Mr Woloschyn commenced employment with Fire and Rescue NSW (FRNSW) n April 2000. He held the position of Captain of a retained brigade, and also an administrative role within FRNSW.

In September 2024 he was suspended pending an investigation into inappropriate conduct. In June 2025 he was advised that some of the allegations had been established to the satisfaction of the relevant decision maker. He was invited to respond and show cause why he should not be dismissed.  He filed a response. The decision maker determined that Mr Woloschyn would be dismissed with the decision to take effect in seven days unless he chose to resign first.  Mr Woloschyn did no resign, rather he applied to the Industrial Relations Commission arguing that his dismissal would be unfair and seeking orders to stop Fire and Rescue NSW (FRNSW) proceeding with his dismissal pending a final decision by the Commission.   The power of the Comission to make that order is found in the Industrial Relations Act 1996 (NSW) s 89(7) which says:

In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat.

In Woloschyn v Industrial Relations Secretary (on behalf of Fire and Rescue NSW) [2025] NSWIRComm 1116, Commissioner O’Sullivan granted orders that FRNSW ‘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’. (I note that in the case title the applicant’s name is spelt ‘Woloschyn’ but throughout the judgment it is spelt ‘Wolosschyn’. Where evidence is quoted it spelt with only one ’s’ so I assume that is the correct spelling and that is the spelling adopted in this report).

In deciding whether to grant the interim orders, the Commission was required to consider the balance of convenience by considering whether there is a likelihood of success in the final hearing, and whether ‘the inconvenience or injury which [the applicant] 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.’  That is, in this case, whether the ‘the inconvenience or injury’ which Mr Woloschyn would suffer if we dismissed and it was later found to have been unfair, outweighs by the ‘injury’ FRNSW would suffer if they were to continue to employ him pending the final decision.

The Commission accepted (at [27]) 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.

When it came to the balance of convenience the Commission considered:

  1. The impact on Mr Woloschyn’s family and financial position if he was to lose his position and the associated income, 
  2. The potential impact on his health and wellbeing including the impact of PTSD and the central role of employment with FRNSW to his identity, 
  3. The difficulty in reinstating him to his position, if he was successful in his unfair dismissal claim, as the position of Captain would have been filled in his absence
  4. The ability (or not) of the applicant to obtain alternative employment; and
  5. His reputational standing.

FRNSW argued that it would be inconvenienced if they were ultimately successful and had paid Mr Woloschyn, but could not recover the payments made.  Even more so given he would not actually be performing work for FRNSW but would continue on suspension with pay. 

The Commission said (at [63])

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.

That is the Commission’s decision was based on claims (1) and (2) above. With respect to claims (3) to (5) the Commission said (at [62]):

… 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.

Even so Mr Woloschyn did not have to win on all five claims, two were enough for the Commission to find that the balance of convenience lay in keeping Mr Woloschyn employed pending the outcome of his claim for unfair dismissal.

Discussion

An application under s 89(7) is quite a powerful tool.  If FRNSW had determined to terminate his employment with immediate effect then it is unlikely that he could have obtained an order under s 89(7) as he would have been dismissed, not threatened with dismissal.  By advising that he would be dismissed at a date in the future it opened the window for an application under s 89(7). In this case that effective in securing Mr Woloschyn’s position pending a final determination as to whether any dismissal would be unfair as defined by s 89. As Mr Woloschyn argued, the final determination ‘could take months and even go close to a year’ ([35]).  Compare this to the situation facing firefighter Walsham discussed in my post Dismissal of Fire and Rescue NSW firefighter harsh, but re-employment not possible (December 17, 2025).

Any employee threatened with dismissal should consider whether there are grounds to make an application under s 89(7).  One the other hand one can imagine employers like FRNSW will reconsider whether they should give time before an dismissal takes effect rather than making it immediate once the decision to terminate an employee has been made.

Of course, not everyone will get an order under s 89(7). As the Commission said (at [65]) ‘… 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 …’ however where the employee can show an arguable case that the dismissal is unfair, ‘and the balance of convenience favours the making of an Order pursuant to s 89(7) of the Act’ then such an order will be an effective and powerful interim remedy.

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.