The important takeaway for employers is to act fairly through any disciplinary or investigative process and to accept that the process may not always run smoothly. In our view, the worst thing an employer can do is to become frustrated by the litigation and then act unfairly.