Petrus Paulus Hendrikus Johannes Janssen v South Western Sydney Local Health District

Industrial Relations Commission (NSW)|2017-11-24

Solicitors: Segelov Taylor Lawyers (Applicant) Lander & Rogers (Respondent) File Number(s): 2017/279597

DECISION

This is an application by Petrus Paulus Hendrikus Johannes Janssen ("Mr Janssen") for relief from victimisation by South Western Sydney Local Health District ("SWSLHD"), under section 213 of the Industrial Relations Act 1996 ("the Act") ("the Victimisation Application").
SWSLHD submits that aspects of the Victimisation Application have been filed out of time and objects to the Commission granting any extension of time. The objection has been heard and determined as a preliminary matter.
Mr Janssen was represented by Mr Latham and SWSLHD by Mr Britt, both of Counsel. The evidence filed in support of the extension of time was an Affidavit of David Taylor, solicitor for Mr Janssen, dated 2 November 2017. In addition to oral submissions at the hearing on 24 November 2017, both parties filed written Outlines of Submissions and Mr Janssen filed an Outline of Submissions in Reply. I have had regard to the evidence and submissions in making my decision.

Which contraventions are out of time?

The first question is whether each of the alleged contraventions is in fact out of time. If a contravention is within time, there is obviously no need to consider whether there is sufficient reason to exercise the Commission's discretion to accept it out of time.
SWSLHD concedes that the decision to confirm or continue Mr Janssen's suspension, which was made on 6 September 2017, is within time. However, it says that each of the other alleged contraventions are out of time because they occurred prior to 23 August 2017.
Mr Latham submitted on behalf of Mr Janssen that because some of the alleged contraventions that constitute victimisation are continuing, they are within time. No extension of time is therefore necessary. He properly conceded that the Visa Allegation was not continuing. The refusal of SWSLHD to take steps to renew Mr Janssen's visa occurred in May and July 2017. After some proceedings instituted by Mr Janssen in the Supreme Court of NSW in August 2017, the visa was obtained. Accordingly, the admission of the Visa Allegation depends upon the exercise of discretion to admit them out of time.
With two exceptions, it was submitted by Mr Latham that all of the other allegations were continuing and thus within time. The exceptions are as follows: 1. Investigation Participation Allegation - in relation to the denial of IT access, Mr Janssen says he continues to be denied full access. SWSLHD says that shortly after commencement of these proceedings it provided Mr Janssen with the opportunity to access his emails, of which he has not availed himself. Accordingly, on Mr Latham's approach, this act is therefore either continuing, or within time because it was remedied by SWSLHD after 23 August 2017; and 2. Risk Assessment Allegation - it was acknowledged that SWSLHD had provided Mr Janssen with the risk assessments on 27 September and 11 October 2017. On the approach contended for by Mr Latham, while not continuing, these acts were within time because the date of remedying the contravention was after 23 August 2017 (indeed, after the date of filing the Victimisation Application.
Mr Latham relied upon the decision of Bridge v Lindrum [1957] AR(NSW) 356 at 360, to contend that a distinction should be drawn between two forms of contravention - a contravention that occurs and is concluded on a particular day, versus a contravention that continues beyond the first day until remedied by the contravener. He submitted that the ongoing suspension of Mr Janssen could be remedied by SWSLHD at any time by allowing him to return to work, and therefore time had not yet started to run in terms of any limitation period.
In terms of authority of this Commission in support of his submission, Mr Latham says that the point has only been dealt with in part. He referred to the decision of Sams DP in Swaran Lata Kumar and Macquarie Partnership Lawyers [2005] NSWIRComm 202, which alluded to ongoing victimisation as follows: [181] Like a late unfair dismissal application, in a late victimisation application, the onus is on the applicant to satisfy the Commission that there is a sufficient reason or reasons for an application to be accepted out of time. As will be seen from my later findings, the respondent engaged in detrimental conduct such as to victimise the applicant from early September 2004 to her dismissal on 4 March 2005. In my opinion, the fact that the complaint concerning a reduction in hours and the 3 September memo fell outside the 21 day time limit imposed by s213(3) the Act is of little consequence. This is because the victimisation was ongoing. Indeed, it continued after the application was filed. This ongoing detrimental conduct would, in my judgement, be a sufficient reason to accept the application out of time. I formally do so.
In my view, DP Sams' decision takes into account the ongoing detrimental conduct of the employer that was alleged to constitute victimisation as a factor in the exercise of his discretion to accept the application out of time. His Honour did not specifically decide the point under consideration here, namely, whether or not it was necessary to extend time in the first place.
The decision of Grayson DP in Annette Prehn and Department of Environment and Conservation [2006] NSWIRComm 222 more specifically considers ongoing acts of victimisation as follows: 10 For her part, Ms Prehn resists the proposition that her application is out of time on the basis that the acts of alleged victimisation are ongoing in their effect and therefore, cannot be said as the employer contends, to have occurred more than a year before the application for relief was filed. 13 As to whether the alleged acts of victimisation have ongoing effect and are therefore such as to bring the application within time, the acceptance of such a submission would in my view render the time limitation provisions otiose. As Mr Prince submits and I agree, it is the act of victimisation itself and not the continuing effects of that act with which the statute is concerned and the time limitation as with all time limitations, fixes upon the point in time when the cause of action and the consequent right to approach the Commission crystallises. As a matter of pure logic, there has to be a point in time by reference to which the time limitation operates. [Underlined emphasis added]
Mr Britt referred to Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059 ("Morawsky"), where Newall C addressed a similar submission by the PSA in relation to a letter of reprimand given to the employee warning him that future breaches of the Code of Conduct may attract disciplinary action: [6] I understand the argument advanced by Mr Allen on behalf of the Public Service Association that the effect of the letter extends into the future, and I will return to address that question. But the Act, in terms of the time limitations under s 213, necessarily addresses the act of victimisation at the time it occurred, not its ongoing effects. So time runs from the time of the act of victimisation which is complained of: see Prehn v Department of Environment and Conservation [2006] NSWIRComm 222. And the Commission is obliged to address the question of an application being out of time. It cannot be overlooked. It must be addressed because the prima facie position is, under the Act, pursuant to subs 213(3), that the application is excluded for being out of time. There is, prima facie, no valid application before the Commission. [Underlined emphasis added]
Mr Latham sought to distinguish Prehn on the basis that it involved a discrete act of alleged victimisation that had ongoing effects. In reliance upon Bridge v Lindrum, he submitted that in the present case it was the actions themselves that were continuing not just their effects. This is because the allegedly victimising actions could be remedied at any time by SWSLHD and it is that time of remedy which is the relevant 'end point' from which time starts to run.
I do not agree. I consider that the point in time at which an act of victimisation crystallises is when the action is taken, not when it ends because it is remedied by the perpetrator or some other means or event. The principle in Bridge v Lindrum was applied in a different context to the present matter. The Court there was dealing with an offence resulting in the imposition of a penalty, not a range of employer actions constituting victimisation.
The purpose of the victimisation provisions is to provide an avenue of redress for employees who are subjected to actions of their employer that are taken for a reason prohibited by the Act. An employee becomes aware of an action when their employer takes that action - be it suspending them, commencing an investigation into their conduct or preventing them completing a qualification. This is when the employee suffers detriment in their employment. In my view, that is the point in time at which the employee can turn their mind to why the employer may be taking that action and their consequent right to approach the Commission crystallises. The difficulties in an employee proving the real reason for an action being taken by an employer are then addressed by the provisions conferring the benefit of the reverse onus of proof. This approach - that the contravention occurs when the action is taken, not when it may ultimately be remedied - accords with common sense.
It follows that I do not consider any of the alleged acts of victimisation are 'continuing', rather each of those acts involve contraventions that occurred before 23 August 2017, save for the decision to confirm the suspension which occurred on 6 September 2017. I now turn to consider whether there is nevertheless sufficient reason to accept any of the contraventions out of time.

Relevant law

In Morawsky, Newall C set out the principles relevant to extension of time applications in victimisation matters under s 213(4) of the Act: [9] The general principles applying to waiver of time limits for filing of civil claims at least, which this is, was canvassed as some length by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR at 541. There McHugh J said, in a passage which has been accepted repeatedly by that Court and other Courts since: "The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years the policy of the law has been to fix definite time limits for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that where there is delay, the whole quality of justice deteriorates". [10] His Honour goes on, and without reading the whole of the quote, to identify bases from which that central proposition flows, including of course, that people should be able to arrange their affairs on the basis that claims cannot be made once the time period has passed; that has an effect on, particularly, public institutions such as the respondent, which are ultimately taxpayer-funded. [11] His Honour goes on to say that a limitation period is not to be seen as an arbitrary cut-off point, but that it will be the case that even a good case may not be able to run if it is brought out of time and there is no proper basis on which the discretion to admit it should be exercised. [12] In deciding whether to exercise its discretion to allow an out of time application, the Commission must be satisfied that a sufficient reason has been made out by the applicant. The term "sufficient reason" is not defined in the Act. The Full Commission in Griffith Ex-Services Club v Federated Liquor and Allied Industries Employees Union (1993) 51 IR 186 said that it was not appropriate to attempt to formulate a definition of what constitutes a sufficient reason. What that means is that the Commission must then decide whether or not to exercise its discretion in a matter of this kind on the balancing of a range of considerations, including those set out in subs 213(4) of the Act. [13] It is perfectly clear that the prima facie position is that an application brought out of time is excluded and therefore that an applicant bears the positive burden of demonstrating that the justice of the case requires an extension. If an applicant cannot demonstrate that the justice of the case requires an extension, then the prima facie position will prevail, that is the application remains excluded, as the Commission recently held in Tolley v Secretary of New South Wales Ministry of Health [2016] NSWIRComm 1043. [Underlined emphasis added]
The onus is on Mr Janssen to prove that sufficient reason exists to accept his Victimisation Application out of time. I must make my assessment by reference to the matters contained in paragraphs (a), (b) and (c) of section 213(4). While these are the primary matters, they do not limit my consideration. Other matters may also be taken into account, depending on the specific circumstances of each case. In this regard it is relevant to consider whether an applicant has an arguable case and the applicant's prospects of success: Hurrell and Queensland Cotton Corporation Limited (2002) 125 IR 145 at 150. I therefore turn to a consideration of the relevant matters.

Length of delay and reason for delay - s 213(4)(a)

The length of delay in respect of each of the alleged victimising acts was calculated in the written submissions of SWSLHD and no issue was taken with these periods by Mr Janssen. They may be summarised as follows: 1. Visa Allegation - refusal to take steps to obtain a visa from May 2017 or from 24 July 2017 - taking the latter of these two dates, 31 days out of time; 2. Investigation Commencement Allegation - the Affidavit of Mr Taylor states that Mr Janssen was first made aware of the appointment of an investigator on 17 May 2017 - 99 days out of time; 3. Investigation Conduct Allegation - the Affidavit of Mr Taylor further states that Mr Janssen received the allegations against him and was invited to particularise his allegations as part of the investigation on 7 August 2017 - 17 days out of time; 4. Investigation Participation Allegation and Risk Assessment Allegation - it was further submitted that preventing Mr Janssen participating in the investigation by denying him IT access and refusing to provide him with Risk Assessments relating to his suspension occurred from 10 August 2017 - 13 days out of time; 5. Suspension Allegation - the meeting at which Mr Janssen was first advised of his suspension on 9 August 2017 - 15 days out of time; and 6. Pathway Allegation - preventing Mr Janssen completing any element of his pathway since 10 August 2017 - 14 days out of time.
It was submitted by Mr Britt that the various periods of delay set out above are significant when one considers that parliament has seen fit to fix 21 days as the statutory time limit beyond which applications are excluded. Reliance was placed on Morawsky, where Newall C described a delay of 32 days as a 'significant period' in this context: at [15].
In my view, the delay in respect of the Visa Allegation and the Investigation Commencement Allegation is significant. The Investigation Conduct Allegation, Investigation Participation Allegation, Risk Assessment Allegation, Suspension Allegations and Pathway Allegation do not suffer from the same length of delay, all being less than 18 days out of time.
However, of more importance in the exercise of discretion in this matter is the reason given by Mr Janssen for the delay. There was no direct evidence of this given by Mr Janssen. There was evidence from his solicitor, Mr Taylor, that in the period from May 2017 Mr Janssen had taken numerous steps to deal with his workplace concerns via internal mechanisms of SWSLHD. It was said that this was done 'in the hope and anticipation that the matter could be resolved without the need to resort to litigation, and the associated damage to the relationship between the employer and employee'. In my view, this indicates a consideration of the option of instituting proceedings (litigation) and a decision not to pursue that option.
The Affidavit of Mr Taylor evidences that Mr Janssen was legally represented from 6 July 2017 in respect of 'various matters touching on, and relating to, his employment with [SWSLHD]'. In the written submissions filed on behalf of Mr Janssen, it was acknowledged that he 'became aware of the victimisation in July 2017 when he became aware of issues around his Visa issue'. The submissions further state that he 'became aware of the other elements of victimisation' in August 2017 (the suspension) and the provision of the terms of reference and limitations of the investigation in August/September 2017.
Despite this admitted awareness of victimising conduct by SWSLHD, no reason was given by Mr Janssen for the delay in filing the Victimisation Application, other than the pursuit of internal mechanisms. There was no evidence that Mr Janssen was unaware of the limitation period, or of any impediments to him filing the Victimisation Application such as medical incapacity. Mr Britt submitted that a Jones v Dunkel inference should be drawn that Mr Janssen's own evidence of why he did not provide instructions to Mr Taylor to commence these proceedings prior to 14 September 2017 would not have assisted his case. I have drawn that inference.
I am prepared to accept that the pursuit of internal mechanisms was Mr Janssen's reason for delay, despite the absence of direct evidence from him on this point. This is the only reason for delay that emerges from the evidence. The pursuit of internal procedures as the reason for delay was given by the applicant in the first instance decision in Prehn, where DP Grayson stated as follows: [11] Ms Prehn further argues that her continuing pursuit of complaints about the employer's conduct by way of the departmental grievance procedure in some way prevented her from commencing victimisation proceedings at any earlier time. This submission goes to an explanation for the delay in filing the victimisation application and appears to be based on the notion that having embarked upon the grievance procedure course, Ms Prehn was bound to see it through to finality and to the exclusion until its finality of other or different forms of remedy such as those provided by the Act under the freedom from victimisation provisions. This suggests and it [is] not contended otherwise by Ms Prehn who was at one stage at least, represented by the Public Service Association of NSW, that there was no lack of awareness on her part of the requirement to commence proceedings in a timely way. [12] Mr Prince for the employer submits, correctly in my view, that pursuit of other avenues of review such as internal grievances will not preclude the operation of the time limitation nor of itself excuse delay (see DAS v Minister for Immigration and Multicultural Affairs (2004) 208 ALR 229 at [11] and Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [13] to [16] per McHugh J). [Underlined emphasis added]
On appeal, the Full Bench in Prehn v Department of Environment and Conservation (No 2) [2007] NSWIRComm 34 considered the approach of Grayson DP in respect of the consideration of this reason for delay as follows: [13] It appears from the appellant's submission that she seeks to contend that her delay from the alleged acts of victimisation to the time of filing an application for relief from victimisation is because of her pursuit of the internal grievance process and that it was only on completion of that process that she considered it appropriate to make an application for relief from victimisation. [14] Grayson DP dealt with this argument in the following terms: Mr Prince for the employer submits, correctly in my view, that pursuit of other avenues of review such as internal grievances will not preclude the operation of the time limitation nor of itself excuse delay (see DAS v Minister for Immigration and Multicultural Affairs(2004) 208 ALR 229 at [11] and Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [13] to [16] per McHugh J). [15] The appellant has not challenged the correctness of this finding or the construction of the section upon which the finding was based. We consider the construction of the section is undoubtedly correct and we consider that her contention on this issue is in any event essentially a contention that Grayson DP failed to properly exercise his discretion to refuse an extension of time application. [16] In this respect, Grayson DP referred to the decision of Sams DP in Kumar v Macquarie Partnership Lawyers [2005] NSWIRComm 202 in which Sams DP discussed a number of other authorities on the question of delay. We can find no error of principle, in that respect, as his Honour was effectively applying the approach taken by this Commission in Healey v HPA Pty Ltd (2003) 125 IR 227, Hurrell v Queensland Cotton Corporation (2003) 125 IR 145 and Brady v Kennedy t/as "Sardines" (1999) 91 IR 258. These cases emphasise that it is necessary to consider the various reasons advanced for delay: see Healey at [16] and that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case": see Brady at 265 per Walton J. [17] Having carefully considered his Honour's analysis of the reasons for delay and the balancing of considerations of hardship (at [15]), we do not consider that the exercise of the discretion by Grayson DP was attended by any appellable error. The application was considerably later than the alleged acts of victimisation and the appellant has not, whether before Grayson DP or on appeal, provided any explanation as to the reason for the delay other than by reference to the internal grievance process. She has not, for instance, tendered medical evidence which explains the delay (the medical evidence which was relied upon by the appellant essentially went to other considerations). [18] We note in this regard that the appellant did not seek to contend that she was not aware of the time limitation period, which is a relevant factor in considering an extension of time: see Hurrell v and Queensland Cotton Corporation. Indeed, as the respondent contended the appellant's submissions regarding the 27 January 2005 letter would suggest that she was aware of the time limitation period. [19] We wish to comment briefly on his Honour's finding that the pursuit of other avenues of review such as internal grievance processes will not of itself excuse delay (see DAS v Minister for Immigration and Multicultural Affairs (2004) 208 ALR 229 at [11] and Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491 at [13] to [16] per McHugh J). Consistent with the comments of McHugh J in Re Commonwealth, we consider that there may be circumstances where the pursuit of other processes may provide an adequate reason for a delay in commencing proceedings. We agree with the respondent, however, that such circumstances do not exist in the present situation. [Underlined emphasis added]
It has been acknowledged that Mr Janssen was aware of victimising conduct and he was legally represented at the relevant times, yet decided to pursue internal procedures rather than litigation in this Commission. In this period, he also instructed his lawyers to commence other proceedings in the Supreme Court in respect of his visa on an urgent basis.
I consider that in all of the circumstances, the pursuit of other processes by Mr Janssen does not provide an adequate reason for the delay in bringing these victimisation proceedings. I have given this factor weight in the exercise of discretion in this matter, discussed further below.

Hardship - s 213(4)(b)

Section 213(4)(b) refers to the hardship that may be caused to the applicant or respondent if the victimisation application is or is not rejected, respectively. The hardship grounds advanced by Mr Janssen were not based on direct statements by him, but rather the Affidavit of Mr Taylor and accordingly is opinion not evidence. Despite this, I accept that Mr Janssen will experience hardship if the out of time aspects of his Victimisation Application are excluded, as he will not be able to bring the entirety of the allegations he contends constitute victimisation before the Commission. This includes the allegation that he is prevented from completing his conversion pathway for registration, which is said by Mr Taylor to constitute significant hardship.
However, the result of not exercising my discretion in favour of Mr Janssen will not entirely preclude him from proceeding with his Victimisation Application. He may still proceed with the decision to confirm or continue his suspension made on 7 September 2017. This is discussed further below.
It was contended that there was no hardship to SWSLHD if the Victimisation Application was accepted out of time. I accept this to the extent there is no specific hardship beyond the general consideration that an employer is entitled to consider itself free from suit once legislated time limits have passed.
It was submitted on behalf of Mr Janssen that no hardship arose because SWSLHD has 'been aware of the issues [Mr Janssen] raises at all times'. However, in the correspondence I have seen from Mr Janssen's lawyer from 6 July 2017, the only act of victimisation clearly and specifically identified as such was in respect of the visa. In a letter of 25 July 2017, Mr Taylor sought reasons for why SWSLHD was engaging in certain conduct in relation to the visa and asked SWSLHD to 'advise why we should not conclude that the SWSLHD position is a punitive response to our client's complaint about being bullied in the workplace'. The other alleged actions were not similarly identified in correspondence sent on behalf of Mr Janssen prior to 14 September 2017 as potentially constituting victimisation or that Mr Janssen considered the actions were taken because he had made complaints.
The first that SWSLHD was made aware that 'issues' other than the visa were alleged to be acts of victimisation of Mr Janssen because he had made complaints about workplace matters in contravention of s 210 of the Act, was on 14 September 2017 when the Victimisation Application was filed. This was after SWSLHD had taken a number of actions in respect of his employment over a period of some months.

Conduct in relation to which the order is sought - s 213(4)(c)

There was no evidence that the conduct of the employer had caused or contributed to Mr Janssen's delay in filing the Victimisation Application out of time.
Mr Janssen says he has been subjected to retaliatory action by SWSLHD because he, as a medical practitioner, expressed concerns about patient care and systemic workplace bullying. In terms of the conduct generally, it was submitted that the conduct of SWSLHD in respect of which the orders are sought are very serious allegations against a significant public authority. As SWSLHD is alleged to be refusing to investigate Mr Janssen's concerns about patient care issues and the conduct of senior employees, this Victimisation Application is the only review that may address such concerns.
I have taken the nature of the allegations into account in making a determination in this matter. However I do not consider it is determinative in the absence of sufficient other factors. The jurisdiction of the Commission in victimisation matters does not involve undertaking a wide ranging inquiry into conduct that a party considers wrongful or inappropriate if the elements of the statutory scheme are not met. As Newall C noted in Morawsky at [21], "the Commission is not at large, just to enquire about and say anything it likes about an application of this kind, it has certain enforcement powers and they are codified in sub-section 213(2) and they are no wider than that". The availability of relevant orders in respect of Mr Janssen's Victimisation Application is considered further below.

Prospects of Success

Mr Janssen's case is that SWSLHD has taken the various actions because he raised complaints about workplace health and safety, contrary to s 210(1)(j) of the Act. It is not possible at this stage of the proceedings to form a view about the reason(s) for SWSLHD's actions and whether the complaints made by Mr Janssen were a substantial and operative cause. It was submitted on behalf of Mr Janssen that as he is entitled to the benefit of the reverse onus, he clearly has an arguable case. For the purpose of exercising my discretion, I am prepared to accept there is an arguable case in this respect.
However, SWSLHD submits that there are two further factors relevant to an assessment of prospects: 1. the complaints are not 'about a workplace matter that the person considers is not safe or a risk to health' within the meaning of s 210(1)(j) of the Act; and 2. the relief sought is not available under s 213(2) of the Act.

Workplace matter - s 210(1)(j)

The Full Bench in Twentieth Superpace Nominees v TWU [2006] NSWIRComm 218 specifically considered the meaning and scope of s 210(1)(j) as follows: [32] For the protection under section 210(1)(j) to be enlivened, it is necessary for the applicant to also show that the complaint was about, inter alia, a workplace matter that the person considers is not safe or a risk to health. In its written submissions, the appellant accepted that the Commission found that Mr Purdy was in his employment with Mills Transport actively involved in occupational health and safety matters, as opposed to having a concern about the mere imposition of fines, although the appellant contended that the actions related to this did not amount to making a complaint. [33] The section requires first, that the complaint relates to a "workplace matter" and secondly, one that the person "considers is not safe or [is] a risk to health". As already mentioned, the section should be read broadly to give effect to the legislative intention of the protection against victimisation provisions as seen in the Second Reading Speech. As such, "workplace matter" should be read to include any matter arising in connection with a workplace. In the case of Mr Purdy, the overloading of sugar bins was clearly a "workplace matter" as the filling and delivery of those bins was the responsibility of Mr Purdy as an employee. [34] As to the second requirement, the references to "safe" and a "risk to health" should also be construed broadly. In this regard, we consider that these terms should be read in the context of the Occupational Health and Safety Act 2000 and specifically of s8 of that Act deals with the safety of employees (s8(1)) and non-employees (s8(2)). While Mr Purdy's complaints did not allege that the overloading of the sugar bins posed a safety risk to employees, he was concerned about the consequences for other road users. We are satisfied that this constitutes a complaint "about a workplace matter that the person considers is not safe or a risk to health", in this case the safety of other road users. [35] Finally, we observe that from a policy viewpoint, every reasonable avenue should be available to an employee to raise occupational health and safety concerns without fear of victimisation or retribution and, accordingly, it is appropriate that s210(1)(j) should be construed broadly. [Underlined emphasis added]
Applying these principles, I consider that Mr Janssen has an arguable case that s 210(1)(j) applies.

Orders under s 213(2)

However, in my view Mr Janssen's case faces significant challenges in relation to some of the relief sought. The Victimisation Application seeks the following orders: 1. that Mr Janssen be reinstated to normal duties by the termination of his period of suspension; 2. that he be advanced in his employment by terminating his suspension; 3. that he be advanced in his employment by being permitted to do such parts of his pathway to registration that cannot be said to create a risk to health; 4. that he be advanced in his employment by being permitted to participate in the investigation into allegations made against and by him, by being provided with the same access to emails and computer files as have been provided to other persons the subject of allegations; and 5. that SWSLHD 'cease and not carry out threats and acts of victimisation' being suspension from employment in circumstances where potential risk can be otherwise managed, reliance on unfair terms of reference for an investigation and withdrawal of Mr Janssen's access to emails and files during the investigation, thereby denying him capacity to properly participate in the investigation.
The Commission may make certain specified orders pursuant to under s 213(2) to enforce the victimisation provisions. Based on the orders sought above, the relevant provisions are as follows: 1. order the reinstatement or re-employment of an employee; 2. order the employer to promote or otherwise advance an employee in his or her employment; 3. ….. 4. (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat; …
In respect of s 213(2)(e) Mr Janssen seeks that SWSLHD be ordered not to carry out threats of victimisation, being the suspension from employment, reliance on unfair terms of reference for an investigation and denying him capacity to participate in the investigation. However, these are not threatened actions, they have either occurred or are occurring. Accordingly, I do not see how s 213(2)(e) applies. The relevant heads of power to make orders are therefore limited to s 213(2)(a) and (b), considered as follows in respect of each of the categories of allegations.

Visa Allegation and Risk Assessment Allegation

The visa was obtained by Mr Janssen after instituting legal proceedings and there is no current issue in respect of his visa. The Risk Assessments have now been provided to him by SWSLHD. While SWSLHD's 'conduct in respect of the visa renewal' and 'failing to provide a copy of the risk assessment' are particulars of victimisation in the Victimisation Application, no specific orders are sought in respect of these allegations. I do not see what orders could be made under s 213(2) in circumstances where the conduct is no longer occurring and there is no evidence of threat of further such conduct.

Suspension Allegations

It was submitted by Mr Britt that s 213(2)(a) does not apply to reinstatement by termination of a period of suspension. He said that in the context in which the word appears coupled with 're-employment', and using the same phrase as in the unfair dismissal provisions of the Act, it means reinstatement from being terminated. Mr Latham relied upon the Macquarie Dictionary definition of 'reinstate' meaning 'to put back or establish again, as in a former position or state'. While I do not form a concluded view, I consider there is force to Mr Britt's submissions and Mr Janssen would face a hurdle in obtaining an order under s 213(2)(a) in respect of the suspension.
However, I consider Mr Janssen has better prospects of relying upon s 213(2)(b) to establish that terminating his suspension and/or varying the terms of the suspension after considering alternatives are 'advancing him in his employment'. Suspending an employee can have adverse impacts on their employment, even if they continue to receive remuneration during the period of suspension. There may be particular adverse impacts for a professional whose duties require the exercise of skill and judgment, which consequently broadens their experience and expertise and builds their professional reputation. In my view, Mr Janssen has an arguable case that an order to terminate or vary the terms of the suspension 'promotes or otherwise advances him in his employment' within s 213(2)(b).

Investigation Allegations

The only paragraph of s 213(2) that is capable of supporting the orders sought in respect of the Investigation Allegations (the Investigation Commencement Allegation, the Investigation Conduct Allegation and the Investigation Participation Allegation) is s 213(2)(b), relating to 'promoting or otherwise advancing' Mr Janssen in his employment.
The question is whether the Commission has power within the framework of s 213 of the Act to make orders relating to the terms of reference of an investigation or the manner in which employees participate in an investigation. Further, while it is not specifically sought in the Victimisation Application, it was clarified in submissions that Mr Janssen contended the commencement of the investigation itself was in itself an act of victimisation. It is unclear what order would be sought to enforce the victimisation provisions in this regard, other than an order that SWSLHD cease conducting the investigation.
The Macquarie Dictionary defines 'promote' as 'to advance in rank, dignity, position, etc' and 'to further the growth, development, progress, etc., of; encourage.' 'Advance' has 27 different meanings in the Macquarie Dictionary. Some definitions relate to advancing in a temporal or physical sense, others relate to improving, furthering, making progress, raising in rank, promoting. I consider that in the context in which 'advancing' appears in s 213(2)(b), coupled with 'promotes', these latter definitions are the relevant ones in interpreting the scope of the provision.
Adopting this approach, I do not consider that the orders sought relating to the commencement, conduct of and participation in the investigation 'promote or otherwise advance' Mr Janssen in his employment under s 213(2)(b). Taken at their highest, they would be orders relating to the maintenance or facilitation of his current employment.
Newall C considered the correct approach to interpreting s 213 in Morawsky: [20] That leads to this. The significant discretionary question in this case is the question of hardship. In my view, the list of matters provided at subs 213(2) headed "Enforcement", is a comprehensive code. It is important to note that subs 213(1) provides this: "The Commission may by order enforce the provisions of this part on the application of an industrial organisation". [21] The power given to the Commission is to enforce the provisions of, particularly, s 210; certainly sections 209, 210, 211 and 212 in whole, but s.210 particularly, is not to "grant relief" or to "inquire into", it is to "enforce". That is why the steps which are set out in the sub-sub-sections to sub-section 213(2) must be seen as a comprehensive code of the Commission's relevant powers. The Commission is not at large, just to enquire about and say anything it likes about an application of this kind, it has certain enforcement powers and they are codified in sub-section 213(2) and they are no wider than that. [22] What the Commission has been asked to do in this case is to make an order that a reprimand letter, the letter which was given to Mr Morawksy on 22 May 2017, be removed from his personnel file. However one might read the provisions of subs 213(2), and I do not confine Mr Allen to his submission that the relevant subsection is subs. 213(2)(e), but rather look at all of the sub-sections, those sub-sections do not give the power to the Commission to do that which has been sought from the Commission. It is the one thing of substance that has been asked of the Commission, to order the department to remove this letter from Mr Morawsky's file. As I suggested at the directions hearing, I cannot see that it is able to be done under the powers granted under the Act. I understand the submission that a letter of this kind may bear on future events. I understand that perfectly well. But the letter does not articulate or constitute a threat to victimise Mr Morawsky. The ability to order an employer not to carry out a threat to victimise an employee simply does not give the Commission the power to direct the employer to change its records historically, to remove a document from a personnel file. [23] The hardship to Mr Morawsky, as Mr Allen put it, quite correctly, is to lose the chance to have his application heard. But what it is in truth, when one considers that the Commission simply could not give the relief that is sought, is to lose the chance to have his association run a case that it cannot win. That is no hardship. It is a hardship to the employer and more, a hardship to the long suffering taxpayer, to have a case run by a public authority before this tribunal that cannot give rise to the result the association seeks. [Underlined emphasis added]
In my view, Mr Janssen's case relating to the Investigation Commencement Allegation, Investigation Conduct Allegation and Investigation Participation Allegation is unlikely to succeed as the Commission does not have power to grant the relief sought.

Pathway Allegation

It was submitted that the Pathway Allegation is a discrete act of victimisation. On the information currently before me, preventing Mr Janssen completing his conversion pathway to registration since 9 August 2017 largely appears to be a result of the suspension decisions. As he has been unable to attend the workplace and alternatives to suspension were not adopted, he has not been able to complete the necessary steps. However, assuming there are other actions of SWSLHD that have prevented Mr Janssen completing the pathway which would be particularised, s 213(2)(b) is the only basis for making a specific order relating to the pathway.
SWSLHD submitted it was arguable that any such order would be advancing Mr Janssen in his career as a psychiatrist, not specifically in his employment with SWSLHD. I am not persuaded this is necessarily the case. In particular circumstances, what advances an employee in their career may also advance them in the particular employment held at that time, in the relevant sense in which I have interpreted s 213(2)(b).
In my view, Mr Janssen has an arguable case for an order that SWSLHD permit him to undertake parts of his pathway that do not create a risk to health. The removal of obstacles to him completing his pathway may be said to 'promote or otherwise advance' him in his employment within s 213(2)(b). I note that it would be incumbent upon him to particularise the conduct that is alleged to be so preventing him, if it is distinct from the suspension allegations.

Consideration

The prima facie position is that all allegations forming Mr Janssen's Victimisation Application are excluded as being out of time, except SWSLHD's decision to confirm his suspension on 7 September 2017. The onus is on Mr Janssen to prove that sufficient reason exists to accept the out of time aspects. I have balanced a range of relevant considerations, in particular those in s 213(4), but also the prospects of success of the respective categories of allegations and the particular circumstances of this matter.
The confirmation of suspension decision made on 7 September 2017 is within time. The submission was made on behalf of Mr Janssen that the Commission ought not divide a 'single pattern of behaviour' in two by reference to an arbitrary date and then only consider the latter part. While I have found that the contraventions are not 'continuing' for the reasons set out above, I nevertheless consider there is substance in this submission in respect of the original suspension decision made on 9 or 10 August 2017 and related allegation of failing to consider alternatives to suspension at that time.
Accordingly, despite what I consider to be an unsatisfactory reason for delay given on behalf of Mr Janssen, it is nevertheless in the interests of justice to admit the Suspension Allegations and Pathway Allegation out of time, for reasons including the following: 1. they are closely factually connected with the confirmation of suspension decision, which is within time; 2. the delay is at the lower end of the range (14 or 15 days out of time); 3. there is particular hardship caused to Mr Janssen arising from the actions to which these allegations relate; and 4. Mr Janssen has an arguable case in respect of obtaining relevant orders under s 213(2)(b) 'promoting or otherwise advancing him in his employment'.
I do not consider there is sufficient reason to grant an extension of time in respect of the other alleged victimising actions of SWSLHD, for reasons including the following: 1. the absence of a compelling reason for the delay; 2. the significant length of delay in respect of the Visa Allegation and Investigation Commencement Allegation; and 3. the real prospect of Mr Janssen being unable to obtain specific orders in respect of the Visa Allegation, Risk Assessment Allegation, Investigation Commencement Allegation and Investigation Participation Allegation.

Orders

I order as follows: 1. the original suspension decision of SWSLHD, the failure by SWSLHD to consider alternatives to that suspension and prevention of completion of Mr Janssen's pathway to registration are admitted out of time; and 2. all other allegations contained in the Victimisation Application are rejected on the basis they are brought out of time.
The matter will be listed for directions to set a timetable for hearing the admitted parts of the Victimisation Application. JANE SEYMOUR 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: 14 December 2017

At a glance

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Judgment (17 paragraphs)

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Cases Cited (13)

Cited By (4)