ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service

ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 299 Australian Workers' Union, New South Wales v BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 71 Davies v Kyogle Council [2008] NSWIRComm 90 CASES CITED: Hill v Department of Education (1998) 85 IR 201 Mullins v Director General, NSW Department of Education and Training [2006] NSWIRComm 258 Wei Fen Xian v Rail Corporation New South Wales (No 2) [2009] NSWIRComm 199 Wei Fen Xian and Rail Corporation New South Wales [2009] NSWIRComm 1083

TEXTS CITED: Industrial Relations Act 1996

Appellant in person LEGAL REPRESENTATIVES: Mr P Ginters of counsel (Respondent) Norton Rose Australia, Solicitors

CORAM: WALTON J Vice-President KAVANAGH J MACDONALD C

Application by Wei Fen Xian for leave to appeal and appeal against a decision of Deputy President Grayson given on 17 November 2009

1 This matter concerns an application by Wei Fen Xian for leave to appeal and appeal against a decision of Deputy President Grayson given on 17 November 2009 in Wei Fen Xian v Rail Corporation New South Wales (No 2) [2009] NSWIRComm 199.

Background 2 Ms Xian ("the appellant") was employed by Rail Corporation New South Wales ("the respondent"). Her role was that of Rail Safety Worker. 3 Employees of the respondent engaged in that type of role are required to attend medical assessments at the direction of the respondent. These medical assessments include "triggered assessments". The latter type of assessment occurs where there is a concern about an employee's health (and hence concern about the ability to perform their work) and accordingly the employer directs the employee to have a medical assessment. 4 The respondent's officers met with the appellant on 13 January 2009 and discussed concerns about her behaviour on the job. The appellant was asked to attend a medical assessment. However, she did not attend the medical assessment. 5 Ms Xian sent emails to various officers of the respondent, protesting against the direction to attend the medical assessment. She also protested about the medical review requiring of her to have a psychological assessment. 6 Further dates for a medical assessment were set down for 22 April, 27 May and 16 June. The appellant did not attend these medical assessment dates.

7 A disciplinary investigation was put into operation on 6 June concerning the appellant's failure to comply with the respondent's direction that she attend the medicals. She was suspended on pay pending the investigation. The appellant was written to on 9 July advising of the investigation. 8 On 10 July 2009, the appellant lodged an unfair dismissal application pursuant to s 84 of the Industrial Relations Act 1996 (the Act). She stated in her application that the date of dismissal was 26 June 2009. 9 That unfair dismissal application was allocated to Connor C. The conciliation occurred on 6 and 19 August. 10 The appellant was invited to a disciplinary meeting by letter of 26 August. The meeting was scheduled for 4 September. The appellant did not attend. 11 A letter was written to the appellant by letter of 21 September advising that the investigation into matters concerning her had been completed and an investigation report was being prepared. 12 The s 84 application brought by the appellant was listed before Bishop C on 12 October. In those proceedings the appellant had contended that she had suffered a threatened dismissal. The respondent contended for the contrary and challenged the Commission's jurisdiction to hear the matter. On 14 October 2009, the Commission found that as there had been no threatened (or actual) dismissal she lacked jurisdiction: Wei Fen Xian and Rail Corporation New South Wales [2009] NSWIRComm 1083. 13 The respondent wrote to the appellant on 22 October 2009, advising of the outcome of the disciplinary investigation into her failure to comply with directions to attend for medical appointments. The letter advised that the disciplinary investigation had found that the appellant had breached the RailCorp Code of Conduct in failing to comply with the written direction of Julian Richards, General Manager, Communications and Control Systems, Asset Management Group, to attend for medical appointments on 16 June 2009. (The written direction apparently was given by Mr Richards on 10 June 2009 and advised that attendance was mandatory and that failure to comply with the direction will result in the matter being referred to RailCorp's Investigation Unit for further consideration). The appellant was advised that the disciplinary outcome in contemplation was "Dismissal". The appellant was invited to make a submission about this proposed outcome. 14 The appellant responded in writing on 26 October and 12 November 2009 to the foregoing and, in particular, sought a copy of the disciplinary investigation report. The respondent advised by letter of 27 October, that the appellant was not entitled to a copy of the report. 15 On 4 November 2009, the appellant lodged an application for leave to and appeal against the decision of Bishop C. 16 The appeal was listed for stay and directions on 10 November, before Walton J, Vice-President. During this proceeding, the Vice-President was informed of the respondent's notification to the appellant of the possible outcome of dismissal. It was agreed by all concerned that the appeal be discontinued, in light of what was then clearly a threatened dismissal and that the matter at first instance (the proceedings in which the decision of Bishop C was issued), be re-allocated to a member of the Commission as a matter of urgency to hear that application. 17 The matter at first instance was then re-allocated to Grayson DP. Further documentary material was put on by the appellant for those proceedings. Grayson DP listed the matter for hearing on 17 November. The Deputy President dealt with the matter as an application for relief with respect to threatened dismissal by way of an urgent hearing. The appellant sought to restrain the respondent from acting upon its threat of dismissal (see s 88(7)). 18 On 17 November, Grayson DP's decision held that the appellant had not made out her case for such relief - accordingly the appellant's application was dismissed: Wei Fen Xian and Rail Corporation New South Wales (No 2) [2009] NSWIRComm 199. 19 The respondent wrote to the appellant on 19 November 2009 and advised of her dismissal from its service. The appellant filed an unfair dismissal application in respect of that dismissal. That application is part-heard before Tabbaa C. During these proceedings the Full Bench was advised that the respondent had raised a threshold issue in the unfair dismissal application by challenging Ms Xian's application as having been filed out of time. The Commissioner heard the parties as to that preliminary issue and has reserved her decision in that respect.

Consideration 20 The respondent sought that we consider the question of leave to appeal as a preliminary matter in the proceedings. We declined to take that course and permitted the appellant to fully develop her submissions on leave to appeal and appeal (the same opportunity was provided to the respondent).

21 In the result, we had the opportunity to consider the appellant's written submissions as to leave and the merits of the appeal as well as her oral supplementation of those submissions.

22 Having considered all of these matters, we are of the view that leave to appeal should not be granted for the following reasons. 23 Firstly, we consider that there is no or insufficient utility in granting such leave: Davies v Kyogle Council [2008] NSWIRComm 90; Mullins v Director General, NSW Department of Education and Training [2006] NSWIRComm 258; Australian Workers' Union, New South Wales v BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 71. 24 The appellant has appealed against Grayson DP's decision of 17 November 2009. The proceedings before Grayson DP required a determination of the limited question as to whether an order ought to be made pursuant to s 89(7) of the Act. The appellant has since been dismissed and subsequently filed an application for relief in relation to unfair dismissal. That matter is part heard. It follows that, in a practical sense, the threatened dismissal has been overtaken by the actual dismissal of the appellant and the application which has been brought under s 84 to challenge that decision (on the grounds that broadly speaking, the dismissal was unfair). Thus, nothing ultimately turns on the matters, the subject of this appeal (Davies v Kyogle Council [2008] NSWIRComm 90). We note the respondent submitted that we would have no power to reverse the dismissal in an appeal brought under s 89(7) of the Act. It is unnecessary to resolve that question in this application.

25 In reaching the decision that we have as to the question of utility, we have paused to consider whether that conclusion might be affected by the preliminary challenge brought by the respondent to the appellant's s 84 application (now before Tabbaa C). The reason for this hesitation is that it might be said that the preliminary issue might result in the appellant not receiving a hearing of her application on the merits. However, we have formed the view that this consideration should not alter our conclusion in this respect for two reasons. The primary consideration which gives rise to the utility point is the fact of the dismissal of the appellant. It is true that the application under s 84 is also a factor in that respect but the fact that a preliminary issue arises in those proceedings does not ultimately diminish the relevance of that factor in deciding that there is a lack of utility. This is because those proceedings still represent the ultimate exercise of rights by the appellant, with respect to her removal from employment with the respondent. The second consideration as to the utility of the appeal is the appellant has persistently challenged both the attempt to dismiss and now the dismissal. She has prosecuted her case with determination. The defence raised by the respondent that she is out of time to prosecute her objection to the dismissal will be considered in the context that her primary objections to the conduct of the respondent still have not been given consideration by the Commission; whether either party suffers hardship if the application is or is not rejected; the reasons and the length of the time delay; (s85 of the Industrial Relations Act 1996). Given these considerations, it could not be said the appellant is absent any prospect of making out an application to extend time (and, in any event, she contends that the application is within time).

26 Secondly, in deciding not to grant leave to appeal, it does not appear to the Full Bench that Grayson DP has misapplied the relevant principles in deciding the application before him, adopting and applying as he did, the decisions in Hill v Department of Education (1998) 85 IR 201 and ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 299. Further, we do not consider that any aspect of the procedures adopted for the receipt of evidence by his Honour would result in the grant of leave. His Honour was considering an interlocutory application and had sufficient uncontested material before him to reach a conclusion that the interlocutory relief could be refused on discretionary grounds particularly on the balance of convenience. Orders For the reasons given, leave to appeal is refused.

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