Castlemaine Tooheys Limited & Others v The State of South Australia

Industrial Relations Commission (NSW)|1999-09-03|Before: Boland J, Mr P, Mr J

CITATION : Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Dhayanithi Sivathondan) and South Western Sydney Area Health Service [2002] NSWIRComm 98 APPLICANT Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Dhayanithi Sivathondan) PARTIES : RESPONDENT South Western Sydney Area Health Service FILE NUMBER: IRC 2581 of 2001 CORAM: Boland J CATCHWORDS : Unfair dismissal - Application under s 89 of Industrial Relations Act for interlocutory orders not to dismiss employee in accordance with threat of dismissal - Principles governing the grant or refusal of interlocutory orders - Orders granted subject to certain conditions LEGISLATION CITED : Industrial Relations Act 1996 Medical Practice Act 1992 A and The Commission for Children and Young People (No 4) (2000) 104 IR 131 Castlemaine Tooheys Limited & Others v The State of South Australia (1986) 161 CLR 148 Ellen Ford v W D & H O Wills (Australia) Ltd (Unreported, Matter No IRC99/4549, 3 September 1999) CASES CITED : Four Sons Pty Limited v Sakchai Limsiripothong (2000) 98 IR 1 Geoffrey Bowker v Prophecy Technologies Pty Limited (unreported, Matter No IRC 291 of 1999, 26 May 1999) Hill v Director-General of the Department of Education and Training (NSW) (1998) 85 IR 201 Lane v Commonwealth Bank of Australia (Unreported, Matter No IRC99/2721, 9 August 1999) Public Service Association v NSW Fisheries (Unreported, Matter No. IRC98/5120, 8 April 1999) HEARING DATES: 04/24/2002 DATE OF JUDGMENT: 05/10/2002

JUDGMENT: - 24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BOLAND J 10 May, 2002 Matter No IRC 2581 of 2001 AUSTRALIAN SALARIED MEDICAL OFFICERS' FEDERATION (NEW SOUTH WALES) (ON BEHALF OF DHAYANITHI SIVATHONDAN) AND SOUTH WESTERN SYDNEY AREA HEALTH SERVICE Application by Australian Salaried Medical Officers' Federations (New South Wales) on behalf of its member Dhayanithi Sivathondan re unfair dismissal pursuant to section 89 of the Industrial Relations Act 1996 DECISION

1 This is an application for orders pursuant to s 89(7) of the Industrial Relations Act 1996 by the Australian Salaried Medical Officers' Federation (New South Wales) ("ASMOF") that South Western Sydney Area Health Service ("SWSAHS") as the employer, not dismiss an employee, Dr Dhayanithi Sivathondan, in accordance with a threat of dismissal.

2 The orders sought by ASMOF are in the following terms: The Commission orders: 1. The respondent not dismiss the applicant. AND by way of interlocutory order: 1. Until further order of the Commission the respondent not dismiss the applicant pending the hearing and determination of matter no. IRC 2581 of 2001. 3 Section 89(7) of the Industrial Relations Act provides: In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat. 4 Dr Sivathondan is an anaesthetist who graduated from the University of Ceylon in 1967. In her early postgraduate years she worked in Sri Lanka. This was followed by work in the United Kingdom. She returned to Sri Lanka where she continued to work as an anaesthetist but came back to the UK in 1983 where she worked and undertook further study. Dr Sivathondan was awarded Fellowship of the Royal College of Surgeons in Ireland in 1984.

5 Dr Sivathondan emigrated to Australia in 1989 and took up a position in Broken Hill. She later moved to Bowral in New South Wales and worked part time at Bowral Hospital as a qualified staff specialist anaesthetist under the Salaried Senior Medical Practitioners (State) Award. Her employer was SWSAHS.

6 In 1998 Dr Sivathondan was involved in a surgical incident at Bowral Hospital related to complications that developed during the performance of a caesarean section. An "informal, independent inquiry" was conducted into the incident by Dr Stephen Gatt, Head of Division, Division of Anaesthesia and Intensive Care and Programme Director, Acute Services Programme in the Department of Anaesthesia at the Royal Hospital for Women.

7 In his report of 20 October 1998, Dr Gatt said, inter alia: 1.7. Anaesthetist's performance in a crisis.

There seems little doubt from the massed evidence that once the crisis was "in full swing" the anaesthetist was found lacking. This was described variously as "she lost it" … "in a state", "when she is in a panic … jumps around" … "still not calm … worried only about the airway" … "panic at top end" … "in disarray" … "no coordinated treatment was being provided" … "giving confused instructions" … "no instructions for resuscitation" … "often flustered and panicky" … "someone needed to calm her" … "crying out uncontrollably" … "hate the responsibility of having to calm her down" … "didn't know what was happening" … "out of control" and "didn't even know she had the mask off the face when she was squeezing the bag". Herein lies my greatest criticism of Dr Sivathondan - poor performance under stress. She also seemed unable to secure the help of the two surgeons in the room. While it is true that not much support was forthcoming, Dr Sivathondan failed to assert her right to obtain this help and assistance.

6.3. The Future All the nurses interviewed when asked how they would respond to Dr Sivathondan in the future should she remain on staff stated that they would either resign their commission and go to work elsewhere or would formally notify the hospital that they would refuse to work with her. A similar response was obtained from the two surgeons - Dr Browning and Dr Loxton - both of whom would take their work and patients elsewhere. These statements guarantee that the hospital will have to take some affirmative action to change the status quo .

Recommendations 7.1. Recommendations: v … v The hospital should act IMMEDIATELY to resolve the impasse between Dr Sivathondan and the staff and to restore a culture of mutual respect between professionals - nursing and medical. 8. Summary 8.1. In summary, I have grave concerns about the conduct of both anaesthetist and surgeon, the former for poor performance during the resuscitation, for failure to lead and direct the resuscitation effort and for failing to meet the duty of care, the latter for setting the scene for the disaster to happen and for failing to manage the complications of his anaesthetic intervention. The contemporary records (anaesthetic and surgical) of both groups of medical practitioners are poor.

8.2. The unwillingness of the staff to work with Dr Sivathondan will need to be addressed specifically, and with some urgency, by the hospital.

8 Arising out of Dr Gatt's report, Dr Sivathondan was formally reprimanded and seconded to the Anaesthetic Department at Liverpool Hospital where she received further training under a structured program administered by Dr Martin Lum, Head of the Department. This program ran from November 1998 to December 1999. Following the program, Dr Lum advised SWSAHS that Dr Sivathondan had limitations and was prone to panic if she encountered problems and that she was not suited to practise in a small facility such as Bowral, where there was limited support available if things did go wrong. Also although Liverpool was felt to provide a safe, supportive environment for Dr Sivathondan, Dr Lum did not feel that she had suitable credentials for appointment at a teaching hospital.

9 It was proposed to Dr Sivathondan that she undertake further professional development with a formal assessment process at the end. Dr Lum agreed to offer Dr Sivathondan a position as Postgraduate Fellow for one year to enable her to undertake further study and a process was agreed in relation to her assessment. 10 An interim assessment of Dr Sivathondan was conducted in October 2000. Fourteen out of 18 of her clinical colleagues rated her clinical performance as below average. Dr Sivathondan believed the review was biased against her and in order to overcome this perception of bias Dr Sivathondan's final assessment was conducted by a survey of 7 colleagues chosen by her using 12 agreed performance criteria. Three of the 7 reviewers rated Dr Sivathondan's clinical judgment to be poor.

11 On 11 January 2001 Dr Charles Pain, Area Director, Medical and Clinical Services, informed Dr Sivathondan that SWSAHS could no longer consider her suitable for employment as a consultant anaesthetist. On 13 February 2001 Dr Sivathondan was offered, and she accepted, a research position in pain management at Liverpool Hospital. The position was to last for approximately twelve months.

12 On 14 March 2001 Dr Pain formally advised Dr Sivathondan that:

· The Chief Executive of SWSAHS had confirmed his decision that Dr Sivathondan should no longer practice as a consultant; and

· The Chief Executive of SWSAHS supported his recommendation that Dr Sivathondan's case should be referred to the New South Wales Medical Board.

13 Upon returning from annual leave on about 2 April 2001, Dr Sivathondan was advised by Dr Pain that funding for the research position was no longer available and that it was likely that her employment would be terminated.

14 On 9 April 2001 ASMOF filed an application on behalf of Dr Sivathondan seeking relief pursuant to s 89(7) of the Industrial Relations Act. The application came before Schmidt J on 10 and 19 April 2001. The transcript of 19 April records a 7-point agreement between the parties that "led to a resolution of matters in the short term." The agreement involved Dr Sivathondan taking long service leave on half pay for a period of approximately four months. Dr Sivathondan reserved her right "to challenge any termination that may take place at the end of the long service leave period …"

15 On 2 May 2001 The Chief Executive Officer of SWSAHS wrote to the Medical Board requesting that Dr Sivathondan's fitness to practise as a consultant anaesthetist be reviewed. Part 5A of the Medical Practice Act 1992 deals with the performance assessment of registered medical practitioners. Section 86C of that Act provides that the Medical Board may have the professional performance of a registered medical practitioner assessed if any matter come to its attention that indicates that the professional performance of the practitioner, or any aspect of the practitioner's professional performance is unsatisfactory.

16 Division 3 of Pt 5A of the Medical Practice Act provides: 86G. How Board obtains an assessment

The Board has the professional performance of a registered medical practitioner assessed by having one or more assessors conduct an assessment of the practitioner's professional performance, or of any particular aspect or aspects of the practitioner's professional performance.

86H. Information to be given to medical practitioner (1) As soon as practicable after deciding to have the professional performance of a registered medical practitioner assessed, the Board is to inform the practitioner in writing of that decision. (2) The information given to the practitioner is to include the following: (a) details of the matter or matters that gave rise to the assessment, (b) information about how the performance assessment process under this Part works.

86I. Report and recommendations by assessor (1) An assessor who is required by the Board to conduct an assessment of a registered medical practitioner's professional performance is to: (a) conduct an assessment of the practitioner's professional performance, and (b) report in writing on that assessment to the Board. (2) The report is to include such recommendations as the assessor considers appropriate. (3) If more than one assessor is appointed to assess the professional performance of a registered medical practitioner, the report may be made jointly or separately, but in any case is to be made in the manner directed by the Board.

86J. Action that may be taken by Board (1) After receiving the report of an assessor, the Board may: (a) determine that no further action should be taken in respect of the practitioner concerned, or (b) require a Performance Review Panel to conduct a review of the professional performance of the practitioner, or (c) make a complaint against the practitioner in accordance with Division 2 of Part 4, or (d) refer the matter to an Impaired Registrants Panel, or (e) counsel the practitioner concerned or direct the practitioner concerned to attend counselling. (2) The Board must make a complaint against the practitioner concerned if the assessment: (a) raises a significant issue of public health or safety, or (b) raises a prima facie case of professional misconduct by a registered medical practitioner, or unsatisfactory professional conduct by a registered medical practitioner of a significant nature. (3) This section does not limit the Board's powers under section 66. 17 Division 4 of the Medical Practice Act provides: 86K. Panel to conduct performance review

(1) A Performance Review Panel is to conduct a review (referred to in this Part as a "performance review") of the professional performance of a registered medical practitioner if required to do so by the Board. (2) The chairperson of the Panel is to inform the registered medical practitioner concerned in writing that a performance review will be conducted not less than 14 days before the time and place appointed for the performance review.

86L. Panel not to take action while Commission investigating

A Performance Review Panel is not to take any action in relation to a registered medical practitioner if the Panel becomes aware that the practitioner is the subject of a complaint that is being investigated by the Commission, unless the Commission agrees to the continuation of the performance review.

(1) A Performance Review Panel must terminate a performance review if before or during the performance review the Panel forms an opinion that: (a) the performance review raises a significant issue of public health or safety, or (b) the performance review raises a prima facie case of professional misconduct by a registered medical practitioner, or unsatisfactory professional conduct by a registered medical practitioner of a significant nature. (2) When the Panel terminates a performance review because of subsection (1), it must refer the issue or case back to the Board with a recommendation that a complaint be made against the registered medical practitioner concerned. (3) The Board is to deal with the matter accordingly. 86N. Actions by Panel

(1) At the completion of a performance review, a Performance Review Panel may make such recommendations to the Board in respect of the registered medical practitioner concerned as the Panel considers appropriate. (2) Without limiting subsection (1), if the Panel finds that the professional performance of the practitioner, or a particular aspect of the professional performance of the practitioner, is unsatisfactory, the Panel may do any one or more of the following things: (a) direct that such conditions, relating to the person's practising medicine, as it considers appropriate be imposed on the person's registration, (b) order that the practitioner complete such educational courses as are specified by the Panel, (c) order that the practitioner report on his or her medical practice at the times, in the manner and to the persons specified by the Panel, (d) order that the practitioner seek and take advice, in relation to the management of his or her medical practice, from such persons as are specified by the Panel. (3) If the Panel finds that a matter: (a) raises a significant issue of public health or safety, or (b) raises a prima facie case of professional misconduct by a registered medical practitioner, or unsatisfactory professional conduct by a registered medical practitioner of a significant nature, the Panel must recommend to the Board that a complaint be made against the practitioner concerned, in which case the Board is to deal with the matter accordingly. (4) In any other case that the Board thinks it appropriate to do so, the Board may make a complaint in respect of a matter that has been considered by a Performance Review Panel, after consulting with the Commission.

(1) Without limiting section 86N, a Performance Review Panel may direct that a registered medical practitioner's professional performance be re-assessed at a future date. (2) The Board is to have one or more assessors conduct that assessment, when it is required, and report to the Board on the assessment. (3) The Board may take any action in respect of that assessment that is available to the Board under section 86J, including requiring a Performance Review Panel to conduct a further performance review in relation to the practitioner.

(1) A Performance Review Panel must provide a written statement of a decision on a performance review to the registered medical practitioner concerned and to the Board, and must do so within one month after the decision is made. (2) The statement of the decision must include reasons for the decision. (3) The Board may provide a copy of the statement of decision to such other persons as the Board thinks fit.

86Q. Statement need not contain confidential information (1) A Performance Review Panel is not required to include confidential information in the statement of a decision. If a statement would be false or misleading if it did not include the confidential information, the Panel is not required to provide the statement. (2) When confidential information is not included in the statement of a decision provided to a person or the statement is not provided to a person because of subsection (1), the Panel must give a confidential information notice to the person. (3) A confidential information notice is a notice that indicates that confidential information is not included or that the statement will not be provided (as appropriate) and gives the reasons for this. The notice must be in writing and must be given within one month after the decision is made. (4) This section does not affect the power of a court to make an order for the discovery of documents or to require the giving of evidence or the production of documents to a court, subject to the provisions of this Act relating to protected reports.

18 The Medical Board assessed Dr Sivathondan's professional performance in August and November 2001. The Board found that "the professional performance of Dr Sivathondan is below the standard reasonably expected of a practitioner of an equivalent level of training …" in certain areas. It was recommended that a Performance Review Panel be convened.

19 The Performance Review Panel was convened in March 2002 and on 7 March the Panel made certain orders in relation to Dr Sivathondan. The orders included that Dr Sivathondan: 1) Work as an Anaesthetist only: a. in a position approved by the Board; b. this position to be equivalent to an Anaesthetist training; c. under supervision at level 2 as defined by the Board. The nominated supervisor should be in the theatre complex during any anaesthetic procedure performed by Dr Sivathondan and will be available in person upon request. … 6) Dr Sivathondan's Professional Performance is to be reassessed by the Board no less than 12 months after implementation of the work and training program or as required by the Board. 7) These orders may be eased or amended at the discretion of the Board or its Performance Committee.

20 Following advice of the Medical Board's orders, Dr Sivathondan sought paid work in various public hospitals that would enable the supervised work, ordered by the Board, to be undertaken. At the time of the hearing of this matter Dr Sivathondan had been in discussions with at least two hospitals about such work but the prospect of gaining paid employment was not good.

21 On 27 March 2002 Dr Sivathondan wrote to the Medical Board seeking an easing of the extent of supervision required. Dr Sivathondan believed that if there was such an easing it would assist in obtaining paid work. Dr Sivathondan has since been advised that the Board was not prepared to amend its supervisory requirements.

22 Dr Sivathondan has spoken to at least four consultant anaesthetists employed by SWSAHS at Liverpool Hospital who have indicated that they are willing to act as supervisors. However, Liverpool Hospital has advised Dr Sivathondan that it has no funding to provide paid employment for an anaesthetist who is subject to the degree of supervision imposed on her by the Medical Board.

23 On 11 April 2002 Dr Sivathondan was invited by the Acting Deputy Chief Executive of SWSAHS, Mr Raad Richards, to advise him by 19 April 2002 of any reasons why she should not have her employment terminated.

Submissions of the parties 24 Mr P Ginters of counsel appeared for ASMOF on behalf of Dr Sivathondan. Counsel contended that the letter of Mr Richards of 11 April 2002 was a threat of dismissal. Mr Ginters submitted that in light of the referral of Dr Sivathondan's professional performance to the Medical Board and the Board's subsequent orders the threat of dismissal was harsh, unreasonable or unjust. Mr Ginters submitted that the Medical Board had ordered that Dr Sivathondan's professional performance was to be reassessed by the Board no less than 12 months after implementation of the work and training program or as required by the Board. If Dr Sivathondan's employment was terminated and she was unable to find other employment, there was a substantial risk that that she would be unable to satisfy the work requirements ordered by the Board and, therefore, fail to meet any re-assessment criteria set by the Board. That being the case, Dr Sivathondan would be unable to work again as a medical practitioner in circumstances where she has been performing work as a consultant anaesthetist in Australia since 1989. It is to be noted that if Dr Sivathondan could not work as an anaesthetist she did not have a general practice to fall back on because her registration as a medical practitioner is limited to a specialist anaesthetist.

25 Mr Ginters relied on Hill v Director-General of the Department of Education and Training (NSW) (1998) 85 IR 201 as to the approach the Commission should take in respect of an application for interlocutory relief under s 89 (7) of the Industrial Relations Act. In that case Schmidt J held: … the Commission is empowered to make an interlocutory order under s89(7), preserving the employment of an employee who brings a claim under s84 about a threatened dismissal, so as to ensure that the Commission will be in a position to determine that claim, as provided by s87(1) of the Act.

26 Schmidt J proceeded to apply the conventional approach to granting interlocutory orders as espoused by Mason ACJ in Castlemaine Tooheys Limited & Others v The State of South Australia (1986) 161 CLR 148 at 153. The relevant principles are as follows: The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.

27 Her Honour made interlocutory orders that the respondent was not to dismiss the applicant until the hearing and determination of his claim for orders pursuant to s 89(7). 28 Mr Ginters submitted that:

There was a serious question to be tried. He said that Dr Sivathondan had been employed by the respondent since 1990 and that she was now the subject of a threatened dismissal in circumstances where the process ordered by the Medical Board was incomplete. Dr Sivathondan was in a paid position and should be entitled to remain in such a position while receiving training. 2) Dr Sivathondan would suffer irreparable injury if she were dismissed it would cause serious damage to her reputation and make it very difficult to find work in New South Wales in what is a small community of anaesthetists. 3) The balance of convenience lies in favour of granting the orders sought.

29 Mr J Murphy of counsel appeared for the respondent, SWSAHS. Mr Murphy did not contest that, for the purpose of s 89(7), dismissal of Dr Sivathondan had been threatened. Mr Murphy also implicitly accepted the conventional approach to interlocutory orders enunciated by Mason ACJ in Castlemaine Tooheys as applied by Schmidt J in Hill. Mr Murphy emphasised the rarity of applications under s 89(7) and submitted that the Commission would not lightly interfere with an employer's right to terminate the employment of an employee. Mr Murphy submitted that the applicant had failed to make out a prima facie case "in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief". He further submitted that in the event the applicant was dismissed, it was not necessarily the case that she would suffer irreparable damage because the primary remedy for unfair dismissal was reinstatement. As to the balance of convenience, Mr Murphy submitted that given the range of remedies available to the applicant the balance of convenience was against making the orders sought.

Consideration 30 The applicant in this matter seeks two orders. The first order sought is that the respondent not dismiss the applicant and the second order is that "Until further order of the Commission the respondent not dismiss the applicant pending the hearing and determination of matter no. 2581 of 2001." Matter No 2581 of 2001 is an application pursuant to s 89(7) of the Industrial Relations Act that the respondent not dismiss the applicant in accordance with a threat of dismissal. There is something of an inconsistency in the application for the two orders. If I were to grant the first order, it seems quite unnecessary that I also make the second order. If I were to grant the second order then I would not grant the first order because to do so would render the second order nugatory.

31 The applicant's focus in these proceedings was on securing an interlocutory order. That is, she should not be dismissed in accordance with the threat of dismissal contained in Mr Richard's letter of 11 April 2002 until she had been given the opportunity to seek a final order under s 89(7). I, therefore, intend to approach the matter on the basis that the application before me is an application for an interlocutory order under s 89(7) of the Industrial Relations Act not to dismiss the applicant in accordance with a threat of dismissal. If I were to approach the matter as an application for a final order, I might be denying the respondent natural justice because it has also proceeded on the basis that the application is for an interlocutory order.

32 There is a very clear exposition of the Commission's power to make an interlocutory order under s 89(7) of the Act by Schmidt J in Hill. In A and The Commission for Children and Young People (No 4) (2000) 104 IR 131 Wright J, President was called upon to decide whether the Commission had an implied power to make suppression or non-publication orders and in deciding that it did, he referred with approval to the decision of Schmidt J in Hill. In Four Sons Pty Limited v Sakchai Limsiripothong (2000) 98 IR 1 the Full Bench also referred with approval to the decision in Hill. Hill was also followed by Sams DP in Public Service Association v NSW Fisheries (Matter No. IRC98/5120, 8 April 1999) and again by the Deputy President in Lane v Commonwealth Bank of Australia (Matter No IRC99/2721, 9 August 1999) and in Ellen Ford v W D & H O Wills (Australia) Ltd (Matter No IRC99/4549, 3 September 1999). 33 I also note the power in s 89(8) that "An order under this section may be made on such terms and conditions as the Commission determines."

34 I intend to follow Hill in considering the application for interlocutory orders. I should emphasise, however, that the exercise of the Commission's power to make interlocutory orders of the type made in Hill is discretionary and, also, I should add that another relevant consideration in making such orders is s 163(1)(c) of the Industrial Relations Act, which provides that: The Commission: … (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

35 In Geoffrey Bowker v Prophecy Technologies Pty Limited (unreported, Matter No IRC 291 of 1999, 26 May 1999) Marks J, in considering an application for interlocutory orders, said: As I understand the provisions of s163(1)(c) they are directed not only to the processes utilised by this Court in determining matters which come before it but also to the manner in which the Court is to act in determining those matters. That is, when called upon to make a determination this Court is compelled to act in the manner set out. I do not regard s163(1)(c) as enlarging jurisdiction and powers otherwise found within the Act, but I propose to proceed on the basis that that subsection will guide me in determining the issues in these proceedings and in particular issues such as the balance of convenience.

37 The first question to be determined under the principles enunciated by Mason ACJ in Castlemaine Tooheys is whether "there is a serious question to be tried or that the plaintiff has a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief".

38 It may be seen that in relation to the first principle referred to by Mason ACJ his Honour refers to two tests, namely, "serious question to be tried" or, in the alternative, the "prima facie case" test. As to these two tests his Honour said at 153 - 154: Recently two members of this Court have held that the plaintiff must establish that there is "a serious question to be tried", to use the expression favoured in American Cyanamid v. Ethicon Ltd. ([1975] A.C. 396, at p.407) in preference to the "prima facie case" test which was adopted in Beecham Group Ltd. v. Bristol Laboratories Pty. Ltd. ((1968) 118 C.L.R. 618, at p.622): Australian Coarse Grain Pool Pty. Ltd. v. Barley Marketing Board of Queensland ((1982) 57 A.L.J.R. 425; 46 A.L.R. 398) ( Gibbs C.J.); Tableland Peanuts Pty. Ltd. v. Peanut Marketing Board ((1984) 58 A.L.J.R. 283, at p.284; 52 A.L.R. 651, at p.653) ( Brennan J.). In my opinion that is the correct test to be applied at least in the majority of cases: see "Declarations, Injunctions and Constructive Trusts", University of Queensland Law Journal, vol.11 (1980) 121, at p.128; but cf. Administrative & Clerical Officers Association v. The Commonwealth ((1979) 53 A.L.J.R. 588; 26 A.L.R. 497). However, it may be that in some cases where the public interest would be adversely affected by the grant of an injunction the plaintiff may need to show a probability, even a distinct probability of success, in order to obtain an interlocutory injunction.

39 In considering whether there is a serious question to be tried, an important point to be drawn from the decision in Hill at 208 is that: …the exercise of the powers granted by s89 involves the Commission first accepting the employee's claim that the dismissal or threatened dismissal was harsh, unreasonable and unjust (sic). The exercise of the power under s 136 and 137, will involve similar considerations. It follows that the Commission will not lightly interfere with an employer's contractual, (or in this case statutory), right to terminate employment, without first having to come to the view that a particular dismissal or threatened dismissal has the impugned character.

40 On the one hand it could be said that SWSAHS has acted more than fairly in maintaining Dr Sivathondan's employment for two and a half years, much of it at a staff specialist's rate of pay, whilst she undertook further training and assessment and during which she did not work as a staff specialist anaesthetist; that it would unfair against the employer to make an order that would have the effect of requiring the continued employment of Dr Sivathondan at a staff specialist's rate of pay whilst she was required to work under close supervision at the lower level of an anaesthetist in training and in circumstances where there was no funding for such a position. This view is, of course, postulated in circumstances where the Commission has insufficient material before it upon which to base a judgment as to whether or not the decision to remove Dr Sivathondan from Bowral Hospital was fair in the first place. There is also the question whether Dr Sivathondan was treated unfairly compared to another doctor involved in the same incident who was also found to be culpable but in respect of whom the applicant says no action was taken. Putting those considerations aside, however, prima facie the respondent appears to have acted quite fairly in maintaining Dr Sivathondan's employment to date.

41 On the other hand, if Dr Sivathondan were not given the opportunity to work under supervision in accordance with the Medical Board's orders there would be a very substantial risk she would be re-assessed after 12 months as not competent to perform the work of a staff specialist anaesthetist. This would effectively put an end to Dr Sivathondan's career as a medical practitioner, given her limited right to practise.

42 I have come to the view that, notwithstanding the fair treatment hitherto accorded to Dr Sivathondan by the respondent - at least on the material before me - there is a serious question to be tried. The Medical Board, by its orders, has obviously taken the view that Dr Sivathondan should be given the opportunity to address the deficiencies in her performance identified by the Performance Assessors. If, on the other hand, the Performance Review Panel had formed an opinion that, for example, the review of Dr Sivathondan's performance raised a prima facie case of unsatisfactory professional conduct of a significant nature, the Panel would be required under s 86M(2) of the Medical Practice Act to refer the case back to the Medical Board with a recommendation that a complaint be made against Dr Sivathondan.

43 Part 4 of the Medical Practice Act deals with complaints about medical practitioners. Section 39 of the Medical Practice Act sets out the grounds for complaint and these include a lack of competence on the part of the medical practitioner. Division 3 of Pt 4 of the Medical Practice Act addresses how complaints are to be dealt with and Division 4 contains the disciplinary powers of the Professional Standards Committee and the Medical Tribunal. The Medical Tribunal may suspend or deregister a medical practitioner in certain cases including a case where a person is not competent to practise medicine.

44 In referring Dr Sivathondan's performance to the Medical Board SWSAHS did not choose the option of initiating the complaints process and the Performance Review Panel did not consider her performance raised a prima facie case of unsatisfactory professional conduct of a significant nature so as to attract the process or the sanctions identified in Division 4.

45 The Medical Board has, therefore, provided a clear opportunity to Dr Sivathondan to remedy the deficiencies in her performance by working under supervision in a position approved by the Board equivalent to an anaesthetist in training. Given the detrimental consequences for the applicant if she were ultimately dismissed from her employment with the respondent before being able to take up the opportunity available to her there is, I believe, a serious question to be tried as to whether the threatened dismissal is harsh, unreasonable or unjust.

46 The second question is whether the applicant will suffer irreparable injury for which the remedies available under Pt 2 of Ch 6 of the Industrial Relations Act will not be adequate unless an interlocutory order is made. Mr Murphy contended that given reinstatement is a remedy, the applicant could not suffer irreparable damage.

47 It seems to me that if the applicant did not secure the interlocutory order that she seeks, it would be open to the respondent to proceed to carry out its threat of dismissal. In those circumstances, the application for relief under s 89(7) would be rendered nugatory and it would be a question for the applicant whether she pursued an application for relief arising out of an alleged unfair dismissal. Having been dismissed, would the applicant suffer irreparable injury given the remedies available for unfair dismissal, namely reinstatement, re-employment or compensation? It is a finely balanced issue in my opinion.

48 Ordinarily, I would consider reinstatement to be an adequate remedy in the circumstances but what concerns me is that even if she were reinstated, Dr Sivathondan would, nevertheless, suffer damage. I already have the impression that Dr Sivathondan's professional reputation may have suffered by the events at Bowral Hospital and there were doctors and nurses who indicated, rightly or wrongly, that they were not prepared to work with her. If Dr Sivathondan were to be dismissed, this fact would become widely known within the small anaesthetist community and, indeed, throughout the health care industry and it would undoubtedly impact even more adversely on her professional standing than hitherto has been the case. Reinstatement may not wholly overcome the stigma associated with the dismissal. For example, if Dr Sivathondan were at some later stage to seek employment other than with the respondent, the stigma attached to the circumstances of her dismissal are likely to act against her. This is not a hollow supposition given the attitude of doctors and nurses at Bowral Hospital who indicated, before any action was taken against the applicant, that they were not prepared to work with her.

49 As to the balance of convenience, I consider it lies with the applicant. On the one hand, the respondent contends there is no funding to support Dr Sivathondan in employment whilst she is subject to the Medical Board's orders. On the other hand, if the interlocutory orders she seeks were not to be granted and Dr Sivathondan were dismissed, Dr Sivathondan would face the prospect of either never again being able to practise in her professional capacity of anaesthetist or having her professional reputation damaged as a consequence of the dismissal.

50 Another consideration, however, in the context of balance of convenience, is that if the Commission were to make the order sought by the applicant it may be interpreted to mean that Dr Sivathondan is to be continued to be employed and paid as a staff specialist anaesthetist during the period she is subject to the Medical Board's orders. That would not, in my opinion, be an appropriate outcome of these proceedings. It would also not be an appropriate outcome if, in accordance with any orders, Dr Sivathondan was not dismissed but continued in employment in an unpaid capacity for a period of at least twelve months in circumstances where she is willing and able to work in a position equivalent to an anaesthetist in training under level two (indirect) supervision. So that these outcomes are avoided I propose to make supplementary orders under s 89(8) of the Act.

51 It remains to be determined on what basis Dr Sivathondan is to continue in employment with the respondent pending any further orders the Commission might make in respect of final relief. In her response to the letter from Mr Raad Richards regarding the prospect of dismissal, Dr Sivathondan put forward three options regarding her continued employment. The first was that she continues in employment at Liverpool Hospital and undertakes supervised work in accordance with the Medical Board's orders. The second was that SWSAHS fund a secondment to another teaching hospital outside the area for which the respondent is responsible in order to allow Dr Sivathondan to undertake the supervised work necessary to comply with the Medical Board's orders. The third option was that Dr Sivathondan be allowed to continue in paid employment at Liverpool Hospital undertaking research work and that in conjunction with this arrangement she would seek unpaid supervised work at another teaching hospital so as to satisfy the Medical Board's requirements.

52 In the proceedings Mr Murphy, for the respondent, indicated that there was simply no position available for Dr Sivathondan under the conditions imposed by the Medical Board - not even an unpaid position because even that involved a drain on resources by virtue of the supervisory requirements of the Medical Board's orders. This view is perhaps influenced by the fact that the respondent regards itself as having acted very fairly in respect of Dr Sivathondan and that it should not have to carry the burden of continuing to employ a person who has been given such a fair go. That view is quite understandable. However, I regard Dr Sivathondan's options proposal, in the circumstances, not to be unreasonable.

53 I consider that the applicant has made out a case for an interlocutory order to be granted and against that background I propose to further order that the respondent consider which of Dr Sivathondan's options it is most readily able to accommodate. It is a matter for the respondent which of the options it proposes to implement. To avoid doubt, the orders I propose to make in these proceedings will identify the three options.

54 The Commission makes the following interlocutory order pursuant to s 89(7) of the Industrial Relations Act 1996:

Subject to the orders made in these proceedings under s 89(8) of the Industrial Relations Act 1996 and subject to further order of this Commission, South Western Sydney Area Health Service is not to dismiss Dr Dhayanithi Sivathondan in accordance with the threat of dismissal contained in the letter from Mr Raad Richards, Acting Deputy Chief Executive Officer of the respondent, dated 11 April 2002.

55 The Commission makes the following interlocutory orders pursuant to s 89(8) of the Industrial Relations Act 1996: 1. For the purpose of these orders "the Medical Board's orders" shall mean those orders made by the Performance Review Panel of the New South Wales Medical Board on 7 March 2002 in relation to Dr Dhayanithi Sivathondan. 2. The interlocutory order made in these proceedings under s 89(7) of the Industrial Relations Act 1996 is subject to the following conditions: (a) The continued employment of Dr Sivathondan shall be on terms consistent with the Medical Board's orders provided to Dr Sivathondan on 7 March 2002.

(b) The respondent shall consider which of the following options shall apply to Dr Sivathondan's employment during the period that the Medical Board's orders apply to the medical registration of Dr Sivathondan: (i) That she continues in employment at Liverpool Hospital and undertakes supervised work in accordance with the Medical Board's orders. The rate of remuneration payable to Dr Sivathondan shall be that applicable to the position approved by the Medical Board; or (ii) That the respondent fund a secondment to another teaching hospital outside the area for which the respondent is responsible in order to allow Dr Sivathondan to undertake the supervised work necessary to comply with the Medical Board's orders. The rate of remuneration payable to Dr Sivathondan shall be that applicable to the position approved by the Medical Board; or (iii) That Dr Sivathondan continues in paid employment at Liverpool Hospital undertaking research work and that in conjunction with this arrangement she would seek supervised work at another teaching hospital so as to satisfy the Medical Board's requirements. The rate of remuneration for the research work shall be that applicable to such research work. c) During the period that the Medical Board's orders apply to the medical registration of Dr Sivathondan, the hours of work for Dr Sivathondan shall be determined by agreement with the respondent. 56 The foregoing orders shall apply from the date of this decision. Liberty is granted to the parties to apply on reasonable notice.

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At a glance

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Before

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Judgment (73 paragraphs)

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Cases Cited (4)