Ng v North Coast Area Health Service And Another

Industrial Relations Commission (NSW)|2007-07-18|Before: Harrison DP

CITATION: Ng v North Coast Area Health Service And Another [2007] NSWIRComm 173

APPLICANT Dr L F Ng PARTIES: RESPONDENTS North Coast Area Health Service Director General NSW Department of Health

CATCHWORDS: Application for relief from unfair dismissal - jurisdiction - registered medical practitioner - removal from NSW Medical Register at request of practitioner - subsequent conclusion of employment - frustration of contract of employment - capacity to bring application challenged on basis that dismissal by employer did not occur. Held - Positive act of employee to seek removal from NSW Medical Register struck down foundation of employment - not intention of employer to dismiss - cessation of employment not dismissal by employer - application for relief not available - application dismissed.

LEGISLATION CITED: Industrial Relations Act 1996 Mutual Recognition (New South Wales) Act 1992

Smith v Director-General of School Education (1993) 51 IR 204 CASES CITED: Allison v Bega Valley Council (1995) 63 IR 68 Award Staff Specialists (State) Award (2006) 152 IR 405

Solicitor Dennis Fitzpatrick Dennis Fitzpatrick Solicitors LEGAL REPRESENTATIVES: RESPONDENTS

Solicitor Ms S Anderson McKenzie Cox Solicitors

12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

LEONG FOOK NG AND NORTH COAST AREA HEALTH SERVICE AND ANOTHER

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 Dr Leong Fook Ng, the Applicant, was engaged as a Staff Physician Oncology by the North Coast Area Health Service, the Respondent, at the Tweed Hospital and Tweed/Byron Network from 19 May 2006. 2 Dr Ng was employed in accordance with an offer of appointment (Ex 6) accepted by him. The terms of employment specified in exhibit 6 include application of the Staff Specialists (State) Award (2006) 152 IR 405 ("the Award"); and that the appointment was temporary for a period of one year, to terminate on expiration of Dr Ng's visa. 3 Dr Ng held a Subclass 457 visa, the terms of which are set out in exhibit 3. The visa was valid for the period 17 May 2006 to 1 May 2007. The visa also carried work limitations set out in exhibit 3 in the following terms:

PRIMARY VISA HOLDER VISA CONDITIONS - WORK LIMITATIONS A Condition on Subclass 457 visas for primary visa holders is that they must not:

cease to be employed by the employer; or - work in a position or occupation inconsistent with the approved position or occupation; or - engage in work for another person or for themselves whilst working for the sponsoring employer. 4 Dr Ng was suspended from duty on full pay from 15 August 2006 in accordance with an investigation process resulting from collegiate concerns and patient complaints. 5 During the course of these events the Respondent was informed that Dr Ng was no longer registered as a medical practitioner in the State of New South Wales. 6 This information resulted in correspondence from the Respondent to Dr Ng on 28 November 2006 in the following terms (Ex 5, attach. B): I refer to your appointment as part-time Staff Specialist Oncologist, The Tweed Hospital.

I have been advised by the NSW Medical Board of NSW that you have withdrawn your name from the register of medical practitioners.

As your appointment as Staff Specialist is dependant on you being eligible to practice medicine in NSW this action to withdraw your name from the medical register prevents you from carrying out the clinical duties of your position and thus you are unable to meet the mandatory requirements of your position.

In these circumstances I am obliged to terminate your employment with the North Coast Area Health Service effective from the date of this letter ie 28 November 2006.

Any monies owing will be deposited into your current nominated account.

7 An application for relief from unfair dismissal was filed on 19 December 2006, subsequently subject to conciliation proceedings conducted by Commissioner Murphy. The matter was not able to be resolved and a question of jurisdiction arose. Murphy C issued directions in the following terms: The hearing of this matter will deal with the narrow threshold issue of the apparent failure by Dr Ng to renew his registration or to withdraw his registration to practice medicine.

It may be that, whatever reason is behind Dr Ng's non registration, the consequent frustration of the employment contract was simply bought about by his inability to perform his side of the contract. It remains to be decided if anything related to the reasons for Dr Ng's non registration should attract the Commission's intervention. Accordingly, the hearing is expected to traverse the background to that non registration, particularly as it might relate to any involvement of the Department of Immigration and Multicultural Affairs. Matters related to complaints by staff and patients, included in the investigation report provided to Dr Ng are irrelevant to the preparation of the hearing of the threshold issue and again it is emphasised that patients should not be approached by either party. … … The applicant's affidavit/witness statement to be filed and served by 4.5.2007 The respondent's affidavits/witness statements to be filed and served by 1.6.2007 Applicant's affidavit/statement in reply to be filed and served by 8.6.2007 8 The matter was reallocated to the Commission as presently constituted and subject to hearing in Ballina on 19 June 2007. 9 Mr T Rogers of counsel appeared on behalf of Dr Ng, instructed by Mr D Fitzpatrick, solicitor, of Fitzpatrick Solicitors. 10 Mr S Benson of counsel appeared on behalf of the Respondent instructed by Ms S Anderson, solicitor, of McKenzie Cox Solicitors. 11 Mr Rogers brought evidence from Dr Ng. 12 Mr Benson brought evidence from Dr David Hutton, Director of Clinical Governance for the Respondent.

13 The NSW Medical Registration Board had registered Dr Ng as a medical practitioner until 19 October 2006. On 28 September 2006 Dr Ng submitted a Renewal of Registration Form (Ex 4, attach. I) which directly and particularly declined further registration and advised that he did not intend to practice in NSW. 14 On 18 October 2006 the NSW Medical Registration Board wrote to Dr Ng confirming his removal from the register and advising him (Ex 4, attach J): You are no longer entitled to practice medicine in any form including writing prescriptions and referrals in New South Wales 15 Dr Ng did not inform the Respondent of these events. 16 The evidence of Dr Ng confirms that he caused his removal from the NSW Medical Register. This is deposed by Dr Ng in the following terms: (TR 19/6/07, pp 17,18): BENSON: Q. Now you continue to work in that capacity and on 28 September 2006 you submitted to the Medical Board a renewal of registration form in which you inform the Medical Board that you did not wish to renew your registration, correct? A. Yes.

Q. And that you requested the board to remove your name from the register? A. Yes.

Q. You also declared in that form that you did not intend to practise in New South Wales? A. That's correct.

Q. And as a consequence of that the Medical Board of New South Wales wrote to you on 18 October 2006 confirming that your name had been removed from the Medical Board's register in accordance with your instructions effective from 20 October 2006? A. Yes.

Q. Now, at this point it's the case, is it not, that you had not informed the North Coast Area Health Service that you were taking such action? A. I informed the - I informed the - I informed Mr Crawford in a different way. I - when I was overseas attending a conference I informed him in the early part - during the early parts of October that my visa had been cancelled and I was submitting - I didn't inform him in writing that I was submitting to a Commonwealth law which made it unlawful for me to work in New South Wales at the time.

Q. Sorry? A. At that time my visa was cancelled on about - on or about 25 September and I wrote to Mr Crawford by email - via email in early October informing him that the visa had been cancelled.

Q. You wrote to him on-- A. I think it was early in early October. It was via email.

Q. That was in regard to your-- A. Nothing was mentioned about registration. It was in response to a letter in which he demanded that I reported back to Tweed Heads within five days. I was attending a continuous - a continuing professional education session in Turkey at that time.

17 Mr Rogers submitted that the advice to Dr Ng of 28 November 2006 (Ex 5) expressly refers to the termination of Dr Ng's employment by the Respondent giving rise to jurisdiction of the Commission. 18 Mr Rogers put that the circumstances did not meet the strict legal requirements of frustration as it is possible for Dr Ng to be employed whilst not a registered medical practitioner, and indeed was not required at the relevant time to undertake any medical duties as he had been stood down. 19 Mr Rogers canvassed the principles of frustration in detail which, given the findings made, are not necessary to traverse here. 20 Mr Rogers put that Dr Ng remained a registered medical practitioner in the State of Queensland and could obtain registration in NSW on request pursuant to the Mutual Recognition (New South Wales) Act 1992, the relevant provisions of which are s 19, s 20 and s 21(3). Section 19 states: 19. Notification to local registration authority (1) A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle. (2) The notice must: (a) state that the person is registered for the occupation in the first State and specify that State; and (b) state the occupation for which registration is sought and that it is being sought in accordance with the mutual recognition principle; and (c) specify all the States in which the person has substantive registration for equivalent occupations; and (d) state that the person is not the subject of disciplinary proceedings in any State (including any preliminary investigations or action that might lead to disciplinary proceedings) in relation to those occupations; and (e) state that the person's registration in any State is not cancelled or currently suspended as a result of disciplinary action; and (f) state that the person is not otherwise personally prohibited from carrying on any such occupation in any State, and is not subject to any special conditions in carrying on that occupation, as a result of criminal, civil or disciplinary proceedings in any State; and (g) specify any special conditions to which the person is subject in carrying on any such occupation in any State; and (h) give consent to the making of inquiries of, and the exchange of information with, the authorities of any State regarding the person's activities in the relevant occupation or occupations or otherwise regarding matters relevant to the notice. (3) The notice must be accompanied by a document that is either the original or a copy of the instrument evidencing the person's existing registration (or, if there is no such instrument, by sufficient information to identify the person and the person's registration). (4) As regards the instrument evidencing the person's existing registration, the person must certify in the notice that the accompanying document is the original or a complete and accurate copy of the original. (5) The statements and other information in the notice must be verified by statutory declaration. (6) The local registration authority may permit the notice to be amended after it is lodged. 21 Section 20 states: 20. Entitlement to registration and continued registration (1) A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration. (2) The local registration authority may grant registration on that ground and may grant renewals of such registration. (3) Once a person is registered on that ground, the entitlement to registration continues, whether or not registration (including any renewal of registration) ceases in the first State. (4) Continuance of registration is otherwise subject to the laws of the second State, to the extent to which those laws: (a) apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and (b) are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation. (5) The local registration authority may impose conditions on registration, but may not impose conditions that are more onerous than would be imposed in similar circumstances (having regard to relevant qualifications and experience) if it were registration effected apart from this Part, unless they are conditions that apply to the person's registration in the first State or that are necessary to achieve equivalence of occupations. (6) This section has effect subject to this Part. 22 Section 21(3) states: (3) However, the local registration authority may, subject to this Part and within one month after the notice was lodged, postpone or refuse the grant of registration. 23 Mr Benson submitted that the removal of Dr Ng from the register of medical practitioners was an effective end to the contract of employment. 24 Mr Benson put that the language of the correspondence (Ex 5, attach. B) could not be relied upon to find that there had been a termination of employment by the employer. Mr Benson submitted that the use of the words: "I am obliged to terminate your employment with the North Coast Area Health Service" was an expression by a person not legally qualified to describe the consequences of de-registration, not a sending away by the employer in the manner described in Smith v Director-General of School Education (1993) 51 IR 204 at 219 where a Full Bench of the Commission said: We apprehend no real issue may be taken with the ordinary meaning of the word "dismissal" as so applied to s 245, and, indeed, it seems to us that it is in that defined sense of an employee being sent away from employment that unfair dismissal cases in industrial jurisprudence have been concerned. The terms of s 245 of the Industrial Relations Act would suggest no latent limitation in that respect. Therefore, we find no difficulty in accepting the ordinary meaning of "dismissal" suggested by Brereton J in Ex parte Wurth as being "the termination of services by the employer without the employee's consent"; we would add that where an employee does not freely consent to the termination, understood in a broad sense, then the circumstances may still amount to a dismissal by the employer as a constructive dismissal: see Willis (at 136, 137), Ex parte Wurth (at 59, 60), Re Michaelis Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild Re dismissal [1979] AR (NSW) 392 at 393 and Western Excavating (ECC) Ltd v Sharp [1978] 1 CR 221 at 225, 226. 25 Mr Benson provided a useful summary of the statutory framework regulating medical practitioners set out below: STATUTORY FRAMEWORK TO REGULATE MEDICAL PRACTITIONERS

The provision of health services in New South Wales is regulated by the interaction of a number of statutes including the NSW Health Services Act, 1994; the NSW Medical Practice Act, 1992; and the Health Care Complaints Act, 1993.

The NSW Health Services Act, 1994 lays the foundation. Its objects include establishing a system of health services for the whole of the State so as to provide a more effective basis for the planning and delivery of health services within the State (Section 4). Pursuant to Section 17 provision is made for the constitution of Area Health Services, including the North Coast Area Health Service.

Section 116 of the Act makes provision for the employment of staff generally and Section 117A imposes a duty on the Chief Executive of Area Health Services to report to the NSW Medical Board any conduct of a medical practitioner that the Chief Executive suspects on reasonable grounds may constitute unsatisfactory professional conduct.

The second piece of important legislation is the NSW Medical Practice Act, 1992. The objects of that Act are set out in Section 2A as follows: (1) The object of this Act is to protect the health and safety of the public by providing mechanisms designed to ensure that: (a) Medical practitioners are fit to practice medicine, and (b) Medical students are fit to undertake medical studies and clinical placements.

Part 2 of the Medical Practice Act deals with the registration of medical practitioners who, upon registration, are entitled to practice medicine in the State (see Section 99).

Section 7 deals with the matter of conditional registration at the discretion of the Medical Board in certain circumstances including the recognition of specialist qualifications and experience (s. 7E). It was pursuant to this provision that Dr Ng was registered up to 20 October 2006.

Part 3 of the Medical Practice Act makes provision for the removal from, and alteration of, the Register. Section 27 specifically provides that the Board must remove the name of a registered medical practitioner from the Register if the practitioner has died or has requested the Board to remove his or her name.

Part 4 deals with complaints about medical practitioners, particularly issues concerning "unsatisfactory professional conduct" (s. 3 6). Further provisions deal with appropriate performance assessments if any matter comes to the attention of the Board that causes them to question the practitioner's professional performance (s. 86C).

Given that the path to conditionally register certain specialists under Section 7 is discretionary, the registration of a specialist such as Dr Ng can be subject to such conditions as the Board thinks appropriate, including holding an inquiry pursuant to Schedule 1, Part 3(9) of the Medical Practice Act into the competence of the applicant to practice medicine. In other words, there is no automatic right to registration that applies to the circumstances surrounding Dr Ng. This inquiry extends to the eligibility of an applicant whose name has been removed from the Register to be re-registered as a medical practitioner: Schedule 1, Part 3(9) (3) (b).

Pursuant to Section 99 the right to practice medicine in New South Wales is confined to registered medical practitioners under the Act. This statutory purpose is reinforced by the statutory offences set out in Sections 105-110.

14.Pursuant to Section 105(3) a person who is not a registered medical practitioner must not hold himself out to be (inter alia) entitled or willing to practice medicine or surgery in any of its branches or to give or perform any medical or surgical advice service attendance or operation. The maximum penalty for a contravention of this offence is 50 penalty units or imprisonment for 12 months, or both.

The written contract of employment of Dr Ng as a Staff Physician - Oncology is expressly stated to constitute employment under the terms and conditions of the Staff Specialists (State) Award. 16. Clause 2 - Definitions of the Staff Specialists (State) Award defines the term "Specialist" as follows.

'Specialist' means a person appointed to a position of Specialist by the Employer. To be eligible for appointment a Specialist must be a person who: (a) Holds a medical qualification that is registrable in New South Wales; and (b) After full registration has spent not less than five years in the practice of medicine in New South Wales in the Health System or in any other institution, whether in New South Wales or elsewhere, deemed by the Employer to be of equivalent standing; and (c) Inclusive within the period described in (b) above has spent not less than three years in supervised specialist training and/or experience, and (d) (i) … (ii) ... (iii) has conditional registration with the NSW Medical Board as an overseas-trained specialist (not including conditional registration as a general practitioner).

In Schwartz v Central Sydney Area Health Service & Anor [2002] NSWIRComm 79 (16 May 2002) his Honour Marks J. made reference to the definition of "specialist" under the 1978 award at [12]. The terms of the provision in 1978 were in significant part similar to the provision in the 2005 award, although the latter award also expressly requires overseas trained specialists to have conditional registration with the NSW Medical Board.

At [105] his Honour stated that his reading of the definition of "specialist" in the 1978 award was to the effect that a person was not eligible for appointment until that person had full registration and had otherwise complied with the requirements set out in the definition. It may well be that the modification to the definition by the insertion of conditional registration for overseas trained specialists was to address that finding of his Honour. In any event, it is clear that in its present form the definition of "Specialist" requires ongoing conditional registration with the NSW Medical Board where the person concerned is an overseas trained specialist. 26 The evidence is that Dr Ng made an application for registration on 19 December 2006, the same date that this application for relief was filed. 27 The NSW Medical Registration Board advised Dr Ng by correspondence dated 30 January 2007 (Ex 4, attach. O) that a performance assessment would be undertaken should he be registered as a medical practitioner in New South Wales. The correspondence further advised Dr Ng in the following terms: This resolution was made as the Committee was comfortably satisfied that pursuant to section 86C of the Medical Practice Act 1992 your professional performance is unsatisfactory in the areas of communication and clinical judgment.

Information about the Performance Program is contained in the enclosed Participants Handbook. 28 Dr Ng did not pursue this application for registration as a medical practitioner in New South Wales. CONSIDERATION'

29 It is not necessary to determine whether the contract of employment was ended by frustration. 30 The correct enquiry is whether or not there was a termination of employment at the initiative of the employer in the terms of sending away against the employee's will as described in Smith, or a constructive dismissal initiated by the employer as described in Allison v Bega Valley Council (1995) 63 IR 68. 31 The evidence is that it was the initiative of Dr Ng which brought the employment relationship to an end. 32 Dr Ng's evidence that he no longer wished to practice medicine or work as a medical practitioner in New South Wales, conveyed to the NSW Medical Registration Board on 20 September 2006, brought an effective end to his employment. 33 The contract of employment is in accordance with the Award, which provides exclusively for employment of qualified medical practitioners. 34 The suggestion that re-registration or acceptance as a medical practitioner pursuant to the Mutual Recognition Act as an avenue of automatic recognition is fanciful, and ignores the need for an application and the exercise of discretion of the Medical Registration Board to grant or deny registration. CONCLUSION

35 I find that Dr Ng was not dismissed from his employment by the Respondent. 36 It cannot be held that the Respondent's standing down of Dr Ng from duty on full pay whilst an enquiry was being undertaken into concerns expressed by colleagues was a termination or intention to terminate employment so as to be a constructive dismissal. The enquiry was not complete, no conclusion had been reached and Dr Ng continued to be paid. 37 The action of Dr Ng to remove himself from the New South Wales Medical Register brought to an end his ability to continue in a contract of employment with the Respondent in circumstances which do not give rise to jurisdiction of the Commission to entertain an application for relief from unfair dismissal. 38 The application is dismissed. oo0oo

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