Clarke v Health Secretary

The task before the Commission

1. The applicant asserts that the Dismissal was unfair because: 1. he had a psychiatric injury which was the result of the trauma to which he was exposed at PCC [5] ; and 2. his substantive position at PCC was abolished as a result of the decommissioning of PCC and the decommissioning of PCC caused his psychological injury [6] ; and 3. he was the only employee at PCC who "was on workers compensation" [7] , and 4. he was not offered a "suitable position" nor "given access to appropriate training and support, for any position within the NSW Health Service" [8] , and 5. consequently, he was entitled, pursuant to the NSW Health Service Policy Directive PD 2012-021 "Managing Excess Staff of the NSW Health Service" ("MES Policy") to "monetary compensation as determined by the [MES Policy]" [9] which he did not receive.
2. It is clear that a person whose employment has been terminated on "medical grounds" is entitled to seek relief under section 89 of the Act if it can be demonstrated that the termination was effected in a manner which rendered it harsh, unreasonable or unjust. No contention to the contrary of this proposition was put by the respondent.
3. The task before the Commission in these proceedings is to examine the events which led up to the termination and the MES Policy, in order to determine whether or not the termination of the applicant's employment was harsh, unreasonable or unjust.

The applicant's medical assessments and capacity for work

1. On 9 October 2017, while working at JMCC, the applicant lodged a workers compensation claim for "work acquired PTSD, anxiety and panic attacks" [10] . The applicant alleges that this was "a direct result of multiple verbal and physical assaults whilst employed at 'the Centre'". The applicant's nominated treating doctor, Dr Emma Green, issued a "WorkCover NSW - certificate of capacity" stating that the applicant had no capacity for any employment from 9 October 2017 to 30 October 2017 [11] .
2. At paragraphs 24 to 42, Ms Varga deposed to the applicant's medical condition and capacity to work in the period between October 2017 and June 2020.
3. From October 2017 to June 2020, the applicant's medical condition and capacity to work were the subject of the following reviews: 1. the report by Kelsey Tribe, Rehabilitation Consultant, dated 19 February 2018 ("2018 Tribe Report") [12] ; 2. the report by Dr Yajuvendra Bisht, Psychiatrist, dated 21 May 2018 ("2018 Bisht Report") [13] ; 3. the report by Dr Yajuvendra Bisht, Psychiatrist, dated 4 January 2019 ("2019 Bisht Report") [14] ; 4. the report by the applicant's treating psychiatrist, Dr Selwyn Smith, dated 5 June 2019 ("2019 Smith Report") [15] ; and 5. the report of the independent medical examination by Dr Graham Vickery, Psychiatrist, dated 26 November 2019 ("2019 Vickery Report") [16] .
4. The 2018 Bisht Report provided the following assessments: "8. Your opinion of Mr Clarke's fitness for employment of any sort (including pre-injury employment), with any restrictions. Please provide detailed description as to what restrictions may currently be appropriate, strategies that may be utilised to address any barriers to return to work and relevant time frames to improve capacity. At this point Mr Clarke should not do nursing duties, and shouldn't have exposure to any workplaces similar to previous workplace, including any medical wards - this restriction would apply for 6 months and can be reassessed at that time. He can do suitable duties up to 20 hours a week however. The main strategy to address the barriers to return would include appropriate treatment. The relevant time frame to improve capacity would be 6 months. 9. Estimated period of incapacity and prognosis generally. The incapacity in regards to the nursing job in prison health is very likely to be permanent, though a final comment can be made only in about 6 months' time. With regards to prognosis regarding other nursing jobs, the prognosis would be guarded at this stage - in 6 months' time, his capacity to return to other nursing jobs can be revaluated." [17]
5. The 2019 Bisht Report provided the following assessments: "7. Your opinion with respect to current capacity for employment of any variety including restrictions? He has capacity to work pre-injury hours, but not as a nurse. He can continue in his current vocation. At this point he cannot work as a nurse, but he can work in other vocations. The incapacity to work as a nurse in the prison system is permanent. He should be able to start working as a nurse in another setting in about 6 months' time. 8. When would you anticipate that the fitness for work should be upgraded? I would anticipate that the fitness for work should be upgraded in about 6 months' time. 9. Your advice as to whether scope of employment will be affected permanently as a result of injury sustained and, of so, could you recommend to what degree? I would opine that his incapacity to work as a nurse in the prison system is permanent." [18]
6. Ms Varga deposed in her Affidavit sworn 3 September 2020: "34. On 5 June 2019, a report was prepared by Dr Smith. Dr Smith diagnosed Mr Clarke with Post Traumatic Stress Disorder (PTSD). Dr Smith arrived at a final assessment of 21% Whole Person Impairment (WPI)."
7. Under cross-examination, the applicant gave evidence that the levels of impairment were different in the 2019 Smith Report and the 2019 Vickery Report [19] , but did not contradict the evidence of Ms Varga about the 2019 Smith Report. The applicant also accepted in cross-examination that he could no longer perform a "clinical role" [20] but could perform a role of an "administrative or managerial nature" with "[g]ood training in a reasonable period of time, [and being] given reasonable access to appropriate training support" [21] .
8. The 2019 Vickery Report provided the following assessment under the headings "Incapacity" and "Permanent Impairment": "Incapacity 11. Do you think the worker is incapacitated for work from a psychological perspective? If so, why and to what extent? If not, why not? Mr Clarke is incapacitated for work from a psychological perspective with working up to twenty-four hours a week however this is expected to improve in the future. 12. If you consider the worker is fit to work, please indicate how long this has been the case and the sorts of jobs he could manage on the open labour market, having regard to his education, skills and employment background. Mr Clarke has been fit to work since 2018 in relatively low stress outdoor jobs and where he can basically work on his own. … 17. … please quantify whole person impairment for psychological injury in accordance with the PIRS scale in the SIRA Guidelines… … % Whole Person Impairment: 6%" [22]
9. The applicant has been able to undertake casual work externally, including as a subcontractor/pool cover installer. [23]
10. The medical evidence before the Commission establishes that the applicant's incapacity to work as a nurse in the prison system is permanent. Further, the applicant accepts that he could not perform a clinical role as a Registered Nurse.

Was there a valid reason for the termination?

1. A long term medical illness or injury that prevents an employee from performing the inherent duties of the position for which he or she is employed constitutes a valid reason for termination: Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [44]. However, the failure by an employer to take reasonable steps to accommodate the employee's limitations may render a termination harsh, unjust or unreasonable: Riley v WorkCover Authority of New South Wales (2006) 151 IR 396 at [80].
2. On 28 February 2018, Mr Forrest sent a letter to the applicant to inform him of the outcome of the expressions of interest for the PCC tender. This letter included a link to the MES Policy and also stated: "… Please be assured the Network will work closely with you and all staff affected by this process, and those across the Network. Information and support The Network will ensure you have access to information and support over the coming months and its resources will be available to assist you, including confidential advice and support. … Your options … To assist staff in the early identification of opportunities for placement and avoidance of declaring employees excess, the Network will work with you to find the same job you are currently performing at another centre within reasonable distance from Parklea Correctional Centre. As an affected staff member you are also eligible for priority consideration across NSW Health.
3. The applicant accepts that he cannot perform the role of a Registered Nurse. However, the applicant says that because he was on workers compensation leave he was not offered a suitable position nor given access to appropriate training and support for any position within the NSW Health Service. I have considered these assertions in the context of these proceedings. In doing so I have assumed, in the applicant's favour, that the applicant's complaint and the Application involve the claims that there was no valid reason for the Dismissal as a consequence of these alleged failures, and/or that the process of terminating the applicant's employment was unfair due to these failures.
4. It has been established that at the time of the termination of his employment: 1. the applicant's injury was being managed through the workers compensation process; 2. the applicant had no capacity to perform the role of Registered Nurse and therefore could not be redeployed in that role; and 3. the applicant was working casually as a pool cover installer, consistent with his medical limitations.
5. I accept that the assessments of the applicant's fitness to return to duties establish that the applicant was no longer able to perform the clinical and professional duties of a Registered Nurse at JH&FMHN or elsewhere. I accept that as a consequence of this, the applicant was no longer capable of ensuring his own health and well-being or that of others who rely on his fitness for duty to also be safe, or of ensuring the paramount needs of patients with complex needs in the respondent's care.
6. The applicant asserts that he was not offered suitable alternative duties or retraining. The respondent denies this.
7. Although the applicant complains that he was not provided with appropriate training and support, he does not identify how training or support could have overcome his incapacity to work as a nurse, nor does he suggest any reasonable accommodations that could have been made to enable him to work in the prison or health systems.
8. The applicant was asked in cross-examination about an offer of administrative or clerical (ie non-clinical) work in respect of a database project called "Chimes". The applicant's evidence was that he could not undertake the work on Chimes because the work could not be performed outside the prison system, and therefore the role was not suitable because "the environment that [he] would be working in with the managerial capacities of the executive … who had single-handedly, as far as [he] was aware, bullied [him] and [he] did not feel comfortable going back to that environment". [24]
9. In re-examination about suitable duties and the Chimes project Ms Varga gave the following evidence: "In May 2018 [the applicant] was offered suitable duties to undertake a project around Chimes. That could have been undertaken in any place in Justice Health, not just in a correctional facility or a correctional client. I understand from the documentation that I've read that that was declined."
10. To the extent of the inconsistency in the evidence of the applicant and Ms Varga on the matter of the Chimes project, I prefer the evidence of Ms Varga as to whether the project could be performed elsewhere in the respondent's network, and not only in a correctional facility or a correctional client.
11. I accept that there was a valid reason for the termination of the applicant's employment, being his incapacity to perform the inherent requirements of his role, or any other Registered Nurse role or other clinical role to which he would have been deployed. In circumstances where injury management was being undertaken within the workers compensation system, the respondent took reasonable steps to try to accommodate the applicant's limitations, including making an offer of redeployment to the Chimes project which was rejected by the applicant. The applicant was not unreasonably denied appropriate training and support nor did the respondent fail to make reasonable accommodations or modifications to enable the applicant to work for the respondent.

Managing Excess Staff of the NSW Health Service ("MES Policy")

1. The applicant has consistently maintained that he is entitled to a voluntary redundancy payment. In that respect the applicant sent two emails to Ms Varga on 3 April 2019: In the first of these emails forwarded to Ms Varga at 9.15 am, the applicant stated: "As l no longer have a substantive position at Parklea Correctional Centre - the division of NSW Health Service where I am employed - I am to be declared an excess staff member and offered a Voluntary Redundancy as per the NSW Health Service Policy Directive PD2012_021 "Managing Excess Staff of the NSW Health Service"." [25]
2. Ms Varga responded: "… Whilst JH&FMHN is no longer responsible for the health service for Parklea, there remains many vacancies for registered nurses within the Network."
3. In the second email of 3 April 2019, the applicant replied: "Why is the policy not being followed it clearly states that a person on WC shall be offered a vacancy for redundancy if the substantive position is deleted. This policy is binding for all employees of NSW. The policy was forwarded by Gary Forrest and yet you now say the network is refusing to follow it." [26]
4. The applicant claims that the MES Policy provides him with an entitlement to voluntary redundancy. In particular, he refers to the following sections of the MES Policy to support his claim [27] : 1. section 1.2 - Key Definitions: "Excess Staff: means members of staff of the NSW Health Service who are advised in writing that they no longer have a substantive position in the Division of the NSW Health Service in which they are employed and where no suitable vacant permanent or temporary positions are available. Once an excess staff member is appointed to a permanent position, that staff member is no longer considered excess. … Suitable position: is a position where the excess staff member can meet the selection criteria for the position, or is likely to perform adequately in the position in a reasonable period of time, given access to appropriate training and support, and the position is of equivalent salary to the excess staff member's former substantive position (or lower, if the staff member consents); and the position is located within reasonable commuting distance, or at any other location agreed to by the excess staff member." 1. section 4 - Declaring a staff member excess: "… A staff member is declared excess when they no longer have a substantive position and the employer determines that there are no other suitable vacant permanent or temporary positions in the organisation into which the staff member may be placed. … A staff member on workers compensation may be declared excess when they no longer have a substantive position. Declaring the staff member excess must not be due to a staff member's work-related injury or illness."
5. I accept the evidence of Ms Varga that the applicant was not excess to the requirements of the respondent as the respondent had numerous vacancies for Registered Nurses. I accept that if the applicant had been certified as fit to return to the workplace and he was confident that he could safely perform the inherent requirements of the role without risk to his own or others health and safety, he would have been consulted regarding placement in a clinic that had a vacancy. [28] Ms Varga also deposed to the following, which I accept: 62. As a result of the decommissioning of JH&FMHN services at PCC a total of 35 staff including specialists were affected; 16 of these staff members were nursing staff including Mr Clarke. In relation to the other 15 nursing staff, the following outcomes occurred: (a) Staff were placed in their preferred alternate positions/locations in the first instance. Where multiple staff requested the same location, an interview occurred. 13 staff members were transferred to other JH&FMHN locations; (b) 1 staff member who is an enrolled nurse secured a role at Silverwater Correctional Centre: (c) 1 staff member chose to resign prior to the final transition date: and (d) No permanent JH&FMHN staff remained at PCC. 63. During this period of time, while Mr Clarke had no capacity for work at JH&FMHN. he was undertaking casual work externally. Mr Clarke's position at PCC was transferred to another cost centre. Exhibited at Tab 18 of Exhibit TLV1 is a copy of the staff variation form signed by Miriam Nolan dated 23 May 2019. 64. Through the process of decommissioning of JH&FMHN services at PCC, no JH&FMHN staff were made redundant.
6. The applicant was informed by Ms Varga on 3 April 2019 that the respondent had numerous vacancies, and should he be certified fit to return to the workplace, he would be consulted regarding such a placement. [29]
7. The MES Policy states in the section headed "Declaring a Staff Member Excess": "A staff member on workers' compensation may be declared excess when they no longer have a substantive position. Declaring the staff member excess must not be due to a staff member's work-related injury or illness."
8. This is not a mandatory provision. A staff member on workers compensation "may" be offered a voluntary redundancy; the language in this section of the policy is discretionary.
9. The applicant's case seems to be suggesting that because his substantive position no longer exists and he has no capacity for work with the respondent that he is entitled to the benefit of a voluntary redundancy. This is a misapprehension of these provisions of the MES Policy, and is in conflict with the requirement that "declaring the staff member excess must not be due to a staff member's work-related injury or illness".
10. On this basis the applicant does not meet the definition of "Excess Staff" in the MES Policy and is not entitled to be offered a voluntary redundancy.

Termination of employment - fairness of process

1. The respondent asserts she undertook a thorough and procedurally fair process to address the applicant's injury and incapacity for work and that the applicant was afforded a fair and reasonable opportunity to show cause why he should not be medically retired. The respondent refers to a letter from Mr Forrest, dated 17 May 2020, which stated: "Recently information has been presented to me from the two Independent Medical Examination (/ME) sessions you have attended. Based on your current medical situation to date, and the most recent /ME report, I am advised that regrettably you are unable to return to Justice Health and Forensic Mental Health Network (the Network) in any capacity. In considering this situation further, you have until 29 May 2020 to provide this office with a written response to show cause of why your employment with the Network should not be terminated. You are afforded an opportunity to comment on the findings of the Independent Medical Examination report. received by Mr Adam Williams, Recovery at Work Consultant." [30]
2. On 28 May 2020, the applicant responded by email as follows: "Thanks for your Letter dated 17 May 2020. As the CEO that is the only communication you have had with me for the last 3 years of Workers Compensation, I found your letter very condescending, fake and insulting. The symptom[s] I have suffered for the last 6 odd years are a direct result from you and your executive teams incompetence and failures. I am not the only person, nurse or inmate that has suffered at your inability to do your job. Parklea Correctional Centre was an absolute disaster, I told you to you[r] face and yet you did nothing but let us all suffer, Thanks for your enquiry into my mental health and my recovery BTW [m]y life is absolutely ruined, Thanks again for being useless, Anthony Clarke"
3. On 15 June 2020, Dr Hampton wrote to the applicant, stating that he was "empathetic to the information" provided in the applicant's email but he was terminating the applicant's employment on "medical grounds" with two weeks' payment in lieu of notice.
4. The applicant's email of 28 May 2020 may be explained by his frustration [31] with his circumstances. However, it is clear that the applicant had an opportunity to put matters to the respondent relevant to the decision as to whether his employment should be terminated.
5. The applicant has raised complaints about his access to appropriate training and support which I have taken to include a complaint about fairness of the process; however, as noted at [37] and [41], the applicant did not suggest any appropriate training or support that ought to have been provided, nor did the respondent deny any training or support to the applicant..
6. The applicant has not raised other specific complaints of a lack of procedural fairness. On this basis the termination process was not procedurally unfair.

Conclusion and disposition of the matter

1. There is no basis to intervene in the respondent's decision to dismiss the applicant because: 1. there was a valid and reasonable basis for the respondent to be reasonably satisfied that based on the medical evidence, the applicant was unable to fulfil the inherent requirements of his position and continue his employment as a Registered Nurse; 2. the reasons for dismissal were given to the applicant and, after considering the applicant's email of 28 May 2020, the respondent determined that termination of employment was appropriate based on the medical evidence; 3. the reasons for dismissal had a basis in fact and the respondent undertook a thorough and procedurally fair process to address the applicant's injury and permanent incapacity for work; 4. had the applicant been capable of performing work at the respondent as a Registered Nurse, the respondent would have assisted the applicant to find a suitable alternative employment in the form of a vacant permanent or temporary position with the respondent; 5. the applicant was offered alternative working arrangements on the Chime project, which he refused, and 6. the applicant does not meet the definition of "Excess Staff" as outlined in the MES Policy.
2. It follows that I find that the termination of the applicant's employment on medical grounds on 15 June 2020 was not harsh nor unreasonable nor unjust. The applicant's unfair dismissal application is dismissed.

Orders

1. I make the following Orders: 1. The application by Anthony Bruce Clarke pursuant to s 84 of the Industrial Relations Act 1996 filed on 25 June 2020 is dismissed. 2. On the application of the respondent within 21 days of the date of these Orders, I will hear the parties on the issue of costs. N J Constant Chief Commissioner

Endnotes

1. By way of example, Tcpt 16 September 2020, p 33.
2. Exhibit "Respondent 1" - Workers Compensation Commission - Certificate of Determination dated 30 July 2020.
3. Exhibit TLV1 to the Affidavit of Tracey-Lee Varga sworn 3 September 2020 at Tab 10.
4. Exhibit TLV1 to the Affidavit of Tracey-Lee Varga sworn 3 September 2020 at Tab 11.
5. Tcpt 16 September 2020, p 8 lines, 5 -11.
6. Tcpt 16 September 2020, p 8 lines, 5 -11.
7. Tcpt 16 September 2020, p 31 lines, 31 -41.
8. Statement of the applicant dated 6 August 2020 at (xvi) on p 2.
9. Statement of the applicant dated 6 August 2020 at (xvii) on p 3.
10. Statement of the applicant dated 6 August 2020 at (iii) on p 1.
11. Exhibit TLV1 to the Affidavit of Tracey-Lee Varga sworn 3 September 2020 at Tab 4.
12. Exhibit TLV1 to the Affidavit of Tracey-Lee Varga sworn 3 September 2020 at Tab 5.
13. Exhibit TLV1 to the Affidavit of Tracey-Lee Varga sworn 3 September 2020 at Tab 6.
14. Exhibit TLV1 to the Affidavit of Tracey-Lee Varga sworn 3 September 2020 at Tab 7.
15. Affidavit of Tracey-Lee Varga sworn 3 September at pars 33-34
16. Exhibit TLV1 to the Affidavit of Tracey-Lee Varga sworn 3 September 2020 at Tab 8.
17. Exhibit TLV1 to the Affidavit of Tracey-Lee Varga sworn 3 September 2020 at Tab 6 at p 7.
18. Exhibit TLV1 to the Affidavit of Tracey-Lee Varga sworn 3 September 2020 at Tab 7 at pp 6-7.
19. Tcpt 16 September 2020, p 36 lines, 24 -27.
20. Tcpt 16 September 2020, p 35 lines, 38 -41.
21. Tcpt 16 September 2020, p 35 lines, 49 - 50.
22. Exhibit TLV1 to the Affidavit of Tracey-Lee Varga sworn 3 September 2020 at Tab 8 at pp 8-10.
23. Tcpt 16 September 2020, p 26.
24. Tcpt p 28 line 38 - p 29 line 1.
25. Exhibit TLV1 to the Affidavit of Tracey-Lee Varga sworn 3 September 2020 at Tab 19
26. Exhibit TLV1 to the Affidavit of Tracey-Lee Varga sworn 3 September 2020 at Tab 19
27. Exhibit TLV1 to the Affidavit of Tracey-Lee Varga sworn 3 September 2020 at Tab 13.
28. Affidavit of Tracey-Lee Varga sworn 3 September 2020 at paragraphs 45 and 72.
29. Exhibit TLV1 to the Affidavit of Tracey-Lee Varga sworn 3 September 2020 at Tab 19
30. Exhibit TLV1 to the Affidavit of Tracey-Lee Varga sworn 3 September 2020 at Tab 9.
31. Tcpt 16 September 2020, p 26, lines 41 - 42. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2021