Jose v Secretary, NSW Ministry of Health

Background

1. The applicant commenced employment at the MLHD on 30 January 2017.
2. A witness statement filed by the applicant contained the following: Complaints that I raised 21. In or around June 2017, I began raising serious concerns about issues that I had discovered within Biomedical Engineering. These Included: a. That equipment had been bought without proper consultation or reason; b. Equipment had been bought with no-one in MLHD to deliver it to; c. Equipment had been decommissioned which was still fit for purpose; and d. Equipment that had been bought had gone missing. 22. In March 2018, before being placed on the first Performance Improvement Plan, I sent an email to Carla Bailey, MHLD General Manager of Operations, in which I raised concerns that I had about my direct Manager, Darren Green. This was before I was informed of any Performance Improvement Plan…
3. In response to an email dated 22 March 2018 from the applicant to Carla Bailey, General Manager Operations, in which the applicant raised a number of concerns about the Biomedical Engineering Department and his manager, Darren Green, Manager of Assets and Clinical Technology, Ms Bailey wrote in an email to the applicant on 23 March 2018 the following: I am aware that there are some ongoing issues between staff in the biomedical department. For this reason Sarah from the workforce team has been requested to undertake a number of interviews with staff in the department to identify the issues and work towards a resolution. Sarah is the independent person in this process. I acknowledge the content of your email and this will be covered in the process that Sarah is undertaking. It is not appropriate for Brett or myself to be involved in the meetings at this time as issues that cannot be resolved will need to be escalated to myself and or Brett for a decision on the way forward.
4. On 23 April 2018, the applicant received correspondence from Mr Green informing him that he would be commencing a Performance Improvement Plan due to perceived unsatisfactory performance and communication. It is the applicant's contention that this was done in retaliation for the concerns he had previously raised about the Biomedical Engineering Department, including concerns about Mr Green.
5. Below are set out the "Performance Issues" listed in the initial Performance Improvement Plan together with the applicant's response to those issues: A. Decisions not being made within delegation e.g. delegation level of $2,000 and requesting management direction for expenses <$2,000, seeking manager direction re travel and leave forms, escalating minor issues to manager. I dispute that this is a performance issue. This issue relates to the attendance of staff at a conference. I was directed by my manager that attendance of staff at the conference had to be forwarded to him for approval and could not be approved by me. I acted in accordance with this direction. B. Lack of leadership within team e.g. emailing rather than speaking to team, lack of positive or constructive feedback being given to team (mainly negative feedback), not dealing with issues raised by team. The real issue in the team was long-standing poor relationships and culture within the team. My attempts to manage the team were challenged by the team's Senior Technician - other employees in the team reported to me through the Senior Technician. I made complaints that he was bullied by the Senior Technician and sought assistance of the manager and HR to address my concerns with the Senior Technician, but no action was taken. C. Non-acceptance of management direction e.g. seeking contrary information from colleagues. I dispute that this was a performance issue. I had genuine concerns and questions about policies and procedures in place within the department. I sought the advice of others so that I could try to improve these policies and procedures. D. Inadequate consultation/collaboration on decisions. I dispute that my consultation and/or collaboration on decisions was inadequate. No specific details of these issues were provided to me to respond to. E. Need to improve business decisions making processes using data to underpin investments and divestments. I dispute that this was a performance issue. No specific details of such issues were provided for me to respond to. F. Lack of management of project and lack of guidance to staff in relation to AFM Online rollout. I dispute that this was a performance issue. There were significant problems with the capabilities of this system which were recognised elsewhere in the state. These problems meant that the system had not been implemented in other Local Health Districts. Despite this, management required the use of the system and blamed me for problems that were outside of my control. G. Insufficient information/business cases being put to stakeholders and management. I dispute that this was a performance issue. I understand that this allegation related to the attendance of staff at a conference (the same conference referred to at 'A' above). A business case was required from staff for attendance at the conference. This was the responsibility of staff seeking to attend the conference. I required staff who wanted to attend the conference to put together their own business case. H. Advising manager and Workforce of non-acceptance of responsibility in contributing to team culture and relationships with team and stakeholders. There was a long-standing problem with poor culture within the team. This problem was recognised by the LHD and pre-dated my employment. I sought assistance from my manager and from HR to address these problems, including seeking to initiate Performance Improvement Plans and disciplinary investigations for staff. These attempts were blocked by management and HR and no action was taken despite my efforts.
6. The applicant was placed on a number of Performance Improvement Plans throughout 2018. Those plans involved regular meetings which were attended by the applicant, Mr Green and either Abbie Lowden or Sarah Chambers, both Workforce Support Officers. The applicant raised a number of concerns about the Performance Improvement Plan process, including the involvement of Mr Green, about whom he had previously raised concerns. His witness statement continued as follows: 23. I continued to raise concerns and complaints throughout the Performance Improvement Plans. Some examples include: a. 30 April 2018, I emailed concerns regarding operations of Biomedical Engineering to Jenny Spain, MHLD Governance Risk and Audit Manager… b. 8 May 2018, I emailed further emailed concerns regarding operations of Biomedical Engineering to Jenny Spain, MHLD Governance Risk and Audit Manager… c. 18 June 2018, I emailed concerns to Jill Ludford, MLHD Chief Executive, and attached a completed Public Interest Disclosures Internal Reporting Form…
7. On 4 December 2018, the applicant received a "First and Final Disciplinary Warning" from Fiona Renshaw, A/Director Operations, based on the applicant's continued poor performance. In relation to the applicant's complaint about Mr Green's involvement in the process, Ms Renshaw wrote: Regarding your concerns and requests as to why Darren Green was not removed from the PIP process due to your belief that he could not consider your matter in an unbiased manner. It was explained to you by Carla Bailey, MLHD General Manager of Operations and Brett Thompson, Director Operations at the beginning of the PIP process, that Darren as your manager is the most appropriate person to manage this process. A representative from People & Culture has been involved from the very beginning to ensure that the PIP was managed appropriately. I am aware that both Sarah Chambers and Abbie Lowden as the Workforce Support Officer attended all PIP review meetings and were available if you required support.
8. On 21 February 2019, Ms Renshaw wrote again to the applicant in relation to his "continued unsatisfactory performance". He was given the opportunity to "show just cause" as to why his employment with MLHD should not be terminated. He was suspended from duty with pay to allow him the appropriate time to respond and whilst the matter was considered further.
9. The applicant provided a written response in which he took issue with the Performance Improvement Plan process which he claimed "started as a result of my whistleblowing action to protect MLHD and the community".
10. On 27 March 2019, the applicant received the letter from Ms Ludford which is referred to at [2] above.
11. The applicant also gave evidence as to the devastating financial impact which the loss of his salary would have on him and his family which could not be remedied by way of any form of relief that may be awarded to him if his unfair dismissal application was ultimately successful. These matters are dealt with in more detail later in this decision.

Principles governing interlocutory orders restraining dismissals

1. The parties were in general agreement as to the principles which guide this Commission when dealing with an application such as the one presently before it.
2. 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) Boland J set out those principles in the following terms: 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 followed. [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.

Sufficient likelihood of success

1. In this matter I have formed the opinion that there is a sufficient likelihood of the applicant's unfair dismissal application succeeding such as to warrant the preservation of the status quo, at least for a period of time.
2. Unlike the situation in Woelfl, this case does not involve a threatened dismissal for alleged misconduct but rather for alleged poor performance.
3. As referred to at [7] above, there appears to have been some acceptance by senior management within the MLHD that there were "some ongoing issues between staff in the biomedical department" which, if the applicant's evidence is ultimately accepted, were not of his making.
4. There is also the issue of the timing of the first Performance Improvement Plan following shortly after the applicant raised with Ms Bailey concerns about his manager, Mr Green. In addition, Mr Green's direct involvement in the Performance Improvement Plans may arguably be seen as unfair to the applicant in the circumstances of this case.
5. Without having formed any firm view about these matters, I am of the opinion that the applicant's claims of unfairness are sufficiently arguable so as to warrant the preservation of the status quo, at least for a period of time.

Balance of convenience

1. In Woelfl Boland J dealt with the issue of the balance of convenience as follows: 68 If no interlocutory order was made and the three officers were dismissed, it could be, in my estimation, three to six months before the Commission determined any unfair dismissal claim. In the meantime, the likelihood is that the three officers would not be able to earn any income in the Grafton area, employment prospects being quite limited. In respect of Mr Woelfl he has been employed with the respondent for approximately 26 years, most of his adult working life. The prospect of him finding employment that suits his skills and experience in the local area is slim indeed. Mr Pearcey's age is a distinct disadvantage in finding other employment in an area where jobs are less plentiful than in the capital cities and suburbs. All three have been the subject of vilification and abuse by the anonymous critics that appear to inhabit some of the social media and to some extent the officers have become pariahs, even in their hometown. The stigma attached to them in their local area would most likely act as a disincentive to hiring them, even in casual employment. Moreover, in the intervening period between dismissal and any determination regarding their unfair dismissal claims, the three officers would have to endure the shame brought upon them by the dismissal and the continued, and probably heightened, denigration and abuse. 69 The loss of income through dismissal, even for a relatively short period of three to six months, places in jeopardy their ability to meet their expenses and retain the family home. The evidence is that each of them may be forced to sell their homes, uproot their families and move to where employment was available. Even then, the stigma that the social media has attached to them could prove a barrier to employment. These days it is a simple matter of employers searching the electronic media (as the officers' solicitor did) for information concerning individuals. The coverage given to the three officers would undoubtedly operate to their prejudice in the context of seeking new employment. 70 Even if the three officers were successful, ultimately, in achieving reinstatement orders, if they were forced to sell their homes and/or relocate to find employment in the meantime, they would have suffered unnecessary substantial inconvenience and cost. 71 To be weighed against this is the prejudice or "damage" to the respondent. That damage amounts to not having the matters resolved in a timely way and having to maintain the officers' pay whilst they are on suspension until the matters are heard and determined. 72 It is the case that the officers have been receiving pay (albeit at a lesser rate than if they were working) since they were suspended some 22 months ago. However, that is no fault of the officers. For some yet unexplained reason, it was not until July 2011, some 13 months after the incident, that new allegations were made against the officers concerned. These new allegations were then investigated and found proven in February 2012. This delay in resolving the matters and having to pay the officers for the extended period would appear to lie at the feet of the respondent. 73 That the respondent may be required to maintain the officers on suspension and pay them for a further three to six months does not appear to me to outweigh the prejudice or damage I have described as being inflicted on the officers concerned. 74 The respondent submitted there was nothing in this case that takes it outside the ordinary class of disciplinary matters in Corrective Services or the broader public sector. That is not the appropriate test. Any person the subject of disciplinary proceedings involving a threat of dismissal under the Industrial Relations Act that satisfies the tests in Beecham is, in the tribunal's discretion, entitled to an order that the dismissal not proceed pending the hearing and determination of the claim. 75 In any event, this case is out of the ordinary. It involves persons in a particular line of work dominated by a single employer in the Grafton area; it involves three employees living and working in a country town where the prospects of alternative employment are quite limited, with the potential of forcing the individuals to sell their homes and displacing their families; and it involves the shame and embarrassment of being publicly and widely vilified and abused in circumstances where it may be found it was not warranted, but where the stigma of such vilification and abuse may be ineradicable.
2. The matters which were relied upon to tip the balance of convenience in favour of the applicant were summarised in written submissions filed on his behalf in the following terms (footnotes omitted): 36. The questions regarding the adequacy of remedies and balance of convenience require consideration of similar factual material and are conveniently addressed together. 37. The applicant would suffer serious consequences were he to be dismissed. Those consequences include the personal distress that he would suffer, for which he could not be compensated through the present proceedings. 38. Further, he would suffer other consequence which would not be able to be remedied by the proceedings. Those consequences include: - The loss of his house; - A requirement for his children to change schools; - The loss of his wife's job if his family is forced to leave Wagga Wagga; - Housing uncertainty for his family from the combined threat of losing his home; and - Being placed on a Default Tenancy Database. 39. These problems are exacerbated by the fact that the applicant has made great attempts to get another job but has been unsuccessful. The applicant's inability to find new employment, coupled with his existing financial responsibilities, means that the impact of the dismissal would be financially ruinous for him and his family, with no prospect of the consequences that would flow from that being remedied if he were to be ultimately successful in his application is dismissed in the meantime. 40. Significantly, the applicant also faces the problem of being unable to transfer money to his parent in India or to repay money to friends in India who have provided financial assistance directly to his parents. In relation to the issue of supporting his parents in India, including his terminally ill father, the applicant states: [47] I have two sisters but no brothers. One sister lives in Kuwait, the other did live in Kuwait but has returned to India to help look after my parents. In my culture, it is the responsibility of the son to look after aged parents. I regularly transfer money ta my parents to cover their expenses, particularly my father's medical expenses. I will feel great shame and distress if I cannot look after my father and mother as it is my responsibility to do so as the only son.... and [48] b. Rather than transferring money from an Australian bank account to India, which can be delayed and which requires the payment of transaction fees, it is common for friends in India to make payments or transfer money to aged people with the understanding and agreement that they will be repaid by the son. It is my cultural responsibility to repay these people. If I am unable to repay these people not only will it bring shame on me, it can lead to my parents being isolated in the community or, in the worse case, facing aggression from the people that are owed money. I cannot allow this to happen and so would have to sell my own house to repay these people. 41. In Woelfl Boland P noted that relevant considerations with respect to balance of convenience included: a. the applicants' regional location; b. the time likely to elapse prior to the final determination of an unfair dismissal claim; c. the ability of the applicants to find employment in their local area; and d. the stigma which attaches to dismissal. 42. The applicant submits that each of these matters also bears upon the determination of the adequacy of remedies. 43. The applicant is faced with a situation in which he would be severely disadvantaged were the threatened dismissal to be effected prior to the determination of the present matter on its merits. 44. The inconvenience to the respondent (to either the Secretary of the Ministry of Health or MLHD) or the District would be minimal. Requiring the respondent to maintain the employment of the applicant within MLHD would pose no serious threat to the viability of the operations of the respondent. The respondent operates a large and sophisticated operation capable of absorbing any inconvenience occasioned by the maintenance of the applicant's employment.
3. Unlike the situation in Woelfl, it is unlikely that the applicant has been, or will be if he is dismissed, subjected to the sort of vilification and abuse that the applicants in that case were subjected to. Nevertheless, it is likely, given the seniority of the applicant's position and the specialised nature of his role, that he will suffer irreparable reputational damage if he is dismissed, similar to that referred to by Boland J in Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Dhayanithi Sivathondan and South Western Sydney Area Health Service ([2002] NSWIRComm 98) in the following terms (at [48]-[49]): 48 Ordinarily, I would consider reinstatement to be an adequate remedy in the circumstances but what concerns me is that even if she were reinstated, Dr Sivathondan would, nevertheless, suffer damage. I already have the impression that Dr Sivathondan's professional reputation may have suffered by the events at Bowral Hospital and there were doctors and nurses who indicated, rightly or wrongly, that they were not prepared to work with her. If Dr Sivathondan were to be dismissed, this fact would become widely known within the small anaesthetist community and, indeed, throughout the health care industry and it would undoubtedly impact even more adversely on her professional standing than hitherto has been the case. Reinstatement may not wholly overcome the stigma associated with the dismissal. For example, if Dr Sivathondan were at some later stage to seek employment other than with the respondent, the stigma attached to the circumstances of her dismissal are likely to act against her. This is not a hollow supposition given the attitude of doctors and nurses at Bowral Hospital who indicated, before any action was taken against the applicant, that they were not prepared to work with her. 49 As to the balance of convenience, I consider it lies with the applicant. On the one hand, the respondent contends there is no funding to support Dr Sivathondan in employment whilst she is subject to the Medical Board's orders. On the other hand, if the interlocutory orders she seeks were not to be granted and Dr Sivathondan were dismissed, Dr Sivathondan would face the prospect of either never again being able to practise in her professional capacity of anaesthetist or having her professional reputation damaged as a consequence of the dismissal.
4. Taken together with the other matters referred to at [24] above, it is my determination that the balance of convenience favours the making of an order pursuant to subsection 89(7) of the Act. Of particular significance in making this determination are the following factors: 1. The reputational damage which will be suffered by the applicant if he is dismissed. 2. The fact that the applicant resides in a rural location where alternative employment opportunities are likely to be fewer than if he resided in a metropolitan location. 3. The likelihood that the applicant and his family will lose their family home if he is dismissed. 4. The likelihood that the applicant's children will not be able to remain at their current school if he is dismissed. 5. The size of the respondent and the MLHD and their capacity to maintain the status quo, which is that the applicant has been suspended on pay since 21 February 2019, for a further period of time.
5. However, at this stage I am not prepared to make an order in the terms sought by the applicant which would have the effect of restraining the respondent from dismissing him until his unfair dismissal application is heard and determined, however long that might take. The order I propose to make will be limited to a period of three months, at least initially. During that time the Commission will be able to monitor the progress of the application and will, if the application has not been determined within that timeframe, hear the parties in due course as to whether or not any further interlocutory order should be made prior to the expiry of that three month period.
6. I propose also to convene a conciliation conference at the earliest convenience of the parties to attempt to resolve the application by way of a conciliated outcome.

Order and direction

1. I make the following order and direction: 1. Neither the Health Secretary nor the Murrumbidgee Local Health District are to dismiss Jomon Kadavil Jose for the reasons set out in the letters to him from Fiona Renshaw dated 21 February 2019 and from Jill Ludford dated 27 March 2019 before 5.00 pm on Wednesday 28 August 2019. 2. The parties are directed to confer forthwith as to a suitable date for a conciliation conference to take place. 3. Liberty to apply on three days' notice. John Murphy Commissioner

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: 29 May 2019