I have previously reported on cases involving Paramedic and former NSW Ambulance employee, John Larter – see

His latest case was Larter v Health Secretary in respect of NSW Ambulance [2025] NSWIRComm 7 (9 April 2025).  This was an appeal from the decision of Commissioner O’Sullivan dismissing Larter’s application for remedies for unfair dismissal (and discussed in the post John Larter’s unfair dismissal action (July 3, 2024)).

An appeal to the Full Bench of the Industrial Commission is not a rehearing, rather the applicant has to point to a legal error by the original decision maker. In this case the Full Bench (Chin J, Vice President; Paingakulam J, Deputy President and Senior Commissioner Constant) found no significant error.

Larter raised 8 grounds of appeal. They are listed (at [26]) as:

1. The Commissioner erred … by finding that the applicant had not established that the dismissal was unjust.

2. The Commissioner erred … by finding that [the Health Secretary’s] Direction 33 was lawful.

3. The Commissioner erred … by finding that the applicant had not made out that the decision was procedurally unfair.

4. The Commissioner erred … in finding that the applicant had not established that the dismissal was harsh.

5. The Commissioner erred … for finding that there was no basis for the employer to consider the decision maker should have been called when the reasons for the decision to terminate the employee were always and must be in issue …

6. The Commissioner erred by failing to receive and consider the evidence tendered by the applicant, namely Exhibit 3 being a public statement by Premier Perottet accepted (sic) that the state of knowledge of the New South Wales Government was that COVID 19 had no effect on transmission in the correct environment when that evidence was relevant and probative as set out above.

7. The Commissioner erred … by finding that decision was not unfair for the purposes of the IR Act.

8. The Commissioner erred by failing to award any remedy to the applicant and by dismissing the application …

To proceed he needed ‘leave’ ie permission.  In related proceedings involving Caitlin Larter (John Larter’s wife) the Commission said ‘Leave to appeal the decision of a Commission member can only be granted if the Full Bench of the Commission is of the opinion that the matter is of such importance that, in the public interest, leave should be granted’ (Larter v Health Secretary in respect of Murrumbidgee Local Health District [2025] NSWIRComm 6, [5] and adopted in Larter v Health Secretary in respect of NSW Ambulance [2025] NSWIRComm 7 at [8]).

The Commission found that there was no arguable error and leave to appeal was refused on all but two grounds.  In making this decision the Commission did hear Larter’s arguments. As they said (at [29]) ‘The question of leave to appeal is not determined in isolation from the merits of the grounds of appeal agitated by an applicant…’  In order to determine whether to grant leave they not only considered the importance of the legal issue but also the merits or strength of the appellants arguments. 

For brevity’s sake and because the decision, where leave was refused, does not crate a precedent I won’t detail the arguments in those cases where leave was refused.

Ground 1

The full bench said (at [50]):

There was nothing unjust about the respondent’s decision to terminate the employment of an employee who could not perform work – and who the respondent was required to direct not to work − for a period of unknown duration because of the employee’s refusal to meet the preconditions for the performance of his work, namely, the vaccination requirements…

Ground 2

In his second ground of appeal, Larter argued that the Commission had misinterpreted the Health Services Act 1997 (NSW) s 116A. This section says, relevantly:

(1) The Health Secretary may fix the salary, wages and conditions of employment of staff employed under this Part in so far as they are not fixed by or under any other law.

(2) ….

(3) The Health Secretary may enter into an agreement with any association or organisation representing a group or class of members of the NSW Health Service with respect to the conditions of employment (including salaries, wages or remuneration) of that group or class. Any such agreement may (subject to Part 2) extend to conditions in respect of the employment of persons convicted of, or charged with, serious sex or violence offences.

Larter argued (at [55]) that:

… the power in s 116A(1) of the HS Act to fix conditions of employment is subject to the requirement in s 116A(3) such that s 116A(1) does not empower the Secretary to unilaterally alter existing conditions of employment and any change in conditions must be by agreement with an organisation representing the relevant employees.

The Full Bench said (at [55]):

Commissioner O’Sullivan addressed the first aspect of the applicant’s argument in relation to s 116A of the HS Act as follows:

“[99] As to the first basis as to unlawfulness raised by the applicant, the interpretation advanced is contrary to the plain and ordinary meaning of the provision.

[100] Subsections 116A(1) and (3) stipulate a different basis upon which the respondent can make a determination, either by unilateral change of conditions of employment as in s116A(1) determined by Walton J in [Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431] or in s116A(3) by agreement with an association or group of employees.”

Section 116A(1) specifically does allow the health secretary to unilaterally change the conditions of employment of health staff without the need to negotiate as required by s 116A(3).

Larter also argued that the requirement to be vaccinated was not a ‘condition of employment’ and so was outside s 116A(1).  The Full Bench said (at [62]) ‘this Commission has repeatedly accepted that the vaccination requirement (enforced by the termination of those who do not meet its terms) contained within the Determination falls within the scope of s 116A(1).’

The Commission took the view that there was a public interest in having a binding decision on the interpretation of s 116A(1) and s 116A(3).  Accordingly, Larter was granted leave to appeal but the appeal was refused (ie he was allowed to make his argument, but the court ruled against him).

Ground 3

There was no procedural unfairness.

Ground 4

At [83] the Commission said:

Commissioner O’Sullivan correctly identified that the question of harshness is considered by weighing up all the circumstances, including the reason for the dismissal… The Commissioner expressly referred to the harshness visited upon the applicant personally … noting that it was partly a consequence of choices that he had made. We are satisfied that the Commissioner undertook the task that he acknowledged he was bound to undertake, notwithstanding the brevity of his reasons in this regard.

Ground 5

In this complaint, Larter argued that the Commission should have found that the respondent should have called the NSW Ambulance Chief Executive who made the decision to terminate his, Larter’s, employment. Based on the principle in the case Jones v Dunkel (1959) 101 CLR 298, Larter argued that the failure to do so should lead to the inference that his evidence would not have supported the Ambulance Service’s case that the decision to dismiss Larter was not unfair.   In particular Larter had replied to a ‘show cause’ letter and there was no evidence that the matters raised in that letter had been considered when the decision was made to terminate his employment.  At [95] the Full Bench said:

Given that material, the applicant arguably put in issue the basis of the respondent’s decision to terminate him and whether the matters that he had raised in his letter of 15 February 2022 had had any bearing on that decision. Accordingly, we find error in Commissioner O’Sullivan’s reasoning for failing to draw an inference that the Chief Executive’s evidence would not have assisted the respondent’s case, including the finding that there could have been no basis for the respondent to consider that the Chief Executive should have been called.

But, they continued (at [96]):

… that is not determinative of this ground of appeal. As noted by Commissioner O’Sullivan at [112], the respondent relied on the brief sent to the Chief Executive, which was signed off by him, and in which the matters raised by the applicant in response to the First Show Cause Letter were listed. Further, the applicant’s letter to the Chief Executive formed part of that brief. …

The Commission concluded (at [99]-[100]):

Accordingly, we grant leave in respect of this ground of appeal. However, the absence of practical benefit to the applicant as a consequence of the error identified is such that, despite this error, we nonetheless find that the Commissioner’s decision that the applicant’s dismissal was not procedurally unfair was available to him.

If we are incorrect, given the absence of evidence about the process undertaken by the Chief Executive in considering the termination brief, we nonetheless find that any inference that the failure to call the Chief Executive would not have assisted the respondent was still not sufficiently significant to render the dismissal unfair …having regard to the mandatory effect of the Third PHO and the Determination.

In other words, yes, Commissioner O’Sullivan at first instance did make an error but it was not an error that would have affected the outcome. Again, leave to appeal was granted, but the appeal was dismissed.

Ground 6

At [104]:

This ground also lacks merit. The marking of the evidence in issue as Exhibit 3 demonstrates that the Commission accepted it into evidence. That Commissioner O’Sullivan did not refer to the statement of Premier Perrottet on 27 February 2023 in determining whether the applicant’s dismissal was unfair was entirely orthodox, as it postdated the applicant’s dismissal…

Mr Larter was dismissed on 3 March 2022.  Evidence of what happened nearly 12 months after a person is dismissed is not relevant to the question of whether the decision was reasonable at the time it was made.

Grounds 7 and 8

At [105] the Full Bench said:

It is convenient to deal with Grounds 7 and 8 together. They impugn the Commissioner’s ultimate determination of the matter and the consequent failure of the Commission to award the applicant any remedy. No specific error is asserted. In his submissions in support of each of these grounds, the applicant relies upon “the particulars set out in the Application” in relation to Grounds 7 and 8 respectively. There are none… [A]s noted above, an appeal to the Full Bench of the Commission is not a rehearing of the matter. Error must be established. There being no specific error asserted by either ground, we refuse leave in respect of each of them.

Conclusion

Again, Larter had a win some lose some result.  He won the right to appeal on grounds 2 and 5. But having been allowed to argue that there was an error he lost. In the case of ground 2 this was because his argument on the law was incorrect but leave was granted as there was a public interest in having the full bench rule on that argument.  With respect to ground 5 he lost on the basis that even though the Commissioner at first instance had made an error, it would not have made any difference to the outcome.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.