Jose v Secretary, NSW Ministry of Health

Balance of convenience

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.
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.
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.
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.
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.
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.

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Judgment (8 paragraphs)

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