Crewdson v New South Wales Department of Community Services & Anor

Crewdson v New South Wales Department of Community Services & Anor - [2003] NSWIRComm 190 - NSWIRComm 1997 case summary — Zoe

[10]

1 This matter has by now accumulated a significant history which I do not propose to recount here except to say that the source of the proceedings is an application filed by Gerard Michael Crewdson on 8 May 2001 for declaratory relief pursuant to s 154 of the Industrial Relations Act 1996. The orders sought were in the following terms: a) That the applicant is and at all times since 9 Sept 1990 has been employed by the first respondent - the NSW Department of Community Services and its predecessors. b) That all decisions taken on and after 11 Sept 1997 by officers of the first respondent to refer the applicant for a fitness to continue assessment by the Government Medical Officer (GMO) are void, invalid and of no effect. c) That all decisions taken by the GMO and or officers/consultants employed by the second respondent - Central Sydney Area Health Service on or after 10 October 1997 with regard to the applicant's fitness for work are void, invalid and of no effect. d) That all decisions taken by officers of the first respondent on and after 29 October 1997 suspending the applicant from his duties and placing him on Sick Leave and then Leave without Pay are void, invalid and of no effect. e) That terms and conditions of a DEED signed between the applicant and the first and second respondents 6-30 Oct 1998 requiring the applicant to resign his employment from the first respondent are void, invalid and of no effect. f) That all terms and conditions of the said DEED signed 6-30 Oct 1998 purporting to pay remuneration to the applicant or any benefit less than the minimum benefits guaranteed under relevant industrial instruments and industrial legislation are void, invalid and of no effect. g) That the applicant be entitled to be paid all emoluments pertaining to his position as a full time residential care assistant employed with the first respondent together with interest thereon and to retain all leave and other entitlements together with interest thereon. h) That with respect to any moneys otherwise earned by the applicant since 29 October 1997 that allowance be made in that sum. i) Such other orders as the honourable Commission in Court (sic) deems appropriate.

[13]

4 In Crewdson v New South Wales Department of Community Services & Anor (No 5) [2002] NSWIRComm 203 the Court dealt with an application by Mr Crewdson for summary judgment. In that judgment the Court said: 14 Notwithstanding the fact that the applicant has appealed, he has contended that it is open to this Court to re-visit its judgment on the basis of what he submits is new material. He also relies on the dire straits he finds himself in as set out in his affidavit of urgency. The applicant submitted that the Court should, as I understand him, make orders declaring to the effect that his employment has remained continuous since 1990 and that the steps taken by various public sector officers culminating in his removal were unauthorised and unlawful. 15 The two principal bases upon which the applicant relies for re-opening the judgment are that, firstly, in proceedings on 15 July 2002 Mr Menzies QC for the respondents indicated that in response to a notice to produce seeking documents relating to the delegated authority of certain officers, Mr Menzies indicated there were no documents to produce. The applicant submitted this non-production should be taken by the Court as a clear admission that the relevant officers did not have the necessary authority to take the actions of which the applicant complains. Secondly, that as the Court had earlier found that the applicant had not resigned from his employment and that the respondents had ample opportunity to show that he did, that this was an admission supporting a judgment in the applicant's favour that his employment had continued uninterrupted since 1990. 16 The applicant cited Pt 13 r 2 of the Supreme Court Rules 1970 in support of his contention that it was open to the Court to give summary judgment on his claim. The applicant also referred to GPI Leisure Corp Ltd v Yuill (unreported, SC (NSW), Young J, 6 August 1997). The applicant also referred to s 162(2)(a) and s 163(1)(c) of the Industrial Relations Act 1996, that is, the duty of the Commission to act as quickly as practicable and the duty to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 17 In my opinion, the Court is clearly functus officio in relation to interlocutory judgment No. 3 and there is no basis upon which it would be open to the Court to re-visit that judgment. In any event, in earlier proceedings Mr Moses , who was counsel for the respondent at the time, indicated in relation to the "delegated authority documents" sought by the applicant, there were none to produce so there was nothing new about Mr Menzies indicating the same thing. In so far as the applicant's resignation is concerned, nothing new has occurred regarding that issue since interlocutory judgment No. 3 was handed down. 18 In relation to the applicant's personal plight, there can be nothing but concern and sympathy for it. But such a situation does not provide grounds for this Court to grant the declaratory relief sought by the applicant. 19 The applicant's application to re-open the judgment in Crewdson v Department of Community Services (No 3) [2002] NSWIRComm 139 is refused. The applicant's application for declaratory relief is set down for hearing for five days commencing 9 December 2002.

[20]

9 In response to Mr Crewdson's summons served on the Department Mr Damian John Lutvey, Acting Assistant Manager, Supported Accommodation gave evidence as to the documents sought in the summons. The documents not produced by the Department in response to Mr Crewdson's summons fell into four categories: 1. Documents not produced because they never existed. These included: "Documents recording alleged supervisions of the applicant's work practices as Residential Care Assistant by Cassie Rec and Claire Davis (refer para 7 affidavit J Pitchford 20/8/02)". It was Mr Lutvey's evidence that he contacted Ms Rec as to the documents who informed him that no such documents existed. 2. Documents not produced because they have been destroyed. These included: "Morning and evening routines for residents as referred in memorandum J Gillett 15/9/97". It was Mr Lutvey's evidence these documents were "Thrown away". 3. Documents not produced because they were missing. These included: (a) "All shift reports (Fitzpatrick Street) for period Sept 1996-Dec 1997"; (b) "All incident reports for period 1/6/97-1/12/97"; (c) "Complete medical file Allan Moriarty 1993-1997 including records of period spent at Concord Hospital recovering from serious scalding to feet"; (d) "Incident report of Allan Moriarty's scalding injury (circa 1994/1995)"; (e) "Records of all follow up action taken by Area Management after Allan's scalding accident including notification to his parents"; "Records of Guardianship Board dispute between DOCS (Ms Pitchford) and Alldiss family over Maryanne Alldisses financial guardianship"; (f) "Records of fact finding inquiry into allegation of assault by Thomas McGuire against Louisa Hori held by Epping Area Office DOCS in about May 1997 (refer Reily Report June 1998)"; (g) "Records of investigations interviews undertaken by Mr Trevor Lee EEO Officer DOCS Jan-Feb 1998 into complaints submitted by Gerard Crewdson into conduct of Northern Sydney Area Management and Fitzpatrick St Group Home (including interview with Julia Gillett)". As to 3 (a), (b), (c) and (d) above Mr Lutvey's evidence was that a search had been carried out but the material was unable to be located. In any event, access was opposed. As to 3 (e) and (f) Mr Lutvey's evidence was that he had been unable to locate the material but would continue searching. He said, however, access to such material would be opposed. As to 3(g) Mr Lutvey said further inquiries were being made. The Court was later advised, however, that a search for the material had been unsuccessful. 4. Documents not produced because search made for wrong document. These documents included: (a) "Summary information from Audit of critical incidents for the period 1/6/97-1/12/97 conducted by Northern Sydney Area"; (b) "Summary information from audits of restrictive practices conducted by Northern Sydney Area"; (c) "Report on Programming Services provided for Fitzpatrick Street clients dated 1/6/98"; (d) "Exercise Book or Books recording communication and incidents between Fitzpatrick St staff and Alldiss family and other resident's families". In relation to 4(a) and (b) above Mr Lutvey said he could not identify the documents sought and was, therefore, unable to make proper inquiries. In relation to 4(c), counsel for the Department indicated that it was unclear as to what was being sought and whilst there was some material that might satisfy the summons, the Department opposed access. In relation to 4(d) Mr Lutvey said the material could not be located but in any event access was opposed.

[32]

185 There appears to have been a real misunderstanding at TAFE as to what HealthQuest's role was, when an employee was referred to it and what was necessary to be done by TAFE, in the event that it wished to rely on the advice given to it by HealthQuest, so that the employment of an employee like Ms Kerrison could be brought to an end in accordance with the provisions of s20 by TAFE. The import of HealthQuest issuing a 'retirement certificate' to such an employee and the effect of an appeal from such a document, was also not properly appreciated. 186 These conclusions flowed inevitably from the evidence. Dr Ramsey's evidence was that he did not make a decision requiring Ms Kerrison to retire. To the contrary, he understood that in such a case it was HealthQuest which made that decision. 187 While s8 of the Act contemplated that the TAFE Commission could delegate certain of its functions, including those provided by s20, to 'authorised persons', there was no suggestion that such a delegation had ever been made in favour of anyone employed at HealthQuest. Nor did the parties address the question of whether such a delegation would have been possible, given the definition of 'authorised person' in s8(4). … 214 I am quite satisfied, on the basis of the evidence in these proceedings, that it cannot be inferred that any person with authority to do so, ever made a decision that the authority to cause Ms Kerrison to retire should be exercised. TAFE acted as if that had occurred, merely by the issuing of a 'retirement certificate' by HealthQuest and the failure of the appeal lodged against that certificate. That is not a basis provided in the legislation for the termination of the employment of a TAFE employee. It follows that there has never been any valid, or effective, termination of Ms Kerrison's employment. 215 This conclusion accords with binding authority . See Wilson v Department of Education and Training (2000) 100 IR 1, where reference is made at p10 to Ward v Director-General of School Education (1998) 80 IR 175 at 179-80: Whether the relationship of a Crown servant and the Crown be regarded as contractual or not, it is now clear that where there is a statute governing such employment, the employment must comply with the terms of the statute which constitutes a code and displaces or overrides any common law or prerogative rights which would otherwise exist but which are inconsistent with the code prescribed by the statute: Director General of Education v Sutting (1987) 62 CLR 427 at 437-38; Hunkin v Siebert (1934) 51 CLR 538 at 542; otherwise provisions, manifestly intended for the protection and benefit of the officer, would be rendered superfluous, useless and delusive: Gould v Stuart [1896] AC 575 at 578. See also Bennett v Commonwealth of Australia [1980] 1 NSWLR 581.

At a glance

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Judgment (41 paragraphs)

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