Abebe v The Commonwealth

EXTEMPORE DECISION 1These are proceedings in matter number IRC 805 of 2013, an application by Mr Neil Robert Vernon, conducted by his union on his behalf, against a decision taken by the State Transit Authority division of the New South Wales government service, New South Wales Transport. 2I now propose to give a decision in this matter, having heard the evidence and heard the arguments of the advocates. 3I will give my decision and my reasons in such succinct form as I can, hoping nevertheless to deal with the matters that need to be dealt with to give a decision and reasons in a matter not entirely without complexity. 4Before I turn to the facts of this case it is necessary to address what is in effect a jurisdictional question. That is this. 5This is a matter brought before the Commission pursuant to s 98 of the Industrial Relations Act 1996. ('the Act') 6The decision which is under challenge is the decision to terminate Mr Vernon's employment. The appeal is brought pursuant to s 98 which is that section of the Act which confers a right of appeal upon an employee in relation to a decision made by a public sector employer in relation to a public sector employee including, at s 97(1)(f), a decision to dismiss the employee. 7Now at first blush it is apparent that decisions under s 97 are disciplinary decisions, and indeed they fall within Division 3 of Part 7 of Chapter 2 of the Act, which is that part of the Act that addresses disciplinary appeals. But when one examines the section more closely one sees that at s 97(1)(a) the Act provides that in respect of particular decisions, they being decisions of a kind set out in 97(1)(d), (f) or (g) of the Act, that is to say reduction in rank, dismissal or requiring an employee to resign, an appeal may be brought regardless of whether the decision was made for disciplinary reasons. 8Now this matter is not a disciplinary matter; Mr Vernon was medically retired pursuant to regulation 12 of the Transport Administration (Staff) Regulation 2012 ('the 2012 Regulation') but nevertheless pursuant to s 96 and 97(a) of the Act he has a capacity to bring a challenge to this particular decision to the Tribunal under s 98 and that is what he has done. 9I am of the view that the application for appeal and the appeal is soundly and correctly brought and the Commission has jurisdiction to hear it for the reasons that I have set out. 10The application does give rise to questions to which I will turn shortly, about what remedies should be made available and on what basis and indeed what the test is for assessing a decision of this kind, when it has not been a disciplinary appeal. 11I start with the power under which the STA moved to terminate Mr Vernon's employment. Under the newly formed 2012 Regulation pursuant to regulation 12 there is a provision that an employee may be medically retired - perhaps I should go to the provision in whole to avoid any confusion about it. 12Regulation 12 of the 2012 Regulation provides as follows under the rubric retirement of officers on medical grounds and I interpose the evidence was that Mr Vernon was an officer, the Regulation provides as follows: "If an STA officer becomes as the result of the onset of a specified infirmity of body or mind unable to carry out the inherent requirements of the officer's duties the Chief Executive may cause the officer to be retired. It is apparent that the sole criterion for the decision to terminate the services of an officer by medical retirement in these circumstances, which were the sole circumstances and the sole powers called in aid by the STA in this decision to dismiss Mr Vernon were that if the officer for reason of a specified infirmity of body" - and I interpose, I accept that in Mr Vernon's case there was such a thing, an identified permanent carpal tunnel syndrome issue: --"if the officer for that reason is unable to carry out the inherent requirements of the officer's duties then a discretion is conferred upon the Chief Executive by the word 'may' to cause the officer to be retired." 13Clearly the Regulation is permissive. It allows the Chief Executive or his delegate to carry out the medical retirement if the pre-condition is met. The pre-condition is twofold; if there is a specified infirmity of body or mind - and in my view on the evidence there clearly is in this case such a thing - and the second limb is because of that, as a result of that, the officer is unable to carry out the inherent requirements of the officer's duties. 14I go over that at such length to make clear that the test that must be carried out by the decision maker in determining to effect a medical retirement of an officer is that the officer is unable to carry out the inherent requirements of the officer's duties. 15That question in terms must be tested. There is no other test and in order to form a reasonable and reasonably based view that a medical retirement is available and therefore may be caused to occur, there must be a specific address to the two pre-conditions described in the 2012 Regulation. Here the first pre-condition, as I have said, has been met. The second is whether the officer is unable to carry out the inherent requirements of the officer's duties. 16If that question is not asked and answered in terms then the decision maker runs the risk, at the very least, of forming a decision unsoundly. 17I will then turn to the circumstances of this case and the facts are, relevantly as I have understood them from the evidence, this. Mr Vernon suffered an injury, as it happened it was a compensable injury but the injury was a carpal tunnel syndrome injury. 18He was off work for a period of time. He then returned to restricted duties for more or less a six month period. Then he returned to work with his permanent medical condition and carried out all of his duties without limitation for approximately nine months - that is from October 2012 to June 2013 - with a very short period of days in which for a reason of what was described as a flare up, which Mr Vernon I think very honestly and candidly described in evidence in the witness box, he attributed to the work and he may have been right in doing so, caused him to be absent from work for a short time. 19After that absence he came back to work and worked without limitation or hindrance at his ordinary duties, carrying out all of the inherent requirements of the work for a further five weeks. 20Nevertheless he was required to, and very properly required to, attend a medical assessment and that assessment was carried out by Dr Ma. I must say that of the medical evidence or quasi-evidence that was put before the Tribunal I am bound to give Dr Ma's evidence a superior weight. That is for two reasons. 21Firstly he is, on his own evidence as unchallenged, a specialist in the field of the very particular injury with which we are dealing here. Secondly, Dr Ma was brought before the Tribunal and his evidence was tested. 22Evidence from a professional person which is not tested, whether it is an architect or a doctor or anybody else, is certainly admissible into evidence but if there develops a question of contest between two professionals, in this case medical professionals, and the evidence of one is able to be tested and the other not, there is always going to be in the Tribunal's mind a preponderance in weight of that evidence that was brought and tested. 23Of course if the evidence is found to be faulty or wrong or unsound on its testing then that diminishes or eliminates it, but that was not the case here. The fact too that Dr Ma, as I said, was a specialist in his field gives that evidence, which was tested, a greater weight than that of Dr Raju, and I say that with no disrespect to Dr Raju's qualifications or expertise in any way. Rather, this is a forensic question of the Tribunal weighing the evidence brought before it in an adversarial context. 24So Dr Ma was asked a series of questions and provided a report. It is clear on a proper reading of Dr Ma's report that he was told by Mr Vernon, very properly, that Mr Vernon had returned to work at the time of the examination that Dr Ma undertook on 12 August and was carrying out his normal duties. 25Indeed, Dr Ma's evidence and so that I do not misquote the Doctor I will turn to his medical report, made a number of findings about Mr Vernon which he then conveyed, as he was bound to do, to the STA. 26I note that Dr Ma was provided with certain documents by the STA including the generic position description for an Engineering Repair Assistant, which was the position in which Mr Vernon was employed, levels 1, 2, 3 and 4. Mr Vernon was an ERA 2 and that appears to have been known to Dr Ma. 27The generic description refers to a person in that circumstance being required to, amongst a range of other things, perform cleaning, fuelling and depot driving either individually or in a team environment. That was the extent of the documentary material before Dr Ma about Mr Vernon's work. 28Dr Ma made the observation that, "Mr Vernon was, at the time of this report, August 2013, asymptomatic and able to manage his normal duties" and Dr Ma said that in the context of knowing that Mr Vernon was in fact carrying out his normal duties. 29Having said that, of course, Dr Ma was asked two questions which were germane amongst the other questions he was asked: "Are there any adjustments including a reduction of hours or facilities that might be appropriate to assist the employee to return to pre-injury duties? Would a permanent restriction be appropriate?" 30Dr Ma responded in these terms, and I quote his answer in full: "Given the history of Mr Vernon's exacerbation in relation to repetitive duties when doing sweeping it would be beneficial to reduce the hours or minimise sweeping duties in order to avoid further exacerbation/aggravation of his left carpal tunnel syndrome. Since his condition is permanent this restriction will also be permanent." 31I interpose there, Dr Ma, in response to a question about whether adjustments should be made, identifies that it would be "beneficial" to reduce the hours or minimise sweeping duties in order to avoid a further exacerbation or aggravation of the syndrome. 32Dr Ma was then asked in reference to bus cleaner duties document, refer Appendix 4, and I have identified that is in fact the generic position description for an ERA 1, 2, 3 and 4: 33"Could you comment on any tasks that you would consider may aggravate or accelerate Mr Vernon's medical conditions, such as sweeping or refuelling buses?" 34Dr Ma says and I again quote the Doctor in full: "The main contributor for aggravation and acceleration of his carpal tunnel syndrome would be any forceful flexion movement of his left wrist and duties such as sweeping could have increased risk if he is doing the duties repetitively for a long period of time." 35As I have indicated, I accept Dr Ma's evidence and report. 36So the STA has an employee who has a permanent condition, there is no question about that in the evidence. He has had it for some time. He has worked with it for some periods of limitation and for about nine months without limitation. It is now said of that person that he is fit to work but that it would be beneficial to reduce his hours or minimise his sweeping duties. 37So that is the ball that the STA effectively had served into their court, they had to deal with it and they went about it in this way. 38Mr LaRosa made a report which was sent up the line to his two supervisors, the last of those being Mr Eldridge, who was the decision maker in the matter. 39That report said nothing particularly about inherent duties and the ability to fulfil them or otherwise. What it dealt with was risk and one may see why that was an approach Mr LaRosa very properly took from a risk management point of view in assessing a report from Dr Ma who says this man is presently fit to undergo his duties, there should be some limitation on his sweeping and if you do not permit those limitations, then that flexion work is likely to cause an exacerbation of the injury. 40No one could criticise Mr LaRosa for being concerned about the question of risk in those circumstances. He has an obligation to his employer, and that employer has obligations under the Work Health and Safety Act 2011 and for risk management generally. 41The test of course, pursuant to the decision that was actually taken under the 2012 Regulation, has nothing to say about risk. The prescribed test is only about whether the inherent requirements of the job can be done or cannot be done. Indeed, to be fair to them, both Mr Webster and Mr Eldridge freely conceded that risk had no part to play in the decision that had to be taken about Mr Vernon. 42I accept Mr Eldridge's honesty as a witness. He said that whilst Mr LaRosa's report focused on risk and indeed made certain recommendations based on a perception of risk he, Mr Eldridge, judged the matter afresh. He said that he had knocked back a number of recommendations for medical retirement during the course of the year, accepting this one and that he understood the test was not risk but the inherent requirements of the job. 43I accept Mr Eldridge's bona fides in telling me that was the mental state that he brought to the job. In my view however Mr Eldridge, in carrying out that function, had been let down by those who had gone before him; and let down in this way. 44The test he had to answer, the question he had to answer was this: was or was not Mr Vernon unable to carry out the inherent requirements of his duties? Nobody however asked Dr Ma that question. 45Questions were asked of Dr Ma about the injury, about its effect, about what to do to prevent recurrence or exacerbation. But no-one said to Dr Ma in terms, 'On your observations of this man and his medical history and on your knowledge of the inherent requirements of the job, which we here set out for you, is he able or unable to carry out those requirements?' or words to that effect. 46That was the question which Mr Eldridge set himself, correctly, but he did not have in my opinion the material before him to allow him with the best will in the world to make the decision that was actually before him based on the test under the 2012 Regulation. 47Added to that is this, the inherent requirements of the job have got to be read not in my view in an absolute sense in the context of Mr Vernon's employment but in this sense. The STA has a policy, although it did not put the whole of the policy in evidence before the Tribunal today. That policy requires it, as I understand the policy - and what I know about it I draw from the evidence put before the Tribunal by the STA - to consider whether alternative options for work are available including modifications of the work. 48I see no evidence that Mr Eldridge was invited to consider those or that he did consider them. In circumstances where the test of whether a person can or cannot carry out the inherent requirements of the job, where the STA imposes on itself a policy which allows consideration of whether adjustments might be made to allow the person to deal with the requirements of their job, and yet that doesn't appear to form part of the decision making process, then it seems to me that for another reason than that I have already articulated, the discretion exercised by Mr Eldridge miscarried. I say again, I make no criticism of Mr Eldridge's bona fides in the matter. 49Any statutory office holder carrying out a power must exercise it reasonably. I do not suggest Mr Eldridge was behaving in the ordinary anecdotal sense of the word unreasonably. He had material before him, he did his best to make an honest decision about what he had before him. But a 'reasonable' decision in truth in this case necessarily had to have as part of it medical evidence about whether or not this man could carry out the inherent requirements of the job. 50As nobody asked the doctor that in terms, that evidence, in terms, was not there. And so on the tests in the authorities, for instance, in Minister for Immigration and Citizenship v Li [2013] HCA 18 and Abebe v The Commonwealth [1999] 197 CLR 510, the discretion which Mr Eldridge carried out, whilst bona fide, cannot be said to have been carried out in a way that was reasonable. 51I say again, I make no criticism of Mr Eldridge's goodwill and his evident attempt to decide the matter fairly and honestly. He simply was not, in my view, given the material he had to have in order that the regulatory power he exercised was properly exercised. 52Indeed I do not extend any criticism of any STA officer in this matter; it is clear that people have done their best to make a fair decision and it is not a matter of personal fault or mala fides that I have formed the view the decision has not been correctly carried out. 53I turn to the test that has to be applied in a case of this kind. Mr Preston urged upon me a particular test. The legislation is hybrid, to use my word, that is to say it deals with a disciplinary circumstance but it imports an ability to run a case of this kind when no disciplinary question is involved. 54In a disciplinary matter, of course, the tests that one has to apply are obvious. First of all there are questions about the employer being required to make out any misconduct and the level of proof at which that has to be made out. If that is done the test then becomes a test of the overall fairness of the application of the discipline; proportionality, things of that kind. 55None of those tests apply here. I am bound to decide the matter, it seems to me, on the basis of an inquiry as to whether the discretion to terminate Mr Vernon's employment was soundly based and soundly exercised, and that is the test that I have applied. I have been obliged to come to the view that the decision was not on the facts soundly based. 56I then turn to the question of what is to be done about the decision in those circumstances. The Commission has the power to either allow or disallow an appeal and to paraphrase the Act, the Commission has the power to impose such other decision as it sees fit and to in some circumstances impose terms upon any decision that it makes. 57In my view the medical retirement of Mr Vernon has not been carried out according to the power given to the STA to carry it out. Accordingly I am bound, in my opinion, to hold that the appeal is allowed so far as it seeks that Mr Vernon be reinstated in his employment. 58I will make an order to that effect shortly. 59The question then comes whether there is to be any terms imposed upon that or accompanying that. There is a capacity in the Commission to, in a range of circumstances depending on the facts of a given case, simply make the bald order of reinstatement without more or to make an order for compensation up to but not exceeding the amount that has been lost by the fact of the termination and to make orders about continuity of service. 60This exercise is not meant to provide a windfall to employees who have been dealt with in particular ways. In circumstances where I have found here on an analysis that in fact the decision was not soundly based, but I do not find mala fides, I do not find there has been a gross error in assessing a disability matter, I do not find that there has been any misapplication of evidence going to wrongdoing or otherwise, this is simply a case in which the STA proceeded, perhaps in unchartered waters given the changes to the Regulation and the Act, and have found that they have acted, in my opinion, without power. 61It seems to me the proper course is this, I propose to order that the appeal be allowed and Mr Vernon be reinstated in his employment. 62I propose to order that he be regarded as having continuous service from the time of his termination until the date of his reinstatement. 63I propose to order that he be made an order of compensation of eight weeks pay.