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[2026] NSWIRComm 1096
General information, not legal advice.
Industrial Relations Commission (NSW)
2026-10-06
Senior Commissioner Constant
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Health Secretary in respect of NSW Health Pathology v Health Services Union NSW in respect of Dhungel [2026] NSWIRComm 1096
Hearing dates: 1 October 2026
Date of orders: 6 October 2026
Decision date: 06 October 2026
Jurisdiction: Industrial Relations Commission
Before: Senior Commissioner Constant
Decision: (1) The Health Secretary's refusal of Ms Saroja Dhungel's conversion request dated 17 December 2024 was fair and reasonable in all of the circumstances.
(2) The application is dismissed.
Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Dispute resolution — Whether refusal of request made by Technical Officer to be converted to the classification of Hospital Scientist was fair and reasonable in all the circumstances — Application dismissed
Legislation Cited: Industrial Relations Act 1996 (NSW), s 136
Cases Cited: Health Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Keryakous [2025] NSWIRComm 1073
Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Davidson; Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Meksasi [2025] NSWIRComm 1111
Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Davidson No 2; Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Shah [2026] NSWIRComm 1025
Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Meksasi [2026] NSWIRComm 1037
Category: Principal judgment
Parties: Health Secretary (notifier)
Saroja Dhungel (respondent)
Representation: Counsel:
K Brotherson (notifier)
J Martin (respondent)
Solicitors:
Sparke Helmore Lawyers (respondent)
File Number(s): 2025/00156345
Publication restriction: Nil
These proceedings concern a dispute notified pursuant to cl 12 of the Health Employees' Technical Officer to Hospital Scientist Conversion Interim Award 2024 (Conversion Award) by the Health Secretary in respect of NSW Health Pathology.
The dispute arises from a request made by Ms Saroja Dhungel on 17 December 2024 for conversion from the classification of Technical Officer to Hospital Scientist pursuant to cl 3 of the Conversion Award (Conversion Request). The Conversion Request was considered by an Internal Review Panel convened by NSW Health Pathology on 8 January 2025, which determined that it was fair and reasonable to refuse the request. That decision was communicated to Ms Dhungel by letter dated 17 January 2025. Following a referral under the Conversion Award, the Transitional Committee convened on 17 March 2025 to consider the refusal decision. The Transitional Committee was unable to reach a majority decision. The dispute has therefore been referred to the Commission for determination pursuant to cl 12 of the Conversion Award.
The Commission must determine whether the decision to refuse the Conversion Request was fair and reasonable in the circumstances having regard to the provisions of the Conversion Award. If the Commission is not so satisfied, it has power under s 136(1)(b) of the Industrial Relations Act 1996 (NSW) (Act) to resolve the dispute by making an appropriate variation to the Award to give effect to its determination.
For the reasons which follow, I have decided that the refusal of Ms Dhungel's Conversion Request was fair and reasonable in all the circumstances. It follows that there is no basis for the Commission to exercise its power under cl 12 of the Conversion Award and s 136(1)(b) of the Act to make the award variation sought.
The Conversion Award establishes a specialised and time-limited process for the conversion of eligible Technical Officers to the Hospital Scientist classification. It prescribes both the eligibility requirements for making a conversion request and the process by which such requests are to be assessed.
Clauses 19 and 20 of the Conversion Award identify the matters to be considered in determining whether a refusal of conversion is fair and reasonable. Those matters include an employee's qualifications, experience, work history, duties and responsibilities, the operational requirements of the relevant laboratory or service and the circumstances in which particular duties have been performed or competencies were acquired.
The principles governing the Commission's approach have been considered in Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Keryakous [2025] NSWIRComm 1073; Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Davidson; Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Meksasi [2025] NSWIRComm 1111 (Meksasi No 1); Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Davidson No 2; Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Shah [2026] NSWIRComm 1025; and Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Meksasi [2026] NSWIRComm 1037 (Meksasi No 2).
Those authorities establish that the Commission's function under cl 12 is to determine whether the refusal decision was fair and reasonable having regard to the matters identified in the Conversion Award and any other relevant circumstances. In undertaking that task, I am not confined to considering whether the Internal Review Panel's conclusion was reasonably open. Rather, I must determine for myself, on the evidence before me, whether the refusal decision was fair and reasonable in all the circumstances.
As explained in Keryakous, where an employee satisfies the eligibility requirements in cl 3 and makes a valid request for conversion, the central question becomes whether the employer has established that refusal of the request was fair and reasonable. That assessment requires consideration of all relevant circumstances, including both matters weighing in favour of conversion and matters relied upon as justifying refusal.
The authorities further establish that the Conversion Award does not create an entitlement to conversion based solely upon qualifications, experience, work history or length of service. Nor is any individual consideration identified in cll 19 and 20 necessarily determinative. The assessment required by the Conversion Award is evaluative in nature and requires all relevant considerations to be weighed in the context of the particular application.
The Health Secretary relied on written submissions dated 9 September 2026 and 30 September 2026 and the following evidence:
witness statements of Catherine Janto dated 9 September 2026 and 30 September 2026;
witness statement of Stephen Parker dated 9 September 2026; and
witness statement of Aaron Keenan dated 7 September 2026.
Mr Parker and Ms Janto were cross-examined.
Ms Dhungel relied on written submissions dated 23 September 2026 and a witness statement by her dated 23 September 2026.
Ms Dhungel was cross-examined.
The parties relied on a Statement of Agreed and Disputed Facts dated 30 September 2026.
Both parties made oral submissions in support of their written submissions.
It is not in dispute that Ms Dhungel made the Conversion Request in accordance with cl 3 of the Conversion Award on 17 December 2024 and expressed a willingness to undertake the duties of a Hospital Scientist as contemplated by cl 3(b).
It is also not in dispute that Ms Dhungel had been employed as a Technical Officer for substantially longer than the minimum six-month period required by cl 3(c) of the Conversion Award.
It is further agreed that Ms Dhungel possesses the requisite science qualifications for the purposes of the Conversion Award. Those qualifications include a Bachelor of Science obtained from the University of North Bengal, a Diploma in Medical Laboratory Technology from the University of Poona, a Diploma of Laboratory Technology (Pathology Testing) from TAFE NSW and, more recently, a Graduate Certificate in Medical Laboratory Science from the University of Technology, Sydney.
I am satisfied that the requirements of cl 3 were met and that Ms Dhungel therefore made a valid conversion request. The issue in dispute is therefore whether the refusal of that request was fair and reasonable in all the circumstances.
It is not in dispute that Ms Dhungel possesses substantial qualifications and extensive experience relevant to pathology and microbiology practice.
Ms Dhungel holds a Bachelor of Science, a Diploma in Medical Laboratory Technology, a Diploma of Laboratory Technology (Pathology Testing) and a Graduate Certificate in Medical Laboratory Science from the University of Technology Sydney. Those qualifications include study in microbiology, medical laboratory science, pathology testing and related scientific disciplines.
The evidence also establishes that Ms Dhungel has extensive practical experience in pathology laboratories. She has been continuously employed by NSW Health Pathology since February 2005 and also relied upon additional laboratory experience obtained before that appointment. Her experience substantially exceeds the minimum experience requirements contemplated by the Conversion Award.
Ms Dhungel also relied upon a number of references and letters of support from health professionals and colleagues with whom she had worked. I accept that those references provide support for her professional standing and reputation within the workplace and demonstrate that her work has been valued by a number of professional colleagues.
I also accept that Ms Dhungel sought additional exposure and retraining in molecular microbiology. As that issue bears more directly upon skills, training and operational arrangements within the laboratory, I address it separately below.
To the extent that cll 19(a), (e) and (g) require consideration of qualifications, experience and work history, those considerations favour conversion. I accept that Ms Dhungel has substantial experience within the Nepean Microbiology Laboratory, having worked there for more than 20 years. I also accept that she has undertaken significant professional development, including completion of a Graduate Certificate in Medical Laboratory Science and attainment of APACE certification. Further, a number of microbiologists and registrars expressed favourable views regarding her professionalism, technical abilities and contribution to the laboratory. The Health Secretary did not materially contest Ms Dhungel's qualifications, length of service or general experience. Rather, the opposition to conversion was directed principally to the operational requirements of the Nepean Microbiology Laboratory, the availability of Hospital Scientist-only duties and issues concerning skills, training and readiness associated with the Hospital Scientist classification.
The central issue in this matter concerns the operational requirements of the Nepean Microbiology Laboratory and whether the duties available within that laboratory support Ms Dhungel's conversion to the Hospital Scientist classification.
The Nepean Microbiology Laboratory is a large and complex service operating within a major referral laboratory. It provides bacteriology and molecular microbiology services and performs a broad range of diagnostic work across multiple testing platforms and specimen types.
Prior to implementation of the Conversion Award, the Nepean Microbiology Laboratory had 3 Hospital Scientists and 13 Technical Officers. At the time of hearing, staffing comprised 1 Senior Hospital Scientist, 7.5 Hospital Scientists and 8.5 Technical Officers. Six Technical Officers had already been converted pursuant to the Conversion Award process. Those staffing arrangements provide important context for assessing whether, at the relevant time, there was an operational requirement for a further Hospital Scientist position within the laboratory.
By the time of the hearing, six conversion requests made by other employees had been approved. Three of those approvals pre-dated Ms Dhungel's Conversion Request and a fourth application was already progressing through the conversion process at the relevant time. Those matters form part of the factual context in which the Conversion Request was assessed.
I have also taken into account the fact that other contemporaneous conversion requests were before the employer during the relevant period. Consistently with the observations in Health Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Keryakous [2025] NSWIRComm 1073, the treatment of contemporaneous conversion applications may form part of the factual context relevant to determining whether a refusal decision was fair and reasonable.
However, the assessment required by the Conversion Award is directed to whether the refusal decision made in January 2025 was fair and reasonable in all the circumstances then existing. Each conversion request required assessment on its own merits and by reference to the operational requirements existing at the relevant time. I accept the evidence that the earlier conversions had already been accommodated within the laboratory's operational structure and staffing profile and that the resulting staffing arrangements and allocation of Hospital Scientist-only duties formed part of the context in which the Conversion Request was assessed. I do not accept that the subsequent approval of additional conversion requests demonstrates that the operational requirements existing in January 2025 required approval of Ms Dhungel's Conversion Request.
I accept that Ms Janto considered that the laboratory could benefit from additional Hospital Scientist resources and that further scientific capacity may have been operationally advantageous. However, the issue before the Commission is not whether additional Hospital Scientists may have been desirable. The question is whether the operational requirements of the laboratory supported the approval of Ms Dhungel's Conversion Request having regard to the duties available and the staffing structure in place at the relevant time. The fact that additional Hospital Scientist resources may have provided operational benefits does not, of itself, establish that there was an operational requirement for a further conversion at the time the decision was made.
The Health Secretary also relied upon concerns relating to Ms Dhungel's skills, training and readiness to perform the broader responsibilities associated with the Hospital Scientist classification within the Nepean Microbiology Laboratory.
Ms Dhungel disputes the concerns asserted in respect of her skills, training and readiness to perform the broader responsibilities associated with the Hospital Scientist classification. It is therefore appropriate to deal with the matters addressed by the parties.
Ms Dhungel submitted that she has previously performed molecular biology work, successfully completed competency assessments, and consistently sought opportunities for further training. She also relied upon competency records and examples of work undertaken across both bacteriology and molecular functions.
I accept that Ms Dhungel has previously performed molecular biology work and has successfully completed competency assessments in a number of relevant areas. I further accept that she has repeatedly sought retraining opportunities, has demonstrated a commitment to maintaining and developing her professional skills, and that the absence of more recent molecular work was not entirely within her control.
I emphasise that I do not treat any absence of current competency in particular molecular functions as a factor weighing against conversion. To do so would be inconsistent with cl 20 of the Award in circumstances where opportunities for exposure and retraining were influenced by operational considerations beyond Ms Dhungel's control. The significance of this evidence lies not in any deficiency on Ms Dhungel's part, but in what it reveals about the allocation of Hospital Scientist-only duties and the operational arrangements that existed within the laboratory at the relevant time.
The evidence nevertheless discloses a genuine difference of opinion regarding the extent to which Ms Dhungel could immediately assume the broader responsibilities currently performed by Hospital Scientists within the laboratory. The Health Secretary’s witnesses expressed concerns regarding her current competency in certain molecular functions, the extent of her recent exposure to certain molecular functions, and her ability presently to perform the full spectrum of responsibilities expected of Hospital Scientists within the service.
I do not regard those concerns as determinative of the application. Nor do I consider that the evidence establishes that Ms Dhungel is incapable of performing Hospital Scientist-only duties. Equally, however, I am not persuaded that the concerns raised by the Health Secretary can simply be disregarded. They form part of the factual context in which the Conversion Request was assessed, although I do not regard them as an independent basis for refusing conversion.
There is force in Ms Dhungel's submission that many of the concerns raised by the Health Secretary could potentially be addressed through further training and development. However, the question before the Commission is whether, having regard to all of the evidence and the matters identified in the Conversion Award, the refusal decision was fair and reasonable in all of the circumstances. That question requires an evaluative assessment of the facts existing at the relevant time, including the operational requirements of the laboratory and the responsibilities associated with the Hospital Scientist classification.
The refusal letter dated 17 January 2025 did not expressly rely upon performance concerns, and performance was not separately identified in the material provided to the Transitional Committee. Accordingly, performance concerns do not constitute a separate basis upon which the refusal decision can be justified. However, as both parties addressed Ms Dhungel's performance history in some detail during these proceedings, it is appropriate to consider that evidence insofar as it forms part of the broader factual context.
Ms Dhungel relies upon positive performance appraisals, favourable comments from managers, encouragement she received to apply for Scientific Officer positions, her receipt of the NSW Health Pathology RITES Award, letters of support from clinicians and colleagues and the absence of any formal performance management process.
I accept that the record contains substantial evidence of positive performance over a lengthy period. That evidence demonstrates that Ms Dhungel was regarded as a valued and experienced employee who made a significant contribution to the laboratory, maintained her professional development and enjoyed the respect of a number of clinicians, microbiologists and colleagues. Those matters weigh in favour of conversion.
I also accept, however, that concerns regarding aspects of Ms Dhungel's performance had been raised prior to the commencement of these proceedings. During these proceedings, the Health Secretary relied upon contemporaneous emails, file notes and records of incidents said to demonstrate deficiencies in aspects of her work. I am satisfied that those concerns existed at the relevant time and were not matters devised for the purposes of the litigation.
In particular, I note the discussion summarised in Ms Janto's email of 11 October 2024. That discussion pre-dated the Conversion Request and recorded concerns regarding laboratory errors, adherence to procedures, time management and technical skills. The existence of that discussion supports the conclusion that at least some concerns genuinely existed before the refusal decision.
Nevertheless, the weight that can properly be attached to those concerns is moderated by the surrounding circumstances. No formal performance management process, performance improvement plan or other structured intervention had been implemented prior to the refusal decision. As recognised in Secretary, NSW Ministry of Health in respect of NSW Health Pathology v Keryakous [2025] NSWIRComm 1073 at [105], caution is required before performance concerns of that kind are treated as a substantial basis for refusing conversion where they have not been the subject of appropriate managerial intervention.
Whilst Ms Janto expressed concerns regarding the risks associated with unsupervised work in particular molecular functions, I do not treat those concerns as a significant independent basis for refusing conversion. Those concerns were not expressly relied upon in the refusal letter and are relevant only as part of the broader factual context in which the Conversion Request was considered.
I accept that there are substantial matters weighing in favour of conversion. Ms Dhungel has extensive experience, relevant qualifications, APACE certification, a lengthy period of service with NSW Health and a strong professional reputation. I also accept that she possesses the capability to perform at least some Hospital Scientist-only duties. Those matters have been given significant weight.
However, this case does not ultimately turn upon Ms Dhungel's qualifications, experience, commitment or professional capability. Nor does it turn upon whether she is capable of performing work at the Hospital Scientist level. Rather, the central issue is whether the operational requirements of the Nepean Microbiology Laboratory at the relevant time supported the creation of an additional Hospital Scientist position through the conversion process.
I have also taken into account that no formal performance improvement process was implemented, that Ms Dhungel sought opportunities to broaden her skills and experience, and that a number of other Technical Officers were converted pursuant to the Conversion Award process. However, none of those matters is determinative. My task is to assess whether the refusal decision was fair and reasonable having regard to all the circumstances existing at the relevant time.
For the reasons set out above, I am satisfied that the operational requirements of the Nepean Microbiology Laboratory, and in particular the nature, quantity and allocation of Hospital Scientist-only duties within the laboratory at the time of the refusal decision, outweigh the matters favouring conversion. I am satisfied that the available Hospital Scientist-only duties were already accommodated within the existing staffing structure and that the operational requirements of the laboratory did not support the addition of a further Hospital Scientist position.
My conclusion does not reflect any finding that Ms Dhungel lacks the qualifications, experience or capacity to perform Hospital Scientist-only duties. Rather, it reflects my assessment that the operational requirements of the laboratory at the relevant time did not support conversion. In those circumstances, I am satisfied that the refusal of Ms Dhungel's Conversion Request was fair and reasonable.
Pursuant to cl 12 of the Health Employees' Technical Officer to Hospital Scientist Conversion Interim Award 2024, I determine that the Health Secretary's refusal of Ms Saroja Dhungel's conversion request dated 17 December 2024 was fair and reasonable in all of the circumstances.
The application is dismissed.
N J Constant
Senior Commissioner
**********
Health Secretary in respect of NSW Health Pathology
Health Services Union NSW in respect of Dhungel
In that regard, qualifications, experience, demonstrated capability and professional recognition may weigh strongly in favour of conversion. Equally, operational requirements, the nature and availability of Hospital Scientist-only duties, workforce structure and other matters identified in the Award may support refusal. The weight to be afforded to any particular consideration will depend upon the evidence and circumstances of the individual case.
There is no real dispute that Technical Officers and Hospital Scientists perform a substantial amount of common laboratory work. The evidence of Ms Dhungel, Ms Janto and Mr Parker was broadly consistent on that issue. Once assessed as competent, employees in both classifications undertake specimen processing, microscopy, plate reading, organism identification, susceptibility testing and related diagnostic duties.
The question under cll 19(d) and (h) is not whether Ms Dhungel possesses the capacity to perform some or even many Hospital Scientist-only duties. Nor is it to be determined by reference to numerical staffing ratios or by whether other employees have previously been approved for conversion. Rather, the question is whether, having regard to the operational requirements of the laboratory, including the nature, volume and allocation of Hospital Scientist-only duties and the staffing structure of the laboratory, the refusal decision was fair and reasonable in all the circumstances.
Ms Dhungel relied upon that overlap in support of her application and submitted that she already performs work of a complexity comparable to that undertaken by Hospital Scientists. I accept that there is significant overlap between the classifications and that Ms Dhungel possesses considerable technical expertise and experience. However, the existence of overlapping duties does not itself answer the questions posed by cll 19(d) and (h) of the Award.
The Health Secretary led evidence identifying a range of duties ordinarily undertaken by Hospital Scientists which extend beyond routine diagnostic laboratory work. The evidence identified Hospital Scientist responsibilities including validation and verification activities, quality management responsibilities, audits, procedure development and review, competency assessments, supervisory functions, rostering responsibilities and other laboratory management activities.
Importantly, the evidence did not merely identify those duties in the abstract. Detailed evidence was given by Ms Janto in her statements dated 9 September 2026 and 30 September 2026, and by Mr Parker in his statement dated 9 September 2026, concerning the nature of those responsibilities, the level of knowledge and accountability associated with them, the extent to which they occupied the time of existing Hospital Scientists, and the manner in which those duties were allocated throughout the laboratory.
I accept the evidence of Ms Janto and Mr Parker regarding the nature of Hospital Scientist-only duties within the laboratory and the manner in which those responsibilities were performed. I further accept that those duties involve significant quality, supervisory, validation, training, rostering and management responsibilities.
By the conclusion of the hearing there was little substantive dispute regarding Ms Janto's estimate that approximately 22 hours per week of Hospital Scientist-only duties existed within the laboratory. The principal dispute concerned whether those duties demonstrated a sufficient operational basis for a further Hospital Scientist position. I accept the evidence of Ms Janto and Mr Parker that those duties are not ordinarily distributed equally amongst all Hospital Scientists but are generally allocated to one, or occasionally two, Hospital Scientists who perform them in conjunction with their routine laboratory responsibilities. I accept further their evidence that those duties were already accommodated within the existing staffing structure and that further subdivision would not be operationally efficient. I also accept that those duties did not constitute a discrete body of work capable of supporting a separate Hospital Scientist position. The issue in dispute was therefore not the existence of those duties, but the significance to be attached to them when assessing the operational requirements of the laboratory.
In cross-examination Ms Dhungel accepted that she did not perform a number of the duties identified by Ms Janto as Hospital Scientist-only duties, including stock management responsibilities, QMS maintenance record functions and the verification activities described by Ms Janto. Those concessions support the conclusion that a meaningful distinction continues to exist between the duties presently performed by Ms Dhungel and the Hospital Scientist-only duties relied upon by the Health Secretary.
To the extent Ms Dhungel established that she has performed some duties which overlap with duties commonly undertaken by Hospital Scientists, I accept that evidence. However, I am not satisfied that she presently performs the principal Hospital Scientist-only duties identified in the evidence of Ms Janto and Mr Parker. Nor am I satisfied that the overlap in duties demonstrates that additional Hospital Scientist-only duties exist beyond that already allocated within the existing Hospital Scientist cohort.
I accept that Ms Dhungel repeatedly sought additional exposure and retraining in molecular microbiology and that opportunities to undertake that training were influenced by operational considerations within the laboratory. Consistently with cl 20 of the Award, I do not treat the absence of current molecular competency as a factor weighing against conversion. However, the evidence remains relevant to understanding how Hospital Scientist-only duties were allocated amongst staff and the operational arrangements that existed within the laboratory at the time the Conversion Request was considered.
I accept that Ms Dhungel possesses the qualifications, experience and technical capability to undertake at least some Hospital Scientist-only duties. However, the existence of that capacity does not itself establish that the operational requirements of the laboratory supported conversion. The relevant question is whether sufficient Hospital Scientist-only duties existed within the laboratory to justify an additional Hospital Scientist position at the relevant time.
Having regard to the evidence as a whole, including the staffing profile existing at the time of the refusal decision, the conversion requests already approved, the evidence concerning approximately 22 hours per week of Hospital Scientist-only duties and the evidence of Ms Janto and Mr Parker concerning the allocation of those duties, I am ultimately satisfied that the available Hospital Scientist-only duties were already accommodated within the existing Hospital Scientist staffing structure, including the conversions already approved at the time of the refusal decision.
I accept that there are substantial matters weighing in favour of conversion. Ms Dhungel has extensive experience, relevant qualifications, significant service with NSW Health, APACE certification and a strong professional reputation. I also accept that she repeatedly sought opportunities to expand her skills and obtain further exposure to molecular microbiology work. Those matters have been given significant weight. However, for the reasons set out above, I am satisfied that the operational requirements of the Nepean Microbiology Laboratory at the time of the refusal decision outweigh the matters favouring conversion. The operational requirements of the laboratory emerge as the most significant consideration in the present matter.
Having considered the evidence as a whole, I accept that the Health Secretary genuinely held concerns regarding Ms Dhungel's present readiness to undertake the broader range of Hospital Scientist-only duties. However, I attach limited weight to those concerns. To the extent they arise from opportunities for training, exposure or competency development that were influenced by operational circumstances beyond Ms Dhungel's control, cl 20 requires caution in their treatment. Their relevance lies principally in explaining the laboratory's existing allocation of duties and operational arrangements.
Clause 20 of the Conversion Award prevents the employer from relying upon the fact that an employee has not been offered, or has not performed, particular duties, or does not possess particular competencies because they have not had the opportunity to obtain them. I have therefore not treated the fact that Ms Dhungel has not previously performed particular Hospital Scientist-only duties, or that she does not presently possess all competencies associated with those duties, as matters weighing against conversion. Rather, the relevance of the evidence lies in what it reveals about the operational requirements of the laboratory, the availability of Hospital Scientist-only duties and the operational arrangements under which those duties were performed at the relevant time.
Having regard to the absence of formal performance management, the substantial evidence of positive performance and professional recognition, and the fact that performance concerns were not expressly relied upon as a basis for refusing the Conversion Request, I do not regard performance considerations as carrying substantial weight in the present determination. Whilst contemporaneous concerns existed within the laboratory, they were not advanced as an operative reason for the refusal decision and provide only limited support for the Health Secretary's position. My conclusion ultimately turns upon the operational requirements of the Nepean Microbiology Laboratory and the availability of Hospital Scientist-only duties.