Perry Janssen v Health Secretary [2018] NSWIRComm 1042 | Case summary

Judgment (9 paragraphs)

[1]

Judgment

The applicant filed, on 12 June 2018, an application for relief in relation to an alleged threat of dismissal from his employment with South Western Sydney Local Health District ("the LHD").
By notice of motion filed 13 June 2018 the applicant seeks an interim order preventing the respondent from terminating his employment prior to the hearing and determination of his application.
The notice of motion named two respondents. The first was the LHD. The second was the NSW Ministry of Health. In the course of the debate on the motion the Commission drew attention to the proper description of the respondent in proceedings before the Industrial Relations Commission. The correct name of the respondent, for the purposes of these proceedings, is the Health Secretary; Health Services Act 1997 (NSW) s 116H. The respondent, and to the extent necessary the other two named parties, did not object to the correction of the record. That correction obviated the need to deal with several, but not all, arguments included in the respondent's written submissions relating to the form and utility of the orders sought in the motion.

[2]

Background

The applicant is a foreign national. He arrived in Australia on 26 September 2015. He was originally employed by the Hunter New England Local Health District as a staff specialist (psychiatry). He was permitted to work by the terms of his visa, commonly referred to as a s 457 visa. Subsequently he applied for and was appointed to a position with the LHD. He commenced that employment on 30 May 2016.

Submissions

The applicant, represented by Mr Gibian of counsel, submitted that: 1. the Commission has jurisdiction to hear an application in relation to a threatened unfair dismissal; 2. the Commission may order the employer not to dismiss the employee in accordance with the threat, relying on s 89 (7) of the Act; 3. the Commission may make an interlocutory order preserving the employment pending the determination of the proceedings; 4. the Commission applies the principles generally applicable to the granting of interlocutory injunctions, namely: 1. whether there is a serious question to be tried; 2. whether irreparable harm will be suffered; and 3. where the balance of convenience lies. 1. An applicant for interim relief needs to establish that there is sufficient likelihood of success to justify the preservation of the status quo: 2. a range of considerations may be relevant to a consideration of the harm which may be suffered by an employee if dismissed; 3. there is plainly a threat of dismissal contained in the correspondence from Mr Minns dated 22 May 2018; 4. the Commission can be satisfied there is a serious question to be tried as to whether the threat to dismiss the applicant would be harsh unjust or unreasonable if carried out because: 1. it is apparent from the response of the applicant to the allegations that he denies, in many instances, the factual basis said to underpin the inappropriate conduct and that, in any event, the alleged conduct is not misconduct within the meaning of the "NSW Health Policy Directives on Managing Misconduct"; 2. in the course of the investigation the applicant was denied any proper opportunity to respond to the allegations in that he was never interviewed or provided with or informed of the material or information relied upon to support the allegations against him; 3. Mr Minns proceeded to make concluded "findings" and proposed making a decision to dismiss the applicant without him being provided with a copy of the investigation report or any opportunity to make submissions to Mr Minns; 4. in light of (c), the LHD breached the NSW Health Policy Directives on Managing Misconduct; 5. the LHD persists in refusing to provide the attachments to the investigation report so as to provide the applicant with a proper opportunity to make submissions as to penalty 6. a dismissal of the applicant "… arising from the allegations would be manifestly harsh having regard to the fact that dismissal would lead to financial distress, severe damage to his professional reputation, likely deportation from Australia and curtailment of his future career."
In support of the submission as to jurisdiction to grant the relief Mr Gibian submitted: 5. "… the Commission may make an interlocutory order preserving the employment pending the determination of the proceedings. In Hill v Department of Education (NSW) (1998) 85 IR 201, Schmidt J held (at 208): … the Commission is empowered to make an interlocutory order under s 89(7), preserving the employment of an employee who brings a claim under s 84 about a threatened dismissal, so as to ensure that the Commission will be in a position to determine that claim, as provided by s 87(1) of the Act. This conclusion was followed in Australian Salaried Medical Officers' Federation (NSW) on behalf of Dhayanithi Sivathondan and South Western Sydney Area Health Service [2002] NSWIRComm 98 at [32]-[34]; Australian Salaried Medical Officers' Federation (NSW) on behalf of Professor Bruce Hall and South Western Sydney Area Health Service [2003] NSWIRComm 8 at [27]; and Western Sydney Area Health Service v Australian Salaried Medical Officers' Federation (NSW) (2004) 138 IR 203 at [27]-[32]; ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229 at [25]; Public Service Association and Professional Officers Association Amalgamated Union of NSW on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 at [27]-[34].
He also referred to decisions in which the Commission has granted interlocutory relief against dismissal when exercising jurisdiction under s 136; National Union of Workers on behalf of Mr Arvin Tubungbanua and Express Data Pty Limited [2005] NSWIRComm 57 and Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) (2005) 146 IR 388, and s 213; Lane v Commonwealth Bank of Australia (Matter No. IRC 99/2721, Sams DP, 9 August 1999).
Finally, as to the balance of convenience the applicant submitted: 1. dismissal of the applicant based on allegations of misconduct would cause inevitable and serious reputational damage which could not be remedied; 2. if the applicant were dismissed he was liable to deportation within 60 days having regard to the terms of his s 457 visa; 3. the conditions of his visa prohibit the applicant from working for any employer other than his sponsor; 4. if he sought alternative employment the employer would need to be willing to sponsor him in accordance with the visa; 5. the applicant would suffer immediate financial hardship if dismissed particularly having regard to the constraints on his capacity to seek alternative employment; 6. the applicant's capacity to practice as a medical practitioner pursuant to registration will be further imperilled by dismissal from his employment; and 7. If no interim order is made the applicant's claim of unfair dismissal could be rendered nugatory.
The only possible prejudice to the LHD would be the obligation to continue to pay the applicant's salary which, he submitted, would not be a substantial impost. The LHD has been paying the applicant's salary since August 2017 and the delay in resolving the matter cannot be the responsibility of the applicant. Moreover, having regard to the allegations of misconduct, relating as they do to interpersonal relationships with identified individuals, the LHD has it within its power to deploy the applicant elsewhere, thereby mitigating the obligation to pay salary, but it has chosen not to do so.
The Health Secretary ("the respondent"), represented by Mr Britt of counsel, submitted that: 1. the Commission lacked jurisdiction to make an interim order. He submitted that Hill v Director-General of the Department of Education and Training (NSW) ("Hill") had not been correctly decided; 2. the commission as presently constituted is not bound by the decision in Hill; 3. the Commission is not a common law court and accordingly lacks inherent jurisdiction; 4. as a statutory tribunal the Commission is restricted to powers expressly or by implication conferred by the legislation; 5. contrary to Hill, there is no implied power found in s 89 or s 87 (1) of the Act; 6. in contrast to other parts of the Act, there is no express ability to make an interim order in relation to unfair dismissals; 7. the argument that the Commission has implied power to preserve its proceedings fails: 1. for the reason set out in (5); and 2. the Commission would, even if the threat of dismissal were carried into effect, still have power to deal with the dismissal. 1. the reliance on s 137 of the Act is misplaced because the proceedings presently before the Commission are individual proceedings not collective proceedings; 2. there is no evidence before the Commission of a threat of dismissal, merely of an opportunity to make submissions before the question of dismissal is considered by the employer; and 3. the applicant has filed little evidence to demonstrate that there is a sufficient likelihood of success to justify an interim order; 4. the order (ultimately) sought would be futile because it does not bind Mr Minns who is "not the Health Secretary"; and 5. the formal order sought was too wide: it should be directed to the particular alleged threat of dismissal.
In the alternative the respondent submitted that the Commission would not lightly exercise its discretion to make an order interfering with employer's contractual (or statutory) right to terminate employment. The respondent submitted: "In ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229 (Wojtulewicz) the Commission held that in light of the decision in Australian Broadcasting Corporation v O'Neill (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) 118 CLR 618. 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." (Emphasis added)
The respondent therefore submitted there are two tests to be applied: 1. whether there is sufficient likelihood of success; and 2. whether the inconvenience or injury the applicant would likely suffer if the interim application was refused outweighs the injury the respondent would suffer if the order were made.
As to the balance of convenience, the respondent submitted the evidence as to the impact upon the applicant in relation to his medical registration and the prospect of deportation was "remarkably thin". In contrast if the order were granted the respondent would need to continue to pay the applicant. Those monies would not therefore be spent on actual service delivery to patients.
Finally, the respondent noted that the applicant had a considerable period of annual leave outstanding. If, contrary to the respondent's primary submissions, the Commission decided to grant the interim order it would be open to make the order subject to the applicant being placed on leave without pay. The applicant could then determine whether to take some or all of the accrued annual leave.
In reply the applicant submitted: 1. the submission about the utility of the order implies that an applicant would need to join as parties to proceedings or individuals who were exercising the power of the employer and that can be neither desirable nor correct. Mr Minns is a delegate of and acting for the employer; 2. it is appropriate to correct the record and substitute the Health Secretary as the respondent and made application to do so; 3. the applicant, without necessarily conceding the correctness of the submission, was prepared to accept that the order be directed to the threat of dismissal relating to the reasons set out in the letter of 22 May 2018; 4. that part of the order referring to "any step preparatory to dismissal" was probably unnecessary; 5. the decision in Hill is binding: 1. as a matter of comity; and 2. because it has been approved by Full Benches of the Commission including in Western Sydney Area Health Service v ASMOF (2004) 138 IR 203 and Sydney Water v Australian Services Union (NSW and ACT Branch) (2005) 146 IR 388.

Consideration

I accept the submissions of the applicant in relation to the Commission's jurisdiction to make an interim order. The applicant referred to two Full Bench authorities. In Sydney Area Health Service v ASMOF the Full Bench noted that the point was not argued but at [41] proceeded on the basis that Hill was correctly decided. Accordingly, the decision is persuasive but not binding.
The second decision, Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) was concerned with the powers of the commission in relation to industrial disputes. The decision at [27] records the grounds of appeal. Those grounds do not record a direct challenge to the jurisdiction itself. Rather they focus upon the tests to be applied and the proper application of those tests. Moreover, the Full Bench noted a distinction between the Commission's jurisdiction under the industrial dispute provisions of the Act and the unfair dismissal provisions at [32] - [41]. In doing so the Full Bench proceeded on the basis that Hill was correctly decided but the tests enunciated required modification when dealing with industrial disputes. The case may be distinguishable and again the, at least implicit, approval of Hill may be regarded as obiter. Again, the decision is persuasive but not binding.
Nevertheless, as the applicant submitted, as a matter of comity I should follow Hill unless satisfied that the decision was clearly wrong. The decision, as the applicant's submissions demonstrate, has been applied in many cases over a long period. I am not satisfied it is plainly wrong and therefore proceed on the basis that the Commission has jurisdiction to make the order sought.
The respondent's remaining arguments as to the existence of power do not therefore require further detailed consideration save for the argument as to the preservation of the Commission's jurisdiction. In that regard the respondent submitted that even if the threat of dismissal were to be carried into effect the Commission would still have jurisdiction. The submission was advanced as a consideration as to whether the Commission has power to make the order sought, but it also bears upon the issue of balance of convenience. I note in passing there may be differences between a matter concerned with threatened dismissal and one concerned with a dismissal.
While the respondent's submission may be accepted as a general proposition of law, the facts of this particular case put it in doubt as a practical proposition. The applicant has submitted that if he were dismissed he would be liable to cancellation of his s 457 visa and deportation. Deportation will have a practical impact on the applicant's ability to prosecute his case. It may also be relevant to remedy. The submission is supported by the evidence, in particular the document published by the Australian government summarising the terms of the visa. Under the heading "Mandatory Visa conditions" the following is said: "if you stop working for your sponsor, you must do one of the following within 60 days: •find another employer to sponsor you and have them lodge a new nomination, which must be approved before you can start working for them •be granted a different Visa •depart Australia."
It is unlikely that the matter will be heard and determined within the 60 day time period specified. The unfair dismissal application has not yet been conciliated. Assuming conciliation is unsuccessful the tentative estimate of the parties is for a seven day hearing.
The respondent submitted that there was no threat of dismissal merely an opportunity to make submissions before the question of dismissal is to be considered. It is unnecessary to determine this question to finality. It is sufficient to note that the concluding terms of the letter of 22 May 2018, set out at [8], provide a sufficient basis to conclude that there is a serious question to be tried or, in other terms, sufficient prospects for the applicant to succeed in proving a threat of dismissal exists.
Next the respondent submitted that there was little evidence led by the applicant to demonstrate sufficient prospects of success in relation to the issue of unfairness. Mr Britt acknowledged that the applicant had annexed to his affidavit the detailed response prepared by his solicitors but submitted that was "second-hand, scant and not from the applicant". Mr Gibian in response submitted: It was said by my learned friend that there's not detailed evidence refuting the allegations by the applicant himself. Can I just say in that respect firstly this is not the occasion to conduct the case, and one wouldn't expect the full evidence to be put on at this point in the proceedings, but can I just say that at paragraph 12 of his affidavit he says, and annexes the letter at Annexure D, which he says sets out his responses to the allegations against him. He's adopting as one would expect the responses that were made on his behalf by the solicitor in the context of the investigation process, and that is perfectly adequate way given the urgent nature of the proceedings for the applicant to put forward his position.
Whether the responses are sufficient to demonstrate the applicant's dismissal would be unjust, unreasonable or harsh is to be determined at the hearing. The responses certainly demonstrate a denial by the applicant of the factual basis of the misconduct findings made against him. Further, in my view the potential impact on the applicant's career progression brought about by the loss, in turn, of his employment, visa, right to remain in Australia and the consequent implications for his achieving Fellowship of the Royal Australian and New Zealand College of Psychiatrists, convincingly raise the prospect that the decision may be harsh in the sense of the penalty being disproportionate to the wrongdoing.
In relation to all of these matters I apply the principles as explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618. The necessary strength of the probability of success "depends upon the nature of the rights [the applicant] asserts and the practical consequences likely to flow from the order he seeks".
I am satisfied, in that context, that the applicant has established: 1. that there is a serious question to be tried; and 2. the remedies the Commission may grant if the dismissal is carried into effect and then found to be harsh, unjust or unreasonable, will be inadequate even if the applicant is able to pursue them in a practical sense.
I am also satisfied that the balance of convenience favours making the interim order. The potential implications for the applicant's career, even leaving aside the issue of reputational damage, outweigh the potential cost to the respondent in maintaining his salary pending the hearing and determination of the application.
I note that the applicant has been suspended on pay for some time. The respondent intends to maintain that status if an interim order is made because of the nature of the misconduct findings. That is understandable. The respondent therefore faces the prospect of paying the applicant for a period in which it obtains no work from him. Mr Britt submitted that I should make an order which requires the applicant to take at least some of his paid leave in that period. Mr Gibian, in response, referred to the decision of Boland J in ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229 at [57]. His Honour their said: However, I note that Dr Wojtulewicz has accumulated a significant amount of leave. In weighing up the balance of convenience, Dr Wojtulewicz should take up to eight weeks of that leave, the actual amount of leave to be taken to depend upon when a final hearing can be scheduled. I have considered the effect of the Full Bench decision in Western Sydney Area Health Service v Australia Salaried Medical Officers' Federation (NSW) as to whether I have jurisdiction to make an order that requires such leave to be taken. I consider an order to take leave is reasonably incidental to the substantive order and that it is open to me to make it: see Western Sydney Area Health Service v Australia Salaried Medical Officers' Federation (NSW) at [38]. Nevertheless, I would prefer the parties to come to an agreement about the taking of leave that is mutually convenient rather than the Commission make an order. I will, however, provide for liberty to apply if no agreement can be reached.
I am inclined to follow a similar course. Other alternatives that the parties should consider are: a commitment that, if the applicant is unsuccessful, he will repay to the respondent the remuneration paid to him as a result of the interim order up to the value of his accumulated leave; and the prospects of utilising Dr Janssen's services in another location.

Perry Janssen v Health Secretary

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Judgment (9 paragraphs)

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Cases Cited (10)

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