Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Kevin Costello v Director of Public Employment by his agent the Secretary of the Treasury

Industrial Relations Commission (NSW)|2010-11-26|Before: Haylen J

CITATION: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Kevin Costello v Director of Public Employment by his agent the Secretary of the Treasury [2010] NSWIRComm 181

PARTIES: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) Director of Public Employment by his agent the Secretary of the Treasury (Respondent)

DECLARATION - Industrial Relations Act 1996 - s 154 - validity of process whereby officer retired from public sector pursuant to s 25 Public Sector Employment and Management Act 2002 - requirement for medical opinion as to officer's capacity to discharge his duties and whether any incapacity "likely to be permanent" - medical referral did not ask for opinion on "likely permanent" nature of incapacity but asked for opinion on retirement - question of retirement for Department Head or delegate based on medical opinion that incapacity "likely to be permanent " - delegate acts without receiving clear medical advice as to permanent nature of incapacity - decision to retire invalid - officer not retired according to requirement of s 25 CATCHWORDS: PUBLIC SECTOR EMPLOYMENT AND MANAGEMENT ACT 2002 - s 25 - medical retirement due to officer's inability to discharge duties of his office - requirement for incapacity to be "likely to be permanent" - medical opinion fails to express necessary assessment of likely permanent nature of incapacity - decision to retire officer invalid - declaration of invalidity made pursuant to s 154 of Industrial Relations Act 1996

LEGISLATION CITED: Industrial Relations Act 1996 Public Sector Employment and Management Act 2002, s 25, s 25(b)(i)

Chen v Minister for Immigration Local Government and Ethnic Affairs (1992) 37 FCR 501 at 503 CASES CITED: Hill v Green (1999) 48 NSWLR 161 at 164-165 Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 New South Wales Technical and Further Education Commission v Valda June Kerrison [2004] NSWIRComm 369 Stead v State Government Insurance Commission (1986) 161 CLR 141

Mr M Gibian of counsel (Applicant) W.G. McNally Jones Staff LEGAL REPRESENTATIVES: Ms E Brus of counsel (Respondent) Crown Solicitors Office (NSW)

PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES ON BEHALF OF KEVIN COSTELLO v DIRECTOR OF PUBLIC EMPLOYMENT BY HIS AGENT THE SECRETARY OF THE TREASURY

Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales for declaratory relief pursuant to s 154 of the IR Act 1996

BACKGROUND 1 The Public Service Association and Professional Officers Association Amalgamated Union of New South Wales ("The Association") has applied to the Court for Declarations pursuant to the provisions of s 154 of the Industrial Relations Act 1996. The Application seeks to have declared invalid the process by which the union's member, Mr Kevin Costello, was retired from his employment with the Secretary of the Treasury because of his unfitness for duty, pursuant to the provisions of s 25 of the Public Sector Employment and Management Act 2002 (the PSE& M Act"). 2 The circumstances surrounding the present Application may be stated in short form: · Mr Costello commenced employment with the Office of State Revenue in mid-September 1996 and in September 2003 was permanently appointed to the position of Revenue Officer (Administrative and Clerical Officer - Grade 5/6) in the Finance Branch within the Management Services Division of the Office of State Revenue; · at the time of hearing, Mr Costello was 49 years old: he had married and had two children but separated in August 2006. The separation from his wife in 2006 and his ultimate divorce caused serious distress to Mr Costello to the extent that his workplace telephone calls concerning domestic arrangements and divorce proceedings had become a source of concern to work colleagues to the point where Mr Costello was directed to log off from work and to conduct these very personal discussions in a suitable place where he could have privacy and without upsetting his work colleagues; · from early November 2006 Mr Costello was under the care of Dr Samir Benjamin, a consultant psychiatrist. Mr Costello had been referred to Dr Benjamin by his general practitioner for psychiatric assessment and further management and Dr Benjamin had continued to see Mr Costello over the following three years or so with consultations occurring once every one or two months; · when Dr Benjamin first saw Mr Costello he spoke of increasing anxiety and depression attributed to the decline in his relationship with his wife and his feelings of abandonment and marginalisation. He felt isolated and unsupported and became increasingly irritable and depressed, describing persistent anger, loss of interest, loss of appetite and loss of weight. His psychological condition affected his ability to appropriately relate to others and he became abrupt, angry, irritable and argumentative. Conflict with his wife over child support, property settlement and shared custody matters continued until late 2009 and possibly beyond. This disagreement continued to feed his depression, irritability and anger that had fluctuated over the three years to the end of 2009; · in late August 2009, Mr Costello was interviewed concerning telephone calls he had been making during work time related to child support dealings with his wife. The relevant history was that, in October 2008, Mr Costello had been advised that it was inappropriate for him to make such personal calls at his desk and that those calls had impacted on other staff who found it uncomfortable and disruptive. It was then that he was directed to make those calls in a private setting such as a meeting room where the staff was not affected. During the August 2009 discussion a complaint was made that Mr Costello's demeanour and attitude turned "extremely hostile and volatile" with Mr Costello leaning within inches of the face of the interviewing officer in an intimidating way. Mr Costello then stated that he had an ulcer, had 180 days sick leave and was going to take stress leave before storming out of the meeting. Mr Costello was followed out of the meeting by the interviewer who wished to discuss the obtaining of a medical certificate but before the conversation could continue, Mr Costello turned around and continued to walk towards the interviewer in an aggressive manner. Mr Costello's action placed the interviewer in fear of his personal safety and again, Mr Costello came within an inch of his face and he felt threatened and intimidated by Mr Costello's greater physical stature. At this point another manager intervened; · in an incident report concerning this matter it was stated that Mr Costello was unable to control his anger and aggression in the workplace and that this had manifested itself in an inability to differentiate between acceptable and unacceptable standards of behaviour in the workplace. Mr Costello had not acknowledged the impact his behaviour had on other staff and when questioned why he was not following a previous direction he lost control and physically intimated the interviewing staff member to the point where that person felt fear for his safety and that of fellow staff members. Mr Costello then proceeded to take sick leave for which he obtained a medical certificate; · on 1 September 2009 the manger of the Human Resources Group referred Mr Kevin Costello for urgent psychological assessment to be carried out by Dr Peru Sagar. In referring Mr Costello for assessment as to his fitness to continue in his position as a Revenue Officer, Grade 5/6, it was stated that his current behaviour was in breach of the Department's Code of Conduct and that the Department needed to ensure that Mr Costello was psychologically able to participate in usual administrative processes relating to the possible disciplinary investigation of the matter; · in a two-page letter of referral a description was given of the behaviour of Mr Costello and that constituted the background for the medical referral. In concluding the referral it was stated that the Office of State Revenue was seeking an independent assessment and advice on Mr Costello's current and future fitness to perform his role as a Revenue Officer and specifically the following questions were asked: (a) is Mr Costello capable of performing the inherent duties of the position as defined in the attached position description?; (b) if he is not capable of performing the inherent duties of the role, what is the short term and long term prognosis for Mr Costello's psychological condition?; (c) what strategies, if any, can the OSR and Mr Costello engage to assist him in managing his short and long term health issues while undertaking the full range of duties for the position?; (d) in your opinion, should medical retirement be considered for Mr Costello given the requirements of his role which includes interacting with staff and clients? · In the letter of referral dated September 2009, Dr Sagar was provided with a number of examples regarding Mr Costello's behaviour: it was noted that Mr Costello provided a non-specific medical certificate but as it contained no disclosures as to the nature of his illness, the Department was unaware of how it could help him return to work; in October 2006 he was experiencing personal problems with his marriage and did not want to perform the full range of duties. Concerns were expressed at his aggressive behaviour; in October 2008 the tone and volume of his telephone conversations were raised with him and when was approached he became upset and stormed off; in July 2009 there were "a few concerns" from staff in another division about Mr Costello's "inappropriate" workplace behaviour, namely, using the tea-room for another division and sleeping in it. It was said to be a busy tea-room where the staff felt uncomfortable with his presence and this behaviour was discussed with Mr Costello. Mr Costello agreed that his behaviour was inappropriate; 19 August 2009: Mr Costello was sent home by his supervisor because he had become agitated and upset due to his wife's claim for additional child support. It was said that he was sent home for the purpose of workplace safety and to ensure that there was no impact on other staff. 3 In mid-September 2009 Mr Costello was interviewed and assessed by Dr Sagar. During the course of the interview Mr Costello described the confrontation that occurred in late August 2009 stating that, on the night before, he was in a state of anxiety and stress and should not have gone to work. He accepted that his conduct during the meeting was unacceptable. Mr Costello placed his difficulties in the context of anxiety and stress caused by his marriage breakdown and continuing issues arising with his wife. 4 With Mr Costello's permission, Dr Sagar contacted his treating Psychiatrist, Dr Benjamin. Dr Benjamin stated that treatment with anti-depressants had modified Mr Costello's underlying depressive symptoms to a major extent and described his patient as "having been an extremely angry man" who had seen a psychologist for a number of years to deal with anger and impulse control issues. Mr Costello had significant treatment with a variety of medication. Dr Benjamin summarised his patient as "quite a difficult personality" who had decompensated after the "trauma of losing his wife and kids", described as "a big blow." 5 In his report, Dr Sagar, dealing with Mr Costello's mental state examination, stated that he did not appear to be paranoid but did appear quite distrustful and persecuted in his descriptions of his dealing with his work, his ex-wife and with Dr Sagar. Although showing no signs of major depression, Mr Costello presented as being particularly "dysthymic" with his main symptoms being irritability and a "short fuse." While disputing findings made by his managers, he also appeared to accept his behaviour had been inappropriate. Dr Sagar said that it seemed that Mr Costello was unable to monitor the impact of his mental state upon others until some later time. He then appeared to go into a denial, minimisational and rationalisation strategy about that behaviour but there appeared to be something about him whereby he was unable to learn from past episodes and appeared to have a history of continuing to make the same errors in relation to inter-personal relationships. 6 Dr Sagar took a family history and stated that there was evidence of personality decompensation commencing approximately at the time of his marriage break up and that the decompensated presentation arose against a background of melancholia induced by the loss of his father, sister, brother and his marriage, including his relationship with his children and that was too much for him to bear. The decompensation meant that Mr Costello was no longer able to put a false "self" in place and increasingly he had reached a point where he no longer cared about what face he presented to his co-workers. That had the unfortunate consequence of a repeated pattern of aggressive impulses at work. The prognosis was therefore "guarded." 7 In relation to the four questions raised by the Office of State Revenue, Dr Sagar provided the following answers: (a) is Mr Costello capable of performing the inherent duties of the position defined in the attached position description? In my opinion, Mr Costello is no longer capable of performing the inherent duties of the position as you have defined them. This is as a result of his decompensated presentation, his underlying melancholia and dysthymic illness, his anxious presentation and his relatively deteriorated state (present at least over the past three years in spite of regular and substantial psychiatric treatment);

(b) if he is not capable of performing the inherent duties of the role, what is the short term and long term prognosis for Mr Costello's psychological condition?; He has not responded to intensive appropriate psychiatric and psychological care, has in fact continued to deteriorate, therefore there is no reason to believe that he will recover in the foreseeable future;

(c) what strategies, if any, can the OSR and Mr Costello engage to assist him in managing his short and long term health issues while undertaking the full range of duties for the position?; Not applicable;

(d) in your opinion, should medical retirement be considered for Mr Costello given the requirements of his role which includes interacting with staff and clients?; In my opinion, Mr Costello should be referred for medical retirement given his poor prognosis into the foreseeable future. 8 Mr Costello's evidence in the proceedings was that, late in the course of the interview with Dr Sagar, he asked for the doctor's diagnosis to which Dr Sagar replied: I would compare you to a World War I shell-shocked victim whose nerves are shot and after a few days out of the line they no longer have the symptoms but really they need a few months out of the line. They need a few months to recover from their condition. To affect a more permanent recovery from such stress, a longer break of several months is usually appropriate. ... It is a matter of fact whether you have this condition. I do not expect that you will make a recovery in the foreseeable future. In psychiatric terms 'foreseeable future' means in the next two to five years I recommend that you access your super and when you are fully recovered you should seek another doctor's certificate so say that you are fit to recommence working.

While Dr Sagar did not recall this exchange he did not deny it or distance himself from the views recounted: in this regard the Court accepts the evidence of Mr Costello. 9 A few days after being supplied with Dr Sagar's report the Office of State Revenue supplied Mr Costello with a copy of the report and informed him that the Office intended "to act on the recommendation of medical retirement". Mr Costello was informed of his appeal rights and in fact he did pursue an appeal. The lodging of the appeal had the effect of staying the process for implementing the recommendation for medical retirement. 10 Following receipt of Dr Sagar's report, a submission was prepared for the senior managers of the Office of State Revenue concerning Mr Costello's future. That document set out a brief background of Mr Costello's employment and workplace disruptions that had occurred in June 2009 and two incidents in August 2009. The June incident concerned Mr Costello inappropriately using the tearoom from another section and sleeping in a lounge in that tearoom making the staff feel uncomfortable. The first August incident was a reference to being sent home by a supervisor following Mr Costello becoming agitated because his wife had lodged an additional claim for child support. It was said that the supervisor took this action to ensure a safe workplace was maintained and that Mr Costello's behaviour did not impact on the staff. The second August incident has already been referred to and dealt with the inappropriate and aggressive behaviour displayed by Mr Costello during discussions with a manager. There was a summary of Dr Sagar's conclusions, namely, that Mr Costello had significant mental health treatment for the past three years and despite that treatment, impacts on his mental state had spilt over into his workplace "quite frequently". The identified "decompensation" meant that Mr Costello no longer cared about what face he presented to his co-workers and that had the unfortunate consequence of a repeated pattern of aggressive impulses at work. Dr Sagar expressed the view that Mr Costello was no longer capable of performing the inherent duties of the position and had not responded to intensive appropriate psychiatric and psychological care and had in fact "continued to deteriorate" and therefore there was no reason to believe that he would recover "in the foreseeable future." 11 The submission contained a recommendation that Mr Costello be considered permanently unfit for the position of Revenue Officer in the Finance Branch and that he be medically retired from the public sector, effective from 12 October 2009. That recommendation was considered by the Manager of the Human Resources Group and was ultimately approved by Ms Diane Barden, the Director of the Management Services Division. In evidence in this Court, Ms Barden stated that she concluded that the recommendations contained in the submission were appropriate. Where the recommendation referred to Mr Costello being unfit for the "foreseeable future.", Ms Barden said those words caused her to form the view that his health was "unlikely to improve in the next five to ten years and as such, his condition meant that he was permanently unfit". It was accepted by the respondent that the period of five to ten years during which Mr Costello was unlikely to improve, meaning that he was permanently unfit, was an opinion formed by Ms Barden and was an opinion that was not based upon a specified period of five to ten years appearing in Dr Sagar's report - it was Ms Barden's interpretation of what Dr Sagar meant by the words "foreseeable future." 12 In pursuing his appeal, Mr Costello relied upon a medical report prepared by his consultant Psychiatrist, Dr Samir Benjamin. Dr Benjamin gave a history of seeing Mr Costello from November 2006 where he gave a three-year history of increasing anxiety and depression. Mr Costello attributed this to the decline in his relationship with his wife and his feelings of abandonment and marginalisation. He felt isolated and unsupported and became increasingly irritable and depressed. He described persistent anger, loss of interest, loss of appetite and loss of weight. Separation from his wife and her application for a sole parent pension made him feel deceived and betrayed. His psychological condition impacted on his ability to relate appropriately to others and he became abrupt, angry, irritable and argumentative. Conflict with his wife over child support, property settlement and shared custody matters persisted until late 2009 and this continued to feed his depression, irritability and anger that had fluctuated over the past three years. 13 When Dr Benjamin first saw Mr Costello in November 2006 he felt that he was suffering from an Adjustment Disorder with Depressed Mood (moderately severe). He also considered the diagnosis of Major Depressive Order as a differential diagnosis. Mr Costello's psychiatric condition had fluctuated over the past three years and he responded to some extent to psychiatric treatment, including medications and psychotherapy and his symptoms "settled to some extent." His condition tended to relapse when he was faced with additional challenges such as setbacks in his Family Court litigation or when he felt excluded from the decision making in relation to his childrens care. Over the past three years he had been prescribed anti-depressant medications and at the date of report, continued with anti-depressant medication being one daily 60mg capsule of Cymbalta. In relation to prognosis, the psychiatric conditions had partially responded to psychiatric treatment over the past three years and Mr Costello had reported less insomnia, irritability or anger. He also felt less depressed or frustrated. He had coped with the demands of his job and he did not take many days off work because of his psychiatric condition. Nevertheless, he experienced relapses in his symptoms when he was faced with additional stresses. These relapses were generally short lived and usually responded to a combination of psychological counselling and further adjustment of his medication. Dr Benjamin concluded: It is highly likely that Mr Costello's psychiatric condition would significantly improve once the current Family Law proceedings are finalised.

At the time of the hearing in this Court, the Family Court proceedings had been finalised. 14 When asked what strategies the Office of State Revenue and Mr Costello could engage to assist in managing his short term and long term health issues while undertaking the full range of duties of the position, Dr Benjamin stated that, at the present time, Mr Costello was on leave but may require additional time off work to attend more focused psychiatric treatment. That treatment would include revising and adjusting his psychotropic medications, engaging him in psychotherapy with particular focus on anger management and impulse control and providing him with ongoing psychological support to enhance his communication and problem solving skills. It was estimated that he may require a six-month period of leave and it was anticipated that the psychological condition would significantly improve with those measures. If Mr Costello remained unwell and psychologically symptomatic at the end of that period, alternative suitable work duties may be sought as a next option for Mr Costello to remain in employment. He could be moved to a less demanding position within the organisation not entailing significant staff or customer interaction. A third option was to include retraining and/or redeployment to another area of accounting, possibly in a different section in the organisation if Mr Costello's employer considers that to be suitable. 15 Dr Benjamin was asked to express his opinion as to whether Mr Costello should be considered for medical retirement given the requirements of his role that included interactions with staff and clients. In his report Dr Benjamin stated that, even though Mr Costello's response to psychiatric treatment in the past had only been partial and that his symptoms fluctuated over the past three years, be believed that Mr Costello was still capable of working and contributing to the organisation. He believed that medical retirement at 48 years of age would be catastrophic for Mr Costello's self-esteem and sense of value. Retirement would also negatively impact on his long-term psychiatric management. Dr Benjamin said that there were a large number of people with significant physical and psychiatric disorders who remained in the workforce and continued to contribute to their work in society and he did not believe that Mr Costello was given adequate assistance by his employer to receive psychiatric treatment and to recover. Overall, he did not consider medical retirement to be appropriate in Mr Costello's case and Dr Benjamin expressed the view that his psychiatric condition was likely to improve with more focused psychiatric treatment over the next six months. His condition should be assessed after that time to check on his progress and to allow an assessment to be made of his fitness to perform his current duties. 16 Mr Costello's' appeal was considered by the Medical Referrals Appeals Committee, Department of Health. In his appeal Mr Costello claimed that Dr Sagar did not examine or discuss the tasks or functions that he performed in the workplace and that his own Doctor did not support the Doctor's conclusions. Dr Benjamin's report dated mid-October 2009 was supplied to the Appeal Committee. Mr Costello also pointed out that he had no history of extensive sick leave or absences from the workplace and that he had accrued almost 12 months' leave. He submitted that Dr Sagar's recommendation ignored the fact that the Office of State Revenue had generous leave provisions and that people had their positions held open while they travelled overseas for two years. By letter dated 10 December 2009 the Appeals Committee rejected Mr Costello's appeal stating that there was no significant evidence presented to contradict Dr Sagar's medical finding. This appeal was conducted on the papers and full reasons were not provided, as apparently is the norm. It is not known precisely what view was taken of Dr Benjamin's report which contradicted Dr Sagar on many significant points, but apparently it was not accepted although no reasons for that course were provided. The decision to medically retire Mr Costello was then implemented and he was paid out his accrued entitlements on the basis that he was terminated on 10 December 2009. Mr Costello did not receive notice of the Appeal Committee's decision and the formal termination of his employment until 24 December 2009. THE RELIEF SOUGHT 17 The Application under s 154 of the Act sought the following declarations: (1) That Mr Kevin Costello is, and at all material times has been, employed in the Government Service of New South Wales since 16 September 1996 and there has been no valid, effective or lawful termination of that employment. (2) That the purported medical retirement of Mr Kevin Costello on or around 24 December 2009 is void and to no effect. (3) That Mr Kevin Costello is entitled to be paid all salary, superannuation and other emoluments pertaining to his position as Revenue Officer and to retain all leave and other entitlements accruing and accrued to that position in the period from 10 December 2009 to date.

In the Grounds and Reasons supporting these Orders, a claim was made in the alternative for a Declaration that Mr Costello was entitled to all salary, superannuation and other emoluments pertaining to his position as a Revenue Office and to retain all leave and other entitlements accruing and accrued to that position from 10 December 2009 to 24 December 2009 on the grounds that his employment had not been terminated. THE LEGISLATION 18 Section 25 of the PSE&M Act deals with the retirement of unfit or incapable officers and provides as follows:

If: (a) an officer is found to be unfit to discharge or incapable of discharging the duties of the officer's position, and (b) the officer's unfitness or incapacity: (i) appears likely to be of a permanent nature, and (ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer's control, the appropriate Department Head may cause the officer to be retired.

FURTHER EVIDENCE 19 In a statement prepared for the purposes of the present proceedings, Dr Sagar referred to his report of September 2009 and the request by the Office of State Revenue to conduct an urgent psychiatric assessment of Mr Costello to determine his fitness to perform the inherent duties of his role as a Revenue Officer, Clerk 5/6. Dr Sagar referred to p 10 of his Report where he concluded that Mr Costello was no longer capable of performing the inherent duties of his position and that his condition had a poor prognosis into the foreseeable future. He stated that, in using the term "foreseeable future", he intended to convey that it was his professional opinion that Mr Costello's medical condition "was unlikely to change in the next two years at least". On the basis of his examination and his telephone conversation with Mr Costello's treating Psychiatrist (Dr Benjamin), Dr Sagar stated that he had no reason to believe that Mr Costello's condition would improve in the next two years or indeed, that his condition would improve beyond that period. He noted that the nature of the work undertaken by Mr Costello would always, at some point, require him to interact with clients or colleagues and avoidance of those interactions would seem incompatible with the requirements of his role. He had no recollection of the details of the conversation claimed by Mr Costello to have taken place, namely, that he needed a few months out of the line and a longer break of several months was usually appropriate and further that Mr Costello would not make a recovery in the foreseeable future being in the next two to five years. 20 In response to a mid-June 2010 request by solicitors acting for Mr Costello, Dr Benjamin supplied a further medical report. That report became available in early July 2010. Dr Benjamin indicated that Mr Costello continued to attend psychiatric treatment and between November 2009 and June 2010, Mr Costello had consulted him on six occasions. Mr Costello had become very distressed and depressed after receiving correspondence that he was no longer employed by the Office of State Revenue and reported an escalation in his irritability and anxiety and that he could not sleep or relax. He felt hopeless and tended to withdraw from social interaction, felt victimised and bullied by his managers at work and was advised to continue on his antidepressant medication. Mr Costello had since engaged in Cognitive Behavioural Therapy with particular focus on cognitive restructuring, setting achievable goals, lifestyle changes and relaxation. Over the past eight months Mr Costello's mental state had fluctuated but he remained moderately depressed and irritable. His inability to find employment made him more depressed and angry and he was unable to obtain financial assistance from Centrelink because of the lump sum payment he had received when he was terminated from his employment. Dr Benjamin's psychiatric diagnosis was adjustment disorder with depressed mood, being a psychiatric condition precipitated and significantly initially caused by his marriage break up and the subsequent litigation. Mr Costello's condition had recently worsened after he felt bullied and victimised at work and eventually losing his job. It was pointed out that his work performance had been satisfactory until mid-2009 when conflict with his former wife escalated and impacted on his relationship with his colleagues. His sick leave record prior to late August 2009 was unremarkable. Mr Costello's continuing unemployment remained an enduring source of stress for him and he spent most of his time at home dwelling on the events of the past 12 months surrounding his loss of job, loss of income and socialisation. He was described as being keen to return to work. Dr Benjamin then stated: At present, Mr Costello is fit to return to work, possibly in a less mentally demanding position. His return to work should be conducted in a gradual manner starting with twenty hours per week and gradually increasing to thirty-eight hours per week over a period of four weeks. 21 The parties, by consent, placed before the Court a copy of the revised "Fitness to Continue" procedures contained within a circular from the Office of the Premier and Cabinet ("the circular").

Part 1 of the Procedures under the heading "Principles" stated as follows: These minimum standards and guidelines are based on the following principles: An employer is responsible for ensuring the health, safety and welfare at work of all employees. An employee must be able to perform the inherent requirements and job demands of their position, and an employer must provide adjustment for the employee to undertake their duties, unless providing the adjustment would cause unjustifiable hardship. Where the health of an employee prevents them from undertaking the inherent requirements and job demands of the position, or where there is a health and safety concern, medical advice should be sought and the employee consulted so that the most appropriate cause of action can be taken. · Under the heading "General" it was stated that there are circumstances where the CEO or specifically authorised delegate would require medical advice to firstly, manage situations where the health of an employee prevents them from undertaking the inherent job demands of their position or secondly, to ensure the health and safety of the employees and other affected by the employee's health and fitness. The circular then continues to state as follows: The inherent requirements and job demands of a position are the essential duties and responsibilities of that job. The case law on the interpretation of 'inherent requirements' states that an inherent requirement is one that is fundamental, intrinsic or essential to the position. The term 'inherent requirements' carries with it associated job demands. These relate to the job characteristics, which require physical, sensory and psychological capacities and also any physical, biological and chemical hazards, or accident risks that may be associated with a given job. The Occupational Health and Safety Regulation 2001 imposes obligations on employers to assess risks and review risk assessments that have been undertaken previously. Agencies must refer to the Regulation prior to undertaking their risk management strategy. · Under the heading "Minimum Standards for the Referral of Employees" the following was stated: Employers need to be able to provide the GMO or approved medical practitioner with objective, accurate and relevant information in respect of any referral. To this end minimum standards have been developed to assist employers to make appropriate referrals. These are listed below (1-5). ... The report must: 1. Contain an agreed (where possible) position description which sets out the inherent requirements and job demands of the position. 2. Outline the health-related issue that is affecting work performance. Note that it is not the role of the GMO to undertake fitness to continue assessments arising from general concerns about the performance and attendance that are unrelated to the employee's health and wellbeing. ... 3. Provide factual information on how work performance is being affected, resulting in the inherent requirements and job demands that the position not being undertaken. In preparing the report it is essential that these requirements be identified and that objective evidence be provided to support the assertions or conclusions made by the employer. It is also important that agencies refrain from making any assumptions about a medical condition in the absence of a qualified medical diagnosis. 4. Outline any proposals to resolve the issue including alternative duties or workplace adjustments. Workplace adjustments can take many forms and include job redesign, re-allocation of existing duties, alternative duties or support mechanisms (eg equipment or additional assistance in the workplace). Details, including information about the job environment may assist in the future rehabilitation or retraining programme. 5. Include all sick leave records in calendar form and any recent medical certificates and related information such as rehabilitation reports. · Under the sub-heading "Consultation with Employees" the following is stated: It is important that discussions be held with employees when medical advice is being sought to determine whether the employees can undertake the inherent requirements and job demands of their position. This issue is particularly significant when fitness to continue referrals are initiated by the employer. Consultation with employees and sharing of referral information is fundamental to both transparency and procedural justice and promotes efficiency by allowing the employees to prepare for their assessment. Summary information for employees is included at Appendix B. ...

Employees have the right to send a written response to the GMO about the information provided by the employer in the referral. Employees should provide any written response to their referral within 14 days of the date of the referral letter and should, if possible, advise the GMO of their intention to provide a written response at the time they are contacted regarding an appointment. Employees may also provide additional information to the GMO at the time of their assessment. ... While employers may provide supplementary information to the GMO at any time following the initial referral, employees have a right to know what information the GMO is taking into account in making an assessment. Employers are therefore required to provide any supplementary information in writing and to make this available to employees in the same way as the initial referral documentation was provided. · Under the heading "Assessment by Medical Practitioner, Occupational Health Professional or GMO" the following was stated in the circular: Following a medical examination, GMO or medical practitioner may discuss with the agency the outcome of the assessment in relation to the employee's fitness. The GMO will discuss with the employer only such health matters that relate to the employee's ability to undertake the inherent requirements and job demands of the position and any rehabilitation or adjustment issues. The GMO will not disclose any other health matters without the employee's written authorisation. The GMO or approved medical practitioner may recommend that: · the employee is fit to undertake the inherent requirements and job demands of their position; · the employee is fit to continue work with adjustments and/or a rehabilitation programme; · the employee is presently unfit but will be fit to return to their normal duties; · the employee is unfit now but will be fit to return to modified or alternative duties at a future date; or · the employee is permanently unable to carry out the inherent requirements and job demands of the position. The role of the GMO is to advise the employer about an employee's fitness. The agency is obliged to use this advise to determine whether or not the employee should be medically retired, since medical retirement is the responsibility of the Department Head. .... · Under the heading "The Decision", the following was stated in the circular: The GMO advises the agency and the employee in writing of the results of the employee's health assessment. The GMO will include with this correspondence advice about the appeals process for those employees who are eligible. The CEO is obliged to act on the GMO's medical advice in deciding what action is to be taken. Once a decision is taken by the CEO, the agency should discuss the decision with the employee and follow-up with written advice to the employee. Medical Retirement If advice is received from the GMO that an employee is permanently unfit to undertake the inherent requirements and job demands of their position, the CEO is obliged to act on this advice and medically retire the employee unless alternative duties can be found since medical retirement is the responsibility of the Department Head. In this case, the agency should inform the employee and, if necessary, direct the employee verbally and in writing to cease duty immediately. If an employee appeals a decision to be medically retired, the employee may be granted available sick leave followed by recreation and/or extended leave at the employee's election. The agency may also approve special sick leave subject to the conditions in the Personnel Handbook until the outcome of the appeal is known. The last day of service of an employee who does not appeal is: · the date the employee notifies the Medical Appeals Panel in writing (within the 21-day period) that the appeal will not be lodged; or · the end of the 21-day appeals period if an employee does not indicate an intention to appeal The last day of service of an employee who has lodged an appeal and the appeal is disallowed will be the date the decision is made by the Medical Appeals Panel. DELIBERATION 22 The applicant union has submitted a question of apparent narrow compass as determining this matter, namely, whether Mr Costello's incapacity to discharge the duty of his position appeared "likely to be of a permanent nature." That was the question that had to be answered by Dr Sagar pursuant to the provisions of s 25(b)(i). The applicant union's submission, simply put, was that the Department Head, in exercising the discretion to retire the officer, was bound by the medical opinion received and that medical opinion was not asked to address the question of Mr Costello's incapacity appearing "likely to be of a permanent nature." The applicant union accepted that the condition set out in s 25(a) was met at the time he was retired in that he had been found, on medical grounds, to be incapable of discharging the duties of his position. It was submitted that, although Dr Sagar was not asked and did not express an opinion of the applicant's incapacity being likely to be permanent, the evidence demonstrated that: (a) Dr Sagar informed Mr Costello that he did not expect him to be able to recover in the foreseeable future which in psychiatric terms meant within the next two to five years. Dr Sagar recommended that the applicant access his superannuation and when he had fully recovered he should seek another certificate to say he was fit to recommence work; (b) in his written report, Dr Sagar expressed the opinion that the applicant's progress was "guarded" and that Mr Costello was no longer capable of performing the inherent duties of the position and that there was no reason to believe that he would recover in the foreseeable future. Mr Costello should be referred for medical retirement given his poor prognosis into the foreseeable future; (c) Dr Sagar subsequently stated that, by using the words "the foreseeable future", he intended to convey that the applicant's medical condition was unlikely to change, at least, in the next two years. 23 In support of the Application, counsel referred to dictionary definitions of "permanent" as meaning lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding. The word "likely" meant, amongst other things: "probably or apparently going or destined (to do, be, etc."). Those words were then looked at in the context of decided cases but dealing with different subject matter. This approach led counsel for the respondent to submit that the different statutory context meant that there was little assistance to be obtained from those decisions. Nevertheless, attention was drawn to the requirements for the grant of a visa where the phrase "permanent incapacitation" had been interpreted to mean "likely to continue indefinitely, that is, for a substantial but undetermined period" (Chen v Minister for Immigration Local Government and Ethnic Affairs (1992) 37 FCR 501 at 503 or as being "indefinite or not temporary" (Nguyen v Minister for Immigration and Multicultural Affairs (1998) 88 FCR 206 at 212). Attention was also drawn to superannuation cases in circumstances where employees were seeking to establish that they were incapable of continuing in the industry. In that context benefits were available to an incapacitated employee where their capacity was likely to be permanent and was of a major and effectively disabling kind. It was said of these cases that unfitness or incapacity cannot be said to be "likely to be of a permanent nature" if there was a substantial prospect of improvement. These cases, while they have a similar theme, are sufficiently different to require caution to be exercised when seeking to use them in relation to a particular and different statutory context: at best, they provide very general assistance only. 24 The key words of s 25 that the incapacity "appears likely to be of a permanent nature" uses ordinary English words. There is no suggestion that there is a special, technical meaning to be given to them. Given the context in which the words are used, the words mean that a medical assessment has to be made that there is evidence that, in all likelihood, the incapacity would remain unchanged or more directly, that there is no realistic prospect of recovery from the incapacity identified. Importantly, each of the words "appears", "likely" and "permanent" have to be given work. 25 More direct assistance in relation to the approach to s 25 is achieved by reference to a very similar provision appearing as s 20 of the Technical and Further Education Commission Act 1990 ("TAFE Act"). Section 20 of that Act is in the following terms: If: (a) a member of staff of the TAFE Commission is found to be unfit to discharge or incapable of discharging the member's duties, and (b) the member's unfitness or incapacity appears to be of a permanent nature and has not arisen from actual misconduct on the part of the member (or from causes within the member's control), the TAFE Commission may cause the member to be retired. 26 That provision was considered by a Full Bench of the Commission in Court Session in New South Wales Technical and Further Education Commission v Valda June Kerrison [2004] NSWIRComm 369. In that appeal, the Full Bench was dealing with an application for declaratory relief pursuant to s 154 of the Act where the core issue for determination was whether the respondent had been medically retired from her employment with TAFE in accordance with the provisions of the TAFE Act, with the applicant seeking the benefit of all emoluments of her position for the period during which she was treated as retired under the Act: the focus of this case was the term "may cause" in the phrase "The TAFE Commission may cause the member to be retired. In dealing with this application, the Full Bench came to consider the operation of s 20 of the TAFE Act, stating as follows: 44 Section 20 of the TAFE Act deals with circumstances where an employee, through illness, can no longer continue in office. The conditions which must be satisfied before an employee may be medically retired pursuant to s20 are set out clearly in s 20(a) and (b). They are as follows: (1) the employee must be "found to be unfit to discharge or incapable of discharging" his or her duties (s20(a)); (2) the employee's unfitness or incapacity must "appear to be" of a "permanent nature" (s 20(b)); and (3) the employee's unfitness or incapacity must not have arisen from the employee's actual misconduct or from causes within the employee's control (s 20(b)). 45 Where the language of a statute (in this instance, the use of the words "may cause" in the TAFE Act) is not ambiguous or uncertain, the court will apply the ordinary and grammatical meaning of the words unless to do so would give the statute an operation that was obviously unintended: Mills v Meeking (1990) 169 CLR 214 at 223. See also, for example, Kingmill Australia Pty Ltd t/a Thrifty Car Rental v Federated Clerks' Union of Australia, New South Wales Branch (2001) 106 IR 217; Construction, Forestry, Mining and Energy Union (New South Wales Branch) v Delta Electricity [2003] NSWIRComm 135 at [44] - [46]; Zoological Parks Board of New South Wales and The Australian Workers' Union, New South Wales [2004] NSWIRComm 85 at [43]-[46].

46 Counsel were unable to refer to any cases where these words had been the subject of judicial consideration.

47 TAFE made the following submission: In our submission the appropriate construction of the expression " cause to be retired " is " to bring about " or " give effect to " the termination of that person's employment on the grounds of a disability identified by s20. It follows that the direction by Dr Willmott to Ms Walshaw via Ms Gallagher " to terminate her as at close of business today " was simply giving effect to or causing the " retirement " as identified in s20 to take place.

The nature of the decision making process which is involved in these circumstances is simply, the preconditions having been made out and accepted by the decision maker, to then take steps to have the retirement brought about or, to use the words of the statute, " cause the member to be retired ". The process required no formality nor any additional decision making processes, save that which were necessary to comply with s20. 48 we agree with that submission. In our opinion, without straining the ordinary meaning of "may cause", these words mean "to bring about". 49 The discretion to take steps to bring about the medical retirement of a particular employee arises once the conditions in ss20(a) and (b) are met. Given that the basis for the exercise of the discretion is a medical opinion, it is a discretion one would expect would normally be exercised in favour of retirement if the pre-conditions in ss(a) and (b) of s20 have been satisfied. 50 In our view, the way that we have approached the proper construction of s20 is confirmed by considering the purpose of the statute. It seems clear why the legislature has expressed itself this way. The TAFE Managing Director or delegate has no relevant expertise to make a finding as to medical fitness or incapacity. The delegate or decision maker adopts a finding as to fitness and acts upon it to cause the member to be retired. This is entirely unexceptional. It would seem to us, unnecessary and needlessly bureaucratic for that finding to have to be made twice, or, as submitted by Ms Kerrison, if the member unsuccessfully appeals against the medical finding, three times. 51 Any appeal to the Medical Appeals Panel against the medical assessment of HealthQuest effectively acts as a stay of the finding of unfitness. A successful medical appeal would reverse the finding of unfitness and there would be no basis for retirement as the pre-requisite set out under s20 of the TAFE Act would not be satisfied. There is nothing contained in the statute which precludes the contingent or conditional exercise of a delegation pending the conclusion of any appeal from the findings of HealthQuest. The statute is silent in respect of this process. If a retirement certificate is not overturned by the Medical Appeal Panel, then the finding of unfitness remains, that finding having been made by HealthQuest and not the TAFE Commission delegate. If this were not the case, then the delegate would be required to again make a finding at the conclusion of any unsuccessful appeal. This step would seem to us to be unnecessary. If the appeal is successful, then the process does not continue. If it is unsuccessful, it does. In our view, there is no need for any further layers of decision-making in the process itself. The "decision" is to cause the officer to retire. The "decision" once made by the delegate is not rendered beyond power or outside the delegation unless an appeal is successful, or some other process intervenes. ...

57 In our view, having regard to the statutory context of this matter, Dr Willmott had received a document - the HealthQuest certificate - which satisfied all of the requirements for medical retirement in accordance with s20. Dr Willmott forwarded the HealthQuest certificate to a person in his administration to give effect to the medical retirement by notifying Ms Kerrison of the termination of her employment on those grounds. In doing so, Dr Willmott adopted the finding set out in the HealthQuest certificate and proceeded to cause Ms Kerrison to be retired. There was no issue in respect of Dr Willmott having the proper delegation to do so. We do not agree with the respondent's contention that any such delegation was ineffective until after the conclusion of any appeal to the Medical Appeals Panel. ...

59 The fact that Dr Willmott caused Ms Kerrison to be retired is more than mere inference. The retirement certificate clearly stated that Ms Kerrison was "unable to discharge the duties of her office" (thereby satisfying the requirements of s20(a) of the Act) and that the cause of the incapacity was a "personality disorder" (a matter outside of her control and unrelated to any allegation of misconduct) which would "in all likelihood prove permanent" (thereby satisfying the requirements of s20(b) of the Act). In those circumstances, all that remained to be done to effect Ms Kerrison's medical retirement was the necessary administrative steps to cause or bring about that retirement. Those administrative steps were taken, in our view, when Dr Willmott instructed Ms Walshaw, via Ms Gallagher, to terminate Ms Kerrison's employment. We are satisfied that there are grounds for such a finding, notwithstanding the witnesses faulty recollections of the particular events surrounding the receipt of the retirement certificate from HealthQuest. The evidence amply demonstrates the usual practices adopted by Dr Willmott and Ms Gallagher when mail (such as that received from HealthQuest) was received, and further demonstrates that steps were taken in the present matter consistent with those usual practices. There is no basis, in our view, for departing from the presumption that their usual practices were followed. In the circumstances, the taking of those steps themselves evidenced the exercise of the relevant discretion conferred by s20 of the Act. ...

62 Although TAFE's procedure was far from what could be considered best practice, the evidence demonstrates that what was done in the present matter by Dr Willmott was effectively "to cause" the termination of Ms Kerrison's employment by reason of medical retirement by Dr Willmott instructing Ms Gallagher to have Mrs Walshaw execute the decision. As earlier stated, Schmidt J correctly formulated the question, namely, whether or not there was in fact the requisite removal in accordance with the TAFE Act. However, by incorrectly focusing on the absence of a plain and demonstrable decision, her Honour did not answer that specific question. 63 We do not interpret s20 as requiring any particular or formal process, such as the preparation of a document recording a formal consideration of medical information regarding an employee's fitness or capacity for duty. We are satisfied that the taking of administrative steps to give effect to a document which, on its face, indicates that the criteria for retirement have been satisfied, is evidence that TAFE caused Ms Kerrison's retirement within the meaning of s20 of the TAFE Act. In that regard, we do not agree with Schmidt J's conclusion that the termination of Ms Kerrison's employment by TAFE was "entirely inconsistent with the statutory scheme".

... 65 We would observe that the approach by the appellant in this matter was regrettable. Although the statute is silent in respect of any mechanism by which a member is informed of action pursuant to s20 of the TAFE Act, it seems to us that if more appropriate administrative steps had been put in place, there may be less cause for anxiety. 27 In view of the issues before the Court in this matter, the Full Bench decision has been cited at some length. Two further matters should be noted arising from the Full Bench decision in Kerrison. Firstly, in deciding to grant leave to appeal, the Full Bench at [30] noted that similar expressions concerning retirement appeared in at least nine statutes that regulated different areas of the public sector and therefore the issues for determination would have implications for the public sector generally and important ramifications beyond TAFE. Secondly, it appeared to the Full Bench from the first instance proceedings that there was some considerable confusion regarding the process involved in causing an employee to be medically retired. The view held by TAFE senior administration was that a decision to medically retire an employee was made by Health Quest and that their task was merely to implement that decision. The Senior Doctor for Health Quest was of the opinion that its role was to provide a medical opinion and the decision to medically retire an employee was a matter for TAFE. In [50] the Full Bench determined that TAFE senior management had no relevant expertise to make a finding as to medical fitness or incapacity and thus in [49] where there was evidence of a medical nature meeting the conditions set out in s 20, the discretion to terminate was exercised by TAFE and if that opinion favoured retirement with the pre-conditions having been met, it would normally be expected that the decision to retire would be made by TAFE administration. 28 Further, in [62] and [65] the Full Bench adversely commented upon the internal processes within TAFE in the administration of actions taken pursuant to s 20 of the TAFE Act to medically retire an employee. Related to that issue, by way of contention, it was submitted on behalf of the applicant that the procedure adopted by TAFE administration at various stages of the process denied Ms Kerrison procedural fairness. That submission was made by reference to the judgment of Spigelman CJ in Hill v Green (1999) 48 NSWLR 161 at 164-165 in the following terms:

The obligation to afford procedural fairness is a doctrine of the common law which attaches to the exercise of public power, subject to any statutory modification of the common law in that regard...

In determining whether there has been a statutory modification, the courts must apply the principle of the law of statutory interpretation that general words used in a statute will be read on the basis of an assumption that parliament did not intend to infringe fundamental rights or principles - including procedural fairness - and, accordingly, that such general words may not be given their full scope or literal construction...

... formulations of the test to be applied in determining that parliament intended to abrogate principles ... include phrases such as "clear and unambiguous words", "unmistakable and unambiguous" and "express words or necessary implication".

While the contention was rejected on the facts, nevertheless, it is clear that the Full Bench accepted that the principles of procedural fairness had application in the proper administration of proposed retirements under s 20 of the TAFE Act. 29 It can be seen that the approach of the Full Bench in Kerrison has been adopted in general in the circular (see the extracts at [21]) so that the Department Head and those exercising delegated authority are required to make the decision to terminate or to adopt some other form of continuing duties but in doing so must proceed upon the basis of the medical opinion provided. The circular contemplates five possible recommendations to be made by the Medical Practitioner, including a recommendation that the employee is presently unfit but will be fit to return to their normal duties; the employee being unfit presently but would be fit to return to modified or alternative duties at a future date or that the employee is "permanently unable" to carry out the inherent requirements and job demands of the position. 30 Doctor Sagar was supplied with the documents required by the circular, including copies of the circular (running to 12 pages) but made no reference to the contents of the circulars. The letter of referral to Dr Sagar indicated that the Office of State Revenue was seeking his independent assessment and advice on Mr Costello's current and future fitness to perform his role as a Revenue Officer and asked four questions (previously set out in para [2]) but in terms did not ask Dr Sagar whether Mr Costello was "permanently" unable to carry out the inherent requirements and job demands of his position as described at p 5 of one of the circulars nor was the Doctor asked to express a view in terms of s 25(b)(i) of the PSE&M Act, namely, whether the officer's fitness or incapacity "appears likely to be of a permanent nature." It will be recalled that the Doctor's answer to the four questions posed to him was that Mr Costello was "no longer capable of performing" the inherent duties of the position and that "there is no reason to believe that he will recover into the foreseeable future." As to what assistance could be rendered in managing Mr Costello's short and long term health issues while undertaking the full range of duties for the position, he regarded that possibility as being "not applicable" without further explanation. In relation to his opinion as to whether Mr Costello should be considered for medical retirement, the Doctor expressed the view that he should be referred for a medical retirement "given his poor prognosis into the foreseeable future." As already indicated, he regarded the applicant's prognosis as being "guarded." In later evidence Dr Sagar explained in using the words "the foreseeable future", it was his intention to express a view that the medical condition was unlikely to change, at least, in the next two years. Curiously, Dr Sagar then stated in his evidence before this Court that, following his conversation with Mr Costello's treating Psychiatrist, Dr Benjamin, he had no reason to believe that Mr Costello's condition would improve in the next two years or indeed, that his condition would improve "beyond that period." None of this was stated in his medical report. It also appears to be at odds with the views later expressed by Dr Benjamin, although those contrary views appeared not to have been accepted by the Appeal Panel. 31 It was Dr Sagar's medical report dated 11 September 2009 and not those later extrapolations that came to Ms Barden as the Director of Management Services who had been delegated the employment functions of the Divisional Head pursuant to the provisions of the PSE&M Act. Her obligation was to act upon the medical advice in dealing with Mr Costello's medical condition and ability to perform duties. Dr Sagar had failed to mention, in terms of s 25(b)(i) of the PSE&M Act, whether Mr Costello's incapacity appeared likely to be of a permanent nature but spoke in general terms about the "foreseeable future". In her evidence to this Court, Ms Barden said the Doctor's use of the terms "foreseeable future" caused her to form the view that Mr Costello's health was unlikely to improve in the next five to ten years and as such, his condition meant that he was permanently unfit. It is implicit in that statement (and confirmed in her oral evidence) that she made no enquiry of Dr Sagar as to what he meant by the term "foreseeable future" and did not ask him to express an opinion as to the likely permanent nature of Mr Costello's incapacity. Bearing in mind that this was a medical opinion, there was no evidence of a medical basis for Ms Barden's assessment that Mr Costello's health was unlikely to improve in the next "five to ten years" - indeed, that range did not adequately reflect Dr Sagar's view. Further, there was no medical evidence stating that Mr Costello's incapacity was likely to be permanent but Ms Barden formed the view that he was permanently incapacitated: applying Kerrison, she was not entitled to form and act on her medical view as she had no training to do so. 32 It is necessary to closely consider the opinions expressed, at various times, by Dr Sagar. In his report he stated that the prognosis was "guarded" and that there was no reason to believe that he would recover in the foreseeable future. Although Dr Sagar could not recollect the conversation with Mr Costello on the day of the consultation, he did not deny Mr Costello's version whereby Dr Sagar compared his condition with a shell-shocked World War 1 veteran who ultimately needed a break of several months and that was usually appropriate. He also told Mr Costello that he did not think he would make a recovery in the foreseeable future and in psychological terms that meant two to five years. He recommended that Mr Costello obtain access to his superannuation and when he was "fully recovered" he should seek another doctor's certificate to say he was fit to recommence work. In Dr Sagar's statement tendered in these proceedings, he expressed the view that Mr Costello's medical condition was unlikely to change in the next two years at least and he had no reason to believe that it would improve in the next two years or beyond. 33 In summary, Dr Sagar had offered views that Mr Costello would need a break of several months and in his report stated that, given the poor prognosis, he would not be fit for the foreseeable future yet told Mr Costello that when he had fully recovered he should seek another certificate testifying to his fitness to resume work and then, in his statement to this Court, said that the condition was unlikely to change, at least, within the next two years and had no reason to believe there would be change in the next two years or beyond. He had also told Mr Costello that his incapacity may continue for two to five years. This mixture of views represents what Dr Sagar may have said if Ms Barden had spoken to him and asked him to clarify the terms of his report where he adopted the expression that Mr Costello would not recover "in the foreseeable future". The varying periods of time referred to by Dr Sagar have then to be considered in the context of his statement to Mr Costello that, when he recovered, he would need to have a medical certificate of his fitness to resume duties. That statement suggests that Mr Costello was open to recovery and therefore could not be said to be likely to be permanently incapacitated for his work. It is entirely possible that a medical assessment of his incapacity could arrive at a conclusion that he would not be fit for the "foreseeable future" but would not necessarily extend to a conclusion that his incapacity was likely to be permanent. 34 The letter of referral to Dr Sagar asked his opinion on the question of whether medical retirement should be considered for Mr Costello. This was the wrong question. Applying the Full Bench judgment in Kerrison (and the terms of the Premier's circular), the ultimate question Dr Sagar should have been asked and he should have attempted to answer was whether Mr Costello's incapacity was likely to be of a permanent nature. That was the question required to be answered by s 25(b)(i) where the officer was found to be incapable of discharging the duties of his position. The failure to ask this specific question and to obtain a specific answer from Dr Sagar resulted in Ms Barden merely applying Dr Sugar's opinion that Mr Costello should be retired. This is confirmed by the Department's letter to Mr Costello dated 16 September 2009 advising him that the Department "intends to act on the recommendation of medical retirement." There was no reference to the terms of s 25(b)(i). The decision to retire Mr Costello, however, was not one for Dr Sagar, but was a discretion to be exercised by the Department Head or an appointed delegate such as Ms Barden. Depending on the answer given by Dr Sagar, Ms Barden may have had to consider a number of possibilities, having regard to Mr Costello's age and the fact that his condition appeared to arise because of his Family Law problems. There was no evidence that he could not perform his duties - the problem was his anger and aggressive behaviour from time-to-time exhibited when dealing with other staff members. Ms Barden might also have been called upon to consider allowing Mr Costello to use his accumulated leave in order to overcome his problems, as suggested by Dr Benjamin. If Mr Costello was to be accorded procedural fairness, a matter conceded to be necessary in the Premier's circular and accepted by the Full Bench in Kerrison, these possibilities would have had to be open to discussion with Mr Costello and his advisors, including his treating doctor. This course might not be the usual way in which a s 25 determination to retire is reached but Mr Costello's "incapacity" arose from his personal and family situations and his resulting psychological/psychiatric condition and undoubtedly that combination presented some difficulties for a medical practitioner asked to state whether the incapacity was "likely to be of a permanent nature." 35 Dr Sagar, with the approval of Mr Costello, consulted Dr Benjamin as Mr Costello's treating Psychiatrist. Their medical reports before the Court show that there was no issue between these two doctors that, at the time of Dr Sagar's interview with Mr Costello, Mr Costello was presently incapable of performing the duties of his office. Having regard to the state of the medical opinion in front of her where no assessment had been made of the likely permanent nature of the incapacity, Ms Barden was required to make an assessment of what might be done with Mr Costello having regard to the fact that he was presently incapable of performing the duties of his office and that he would be so incapacitated for the "foreseeable future" but in circumstances where he had accumulated almost twelve months' leave and was only 48 years old. Having regard to the terms of the circular governing the process at that time, it would have been appropriate for Ms Barden to discuss with Mr Costello and possibly Dr Benjamin whether some treatment might improve his condition during leave of absence for an extended period of sick leave. It is apparent from evidence before the Court if that course had been taken, Dr Benjamin would have informed Ms Barden that it was highly likely that Mr Costello's psychiatric condition would significantly improve once the current Family Law proceedings were finalised and that he may require a six-month period of leave during which his psychological condition would significantly improve with the measures suggested. If effect was to be given to the consultation process set out in the circular and the fundamental need for transparency and procedural justice observed, especially where medical retirement would require consideration to be given to alternative duties, then these discussions with Mr Costello and Dr Benjamin should have taken place having regard to the inexactitude of Dr Sagar's opinion. In any event, the critical decision was one for Ms Barden based upon the medical advice of Dr Sagar and there was nothing in precise terms in that advice that supported a conclusion that Mr Costello would be "likely to be "permanently" incapacitated or that he would be incapacitated for between five and ten years and thus effectively permanently incapacitated. 36 The inadequacies of the Department's process of dealing with referrals under s 25 of the PSE&M Act echo the concerns expressed by the Full Bench in Kerrison about the equivalent provisions of the TAFE Act. While there is much detail in the circular about what the Department should do and what should be sent to the medical practitioner and a good deal of detail provided as to making the decision and handling the termination of an employee, there is very little by way of clear requirements during the process whereby the officer and his advisors (including his medical advisors) might contribute to the process, especially in relation to matters such as looking for alternative duties if available and the use that might properly be made of accumulated leave in permitting the officer to demonstrate that his/her medical condition had improved to the point where continued employment or return to previous duties might be possible. Removal from public sector employment because of personality disorders as in Ms Kerrison's case or a psychiatric condition in Mr Costello's case raise issues of real difficulty and a more transparent and clearly defined process should be adopted that gives a level of participation to the officer during the course of referral and before the matter is submitted for medical opinion. This is especially so having regard to the seriousness of removal from the public sector and where that removal will have a potentially significant impact on the officer's capacity to obtain other employment. 37 The shortcomings in Dr Sagar's opinion, having regard to the terms of s 25 and the guidelines circular and the unjustified view formed Ms Barden, leads to the conclusion that there has been a failure to comply with the provisions of s 25 of the PSE&M Act by failing to determine whether it appeared likely that Mr Costello's incapacity would be of a permanent nature. It therefore follows that the retirement of Mr Costello was invalid and he is entitled to a declaration that a remains a member of the public sector in the position of a Clerk, Grade 5/6. 38 Before concluding the judgment it is necessary to say something about the use of the medical evidence that came into existence after Ms Barden made her decision to retire Mr Costello. Dr Sagar gave an explanation of what he meant by the term "foreseeable future" and his estimate of it extending for two years at least. Mr Costello gave evidence that, at the interview, Dr Sagar spoke of a break from duty of a few months or several months to bring about a recovery. Dr Sagar then extended the period to encompass two to five years. He advised Mr Costello that he could re-apply for employment when he was ready to resume work. Dr Sagar could not recall this conversation but did not deny it. Dr Benjamin had a very different view of Mr Costello's prognosis and thought he could overcome his problems with a break of six months. 39 All of this evidence was tendered without objection although much of it does not directly affect the way in which the decision to retire was reached by Ms Barden. This evidence does, however, serve the useful purpose that the Court can be satisfied that there is utility in making the Declarations sought in that there is a real possibility that some outcome, other than retirement, might eventuate when the provisions of s 25 are correctly applied. Specifically, this later evidence was not used by the Court to call into question the merit of the medical opinion - a subject not available in proceedings of this nature - but to satisfy the necessary query as to whether a different result was a possibility should the Declarations be made as sought by the applicant (see the general approach in Stead v State Government Insurance Commission (1986) 161 CLR 141). 40 Lastly, in relation to the claim made in the alternative (that Mr Costello was not effectively retired until he had received notice of that decision after the appeal), in view of the decision to grant the primary relief sought it is not, therefore, necessary to deal with his matter. That claim, if granted, would require approximately two weeks' pay to be made to Mr Costello. It should be said, nevertheless, that the terms of the circular operate on the basis that the last day of service will be the date of the decision of the Medical Appeals Panel where the appeal fails. There is no statutory or award provision that requires the last day of service to be the day when a medically retired officer receives the formal documents giving effect to that decision. Counsel for Mr Costello could not identify any other provision that required such a result but relied upon the general appropriateness of such an approach. In these circumstances there is no reason why the terms of the circular should not apply. 41 Having concluded that Mr Costello was invalidly retired there are, however, a number of matters that the parties need to discuss before final orders can be made. Firstly, any orders as to continuity of service and payment of outstanding monies need to take into account money received in other employment by Mr Costello following his medical retirement. Secondly, some consideration needs to be given to Mr Costello's present state of health and whether he is capable of returning to employment or whether there needs to be some further period of treatment as suggested by Dr Benjamin before that step can be taken and whether further leave should be taken. In this regard it is to be noted that a significant factor in Mr Costello's condition was the continuing stress associated with his marriage break up and associated Family Law proceedings. The Court was informed that those proceedings were now concluded and it remains for a medical assessment to be made of his current capacity together with any reasonable requirements of the Department in that regard. It was accepted by Mr Costello that success in this Application would require a re-evaluation of his medical condition. There may well be other matters that the parties need to consider either by way of further orders or by way of practical arrangements that need to be made in light of the decision of the Court and in those circumstances, the matters will be stood over with liberty to have the matter relisted for the making of final Orders.

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Judgment (31 paragraphs)

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Cases Cited (9)