Ters v Secretary of the Ministry of Health in respect of South Western... [2022] NSWIRComm 1034 | Case summary

Consideration

The first contention of the respondent is that the applicant is unable to continue with her matter because she is no longer an employee or a prospective employee of the respondent. The respondent submitted that as subs 210(1) of the Act refers to employee or a prospective employee, the Commission has no jurisdiction to determine the applicant's victimisation claim.
The applicant is employed by the respondent. Subsection 116H(2) of the Health Services Act 1997 (NSW) (Health Services Act) provides: The Health Secretary is, for the purposes of any proceedings relating to a member of the NSW Health Service held before a competent tribunal having jurisdiction to deal with industrial matters, taken to be the employer of that member.
The Dictionary of the Health Services Act provides that the "Health Secretary means the Secretary of the Ministry of Health."
This was a matter raised with the respondent for the first time by the Commission at the hearing of the respondent's notice of motion. The respondent agreed that the respondent is the applicant's employer, however, it was argued that the management of the employee is with respective Local Health Districts, including warnings, discipline action, and promotions, which is delegated to the relevant Chief Executive Officer. It was also submitted that the respondent would not rely upon any disciplinary action against an employee in one Local Health District in the context of their employment in another. The exception given to this was in the circumstances of a termination of employment, as provided for by the respondent's Managing Misconduct Directive. On this basis the respondent sought to distinguish the circumstances of this case from those in Rahman v Health Secretary in respect of the Sydney Local Health District and the South West Sydney Local Health District [2021] NSWIRComm 1065, where conduct leading to the applicant's dismissal in one Local Health District was relied upon to terminate him in another. In that matter, Commissioner Sloan considered the nature of the applicant's employment with the respondent in circumstances directly analogous to the matter at hand, stating (at [115]-[117]): "115. As outlined above, Mr Rahman's dismissal from the SWSLHD was largely the consequence of the application of the Managing Misconduct Policy. The logic of that policy is apparent given that the SLHD and the SWSLHD are not separate employers. Mr Rahman was employed by the Crown in the NSW Health Service, whether working at Concord Hospital or Fairfield Hospital. His conduct at one cannot be artificially quarantined so as not to affect his service at the other. 116. Mr Rahman submitted: '168. The perfunctory termination of Mr Rahman's employment with the SWSLHD was wholly based upon the allegations of misconduct raised by the SLHD. By operation of internal policy, Mr Rahman's employment with the SWSLHD was, as a matter of course, terminated. It therefore follows that if the Commission is persuaded that the termination of Mr Rahman's employment by the SLHD was harsh, unreasonable or unjust, there must be a finding that he was unfairly dismissed from his employment with the SWSLHD.' 117. I accept these propositions. To my mind, though, there is a necessary corollary: a finding that Mr Rahman engaged in misconduct warranting the termination of his employment with the SLHD would support the termination of his employment with the SWSLHD. I find that is the case in these proceedings."
There was no evidence before the Commission with respect to the matters submitted by the respondent relating to the separate nature of the arrangements between Local Health Districts and in any event, it is unclear how this would change the fact that s 116H(2) provides that the Secretary of the Ministry of Health was, and remains the applicant's employer. I am unable to accept the respondent's argument that the respondent is not the applicant's employer and therefore is precluded from making a claim of victimisation pursuant to s 210 of the Act.
Although it is unnecessary to explore the respondent's submission on this point further, I note that I am of the view that even if the respondent was not the applicant's employer, I do not agree that this leads to the conclusion that she would have been precluded from making her victimisation claim. The purpose of Ch 5, Pt 1 of the Act is protective in nature. It provides a legislative scheme to ensure freedom from victimisation, albeit in the context of employment. It would be contrary to the purpose of the provisions if an applicant would be unable to access a cause of action and be denied an opportunity to pursue a claim because the employment relationship concluded prior to the final resolution of the proceedings.
Support for this interpretation can be found in the text of the legislation, where subs 213(2)(a) of the Act provides that the Commission may, by way of enforcement, order the re-instatement or re-employment of an employee.
The reference in s 210 to employee or prospective employee is clearly a reference to the status of the person at the time the alleged act of victimisation occurred and has no bearing upon the applicant's standing to continue to pursue the claim after the employment relationship has ceased.
The respondent also argued that the Commission does not have jurisdiction to order the relief she seeks in the matter pursuant to s 213 of the Act.
In the Application for Relief from Victimisation filed by the applicant on 10 June 2021 (Victimisation Application), the applicant seeks the following order: "Pursuant to section 213 of the Industrial Relations Act 1996 (NSW), the Respondent is to withdraw the written warning recorded in the letter of Scott McGrath, Director Cursing and Midwifery Services Liverpool hospital dated 20 May 2021 (received on 28 May 2021)."
There is no other relief sought in the Victimisation Application. The written warning is contained in Annexure K to the Victimisation Application. The written warning relevantly provides: "Dear Ms Ters, I refer to previous correspondence, dated 26 February 2021, outlining the proposed findings of the investigation into allegations that you used physical restraints to restrain a patient without a medical order, demonstrated behaviour and communication in breach of the NSW Health Code of Conduct and the proposed disciplinary action to issue you with a formal warning. In the correspondence of 26 February 2021 you were provided with the opportunity to respond to the proposed finding/s and proposed disciplinary action. I have received and considered the response of 16 April 2021 by your representation Ms Justin Le Blond for Kennedy's law. I note that you have raised separate concerns in about the behaviour of others, and for my consideration in making a final decision. Please be aware, if you would like to progress your concerns about other employees and their behaviour, you will need to make a separate written complaint and this will be managed separately to the concerns that were raised about your clinical practice and behaviour. I have considered your response together with all of the available information and evidence. I have also given careful consideration to the seriousness of the substantiated misconduct and have balanced this against your response and the submissions made in your response. I am satisfied that the allegations have been fully substantiated and after careful consideration of the circumstances, I have decided to issue you with a warning, due to serious breaches of the NSW Health CORE Values and NSW Health Policy Directive PD2015_049 NSW Health Code of Conduct, specifically sections: • 4.1 Promote a positive work environment • 4.3 Acting professionally and ethically • 4.3.9 Comply with all applicable NSW Health policies and procedures, and those of the NSW Health agency where they work, specifically policies: Liverpool Hospital Policy Compliance procedure LH_PCP2017P1.09 Therapeutic Restraint of a Patient • The use of therapeutic physical restraint must be prescribed and documented by a medical officer. • Physical restraints will be monitored frequently and assessed for their restraint requirements. This will include safely releasing the restraint and checking skin to ensure no harm is caused by the restraint and reapplying if required. • Restraint use will be limited to situations in which there is an imminent risk of a patient physically harming him/herself, staff, or others and where non-physical intervention would not be effective/appropriate. NSW Health Policy Directive PD2020_004 Seclusion and Restraint in NSW Health Facilities • NSW Health staff must adhere to the legal framework authorising the use of seclusion and restraint. • To ensure a robust clinical review, all use of seclusion and restraint must be ratified by a senior clinician as soon as possible, but not more than one hour after the practice was initiated. The outcome of the review will be to cease the practice or to ratify its continuation. The review must be documented in the Health Care Record. • NSW Health requires high levels of clinical care, monitoring and reporting when seclusion and restraint are used. • NSW Health clinical staff must continuously observe and, where possible, engage with the person for the first hour. After the first hour, NSW Health staff must clinically observe a person in restraint at least every 15 minutes. You are also required to familiarise yourself with the NSW Health Code of Conduct, Liverpool Hospital Policy Compliance procedure LH_PCP2017P1.09 Therapeutic Restraint of a Patient and NSW Health Policy Directive PD2020_004 Seclusion and Restraint in NSW Health Facilities. Please be advised that I expect immediate improvement in your behaviour on your return to work following your maternity leave. This will be monitored by Ms Michelle Dowd, Nurse Manager Intensive Care. I note that you are currently on Maternity leave. Upon your return to work in the Intensive Care Unit, Liverpool Hospital, you will be required to work dayshift for a period of four (4) weeks in order to undertake a period of supervision and training. During this period you are required to complete the following online training modules: ▫ Clinical Documentation - Getting it Right ▫ Clinical Handover ▫ Continuity of Medication Management ▫ Delirium Stage 1 ▫ High Risk Medication Pathway ▫ Inter-professional Communication ▫ Communicating During Challenging Situations ▫ Effective Workplace Conversations As a result of this decision, and following completion of the training direction, I will then seek approval to have your name removed from the NSW Health Service Check Register in accordance with NSW Health Policy-Directive PD2013_036 Service Check Register for NSW Health."
The first issue that arises for consideration is whether subs 213(2) of the Act provides power to the Commission to make remedial orders that are exhaustive. There is no Full Bench authority on this question.
The principles that apply to interpreting legislation have been well traversed. The process begins with a textual analysis of the words of the relevant provision being interpreted - that is, a consideration of the ordinary and grammatical meaning of the words of the text. However, that initial step may involve the construction of the words of a provision in question when read in the context of the statute as a whole: Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at [26] and [88].
The determination of the purpose of a statute or a particular statutory provision may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, if appropriate, reference to extrinsic materials. Section 35 of the Interpretation Act 1987 (NSW) authorises the use of extrinsic material, such as explanatory memoranda and second reading speeches, in circumstances where it is necessary to confirm that the meaning of the provision is the ordinary meaning conveyed by its text.
Ordinarily, the legal meaning of a particular provision in a statute will correspond with the grammatical meaning, but this is not always so: Certain Lloyd's Underwriters v Cross at [25]. The interpretation best open on the text which achieves the purpose or object of the statute is to be preferred to each other interpretation (even if the purpose or object is not expressly stated in the text). This well settled approach to statutory construction, that it is the purpose of the legislation which must be identified and promoted when interpreting the operation of a statute, is reflected in s 33 of the Interpretation Act.
The goal in interpreting a statute is to give effect to the intention of the Parliament. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 the High Court observed (at 408) that the modern approach to statutory interpretation: 1. insists that the "context" be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise; and 2. uses "context" in its widest sense to include such things as the existing state of the law and the mischief which one may discern the statute was intended to remedy.
In the context of the provisions under the Act relating to freedom from victimisation, the principles of beneficial legislative interpretation apply: Bull v Attorney General (NSW) (1913) 17 CLR 370 and Cooper v Human Rights and Equal Opportunity Commission (1999) 93 FCR 1076.
An analysis of the legislation starts with a consideration of the words of the legislation itself, read in context.
The Commission does not possess any inherent powers to make substantive orders to remedy conduct in breach of Ch 5, Pt 1 of the Act. Any power to make orders in respect of Ch 5, Pt 1 of the Act must be derived from the empowering legislation.
Subsection 213(2) must be read in context and therefore in conjunction with subs 213(1). Subs 213(1) provides that the Commission is empowered to, "by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part." Read alone, subs 213(1) could be taken to confer a broad discretion upon the Commission to make "any order it sees fit", confined only by the proper exercise of discretion, and that any such order be of a type that "enforces" the provision(s) found to have been breached in s 210 of the Act.
Subsection 213(2) provides that the "Commission may, in particular, for that purpose do any one or more of the following", before cataloguing a list of species of remedies. The words in subs 213(2) "for that purpose" clearly connects the list of types of orders the Commission may make to the power conferred upon the Commission by subs 213(1).
If the Commission's powers were not confined to categories in subs 213(2), that subsection would be superfluous and have no work to do. It would operate merely as a list of examples of the types of orders that might be made. This would be a peculiar approach to statutory drafting.
Had the legislature intended to convey a general discretion upon the Commission to make "any orders it sees fit" in the context of Ch 5, Pt 1, that could have been stated unambiguously. Moreover, the language of subs 213(2) could similarly have been framed to make clear that the list of types of orders were non-exhaustive.
Although in my view, the legislation is not ambiguous, I note that further support for the respondent's interpretation of subs 213(2) can be found in the Second Reading Speech on the introduction of the Act, where the then Attorney General and Minister for Industrial Relations, the Honourable Jeffery William Shaw said (p 3854): "The new provisions alter the standard of proof required to establish victimisation to the civil standard and empower the commission to award a broad range of remedies designed to restore the employee to a position equivalent to that he or she would be in if the victimisation had not occurred." (emphasis added)
The reference to the "broad range of remedies designed to restore the employee" clearly identifies that the legislature intended that the Commission be empowered to make those orders contained in subs 213(2).
Support for this interpretation can be found in the decision of Commissioner Newall in Public Service Association of NSW (o/b Morawsky) v Department of Justice [2017] NSWIRComm 1059 (Morawsky). In Morawsky, the Commission refused to extend time within which to lodge an application for enforcement of provisions of s 210 of the Act. Relevantly, the Commissioner stated at [20]-[23]: "20. That leads to this. The significant discretionary question in this case is the question of hardship. In my view, the list of matters provided at subs 213(2) headed "Enforcement", is a comprehensive code. It is important to note that subs 213(1) provides this: 'The Commission may by order enforce the provisions of this part on the application of an industrial organisation.' 21. The power given to the Commission is to enforce the provisions of, particularly, s 210; certainly sections 209, 210, 211 and 212 in whole, but s.210 particularly, is not to 'grant relief' or to 'inquire into', it is to 'enforce'. That is why the steps which are set out in the sub-sub-sections to sub-section 213(2) must be seen as a comprehensive code of the Commission's relevant powers. The Commission is not at large, just to enquire about and say anything it likes about an application of this kind, it has certain enforcement powers and they are codified in sub-section 213(2) and they are no wider than that. 22. What the Commission has been asked to do in this case is to make an order that a reprimand letter, the letter which was given to Mr Morawksy on 22 May 2017, be removed from his personnel file. However one might read the provisions of subs 213(2), and I do not confine Mr Allen to his submission that the relevant subsection is subs. 213(2)(e), but rather look at all of the sub-sections, those sub-sections do not give the power to the Commission to do that which has been sought from the Commission. It is the one thing of substance that has been asked of the Commission, to order the department to remove this letter from Mr Morawsky's file. As I suggested at the directions hearing, I cannot see that it is able to be done under the powers granted under the Act. I understand the submission that a letter of this kind may bear on future events. I understand that perfectly well. But the letter does not articulate or constitute a threat to victimise Mr Morawsky. The ability to order an employer not to carry out a threat to victimise an employee simply does not give the Commission the power to direct the employer to change its records historically, to remove a document from a personnel file. 23. The hardship to Mr Morawsky, as Mr Allen put it, quite correctly, is to lose the chance to have his application heard. But what it is in truth, when one considers that the Commission simply could not give the relief that is sought, is to lose the chance to have his association run a case that it cannot win. That is no hardship. It is a hardship to the employer and more, a hardship to the long suffering taxpayer, to have a case run by a public authority before this tribunal that cannot give rise to the result the association seeks."
Although Commissioner Newall was brief in his analysis of subs 213(2) of the Act, I can see no error in his reasoning and conclusion that it codifies the types of orders the Commission is empowered to make.
The applicant referred the Commission to the decision of Commissioner Murphy in Silsbury v Health Secretary in respect of Western Sydney Local Health District [2021] NSWIRComm 1004 (Silsbury). In that decision, the Commission determined a strike out motion in respect of a victimisation application, where the respondent (applicant in the motion) similarly argued that subs 213(2) provides an exhaustive list of orders the Commission can make in Ch 5, Pt 1 proceedings. Ultimately, the Commissioner did not determine this issue, stating that the applicant's claim for relief by way of compensation in the nature of general damages "is novel and likely to face significant jurisdictional hurdles, I am unable to conclusively determine, at this stage of the proceedings, that such a claim is 'so obviously untenable that it cannot possibly succeed' or is 'manifestly groundless' or is 'so manifestly faulty that it does not admit of argument'": [52]. The Commissioner concluded that there was standing for the applicant to seek other relief she sought pursuant to subs 213(2) and he was therefore not persuaded to "take a scalpel to the applicant's Victimisation Application and excise what might be regarded as the weaker limb of the claim in circumstances where the stronger limb has survived the attempted emasculation of it by the respondent": [53]-[54].
Given the conclusion I have reached with respect to the Commission's power to make orders in these proceedings, it is necessary to consider whether the Commission is able to make the order for relief sought by the applicant pursuant to subs 213(2). As an alternative submission, the applicant argued that the order can be made pursuant to subs 213(2)(b), (e) and/or (g). There is no basis to argue that an order sought by the applicant to remove the written warning is an order that the employer, "promote or otherwise advance an employee in his or her employment": subs 213(2)(b). Furthermore, the order sought is clearly not a consequential order as it does not relate to any other order sought by the applicant: subs 213(2)(g).
At the hearing of the respondent's notice of motion, the applicant argued that the warning letter of 20 May 2021 constitutes an ongoing threat against the applicant and therefore the relief sought, namely the removal of the written warning, constituted an order pursuant to subs 213(2)(e) of the Act. It was put that the written warning, "in conjunction with all the background facts and circumstances, including a threat of reprisal action taken against the respondent in relation to that letter": Tcpt, 11 April 2022, p 8(30)-(32). The applicant further submitted that the letter impacts upon her future employment prospects as well because it is an "active force which prevents her from using employment skills with future employers, including the respondent, and to that extent it is a further threat under the legislation": Tcpt 11 April 2022, p 9(1)-(4). It was argued that should the applicant choose to make an application in the future to work at the respondent or to work at another organisation, that person could seek the employment record of the applicant and at that point in time it would transpire that there was a further threat under subs 213 (2)(e): Tcpt, 4 April 2022, p 10(5)-(12).
For the applicant to obtain the sole relief she seeks in the Victimisation Application, it will be necessary for her to establish that the written warning constitutes a threat to victimise her. The Macquarie Online Dictionary provides for the following definition of "threat": "1. a declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course; menace. 2. an indication of probable evil to come; something that gives indication of causing evil or harm. 3. a person or thing which is deemed to have a negative impact on one's fortunes."
In the context of determining whether an employee was subject to a threatened dismissal, the Commission has determined that the threat must be, "certain, imminent and unconditional": see Connor C in Baker v Australian Workers Union [2005] NSWlRComm 1225 and Barnier v Secretary, Department of Education [2021] NSWIRComm 1045 at [30]-[40].
Whether the warning letter constitutes a threat to victimise the applicant is a question of fact. There was no evidence before the Commission in the notice of motion to support the applicant's submissions that the warning letter is a threat for the reasons advanced by her. The submission that the written warning constitutes a perpetual threat is not articulated in the Victimisation Application. Indeed, rather than identifying the written warning as a threat to victimise the applicant, the Victimisation Application pleads its issuance was the victimisation.
The applicant was arguing that she has a cause of action based on a factual premise and legal arguments that had evolved since the proceedings were commenced and not reflected in the Victimisation Application. However, there was no application before the Commission for the applicant to amend the Victimisation Application to reflect this and identify the facts that would be relied upon in the proceedings to establish that she has an entitlement to a claim for the relief she seeks. Even if the Victimisation Application were amended to reflect the applicant's submissions in the notice of motion as set out above at [46], supported with evidence, I am not persuaded that the written warning is a "certain, imminent and unconditional" threat to victimise the applicant, such that the order sought would be one that could be made pursuant to subs 213(2)(e). The order sought is not able to be made pursuant to any sub-category of subs 213(2). Taken at its highest, the Victimisation Application does not disclose a cause of action that could be successful.
For these reasons, I have decided to allow the respondent's notice of motion and dismiss the application. The application does not disclose a reasonable cause of action.

Ters v Secretary of the Ministry of Health in respect of South Western Sydney Local Health District

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