ASMOF o/b Elizabeth Benson and Western Sydney Area Health Service [2003] NSWIRComm 337

SOLICITOR White Barnes SYDNEY. LEGAL REPRESENTATIVES: RESPONDENT Mr P A Newall of counsel

SOLICITOR Blake Dawson Waldron SYDNEY.

JUDGMENT: - 10 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION CORAM: PETERSON J DATE: 10 OCTOBER 2003

AUSTRALIAN SALARIED MEDICAL OFFICERS' FEDERATION (NEW SOUTH WALES) (ON BEHALF OF ELIZABETH BENSON) AND WESTERN SYDNEY AREA HEALTH SERVICE

Application by Australian Salaried Medical Officers' Federation (New South Wales) on behalf of its member Elizabeth Benson re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

1 HIS HONOUR: The substantive application in this matter is brought by Australian Salaried Medical Officers' Federation (New South Wales) ('ASMOF') on behalf of its member, Professor Elizabeth Benson, who is a Senior Staff Specialist and Director of Immunopathology at the Institute of Clinical Pathology and Medical Research at Westmead Hospital. The employer is the Western Sydney Area Health Service.

2 The substantive application seeks relief from what is said to have been a threatened dismissal. The proceedings with which I now deal are interlocutory proceedings seeking relief in the form of particular orders as follows: 1. That the Return to Work Plan/Program for the period 1 September to 16 September 2003 be reinstated for all purposes.

2. The status quo in place as at 4.00 p.m. on 5 September be reinstated for all purposes.

3. As part of Orders 1 and 2 the Applicant be permitted to resume her usual range of duties including discharging functions of her position. 3 4 ASMOF also seeks an additional order in terms proffered during the proceedings yesterday by the respondent to the effect that the Service not dismiss Professor Benson for any cause or reason until the hearing and determination of these proceedings.

5 The respondent subsequently put a series of orders in the alternative, should the Commission be against its primary submissions in the matter, which are as follows:

Prior to any return to work, Dr Jungfer to provide medical certificate identifying the Applicant's current medical restrictions, if any.

If Dr Jungfer identifies any medical restrictions, prior to any return to work, a meeting is to be held as soon as practicable to discuss the Applicant's rehabilitation. This meeting is to include the Applicant, Dr Jungfer, the external rehabilitation provider, the Respondent's workers compensation and rehabilitation officers, and an ICPMR representative.

The Applicant to work in accordance with any return to work program as developed pursuant to order 2, or as amended from time to time.

Matter to be listed for hearing of the section 84 application on [insert date]

Liberty to apply to the Commission on short notice.

6 There is no issue that the Commission has jurisdiction to grant interlocutory relief in the present proceedings. In that respect I would adopt the observations of Schmidt J in Hill and The Director-General of the Department of Education and Training (NSW) [1998] 85 IR 201, in particular the observations of her Honour at p.208 with respect to the source of power to grant interlocutory relief in the context of an alleged threatened dismissal and the ability to impose conditions. I also refer to and rely upon the observations of the Full Bench in IGA Distribution Pty Ltd and Moses (No 2) [2002] NSWIRComm 96, 15 May 2002, unreported particularly in par. [22] of that judgment: 22 If it were to be accepted that the former position of the respondent was that of a storeworker carrying out the full range of duties for that position, it is within the power of the Commission under s 89(1) to make an order reinstating the respondent to that position but, having regard to the provisions of s 89(8) of the Act, upon terms and conditions that would place him within the "Repack Centre" upon light duties. This is, in our view, the true effect of the decision at first instance. It is also entirely consistent with the manner in which the appellant treated the respondent prior to his dismissal. That is, the appellant engaged the respondent as a storeworker, albeit on terms which did not require, for a lengthy period of time, the respondent to perform the full range of duties.

7 I approach the matter on the basis of the tests commonly applied to the grant of interlocutory relief, namely, firstly, that the applicant must establish that there is a serious question to be tried. Secondly, that damages will be an inadequate remedy and, thirdly, that the balance of convenience falls in favour of the applicant for the interlocutory relief.

8 The Commission now has before it evidence in affidavit form from Professor Benson and Dr Patricia Jungfer, a consultant psychiatrist. It also has affidavit evidence from Mr Kevin William Gillies, the Deputy Director of Human Resources and Risk in the Western Sydney Area Health Service. Professor Benson and Dr Jungfer were not required for cross-examination, although Mr Gillies was subjected thereto.

9 From the evidence I find that the following is established. Professor Benson is employed by the Service as the Director of Immunopathology within the Institute to which I have referred at Westmead Hospital. She has been employed in that role for more than eleven years.

10 Six years ago an incident occurred where she asserts material was stolen from her laboratory at work and utilised for the benefit of another person. The reporting of this fact has led, in the view of Professor Benson, to a campaign of harassment and intimidation against her by others in the Institute. I will not attempt to detail those matters at this stage, it being sufficient to indicate that Professor Benson has subsequently suffered psychological stress and it appears the exacerbation of another condition, which have been accepted as conditions compensable under workers' compensation legislation.

11 In that context a rehabilitation program was adopted in December 2002, which provided for Professor Benson to undertake her normal duties, both clinical and administrative, subject to certain restrictions. They being that she perform four hours work per day at the workplace and four hours per day from home and that she not attend meetings perceived as stressful. These restrictions seem to be designed to meet the workplace difficulties which would appear to have developed from the initial incident six years ago to which I referred.

12 In March 2003 the medical restrictions were lifted by Dr Jungfer but in September 2003 the division of work of four hours clinical duties at work in the morning and four hours at home doing administrative duties in the afternoon were re-imposed.

13 There appears, from the recommendations of the report undertaken into workplace relations at the Institute by Mr John Markham, to have been fault on the part of both sides of the argument. Mr Markham made recommendations in July 2002 designed to resolve the relationship problems. However, in August last year, ASMOF took up with the Area Health Service allegations of continued harassment of Professor Benson and sought resolution, in the absence of which it indicated it would notify this Commission of an industrial dispute. In November 2002 that notification occurred and became Matter No. IRC02/6319 before Commissioner Ritchie, and I will return to that matter later.

14 In February 2003 the Service made five allegations of misconduct against Professor Benson and these led to her suspension from duty on pay. This matter was notified to the Commission and came before Boland J as Matter No. IRC03/97. It seems that a number of lengthy appearances occurred before his Honour and ultimately the parties agreed that the suspension should be lifted and, as I am informed by counsel, the Service undertook not to take steps to dismiss Professor Benson without seeking the resumption of those proceedings before Boland J.

15 On 5 September 2003 the proceedings before Commissioner Ritchie resumed at 2.00p.m. During that conference it was agreed that the parties would undertake a formal mediation to deal with the issues which, I reiterate, involved allegations of continued harassment.

16 At approximately 5.30 p.m. on that day, Professor Benson was telephoned by the Rehabilitation Co-ordinator at the Service who said to her, "Western Sydney no longer has a job for you under s 38 of the Workers Compensation Act." She also said, "Do not come into work on Monday." Professor Benson said "I have private patients on Monday." The co-ordinator said, "They know that," to which Professor Benson asked, "Who are they?" She received the reply, "Kevin Gillies, Cres Eastman and Ross Vining had a meeting this afternoon and decided this. I know it varies from the plan that I had sent for signing the previous day." Cres Eastman I take to be a reference to Professor Eastman, the head of the Institute.

17 On Monday, 8 September, Professor Benson was telephoned at home by the Acting Director of the Institute, Acting Professor Osborn who indicated to her that he had been instructed to call her by Kevin Gillies and he said, "You are relieved of your duties under s 38 and will now be on workers compensation pay."

18 These facts and assertions have been taken from the affidavit evidence of Professor Benson which has not been contested for the purposes of this interlocutory stage of the proceedings.

19 This brief summary of the history indicates a prima facie and concerted attempt to, as Mr Reitano put it, rid the Service of Professor Benson. The contradictory actions of the Service on Friday, 5 September tend to show that the Service has been willing to take any step open to it to achieve this purpose, including reneging on an arrangement made only hours before in dispute proceedings before the Commission. The final act of the Service on 5 September, represented only by conversations on the telephone to which I have referred, seems to me to have operated on a possible misunderstanding of s 38 of the Workers Compensation Act, coupled with an unsupported assertion repeated by counsel to me in these proceedings on 11 September that there was no work for Professor Benson to do in the hospital.

20 On 11 September, counsel for the Service said in terms of the attendance at hospital that, "there is no need for that, a matter of just finding work in order to keep Professor Benson occupied." And later, "The work is not really that which we require to be done, in terms of it being in a day to day sense. That is a decision that has been taken."

21 Mr Gillies in cross-examination had no recollection of any instruction to that effect being made to counsel, although I note that during the course of the proceedings on 11 September representatives of the Service were present in court when those submissions were made.

22 The uncontested evidence of Professor Benson is that her work remains to be done, that she has been able to perform both clinical and administrative work and the proceedings today illustrate, so far as the clinical work is concerned, that there is absolutely no issue about either the capacity of Professor Benson or the availability of the work for her to perform. I will come back to the administrative side in due course.

23 Section 38 of the Workers Compensation Act, as I would read it, operates only where the worker "is not suitably employed" during the period of partial incapacity for work.

24 The term "suitable employment" is defined in s 43A in a manner which requires the work provided to take into account the nature of the worker's incapacity.

25 Section 49 of the Workplace Injury Management Workers Compensation Act 1998 requires that in circumstances such as the present, the employer must at the request of the worker provide suitable employment for the worker.

26 Sub-section (3) of s 49 provides that the section does not apply if a number of alternative conditions are met, the first of which is presently relevant, namely, that it is not reasonably practicable to provide employment. Here Professor Benson is seeking to work. The simple fact as I find it is that the Service is simply declining to supply work for her. Mr Gillies' affidavit conveys what is apparently the view of Professor Eastman that the proper and efficient operation of the Institute has been compromised, it seems, from the rehabilitation program causing Professor Benson to perform administrative work four hours per day at home. No further detail of that matter has been provided and the evidence, of course, is not direct.

27 Mr Gillies in oral evidence indicated a concern that the Service had: it did not know what Professor Benson was doing when she was undertaking administrative work at home. There was no ability to crystallise any problem emanating from the rehabilitation arrangement. There was certainly no attempt made to demonstrate that it was not reasonably practicable to continue to provide work for Professor Benson consistent with the rehabilitation program which had been in place. These two points seem to me to go very much to answering the balance of convenience aspect of the matter.

28 The Service argued that there was no threat of dismissal of Professor Benson and so the Commission is without jurisdiction to make any order. I consider there are two aspects of the case which raise in this respect, a serious question to be tried. The first is the obligation, at least in the alternative, imposed by s 38 of the Workers' Compensation Act 1987 on the worker to seek alternative employment in order to retain a right to compensation payments. Whether that constitutes a threat of dismissal for the purposes of s 84 is an issue. It arises because of the apparent obligation imposed on the worker to seek in the circumstances described in that part of the Workers' Compensation Act, alternative employment from other employers.

29 The second arises in the context of what is suggested to be a restructure of the Institute with a spill of administrative positions and an obligation on Professor Benson to reapply for her position. The Service contends that her employment is as a senior staff specialist with an allowance being payable in respect of an appointment as Director of Immunopathology and it is only the administrative work in that role which has been spilled, but that her subsisting employment remains.

30 The applicant submits on behalf of Professor Benson that she is employed as Director of Immunopathology and as I read Exhibit 1 that is positively asserted in par 2 thereof. That seems to me to be the only finding I can usefully make at this stage, as I have already done. It seems to me that, on the scanty information presently available, this issue of spill of positions raises an arguable possibility of dismissal and is thus a serious question to be tried on that matter. I take the view that damages, to adopt the expression derived from the common law in the context of interlocutory orders, may not be a sufficient remedy in this case. The damage to reputation from a withdrawal from the Service of Professor Benson's functions in the light of the industrial history and by what would appear to me to be a de facto suspension on pay, may be irreparable.

31 For reasons similar to those expressed by Boland J in Australian Salaried Medical Officers' Federation (New South Wales) on behalf of Professor Bruce Hall and South Western Sydney Area Health Service [2003] NSWIRComm 8, 5 February 2003, unreported, particularly pars. [38] and [39] in the judgment, I consider that Professor Benson is, on this aspect, entitled to interlocutory relief. There, his Honour said: 38 Professor Hall occupies senior management roles within the Area Health Service as well as a senior clinical role. If he is terminated in relation to his management role it must do damage to his career and reputation. The maximum compensation to which he would be entitled to under the Act would be, in effect, six months' pay. I do not consider that amount of compensation would be adequate in the circumstances. As to the remedy of reinstatement, it seems to me that in any proceedings concerned with final relief there is every prospect that reinstatement would be found to be entirely impracticable (sic-practicable).

39 .... Reputations in the elite international scientific community in which Professor Hall operates are all-important and the merest shadow of doubt cast over a reputation could be devastating.

32 As for the balance of convenience, I have already observed that the Service has not established any positive matter which would detract from the proposition of Professor Benson being returned to work subject to Dr Jungfer's medical restrictions.

33 In all of the circumstances, I am satisfied I should make interlocutory orders. I will adopt the form suggested, firstly, by the Service yesterday, which would require the Service not to dismiss Professor Benson pending the hearing and determination of these proceedings.

34 I would also adopt par. 1 of the orders put forward by the applicant, subject to it being qualified in respect of any further medical restrictions which might be imposed by Dr Jungfer in anticipation of the resumption of work on Monday next. I make orders 2 and 3 as sought in the urgent interim orders by ASMOF subject to the next matter to which I refer.

35 I make no order at this stage regarding the matter of funding for research. I would expect the Area Health Service to apply, in respect of Professor Benson, research funding arrangements consistent with its policy and without retribution or discrimination against her. In that regard I would grant liberty to apply.

36 This matter is but one of three different matters, as I have instanced, before the Commission concerning Professor Benson. The evidence of Dr Jungfer indicates that she had proposed in correspondence to the rehabilitation co-ordinator at the Service on 5 June 2003 a process by which the parties could seek to address the subsisting problem and that proposal seems not to have been taken up.

37 Taking into account the fact that an inquiry was initiated from Mr Markham leading to his report concerning the relationship problems in the Institute, the fact that the notion of mediation was agreed to about the same problems in proceedings before Commissioner Ritchie, and the need for the initiation of these proceedings, it seems necessary to observe that the Service should apply itself to a process which is designed to overcome those problems. Whether Dr Jungfer's proposal is an appropriate one or not, I cannot conclude but I am seriously troubled by the fact that there seems to have been no attempt to finally address the subsisting problem. I would recommend to the parties that they undertake a process to achieve that result. Because of that position, while I have granted liberty to apply in a particular respect, I will grant to the parties general liberty as well.

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