Bourot v NSW Department of Public Works and Services & anor

SECOND RESPONDENT: Central Sydney Area Health Service

CATCHWORDS: Application for declaratory relief - section 154 - applicant was medically retired from the public service - applicant attempted to rely on detailed examination of circumstances leading up to medical retirement - whether Court had jurisdictional ground to make declarations. HELD: No jurisdictional grounds against second respondent - application of Full Bench in Kerrison substantially limited applicant's evidence - decision to refer applicant for medical examination had no impact on validity of termination of applicant's employment - inappropriate to exercise discretion - proceedings dismissed - leave granted for argument about effective termination date.

Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Public Sector Management Act

Ainsworth v Criminal Justice Commission (1991- 1992) 175 CLR 564 Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations [1997] NSWIRComm 185 FAI Insurances Limited v Winneke (1981-1982) 151 CLR 342 CASES CITED: Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421. Gardner v Dairy Industry Authority of NSW (1977) 18 ALR 55 Kerrison v New South Wales Technical and Further Education Commission [2003] NSWIRComm 76 New South Wales Technical and Further Education Commission v Kerrison [2004] NSWIRComm 369

HEARING DATES: 03/07/2006, 04/07/2006, 05/07/2006, 07/07/2006 & 10/07/2006

APPLICANT: Mr G Crewdson as agent

LEGAL REPRESENTATIVES: RESPONDENTS: Mr S Benson of counsel SOLICITOR: Ms M Rizzo I V Knight, Crown Solicitor

• 31 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Bourot v New South Wales Department of Public Works and Services and anor

Application for declaratory relief under s 154 of the Industrial Relations Act 1996

1 These are proceedings brought by the applicant Pascale Bourot against the respondents, the New South Wales Department of Public Works and Services and Central Sydney Area Health Service, seeking certain declarations under s 154 of the Industrial Relations Act (1996). 2 S 154 is in the following terms:

154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought 3 It will be observed that s 154 gives this Court jurisdiction and power to make binding declarations of right limited, however, to those that relate to a matter in which the Industrial Relations Commission, either as the Tribunal or as the Court, has jurisdiction. 4 Accordingly, it is necessary to identify the jurisdiction of the Tribunal or Court which is invoked and which it is claimed by the applicant to have the necessary nexus to enable a declaration of right to be made. 5 The nature of declaratory relief and the declaratory process was described succinctly by Mason CJ, Dawson, Toohey and Gaudron JJ in the High Court of Australia in Ainsworth v Criminal Justice Commission (1991- 1992) 175 CLR 564 at 581 in the following terms:

"It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '[i]t is neither possible nor desirable to fetter…by laying down rules as to the manner of its exercise.' However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties.'" (Footnote references omitted.) 6 In the context of "abstract or hypothetical questions" it is important to note also the comments of Gibbs J (as his Honour then was) in the High Court of Australia in Forster v Jododex Aust Pty Ltd (1972) 127 CLR 421. At 437, his Honour said:

"It is neither possible nor desirable to fetter the broad discretion given by s 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rule summarised by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd (1921) 2 AC 438 (at p 488) should in general be satisfied before the discretion is exercised in favour of making a declaration: 'The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.'" 7 To the same effect is comment by Mason J (as his Honour then was) in the High Court of Australia in Gardner v Dairy Industry Authority of NSW (1977) 18 ALR 55. His Honour (with whose reasons Jacobs and Murphy JJ agreed) said, "It is one thing to say that declaratory relief will be granted against the Executive or a statutory authority in relation to existing rights and transactions. It is quite another thing to say that it should be granted in respect of past transactions under legislation which has been repealed or amended when the Court's declaration will produce no foreseeable consequences for the parties." (At 69). 8 In Gardner, albeit in dissent as to the overall result, Barwick CJ said,

"The power of the Supreme Court to make declarations of right is discussed in the judgment of Gibbs J in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421. But that discussion is based upon the premise not expressly enlarged upon that the applicant for a declaration has, or would, upon the construction of the statute or instrument in question have at some time and in some circumstances, a right, though it might not presently be enforceable. Whether or not it is appropriate to declare that right at any given time is a matter within the discretion of the court. But, in my opinion, there is no discretion to declare the existence or non-existence of a situation which does not give rise to a right in the applicant." (At 60) 9 I emphasise the significance of the qualifications that affect the exercise of discretion in the grant of declaratory relief that are contained within the extracts from the authorities referred to above. They introduce two caveats on the exercise of discretion to grant relief. One relates to whether or not the question "is purely hypothetical." The other refers to the fact that the declaration will produce no foreseeable consequences for the parties. It is significant that the declaration must go to a matter that will have some legal consequences for the parties. As will be seen, this will be a matter of great significance for the applicant in terms of some of the declarations that she seeks. 10 I should add for completeness that it does not matter that there is not in existence any discrete and separate proceedings which have invoked the jurisdiction of the Tribunal or the Court in order to found the jurisdiction and power to make a declaration under s 154. All that is necessary is that the relevant jurisdiction exist. (See Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations [1997] NSWIRComm 185). 11 The applicant sought four declarations which were in the following terms:

a) That Pascale Bourot is and at all times since 1987 has been employed by the NSW Department of Public Works and Services and its predecessors. b) That the decision to refer Pascale Bourot for a Fitness to Continue Examination by the GMO on / or about 25 June 1998 by officers of the Department of Public Works and Services is void, invalid and of no effect. c) That the purported retirement of Pascale Bourot on or about the 2 September 1998 by the GMO and /or officers of the NSW Department of Public Works and Services is void, invalid and of no effect. d) That Pascale Bourot be entitled to be paid all emoluments pertaining to her position as a State Mail Service Officer (Teams) Level I (Mail Sorter) together with interest thereon and to retain all leave and other entitlements and interest thereon. 12 The application relied on a number of grounds and reasons and contained a number of particulars. Because, ultimately, I severely circumscribed the grounds and reasons upon which the applicant was entitled to rely and the factual basis for the applicant's claim, it is important that the grounds and reasons and particulars contained in the application filed by her be set out in all of their detail. They are as follows: E. Grounds and reasons

The applicant Pascale Bourot was on 25 August 1987 validly and lawfully appointed to a full time permanent position with the NSW Public Service pursuant the Public Service Act 1979 and Regulations.

The Public Service Act 1979 and Regulations have now been superceded by the Public Sector Management Act 1988 and Public Sector Management (General) Regulation 1996.

The applicant's general terms and conditions of employment are regulated by provisions of the Public Sector Management Act and Regulation, and (since 28.10.97) by the Crown Employees (Public Service Conditions of Employment 1997) Award.

At the relevant time covered by this application, the applicant was employed as a Mail Sorter with the State Mail Service (SMS) a unit within the NSW Department of Public Works and Services.

Since 1994 the applicant's particular terms and conditions of employment have been regulated by the State Mail Service Enterprise Agreement EA 96/94.

In May 1998, the applicant made a complaint to SMS management about sexual harassment in her workplace - in conjunction - with the operation of the SMS Enterprise Agreement.

The applicant had made other complaints prior to May 1998 to SMS Management concerning breaches of Occupational Health and Safety, the operation of the SMS Enterprise Agreement, and the conduct of Management.

SMS Management failed to deal with the applicant's complaints in accordance with the mandatory grievance procedures set out under the SMS Enterprise Agreement and instead subjected her to various forms of personal intimidation and harassment.

These actions of SMS Management caused the applicant to suffer increasing levels of physical and emotional stress from May 1998 onwards and this led to the applicant lodging a Workers Compensation Claim.

Between May and June 1998, SMS Management in consultation with Management in the Department of Public Works and Services decided to refer the applicant for a fitness to continue "examination" at HealthQuest (the GMO)

On 2 September 1998 HealthQuest issued a "Retirement Certificate" in the name of the applicant.

SMS and DPWS Management have subsequently relied on this HealthQuest Certificate to treat the applicant's employment as terminated pursuant sec 36 of the Public Sector Management Act, effective as of 2 September 1998.

Sec 36 of the Public Sector Management Act 1988 confers statutory power on the NSW Governor to cause an officer to be retired on the recommendation of the appropriate Department Head.

Any exercise of power is discretionary and is qualified by a requirement to make findings first of all as set out in paragraphs 36(a) and 36 (b).

No exercise of power under section 36 of the Public Sector Management Act 1988 has been made by the Governor retiring the Applicant from her employment.

No recommendation has been made by the appropriate Department Head to retire the Applicant from her employment.

No delegation has been evidenced in writing as per Sec 49 of the Interpretation Act 1987 allowing any officer in SMS or DPWS to exercise powers conferred on the Governor or the appropriate Department Head pursuant s 36 of the Public Sector Management Act 1988 with regard to the Applicant's employment.

Any such exercise of power to the extent that it relies upon the retirement Certificate issued by HealthQuest on 2 September 1998 is invalid since neither HealthQuest nor any medical practitioner practicing therein has statutory power, authority, or right to terminate or alter the applicant's employment.

Any such exercise of power to the extent that it relies upon the Applicant not proceeding with an appeal to the Medical Appeals Panel is invalid since the Medical Appeals Panel has no statutory authority to conduct any appeal.

All decisions made in relation to the Applicant's employment by officers of SMS, DPWS and HealthQuest are invalid on the ground of bad faith, improper purpose, and denial of natural justice/ procedural fairness.

The decisions are invalid on grounds of improper purpose / bad faith, because the statutory power conferred by Sec 36 of the Public Sector Management Act and cl 17 of the Regulations should be for a purpose consistent with the Occupational Health and Safety obligations of the Department Head and not as in this case, contrary to those obligations.

The decisions are invalid for want of Natural Justice / Procedural Fairness because at no time was the Applicant given prior notice of the nature or the content of the claims being made against her or given any opportunity to respond to those claims before the decisions were made.

None of the decisions purportedly terminating the Applicant's employment were made on findings that she was unfit or incapable of discharging the duties of her office and no adjustments were considered in her workplace that would have allowed the Applicant to resume duties.

And even if it were determined that the Applicant had been found medically unfit to perform her duties on 2 September 1998 any termination of her employment, on that ground, would be prohibited by section 99 of the Industrial Relation Act 1996 within six months of her lodging her Workers Compensation Claim on 29 June 1998.

The applicant Pascale Bourot was on 25 August 1987 appointed (on probation) an employee with the Government Supply Department as a Courier Operator pursuant provision of the Public Service Act 1979 and Regulations (now superceded by the Public Sector Management Act 1988 and Regulations).

The Applicant's permanent appointment to a position as a Courier Operator with the Government Supply Department was confirmed by His Excellency the Governor with the advice of the Executive Council and upon the recommendation of the Appropriate Department Head by public notice in the New South Wales Government Gazette No 65 on 26 May 1989.

On 12 May 1992 the Applicant was transferred from a position as Driver in Delivery to that of Mail Sorter within the State Mail Service (SMS) a unit within the Department of Public Works and Services (DPWS).

On 28 March 1994, the Industrial Relations Commission certified and registered a State Mail Service Enterprise Agreement EA 96/94 signed by Colin Gellatly on behalf of PEIRA and Maurice O'Sullivan on behalf of the PSA.

The Applicant's particular terms and conditions of employment as a Mail Sorter with SMS became subject to the operation of the SMS Enterprise Agreement while her general terms and conditions of employment remained covered by the Public Sector Management Act and Regulations.

The SMS Enterprise Agreement contains a mandatory dispute resolution procedure incorporating a Grievance/Dispute Resolution Policy issued 26 April 1993 by the Managing Director of the Commercial Services Group DPWS.

This Policy includes an assurance that "Staff raising grievances and disputes and assisting in the investigation of such matters will be protected from victimisation or intimidation. "

On 8 December 1997 the Applicant raised a grievance/dispute with SMS management by organising and presenting a petition signed by staff about ongoing problems with the Air Conditioning System and its adverse effects on staff health and working conditions.

In response to this grievance dispute, SMS Management ignored the mandatory resolution procedures as set out in the SMS Enterprise Agreement.

On 1 May 1998 the Applicant raised a further grievance by reporting to SMS Personnel Officer - Christine Turner - the threat of workplace sexual harassment, in conjunction with a teamtraining program set up under the Enterprise Agreement.

In response Ms Turner, and SMS Management again ignored the Enterprise Agreement grievance dispute resolution procedures thereby causing the Applicant to suffer physical and emotional stress.

In further response to the Applicant raising grievances/disputes, SMS Management, after consultation with DPWS Human Resources Management, secretly determined to have the applicant assessed by HealthQuest (The GMO) for her fitness to continue in employment.

On 25 June 1998 SMS Personnel Officer - Ms Turner - wrote to HealthQuest formally requesting a Fitness to Continue Examination of the Applicant and in support of this provided HealthQuest with inaccurate, misleading and prejudicial information that misrepresented the applicant and the problems in the workplace.

In making this decision and taking this action SMS Management failed to observe the rules of Natural Justice / Procedural Fairness with regard to the Applicant.

SMS Management also failed to observe the grievance resolution procedures in their Enterprise Agreement, their own Sick Leave Policy and the guidelines set out in the Premiers Memorandum 98-1 issued 13 January 1998 (in relation to medical assessments).

SMS Management acted outside of any lawful authority, power or right, conferred upon a Department Head or an appropriate delegate under clause 17 of the Public Sector (General) Regulations 1996.

On 29 June 1998 the Applicant lodged a Workers Compensation Claim with SMS Personnel Officer -Ms Turner - for work-related depression and anxiety.

On 23 and 24 July 1998 the Applicant attended appointments at HealthQuest as directed by SMS Management, and provided HealthQuest with information about problems in the workplace.

On 24 July 1998 HealthQuest wrote to SMS Management advising that the Applicant was not to resume duties. A Full Conduct and Services Report on the Applicant was requested.

On 26 August 1998 a Conduct and Services Report on the Applicant was completed by SMS Operational Coordinator - Christopher Galea - and forwarded to HealthQuest.

In taking these actions both HealthQuest and SMS Management failed again to observe the rules of Natural Justice / Procedural Fairness and the relevant guidelines as set out in the Premiers Memorandum 98-1.

Furthermore the Conduct and Services Report contained more inaccurate, misleading and prejudicial information that misrepresented the Applicant and the problems in the workplace.

On 2 September 1998 HealthQuest acted upon the information contained in the Conduct and Services Report and issued a Retirement Certificate in the name of the Applicant.

In making this decision HealthQuest failed to observe the rules of Natural Justice / Procedural Fairness with regard to the Applicant.

Officers of SMS and DPWS Management then took a series of administrative actions purporting to terminate the applicant's employment.

On 15 Oct 1998 a Staff Variation advice sheet was filled out by SMS Personnel Officer - C Turner - giving as variation reason: "Medical Retirement" and stating "No appeal lodged - telephoned Medical Appeals Panel 15.10.98. "

This staff variation sheet was never completed by an authorising officer.

On 26 Oct 1998 the Applicant wrote to Officers of DPWS and SMS clearly stating her opposition to the process and the reasons for not signing any "Waiver of a Right of Appeal against the HealthQuest decision."

On 5 February 1999 the DPWS included the Applicant's name in the New South Wales Government Gazette No 16 Public Notices Section under the heading "Medical Retirements".

This stated "The Following Medical Retirements from the Public Service are hereby notified pursuant to section 36 of the Public Sector Management Act 1988 under which the medical retirements were effected and/or the last day of service being indicated within brackets."

The date beside the name Pascale Bourot was 2 Sept 1998.

Details of the money owing to the Applicant will be provided by way of particulars. In short the claim is for salary and entitlements accrued from 2 September 1998 to date, less amounts paid by her employer and by Centrelink.

13 It was established by the evidence and it was common ground that the applicant had been employed by the NSW Department of Public Works and Services initially as a courier and later as a mail sorter within the State Mail Service operated by the Department. The Department claimed that the applicant was medically retired from the public service with effect from 2 September 1998. 14 The first declaration sought would have impacted upon the termination of that employment. That is, if granted, it would have had the effect of nullifying the termination of employment that the respondent Department said had been effected. The last declaration sought was obviously consequential thereon because it claimed certain payments of monies based on continuity of employment. 15 The third declaration is, in essence, the converse of the first. That is, one which is directed to the termination of employment and which it seeks to impugn. 16 The second declaration sought is directed to a step taken by the respondent Department as part of the process by which the medical termination of the applicant's employment was brought about. It is directed specifically to a decision to refer the applicant for a medical examination by the Government Medical Officer to determine her fitness to continue in employment such examination instigated by officers within the Department. The referral itself was said to be void, invalid and of no effect and a declaration was sought accordingly. 17 As I understand the applicant's case, the respondent Central Sydney Area Health Service operated the organisation HealthQuest which entity carried out a medical assessment of the applicant and made a determination concerning her fitness to continue in employment. 18 As I understand the applicant's claim, it is that the jurisdiction of the Commission, either in its manifestation as an Industrial Tribunal or as the Court which attracts entitlement to seek a declaration under s 154 as against the second respondent, is the jurisdiction of the Court to deal with prosecutions for breach of the Occupational Health and Safety Act and unspecified jurisdiction, presumably of the Tribunal, under the provisions of the Anti-Discrimination Act. 19 The applicant relied on s 26 of the Occupational Health and Safety Act 1983 which was in the following terms:

(1) An employer shall not dismiss an employee or injure an employee in his or her employment or alter his or her position to his or her detriment by reason of the fact that the employee: (a) makes a complaint about a matter which he or she considers is not safe or is a risk to health, (b) is a member of an occupational health and safety committee established pursuant to section 23, or (c) exercises any of his or her functions as such a member. Maximum penalty: 250 penalty units in the case of a corporation or 150 penalty units in any other case.

(2) In proceedings for an offence under subsection (1), if all the facts constituting the offence other than the reason for the defendant's action are proved, the onus of proving that the dismissal, injury or alteration was not actuated by the reason alleged in the charge shall lie on the defendant. (3) Where an employer is convicted by a court of an offence under subsection (1), the court may order: (a) the employer to pay the employee a specified sum by way of reimbursement for the salary or wages lost by the employee, and (b) that the employee be reinstated in his or her old or a similar position. (4) An employer shall give effect to an order of the court under subsection (3). Maximum penalty: For each day the order is not given effect to, 10 penalty units. 20 That Act has been replaced by the Occupational Health and Safety Act 2000. The equivalent provision is s 23 which is in the following terms:

23 Unlawful dismissal or other victimisation of employee (1) An employer must not dismiss an employee, injure an employee in his or her employment or alter an employee's position to his or her detriment because the employee: (a) makes a complaint about a workplace matter that the employee considers is not safe or is a risk to health, or (b) is a member of an OHS committee or an OHS representative, or (c) exercises any functions conferred on the employee under Division 2 (whether as such a member or representative or otherwise). Maximum penalty: (a) in the case of a corporation (being a previous offender) - 375 penalty units, or (b) in the case of a corporation (not being a previous offender) - 250 penalty units, or (c) in the case of an individual (being a previous offender) - 225 penalty units, or (d) in the case of an individual (not being a previous offender) - 150 penalty units.

(2) In proceedings for an offence against this section, if all the facts constituting the offence other than the reason for the defendant's action are proved, the onus of proving that the dismissal, injury or alteration was not actuated by the reason alleged in the charge lies on the defendant. Note . See sections 210 (j) and 213 of the Industrial Relations Act 1996 for remedies (such as reinstatement or reimbursement) arising from a breach of this section. 21 The applicant was represented in the proceedings by an unpaid agent, Mr G Crewdson, who, as I understand it, has no legal qualifications. Mr Crewdson did not specify the way in which jurisdiction was given to the Tribunal or the Court so as to attract jurisdiction under s 154 by reference to s 23 of the Occupational Health and Safety Act 2000. In any event, that section is directed to employers only and, in my opinion, can have no relevance to any participation by the second respondent in a process by which the applicant's employment was ultimately terminated. 22 I am unable to determine that there is any jurisdictional basis upon which these proceedings may be maintained by the applicant against the second respondent. Certainly, I have not been referred to anything within any relevant Anti-discrimination legislation that would create the necessary jurisdiction under s 154 of the Act. 23 The proceedings against the second respondent must be dismissed. 24 The jurisdictional basis for the declaration sought against the first respondent was said by Mr. Crewdson to be s 106 of the Industrial Relations Act 1996, those provisions of that Act which deal with unfair dismissal, the Occupational Health and Safety Act legislation and the Anti-Discrimination legislation. I shall return to each of these matters shortly. 25 At the commencement of the hearing, the applicant sought to have admitted into evidence a detailed affidavit covering the period of her employment with the first respondent which traversed many incidents of the kind referred to in the particulars contained within the Application for Declaration which I have set out above. These included the raising of grievances about problems with air conditioning and adverse effects on the applicant's health, threats of sexual harassment, physical and emotional stress suffered by the applicant within the workplace, the lodging of a claim for worker's compensation benefits for work related depression and anxiety, and the like. Furthermore, the grounds and reasons included within the Application covered a variety of matters including an alleged failure by the first respondent to comply with the provisions of a relevant industrial award and the Occupational Health and Safety legislation with respect to allegations of sexual harassment made by her, the process by which the applicant was referred for a medical examination to ascertain her fitness to continue in employment, the procedure followed by the first respondent in processing her retirement on medical grounds including an allegation of breach of s 36 of the Public Sector Management Act, the lack of statutory power, authority or right to terminate by reference to the circumstances in which and the nature of the retirement medical certificate was issued, the inability of the first respondent to rely on the fact that the applicant had not appealed against the issue of the retirement medical certificate, the fact that "bad faith, improper purpose, and denial of natural justice/procedural fairness" tainted the totality of the processes and the like. 26 The first respondent raised a threshold issue as to the proper basis upon which this Court may determine the application. 27 The respondent's approach was based on a judgment of the Full Bench of this Court given in New South Wales Technical and Further Education Commission v Kerrison [2004] NSWIRComm 369. Those appeal proceedings were brought from a judgment in which the trial judge had acceded to an application for declaratory relief under s 154 of the Act brought in similar but not identical terms to those in these proceedings. The same agent, Mr Crewdson, also represented that applicant in those proceedings at first instant. 28 The declarations which were sought in the Kerrison proceedings were in the following terms:

a) That Valda Kerrison is and at all times since 1988 has been employed by the Technical and Further Education Commission of New South Wales and its successors. b) That Valda Kerrison be entitled to be paid all emoluments pertaining to her position as a fulltime teacher of the Technical and Further Education Commission together with interest thereon and to retain all seniority, long service leave and other entitlements, together with interest thereon. c) That with respect to any moneys otherwise earned by the Applicant since 22 June 1995, allowance to be made for that sum. 29 The relevant statutory provision dealing with medical retirement in Kerrison was s 20 of the TAFE Act which was in the following terms:

20 Incapable officer may be retired If: (a) a member of the staff of the TAFE Commission is found to be unfit to discharge or incapable of discharging the member's duties, and (b) the member's unfitness or incapacity appears to be of a permanent nature and has not arisen from actual misconduct on the part of the member (or from causes within the member's control), the TAFE Commission may cause the member to be retired. 30 That provision should be contrasted with the relevant provision in these proceedings which is s 36 of the Public Sector Management Act 1988 which is in the following terms:

36 Incapable officer may be retired (1979 Act, s 78) If: (a) an officer employed in a Department is found to be unfit to discharge or incapable of discharging the duties of the officer's position, and (b) the officer's unfitness or incapacity: (i) appears likely to be of a permanent nature, and (ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer's control, the Governor may, on the recommendation of the appropriate Department Head, cause the officer to be retired. 31 It should be noted that declaration a) in the Kerrison proceedings is in comparable terms to declaration a) sought in these proceedings and declaration b) in the Kerrison proceedings is in the same terms as declaration d) in these proceedings. 32 These proceedings, therefore, seek declarations in paragraphs b) and c) that were not the subject of the proceedings in Kerrison. However, it may be observed at this stage that declaration c), namely relating to the "purported retirement" of the applicant on or about 2 September 1998 as being void, invalid and of no effect, raises for all practical purposes the same issue as declaration a). That is, as is obvious, if the purported retirement on 2 September 1998 was of no effect, then as a consequence it might be said that the applicant remains employed. 33 Arguably, declaration b), that is one which goes to the validity of a decision to refer the applicant for a medical examination to ascertain her fitness to continue in employment, is of a different kind. As will be seen, based on the authority of the Full Bench decision in Kerrison, the respondents submitted that any declaration favourable to the applicant so made in terms of declaration b) would have no effect on the determination as to whether or not the subsequent purported termination of employment on 2 September 1998 and the question of continuity of employment should be the subject of declarations as of right. 34 It is now necessary to have regard to the Full Bench decision in Kerrison. The trial judge had permitted a detailed examination of circumstances leading up to the medical retirement of the applicant, Ms Kerrison. The judge had found that there had not, in fact, been any decision to retire Ms Kerrison on medical grounds because no person with the requisite authority had ever made such a decision. 35 In considering the judgment of the Full Bench in Kerrison, it is necessary to take into account the judgment under appeal, particularly by reference to the medical assessment that was part and parcel of the process by which Ms Kerrison's employment with TAFE came to an end. There are parallels between the facts as found by the trial judge in Kerrison and the allegations made by the applicant in these proceedings, evidence of which was in part excluded and, as will be seen, will be found to be irrelevant. 36 In Kerrison, the trial judge found that her referral for medical examination by HealthQuest was undertaken contrary to the policy of HealthQuest which provided that employees clearly understand the basis for the referral. The trial judge accepted that Ms Kerrison understood that she was being referred to HealthQuest for assessment in connection with an ongoing worker's compensation and rehabilitation claim. In fact, the referring officer from TAFE had asked that HealthQuest consider Ms Kerrison's medical fitness for continued employment with TAFE. The referring information had incorrectly said that Ms Kerrison was off work, when, in fact, she had returned to work under a rehabilitation program. 37 Ms Kerrison was examined by a Dr Mandel who assessed her as being fit to continue at work and who suggested a report be obtained from her treating psychiatrist. In the meantime it was said that she should remain at work or on sick leave if advised by her doctor. Subsequently, representations were made to a Dr Jagger at HealthQuest by TAFE personnel expressing concern (based on third party hearsay) that the applicant might prove a danger to herself or others. Later, HealthQuest received a report from Ms Kerrison's treating psychiatrist which outlined a medical history including depression and anxiety attacks said to have been related to work incidents. Three days later, Dr Mandel signed a "retirement certificate" declaring that he had examined Ms Kerrison and found that she suffered from a "personality disorder" and that she was unable to discharge the duties of her office, that disability being "in all likelihood" permanent. That certificate was co-signed by Dr Jagger who had never examined Ms Kerrison and, in evidence, was unable to say that she had ever reviewed Ms Kerrison's file. The trial judge concluded on the basis of the evidence that the opinion expressed by Dr Jagger and the change of opinion by Dr Mandel were based on information given to HealthQuest by TAFE personnel after the medical examination conducted by Dr Mandel and without checking the veracity of any of that information with Ms Kerrison. The trial judge concluded also that that information given to HealthQuest was "plainly inaccurate in a number of important respects…." 38 The trial judge also concluded that the decision to terminate Ms Kerrison's employment on the basis of the HealthQuest certificate was not taken by any person authorised under the TAFE Act to do so and that, in effect, no specific decision of that kind was made by anyone, it being assumed within the TAFE organisation that the mere issue of the certificate was sufficient ipso facto to bring Ms Kerrison's employment to an end. 39 The first instant proceedings are reported as Kerrison v New South Wales Technical and Further Education Commission [2003] NSWIRComm 76. 40 It is against this factual background that the Full Bench decision must be considered, particularly by reference to declarations b) and c) as sought by the applicant in these proceedings. 41 On appeal, the Full Bench held that the sole question for determination at first instance should have been the question as to whether a decision had been made to cause Ms Kerrison to retire, these being the words used in the relevant provision of the TAFE Act. On this basis, it was not necessary for the Court to consider in any detail the procedures and steps taken by the employer in and about the decisions to refer the applicant for medical examination, the issue of a certificate of medical unfitness and the processes which were adopted immediately thereafter. 42 The Full Bench agreed with submissions made by the employer that the expression "caused to be retired" meant "to bring about or give effect to" the termination of employment on the grounds of a disability identified by the statutory provision. All that is necessary to determine on this basis was whether the preconditions to the taking of the steps to bring about or cause the retirement of the member had been made out. It was said that that process "required no formality nor any additional decision making processes, save that which were necessary to comply with s 20." (At [47]). 43 In particular, the Full Bench said,

"[49] The discretion to take steps to bring about the medical retirement of a particular employee arises once the conditions in ss20(a) and (b) are met. Given that the basis for the exercise of the discretion is a medical opinion, it is a discretion one would expect would normally be exercised in favour of retirement if the pre-conditions in ss(a) and (b) of s20 have been satisfied.

[50] In our view, the way that we have approached the proper construction of s20 is confirmed by considering the purpose of the statute. It seems clear why the legislature has expressed itself this way. The TAFE Managing Director or delegate has no relevant expertise to make a finding as to medical fitness or incapacity. The delegate or decision maker adopts a finding as to fitness and acts upon it to cause the member to be retired. This is entirely unexceptional. It would seem to us, unnecessary and needlessly bureaucratic for that finding to have to be made twice, or, as submitted by Ms Kerrison, if the member unsuccessfully appeals against the medical finding, three times." 44 The Full Bench, as was the trial judge, was aware that there was a process under the relevant legislation for a finding of medical unfitness to be appealed to a Medical Appeals Panel. The impact of this appeal process and its effect on the operation of the provisions of the TAFE Act were considered by the Full Bench in the following manner:

"[51] Any appeal to the Medical Appeals Panel against the medical assessment of HealthQuest effectively acts as a stay of the finding of unfitness. A successful medical appeal would reverse the finding of unfitness and there would be no basis for retirement as the pre-requisite set out under s20 of the TAFE Act would not be satisfied. There is nothing contained in the statute which precludes the contingent or conditional exercise of a delegation pending the conclusion of any appeal from the findings of HealthQuest. The statute is silent in respect of this process. If a retirement certificate is not overturned by the Medical Appeal Panel, then the finding of unfitness remains, that finding having been made by HealthQuest and not the TAFE Commission delegate. If this were not the case, then the delegate would be required to again make a finding at the conclusion of any unsuccessful appeal. This step would seem to us to be unnecessary. If the appeal is successful, then the process does not continue. If it is unsuccessful, it does. In our view, there is no need for any further layers of decision-making in the process itself. The "decision" is to cause the officer to retire. The "decision" once made by the delegate is not rendered beyond power or outside the delegation unless an appeal is successful, or some other process intervenes." 45 In essence, therefore, the Full Bench proceeded on the basis that in determining whether or not the applicant had been retired within the meaning of s 20 of the TAFE Act it was only necessary to find that the relevant medical evidence existed in the form of a certificate of medical unfitness issued by HealthQuest and that based on that certificate administrative action was taken to bring about the retirement of Ms Kerrison on the grounds that she was unable to discharge the duties of her office by reason of a medical condition. Once the administrative steps were then taken, the requirements of s 20 of the TAFE Act had been complied with and it was not appropriate or necessary to go behind and consider any other matters. 46 I have previously set out the provisions of s 36 of the Public Sector Management Act. There are a number of matters that need to be satisfied in determining whether the applicant in these proceedings has been appropriately retired in accordance with that provision. These are:

(1) That the applicant was an officer employed in a Department. (2) That the applicant was found to be unfit to discharge or incapable of discharging the duties of her position. (3) That the applicant's unfitness or incapacity appears likely to be of a permanent nature. (4) That the applicant's unfitness or incapacity has not arisen from actual misconduct on her part or from causes within her control. (5) That an appropriate Department Head has recommended the retirement of the applicant from her employment by reason of the matters referred to above. (6) That the Governor has caused the applicant to be retired by reason of the matters referred to above. 47 I shall shortly discuss each of these matters. However, before doing so I firstly observe that by s 37 of the Public Sector Management Act, the position of an officer is said to become vacant if the officer is retired. 48 The evidence which the applicant sought to adduce in the proceedings traversed much of the same territory as had been the subject of evidence at first instant in Kerrison and which the Full Bench had held was ultimately irrelevant. In applying the judgment of the Full Bench in Kerrison, I struck out from the applicant's evidence a great deal of material that the applicant had sought to introduce. This covered complaints made by and encountered by the applicant in carrying out her work in 1988, a work injury in the same year, complaints about safety equipment made in the same year, difficulties in obtaining holiday leave at a time sought in 1989, problems encountered in the workforce in the same year with respect to issues raised by a number of drivers, difficulties encountered with supervisory personnel in the same year, and problems of a similar kind which occurred in 1991 to 1998. The material which was struck out involved a great deal of detail concerning difficulties encountered by the applicant in the workplace, difficulties encountered by other employees in the workplace, complaints about supervisors, details of symptoms and conditions referrable to worker's compensation and other claims and the like. There was also struck out from the applicant's affidavit a great deal of material with respect to the circumstances leading up to her referral for assessment as to medical unfitness, the medical examinations conducted in connection therewith, including complaints about the manner in which the medical examinations were conducted and the manner in which the psychological assessment was carried out. This had the effect of excluding from the applicant's evidence a great deal of documentary material that related to these matters and matters of a similar kind. 49 The applicant gave evidence that in early July 1998, she was requested by a personnel officer of State Mail Service to attend HealthQuest and was given appointment dates, some of which she altered. She was examined by a Dr Graham and by a psychologist.

50 The applicant received on 7 September 1998 a letter from HealthQuest addressed to her dated 2 September 1998 signed by Dr H. Gapper "the NSW Government Medical Officer." That letter said, "I wish to inform you that a certificate dated 2/9/98 for your retirement on medical grounds of chronic adjustment disorder with mixed anxiety and depression with marked psycho-somatic manifestations has been issued to your employer. Should you require further information, please contact your employer." 51 Subsequently, the applicant received a letter written on behalf of "R. Green, Staff Services Manager" of the NSW Department of Public Works and Services, dated 9 September 1998. That letter informed the applicant that the director of the HealthQuest medical centre had determined that she was "not fit to discharge the duties of your position effective from 2 September 1998." The letter advised the applicant that there was a right of appeal to a Medical Appeals Panel and that if no appeal was lodged, or if any appeal was disallowed, a recommendation would be made for the applicant to be medically retired under s 36 of the Public Sector Management Act. She was told that she should not resume duty in the interim. In the event that she did not wish to appeal, the applicant was asked to sign an attached "waiver form". 52 The applicant received on 16 September 1998 a letter dated 11 September 1998 from New South Wales Health Department Medical Appeals Panel inviting her to lodge an appeal if she wished against the HealthQuest assessment no later than 21 days after the date of that letter. Attached to that letter was explanatory material with respect to the Medical Appeals Panel process. 53 There is no evidence that the applicant lodged an appeal to the Medical Appeals Panel and I infer from the evidence that no such appeal was lodged. There was subsequent correspondence in October 1998 from the NSW Department of Public Works and Services asking the applicant to return certain material and equipment and asking her to make contact so that a "final payment can be processed." 54 She arranged for the material and equipment to be returned on 23 October 1998. There was subsequent documentation forwarded to the applicant containing an estimate of a gross ETP payment due to her, calculated as at 11 December 1998. 55 There was also documentary evidence tendered in the proceedings that established that Dr H. Gapper had been appointed by the Department of Health as a Government Medical Officer on 6 August 1987. By letter dated 21 January 1988 under the letterhead of the Public Service Board of NSW the secretary of the Department of Health noted that Dr Gapper was the current occupant of the office of Director, Medical Examination and Immunisation Centre, which was the office for the purpose of the definition of Government Medical Officer contained in cl 4 of the Public Service (General) Regulation, 1984 and was, accordingly, the Government Medical Officer for the purpose of conducting medical examinations for entry into the public service. Furthermore, there was evidence that by written notification dated 12 May 1998, Dr Gapper appointed Dr H. Jagger as relieving Director, HealthQuest whilst Dr Gapper was on approved recreation leave and other leave from 18 May 1998 to 4 September 1998 inclusive. 56 Affidavit and oral evidence was given for the respondent by Robert Charles Green, the staff services manager for the Department of Public Works and Services who had been employed in the Department since 29 January 1990. His duties included responsibility for the administration of termination payments for members of staff who had been medically retired. He processed the necessary documents to ensure that the recommendation of the Director General was forwarded to the Executive Council for approval and subsequent publication in the New South Wales Gazette. 57 Mr Green said that on or shortly after 2 September 1998, he received a retirement certificate concerning the applicant issued by HealthQuest. That certificate was dated 2 September 1998 and was signed both by Dr D.S.M. Graham said to be a "legally qualified medical practitioner" and also by Dr H. Jagger for Dr H. Gapper, Director, the NSW Government Medical Officer. Dr Jagger signed as concurring with the report of Dr Graham. That report declared that on 2 September 1998, Dr Graham had examined documents relating to the applicant and found that "she is suffering from chronic adjustment disorder with mixed anxiety and depression with marked psychosomatic manifestations. I am of the opinion that she is in consequence unable to discharge the duties of her office. I am further of the opinion that her disability will in all likelihood prove permanent. I have no reason to suspect that such invalidity may be due to the fault of the officer." 58 Mr Green said that in accordance with "standard practice" he caused a letter to be forwarded to the applicant concerning the right of appeal to the Medical Appeals Panel. Following subsequent correspondence with the applicant, Mr Green noted that she had not appealed against the HealthQuest decision and steps were then taken to calculate and pay termination payments. 59 In his affidavit, Mr Green said that in the second half of 1998, the Department was behind in processing the administration relating to "a number of staffing matters." There was annexed to his affidavit a document entitled "Executive Council Minutes" which included on it inter alia a recommendation under the hand of a person said to be the acting Director General of the Department of Public Works and Services for the approval of the Governor and the Executive Council for the retirement of the applicant pursuant to s 36 of the Public Sector Management Act. There was also tendered into evidence a minute paper for the Executive Council signed by a number of persons including the Director General and the Minister for the approval and gazettal of the appointment of Michael John Hannon to act as Chief Executive, in the acting position of Director General of the Department of Public Works and Services for the period commencing 21 December 1998 up to and including 15 January 1999. That notification appeared in New South Wales Government Gazette No 176 at p. 9827, published on 18 December 1998. 60 The copy minute paper for the Executive Council annexed to Mr Green's affidavit contains the signature of Mr Hannon and a recommendation as acting Director General of the Department of Public Works and Services for the approval of the Governor and the Executive Council of the retirement of certain named officers in terms of s 36 of the Public Sector Management Act together with certification by Mr Hannon "that the provisions of the said Act have been complied with." The copy minute paper also contains the signature of the Honourable Ron Dyer MP, Minister for Public Works and Services who advised that the recommendation be approved by the Governor and the Executive Council. Contained within the list of names was that of the applicant. There is also a notation of approval of the minute by deputation from the Governor dated 13 January 1999. 61 New South Wales Government Gazette No 16 dated 5 February 1999 at p 563 contains a list of persons who are said to have been notified of medical retirements pursuant to s 36 of the Public Sector Management Act together with advice of the last day of service. That list contains the applicant's name, the last day of her service being said to be 2 September 1998. 62 On the basis of the evidence adduced in the proceedings, I am satisfied that the applicant was at all material times an officer employed by the first respondent. 63 I am satisfied on the basis of evidence that the applicant was found to be unfit to discharge or incapable of discharging the duties of her position, and that her unfitness or incapacity appeared then to be likely to be of a permanent nature and had not arisen from actual misconduct on her part or from causes within her control. I am satisfied that that finding was based on medical evidence from a duly qualified medical practitioner. 64 I am also satisfied that the Governor, on the recommendation of the appropriate Department Head, has caused the applicant to be retired by reason of the matters set out in [63] above. The date upon which the Governor did so would appear, however, to be 13 January 1999 and not 2 September 1998. Whether and to what extent anything turns on this would depend on whether the applicant was entitled to any benefits or emoluments over and above those which were paid out to her by the first respondent. Presumably, she not having performed any work during that period, no question of payment of salary arises. In any event, I shall grant leave to the applicant to pursue this matter, as it has not been raised with the parties. 65 It follows from the findings that I have made that I am unable to make declaration a) as sought in the application because it has not been demonstrated that the applicant is, that is remains, an employee of the first respondent. I am satisfied that her employment came to an end either on 2 September 1998 or, at the latest, 13 January 1999. 66 With respect to declaration b) as sought by the applicant, based on the Full Bench decision in Kerrison, I have deliberately excluded any evidence referrable to this matter. In any event, I am not satisfied that it would be appropriate to make a declaration in the terms sought. I so conclude without reference to whether there is any jurisdictional basis for making such a declaration. Arguably such a basis may be found in s 106 of the Act. In any event, based on the authority of Kerrison, whether or not the decision to refer the applicant for a medical examination is void, invalid and of no effect will have no impact upon the validity of the termination of the applicant's employment. On this basis, any such declaration "will produce no foreseeable consequences for the parties". (See Ainsworth cited in [5] above.) Any such declaration would not have any legal consequences for the applicant because it would not impact upon the validity of the subsequent termination of her employment.

67 Based on the principles established by Kerrison, it would be inappropriate to make any declaration as sought in paragraph c), in light also of the factual findings that I have made. 68 With respect to declaration d), the evidence is that the applicant has received all of the "emoluments" pertaining to her position up to and including 2 September 1998. Whether, arguably, she is entitled to any further emoluments will depend upon firstly, whether her termination is in fact effective as and from 13 January 1999 and secondly, whether, even if this be established, the applicant would be entitled to any further emoluments with respect to this additional period having regard to the fact that she did not perform any work during that period. I will, at this stage, decline to make any such declaration but will grant leave to the applicant to apply in the event that she wishes to pursue some claim for further emoluments with respect to this additional period. 69 I refer, for completeness, to the submissions made by Mr Crewdson on behalf of the applicant. It was submitted that I was in error in applying Kerrison, especially as there were two additional declarations sought in these proceedings. For reasons that I have explained, I would decline to exercise the discretion to make any such declaratory orders because, ultimately, they do not impact upon or affect the termination of the applicant's employment by the first respondent. 70 Mr Crewdson submitted that, in some manner, the decision of the High Court of Australia in FAI Insurances Limited v Winneke (1981-1982) 151 CLR 342 applied to these proceedings. That case concerned action taken by the Governor of the State of Victoria in Council to decline to renew a licence to underwrite workers' compensation business in that State. The High Court by majority held that the applicant insurer should have been given an opportunity to be heard before a decision not to renew its licence to underwrite business was made and that the Governor in Council was amenable to the laws of natural justice in this regard. As I understand Mr Crewdson's submission it is that the Governor in acting on the recommendation made by the Director-General should have afforded the applicant an opportunity of being heard about whether her employment should have been terminated. 71 In FAI Insurances, the majority of the High Court approached the matter by construing the underlying statutory provision to determine whether the Governor in Council was exercising a discretionary power and was thereby subject to the rules of natural justice. See, for example, Mason J (as his Honour then was) at 366 and following. Stephen J agreed in his Honour's reasons for judgment. Aickin J said that considerations of natural justice applied in the exercise of a statutory discretion "which affects the rights of an individual citizen but also to the exercise of a power which affects what may be described as an 'interest or a privilege' (eg a licence or authority to carry on a particular business) or which disappoints what has been called a 'legitimate expectation'." (At 376). Wilson J adopted the same approach. Brennan J (as his Honour then was) considered that in ascertaining whether the legislature intended that the principles of natural justice should be applied, one had regard to "the statutory text, the interests affected by the statute and repository of the powers." (At 410). 72 I would not approach the construction of the statute and statutory context that is at the heart of these proceedings in the same manner as adopted by the High Court in FAI Insurances. The structure of the Public Sector Management Act and in particular s 36 does not, in my opinion, require the Governor in Council or the relevant Department Head to afford an employee an opportunity of being heard as to whether or not the discretion to bring about the termination of employment of the employee ought to be exercised. In stating this, I have regard to the fact that the applicant was given an opportunity of appealing the decision of HealthQuest through the Medical Appeals Panel and declined to do so. In these circumstances it would not, in my opinion, be incumbent upon the relevant Head of Department or the Governor in Council to afford the applicant any opportunity of being heard concerning the ultimate decision taken to terminate her employment. 73 Mr Crewdson also submitted that there was no evidence that Mr Hannon had been validly appointed as acting Director-General and that Mr Green had acted contrary to the provisions of a New South Wales Personnel Handbook. I am not satisfied that the first matter has not been appropriately proven and the second matter appears to me to be irrelevant. 74 Mr Crewdson also relied on the provisions of s 99 of the Industrial Relations Act. That creates an offence where an employer of an injured employee dismisses that employee because of unfitness for employment as a result of the injury, and that dismissal occurs in general terms within 6 months after the employee first became unfit for employment. That provision creates an offence for breach. Apart, however, from the establishment of a breach I am unable to discern how the provisions of s 99 might impact upon a determination whether to grant any of the declaratory relief sought by the applicant in these proceedings. The same observations apply to a submission by Mr Crewdson that the circumstances of the applicant's retirement breached s 26 of the Occupational Health and Safety Act 1983. I have previously set out the provisions of that section in [20]. Again, I am unable to discern any appropriate relevance to found the exercise of discretion as sought by the applicant in these proceedings. Finally, I would adopt the same approach to submissions of Mr Crewdson that in some way the first respondent has breached Anti-Discrimination legislation. 75 For all these reasons I would reject the submissions of Mr Crewdson. 76 Prima facie, the applicant has been substantially unsuccessful in the proceedings. Arguably, however, she may be entitled ultimately to some order in her favour referrable to the period 2 September 1998 to 13 January 1999. For these reasons I shall reserve costs.

Orders 77 Consequent upon the findings that I have made, I make the following orders:

(1) So much of the proceedings as seek declarations in terms of a) and b) are dismissed. Save for the reservation of the matters referred to below, so much of the proceedings as seek declarations in terms of c) and d) are dismissed. (2) Leave is granted to the applicant to make submissions with respect to the effective date of termination of her employment and whether she is entitled to be paid any emoluments for the period 2 September 1998 to 13 January 1999 and to seek declaratory relief giving effect to termination on 13 January 1999. (3) Costs are reserved with liberty to apply. (4) Any liberty to apply so granted must be exercised within 45 days of this date.

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