Sanjay Sharma and NSW Health o/b Sydney South West Local Health District IRC 827 of 2013
Macleay Valley Health Service v Jeffree (1994) 58 IR 187
Leeds and Northrup Pty Ltd v Hull (1992) 46 IR 11
Source
Original judgment source is linked above.
Catchwords
SSWSHS v Sharma [2009] NSWWCCPD 90Sanjay Sharma and NSW Health o/b Sydney South West Local Health District IRC 827 of 2013Macleay Valley Health Service v Jeffree (1994) 58 IR 187Leeds and Northrup Pty Ltd v Hull (1992) 46 IR 11Bankstown City Council v Paris (1999) 93 IR 209Harvey v Department of Education and Training of New South Wales [2009] NSWIRComm 1076Byrne v Australian Airlines Limited [1995] HCA 242016/137895
Judgment (10 paragraphs)
[1]
DECISION
Mr Sanjay Sharma (the Applicant) commenced employment with NSW Health, South Western Sydney Local Health District (SWSLHD) at Fairfield Hospital on 17 May 1999 initially as a casual Security Guard. He was unsuccessful in obtaining full-time employment despite a couple of attempts. In May 2000, the Health Services Union (HSU) (then known as the Health and Research Employees' Association), lodged a dispute notification with the Industrial Relations Commission of NSW as the Applicant was, by that time, working full time hours at Fairfield Hospital. As a result of the casual conversion provisions of the Health Industry Status of Employment Interim (State) Award, he was appointed to the role in a full-time capacity on 6 July 2000.
The lengthy period of disputation between the parties as well as the various matters before the Commission requires that the full history of his employment be traversed in these proceedings.
The Applicant received correspondence from the Respondent dated 14 November 2001 regarding his unsatisfactory sick leave record.
The Applicant received further correspondence from the Respondent dated 26 June 2002 regarding the same issue.
In 2003, in his capacity as HSU delegate, he successfully negotiated back pay for 8 security guards members in regards to a claim he investigated for underpayment of overtime and shift penalties.
In 2004, a complaint was made by 8 security officers (which included the Applicant) of racism by the then Security Manager. The complaint was subsequently dismissed by management as unsubstantiated.
On or about 25 May 2004, the Applicant signed a copy of the then South Western Sydney Area Health Service Code of Conduct confirming that he had read and understood the Code of Conduct and Ethics.
The Manager (against whom the racism complaint was made) commenced an investigation in November 2004 into alleged misuse of the Hospital CCTV system by Security Officers to inappropriately view female visitors to the hospital. The Applicant was required to attend 3 - 4 interviews between November 2004 and February 2005. The Applicant was dismissed on 11 February 2005 for alleged inappropriate usage of security cameras. The misconduct was denied by the Applicant. He alleged that he was singled out and told that he was the "most likely" person to have misused the CCTV. The HSU lodged a dispute notification and represented him in the conciliation but withdrew its representation for the arbitration proceedings on the basis that the matter had "no reasonable prospect of success". He was subsequently reinstated with back-pay and continuity of service by decision of Bishop C in Sharma v Sydney South West Area Health Service [2006] NSWIRComm 1157. Reinstatement was required to be effected within 21 days of the decision of 30 November 2006.
On 20 December 2006, the Respondent lodged an appeal against the decision of Bishop C. A Stay Order was granted by Boland J on 22 December 2006 on the condition that the Applicant would be paid his ordinary rate of pay during the prosecution of the appeal subject to any deductions for monies received from other employment.
On or about 22 December 2006, Wright J made orders requiring the Respondent to pay to the Applicant his ordinary rate of pay during the prosecution of the appeal subject to any deductions for monies received from other employment.
The Respondent contended that it commenced to pay the Applicant his ordinary rate of pay on or about 11 January 2007 despite the fact that he had not yet complied with the conditions of the Stay Order that he provide, within 4 weeks, details of any income earned and fortnightly statutory declarations in relation to any other work performed. The Applicant disputed the quantum of the payment. The Respondent pointed out that the reinstatement order clearly indicated that any time overseas and monies earned after termination should be taken into account in the calculation of back-pay.
The Respondent contended that Mr Adam Dansie, then Senior Industrial Officer with the Health Service, on or about 16 January 2007, contacted him about details of his earnings as per the Orders of Bishop C. The Applicant contended that Mr Adam Dansie turned up at his home unannounced and asked him to "resign or face consequences". He refused to resign insisting that he wanted to get back to work at Fairfield Hospital.
The Applicant, on 23 January 2007, provided a statutory declaration to the effect that he earned a gross income of $28,764 for the year 2005-2006.
The Respondent sought leave to discontinue the appeal on 1 February 2007. The Applicant was advised in writing on the same day and directed to return to work on 5 February 2007 commencing with an orientation at Royal Prince Alfred Hospital (RPAH). The return to work was conditional on the Applicant providing evidence of a current security licence, completion of a criminal records check, provision of details of monies earned since his termination and details of any periods overseas for the purpose of calculating his back-pay. The Applicant received a payment in regards to his back-pay but the sum was not acceptable to him as he did not consider it as complying with the Commissioner's orders.
Return to work did not occur on 5 February 2007. The Applicant refused to return to work without the issue of his back-pay being resolved. The Respondent refused to recalculate his back-pay until it received the requisite information from the Applicant. The Applicant had not provided the information sought. The Applicant contended that the then Human Resources Manager, Mr Greg Driver, said to him words to the effect, "That's what you are going to get as per IRC orders".
Walton, J, then Vice-President, granted leave on 9 February 2007 to the Respondent to withdraw its appeal. The Respondent's representative had a discussion with the Applicant (who was self-represented) at the conclusion of those proceedings.
Later that day, the Respondent wrote to the Applicant directing him to attend corporate orientation at Royal Prince Alfred Hospital (RPAH) on Monday, 13 February 2007 and then report for work at Fairfield Hospital. Once again, the Applicant was asked to provide the details required to calculate his back-pay.
It was contended that the Applicant did not comply with the direction to return to work. At approximately 1.45 pm on 13 February 2007, Mr Greg Driver made a note of a telephone call he received from the Applicant at 11.20 am during which he made persistent inquiries as to when he was going to receive payment of his back-pay and how much he was going to receive despite being advised that he had to provide details of how long he had been overseas and his earnings during the relevant period before back pay could be calculated. He made the point during that conversation that he would not be returning to work until he received his back-pay.
The Applicant did eventually provide some information in a Statutory Declaration dated 16 February 2007. However, the Respondent considered the declaration to be unsatisfactory as it did not contain a clear statement to the effect that the monies declared were "all the income earned".
On or about 21 February 2007, during a telephone conversation, the Applicant and Mr Driver discussed the incomplete nature of the Applicant's Statutory Declaration and the former's concern about his incorrect back-pay.
The Respondent wrote to the Applicant yet again on 22 February 2007 directing him to attend corporate orientation at RPAH on Monday, 26 February 2007 and then report for work at Fairfield Hospital. The Applicant was directed to provide an amended Statutory Declaration clearly stating that the amounts declared on 16 February 2007 were the total of the income earned during the period in question.
The Applicant did not report for work. However, he did provide an amended Statutory Declaration on 28 February 2007.
Receipt of his amended Statutory Declaration was formally acknowledged and the Applicant was advised that his back-pay was being processed. In the interim, the Respondent directed the Applicant, yet again, to attend corporate orientation at RPAH on 6 March 2007 and then report for work at Fairfield Hospital.
In the absence of compliance by the Applicant, he was advised, in correspondence dated 8 March 2007, that he was being given "one last chance" to attend corporate orientation on 12 March 2007.
The Applicant still did not comply. Instead, he applied for annual leave for the period 12 - 16 March 2007 inclusive which leave was retrospectively approved on 15 March 2007.
The Respondent wrote to the Applicant on 16 March 2007 pointing out that not only had he not complied with five (5) directions to attend for work, he had not provided any written explanation for his non-compliance. He was cautioned that any future absenteeism would be considered a failure to comply with a lawful and reasonable direction and "may result in disciplinary action which may include the termination of your employment". The correspondence also asked that he either withdraw or particularise an allegation he made that the Respondent's representative, Mr Adam Dansie, had threatened him during the discussions at the Commission on 9 February 2007.
He was directed to attend corporate orientation at Liverpool Hospital on 19 March 2007. In the interim, he received $28,584.64 on 11 March 2007 in satisfaction of the back-pay order by Bishop C.
The Applicant's Solicitors, on 15 March 2007, disputed the amount paid as it was based on ordinary wages. It was argued that the Respondent should have taken into account regular overtime that he worked prior to his termination.
The Applicant attended corporate orientation at Liverpool Hospital on 19 March 2007 as directed, undertook the mandatory training and then proceeded to work a few training shifts.
On 23 March 2007, the Applicant's Solicitor wrote to the Respondent denying that the Applicant had made any allegation of threats by Mr Dansie towards him. In addition, the Respondent was put on notice that the Applicant intended to seek a relisting of the matter before Bishop C in relation to two matters - firstly, the allegation that he had not attended work as directed and, secondly, that his back-pay was not in accordance with the Commissioner's Orders.
The matter was re-listed before Bishop C on 3 April 2007 at the conclusion of which an informal statement was issued recording that an agreement had been reached between the parties in relation to the back-pay and other issues. Another payment was made by the Respondent into the Applicant's bank account. The amount was once again disputed by the Applicant as incorrect as it was calculated on the basis of day shift, Monday to Friday, when in fact he had been working a rotating shift including weekends and public holidays prior to his termination. The Applicant returned to work as a full-time Security Guard on a normal roster at Fairfield Hospital in April 2007 after completing the mandatory training.
The Applicant stated that, soon after his resumption at work, he was asked to meet with the General Manager of Fairfield Hospital who advised him that the subject of his termination would not be brought up by anyone and assured him that he would be treated fairly. He said he advised the General Manager that he intended to seek alternative work and resign in due course.
The Applicant contended that, despite the above assurance, he was subjected to bullying and harassment by his colleagues from the time of his return to work. The bullying took the form of exclusion and the spread of vicious, untruthful and hurtful rumours about his work ethics. He also contended that management did not take any preventative action to stop the harassment. There was no evidence before the Commission to substantiate that allegation.
Mr Thomas Pantellis, another security guard the Applicant was working with on 24 June 2007, asked the Applicant to open a door to which he had a key. An argument ensued between the two guards resulting in the allegation that the Applicant threw a bunch of keys at Mr Pantellis bruising him in the chest. Photographs were taken of the bruising on 25 June 2007.
The Applicant contended that the Respondent held him responsible for the fact that Mr Pantellis had become abusive for an unknown reason. The Applicant contended that Mr Pantellis had apologised to him stating that "he was merely joking with me". He said that he had accepted the apology and kept working.
The Applicant stated that the Human Resources Manager advised him that he was directed to investigate the incident despite being advised by the Applicant that it was merely "miscommunication between me and other officer which is sorted out". The Applicant participated in a fact-finding interview.
Mr Anthony Schembri, General Manager of Fairfield Hospital, held a disciplinary meeting with the Applicant on 6 August 2007 during which the latter was advised that he had breached the Hospital's Code of Conduct by mistreating another security guard. He was given a first and final warning which he refused to acknowledge (by appending his signature to it) claiming that he had been the "victim" in that incident. That was the last day on which the Applicant worked for the Respondent as a Security Guard.
The Applicant said that the unfair treatment he was experiencing took its toll. He ceased to attend work on and from 7 August 2007. He notified the Respondent's insurer of a work-related injury which was described as "depression, anxiety and insomnia". The cause was listed as "unknown". He said his injury was later described by both his General Practitioner and his Psychiatrist as "arising as a result of false complaints, allegations, harassment and bullying that took place in the workplace between 2004 and 6 August 2007".
The Applicant stated that he did not undertake any paid employment after 2007 due to his medical condition. He was paid his sick leave and annual leave accruals during his absence from work.
The Applicant's workers' compensation claim was initially declined. He sought, with the assistance of his Solicitors, a review of that decision on 5 November 2008. On 6 March 2009, an arbitrator found in his favour. The injury was determined to be work related and weekly payments were reinstated: Sydney South West Area Health Service v Sharma [2009] NSWWCCPD 90.
Acting Deputy President Moore, Workers' Compensation Commission, on 17 April 2009, on appeal, confirmed the Arbitrator's decision and reinstated workers' compensation payments. It was found that the Applicant had a psychological injury arising out of the nature and condition of his employment. It was not considered that the disciplinary action in 2007 was the dominant cause of the injury but that it did constitute part of a continuum of events in the workplace since 2004 that "were bound to have significant psychological consequences for the Applicant": Sydney South West Area Health Service v Sharma [2009] NSWWCCPD 90 (4 August 2009).
On 7 June 2010, the Applicant, upon receipt of an injury management plan from Employers' Mutual Ltd, allegedly threatened self-harm and stated that he wanted to "kill" his manager at Fairfield Hospital. His return to work co-ordinator stated in an email dated 8 June 2010:
Mr Sharma stated that his manager at FH (Fairfield Hospital) is against him and that no-one cares whether he lives or dies … The Applicant stated that he would "kill" his manager at Fairfield Hospital as he has it in for him, and then do himself in.
A vocational assessment undertaken by Ms Michelle Irwin, psychologist, on 10 August 2010, determined that he was able to perform suitable duties on reduced hours. It noted that he had on-going psychological symptoms, difficulty controlling his emotions, was not motivated to seek work outside of the LHD and was not prepared to travel far from his home. Continued psychological treatment and a graduated return to work were recommended.
The Applicant was certified fit for his pre-injury duties on 1 September 2010.
The Applicant said he was called to a meeting with Gail Miner (Return to Work Co-Ordinator), Joseph Pineda (Human Resource Manager (Fairfield Hospital)) and the return to work rehabilitation provider representative at Community Centre (unit of South Western Sydney LHD) in November 2010. The Applicant said that he raised the back-pay issue and leave entitlements with Mr Pineda at that time. Mr Pineda undertook to calculate all leave entitlements and advise about both issues shortly.
On 17 February 2011, the Applicant returned to work in an administrative role within the office at Fairfield Hospital Community Health, Carramar. The work plan, which was unsigned by the Applicant for reasons unknown, contemplated a 4 hours per day, 4 days per week schedule.
For his part, the Applicant said that no return to work (RTW) plan was devised and he was not told what kind of duties he would be undertaking.
He worked on computers undertaking data entry, checking community fleet cars for faults, taking cars for a wash and other general office duties, including occupational health and safety audits.
On 22 March 2011, the Applicant left the workplace early stating that he was not feeling well. His Supervisor, Ms Davy Van, noted in an email that:
[the Applicant] did not appear happy and stated that binding folders is not what he sees as challenging and it is an administrative task as it is a petty thing.
Ms Van noted in another email that the Applicant did not turn up for work on 24 March 2011 and commenced a pattern of poor attendance.
Ms Van noted in yet another email dated 28 March 2011 that the situation was "becoming very difficult" because of the Applicant's "fussy attitude" to work and his refusal to undertake tasks that he considered below his capabilities. A workplace review was conducted.
An EML Status Report, dated 29 March 2011, noted that the Applicant continued to be fit for suitable duties and was working in accordance with his RTW Plan No. 1. It noted also that the main barrier to his return to substantive duties was "his history of psychological instability".
The Applicant forwarded an email to Justice Court, his rehabilitation consultant, dated 4 April 2011, in which he stated:
It is not Davy (his supervisor) who will decide when and what I do. I want to discuss all this before I am going to agree to anything.
Ms Van noted in an email dated 2 May 2011 that the Applicant left the workplace in the middle of his shift. She noted that she had asked the Applicant to continue with an agreed task:
He said that he wanted to go out for a quick smoke. When he came back I asked if he is ready to start, that when conflict has arisen and stated he will not do it by himself and that I treated him like a child. I try to explain to him that I was just have him to read the local procedures first then will show him the actual location of all the dresses. Unfortunately I was never given the opportunity and he was quite hot up and said something about leaving FCHC (Community Health) if there is no work… I said you are asked to do this. If this how you feel then you need to call Gail or Justin .. then left and never heard from him again. (sic)
As a result of a further disruptive incident, the Applicant said he was not offered any suitable duties after 3 May 2011 as it was considered no longer practicable to return him to Community Health. The Applicant said he was advised by Ms Miner that there were no more suitable duties available to him and advised to contact the insurer for further assistance.
Ms Van, on 10 May 2011, offered to give the Applicant "another go". Discussions were held with the Applicant, Ms Van and other persons involved in co-ordinating his return to work on 18 May 2011. It was resolved that a new RTW plan would be provided to him and that he would recommence suitable duties with Community Health on 23 May 2011 for 2-3 months.
The new RTW plan was emailed to the Applicant on 20 May 2011. He was required to sign it and return it to his rehabilitation consultant. An email response was received from the Applicant dated 23 May 2011 in which he stated that his acceptance of the RTW Plan was conditional on two things - firstly, that Mark would replace Van as his supervisor and, secondly, he wanted a guarantee of a permanent position at the end of the plan. Enquiries revealed that it was not possible to switch supervisors.
Correspondence was forwarded to the Applicant on 1 June 2011 noting that, as he declined the suitable duties offered, a recommendation would be made that those duties be withdrawn.
Further correspondence was forwarded to the Applicant on 21 June 2011 noting that as he had refused the offer of suitable duties from 4 July 2011, the offer would be withdrawn.
On 24 October 2011, the Managing Director, RTW Rehab, Mr Phillip Quach, sent the Applicant a document at 9.39 am which sought to ensure that all parties "work together towards addressing and resolving barriers to achieve closure". Mr Quach noted the following in an email at midday later that day:
The Applicant - same old issues
[I just received] an explosive telephone call from Mr Sharma in which he was very angry, that he wanted material removed from a document he had been sent and was threatening to harm himself and other people.
The Applicant forwarded an email to Mr Quach dated 25 October 2011 warning:
I advise you in writing now that if you guys kept harassing me the way you are doing it now, I will take legal action to stop this. (sic)
Over the next 18 months the Applicant changed his rehabilitation provider and continued on weekly payments. The Respondent stated that it received correspondence from the Applicant advising that he did not want to travel outside of Fairfield because there were providers in that suburb. The Respondent also indicated that it had encouraged him to job seek but he had not been successful in finding work.
The Applicant did not provide any detail in his statement save to say that he contacted Employers Mutual and was advised to seek work independently which he did do for about 3-4 months in 2011 unsuccessfully. He said he attended numerous meetings with return to work "risk managers" and/or co-ordinators from different area health services to discuss his return to work plan but on each occasion he was told that there was no work, or suitable duties, available for him to perform.
The Respondent contended that the Applicant's treating doctor provided WorkCover medical certificates certifying him as fit for pre-injury duties from 5 June 2012 until the present.
The Applicant received a medical certificate in or around July 2012 certifying him as fit for his pre-injury duties albeit on reduced hours. Accompanied by his support person, he attended a meeting on 26 July 2012 with Ms Miner and Workers' Compensation Claims Manager, Ms Paola Mercuri, to discuss his return to work. He said Ms Mercuri advised him that as shift patterns had altered within the security department, he was not going to be offered any suitable duties as a Security Guard. Both Respondent representatives advised that he could be accommodated to work in an Administration role within area health services pending his full recovery at which time he would return to his pre-injury duties. He contended that the Respondent did not provide him with work as a Security Officer working 4 hours per day, 4 days per week, or work on suitable duties.
The Applicant said he was called into a meeting in January 2013 with Ms Miner and two representatives from a Rehabilitation provider, "I PAR" aimed at facilitating his "return to work" to pre-injury duties. He attended with a support person and was advised by Ms Miner that I PAR had significant experience in compiling return to work plans for security industry workers and therefore would assist in getting him back to work. He contended that following attendance at numerous meetings, he was advised by I PAR representatives words to the effect, "… my employer does not want to accommodate me for suitable duties".
The Applicant said he received a WorkCover Certificate of Capacity from his GP in April 2013 certifying that he was fit for pre-injury duties without any restriction as to hours. He described it as "merely a progress certificate, not a final certificate".
The Respondent's insurer (Employers Mutual) arranged for the Applicant to be assessed by a consultant psychologist, Mr Simon Matthews, on 24 May 2013 in terms of his clinical diagnosis and work capacity. In his report dated 4 June 2013, which included interviews with the Applicant's treating medical practitioners, Mr Matthews certified the Applicant as fit to commence a graded return to work program once outstanding issues had been ironed out and to return to his pre-injury duties within 4-6 months.
One of those interviewed was Dr Shah, the Applicant's long term GP who indicated that the Applicant has "an absence of any significant symptoms". Mr Matthews noted in his report:
Mr Sharma's symptoms are not of adequate frequency and severity to warrant a clinical diagnosis as defined by the Diagnostic and Statistical Manual of mental Disorders Fourth Edition.
In relation to his work capacity, although Mr Mathews opined that the Applicant possessed "capacity for full working hours and duties" he recommended a graded return to work due to the Applicant's long absence from the workplace.
The Applicant stated that he attended a meeting at Carramar Community Centre on 12 June 2013 with Ms Natasha Hallifax, District Risk Manager, and Ms Gail Miner, Return to Work Coordinator, to discuss his return to work. He contended that Ms Hallifax told him that it would be difficult for him to return to work given that he has been away from the workplace for 5-6 years and offered to pay him an amount of money in return for his resignation. He said that he responded by advising that he preferred to return to work but, nevertheless, asked what was on offer. Ms Hallifax advised that she did not know but would find out from the Human Resources Department and advise him. He said he advised Ms Hallifax that the Respondent had not yet finalised his leave and back pay entitlements. The Applicant contended that Ms Hallifax told him at that meeting that "Health Services cannot sack you as you have a court order to return to work" and "CEO Health Services like her employee too much and cannot let them go". That version was denied by the Respondent.
The Applicant stated that on 24 June 2013, Ms Hallifax advised him during a telephone conversation that the Respondent was willing to pay him his annual and long service leave entitlements which amounted to approximately $45,000 gross in return for his resignation and execution of a Deed of Release. She confirmed that the offer was nothing more than his legal entitlements and urged him to accept it and resign. He said he declined the offer pointing out that he did not have to sign any deed of release to obtain his legal entitlements. That version was also denied by the Respondent.
The Applicant stated that Ms Hallifax invited him to attend a meeting with her and another representative of the Respondent on 25 June 2013 at the District Administration Building, Liverpool Eastern Campus. He said that he attended that meeting accompanied by a support person. Management was represented by Ms Natasha Hallifax, Risk Manager, and Stephen Bull, Senior Industrial Relations Officer. The parties differed as to what happened at that meeting.
The Applicant stated that Mr Bull apologised to him for the long delay in his back-pay and leave entitlements, advised that he was sure that there had been an error committed in calculating his entitlements and undertook to finalise the matter within a few weeks. He stated that pressure was applied on him to take his leave entitlements, another 2-3 weeks' pay in addition to his entitlements and resign because it had been so long since he worked that he would find it difficult to return. He said he refused the offer and once again asked Ms Hallifax about a return to work. The Applicant contended that Mr Bull interrupted the conversation, reminded him that he had a bad record at Fairfield Hospital and threatened him with disciplinary action over the CCTV footage incident in 2005 once he was back at work. He said he was called a "gold digger" and other derogatory names. The Applicant said he told them that he had a better chance to obtain employment elsewhere if he was still working for the Respondent, refused to resign and insisted on being returned to work. He contended that both of the Respondent's representatives told him "No, you have to go now". He said Mr Bull abruptly terminated the meeting and left the room. He said Ms Hallifax provided him with a return to work plan and a written offer of settlement which included 12 weeks' pay in addition to his leave entitlements on the proviso that he resigned his employment and executed a Deed of Release. He claimed that he was not provided with any instructions about "return to work".
The Respondent provided a different version of that meeting. It was contended that the Applicant was supplied with details of the calculation of his back-pay. His accrued entitlements, he was advised, were in the vicinity of $40,000 but they were still being clarified. He was advised that, as his workers' compensation payments would be ceasing shortly, his options were to either return to work or resign. A settlement offer of an additional 12 weeks' pay was offered if he chose the latter option. It was contended that the Applicant became agitated, claimed that the offer was inadequate and accused the Respondent of harassing him. The Applicant was given a return to work plan and a written settlement offer in the event he elected to resign his employment.
The Respondent arranged for Ms Luisa Nobrega, Payroll Manager, to conduct a thorough review of the Applicant's leave accruals in response to the Applicant's continuous complaints about errors. Ms Nobrega calculated his annual and Long Service Leave accruals as equating to $46,763.08 on termination.
The Applicant stated that further attempts were made to convince him to accept a settlement and resign. He said he received a call from Mr Arnold Tammekand, General Manager, Fairfield Hospital, on Thursday, 4 July 2013 to discuss the offer of 25 June. In response to the rejection of the offer on the basis that the quantum was not enough, the Applicant wanted to return to work and refused to resign, Mr Tammekand allegedly asked words to the effect "How much do you want to go?" to which he said he disgustedly replied "$100,000.00". Mr Tammekand allegedly undertook to see what he could do and hung up.
Mr Tammekand, not surprisingly, had a different recollection of that conversation. He said he called the Applicant at about 9.30 am on 4 July 2013 to discuss a return to work. The Applicant allegedly refused to return to work the following Monday complaining that he was being threatened and would prefer to pursue legal proceedings. He allegedly added that the offer made to him was inadequate and that he was prepared to settle for $100,000 in addition to his accrued entitlements. Mr Tammekand stated that he advised the Applicant that he would correspond with him in writing in relation to his return to work and his leave entitlements.
Later that day, 4 July 2013, Mr Tammekand forwarded correspondence to the Applicant:
Advising of his accrued entitlements, as requested by the Applicant (820.30 days annual leave and 105.5 days long service leave totalling $46,763.08 plus 376 hours sick leave;
Repeating three previous offers of an additional payment equivalent to 12 weeks' pay ($10,221.61) which was open for acceptance until 6 am on 8 July 2013 taxed as an eligible termination payment in consideration of the fact that he had been out of the workforce for almost 5 years;
Advising that acceptance of the offer was subject to the execution of a Deed of Release;
Directing him, if the offer was rejected, to attend a meeting with him at Fairfield Hospital at 6 am on 8 July 2013 and then proceed on to shift;
Advising that the letter was a written directive to return to work as a permanent full-time Security Officer working a rotating shift work roster at Fairfield Hospital on the basis of 3 x 12-hour shifts from 6 am to 6 pm on 8, 9 and 10 July 2013; and
Seeking a response to the offer by 4 pm on 5 July 2013.
The Applicant said he was advised that disciplinary action would commence upon his return to work. That was not evidenced by anything stated in the letter.
The Applicant pointed out that the direction in relation to the shifts was contrary to the recommendations of the psychologist appointed by the Respondent's insurer. He emailed the Respondent at 12.15 pm on 8 July 2013 advising that he would not attend work as the direction was contrary to medical advice regarding a graduated return to work program. The Applicant went on to point out that unless the instructions of his health professionals are followed, "I am not going to follow anyone's instructions".
Mr Tammekand, by email at 4.30 pm later that day, formally directed him to attend a meeting with him, Gail Miner (his return to work co-ordinator) and Paul Miles (Director Corporate Services, Fairfield Hospital) on 9 July 2013 to "finalise details of your graduated return to work at Fairfield Hospital". The email noted that the Applicant will be required to work a 6-hour shift from midday 9 July 2013.
The Applicant's email response, at 11 pm, advised that he was "not feeling well after your threats … I will not be able to work." He advised that he would be consulting his treating doctors about returning to work and asked for arrangements to be made with a rehabilitation provider to facilitate his return.
The Applicant said he contacted the CEO of the Hospital on the same day to complain about the treatment he was receiving but the latter was too busy to speak to him.
The Applicant consulted his psychiatrist because, he said, he started to feel anxious and threatened. Dr Sharah issued a medical certificate stating that the Applicant was unfit for work from 11 July 2013 to 11 August 2013 as he was suffering from "illness".
Dr Alex Sharah wrote to the Applicant's treating doctor on 11 July 2013 expressing very derogatory views of the Respondent based on what he had been advised by the Applicant.
The Applicant stated that, in the interim, he continued to pursue his leave entitlements and other pay issues which Mr Tammekand failed to address.
The Applicant received a telephone call on 17 July 2013 from Mr Graeme Loy, Director Operations, who informed him that he had been instructed by the CEO to call him and find out what he wanted. The Applicant said he complained about the treatment he was receiving from the General Manager, Fairfield Hospital regarding his return to work. On 8 August 2013, Mr Loy emailed him to advise that the Area Health Service was unable to assist him with his concerns.
The Respondent contended that the Applicant became agitated during a case conference on 17 July 2013 at the surgery of his GP, Dr Shah, resulting in the meeting being terminated prematurely.
On 25 July 2013, Mr Tammekand forwarded to the Applicant a signed copy of a return to work plan involving a graduated return to work with conditions in accordance with the recommendation of Mr Matthews, Corporate Health. He also forwarded a recent roster for security guards at Fairfield Hospital. It demonstrated that the Applicant was rostered to commence his first shift on 13 August 2013 at 6 am. It was to be preceded by a meeting with Mr Tammekand at 6 am on 12 August 2013. The accompanying letter required the Applicant to sign and return the work plan by 5 pm on 5 August 2013 as "a sign of good faith on your part that you are genuinely seeking a return to work…". He was advised that if he failed to do so, then it would be assumed "that the employer/employee relationship has broken down to the extent that it is not repairable and may consider that your contract of employment is frustrated on that basis".
The Applicant emailed Mr Tammekand on 29 July 2013 advising that he was unfit for work and would return only if he received clearance from his treating doctors. He again indicated that he felt threatened by the correspondence he was receiving and raised the issue of his leave entitlements pointing out that Mr Matthews had suggested discussions with the Human Resources Manager to sort out that issue.
There was further email correspondence exchanged between the parties. The Respondent, on 1 August 2013, sought further information regarding his capacity to work and a response from the Applicant, on 2 August 2013, undertook that he would get the information from his doctor and, once again, asked for a meeting to be arranged with the Respondent's CEO and Human Resources Manager.
The Applicant did not sign and return the RTW plan due 5 August 2013 nor did he proffer an explanation for not doing so. The Respondent advised that the fact that the Applicant neither attended the meeting scheduled for 12 August 2013 nor proffered an explanation for his non-attendance led Mr Tammekand to decide not to provide the Applicant with future offers to return to work.
The Applicant said he obtained a medical certificate from Dr Sharah dated 9 August 2013 which he posted to the Respondent and which recommended that he work in "suitable duties" from 9 August 2013 to "whatever". For his part, Dr Sharah forwarded a response to the General Manager's questions direct to the Respondent by post on 12 August 2013 with a copy to the Applicant for his information.
The Applicant mailed an up to date report from his psychiatrist on or about 12 August 2013. On or about 30 August 2013, Mr Tammekand wrote to the Applicant asking him to show cause as to why a recommendation should not be made to the Chief Executive that his employment be terminated.
The Applicant's response, dated 6 September 2013, conceded that he had not complied with directions issued to him but asked for more time to show cause.
Mr Tammekand advised by email on 16 September 2013 that he would keep the Applicant informed as to the outcome of his show cause response.
The Applicant said he received a telephone call from Ms Barbara Chapman on 1 October 2013. She informed him that his employment was terminated and that he would receive a letter by post confirming it. The Respondent terminated the Applicant's employment by letter from Ms Amanda Larkin, CEO Area Health Services dated 16 September 2013 (but received as an attachment to an email from Joseph Pineda, HRM on 1 October 2013) effective from 1 October 2013. The Respondent explained that the delay was occasioned by the absence of a staff member on leave.
As a result of the views expressed by Mr Matthews and Dr Shah that the Applicant was fit for pre-injury duties, the insurers determined that workers' compensation payments would cease by October 2013 at the latest.
The Respondent pointed out that the Applicant remained unfit for his pre-injury duties as of May 2014 and as at January 2015.
The Applicant has not worked in his substantive position since 7 August 2007. He contended that his termination was harsh, unjust and unreasonable for the following reasons: firstly, he had shown a desire to return to work since 2010 when he was first put on suitable duties; secondly, he has been willing to work in accordance with the restrictions placed upon his return to work by his own doctor and by the psychologist appointed by the Respondent's insurer; and thirdly, his repeated refusal to resign his employment resulted in an unrealistic return to work plan being developed which was contrary to medical advice.
The Applicant contended that no payslip was provided to him with his termination payment. He said he checked the payments made to him against the offer made to him to resign and that indicated that his termination pay was incorrect. All his leave entitlements were still wrong.
The Applicant is seeking reinstatement to a Security Officer position at a hospital other than Fairfield Hospital OR re-employment at a location other than at Fairfield Hospital in a position for which he is suitably qualified (such as administrative officer - level 1 or clerk grade position) OR monetary compensation calculated at $890.90 per week x 6 months.
The Respondent contended that the Applicant failed to comply with a lawful and reasonable direction of 25 July 2013 to commence a graduated return to work in accordance with expert advice and therefore his termination was for a valid reason. It was submitted that the termination was therefore fair and not a matter where relief should be granted.
Conciliation attempts before the Commission as presently constituted on 15 November 2013 failed to resolve the claim. Directions were issued and the matter was set down for hearing before Stanton C initially on 18 - 20 February 2014 inclusive.
On 18 February 2014, the Applicant advised that he was unable to proceed with the hearing because he was feeling anxious. The hearing was adjourned to 6 and 7 May 2014.
No appearance was entered by, or on behalf of, the Applicant at commencement of the proceedings at 10 am on 6 May 2014. No message was received from, or on behalf of the Applicant, by Registry staff. Voice messages were left for the Applicant by Registry staff at 10.20 am to which no response was received. In view of the above, Stanton C dismissed the proceedings at 11 am pursuant to Rule 12.7 of the Uniform Civil Procedures Rules 2005 having formed the view that the Applicant had not prosecuted the proceedings with due despatch.
An appeal was filed by the Applicant on 27 May 2014. The Full Bench hearing held on 18 September 2014 (Sanjay Sharma and NSW Health o/b Sydney South West Local Health District IRC 827 of 2013) granted leave to appeal, upheld the appeal in the public interest, quashed the decision of Stanton C and remitted the matter to Tabbaa C for hearing of the s 84 claim.
The matter was heard on 25 and 26 February 2015 at which time the Applicant was self-represented and Mr A Britt of counsel appeared on behalf of the Respondent. The Applicant gave evidence on his own behalf and called evidence from Mr Ankush Kumar, a friend of his. Mr Britt called evidence from Ms Miner and Mr Tammekand.
[2]
Legislative Framework
The Commission is required to consider whether the Respondent has satisfied the onus of establishing the misconduct. If the Commission finds that it has, then it is required to consider whether the Applicant has established that the dismissal was harsh, unreasonable or unjust - in other words, unfair for the purposes of s 84 of the Act: Macleay Valley Health Service v Jeffree (1994) 58 IR 187 at p 192.
The Commission needs to consider the following in assessing whether a dismissal was unfair:
1. Whether the applicant was informed of a reason for the dismissal; and
2. Whether the reason for dismissal had a basis in fact; and
3. Whether the reason justified termination; and
4. Whether previous warnings were provided to the Applicant; and
5. Whether the Applicant was provided with an opportunity to make out a defence; and
6. Whether the termination is still harsh, unjust or unreasonable.
If the Commission determines that the dismissal was harsh, unreasonable or unjust, then it must go on to determine the appropriate remedy to be awarded in the following order - reinstatement, re-employment or compensation: Leeds and Northrup Pty Ltd v Hull (1992) 46 IR 11.
In determining whether a dismissal was "unfair", the Commission may, if appropriate, take into account those matters set out in Section 88 of Ch 2 Pt 6 of the Industrial Relations Act 1996 (the Act) which relevantly provides:
(a) whether a reason for the dismissal was given to the Applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and
(b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and
(c) whether a warning of unsatisfactory performance was given before the dismissal, and
(d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and
(e) whether or not the applicant requested reinstatement or re-employment with the employer, and
(f) such other matters as the Commission considers relevant.
The Commission is required to make "a positive and specific finding" on each of the words in the expression "harsh, unreasonable and unjust": Bankstown City Council v Paris (1999) 93 IR 209. A dismissal may be harsh but not unreasonable or unjust; unreasonable but not harsh or unjust, or unjust but not unreasonable or harsh. Any one or more of those three adjectives may be able to be applied to a particular termination of employment.
Section 48 of the Workplace Injury Management and Workers' Compensation Act 1998 provides as follows:
48 Return to work obligations of worker
(1) A worker who has current work capacity must, in co-operation with the employer or insurer, make reasonable efforts to return to work in suitable employment or pre-injury employment at the worker's place of employment or at another place of employment.
(2) For the purposes of this section, a worker is to be treated as making a reasonable effort to return to work in suitable employment or pre-injury employment during any reasonable period in which:
(a) the worker is waiting for the commencement of a workplace rehabilitation service that is required to be provided under an injury management plan for the worker, or
(b) the worker is waiting for a response to a request for suitable employment or pre-injury employment made by the worker and received by the employer, or
(c) if the employer's response is that suitable employment or pre- injury employment will be provided at some time, the worker is waiting for suitable employment or pre-injury employment to commence.
[3]
The Evidence
The Applicant obtained a Certificate of Capacity certifying him fit for pre-injury duties for "4 hrs x 4 days/week" on 6 June 2012 which was upgraded to a full pre-injury duties Certificate of Capacity on 1 November 2012. Upon receipt of this certificate, the Respondent sent a letter to the treating GP explaining that 12-hour shifts had been introduced and providing information relating to the role of a Security Officer. Dr Shah, as a result, issued a full pre-injury duties Certificate of Capacity but for "6 hr x 5 days/week". That limitation remained valid until a full pre-injury duties Certificate of Capacity was once again issued.
On 4 June 2013, Mr Matthews, Consultant Psychologist, issued his report on an assessment he undertook of the Applicant on 24 May 2013. He reported, under the heading "Injured Worker's account of current situation" that the Applicant's preference was to return to part-time work due to his increased level of responsibility in caring of his children undertaking either his pre-injury Security Officer role or alternatively an administrative role. He also articulated a further option - that he had considered seeking to be made redundant and "taking a payout".
Mr Matthews had interviewed Dr Shah during the preparation of that assessment. Dr Shah advised that the Applicant was not currently receiving any psychiatric or psychological treatment and that the Applicant was currently "well enough to return to work". Mr Matthews noted "Dr Shah indicated that he understood Mr Sharma's pre-injury role to be that of Security Officer and he noted that he is fit to take part in all aspects of this role".
Mr Matthews also interviewed Ms Gail Miner, Return to Work Coordinator, Fairfield Hospital who reported that in September 2010, the Applicant was issued with a Certificate assessing him as fit for suitable duties. However, as a result of him being overseas at the time and because of some workplace matters, a return to work was not undertaken until February 2011 when he was engaged on administrative tasks at Fairfield Community Health Centre for 4 hours per day 4 days per week. The Applicant reportedly refused to sign the Return to Work Plan stating that the work was "beneath me". She stated that following failed attempts to explain to the Applicant the process of undertaking suitable duties and steps towards upgrades in fitness, no further suitable duties were identified at the time by his own rehabilitation provider. She advised that further difficulties arose even in that relationship resulting in no further return to work attempts being made.
The Applicant agreed that he received a WorkCover Certificate of Capacity from his doctor on or after 10 February 2015. In that Certificate, the doctor did not certify the Applicant as fit for pre-injury duties. The Applicant denied any knowledge of that inclusion.
[4]
Submissions
The Applicant's submission may be summarised as follows:
1. The decision maker, Mr Tammekand, did not know how to devise, or participate in, a RTW plan. He made his decision to terminate, not on the basis of the medical reports, but on the advice he received from his staff.
2. While undertaking suitable duties, he was not given work that was compatible with his skills.
3. He was the type of person who stood up for his rights. He saw many General Managers, Human Resources Managers and Risk Managers come and go during his employment with the Respondent yet no one attempted to get him back to work. When he was not fit for work, everyone was quiet but when he was fit to return to work, money was offered to him to resign. He considered it to be harassment when the offer was made and rejected more than twice, particularly when the letter from the General Manager, Mr Tammekand, dated 4 July, threatened that if he elected to return to work that disciplinary action would be taken against him. The threat was demonstrative of the mindset of the General Manager and was not conducive towards getting him back to work.
4. His doctors were made aware of the threats and they agreed with him that, in view of his long absence from work, a graduated return to work was essential.
5. He is an honest person and if he were to seek alternative employment, he would have to respond truthfully to questions such as why he left his previous employment with Fairfield Hospital, why he had been on workers' compensation, and why would another employer engage him on suitable duties when his existing employer refused to do so? He refused to listen to advice from friends to tell lies in his job applications.
6. He was willing to seek alternative employment with another employer provided he was returned to work on suitable duties anywhere within the LHD in the interim.
7. He has been given custody of his children and he was not comfortable knowing that his children were seeing him sitting at home depressed all of the time. He started experiencing insomnia.
8. He admitted that he did think long and hard about the monetary offer made by the Respondent but considered that it would not last more than seven or eight months given the bills he had to pay.
9. He was prepared to undertake any suitable duties provided to him in security. He was aware of two security guards who had been hurt on duty and accommodated with suitable duties for a few months until they resumed full duties.
10. The Respondent failed, over a period of seven years, to calculate his back-pay correctly. It was calculated on the basis of day shift, Monday to Friday, when he had been working a seven day rotating roster, evening shift, night shift, ADO's, Public holidays, and so on.
11. The insurance company failed to heed his continued requests for re-training. He has only ever undertaken security work in Australia and private security work did not offer any prospect of long-term employment given the competitive nature of the industry.
12. He did not want to attend a meeting with management because he was concerned about being set up and accused of punching someone. He admitted that he had taken Mr Kumar with him as a support person in the past and his request for a postponement of the meeting to another date to suit Mr Kumar, had been acceded to by Ms Miner. Nevertheless, he did not feel that he could ask anyone, including his own children, to attend a meeting with him at 6 am. He conceded that he had not requested a change of time.
13. His repeated requests to speak directly to the Chief Executive Officer had been ignored.
The Applicant was seeking reinstatement to Fairfield Hospital. Alternatively, given that a lot of people within that hospital have "their daggers out", he was seeking re-employment anywhere within the LHD. If reinstatement or re-employment are not viable, then he is seeking maximum compensation calculated on the basis of $890.90 per week.
The Respondent submitted that it was a relatively simple case in that most of the relevant facts concerning the Applicant deliberately and knowingly failing to abide by directions for a considerable period of time was evidenced by correspondence tendered in the proceedings. It was pointed out that the Applicant had failed in meeting his obligation to make reasonable efforts to return to work in suitable employment or pre-injury employment at his place of employment or at another place of employment.
The Respondent also submitted that the Applicant's open defiance left it with no choice but to take disciplinary action by terminating his employment for misconduct effective 1 October 2013. On that basis, it conceded that it bore the onus of establishing the misconduct and submitted that it had met that onus. The onus, therefore, reverts to the Applicant to prove that the dismissal was unfair.
The Respondent noted that the Applicant's submissions were telling in that he accepted no ownership at all for his termination and implied that the whole problem was with others. The evidence reveals that a large measure of the problem rests on his shoulders.
The Applicant's submission regarding his desire to return to work to set an example for his children was entirely inconsistent with his conduct. Firstly, he ignored multiple letters and directions since 2007 to "drag him screaming back to work". Secondly, he declined the option, in 2011, of a suitable duties position and refused to sign a RTW program. He wanted the ability to determine what the position was, what duties he would perform and even who he would report to. Thirdly, anyone as desperate to return to work as he described, would have attended at 6 am or before "with bells on". Not only did he not show up, he did not provide Mr Tammekand with notice or effective notice that he would not be attending. Fourthly, he gave lame reasons for not attending - he did not have a uniform or a support person. It was pointed out that he needed to attend work in order for a uniform to be provided to him. In addition, on his own admission, he did not seek to alter the time of the meeting to ensure that he had a support person in attendance. It was noted that those defences were not referred to in the Applicant's response to the Show Cause letter. Instead, the Applicant referred to not receiving the letter by email when he conceded that he received a copy by registered post. He also referred to the medical certificate from Dr Sharah which certified him as fit for suitable duties from 9 August 2013. It was contended that the certificate provided no defence whatsoever to the decision by the Applicant not to attend the meeting.
The Respondent relied on the letter to the doctor dated 31 July and the medical certificate dated 12 August in which his doctor replied:
Is Mr Sanjay fit for his duties?
I've been seeing Mr Sanjay Sharma for years. I have noted the situation that has existed for him and for you and the problem he is having with his employment. However, he has manifested a desire to return to work and from what I hear he has been curtailed in his efforts to obtain his former or other positions at the hospital.
Alternate duties?
I don't see any physical or psychological restrictions that need to be placed upon him or taken into account. It's my assessment of him that if he was to be returned to work in an accepting environment he would do very well.
Question 3
It is probably in the best interests of Mr Sharma to return to work on a gradual basis, considering that he hasn't been given work for some time.
Question 4
…. I see no restriction on his abilities and performance in the future.
It was pointed out that it was not correct that the Applicant was curtailed in his efforts to obtain his former or other positions at the hospital. It was also pointed out that the response to Question 3 was certainly not a diagnosis.
The Respondent proposed, in July/August 2013, that the Applicant meet with senior management, then commence work on a gradual roster, undergo reviews and then resume full-time work. The Applicant failed, for reasons still unknown, to grasp that opportunity.
The Respondent pointed out that the history of the applicant's employment, as it has been unfolded from the history, paints a picture of a person who was not keen to return to work.
The Respondent pointed out that the Applicant's substantive position was as a security guard - a position of trust. One of the inherent criteria for the position is the possession of "negotiation skills and conflict resolution skills". The Respondent concluded, following a lengthy history of tolerating his outbursts and disobedience, that he did not possess that inherent skill and therefore posed a risk both to himself and others as he could not control himself and could not resolve conflict he had with others in the workplace.
The Respondent also pointed out that the Applicant had been certified by his long standing general practitioner, who was aware of all his issues and history, as fit for pre-injury duties for over 12 months prior to his termination. That certification had been supported by more recent independent expert assessments.
The Respondent relied on the following: firstly, the Applicant's lengthy and difficult employment history with the Respondent; secondly, the Applicant's failure to follow direction; thirdly, the Applicant's arguments with co-workers and supervisors which, on at least one occasion, resulted in him being physically violent towards another worker; fourthly, the numerous failed efforts to re-integrate him into the workplace after his absences; fifthly, the Applicant's failure to obey a direction to return the work; sixthly, the Applicant's repeated uncooperative and disobedient conduct undermined the necessary mutual trust and confidence required to sustain the employment relationship; seventhly, the response provided by the Applicant to the Show Cause letter did not give the Respondent any confidence that he would comply with reasonable and lawful directions in the future; and eigthly, the dismissal was procedurally fair.
In relation to the underpayment of wages issue, the Respondent pointed out that the Applicant never provided any particulars of that alleged underpayment. Whilst the Respondent does not have to respond to any underpayment of wages issue in these proceedings, it was still willing to review any alleged underpayment so long as it is particularised.
It was pointed out that an offer was made, and accepted, in a private conference before Bishop C on 3 April 2007 to settle for the sum of $25,000, subject to taxation deductions.
The Respondent concluded that there was no basis for the Applicant's claim and it ought to be rejected. If the Commission was against the Respondent on that, then it was submitted that reinstatement or re-employment are not practicable given the following:
1. The Applicant's demeanour in the witness box and throughout the hearing;
2. The matters raised in the Procare report;
3. It would be unsafe not only for the Applicant but for the employees and clients of the Respondent to return him to employment given:
1. The Applicant's total lack of confidence in the Respondent; and
2. The Applicant's belief that the Department of Health is corrupt and has ruined his life.
The only order available to the Commission is one of monetary compensation but even that is problematic as there is no evidence before the Commission that the Applicant has suffered any loss. He has continued to receive workers' compensation payments and he had not made any attempts during the first 12 months to mitigate his loss.
The Commission was invited to infer that the documents the Applicant absolutely refused to produce in response to the Notice to Produce would have been prejudicial to his position in relation to the post-termination limb of the case.
The Respondent submitted that the issue of costs should be considered following the decision in this matter.
[5]
Submissions on credit
The Respondent urged the Commission to make adverse findings as to the Applicant's credit based on an independent assessment of the following - the plausibility of his evidence; the honesty and reliability of his evidence as discerned from the manner in which he gave evidence; whether his evidence contained fabrications, misrepresentations or contradictions; whether any inconsistencies in his evidence have been honestly explained or whether his evidence was embellished; and, finally, whether any explanations provided in relation to contradictions in his evidence have been explained adequately.
It was noted that much of his evidence, particularly during cross-examination, was clearly contrary to the documentary evidence, untruthful on multiple occasions and exaggerated. In addition, he attempted to disparage his colleagues.
On the Respondent's assessment of the above, the Applicant's tone of voice and demeanour while giving evidence was arrogant and patronising. He attempted to make submissions, to avoid answering the questions and to attack the questions. He constantly could not recall matters in cross-examination which he had addressed in his own witness statement.
In addition, the Applicant's fabrications in his own evidence were manifest, particularly when he asserted that medical certificates he was relying on for his non-attendance at work had been omitted from his evidence or that the advice from his doctors was oral.
Inconsistencies in his evidence were laid at the feet of his solicitors and/or Mr Grace who, the Applicant contended, were not acting in accord with his instructions.
Even where the Applicant was confronted with plain contradictions, he failed to make any concessions or accept any blame.
It was contended that the Applicant exaggerated his explanations whilst portraying himself as the victim.
It was also contended that the Applicant's evidence in these proceedings was clearly inconsistent in some respects - firstly, it was inconsistent with Exhibit B2 when responding to a question from the Commission in relation to Exhibit B1 and, secondly, with his submission to the Full Bench in his appeal regarding a job interview in May 2014.
In conclusion, it was noted that the Respondent's witnesses gave their evidence openly and without arrogance or contempt albeit they were affected by the usual human frailties. It was noted that the Applicant never suggested that they had told any untruths.
The Applicant rejected the submission that he lacked common sense, and knowledge of human behaviour. He also rejected that his evidence and that of his witness were not corroborated.
The Applicant agreed that, at times, he had difficulty understanding Counsel's questions put to him and provided the following reasons:
The relevance of the question;
Time had diminished his memory of details of the incident and he was relying solely on memory in responding to questions about incidents from 8 years' ago;
He had been suffering from depression, anxiety and insomnia for a lengthy period of time and had not fully recovered; and
The dealings he had with his legal representatives and the Area Health Services representatives in 2007 were not in contention.
He was not allowed to check the facts from the Respondent's documents prior to responding in cross-examination, particularly in relation of Exhibits B1 and B2.
He does not have a legal professional background.
He answered all questions to the best of his knowledge, understanding and truthfully. He struggled to respond to distinguish between questions when asked simultaneously.
Any contradictions with his witness were regrettable as the Applicant was not aware of the facts and he had presented his case to the best of his knowledge and honesty. His contended that his integrity and standing in the community were beyond reproach.
The Applicant could not comprehend why he was being cross-examined on issues already proven before the Commission or not investigated by the Commission in previous matters. He believed that Counsel for the Respondent was disgruntled because he had been unsuccessful in the appeal before the Full Bench and took the opportunity to have another swipe at him.
The Applicant contended that Counsel for the Respondent was very unprofessional and unethical. He had harassed, intimated, belittled, humiliated and threatened him, made rude and uncalled for comments, shouted, used a threatening tone, stared at him while addressing the Commission and gestured at him during cross-examination. Counsel was visibly upset when he did not get the answers he was seeking from him. He contended that Counsel was in breach of parags 57 (a) and 60 (c) of the NSW Barristers' rules (January 2014).
The Applicant contended that the questions in cross-examination were in regards to the contents of the Respondent's witness statements to which he had no access whilst in the witness box.
The Applicant conceded that he had failed to attach some evidence to his statement, including medical certificates referring to the fact that the matter was first listed in February 2014 (sic).
The Applicant conceded that he had legal representation and assistance during the preparation and submission of his first statement and during exchange of documentation between the parties.
The Applicant could not fathom how the Respondent can recall a verbal instruction given to him during a verbal discussion with Mr Grace in 2007. He had not brought up the subject of Mr Grace in his statement and only recalled Mr Grace when he saw the name in the Respondent's documents.
The Applicant denied that he had portrayed himself as the "victim" even though he was a victim of bullying and harassment because he was being honest and upfront in his dealings with the Respondent and because he refused to be forced into accepting what he did not do or say.
The Applicant wondered whether the Respondent was questioning the capability of the Full Bench of the Commission pointing out that the issue of job interview was never the subject of questioning by either the Respondent or the Full Bench.
The Applicant complained about Counsel's unethical and unprofessional conduct contending that he had assisted the Respondent's witnesses in the following way:
1. He coughed out loud when the Applicant asked difficult questions of his witnesses;
2. He made hand gestures to his witnesses who continually looked towards him when responding to the Applicant's questions. He reminded the Commission that he, on numerous occasions, directed the witnesses to look at him when responding to his questions; and
3. Constant interruptions from Counsel during his cross-examination both to make objections even when the Applicant had not asked a question and when the witness was about to respond to a question.
Two different responses were provided by two of the Respondent's witnesses regarding who had drafted the "return to work" plan which they both signed.
Finally, the Respondent's witnesses were evasive in their responses to questions on matters set out in their statements. They either responded "I don't know" or "It was not my job".
The Commission cannot accept that the Respondent's witnesses were evasive in their responses. They answered the questions to the best of their ability given the nature of the cross-examination. I accept that the Applicant has no legal background. It appears in the transcript that Mr Britt made allowances for that too but had to object in instances when more than one question was put at once to the witness, or the questions were irrelevant or misleading or had already been put and answered. No criticism is made of the Applicant as such questions are to be expected from lay persons.
Exhibit B1 was the Notice to Produce and Exhibit B2 was the Applicant's email to Ms Alice Paul dated 18 February, 2015 (7 days before the hearing) during which he refused to provide copies of his bank statements or credit card statements on the basis of relevance. Those matters had been the subject of 9 pages of debate by the representatives from the bar table and had been the subject of correspondence between the parties prior to the commencement of the proceedings. The Applicant cannot argue that he was not allowed to check the facts in those documents or that time had diminished his memory of those details.
Counsel for the Respondent had been caught in a severe rainstorm on his way to the first day of the proceedings and had been thoroughly drenched. It is on record that the Commission, as currently constituted, turned the air-conditioning off and allowed Counsel to remove his jacket so as "not to catch his death of cold". On the second day of the hearing, Mr Britt was struggling with a cold and cough. The Applicant was aware of that fact. It is incorrect to say that Mr Britt was coughing deliberately when he asked the Respondent's witnesses difficult questions.
The Commission did not observe Mr Britt, at any time, gesturing towards the Respondent's witnesses. At one point, the Applicant asked Mr Tammekand not to look at Mr Britt [line 12 T26/02/15]. Mr Tammekand pointed out that he had been looking at his statement and could not even see Mr Britt. The Commissioner was observing the witness and there was no untoward behaviour between the witness and his Counsel.
During cross-examination, the Applicant confirmed that he prepared the s 84 application and provided it to his Solicitors at the time to read and edit:
As I explained before, I wrote that statement. I give it to the solicitors. She asked me few question, like, "What do you want to put here? What do you want to put here?" I correct it and then I send it back.
He gave evidence that he proofed the final version of the application. He was shown a copy of that s 84 application and taken to page 8 where, in the Reasons for Application, it was stated:
In approximately June 2013 the applicant received a WorkCover certificate of capacity from his general practitioner stating that he was fit for pre-injury duties.
From my observation, the Applicant was very evasive, deliberately exasperating and unhelpful during cross-examination on that point:
Q. Do you recall saying that?
A. Which - where is it?
Q. Just answer my question. Do you recall saying that sir?
A. No. I didn't.
Q. You don't recall saying that?
A. It's not there.
Q. I'm asking you a question, sir. Do you recall saying that?
A. Saying what?
Q. That:
"The applicant received a Workcover Certificate of capacity from his general practitioner stating that he was fit for pre-injury duties without a restriction regarding the hours"?
A. Who did I say this thing to?
Q. You have no recollection of that being in this document, sir?
A. I have - as I'm saying, I'm not depending on this document because this was prepared by some solicitor and she's not working with me anymore.
The Applicant refused to respond to any question unless a document was put in front of him that he could consider first, even when those documents were his documents and even when the documents were already in evidence and to which he had received access prior to the proceedings. Even when documents were provided to him, he was evasive in his responses and, in my view, deliberately exasperating. For example, he had received a WorkCover Certificate of Capacity from his doctor on or after 10 February 2015 in which he was certified as fit for pre-injury duties. The Applicant denied any knowledge of that inclusion:
Q. Well you've seen many of these documents sir …
A. I did. I did, yes ..
Q. .. and you know that's one of the questions?
A. I have no idea.
Q. That's your answer on oath?
A. I have, I have ..
Q. You have no - no sir just let me answer (as said) the question sir, your answer on oath ..
A. Yes, and I ..
Q. … sorry sir, let me ask the question.
Commissioner
Q. Listen to the question ..
A. Commissioner ..
Q. Listen to the question ..
A. I request you, Mr Britt don't have to lose his temper. I don't like that ..
Q. Mr Sharma ..
A. .. and I am ..
Q. .. Mr Sharma all right don't be exasperating and he will not lose his temper. Just answer his question.
A. I did...
Q. We will get through this a lot quicker and you will do yourself a lot of justice.
A. Okay.
Q. Listen to the question, answer the question to the best of your ability.
A. Yes.
Britt
Q. Your answer on oath that you don't know that the WorkCover New South Wales Certificate of Competency doesn't contain a reference to being fit for pre-injury duties, is that your position?
A. Yes.
Q. Notwithstanding providing these certificates for some seven years?
A. Yes.
Q. Notwithstanding the fact that you've attached a number of these types of certificates to your statement?
A. I think I did, yes, one or two.
Q. To the best of your recollection you've only attached one or two?
A. Yes.
Q. Well I want to put to you that your doctor didn't certify you on 10 February 2015 as being fit for pre-injury duties?
A. I haven't seen that, I can't say now.
Q. Well it's only two weeks ago sir, have you forgotten?
A. I don't know what I done last week?
Q. That's your evidence on oath, you don't know what you did last week?
A. Yes.
Q. But you ask the Commission to believe what you did in 2007. Eight, nine, ten, eleven, twelve?
A. That's in written form, that's why I'm asking Commission to take notice of that. I'm asking Commission to take my word for it. I'm asking Commission, which I wrote it down.
Mr Britt was forceful in his cross-examination and was loud when he had to talk over the Applicant who would not wait for Mr Britt to finish his question. I accept that the Applicant, given that he was unrepresented, would become defensive. Nevertheless Mr Britt did not lose his temper.
[6]
Consideration
I have assessed the claim on the evidence before the Commission and my observations of the demeanour of the witnesses during oral evidence.
It is noted that the Applicant's submissions traced the history of his employment back to the year 2003 when he acted in the role of union delegate in an effort to demonstrate that he was the victim of bullying and harassment as a result of his union activities.
The Applicant signed the Respondent's Code of Conduct on 25 May 2004. Clause 8 states:
Employees and visiting practitioners will not wilfully disobey or disregard lawful orders or requests given by their supervisor, department, divisional manager or a person with authority to make or give an order or request. Employees or visiting practitioners who disagree with the order or request can discuss the matter with the department manager or general managing director, but shall comply with the order or request until the outcome of the appeal has been decided.
I accept the Respondent's submission that also, as an employee, it was an implied duty of his contract of employment to obey the lawful and reasonable directions of his employer.
I also accept that a direction by the General Manager to attend a meeting to discuss a RTW program is a lawful and reasonable direction: Harvey v Department of Education and Training of New South Wales [2009] NSWIRComm 1076 at [45].
The Applicant failed to comply with 5 directions to attend for work. The Respondent was attempting to comply with the Commissioner's Orders. The Applicant neither complied nor provided any written explanation for his non-compliance. He was clearly in breach of the Commissioner's orders which he had successfully obtained. He made it clear that he did not intend to return to work until the issue of his back-pay had been resolved satisfactorily. That condition was clearly not contemplated in the Commissioner's orders. The Applicant's non-compliance with those lawful and reasonable directions was blatant and deliberate. The Respondent wrote to the Applicant on 16 March 2007 in which he was cautioned that any future absenteeism would be considered a failure to comply with a lawful and reasonable direction and "may result in disciplinary action which may include the termination of your employment". I am satisfied that the Applicant had been warned about the consequences of his refusal to comply with lawful and reasonable directions.
The Applicant was certified fit for pre-injury duties as a Security Guard at Fairfield Hospital on 5 June 2012 until the present. Four further attempts were made to get him back to work on a gradual basis given the length of his absence. Those attempts were unsuccessful. His work capacity was confirmed by an independent expert assessment. Mr Tammekand wrote to the Applicant on 26 August 2013 asking him to show cause why a recommendation should not be made to the Chief Executive that his employment be terminated. The correspondence traced the number of times and the nature of the directions with which the Applicant failed to comply (on 4 July, 8 July and two on 25 July 2013).
The Applicant responded on 6 September 2013 addressing each of the issues contained in the Show Cause letter. In my view, the Applicant was provided with an opportunity to make out a defence yet he did not include some of the matters he raised in these proceedings - such as, the fact that the meetings were set at 6 am. It is noted that if that was an issue at the time, the Applicant conceded that he had not made any attempts to seek to change the times suggested for the meetings.
The letter of termination dated 16 September 2013 clearly set out the grounds upon which the Respondent relied for terminating the Applicant's employment repeating the failure of the Applicant to comply with the directions of Mr Tammekand as stated immediately above.
There is no doubt, therefore, that the Applicant was informed of the reason for the dismissal - that is, his failure to comply with a number of lawful and reasonable directions.
I consider that the Respondent has satisfied the onus of establishing that the misconduct occurred.
Bishop C, on 30 November 2006, issued a decision reinstating the Applicant to his previous position and awarding back pay on certain conditions being met. Those conditions were confirmed by Boland J, then Vice-President, on 20 December 2006 and again by Wright J, then President, on 22 December 2006. The Applicant did not comply with the conditions laid down by Members of the Commission until 23 January 2007 when he provided a Statutory Declaration. However, that Declaration did not address the conditions - how long he had been overseas and his earnings during the period of his dismissal up to his reinstatement.
The Applicant was directed to return to work on 5, 13, 26 February, 6 March and a last chance on 12 March 2007 but he refused to do so until his back pay had been calculated to his satisfaction although he had still not provided the information required in the conditions in order for a proper calculation to be made.
The Applicant provided another Statutory Declaration on 16 February 2007 but, once again, it lacked clarity as to the income he had earned during his dismissal. He provided yet another Statutory Declaration on 28 February 2007.
He was paid $28,584.64 in back pay on 11 March 2007 but he disputed that as was his right and had the matter returned before Bishop C during which a conciliated settlement was achieved regarding the back pay on 3 April 2007.
The Applicant had access to advice from his union, the HSU. The Union withdrew in relation to the s 84 claim only as it had formed the view that the case had no reasonable chance of success. The Applicant made it clear throughout the proceedings that he had access to advice from his Solicitors. He could have returned to work while the back pay issue was being pursued by his Solicitors. He did not return to work until 3.5 months after the Commissioner's decision despite repeated directions from the Respondent to do so.
The Applicant complied with a direction to return to work on 19 March 2007 and worked some training shifts. However, he became involved in an altercation with another Security Guard which was investigated by management. He refused to accept a first and final warning in relation to that incident and ceased work on 6 August 2007 - the last day on which he worked as a Security Guard with the Respondent.
Following a successful workers' compensation claim, the Applicant returned to work on suitable duties in an administrative capacity upon being cleared to work 4 hours per day x 4 days a week. He was no longer offered administrative work as from 3 May 2011 as a result of his attendance record and his attitude towards the work which he considered to be below his capabilities and the fact that he walked out on 2 May 2011 dissatisfied with the work he was doing.
His Supervisor was convinced to give him another chance to undertake suitable duties. He was provided with a new RTW plan and advised that he would commence on 23 May 2011 for 2-3 months. He was cautioned on 1 June and again on 21 June 2011 that the work would be withdrawn if he did not accept it. The Applicant made his acceptance of the RTW plan conditional on two demands being met - one being a change in supervision which was not possible.
The evidence indicates that the Applicant made no positive attempts to achieve a return to work on suitable duties. Rather, the evidence in regards to the Applicant's conduct demonstrates that he put obstacles in the path of any proposal that would result in a return to work, in breach of his obligations pursuant to s 48 of the Workplace Injury Management and Workers Compensation Act 1998. I accept that the Applicant was seeking to "run his own race" to his eventual detriment.
There is no doubt, given the detailed history outlined above, that the reason for the Applicant's dismissal had a basis in fact.
[7]
Was the Dismissal Harsh, Unreasonable or Unjust?
It remains for the Commission to determine whether the dismissal was harsh, unreasonable or unjust. In Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 at 465, McHugh and Gummow JJ stated:
It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.
The Applicant, as has been indicated earlier, was guilty of the misconduct on which the Respondent acted and, on that basis, the dismissal cannot be held to be unjust.
The dismissal was not unreasonable, given the factual matrix detailed above.
Was the dismissal harsh, given its consequence for the personal and economic situation of the Applicant? The Commission notes the following:
1. The Applicant was in receipt of workers' compensation payments both prior to, and post, his dismissal;
2. The Applicant did not take any steps to mitigate his losses during the first 12 months following his dismissal;
3. The Applicant knowingly and blatantly refused to produce documents sought in the Notice to Produce that go directly to post termination earnings.
The Applicant was put on notice at the commencement of the proceedings as to the dangers his refusal posed to his case.
The Commission was invited by the Respondent to draw an inference that such documents, if produced, would have been prejudicial to the Applicant's position.
The Applicant had previously participated in s 84 proceedings before Bishop C and therefore the requirement to prove mitigation and the claim for monetary compensation was nothing new to him. As indicated earlier, he had received in those proceedings an order as to back pay subject to proof being provided to the Respondent as to the period of time he had spent overseas and also as to monies earned during the period after his dismissal and up to the date of his reinstatement. That order had resulted in over 4 months of disputation with the Applicant refusing to supply those details or refusing to supply the details in sufficient clarity to allow the Respondent to calculate his entitlements. He insisted on providing statutory declarations only.
The Applicant argued, over 9 pages of the transcript at the commencement of the proceedings, against providing the information insisting on conduct money if he had to produce the documents and offering, instead, to provide a statutory declaration stating that he had not worked. He stated that he received legal advice on the subject:
I don't have those documents and I'm not willing to produce. No matter if we have to finish the case here, we can finish here, but I'm not willing to produce because in my opinion, and I done research on this and I get legal advice from a person, he's a solicitor, and notice of produce he said, "it's up to you, you want to produce or you don't want to produce".
In the absence of any proof of personal or economic loss, the Commission is unable to make a finding that the dismissal was harsh.
The Applicant has not established that the dismissal was harsh, unreasonable or unjust.
[8]
Costs
The Respondent is seeking costs against the Applicant. Section 181 (2)(c) of the Act provides that the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair Dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious.
The settlement offers I am aware of and detailed above are those made to the Applicant prior to his dismissal and in order to achieve a parting of the ways. I am not aware of any offers made to settle the s 84 claim, the subject of these proceedings and therefore cannot grant costs with respect to one arm of the s 181 (2)(c).
In addition, the parties have not addressed the Commission in relation to the claim being frivolous and/or vexatious. The Respondent is at liberty to apply to have that matter dealt with separately if it is still pursuing costs in the matter.
[9]
Decision
Having regard to the provisions of Section 84 of the Industrial Relations Act 1996, I do not regard that the dismissal of Mr Sanjay Sharma was harsh, unreasonable or unjust. Matter No 137895 of 2016 (IRC 827 of 2013) is hereby dismissed.
Leave is reserved in relation to a claim for costs.
[10]
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Decision last updated: 05 May 2016