Bossak v Health Secretary in respect of Murrumbidgee Local Health District

The Decision

1. Commissioner Murphy stated at [78] of the Decision that the terms "victimisation" and "victimise" are not defined in the Act. Having considered Davis v Amalgamated Television Services Pty Limited [1998] 81 IR 364 and Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance [2017] NSWIRComm 1036, the Commissioner stated as follows: "81. I propose to adopt as the meaning of the term 'victimise' as it appears in section 210 of the Act: - to badly treat, - to cause to suffer some injury, hardship, or loss, is badly treated or taken advantage of, or the like, - to cause to suffer discomfort, inconvenience etc, or - to cause to suffer any detriment."
2. There is no suggestion that the Commissioner erred in adopting such a meaning of "victimise".
3. The Commissioner went on to state his conclusions as follows: "82. As stated above, I reject the claim that the 'Amended Employment Conditions Advice' letter, which is reproduced at [36] above and which was signed by the applicant on 31 October 2007, the 'Amendment to Employment Contract' letter, which is reproduced at [55] above and which was signed by the applicant on 20 December 2009 and the further 'Amendment to Employment Contract' letter, which is reproduced at [61] above and which was signed by the applicant on 1 November 2010, either separately or cumulatively, constitute victimisation of the applicant in the sense described immediately above. 83. These variations to the terms of the applicant's employment were negotiated between his employer and ASMOF and agreed to by him. I reject the characterisation that these negotiated outcomes were 'forced "agreements"' or 'mere salvage operations'. They did not cause the applicant to suffer any detriment. They permitted the applicant to remain in employment even though he did not meet the award definition of 'Staff Specialist', the classification into which he was initially employed. 84. With respect to the recommendations in the Smyth Report, and their proposed adoption by the respondent, I also reject the claim that these can be properly characterised as victimisation of the applicant in the sense described at [80] [sic - [81]] above. Dr Smyth's recommendations were made in response to genuine concerns about the applicant's work performance which came to light during the investigation. These recommendations provide the applicant with an opportunity to constructively address those concerns. 85. In light of the above determination, it is not strictly necessary to consider the reasons for the alleged victimisation of the applicant which are said to be found in subsections 210(1)(d), (e), (f), (g) or (j) of the Act. However, on the basis of the evidence before the Commission, it is clear to me that none of the acts of alleged victimisation are in any way related to any of the proscribed reasons in section 210. For example, it was submitted that the applicant was victimised because he was claiming to be paid at the award rate for a Senior Staff Specialist. However, from 20 December 2009, the applicant agreed that he would be paid as a Staff Specialist, Level 1, 5th year, and from 1 November 2010, he agreed that he would be paid as a Career Medical Officer as a consequence of his repeated failure to pass the FACEM exam, which qualification he needed in order to be classified as a Staff Specialist. 86. There is no evidence before the Commission that, since 2009, the applicant has made any claim to be paid as a Staff Specialist until he instituted the current proceedings. 87. It is my determination that the applicant has not been victimised by the respondent at any stage since his employment at Wagga Wagga Base Hospital commenced in 2005. 88. It follows that the applicant's claim for relief under section 213 of the Act must fail."

Legal principles to apply

1. An appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench: s 188(1) of the Act. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted: s 188(2) of the Act.
2. The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16. In that matter the Full Bench stated: "10. It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him [sic]: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. 11. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal 'raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application' (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5]."
3. In Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 the Full Bench stated at [12]-[13]: "12. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held…that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. 13. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. This is by no means a new element of the Commission's jurisprudence; it has long been held that an appellate body in an appeal of this nature will only substitute its own judgment where the first-instance decision maker has fallen into error of law, or made a finding of relevant determinative fact that is demonstrably wrong: Drake Personnel Ltd v Workcover Authority of NSW (1999) 90 IR 432 at 440. There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal."
4. The principles outlined in the cases cited above have since been approved in numerous decisions of the Full Bench. It is not necessary to list them all. We will apply these principles.
5. In an appeal challenging the exercise of a discretion the appellant must, if leave to appeal is granted, demonstrate error in the exercise of the discretion of the nature contemplated in the principles enunciated in House v The King (1936) 55 CLR 499; [1936] HCA 40.
6. It is convenient at this point to reproduce s 210 of the Act, the terms of which must necessarily be considered in determining this appeal. During the hearing of the appeal Mr McArdle confirmed that he was relying only on s 210(1)(e) and (j), [3] and so we will reproduce only those provisions: 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: … (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or … (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions under Part 5 (Consultation, representation and participation) of the Work Health and Safety Act 2011, or … (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action.
7. To enliven the presumption in s 210(2) of the Act it is necessary for an applicant to prove both detriment and that the alleged cause of that detriment is one of the proscribed grounds in s 210(1). In Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 the Full Bench held as follows: "43. Turning to the matter of the onus, we consider that the terms of s 210(2) are clear: once an employee or prospective employee has demonstrated detriment as a result of an action by an employer or industrial organisation and the alleged cause of that detriment falls within the classes of victimisation in s 210(1), then it is presumed that employee or prospective employee was victimised. The employee will be required to prove the elements of the alleged reason for victimisation being the elements of one or more of the paragraphs in s 210(1) (for example, an applicant under s 210(1) (j) will need to prove the existence of a complaint about a workplace matter concerning safety for the purposes of that sub-section). In the face of the presumption in s 210(2), the onus is then on the employer or industrial organisation to show that the 'alleged matter' was not 'a substantial and operative cause of the detrimental action'."
8. In Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance Newall C held as follows: "16. As the Commission pointed out in Graham Davis v Amalgamated Television Services Pty Limited [1998] NSWIRComm 289, 'victimisation' itself is not defined in terms in the Act. In my view its meaning is to be inferred from the provisions of subs.201(2), which refers to an employee 'suffering any detriment'. The statutory scheme therefore operates by setting out in subs.210(1) a series of bases on which an employer is prohibited from acting toward an employee, and then by providing that where a 'detriment' is suffered by an employee by reason of 'detrimental action' by the employer, there is a rebuttable presumption that the detriment was for one of the prohibited reasons set out in s.210, if the necessary underlying factual situation contemplated in any of the sub-sections of s.210 can be established. Here, for example, that underlying factual situation was that Mr Bruce was and is a union official within the meaning of subs.210(1)(a). … 18. It will be seen that 'victimisation' within the meaning of s.210 occurs, and only occurs, where an employee suffers a 'detriment'. Unless and until the fact of a detriment having been suffered is established, the operation of the rebuttable presumption in subs.210(2) is not triggered. The first step, then, is to identify any detriment that may have been suffered by an employee. 19. The finding as a matter of fact that a detriment has occurred is a serious finding. It gives rise to a presumption that the Act has been breached. It is a finding to be made at the civil standard of proof. … 21. Nevertheless a finding that there has been a 'detriment' is one which could not be made on the basis of indirect inferences, and certainly not by assumption. Such a finding could only be made on evidence, and in my view a finding that there has been a detriment is a finding of sufficient gravity that the cautionary words of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 ought be borne in mind in assessing the evidence, a view that is reinforced by the provisions of s.140 of the Evidence Act 1995."
9. We digress to highlight in particular the comments of Commissioner Newall at [16] in the above passages regarding the meaning of "victimisation" to be inferred from the language of s 210(2) of the Act. We are inclined to agree that the section allows for a meaning of "victimisation" to be derived which would accord with an employee "suffer[ing] any detriment as a result of action by the employer…because of a matter referred to in subsection (1)".
10. That is not to suggest that at [78] and [81] of the Decision the Commissioner fell into error. It is indeed the case that there are no specific definitions of the words "victimise" or "victimisation" in the Act, and the Commissioner's reasoning was consistent with the Full Bench in Davis.

Victimisation not made out

1. As noted above at [32], on appeal Dr Bossak relied only on s 210(1)(e) and (j) of the Act.
2. To establish a claim under s 210(1)(e), to the point of requiring the respondent to call evidence to demonstrate the prohibited reason was not a substantial and operative cause of the action, an applicant is required to: 1. prove that: 1. they have claimed a benefit to which they are entitled under an industrial instrument; 2. they have suffered a detriment as a result of an action by the employer; and 1. allege that the detriment suffered is because of the claim to an entitlement.
3. It seems to be beyond dispute that Dr Bossak never held the qualifications to be a "staff specialist" under the Staff Specialists Award. Under the terms of that instrument he had no entitlement to claim any benefit. His salary and conditions were to be "in accordance with" the Staff Specialists Award as a contractual entitlement only. In any event, Dr Bossak relinquished any entitlements arising under, or equivalent to, the Staff Specialists Award when he agreed to the further amendments to his employment terms with effect from 29 October 2010. These matters were identified by the Commissioner at [85] of the Decision.
4. Further, there is no evidence that Dr Bossak "claimed" a benefit under the Staff Specialists Award, at least after 2009, a matter noted by the Commissioner at [86] of the Decision. The highest the evidence appears to come is that he had such benefits (albeit as a result of contract, rather than operation of the instrument), at least until 29 October 2010.
5. We would add that we have serious doubt that the miscellany of matters occurring between 2007 and 2018 on which Dr Bossak relies, singly or in combination, constitute detriment within the meaning of s 210. That is particularly so having regard to the considerations discussed by Commissioner Newall at [19] and [21] of Health Services Union o/b Bruce v Government of New South Wales in respect of NSW Ambulance quoted at [34] above.
6. For these reasons, the challenge in respect of s 210(1)(e) fails at the first step.
7. In respect of s 210(1)(j) Dr Bossak was required to: 1. prove that: 1. he made a complaint about a workplace matter that he considered was not safe or was a risk to health; and 2. detrimental action was taken against him by the Murrumbidgee LHD; and 1. allege that the detrimental action was because of the complaint.
8. It is not in issue that Dr Bossak made a complaint about bullying, which concerned safety or a risk to his health. The complaint was referred to an independent investigator, Dr Smyth, who found, contrary to Dr Bossak's complaint, that: 1. Dr Wood had not engaged in bullying of Dr Bossak (finding 3); and 2. Drs Wood, Fry and Cumberledge had acted reasonably and on legitimate concerns as to Dr Bossak's productivity and the management of the Emergency Department in the interests of patients (findings 4 and 5).
9. Dr Smyth made certain recommendations. The evidence suggests that no action has been taken to implement those recommendations.
10. The Health Secretary will only have contravened s 210(1)(j) if the alleged detriment was visited on Dr Bossak because he made a complaint of the kind described in the section. This requires a causal nexus between the complaint and the unfavourable treatment: Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251; [2010] FCA 284 at [19]. [4]
11. Any action that was taken by the Health Secretary would be as a result of the investigation of the complaint, not as a result of the making of the complaint itself. As a matter of logic the findings and recommendations in the Smyth Report are consequential to the complaint being made, but that is not sufficient. Section 210(1)(j) requires an element of reprisal or retaliation. There is no evidence of that. The only evidence of any action taken by the employer as a result of the complaint was to investigate it in accordance with established policy. That is not detrimental action.
12. We would add this further observation. If Dr Bossak's submissions were accepted, any employee who was the subject of adverse findings in connection with an investigation into a complaint they had made, with no other facts needing to be established, would have enlivened s 210(1)(j) and the presumption in s 210(2). We do not accept that proposition.
13. These observations would provide a sufficient basis on which to refuse leave to appeal. However, we will deal briefly with each of the grounds of appeal on which Dr Bossak relied.

Grounds of appeal

1. Dr Bossak relied on nine grounds of appeal. [5] To avoid undue repetition, and for ease of reference, we will not reproduce all of the grounds here but will deal with each in turn. [6]
2. Similarly, the parties relied on written submissions to which they spoke at the hearing. We do not propose to recite separately those submissions but will address them as necessary during the course of our consideration of the various grounds of appeal.

Grounds 1, 4(b) and 6

1. There is a significant overlap in these grounds and it is convenient that they be dealt with together. These grounds are pleaded in the following terms: "1. The Commissioner erred in not drawing an inference favourable to the Applicant from the non-appearance of persons who could have given evidence for the Respondent but were not called. … 4. The Commissioner erred in his statement of alleged facts and principles upon which he relied, which is both a ground of appeal and a particularisation of grounds 1, 2 and 3, above: … b. In so doing, the Commissioner wrongly failed to draw an inference corresponding to that drawn in Jones v Dunkel, from the non-appearance of witnesses who are available to be called, but were not. The Commissioner assumed what that evidence would be which is not available to him (inter alia. paragraphs 43 and 46). This assumption is, apparently, that due to the passage of time, they would not remember effectively. … 6. At paragraph 45 of page 60, the Commissioner erred when he disregarded the evidence and submissions, as well as the principles of Jones v Dunkel, in accepting as reliable a 'finding' adverse to the Appellant by a Doctor Christie."
2. In his Outline of Submissions Dr Bossak made the following contentions in respect of ground 1: "This [Ground 1] seeks from the Commission a finding that the Commissioner erred in not holding to the detriment of the Respondent, its failure to adduce evidence from the list of persons nominated by the Appellant, who were still employed by or otherwise available to give evidence. … We have no idea what their evidence would have been in this respect, or in any other. We have only the legal principle of Jones v Dunkel, which is that the assumption is that their evidence would not have assisted the case of the Respondent. One or more of them may well have confirmed everything the Appellant is claiming, under cross examination."
3. In the proceedings below, Dr Bossak invited the Commissioner to draw an inference pursuant to the principles espoused in Jones v Dunkel (1959) 101 CLR 298, in respect of the Health Secretary's failure to call witnesses other than Dr Banga. In the Decision the Commissioner summarised Dr Bossak's submissions on this issue as follows: "12. The applicant relied upon the 'reverse burden' in subsection 210(2) of the Act which, according to the submission, had not been discharged by the respondent. Reliance was placed on the 'principles of evidence and judicial discretion' set out in the High Court judgement in Board of Bendigo Regional Institute of Technical and Further Education v Barclay ([2012] HCA 32) as adopted by this Commission in Paula Lee v Ausgrid (No 6) ([2013] NSWIRComm 62 at [64]-[65]). 13. The alleged acts of victimisation against the applicant were perpetrated by 'decision makers' being Dr Shane Curran, Dr Gregory Papworth, Ms Heather Grey, Mr Stephen Crook, Dr Stephen Wood, Dr Jeremy Fry, Dr Andrew Cumberlege, Dr Joe McGirr and Dr Banga as well as 'the Director of the Hospital and the relevant "HR", as decision makers'. 14. The applicant noted that of these 'decision makers', only Dr Banga was called to give evidence and be subjected to cross-examination. Relying upon paragraph [64] in the Lee decision, the applicant submitted that the 'necessity to consider the direct evidence of' the 'decision makers' who were not called as witnesses 'will not be discharged'. The Commission was invited to draw a Jones v Dunkel inference as a result of the failure of the respondent to call these people as witnesses. In support of this submission, the applicant relied upon the judgement of the Federal Court in United Group Resources Pty Ltd v Calabro (No 5) ([2011] 198 FCR 514 at [70]-[75])."
4. At [42] of the Decision the Commissioner rejected these submissions. We do not consider that he committed any error in doing so.
5. In the first place, the Commission is not bound by the rules of evidence. Section 163 of the Act is in these terms: 163 Rules of evidence and legal formality (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (2) (Repealed)
6. Further, counsel for the Health Secretary drew our attention to Manly Council v Byrne and Anor [2004] NSWCA 123 in which Campbell J, with whom Beazley JA and Pearlman AJA agreed, stated as follows in respect of the rule in Jones v Dunkel: "51. Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn. 52. Even though a jury should be directed about the availability of the inferences which are recognised by Jones v Dunkel, it is entirely a matter for the jury whether it actually draws one, or both, of those inferences: Cafe v Australian Portland Cement Co Pty Ltd (1965) 83 WN (NSW) (Pt 1) 280 at 286, 287. Applying this principle to the situation of a trial by judge alone, there is no compulsion on the trial judge to draw either of the Jones v Dunkel inferences."
7. The terms of s 163 of the Act speak for themselves. In addition, as Manly Council makes clear, there was no obligation on the Commissioner to draw the inferences sought by Dr Bossak, even in the absence of s 163. The Decision explains his rationale in declining to do so.
8. Further, the inferences available under Jones v Dunkel are outlined at [51] of Manly Council. They do not permit an inference that the evidence would have been adverse to the party's case. They certainly do not allow the Commission to speculate, as Dr Bossak's submissions did, that the evidence of the Health Secretary's witnesses may have positively assisted his case.
9. There is, however, a further consideration deriving from the authorities referred to at [33] and [34] above. Dr Bossak's submissions regarding Jones v Dunkel draw heavily on the presumption (or "reverse onus") contained in s 210(2). In short, it was submitted that to rebut the statutory presumption it would be necessary to consider the direct evidence of the decision-maker as to their state of mind, intent and purpose: Lee v Ausgrid (No 6) (2013) 237 IR 63; [2013] NSWIRComm 62 at [64].
10. Dr Bossak adduced a considerable amount of evidence of instances where he asserted that he was treated adversely. He posited that the only explanation that he could advance was his entitlement to be paid and receive the conditions under the Staff Specialists Award, falling within s 210(1)(e), or that he had made a complaint against Dr Wood in 2018, so as to attract s 210(1)(j). During the hearing of the appeal Mr McArdle summarised Dr Bossak's position in these terms: [7] "What is the explanation for something happening? If something has happened, why is it so? There must be an explanation and there's only one offered. That's what we say."
11. However, Dr Bossak's submissions, on appeal and in the proceedings below, do not involve a proper application of the Commission's jurisdiction under Ch 5 Pt 1 of the Act. Evidence of unfavourable treatment, real or perceived, is not by itself sufficient to enliven the presumption in s 210(2) of the Act. It is necessary to establish that the unfavourable treatment amounts to victimisation within the meaning of the legislation.
12. Simply positing an "explanation", with nothing more, does not in our view attract the presumption in s 210(2) of the Act. This is in essence what the Commissioner found. The conduct of which Dr Bossak complained either did not cause him to suffer any detriment (at [83] of the Decision) or in any event could not be attributed to any of the proscribed reasons in s 210 (at [45], [48], [58], [64], [65], [67], [69], [71], [76], [84] and [85] of the Decision). For the reasons set out at [37]-[48] above, we agree with those findings.
13. It is a recurrent theme in Dr Bossak's appeal that he takes exception to the Commissioner having made findings on the evidence with which he disagreed. Whether put on the basis of Jones v Dunkel or some other ground, the premise which underpinned the arguments was that the Health Secretary bore the onus of explaining its treatment of Dr Bossak since 2007. This is incorrect. The Health Secretary is not put to the task of making out its claims of shortcomings in Dr Bossak's performance or behaviour unless and until the presumption in s 210(2) is enlivened, and then only to the extent necessary to support the decision maker's evidence that these were not substantial and operative reasons.
14. It follows that to the extent that Dr Bossak relied on the (apparently assumed) operation of that presumption to support his submissions in respect of Jones v Dunkel, he was misguided.
15. Further, as the Health Secretary submitted, Dr Bossak cannot rely on Jones v Dunkel "to fill gaps in the evidence or to convert conjecture into evidence".
16. Finally, and specifically in relation to appeal ground 6, it is necessary to put the Commissioner's findings at [45] of the Decision into context. In that paragraph he summarised the "documented evidence" regarding the Clinical Case Review conducted by Dr Christie in 2007 to support his conclusion that the events of that year did not amount to victimisation under the Act. That Dr Bossak took exception to Dr Christie's conclusions is not of itself evidence of such victimisation.

Grounds 2 and 4(a)

1. Again, there is overlap in these grounds and it is convenient that they be dealt with together. These grounds are pleaded as follows: "2. The Commissioner erred in regarding 'victimisation' as provided for in the Act as a single event, and not that it may also be a pattern of behaviour, and thus disregarded the judgments of this Commission, including in the matters of Davis v Amalgamated Television Services Pty Ltd [1998] NSWIRComm 289 (22 June 1998), and Lee v Ausgrid (No 6) [2013] NSWIRComm 62. ... 4. The Commissioner erred in his statement of alleged facts and principles upon which he relied, which is both a ground of appeal and a particularisation of grounds 1, 2 and 3, above: a. At paragraphs including 41 to 48 from pages 59 to 61 the Commissioner disregarded Davis v Amalgamated Television Services and Lee v Transgrid, in rejecting the proposition that victimisation can be a pattern of behaviour over a period, and not just a single event. He thus disregards all of the authorities establishing the jurisdiction of the Commission, which hold this to be so, as presented at the hearing."
2. These grounds misapprehend the Decision. Nowhere does the Commissioner reject the proposition that victimisation can be a pattern of behaviour. Nor does the Commissioner find that victimisation can only be a single event.
3. To the contrary, at [44] of the Decision the Commissioner allows for the possibility of a continuum of behaviour, albeit finding no such continuum in this case. At [82] of the Decision (reproduced at [26] above) he expressed the view that the events of 2007, 2009 and 2010 did not "separately or cumulatively" amount to victimisation.
4. The submissions otherwise made by Dr Bossak in respect of these grounds largely challenge the Commissioner's factual findings and traverse similar ground to that dealt with under grounds 1, 4(b) and 6. We will not repeat our earlier findings on those grounds.

Ground 3

1. This ground is pleaded as follows: "3. The Commissioner erred in relying on the matter of Caleta Trpimir v Northern Sydney Area Health Service [1995] NSWIRComm 38 without the Appellant being heard as to the distinction between the relevant circumstances of that matter, and this. Such distinction exists. Particulars i. That matter was a one off occurrence. This was a pattern of behaviour. ii. There was conflict between the union acting for the Applicant in that matter, and the Applicant. In this, the Appellant remains a member in good standing of his Association. iii. There was doubt cast on the evidence of the Applicant in that matter. The evidence of the Appellant in this matter, has not been challenged for its truthfulness. iv. There has been no attempt to renege on a single agreement pertaining to a single event in this case. Rather, this case, as submitted, is that the series of events constituted in their whole, a pattern, and reflected the victimisation."
2. The Commissioner referred to Caleta Trpimir v Northern Sydney Area Health Service [1995] NSWIRComm 38 at [49] of the Decision. Having reproduced extracts from the Full Bench's decision, the Commissioner stated as follows: "50. The facts in the present matter are not on all fours with those in Trpimir. That case involved an application for reinstatement which was settled by acceptance of an offer of re-employment with certain conditions. In the present matter the employment of the applicant had not been terminated. Nevertheless, a dispute had arisen over the terms of the applicant's employment. 51. A settlement of the dispute was negotiated between GSAHS and ASMOF and the applicant expressly agreed to those terms of settlement. He now seeks to renege on that agreement 12 years after the event and claim that he had been victimised by his employer. 52. Borrowing from the Full Bench, 'it would not do justice between the parties' and 'it would be unconscionable to permit the [applicant] to take the benefit of that agreement and to ignore the conditions which were clearly attached to it'. The applicant's claim that the settlement terms to which he agreed 12 years ago constituted victimisation of him, falls precisely within the type of conduct which the Full Bench in Trpimir refused to allow."
3. In his Outline of Submissions Dr Bossak contended as follows: "There was no reference that we can find in the transcript to the matter of Trpimir v North Sydney Area Health Service (or if there was, there was no emphasis placed on it) before the Commissioner. Had we been given the chance to be heard on this precedent (which was given materially significant weight, by the Commissioner) we would have made points above as to the distinctions. Is intimidation into 'take it or leave it' reductions in circumstance, an 'agreement', for example? We would have made the points that are particularised in the Notice of Appeal."
4. The Health Secretary submitted as follows: "66. First, there is no authority cited by Dr Bossak for the proposition that the Commission must alert each party to any case that is to be cited in its decision. That is because such an obligation would be impractical and overly burdensome. The Commission cannot 'shut its eyes' to the body of law known to it, or available to it. To suggest that the Commission is limited to considering cases brought to its attention by parties is wholly unsupported by authority. 67. Second, the Commissioner himself identified that the present case is 'not on all fours' with [Trpimir]. The principle which the Commissioner 'borrowed' from the Full Bench and applied to the present case (as noted in [52] of the Decision) is plainly correct. 68. Third, the Notice of Appeal sets out the distinction between the present case and [Trpimir]. Presumably, if Dr Bossak was given an opportunity to be heard, those are precisely the matters he would have brought to the Commissioner's attention. Those matters, however, have no bearing on the point of principle which the Commissioner extracted from [Trpimir]. That is, it is improbable that the matters raised by Dr Bossak now would have impacted on the Commissioner's reliance on that authority. That is to say, any deficiencies in the procedural fairness afforded to the Appellant [were] of no consequence. Any denial of procedural fairness (which is in any event denied) did not have a bearing on the outcome."
5. The Health Secretary also drew our attention to the decision of the High Court in Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82 at [104], in which the Court stated that a breach of the rules of natural justice need not warrant relief on review if the breach could have had no bearing on the outcome below.
6. It suffices to say that we accept the submissions made by the Health Secretary.

Ground 4(c)

1. This ground is pleaded as follows: "4. The Commissioner erred in his statement of alleged facts and principles upon which he relied, which is both a ground of appeal and a particularisation of grounds 1, 2 and 3, above: … c. This sits contrarily with the acceptance of the evidence of Dr Banga, which was hearsay evidence about events of 2009 (paragraph 33 and following and paragraph 53 and following). Dr Banga was not present in 2009, only being employed in about 2017, but his evidence as to occurrences since 2007, for which he was not present, is relied on, and accepted."
2. We do not consider that this ground discloses error. Dr Banga's evidence of the events in 2009 comprised documents held by the Murrumbidgee LHD. It did not seem to be in dispute, either in the proceedings below or on appeal, that those documents were "business records" within the meaning of s 69(1) of the Evidence Act 1995 (NSW). As such they form an exception to the hearsay rule by virtue of s 69(2) of the Evidence Act.
3. While this would be enough to dispose of this ground of appeal, we reiterate that in any event by virtue of s 163 of the Act the Commission is not bound by the rules of evidence.

Ground 5

1. This ground is pleaded as follows: "5. At paragraph 29 page 56, the Commissioner implies consensus as to a matter that was a fundamental element of the dispute between the parties. Particular i. Prohibition by the Respondent, as shown in the evidence, being imposed on the Appellant obtaining the Fellowship of the College of Emergency Medicine."
2. Dr Bossak misapprehends the Decision. At [29] of the Decision the Commissioner stated as follows: "29. Part C Schedule 2 of the award lists the Australasian College of Emergency Medicine ('ACEM') amongst the list of recognised Australasian Specialist Colleges. It is common ground that the applicant has never held a Fellowship of that college ('FACEM')."
3. There is indeed no dispute on the evidence that Dr Bossak has never held a FACEM. Dr Bossak never argued otherwise. There is no error.

Ground 7

1. This ground is pleaded as follows: "7. The Commissioner erred in holding that none of the criteria of Section 210 were enlivened by the facts of this matter. Particulars i. Section 210(1)(e) and (j) in particular, and as pleaded generally. ii. Stand down of the Appellant for 5 months in 2007, without evidence of shortcoming of any kind, and his return being permitted only if the Appellant accepted reduced pay and conditions. In the absence of evidence to the contrary, the inference should have been taken that the reason was to be found in the 'solution', attested to in evidence, being him claiming the benefit of the industrial instrument to which he had to that time been entitled. iii. Further curtailments of the Appellant, as pleaded and identified in submissions and evidence, in the complete absence, despite the opportunity to produce them, of any particularisation of reasonable substance, of claimed shortcomings of the Appellant. iv. The Commissioner misconstrued the evidence (paragraph 69) as being that there was a claimed immediate and finite stimulation of the conduct of Doctors Wood and Banga arising in 2016 and 2017, by the issue of the entitlements (Section 210(1)(e)) from which he had been removed, when that was not the case pleaded. v. The Commissioner also disregarded the clear claim of connection between complaints made as provided by Section 210(j) and the events in evidence."
2. In response to this ground it is sufficient to repeat [37]-[48] above.

Ground 7A

1. This ground is pleaded as follows: 7. The Commissioner made findings without sufficient evidence. Particulars i. The Decision states that there were 'concerns about throughput' (paragraph 67). No evidence was given of suboptimal performance other than the hearsay evidence of Dr Banga. The personal records of the Appellant, which showed that there was no deficiency in 'throughput', were disregarded. ii. The Decision states that complaints of the Appellant in 2012 were 'investigated' (para 66) but disregards the evidence that the Appellant was not interviewed. iii. Paragraph 64, the Commissioner states that there is 'not the slightest shred of evidence' that the serial incidents erupting since 2007 had a connection to Section 210, where the only evidence was that of the Appellant, which was to that effect. The only other evidence to the contrary at all, was the hearsay evidence of Dr Banga, who commenced in 2017."
2. In response to this ground we repeat [60]-[64] above.
3. Specifically and further in relation to "particular" (iii), we reiterate that there is no evidence that any unfavourable treatment of Dr Bossak since 2007 "had a connection" to s 210 of the Act. There were only ever his assertions to that effect. As already noted, conjecture is not evidence.

Ground 8

1. This ground is pleaded as follows: "8. The Commissioner disregarded evidence with respect to the Smyth Report. Particular i. At paragraph 73 and following, the Commissioner disregarded the evidence of the Smyth Report presented in the hearing, being that it was altered without explanation between one draft and another, so as to contain an element unfavourable to the Appellant. ii. The Commissioner gave weight to the 'finding' by the Smyth report that reflects the groundless assertions of those who were not called to give evidence, which are arrived at without them being specified to the Appellant, or presented to the Appellant by Dr Smyth, other than in the final report."
2. There is no basis for the assertion that the Commissioner "disregarded" evidence concerning the Smyth Report. At [5] of the Decision he reproduced the affidavit of Dr Bossak read in the proceedings below. Paragraph 70(g) of that affidavit made specific reference to the alteration to the Smyth Report. Similarly, Dr Bossak's submissions regarding the Health Secretary's reliance on an "altered report" are reproduced at [17] of the Decision.
3. Further, we repeat [60]-[64] above. Ground 8 is once again nothing more than a grievance that the Commissioner has accepted evidence unfavourable to Dr Bossak, without Dr Bossak having established in the first place that the treatment to which he objects was victimisation within the meaning of the Act. That is, he has not demonstrated that any alteration to the Smyth Report or any findings in that report enliven the Commission's jurisdiction.

Leave to appeal

1. In his Application for Leave to Appeal and Appeal, Dr Bossak contended that leave to appeal should be granted because: 1. the following issues "are of general public significance…[and] go beyond only the interests of the immediate parties to the matter": 1. whether the Act refers to a single event, rather than a pattern of behaviour, or either, depending on circumstance, when providing for protection against victimisation; 2. whether, in exercising the Commission's discretion pursuant to s 163 of the Act, hearsay evidence is to be preferred to direct evidence; 3. whether or not in exercising its discretion pursuant to s 163 of the Act the Commission should take account of the principles arising from Jones v Dunkel; 4. whether in exercising its discretion pursuant to s 163 of the Act the Commission may rely on a precedent that was not called to its attention by either party, and on which neither party was heard; 5. whether misconstruction of the evidence or the submissions, or both, by a single member should lead to a finding on appeal by the Commission to overturn that decision; and 6. whether misconstruction of the provisions of the Act by a single member should lead to a finding on appeal by the Commission to overturn that decision; and 1. the Decision raises issues as to the application of s 163, especially but not limited to s 163(1)(b) and (c).
2. For all of the reasons set out above, we do not consider that these grounds have been established.

Endnotes

1. By s 116H of the Health Services Act 1997 (NSW) the Health Secretary is, for the purposes of these proceedings, taken to be Dr Bossak's employer
2. The Policy Directive applicable at the time of the complaint was PD2011_018, "Bullying - Prevention and Management of Workplace Bullying in NSW Health". It was replaced by PD 2018_016. It adopted the Safe Work Australia definition of workplace bullying which defined workplace bullying in these terms, Annexure PB 53 to the statement of Dr Pankaj Banga at page 163-4.
3. Tcpt p 27(3-5)
4. Barclay was ultimately upheld on appeal: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32
5. The Application for Leave to Appeal and Appeal contained two grounds numbered "7". In his Outline of Submissions Dr Bossak renumbered those grounds "7" and "7A" respectively, a convention which the Health Secretary adopted in her Outline of Submissions. We will apply the same approach.
6. As a drafting observation, we note that the grounds of appeal are reproduced in this decision verbatim, other than for replacing underlining with italics.
7. Tcpt pp 20(50) - 21(2)

Amendments 19 February 2020 - Name correction DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2020