Fire & Rescue NSW v Public Service Association of NSW and Professional Officers Association of NSW Amalgamated Union

Industrial Relations Commission (NSW)|2018-10-17

Judgment

A dispute exists between Fire & Rescue NSW ("FRNSW") and the Public Service Association of NSW and Professional Officers Association of NSW Amalgamated Union ("PSA") concerning the right of FRNSW to direct an employee to attend and "independent medical examination" ("IME"). The dispute was unable to be resolved in conciliation.
At the outset of the arbitral proceedings the respondent made application for an order under s 164A of the Industrial Relations Act 1996 (NSW) ("the Act") to protect the identity of the particular member directly affected by the dispute and his child. The order was not opposed and I was satisfied it was appropriate to make the order in the circumstances. I did so and the member was thereafter referred to as "Mr A".
The arbitration, at the request of the parties, took place over two stages. The first stage was directed to the legal authority of an employer to issue a direction of the kind in question. In the course of argument in relation to that issue the respondent accepted it was possible, as a matter of law, for an employer to give such a direction depending upon the circumstances of the particular case. The matter was then adjourned to allow the parties to file and serve evidence and submissions from the disposition of the second stage.

Legislation

The parties referred to: ss 17, 18, 19 and 28 of the Work Health and Safety Act 2011 (NSW) ("WHS Act"); s 69 of the Government Sector Employment Act 2013 (NSW) ("GSE Act"); cl 38 of the Government Sector Employment (General) Rules 2014 (NSW) ("GSE Rules"). It is convenient to set those provisions out at this point.
WHS Act: 17 Management of risks A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable. 18 What is "reasonably practicable" in ensuring health and safety In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring, and (b) the degree of harm that might result from the hazard or the risk, and (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. 19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision and maintenance of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities, and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. (4) If: (a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking, and (b) the occupancy is necessary for the purposes of the worker's engagement because other accommodation is not reasonably available, the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety. (5) A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work 28 Duties of workers While at work, a worker must: (a) take reasonable care for his or her own health and safety, and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and (d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
GSE Act: 69 Misconduct - Public Service and other prescribed government sector employees (1) In this section: government sector agency means: (a) a Public Service agency, and (a1) that part of the NSW Police Force comprising administrative employees under the Police Act 1990, and (b) any other government sector agency prescribed by the regulations for the purposes of this section. misconduct extends to the following: (a) a contravention of this Act or an instrument made under this Act, (b) taking any detrimental action (within the meaning of the Public Interest Disclosures Act 1994) against a person that is substantially in reprisal for the person making a public interest disclosure within the meaning of that Act, (c) taking any action against another employee of a government sector agency that is substantially in reprisal for a disclosure made by that employee of the alleged misconduct of the employee taking that action, (d) a conviction or finding of guilt for a serious offence. The subject matter of any misconduct by an employee may relate to an incident or conduct that happened while the employee was not on duty or before his or her employment. serious offence means an offence punishable by imprisonment for life or for 12 months or more (including an offence committed outside New South Wales that would be an offence so punishable if committed in New South Wales). (2) The person who exercises employer functions in relation to an employee of a government sector agency is responsible for dealing with any misconduct by that employee in accordance with this section. (3) The government sector employment rules may deal with the following: (a) misconduct by employees of government sector agencies, (b) the procedural requirements for dealing with allegations of misconduct by employees of government sector agencies (consistently with procedural fairness). (4) If, in accordance with those rules, there is a finding of misconduct by an employee of a government sector agency, the person who exercises employer functions in relation to the employee may take any of the following actions: (a) terminate the employment of the employee (without giving the employee an opportunity to resign), (b) terminate the employment of the employee (after giving the employee an opportunity to resign), (c) impose a fine on the employee (which may be deducted from the remuneration payable to the employee), (d) reduce the remuneration payable to the employee, (e) reduce the classification or grade of the employee, (f) assign the employee to a different role, (g) caution or reprimand the employee. (5) Proceedings and actions under this section may be taken or continued despite the employee resigning or otherwise ceasing to be an employee of the agency concerned. Any such action may be expressed to be a termination of employment even if the person has ceased to be an employee. (6) This section does not apply to that part of the NSW Police Force comprising police officers or to any employees of a government sector agency excluded from this section by the regulations.
GSE Rules: 38 Initial stage for dealing with allegations of misconduct (1) An allegation of misconduct by an employee of a government sector agency may be made by any person to the person who exercises employer functions in relation to the employee. (1A) The employee in respect of whom the allegation is made is referred to in this Part as the relevant employee and the person who exercises employer functions in relation to the employee is referred to in this Part as the employer. (2) After making an initial assessment of the allegation, the employer may decide not to proceed with the matter if the employer is satisfied that: (a) the allegation is vexatious or trivial, or (b) the incident or conduct concerned does not amount to misconduct, or (c) there is likely to be difficulty in establishing the facts of the matter. (3) If, after making an initial assessment, the employer decides to proceed with the matter, the relevant employee is to be advised: (a) of the details of the allegation of misconduct, and (b) of the action that may be taken under section 69 (4) of the Act against the employee. (4) The relevant employee is to be given a reasonable opportunity to make a statement in relation to the allegation. (5) The employer may, as a result of any such statement by the relevant employee: (a) decide to proceed to deal with the matter in accordance with this Part, or (b) decide not to proceed any further with the matter. The relevant employee is to be notified of the employer's decision. (6) The person making an allegation of misconduct is to be informed of any decision by the employer under this rule not to proceed with the matter.

Evidence

The notifier read an affidavit of Louise Clarke, Director Professional Standards, People & Culture Directorate, Fire and Rescue NSW. Ms Clarke deposed that Mr A is employed primarily as a Clarke Grade 7/8 but has secondary employment as a retained firefighter.
In early 2018 Mr A was one of two employees who made complaints to Fire and Rescue Professional Standards Directorate. The complaints were by each employee against the other. In the case of Mr A, the other employee alleged that he had targeted her by repeatedly making vexatious complaints in order to bully and harass her.
Ms Clarke briefed counsel, Ms Gillian Eldershaw, to undertake, consistent with cl 38(2) of the GSE Rules, an initial assessment of the complaints. Ms Eldershaw's report was annexed to Ms Clarke's affidavit.
Ms Eldershaw reported that there were "grounds for concern as to [Mr A's] mental health and functioning". She recommended that: "it is appropriate that FRNSW require [Mr A] to attend on a psychiatrist for review before further steps are taken in this matter."
Ms Eldershaw also recommended that, subject to the outcome of that review, it was appropriate to give consideration to alleging Mr A had engaged in misconduct in certain respects.
Council also made several other recommendations relating to other staff, including the cross-complainant, and as to a review of certain procedures.
It is unnecessary to detail the matters underpinning Ms Eldershaw's conclusion as to the grounds for concern. Suffice to say that reasons were identified particularly at paragraphs 81- 91, 98, 103 and 107 of her report. It cannot be said that the expression of concern was without foundation. That is not to say that her concern is a concluded or conclusive opinion of a mental health expert.
Ms Clarke deposed that counsel's conclusion raised concerns for her as to Mr A's mental health and functioning. She was further concerned that participation in a disciplinary process may impact upon his health.
The latter concern was founded upon her knowledge that Mr A had, on two previous occasions, reported workplace injury directly related to his participation in separate conduct investigations. In one he was the complainant. In the other he was the person the subject of the complaint.
In the latter case Mr A was absent from work for a period of eight months as a result of "Anxiety/Depression". In the former case he lost no time, but notified a "Psychological" injury.
Accordingly, Ms Clarke advised the delegated decision maker of her concerns and the information on which those concerns were based. She recommended that he direct Mr A to attend a medical assessment: "to determine his psychological fitness to participate in a conduct investigation as an officer subject of complaint".
Deputy Commissioner Connellan, Executive Director People and Culture, who is the delegated decision maker, agreed with the recommendation. By letter dated 1 June 2018 he directed Mr A to attend an IME.
Ms Clarke acknowledged that neither she nor Ms Eldershaw are mental health experts, although both have a nursing background. Nevertheless, she regarded Ms Eldershaw's recommendation as reasonable in the circumstances identified by counsel.
Ms Clarke further deposed that she is unequivocal that the direction given is not punitive action. It is a reasonable course which errs on the side of caution to ensure Mr A's ability to safely participate in a disciplinary/remedial process.
The respondent tendered a report of Dr Sandy Dong dated 24/07/2018. The doctor, a general practitioner, had reviewed Mr A that day and found his mental state "unremarkable". He noted scores of 0 for each of Depression, Anxiety and Stress on the DASS 21 Assessment.
The only other evidence was in the form of a concession, sought from and given by FRNSW, that between 4 April and 27 April 2018 several emails were exchanged between Ms Eldershaw and Mr A. The content of the emails was said, by the respondent, not to be relevant

Submissions

The notifier submitted that, under the WHS Act provisions identified at [5], it had a duty to; 1. ensure, as far as reasonably practicable, the health and safety of its employees; and 2. to maintain vigilance and take precautions to eliminate or minimise risks.
FRNSW also submitted that under s 28 of the WHS Act Mr A had a duty to take reasonable care for his own safety and: 1. comply with reasonable instructions to allow Fire & Rescue to comply with the WHS Act; and 2. cooperate with any reasonable policy or procedure directed that end.
The notifier further submitted that the common law implied a term into the contract of employment obliging the employer to provide a safe workplace. FRNSW referred to Swanson v Monash Health [2018] FCCA 538; 273 IR 460 in which his Honour Judge Jones referred to decisions of the Federal Court in Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32; 240 IR 342 and Thompson v IGT (Australia) Pty Ltd [2008] FCA 994; 173 IR 395 in support of the proposition that such a term carries with it the right, where reasonable, of an employer to require an employee to attend a medical examination to determine the fitness for duty of the employee or whether the employee can undertake her or his duties safely. FRNSW also cited Blackadder v Ramsay Butchering Services Pty Ltd [2002] FCA 603; 118 FCR 395; 113 IR 461 in which Madgwick J said at [67]; [67] An employer has, as indicated above, strict obligations under the NSW legislation to ensure the safety and well-being of its employees. And at [68] - [69]: [68] It is, in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee's continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments. Abattoirs entail obvious risks, among other things, of injuries from the repetitive use of knives at speed, and to the spinal column from the necessity to twist, bend and/or lift. [69] The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination. The matters will generally require a sensitive approach including, as far as possible, respect for privacy. Nevertheless, I assume that there now should be implied by law into contracts of employment terms such as those set out in the first two sentences of the preceding paragraph, on the basis that such terms pass the test of "necessity" accepted by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450.
As to the reasonableness of the instruction FRNSW written submissions were, in part, as follows: 1. Fire and Rescue NSW submits that the direction is reasonable in the circumstances. Fire and Rescue NSW is on notice of the following matters relating to Mr [A]: a) in 2018, he reported to barrister Gillian Eldershaw, who had been contracted by Fire and Rescue NSW to assess a range of complaints made either by or about Mr [A], that he had endured considerable stress due to Fire and Rescue NSW's alleged relentless victimisation of him, which he also believed was badly affecting his son's health [1] ; and b) Ms Eldershaw expressed concern as to Mr [A's] ability to cope with participation in any formal disciplinary process undertaken by Fire and Rescue NSW. c) in 2010, he experienced psychological issues when he was the subject of a complaint resulting in a complex disciplinary process (arising from his employment with Fire and Rescue NSW as a Retained Firefighter). He was unable to work for a period of eight months; d) in early 2017, though still able to perform his position, he submitted a Notification of Injury, Illness or Near Miss (NEIINM) self-reporting that he was suffering a psychological illness arising from a complaint he made about the conduct of other employees; 2. These factors cause Fire and Rescue NSW to hold a genuine and reasonable concern about the impact of participating in a disciplinary process under Section 69 of the Government Sector Employment Act 2013 (GSE Act) upon Mr "A's" health and safety. Consequently, Fire and Rescue NSW submits it must act to discharge the duties imposed upon it under ss 17, 18 and 19 of the WHS Act on Fire and Rescue NSW to (inter alia) "…eliminate risks to health and safety, so far as is reasonably practicable…" and "if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable…". 3. In the circumstances, it is reasonable to direct Mr "A" to undergo an IME for the purpose of identifying potential risks arising from the disciplinary process and steps and strategies to minimise such risks. As set out in the letter to Mr [A] of 1 June 2018, the information obtained from the IME will assist Fire and Rescue NSW to determine how to proceed with the disciplinary process. It may identify, for example, medical restrictions or adjustments that should be applied to minimise the risk of harm to Mr [A]. The medical information regarding any appropriate adjustments may also assist Mr "A" to safely and effectively carry out all of the inherent requirements and demands of his position as an Alarms Assessment Officer, Clerk 7/8, during the disciplinary process.
In response the PSA submitted; 1. FRNSW was correct in its submissions about the duties and obligations of employers and employees under the WHS Act and accepted such duties and obligations were also a part of the contract of employment. 2. In order to rely upon the existence of a WHS risk to justify a direction to attend an IME the employer was obliged to "formally" identify the risk, usually by means of a risk assessment, and consulted the affected worker (Mr A) about the management of the risk. There was no evidence of a risk assessment or of consultation with Mr A. Therefore there could be no valid direction. 3. The submissions of FRNSW merely provide reasons to presume a risk of psychological harm - that is insufficient. 4. Mr A's extended absence in 2010, relied upon by FRNSW, was not due to any mental health condition but "migraines'. 5. The remarks made to the Ms Eldershaw were general in nature and insufficient to found a conclusion of susceptibility to psychological injury. 6. The report of Mr A's general practitioner indicates he is "coping well with recent misconduct allegations" and his state of mental health was unremarkable. 7. More generally the PSA submitted: It is not safe on public policy grounds to allow compulsory referrals for medical reports in disciplinary cases. Although the question asked of the medical practitioner is whether the person is fit to withstand a disciplinary process, the results can be used for medical discharge. When there is a disciplinary process pending, the employer has the greatest motivation to rid themselves of an employee by whatever means, including medical discharge. Another relevant consideration is what effect the medical report would have - how would a psychiatric examination operate to eliminate or mitigate the risk? If the psychiatric examination found that [Mr A] was not fit to face a disciplinary procedure, what would F&R NSW do? It is unlikely that they would abandon the disciplinary procedure, as they have a duty to investigate misconduct. If they have ways of mitigating potentially psychologically damaging effects of a disciplinary procedure, why do they not use them in all cases? If there are no ways of mitigating, there is no point in sending [Mr A] for a psychiatric examination and their contractual power to direct does not operate.
As to reasonableness the PSA submitted; 1. The complaints against Mr A could not amount to misconduct. 2. The conduct identified by Ms Eldershaw to be the subject of allegations of misconduct could equally not amount to misconduct. 3. Ms Eldershaw's opinions as to the matters of concern warranting medical review are not to be given "particular weight" as she is not a medical expert. 4. The recommendation of counsel to provide her report to the medical practitioner is contrary to the "Procedures for Managing Non-Work Related Injuries or Health Conditions" document.
The PSA sought orders terminating the disciplinary process against Mr A and determining that; 1. the direction to attend an IME was invalid; 2. there was no duty to protect Mr A as a decision to proceed to an investigation had not been made; 3. the recommended allegations do not and cannot amount to misconduct; and 4. the direction was not reasonable.
In the alternative if the Commission, decides contrary to the PSA's submissions, that the direction is lawful and reasonable the Commission should not make a dispute order against either the PSA or Mr A.
In reply FRNSW submitted; 1. the existence of a reasonably foreseeable hazard that could constitute a risk to health and safety needs to be verified by someone with appropriate expertise; 2. Mr A is required to cooperate in a process to identify whether such a risk exists; 3. the IME will provide advice as to the existence of risk and measures which may be taken to eliminate or mitigate the risk; 4. FRNSW will then need to determine whether any such measure is reasonably practicable within the context of the WHS Act; 5. It is inappropriate to attempt to lay down rules to apply to all disciplinary processes on the assumption that psychological injury may result; 6. As to consultation, if the existence of a hazard is confirmed by the IME then FRNSW would consult Mr A as to the means to eliminate or minimise risks to his health and safety; 7. the IME is itself a risk assessment process; and 8. there is no evidence to suggest that the referral to an IME is contrary to "public policy" or a process aimed at discharging Mr A on medical grounds.

Consideration

The authorities identified by the notifier clearly demonstrate that employers have the right in appropriate cases to direct an employee to attend a medical examination. The real issue is whether the case is appropriate. In that regard the question to be answered is whether the direction is reasonable in the particular factual circumstances.
That conclusion effectively rejects the respondent's submission that it is contrary to public policy to direct an employee facing a potential disciplinary process to attend an IME to determine the employee's fitness to participate in the process. There will be circumstances in which it is not only desirable but necessary to ensure procedural fairness that such a direction be given.
It is well established that procedural fairness is to be afforded to employees the subject of disciplinary procedures. Where an employer has reason to believe that, for reasons related to the employee's health, they may not be able to participate, or participate fully, in a disciplinary process those principles of procedural fairness would require the employer to adopt a process which ensures the employee has the opportunity to do so. That may involve directing an employee to attend an IME.
The public policy underpinning the rules of procedural fairness militates against a sweeping determination of the kind suggested by the PSA.
Before turning to the reasonableness of the direction I will deal briefly with another submission of the respondent directed to the validity of the direction. The PSA submitted that the conduct the subject of complaint against Mr A, and subsequently the conduct which Ms Eldershaw recommended should be the subject of misconduct allegations, was not capable of amounting to misconduct. That conduct is summarised at [10].
The respondent submitted that it is not unlawful to make a complaint. Indeed employees have a right to complain. That much may be accepted. However, there is no right to make vexatious complaints and there is certainly no right to do so with a view to targeting an individual for the purpose of bullying or harassing that person. Such conduct, if made out, would certainly amount to misconduct. This submission must be rejected
I turn then to the reasonableness of the direction. In this case there is a recommendation by an experienced barrister based on observations she made in a detailed report that the employee be referred for an IME. That is not, contrary to the submissions of the PSA, an expression of a medical opinion. It is a recommendation to obtain a medical opinion. Again, taken to its logical conclusion the PSA's submission would mean that an employer, who is not a doctor, would never be able to direct an employee to attend a medical examination to determine whether there is a medical issue to be addressed. That is clearly contrary to the authorities referred to at [27]. It is a submission which must be rejected.
As I have noted at [15] the recommendation of Ms Eldershaw could not be said to be without foundation. I repeat, that does not mean that Mr A is suffering from an illness or that he may suffer from an illness if required to participate in a disciplinary process. It is however something which puts the employer on notice that there may be a risk which needs to be eliminated or controlled as much as possible.
That recommendation is supported by the employer's understanding of the impact of past disciplinary or like processes on the mental health of Mr A. Mr Wright submitted that at least the extended absence was not because of anxiety or depression but migraines. No evidence was led to found that submission. The submission was, in any event, that the reason for the extended absence was disputed. Even if that be accepted, the employer's understanding of the reason for the absence is not shown to be wrong - merely disputed. As such it is a relevant consideration in this context. No submission was put to contradict the other "psychological illness" identified as a matter of concern to Ms Clarke.
The aggregation of these factors, in my view, provides a proper basis to conclude that the direction is reasonable in this context.

Conclusion and Orders

I conclude therefore that the direction to Mr A to attend an IME is both lawful and reasonable. That is the only "relief" sought by FRNSW as I understood their submissions.
I note that at the conclusion of the hearing I directed the parties to have discussions about one matter about which the PSA made submissions which FRNSW seemed to accept as reasonable. That concerned the terms of any referral to the IME. The matter arose in the context of the PSA's concern that the proposed referral may go beyond the scope of the purpose which FRNSW had submitted justified its direction. In view of my decision that issue will need to be finalised.
No application was made for a dispute order so it is unnecessary for me to deal with that submission by the PSA.
For the reasons set out herein I refuse the orders sought by the PSA.
Consistent with [2] I confirm the following order: 1. Order pursuant to s 164A of the Industrial Relations Act 1996 that the disclosure of the identity of the person described herein as Mr A is prohibited

Endnote

Eldershaw Report dated 24 April 2018, point 16 on page 21

Amendments 06 December 2018 - Paragraph 14 changed Council to Counsel 06 December 2018 - Paragraph 15: Removed (") quotation mark in Ms Eldershaw's name and inserted apostrophe instead. 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 December 2018

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