The applicant, Craig Davis, is employed as a District Officer with the New South Wales Rural Fire Service ("RFS"). He has been employed with the RFS since 1 July 2001.
By letter dated 21 August 2019 signed by Rob Rogers, the Acting Commissioner of the RFS, Mr Davis was informed that the decision had been made for him to be medically retired from the RFS in accordance with s 56 of the Government Sector Employment Act 2013 (NSW) with effect from 7 September 2019.
On 27 August 2019 Mr Davis filed an application for relief in relation to unfair dismissal ("Application") in respect of his threatened dismissal, under s 84 of the Industrial Relations Act 1996 (NSW) ("Act"). Included in the relief sought in the Application was an "order to not dismiss the employee".
The matter was listed on an urgent basis for conciliation before Commissioner Constant on 30 August 2019. A resolution could not be reached. The Commissioner made directions for the filing and serving of evidence in advance of the hearing of Mr Davis' request for an interim order restraining the RFS from dismissing him, which the Commissioner directed would take place on 5 September 2019.
Mr Davis exercised his rights under s 173 of the Act and the matter was subsequently allocated to me.
On 3 September 2019 Mr Davis filed a notice of motion ("Motion"). The Motion sought the following orders:
"1. Subject to any further order of the Commission:
(a) the Respondent, the Industrial Relations Secretary on behalf of the NSW Rural Fire Service ('the RFS') is not to dismiss the Applicant or take any step preparatory to the dismissal of the Applicant, until the hearing and determination of matter number 268160 of 2019.
(b) the Respondent, the RFS is not to take any other action that is detrimental to the employment or earnings of the Applicant.
2. Liberty to apply is granted."
At the hearing Mr Davis, who was present, was represented by Michael Jaloussis, a principal in the firm McNally Jones Staff Lawyers. Mr D Mahendra of counsel appeared for the respondent.
In support of the Motion Mr Davis read the following:
1. an affidavit of Benjamin Trainor sworn on 28 August 2019. Mr Trainor is an Industrial Officer employed by the Public Service Association of NSW ("PSA");
2. an affidavit of Mr Jaloussis sworn on 2 September 2019; and
3. an affidavit he had sworn on 5 September 2019. This affidavit was filed in court. Notwithstanding that it had not been filed in accordance with the directions made by Commissioner Constant on 30 August 2019, and in the absence of any objection from the respondent, I accepted the affidavit into evidence. I did this to ensure that Mr Davis had every opportunity to put his case on the Motion.
I note for completeness that Mr Davis also tendered into evidence a copy of a payslip relating to his employment with the RFS. The relevance of this document to the Motion was not made clear.
The respondent read an affidavit of Lisa Chih, the Director of Membership Services of the RFS, sworn on 5 September 2019.
[2]
Factual context
The factual background to the matter is not in dispute.
Following events in April 2018, Mr Davis was the subject of a workplace investigation concerning alleged misconduct. The allegations brought against Mr Davis and the ensuing investigation are immaterial for the purposes of these proceedings, save for the fact that the investigation gave rise to questions concerning Mr Davis' fitness to participate in the investigation. The RFS referred Mr Davis to Sonic Health Plus for an independent medical assessment. Dr Samuel Lim, a consultant psychiatrist with Sonic Health Plus, found that Mr Davis was fit to continue with the investigation.
On 25 January 2019 the RFS referred Mr Davis to Sonic Health Plus for an independent medical assessment to determine his fitness to undertake the inherent requirements of his role as District Officer. In a report dated 28 February 2019 Dr Lim diagnosed Mr Davis as suffering from post-traumatic stress disorder. While Dr Lim was of the view that at the time of the report Mr Davis was not fit to perform the inherent requirements of his role, he stated that Mr Davis' condition was perpetuated by the ongoing misconduct investigation. He stated that Mr Davis' prognosis would become clearer once the investigation had concluded.
On 7 February 2019 Mr Davis submitted a workers compensation claim for psychological injury. The RFS' workers compensation insurer, Employers Mutual Limited, commissioned medical reports from Alex Jenkins, a psychologist, and Dr Bhaswati Bhattacharyya, a consultant psychiatrist.
In a report dated 5 March 2019 Mr Jenkins recommended that Mr Davis return to work, initially on a graduated return to work plan.
In a report dated 15 April 2019 Dr Bhattacharyya stated as follows:
"In conclusion, Mr Davis has a diagnosis of Post Traumatic Stress Disorder and Major Depressive Episode in relation to work stress which had been ongoing but became worse in 2017 and 2018. He has responded to treatment and, in my opinion, would benefit from returning to work in his pre-injury position on a graduated return to work plan. He would do this while being supported by his psychiatrist, psychologist and a GP..."
Liability for Mr Davis' workers compensation claim was accepted by Employers Mutual Limited. While it is not in evidence it seems to be agreed that Mr Davis consequently received and continues to receive workers compensation payments.
On 7 June 2019 the RFS referred Mr Davis for a further independent medical examination. Dr Lim undertook the medical assessment.
On 15 July 2019 the PSA wrote to Dr Lim on behalf of Mr Davis providing further information for him to take into account in the medical assessment. That information included the reports of Mr Jenkins and Dr Bhattacharyya referred to above.
Dr Lim's further report was dated 23 July 2019. In his report Dr Lim stated that he had reviewed and taken into account the information provided to him by the PSA. He also summarised a conversation he had had with Lia Blaikie, Mr Davis' treating psychologist. Dr Lim went on to state as follows:
"At the time of this assessment, I am of the opinion [that] Mr Davis' symptoms have gone into relative remission. However, he continues to experience a significant amount of grievance towards the employer relating to both more recent and prior conflicts. Despite this, Mr Davis expresses a desire to 'move on'. Furthermore, in the context of his perception of having his point of view regarding recent and previous conflicts invalidated by the employer, he views a return to work in his substantive position to be vindication of his position. With regard to his mental health, and his diagnosis of post-traumatic stress disorder, acrimonious interactions between him and the employer are significant triggers that could cause an aggravation or exacerbation of his post-dramatic stress disorder. This is somewhat supported by his reports of an increase in his level of dysphoria, relating to contemporaneous situations, where he feels he has had an acrimonious interaction with the employer, in regards to his desire to move forward and return to work…
From a psychiatric perspective, I am of the opinion that Mr Davis would be able to continue working in the role of a firefighter as the identified triggers for his PTSD do not relate directly to the nature of the work. However, noting the acrimonious interactions would be significant triggers for his condition, I am of the opinion that Mr Davis has entrenched perceptions of the workplace as a hostile environment. This raises the likelihood that further acrimonious interactions will occur, which would have an adverse impact on his mental health condition. This identified vulnerability would also impact on his ability to participate in performance improvement programs, should they be felt to be needed. I am of the opinion that these factors, in particular the likely ongoing vulnerability he would have in relation to his mental health, related to the specific environment of the employer, make him unfit for his substantive position for the foreseeable future, due to the risk of aggravation.
…
From a psychiatric perspective, at the time of this assessment, I am of the opinion that Mr Davis would not be fit to return to work without endangering his health and safety or the health and safety of others in his role of district officer. This is due to the significant risk of aggravation of his condition related to the specific work environment of the current employer."
Dr Lim concluded that Mr Davis was "permanently unable to carry out the inherent requirements and demands of his role".
Mr Davis sought a review of Dr Lim's assessment through the Medical Assessment Review Panel. In a letter dated 9 August 2019 the Panel informed Mr Davis that his submission did not provide evidence that met the relevant criteria and that his request for a review was denied.
On 26 August 2019 Mr Trainor sent an email to the RFS advising that Mr Davis had made appointments to see his treating psychiatrist on 18 September 2019 at his treating psychologist on 26 September 2019, both presently being on leave. Mr Trainor requested that the termination of Mr Davis' employment be stayed by agreement until 4 October 2019, to allow for Mr Davis to obtain medical reports from both his treating practitioners.
On 27 August 2019 the RFS responded to Mr Trainor's email informing him that the RFS would not be extending the notice period for Mr Davis' medical retirement.
The Application was filed the same day.
[3]
Relevant legal principles
There was no disagreement between the parties as to the principles which guide this Commission when dealing with an application such as the one presently before it. They were set out by Boland J in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 ("Woelfl"). His Honour described the principles as follows:
"28. Section 83(5)(a) of the Industrial Relations Act 1996 provides:
(5) In this Part:
dismissal includes:
(a) the threat of dismissal, ...
29. Section 89(7) of the Act provides:
(7) Threat of dismissal
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.
30. There was also no issue about the Commission's jurisdiction to make orders under s 89(7) that the respondent not dismiss any or all of the three officers. In that respect, see Hill v Director-General of the Department of Education and Training (1998) 85 IR 201 at 208, cited with approval and/or applied in: Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Dhayanithi Sivathondan) and South Western Sydney Area Health Service [2002] NSWIRComm 98 at [32] - [34]; Australian Salaried Medical Officers' Federation (New South Wales) on behalf of Professor Bruce Hall and South Western Sydney Area Health Service [2003] NSWIRComm 8 at [27]; ASMOF o/b Elizabeth Benson and Western Sydney Area Health Service [2003] NSWIRComm 337 at [6]; Western Sydney Area Health Service v Australia Salaried Medical Officers' Federation (NSW) [2004] NSWIRComm 246; (2004) 138 IR 203 at [31]. See also ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229 at [25].
31. In Wojtulewicz the Commission observed at [31] that the exercise of the power to make interlocutory orders under s 89(7) is discretionary. And further, that the Commission will not lightly interfere with an employer's contractual (or statutory) right to terminate the employment of an employee.
32. In Wojtulewicz the Commission also held (at [32]-[36]) that in light of the decision in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 the correct approach to determining whether to grant or refuse an interlocutory order under s 89(7) was in accordance with Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618.
33. As it was observed in Wojtulewicz at [32]-[36]:
[32]...In O'Neill, Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed, said at [65] (references omitted):
The relevant principles [governing interlocutory injunctions] in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:
'The first is whether 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 ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.'
By using the phrase 'prima facie case', their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:
How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.
[33] At [19], Gleeson CJ and Crennan J stated (references omitted):
The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd, and Jakudo Pty Ltd v South Australian Telecasters Ltd. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be folIowed.
[34] Thus what the plaintiff must show is that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights asserted by the plaintiff and the practical consequences likely to flow from the order sought.
[35] Further, given the decision in O'Neill and the endorsement of the 'two inquiry' approach in Beecham, it would seem that the issue of irreparable damage by reason of damages not being an adequate remedy, no longer stands as a separate consideration, but is one that comes under the second inquiry referred to in the judgment of Gummow and Hayne JJ, namely, 'whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted' or, in other words, the balance of convenience test.
[36] Gummow and Hayne JJ refer to preserving the status quo pending trial. The status quo may be the position of the parties at the time of the commencement of the proceeding. However, the defendant's allegedly wrongful conduct may have commenced by the time the proceeding is issued. In that case the plaintiff will seek to maintain the status quo pending trial in the sense that it wants the position to remain as it was before the defendant commenced to engage in the conduct complained of. That is the present case.
34. Thus, the two tests to be applied are: (i) whether there is a sufficient likelihood of success by the three officers to justify in the circumstances the preservation of the status quo pending the final hearing, status quo in this case being understood to be the suspension of the three officers on pay; (ii) whether the inconvenience or injury which the three officers would be likely to suffer if their interlocutory applications were refused outweighs or is outweighed by the injury which the respondent would suffer if the applications were granted. The second test may be referred to as the balance of convenience test."
This passage from Woelfl was recently cited with approval in Jose v Secretary, Ministry of Health (Murrumbidgee Local Health District) [2019] NSWIRComm 1031.
[4]
Sufficient likelihood of success
I have not formed any final or fixed view about Mr Davis' ultimate prospects of success on any unfair dismissal claim. It is not necessary that I do so. All that is required is that I give consideration as to whether there is a sufficient likelihood of the Application succeeding such as to warrant the preservation of the status quo.
Mr Davis contended that there was a lack of procedural fairness in the process culminating in the decision by the RFS to medically retire him. He was not told that the RFS was considering medically retiring him, and he was not requested to or given the opportunity to provide evidence from his own treating practitioners before the RFS had made its decision. It was unfair, it was submitted, for the RFS to rely solely on the medical opinion of Dr Lim and not seek evidence from those practitioners who had been treating Mr Davis for some time.
The RFS did not significantly challenge the contention that there was a serious question to be tried on the Application. As to whether Mr Davis had notice that his employment may be in jeopardy, Mr Mahendra drew my attention to the letter from the RFS to Sonic Health Plus of 7 June 2019 which clearly stated that an opinion was sought as to whether Mr Davis was fit to perform the inherent requirements of his position. Responding to that correspondence, the PSA on behalf of Mr Davis provided Dr Lim with medical and other information. In these circumstances, the respondent submitted that not only should Mr Davis have known that there was a prospect of his employment coming to end, he had every opportunity to put forward any evidence he wished the RFS to take into account.
Obviously, each case will turn on its own facts. As a general proposition it might be expected that a decision to medically retire an employee would not be made, much less implemented, unless and until the employee is given a reasonable opportunity to present (and have considered) his or her own medical evidence. This is not to say that this would necessarily be required in all cases.
In the circumstances of this case there are two things to say in this respect. Firstly, the question of Mr Davis' fitness to work as a District Officer has been the subject of consideration since early 2019 at least. Mr Davis had the benefit of PSA representation in preparing for the July 2019 medical assessment. The potential implications of adverse findings from that assessment should not have been lost on the PSA. The information provided by the PSA to Dr Lim did not include evidence from Mr Davis' treating practitioners. There is no suggestion that such evidence was sought at the time. Mr Davis is not due to meet his treating practitioners until 18 and 26 September 2019. This apparent delay in seeking to obtain evidence from his treating practitioners has not been adequately explained, and on the evidence presently available I am more persuaded by the submissions made on behalf of the respondent as set out at [30] above.
Secondly, it is entirely a matter of conjecture what either of Mr Davis' treating practitioners will say. It can safely be assumed (in the absence of evidence to this effect) that Mr Davis expects that their evidence will support his return to work, but whether this will in fact be the case is entirely a matter of speculation.
In light of the respondent not having taken issue with the point, I accept that there may be a serious question to be tried on the Application, namely whether Mr Davis was afforded procedural fairness in the process culminating in the decision made to effect his medial retirement. I am persuaded on the barest of margins that there is a sufficient likelihood of the Application succeeding that might warrant an interim order.
[5]
Balance of convenience
There is virtually no evidence that Mr Davis would suffer any particular inconvenience or injury if the interim order is not made. I recognise that these are interlocutory proceedings which have been brought before the Commission on an urgent basis. This necessarily places constraints on the amount of evidence that the parties will be able to adduce. However, even taking those considerations into account and allowing for the discretion conferred on the Commission by s 163 of the Act, the Commission cannot make findings and resultant orders in an evidentiary vacuum. This is essentially what Mr Davis would have the Commission do.
In his affidavit, Mr Davis deposed to his personal circumstances. These included the medical conditions suffered by him and his wife; his wife's employment status and income; and, their regular expenses.
In the submissions filed on behalf of Mr Davis it was contended that:
1. he would suffer "an irreparable injury" if he was dismissed because he lives in a "small rural hamlet". If he were dismissed on the basis of medical retirement that would "quickly become notorious" making it relatively impossible for him to obtain alternative employment;
2. a dismissal would have an adverse impact on Mr Davis' mental health; and
3. the dismissal of Mr Davis would cause him financial hardship.
There is no evidence to support any of these contentions. Mr Davis did not depose to them in his affidavit. Most particularly, there is nothing from any medical practitioner to support the very serious contention that any dismissal (and by extension, any refusal to provide an interim order) would have an adverse effect on Mr Davis' psychological condition. In the absence of such evidence I cannot give the submissions much weight.
In her affidavit Ms Chih deposed as to the payment Mr Davis will receive if his employment is terminated with effect from 7 September 2019, and the additional salary and termination payment that he would receive if his employment is terminated with effect from 4 October 2019. She deposed that if the medical retirement is deferred pending a resolution of the proceedings the "financial burden on the NSW RFS will be proportionately higher". [1]
Mr Jaloussis submitted, and I accept, that this evidence needs to be viewed in light of the fact that any wage costs incurred by the RFS would be reimbursed by the workers compensation insurer. Mr Mahendra conceded that the RFS would not suffer significant harm if the interim order is made, but this is not to say that there would be no prejudice at all.
The fact that Mr Davis is in receipt of workers compensation payments also mitigates any financial hardship that it is claimed he would suffer if his medical retirement proceeds. His entitlement to those benefits would presumably survive the termination of his employment. Further, if he is able to demonstrate following his medical retirement that he is fit to return to his position as District Officer Mr Davis could also have rights under Part 8 of the Workers Compensation Act 1987 (NSW). These matters are relevant to the balance of convenience.
Overall, I am not satisfied that Mr Davis would suffer any inconvenience or injury as a result of him being medically retired by the RFS which could not be remedied through a reinstatement order. I observe that such an order can be coupled with one under s 89(3) of the Act requiring the payment of the remuneration the applicant would, but for being dismissed, have received before being reinstated.
In the absence of evidence of any inconvenience or injury which Mr Davis would suffer which would outweigh that which would be suffered by the respondent if the Motion is successful, I conclude that the balance of convenience favours the respondent.
[6]
Conclusion
I am not satisfied that Mr Davis has made out the case for the orders sought in the Motion.
On the assumption that the RFS proceeds to medically retire Mr Davis, a question arises as to the status of the Application. I propose to list the matter for directions at a time to be advised to allow the parties to make submissions as to what, if any, further steps ought to be taken in these proceedings.
[7]
Order and direction
The Motion is dismissed.
I direct the parties to confer with a view to reaching consent on any further directions which ought to be made in these proceedings.
The matter will be listed for directions on a date to be advised.
Damian Sloan
Commissioner
[8]
Endnote
Exhibit R1 at [26]
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: 06 September 2019
Parties
Applicant/Plaintiff:
Davis
Respondent/Defendant:
Industrial Relations Secretary on behalf of the NSW Rural Fire Service