Charles Henry Norville and New South Wales Fire Brigades [2007] NSWIRComm 45 - NSWIRComm 2007 case summary — Zoe

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Charles Henry Norville and New South Wales Fire Brigades [2007] NSWIRComm 45

[2007] NSWIRComm 45

Industrial Relations Commission (NSW)|2007-02-14|Before: Sams DP

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2007-02-14

Before

Sams DP

Catchwords

Held

Source

Original judgment source is linked above.

Catchwords

Held

Judgment (38 paragraphs)

[1]

CITATION: Charles Henry Norville and New South Wales Fire Brigades [2007] NSWIRComm 45

[2]

APPLICANT Charles Henry Norville PARTIES: RESPONDENT New South Wales Fire Brigades

[3]

Application for reinstatement of injured employee - firefighter medically retired 12 years ago - personality disorder - medical evidence - applicant declared fit for employment - respondent refused to re-employ applicant - unfair dismissal application dismissed (subject to appeal) - applicant received and continues to receive breakdown pension - significant jurisdictional issues - meaning of injured employee - whether provisions of Superannuation Act apply - relationship to workers' compensation legislation - whether applicant dismissed from employment - whether obligation on respondent to re-employ applicant - whether special circumstances exist to accept claim - applicant applies for firefighter position - failure to pass entry requirements - allegations of corruption and coercion - recruitment process unfair - changes in firefighting not contested. CATCHWORDS: Held; Superannuation Act has no relevance to this application - applicant medically retired not dismissed - applicant not an injured employee - employment does not 'subsist' - no special circumstances established to accept claim - no obligation on employer to offer re-employment - application dismissed on jurisdictional grounds - allegations of corruption and coercion not made out - changes to firefighting make it impractical to reinstate applicant - safety risk - applicant in receipt of breakdown pension and engaged in other employment - significant time delay in initiating proceedings - application could also be dismissed on discretionary grounds - application dismissed.

[9]

Application by Charles Henry Norville for reinstatement of an injured employee pursuant to section 93 of the Industrial Relations Act 1996 DECISION [2007] NSWIRComm 45 1 Charles Henry Norville ('the applicant') was a senior firefighter before he was retired medically unfit from the New South Wales Fire Brigades ('the respondent') on 5 July, 1995. Eight years later, on 9 July, 2003 the Government Medical Officer found that the applicant was fit for employment as a senior firefighter and as a result, on 17 February, 2006 - although some two years and seven months later - the applicant wrote to the respondent requesting that he be reinstated to his former position. 2 It is curious to note that this request was made one day after the applicant had failed in a s 84 unfair dismissal application before Macdonald C on the grounds that the application was some ten years out of time and no sufficient reason had been established by the applicant as to warrant the exercise of the Commission's discretion to accept the application out of time pursuant to s 85(3) of the Industrial Relations Act 1996 ('the Act'). That decision is presently subject to appeal. 3 The respondent has consistently refused to reinstate the applicant. On 15 March, 2006 the applicant lodged an application for reinstatement, pursuant to the provisions of Pt 7 Ch 2 of the Act - Protection of Injured Employees. It is to be noted at this juncture that all of the provisions under Pt 7 Ch 2 of the Act were recently transferred to the Workers Compensation Act 1987 and became Part 8 of that Act on 27 November, 2006: see Industrial Relations Further Amendment Act 2006. It was not in dispute that this change in legislative arrangements has no effect on the present application in legal or practical terms as it was filed on 15 March, 2006. The application was therefore considered under the terms of the Industrial Relations Act 1996 and will be determined under the relevant sections in Pt 7 Ch 2 of that Act. 4 The application immediately calls into issue s 93(3) of the Act which relevantly provides as follows: The Commission may not make a reinstatement order, except in special circumstances, if the application to the employer for reinstatement was made more than 2 years after the injured employee was dismissed.

[13]

THE EVIDENCE 8 As mentioned, the applicant has at all times, appeared unrepresented, although he had claimed to have had some legal advice. Regrettably, but perhaps understandably considering the applicant's self representation, the documents said to be the affidavits filed by him in the proceedings were a mixture of submissions, opinions and theories. While Mr Reitano outlined the objections to the documents, he helpfully did not take violent issue with their admission in the proceedings, subject to those caveats identified on the record. The applicant relied on his originating application and three further documents filed on 7 November, 2006, 8 December, 2006 and 30 January, 2007. It seems to me that it would not be particularly useful to disaggregate each of these documents into proper form. However, I intend to outline the applicant's case, as best as I understand it, from these documents, noting that much of the background to the matter is uncontested. 9 The applicant was appointed as a probationary firefighter in 1981. He was medically retired on 5 July, 1995, but claims he had no choice in the matter and had accepted medical retirement because his illness was such as he was in no position to challenge it. He now believed the medical reports used to justify his retirement were selective adversarial workers' compensation reports given to the Government Medical Officer by the employer. When he was refused re-employment after being declared fit for employment in February, 2003 he claimed that the respondent had an obligation to re-employ him as his employment had "subsisted" from 1995 to 2006 pursuant to s 29, s 48 and s 51 of the Superannuation Act 1916, (the 'Superannuation Act'). 10 It is pertinent to observe that the applicant has been receiving a breakdown pension pursuant to s 48 of the Superannuation Act continuously since July, 1995 and, notwithstanding that he is currently employed as an adult apprentice. 11 At this point, I shall refer to the provisions of the Superannuation Act the applicant relied upon. Section 29 of that Act deals with breakdown pensions and provides at subsection (1) for the following: (1) Except as provided by subsections (2), (2A) and (3), if a contributor is retired on the ground of invalidity or physical or mental incapacity to perform the contributor's duties, the contributor shall, subject to section 10AA (2), be entitled to the full pension for which the contributor was contributing as at the contributor's exit day. Section 48 of the Superannuation Act is expressed as follows: Breakdown pensioner held to be on leave

[14]

Any pensioner who is in receipt of a "breakdown" pension, shall for the purposes of this Act be held to be on leave of absence without pay, but shall not be required to contribute in respect of the period of such leave. Notwithstanding the fact that the pensioner is held to be on leave of absence, the pensioner's office or position shall be held to be vacant, and may be filled by the appointment thereto of some other person. Section 51(1) is as follows: Employee restored to health may be recalled to service (1) If, in the opinion of STC, the health of any pensioner retired as aforesaid has become so restored as to enable the pensioner to perform duties which, having regard to the duties performed by the pensioner immediately prior to the pensioner's retirement, are in the opinion of STC suitable to be performed by such pensioner, STC may communicate with the employer from whose service the pensioner was retired, or any other employer under this Act, and, if suitable employment be found for such pensioner, at a salary not less than two-thirds of the salary of a person who is employed in a position which is, in the opinion of STC, a corresponding position to that in which the pensioner was employed immediately before the pensioner's retirement, or at such salary as may be agreed upon between the pensioner and the pensioner's employer, may cancel the pension; thereupon the pension shall cease to be payable. 12 The applicant considered himself to be on leave of absence without pay as referred to in s 48 of the Superannuation Act and since 1995 he had been awaiting assessment as required by that Act. The applicant put that it was mandatory for the STC (State Super) to contact the respondent when he was declared fit for employment and for the respondent to offer him re-employment. 13 The applicant said that the 'special circumstances' required to be established under s 93(3) of the Act were "maintained under Crown contract and that tenure of re-employment are provided under the compulsory features of the Superannuation Act 1916". 14 In Exhibit 1 the applicant sought to respond to the respondent's outline of contentions. He attached various medical reports from 1990 to 1994 which he claimed demonstrated that he had "been tormented and victimised in my employment". He had notified a work related stress injury on 16 February, 1993. On 9 June 1993 a psychiatrist, Dr O S Stanley had said: Mr Norville has clearly suffered from symptoms of anxiety as a result of his difficulties at work. These anxiety symptoms have included tension, anxiety, irritability, headaches, loss of motivation. These symptoms have contributed significantly to marital distress and separation from his wife. His symptoms have improved somewhat since being away from work. There is no doubt that he is an idealistic man who sees himself as fighting a crusade. it may well be that his grievances about the organisational structure at the Fire Brigade have some validity. The problem appears to be in the nature of a personality clash between himself and his superiors and his resistance to accept the opinions of his superiors. If his temperament were more passive and compliant then no doubt these problems would not have arisen. There is evidence of some general grandiosity in his overall expression of opinions. I do not believe he has been singled out to be victimised and therefore I do not believe his problems are directly work related. His symptoms are genuine and he requires ongoing psychological treatment. I believe that without treatment he may not be able to cope with work.

[17]

The New South Wales Government Medical Officer, Dr Gapper, through HealthQuest, made the following assessment on 19 June 1995: The abovenamed ex-firefighter was seen at HealthQuest on 9 June 1995 for independent review of his fitness to continue in some form of employment with New South Wales Fire Brigades. He has in fact worked outside the organisation as a tool setter and ceased work with Fire Brigades in August 1994 with a medical certificate for "stress" from his own doctor. Mr Norville had been seen by psychiatrist, Dr Rod Milton, in November 1994 in relation to his stress claim and reported his various legal and other actions in trying to hold his employer responsible for him not feeling safe a (sic) work. There is a long history of perceiving himself as a victim and of projecting responsibility for personal adversity onto others around him eg. his employer in this instance. There are several incidents of conflict with his employer which he has dealt with by confrontation. This long history of conflict is associated with the development of symptoms of anxiety and depression which Dr Milton attributes to decompensation due to an underlying personality disorder which renders him vulnerable. Mr Norville has had access to professional treatment for his condition since at least 1990. On current examination he is anxious, self absorbed and obsessionally concerned with his problems. Despite access to treatment on and off for some years, he continues to have no insight into the reality of his condition or ability to change it. He has a fixed perception regarding his employer and as a result has persistent symptoms and signs of anxiety and depression which are extremely unlikely to resolve if any continued employment with the Fire Brigades is attempted. He is considered permanently medically unfit for employment with New South Wales Fire Brigades due to symptoms of anxiety and depression associated with personality disorder. Medical retirement is appropriate. He is not considered totally and permanently unfit for employment elsewhere. Please advise if you wish a retirement certificate to be issued on the basis of this opinion.

[20]

16 The applicant did not appeal HealthQuest's conclusions or his medical retirement. Later documents in July 1995 prepared by the respondent describe the applicant as being retired on the grounds of "physical incapacity". This was amended by the Administrative Decisions Tribunal ('ADT') in April, 2005 to read "psychological unfitness", despite the applicant seeking to have the reason for his retirement altered to read "work related stress". While he disagreed with the ADT decision, he did not appeal it. 17 On 15 March, 1996 the Workers' Compensation Court made the following consent orders in settlement of the applicant's workers' compensation claim: That the liability of the respondent to make weekly compensation payments to the applicant in respect of incapacity for work resulting from injury/ies referred to in the application for determination may be commuted as from 26th August 1994 by payment to the applicant of a lump sum of $30,000 as determined by the Court pursuant to the provisions of section 51 and in addition to any payments made. 18 In early 2004, State Super made a request for the applicant's re-employment with the respondent (presumably pursuant to s 51 of the Superannuation Act). It is plain that the applicant was aware of this request. Mr Doug Messenger, the respondent's Assistant Director Operational Personnel replied on 17 August, 2004: The Brigades have assessed this request and concluded that the NSW Fire Brigades are not in a position to offer any suitable employment to Mr Norville. This decision is based on the following: 1. Being out of the Brigades for some nine years would require an extensive training program for Mr Norville to gain the knowledge and skills required by a current firefighter. 2. The following Medical Reports concerning Mr Norville, were also considered in making a decision. Medical Reports: Dr D Weinman (treating GP) - 1 April 1993 Dr C Harris (medico-legal) for GIO - 14 April 1993 Dr O Stanley (psychiatrist) for GIO - 9 June 1993 Dr R Milton (forensic psychiatrist) - 16 November 1994 Dr D Hamilton (psychiatrist) for Hickson's Lawyers - 27 January 1995 Dr O Stanley (psychiatrist) for Hickson's Lawyers - 1 February 1995 These reports consistently opine that Mr Norville's personality and psychological functioning were in conflict with the organisational structure, workplace culture and demands of the NSW Fire Brigades from quiet (sic) early in his employment and for a prolonged period of time. Diagnoses provided include: -personality clash with symptoms of anxiety and depression -a significant underlying personality problem -obsessive personality Over a two year period he told the assessing doctors that he did not wish to even return to work with the NSW Fire Brigades as he did not trust them. He lodged formal complaints about numerous issues (up to 70 complaints in total). These were to the Brigades directly and to almost every other possible government agency - including ICAC, the Coroners Court, The Office of Public Management, his local member of parliament and the Minister. There is no evidence that he was successful with any of his lines of complaint. He was eventually referred to the government medical officer, who recommended retirement on medical grounds due to personality disorder. The opinion of doctors assessing Mr Norville in the years leading up to this was that he was definitely not suited to work within an organisation such as the NSW Fire Brigades. He had incompatible personality traits and unrealistic expectations of his employer. One of the psychiatrists also felt that he would have difficulties working with any large or similar employer. Summary Mr Norville was assessed by five different doctors prior to medical retirement. Three of these were psychiatrists. He was considered to be permanently unfit for employment with the NSW Fire Brigades due to his personality being incompatible with this employer (and any similar). The symptoms he had of anxiety and depression were not the underlying disorder; they were the symptoms of the conflict that occurred as a consequence. The underlying condition was personality disorder. It is reassuring that his symptoms of anxiety and depression have resolved, however, his underlying personality traits cannot be changed. In conclusion even though he is currently well, there is a very real risk that he will quickly come into conflict with his employer again. This would not be in his best interest. It would also be contrary to the welfare of presently serving employees and NSW Fire Brigades Officers, who endured years of his accusations against them. The NSW Fire Brigades is not in a position to offer any suitable employment to Mr Charles Norville.

[21]

The applicant claimed that this reply was an "illegal" attempt to appeal against the Government Medical Officer's opinion. 19 In Exhibit 2 the applicant put that the invitation to re-apply as a firefighter last year was spurious and that if recognition of prior learning was used, his academic qualifications would exceed most of the senior officers in the Fire Brigades. 20 The applicant maintained that his employment "was never disengaged and subsisted under s 48 of the Superannuation Act". Contrary to the respondent's position, there was no legal fiction about the intention of s 48. 21 The applicant further claimed that the respondent had either "carelessly or purposely disposed of my file" after his 2002 Freedom of Information (FOI) application. He had complained to his local State and Federal MPs about the respondent's "ongoing historical negligence". 22 In oral evidence, the applicant conceded that he had told Dr Milton in 1995 that he no longer wished to be a firefighter. He accepted that his employment with the Fire Brigades was terminated as a result of Dr Gapper's opinion that he suffered from a personality disorder and the consequent recommendation he be medically retired. 23 The applicant agreed that he had made serious allegations against senior managers of the respondent, including allegations of "institutionalised Freemasonry" and corruption. He described some managers as being "useful idiots". Despite these views, the applicant maintained his desire to be reinstated to the Fire Brigades. 24 The applicant was asked to explain why it had taken almost three years from when he was declared fit for employment for him to request re-employment. He claimed he had been seeking a response from State Super and had taken action in the ADT to have documents corrected as to the reasons why he had been terminated. The ADT had changed the reason from 'physical incapacity' to 'psychological unfitness'. He said the respondent had the medical clearance anyway and should have offered him a job back. He acknowledged however, that he did not speak or write to anyone in the Fire Brigades seeking his job back from 9 July, 2003 to 17 February, 2006. 25 The applicant insisted that his employment "subsisted" under s 48 of the Superannuation Act, although he remained on a pension. The applicant said the 'special circumstances' he relied on for his claim to be accepted was the provisions of the Superannuation Act.

[31]

SUBMISSIONS 34 The applicant submitted that the respondent's affidavits had created an 'illusion' that he was incapable of being a firefighter. The evidence did not refer to his application for an occupational health and safety advisor; a position for which he was ably suited. He was not even interviewed for the position. He added that the respondent had been negligent in losing documents from his file. 35 The applicant maintained that he could retain his 'Crown contract' (of employment) through part time employment with the respondent and complete his apprenticeship. He was working as an adult apprentice at a shipping container refrigeration company at Matraville earning around $396 nett a week, while continuing to receive a pension of $500 per week. He said 'double dipping' was rife in the public sector, but he would give his pension back if he was reinstated as a firefighter. He said he had always 'done the right thing' and had cooperated with HealthQuest. While he had numerous qualifications, he said his past learning and experience had counted for nothing. He believed that an evaluation of his abilities should be made by an independent body. 36 The applicant said he had been restored to health and had made a bone fide application for re-employment under s 51 of the Superannuation Act. The respondent had requested more information and medical reports, but even then had refused to offer him a position. The process was "highly under handed" and it wasn't his fault if statutory bodies failed to do their duty. 37 The applicant claimed that he was told by State Super on four occasions that he was to be reassessed. However, the respondent had never offered him any rehabilitation. 38 The applicant proposed settling this matter and his appeal in Matter IRC06/1393 by reinstatement as a firefighter and being paid $212, 644, less monies received from his pension. For the respondent 39 Mr Reitano submitted that what the applicant had put in respect to the Superannuation Act was plainly wrong. The Superannuation Act had no relevance to this application. Mr Reitano explained that s 29 of that Act deals with a break down pension which the applicant became entitled to in July 1995. The section is unrelated to the workers' compensation legislation as medical retirement might arise from an incapacity to perform duties arising outside of employment. Section 48 which deals with the pensioner being held to be on leave, is designed to preserve the entitlements to superannuation benefits. It has nothing to do with the "subsistence" of Crown employment. Further, section 51 has nothing to do with the respondent and places no obligations on the respondent to re-employ the applicant. The issues here are whether the applicant was an injured employee under the Industrial Relations Act and there must be a causal nexus between the dismissal and the injury. Neither apply in this case. 40 Mr Reitano submitted that the applicant's personality disorder did not arise from his employment with the respondent. He was medically retired because the respondent had formed the view that his disorder was inconsistent with employment with the Fire Brigades. The disorder was not an injury within the meaning of the Workers' Compensation Act 1987. 41 Mr Reitano said the applicant had failed to establish any special circumstances for his application to be accepted out of time. He repeated that the Superannuation Act had nothing to do with this case. He said that if two years is the threshold, how much more difficult would reinstatement be after 12 years; particularly when the work of firefighting had undergone considerable change. 42 Mr Reitano referred to the changes in firefighting since 1995 and the applicant's failure to gain entry in the recent recruitment intake. These were matters militating against the exercise of the Commission's discretion, notwithstanding the 12 years since the applicant's medical retirement. 43 Mr Reitano traced the medical history of the applicant and the diagnosis of his condition from 1993 to 1995 (see paras 14 and 15) Mr Reitano submitted that all of the doctors' opinions had been consistent. In reply 44 The applicant claimed that the 1990's workers' compensation reports were selective and fabrications and that there had never been a diagnosis by any competent doctor of a personality disorder. He described Dr Milton's report as "machine gun psychiatry". He said that because he was unwell at the time, he was in no position to quibble with the medical reports. He needed some income at the time through the pension. 45 The applicant challenged the validity of the recent recruitment process and said that his prior knowledge and learning should have been taken into account. He said a Chief Superintendent receiving in excess of $100, 000 had very little qualifications.

[37]

Merits 55 As I have demonstrated, this application can be dismissed on at least two jurisdictional grounds. However, I would wish to add that I find no basis to conclude that the applicant has established 'special circumstances' to permit an order of reinstatement being made pursuant to s 93(3) of the Act. There is no dispute that the application for reinstatement to the employer was made on 17 February, 2006, some two years and seven months after the Government Medical Officer declared him fit for work as a firefighter. He acknowledged that he had made no contact with the employer seeking reinstatement from 9 July, 2003 to 17 February, 2006. This is a significant period of inactivity on the applicant's behalf. I do not accept his explanations for not doing so. 56 The applicant's evidence was that the only special circumstance he relied on was that relating to the provisions of the Superannuation Act 1916. As I have already said, the applicant's reliance of this Act, is entirely misplaced. The applicant did not explain what he meant by this connection to 'special circumstances and the Superannuation Act. I do not entirely understand the connection. In any event, no other special circumstances exist, or were relied upon in the proceedings. In that context, no order of reinstatement could be made. 57 Even assuming the jurisdictional hurdles had been overcome and the applicant had satisfied the Commission that 'special circumstances' had been established for a reinstatement order to be made, I would not, in the exercise of my discretion, make such an order. I make this finding for the following reasons: 58 Firstly, the applicant has not worked as a firefighter for nearly 12 years. The uncontested evidence of the respondent was that the profession of firefighting has undergone considerable change during that period. I accept this evidence. The applicant's recent attempt at re-applying for the Fire Brigades, demonstrates that at the present time, he is ill-equipped for, and unable to meet even first entry basic requirements. The Commission would be most reluctant to reinstate a person who was unable to meet these requirements. To do so would place himself, his colleagues and the public at potential risk. 59 Secondly, and more importantly, the applicant has an ongoing, unhealthy and bizarre hostility towards the New South Wales Fire Brigades and its management. It would seem that the passage of time has not mellowed this hostility. During the proceedings, he raised some extraordinary and unsupported allegations. He claimed the Fire Brigades did not operate to the true ideals of Freemasonry. He accused senior managers of being corrupt, and having been turned into "useful idiots", (a term said to be used in Freemasonry). He believed the recruitment selection process was unfair and underhanded and the respondent was "guilty of coercion". 60 These strange views seem to be no different to what Dr Milton observed in November 1994 when he said: Mr Norville perceived himself as the victim of persecution. He was outspoken about the morality of senior officers, describing one officer as corrupt and beyond reach of justice because he was in the Fire Masonic Lodge. Claims of this nature were so extreme and so profuse that they had to be regarded as delusional. 61 In my view, the applicant's hostility towards his former employer, as displayed in these proceedings, is inconsistent with the restoration of the employment relationship and the importance of ensuring trust and fidelity in that relationship. I am not satisfied that the applicant can sensibly or usefully operate in the hierarchical structure and stressful environment of firefighting. 62 Thirdly, the applicant refuses to acknowledge that he was diagnosed with a personality disorder 12 years ago. The applicant claimed there was no diagnosis of a personality disorder at the time by any competent doctor. All the reports were fabrications. He described Dr Milton's report as "machine gun psychiatry". On the other hand he now says that he was so ill at the time that he was in no position to challenge the diagnosis. While this submission again demonstrates the contradictory and confusing nature of the applicant's arguments, I am not convinced that a person who holds such views, could properly be disposed to be re-employed as a firefighter. 63 Nevertheless, for the reasons earlier outlined, this application must be dismissed for want of jurisdiction. Peter J Sams, AM Deputy President

Charles Henry Norville and New South Wales Fire Brigades [2007] NSWIRComm 45

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