Western Sydney Area Health Service v Australian Salaried Medical Officers' Federation

Industrial Relations Commission (NSW)|2004-08-18|Before: Wright J, Boland J, Ms J, Peterson J

CITATION : Western Sydney Area Health Service v Australian Salaried Medical Officers' Federation (NSW) [2004] NSWIRComm 246 APPLICANT Western Sydney Area Health Service PARTIES : RESPONDENT Australian Salaried Medical Officers' Federation FILE NUMBER: IRC 6289 of 2003 and 2680 of 2004 CORAM: Wright J President; Boland J; Patterson C Appeal - Applications for leave to appeal and appeal against two interlocutory judgments and orders - Threatened dismissal - Power of Commission to make interim orders - Scope of interim orders under s 89 of Industrial Relations Act 1996 - Leave granted - Appeal upheld - Decisions and orders set aside - New orders made CATCHWORDS : Unfair dismissal - Appeal - Applications for leave to appeal and appeal against two interlocutory judgments and orders - Threatened dismissal - Power of Commission to make interim orders - Scope of interim orders under s 89 of Industrial Relations Act 1996 - Leave granted - Appeal upheld - Decisions and orders set aside - New orders made Industrial Relations Act 1996 s 83(5) s 84 s 87(1) s 89(5) s 89(7) s 89(8) s 188(1) s 188(2) LEGISLATION CITED : Workers' Compensation Act 1987 s 38 Workplace Injury Management and Workers Compensation Act 1998

ASMOF o/b Elizabeth Benson and Western Sydney Area Health Service [2003] NSWIRComm 337 Australian Salaried Medical Officers' Federation (New South Wales) on behalf of Professor Bruce Hall and South Western Sydney Area Health Service [2003] NSWIRComm 8 Four Sons Pty Limited v Sakchai Limsiripothong [2000] NSWIRComm 38 CASES CITED : Hill v Director General of the Department of Education and Training (1998) 85 IR 201 IGA Distribution Pty Ltd v Moses [2002] NSWIRComm 96 Kenoss Contractors Pty Ltd v Allied Constructions Pty Limited (2001) 104 IR 66 TAB Agents' Association of NSW v TAB Ltd [2003] NSWIRComm 316, Sweeney & Vandeleur Pty Ltd and anor v Robert Angyl and ors [2004] NSWIRComm 194 HEARING DATES: 08/18/2004 DATE OF JUDGMENT: 11/18/2004

APPLICANT Mr I Neil of counsel Solicitor: Ms J Dransfield BlakeDawsonWaldron LEGAL REPRESENTATIVES: RESPONDENT Mr R Reitano of counsel Ms N Rutherford ASMOF

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH CORAM: WRIGHT J, PRESIDENT BOLAND J PATTERSON C Thursday 18 November 2004

Matter No IRC 6289 of 2003 WESTERN SYDNEY AREA HEALTH SERVICE v AUSTRALIAN SALARIED MEDICAL OFFICERS' FEDERATION (NSW) ON BEHALF OF PROFESSOR ELIZABETH BENSON

Application by the Western Sydney Area Health Service for leave to appeal and appeal against a decision of Justice Peterson given on 10 October 2003 in Matter Number IRC 5045 of 2003

WESTERN SYDNEY AREA HEALTH SERVICE v AUSTRALIAN SALARIED MEDICAL OFFICERS' FEDERATION (NSW) ON BEHALF OF PROFESSOR ELIZABETH BENSON

Application by the Western Sydney Area Health Service for leave to appeal and appeal against a decision of Commissioner Ritchie given on 28 April 2004 in Matter No IRC 5045 of 2003 DECISION OF THE COMMISSION [2004] NSWIRComm 246

1 These proceedings involve two applications for leave to appeal and, if leave is granted, appeal by the Western Sydney Area Health Service ("appellant") against, firstly, an interlocutory judgment and orders of Peterson J given on 10 October 2003 in ASMOF o/b Elizabeth Benson and Western Sydney Area Health Service [2003] NSWIRComm 337 and, secondly, an interlocutory decision and order made by Ritchie C on 28 April 2004 in the matter of Elizabeth Benson and Western Sydney Area Health Service. The applications for leave and to appeal are related and were appropriately dealt with together with the consent of the parties.

2 In the proceedings before Peterson J the Australian Salaried Medical Officers' Federation ("ASMOF" - "the respondent"), on behalf of Professor Elizabeth Benson, had sought interim relief from the threatened dismissal of Professor Benson by the appellant. Peterson J made the following orders: 1. That the Return to Work Plan/Program for the period 1 September to 16 September 2003 be reinstated for all purposes.

The status quo in place as at 4.00 p.m. on 5 September be reinstated for all purposes.

As part of Orders 1 and 2 the Applicant be permitted to resume her usual range of duties including discharging functions of her position.

3 Peterson J qualified order 1 "in respect of any further medical restrictions which might be imposed by Dr Jungfer in anticipation of the resumption of work on Monday next." His Honour also made an order to the effect that the appellant was not to dismiss Professor Benson "pending the hearing and determination of these proceedings". 4 In relation to orders 2 and 3, Peterson J stated at [35]: 35 I make no order at this stage regarding the matter of funding for research. I would expect the Area Health Service to apply, in respect of Professor Benson, research funding arrangements consistent with its policy and without retribution or discrimination against her. In that regard I would grant liberty to apply.

5 In his interlocutory judgment Peterson J observed that there was no issue that the Commission has jurisdiction to grant interlocutory relief in relation to a threatened dismissal. The appellant, however, did take issue about what orders might properly be granted in that respect.

6 Following the judgment of Peterson J the issue his Honour referred to relating to research funding came before Ritchie C in November 2003. In those proceedings Professor Benson contended she was entitled to use for her own purposes the surplus funds left in the appellant's hands after the completion of a contract between it and Virax Immunotherapeutics Pty Ltd ("Virax") including for the employment of a research assistant. The appellant took the view the money belonged to it. In the proceedings the respondent sought an interim order in the following form: That pending the final resolution of this matter Prof Benson have available to her all of the research funds that were ascribed to her position and the ability to fill the position of research assistant.

7 After hearing the parties, Ritchie C made an order in the terms sought by the respondent and did so pursuant to what he considered was the power vested in the Commission by s 89(8) of the Industrial Relations Act 1996.

8 The respondent had filed an application for substantive relief in relation to unfair dismissal on 9 September 2003. The relief sought was "That the threatened dismissal not take place (s 89(7))." The proceedings before Peterson J on 9 and 10 September 2003, however, were proceedings relating to interlocutory relief. In other words, before the respondent had the opportunity to present its case for substantive relief, the respondent was concerned to restrain the appellant, on an interim basis, from taking steps that, in the respondent's view, constituted an immediate threat to dismiss Professor Benson.

9 As Peterson J noted, Professor Benson was employed by the appellant as a Senior Staff Specialist and Director of Immunopathology at the Institute of Clinical Pathology and Medical Research at Westmead Hospital. She has been employed in that role for more than eleven years.

10 His Honour also observed that there had been an ongoing dispute between Professor Benson and the appellant for some years in relation to which Professor Benson had alleged a campaign of harassment and intimidation against her by others in the Institute. Professor Benson had subsequently suffered psychological stress and the exacerbation of another condition, which had been accepted as conditions compensable under workers' compensation legislation. A rehabilitation program was established in which Professor Benson performed four hours work per day at the workplace and four hours per day from home and that she not attend meetings perceived as stressful.

11 In August 2002, ASMOF took up with the appellant allegations of continued harassment of Professor Benson and sought resolution, in the absence of which it indicated it would notify this Commission of an industrial dispute. The dispute subsequently came before Ritchie C in November 2002.

12 As his Honour noted at [12], "In March 2003 the medical restrictions were lifted by Dr Jungfer but in September 2003 the division of work of four hours clinical duties at work in the morning and four hours at home doing administrative duties in the afternoon were re-imposed." At [14] Peterson J observed that: In February 2003 the Service [the appellant] made five allegations of misconduct against Professor Benson and these led to her suspension from duty on pay. This matter was notified to the Commission and came before Boland J as Matter No. IRC03/97. It seems that a number of lengthy appearances occurred before his Honour and ultimately the parties agreed that the suspension should be lifted and, as I am informed by counsel, the Service undertook not to take steps to dismiss Professor Benson without seeking the resumption of those proceedings before Boland J.

13 On 1 September 2003 Professor Benson was advised that the appellant had decided to restructure the Institute and an expression of interest was sought from her to re-apply for her current position in the proposed new structure.

14 On 5 September 2003, in the proceedings before Ritchie C, it was agreed that the parties would undertake formal mediation to deal with the issues relating to the alleged continued harassment of Professor Benson. At [16]-[17] Peterson J recorded what happened next: 16 At approximately 5.30 p.m. on that day, Professor Benson was telephoned by the Rehabilitation Co-ordinator at the Service who said to her, "Western Sydney no longer has a job for you under s 38 of the Workers Compensation Act." She also said, "Do not come into work on Monday." Professor Benson said "I have private patients on Monday." The co-ordinator said, "They know that," to which Professor Benson asked, "Who are they?" She received the reply, "Kevin Gillies, Cres Eastman and Ross Vining had a meeting this afternoon and decided this. I know it varies from the plan that I had sent for signing the previous day." Cres Eastman I take to be a reference to Professor Eastman, the head of the Institute.

17 On Monday, 8 September, Professor Benson was telephoned at home by the Acting Director of the Institute, Acting Professor Osborn who indicated to her that he had been instructed to call her by Kevin Gillies and he said, "You are relieved of your duties under s 38 and will now be on workers compensation pay."

15 At [19], [22] and [26] Peterson J found as follows: 19 This brief summary of the history indicates a prima facie and concerted attempt to, as Mr Reitano put it, rid the Service of Professor Benson. The contradictory actions of the Service on Friday, 5 September tend to show that the Service has been willing to take any step open to it to achieve this purpose, including reneging on an arrangement made only hours before in dispute proceedings before the Commission. The final act of the Service on 5 September, represented only by conversations on the telephone to which I have referred, seems to me to have operated on a possible misunderstanding of s 38 of the Workers Compensation Act , coupled with an unsupported assertion repeated by counsel to me in these proceedings on 11 September that there was no work for Professor Benson to do in the hospital. … 22 The uncontested evidence of Professor Benson is that her work remains to be done, that she has been able to perform both clinical and administrative work and the proceedings today illustrate, so far as the clinical work is concerned, that there is absolutely no issue about either the capacity of Professor Benson or the availability of the work for her to perform. I will come back to the administrative side in due course. … 26 Sub-section (3) of s 49 [of the Workers Compensation Act] provides that the section does not apply if a number of alternative conditions are met, the first of which is presently relevant, namely, that it is not reasonably practicable to provide employment. Here Professor Benson is seeking to work. The simple fact as I find it is that the Service is simply declining to supply work for her. Mr Gillies' affidavit conveys what is apparently the view of Professor Eastman that the proper and efficient operation of the Institute has been compromised, it seems, from the rehabilitation program causing Professor Benson to perform administrative work four hours per day at home. No further detail of that matter has been provided and the evidence, of course, is not direct.

16 Peterson J accepted, on a prima facie basis, that what occurred at 5.30 pm on 5 September was an attempt to "rid the Service of Professor Benson". His Honour did not accept the appellant's contention that there was no suitable work for Professor Benson nor did he accept, on the available evidence, that it was not reasonably practicable to provide employment to Professor Benson.

17 Peterson J indicated at [7] that he approached the issue before him on the basis of: [T]he tests commonly applied to the grant of interlocutory relief, namely, firstly, that the applicant must establish that there is a serious question to be tried. Secondly, that damages will be an inadequate remedy and, thirdly, that the balance of convenience falls in favour of the applicant for the interlocutory relief.

18 His Honour considered in relation to the appellant's contention that there was no threat of dismissal of Professor Benson and, therefore, the Commission was without jurisdiction to make any order, that there was a serious issue to be tried on two bases. Firstly, whether the obligation arising out of s 38 of the Workers' Compensation Act 1987 to seek alternative employment in order to retain a right to compensation payments constituted a threat of dismissal for the purposes of s 84 of the Industrial Relations Act. This was said to arise because the obligation under s 38 relied upon by the appellant and imposed on Professor Benson was to seek alternative employment from other employers.

19 Secondly, his Honour considered the issue of spill of positions arising out of a proposed restructure of the Institute raised an arguable possibility of dismissal and was thus a serious question to be tried on that matter. In relation to the question of whether damages was an adequate remedy his Honour considered that "the damage to reputation from a withdrawal from the Service of Professor Benson's functions in the light of the industrial history and by what would appear to me to be a de facto suspension on pay, may be irreparable." His Honour referred to Australian Salaried Medical Officers' Federation (New South Wales) on behalf of Professor Bruce Hall and South Western Sydney Area Health Service [2003] NSWIRComm 8 at [38]-[39].

20 As to the balance of convenience, his Honour observed that the appellant had not established any positive matter that would detract from the proposition of Professor Benson being returned to work subject to Dr Jungfer's medical restrictions.

21 In conclusion, his Honour stated at [37]: Taking into account the fact that an inquiry was initiated from Mr Markham leading to his report concerning the relationship problems in the Institute, the fact that the notion of mediation was agreed to about the same problems in proceedings before Commissioner Ritchie , and the need for the initiation of these proceedings, it seems necessary to observe that the Service should apply itself to a process which is designed to overcome those problems. Whether Dr Jungfer's proposal is an appropriate one or not, I cannot conclude but I am seriously troubled by the fact that there seems to have been no attempt to finally address the subsisting problem. I would recommend to the parties that they undertake a process to achieve that result. Because of that position, while I have granted liberty to apply in a particular respect, I will grant to the parties general liberty as well.

22 Ritchie C noted at the outset of his decision that on 9 September 2003 the respondent on behalf of Professor Benson had made a substantive application under s 84 of the Act regarding an alleged threatened dismissal. As noted earlier, however, Ritchie C considered that he had the power under s 89(8) to provide the interim relief sought.

23 In relation to the application for interim relief Ritchie C found that there was a serious question to be tried. In this respect the Commissioner found: (a) To be able to carry out her research Professor Benson needed a research assistant; she could not complete a significant research project with a research assistant. (b) The withdrawal of surplus research funds from ongoing research projects had not happened before. (c) A sum of $200,000 in research funds was in credit at the end of the last financial year. (d) There existed a practice at the appellant's hospital that a researcher could use excess funds from completed research to fund future research in their field of expertise. (e) It was unacceptable that the Virax fund was closed and surplus funds transferred out without the appellant communicating with Professor Benson either formally or informally.

24 Section 188(1) of the Act provides that an appeal may only be made with leave of the Full Bench. Section 188(2) provides that leave will be granted if the Full Bench is of the opinion that the matter is of such importance that, in the public interest, leave should be granted.

25 We adopt the approach laid down in Knowles v Anglican Property Church Trust (No 2) (1999) 95 IR 380 both as to leave to appeal and as to the nature of an appeal under the Industrial Relations Act. Leave to appeal will not, as a general rule, be granted unless the appellant demonstrates that the appeal proceedings "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382).

26 This appeal raises substantial issues involving the Commission's jurisdiction and practice in relation to interlocutory orders in unfair dismissal proceedings that have implications beyond this appeal. Accordingly, we grant leave to appeal.

27 As we earlier observed, there is no issue in these proceedings that the Commission has power to grant interlocutory relief in relation to a threatened dismissal. There is an issue, however, about the nature and extent of the any interim orders that the Commission may make. The appellant contended that the Commission did not have the power to make the orders made by Peterson J and Ritchie C.

28 It is clear from the statute that the Commission may make a final order against an employer not to dismiss an employee in accordance with a threat to do so because a dismissal under Ch 2 Pt 6 of the Act includes the threat of dismissal (see s 83(5)) and s 89(7) provides that "In determining a claim relating to a threat of dismissal, the Commission may order the employer not to dismiss the employee in accordance with that threat." However, the appellant in these proceedings contended that the Act does not expressly authorise the Commission to make any interlocutory orders of that kind and that, although the Commission has an implied or inherent power to make some orders, that power is limited.

29 The appellant contended that the limit of the power to make an interim order that an employer not carry out a threat to dismiss an employee was correctly identified in Hill v Director General of the Department of Education and Training (1998) 85 IR 201 at 208, namely, that the Commission may make an interlocutory order in an appropriate case but only an order which has the effect of "preserving the employment of an employee who brings a claim under s 84 about a threatened dismissal so as to ensure that the Commission will be in a position to determine that claim, as provided by s 87(1) of the Act."

30 It is settled law that the Commission in Court Session is empowered, by reason of its constitution as a superior court of record, to make interlocutory orders in the protection of its process and so as to ensure that any final orders made may not be frustrated or put at nought: See, for example, the discussion in Kenoss Contractors Pty Ltd v Allied Constructions Pty Limited (2001) 104 IR 66 at 76 to 83 per Wright J President. There are, however, divergent views regarding the extent of that power, at least in relation to the making of orders under s 106 of the Act: See, for example, TAB Agents' Association of NSW v TAB Ltd [2003] NSWIRComm 316; Sweeney & Vandeleur Pty Ltd and anor v Robert Angyl and ors [2004] NSWIRComm 194. We do not consider it relevant or appropriate in these proceedings to resolve the competing views as to the Commission in Court Session's powers to grant interlocutory relief.

31 The principal authority for the proposition that the Commission, as distinct from the Commission in Court Session, has power to make an interim order to ensure any final order under s 89(7) is not frustrated or put at nought is the decision of Schmidt J in Hill. As there is no issue regarding the correctness of that decision as to the Commission's power to make interim orders, we propose to proceed on the basis that it is correct. We note what her Honour said at 208, that: The Commission is empowered to make an interlocutory order under s 89(7), preserving the employment of an employee who brings a claim under s 84 about a threatened dismissal so as to ensure that the Commission will be in a position to determine the claim, as provided by s 87(1) of the Act.

32 A key issue, therefore, in these proceedings is what interim orders, if any, were necessary to ensure that any final orders sought by the respondent under s 89(7) in relation to an alleged threatened dismissal were not frustrated or put at nought? The appellant contended that the order made by Peterson J that the appellant was not to dismiss Professor Benson pending the hearing and determination of the substantive proceedings, was the limit of the orders his Honour could have made. It was contended that there was no basis for the orders made by Ritchie C.

33 As noted earlier, on 9 September 2003 the respondent made application for relief in relation to unfair dismissal. The relief sought was "[t]hat the threatened dismissal not take place (s 89(7))." That application has not yet been heard and determined. There was, in our opinion, no impediment to the order made by Peterson J that the appellant not dismiss Professor Benson pending the hearing and determination of the substantive proceedings. As to the order "[t]hat the Return to Work Plan/Program for the period 1 September to 16 September 2003 be reinstated for all purposes", subject to the qualification of any further medical restrictions that might be imposed by Dr Jungfer in anticipation of the resumption of work on Monday 13 October 2003, the appellant contended Peterson J made three errors: 1 First, by making such an order Peterson J was purporting to go beyond the limit of jurisdiction by making an order that did not stop at preserving Professor Benson's employment so that an order could effectively be made under s 89(7) at a final hearing. Instead, the order intruded on the incidents of Professor Benson's employment in a way that was manifestly directed at reversing the appellant's past acts rather than restraining its future conduct. 2 Second, by the order Peterson J effectively invented and cemented a new incident of Professor Benson's employment - that is, a right to participate in a return to work programme, notwithstanding the evidence as to the impracticality of that programme. 3 Third, by the order Peterson J intruded on a regime that was regulated by the Workplace Injury Management and Workers Compensation Act 1998.

34 In relation to the orders requiring the appellant to reinstate the status quo in place as at 4.00 pm on 5 September 2003 for all purposes and to permit Professor Benson to resume her normal range of duties including discharging functions of her position, the appellant submitted that the orders went beyond the jurisdictional limit of preserving Professor Benson's employment so that an order could effectively be made under s 89(7) at a final hearing. Instead, it was submitted, the orders impermissibly intruded on the incidents of Professor Benson's employment by purporting to address the appellant's past acts rather than restraining its future conduct. Secondly, it was submitted, the orders invented and cemented two new rights as incidents of Professor Benson's employment: 1 The first was the right to have every aspect of her employment as it stood at some arbitrarily selected moment in the past entrenched from any alteration or modification. The correlative of Professor Benson's enjoyment of this entirely new right was the extinction of the appellant's ability to make such alterations or modifications to Professor Benson's employment as were not otherwise prohibited by statute or contract. 2 The second new right conferred on Professor Benson by the orders made by Peterson J was the right to work. Although ASMOF asserted that Professor Benson was 'an opera singer' no finding was made - and nor on the evidence could it have been - that she fell into one of the rare classes of employee who has a contractual right to be given work. It was submitted these new rights came to Professor Benson as a windfall; they had no foundation in fact or principle, and were entirely extraneous and irrelevant to the jurisdiction ASMOF had invoked on her behalf.

35 It may have been that in making the orders in respect of which the appellant takes objection Peterson J was relying on IGA Distribution Pty Ltd v Moses (2002) 114 IR 307 for the proposition that s 89(8) of the Act enabled his Honour to make interim orders "on such terms and conditions as the Commission determines." For the reasons later expressed we do not consider s 89(8) provides the necessary power.

36 In the event we are wrong about Peterson J's apparent reliance on s 89(8) and that his Honour considered the interim orders were made pursuant to an implied power to preserve Professor Benson's employment pending the hearing and determination of the substantive proceedings, it is necessary to consider the terms of the relevant orders.

37 The first of these orders required the reinstatement of a return to work program, the second required the reinstatement of the status quo as at 4.00 pm 5 September 2003 and the third, which may be regarded as incidental, required that Professor Benson be permitted to resume her usual range of duties. The orders clearly overlap. Nevertheless, they were made in the light of what his Honour considered to be two aspects of the case that raised a serious issue to be tried, namely, whether the obligation imposed by s 38 of the Workers Compensation Act to seek alternative employment, including with another employer, constituted a threat of dismissal and, whether the obligation on Professor Benson to reapply for her position following a spill of positions constituted such a threat.

38 Any power in the Commission to make interim orders to ensure that its power to order an employer not to dismiss an employee in accordance with a threat of dismissal pursuant to s 89(7) of the Act is not frustrated or set at nought must, in our view, be limited to preserving the employment of the employee from dismissal in accordance with an alleged threat until the substantive application has been heard and determined. There is no basis, either within the statute or on equity or fairness principles, for considering the Commission has any wider power in this respect. That is not to say, however, that in making any interim orders the Commission is precluded from framing the orders, in the interests of justice between the parties, to address any necessary incidental matter such as that addressed by Schmidt J in Hill at 211. In that case her Honour made an order that the respondent not dismiss Mr Hill until the hearing and determination of the substantive application subject to the condition that in the event Mr Hill recovered his health and was assessed as fit to resume teaching in the meantime, that he would not do so.

39 The circumstances in this case are somewhat unusual in that there has been no direct threat by the appellant that it would dismiss Professor Benson. It would appear that what Professor Benson is concerned about, having regard to what she says has been the appellant's attempts over an extended period to get rid of her, is that by relieving her of duties and invoking s 38 of the Workers Compensation Act, and spilling positions, that this conduct amounted to a threat to dismiss. In other words, by placing Professor Benson in a position where she was required to seek alternative employment and by spilling her position, the appellant placed her employment under threat. This was a fortiori in circumstances where Peterson J found, on a prima facie basis, that the appellant was seeking to be rid of Professor Benson.

40 The appellant had indicated before Peterson J that it would be prepared to submit to an order to the effect that it would not dismiss Professor Benson for any cause or reason until the hearing and determination of the substantive proceedings. Such an order is appropriate as far as it goes. However, because the appellant contends that what it has done in relation to Professor Benson does not amount to a threat to dismiss and the respondent submits that it does, an order that the appellant not dismiss Professor Benson for any cause or reason does not, in the unusual circumstances of this case, resolve the issue.

41 Peterson J found that relieving Professor Benson of her duties on the grounds it had no suitable work for her and requiring her to look for alternative employment or from spilling positions and having Professor Benson re-apply for her position, constituted serious issues to be tried as to whether they amounted to a threat of dismissal. We consider it was open to his Honour to make these findings. Subject to meeting the normal tests associated with the granting of interlocutory relief, any interim orders, therefore, would need to be moulded to prevent the appellant from relieving Professor Benson of her normal duties, subject to any medical restrictions, and to prevent the appellant from spilling Professor Benson's position, until the substantive application is heard and determined.

42 We consider the orders of Peterson J went beyond preserving the employment of Professor Benson from dismissal in accordance with the alleged threat pending the hearing and determination of the substantive application. Indeed, the order requiring the status quo in place as at 4.00 pm on 5 September to be reinstated "for all purposes" would appear to mean that not only could the appellant not dismiss Professor Benson from its employment in accordance with any alleged threat but it could not dismiss her, or seek to vary her employment contract in any respect, for any reason. Such an order goes beyond that available as final relief under s 89(7), that final relief being an order that the appellant shall not dismiss Professor Benson in accordance with the threat to dismiss.

43 Whilst we note that s 89(8) enables the Commission to make an order under s 89(7) on such terms and conditions as the Commission determines, we do not consider an order that would have the effect of preventing the employer from terminating an employee's employment for a reason not related to the alleged threat or from varying the contract of employment in any respect, was an order necessary or incidental to the primary order under s 89(7) or an order necessary to the "proper and effectual performance" of the primary order: See Hornsby Shire Council v Porter (1990) 19 NSWLR 716 at 725 referred to with approval in Four Sons Pty Limited v Sakchai Limsiripothong (2000) 98 IR 1 at [6].

44 In relation to the decision of Ritchie C, the Commissioner relied on s 89(8) of the Act to make the interim order. In this respect Ritchie C referred to Four Sons and the reference made by Peterson J in [6] of his judgment to IGA Distribution Pty Ltd v Moses (2002) 114 IR 307 at [22].

45 Section 89(8) provides that "An order under this section may be made on such terms and conditions as the Commission determines." That is, it is a condition precedent to invoking s 89(8) that an order is made under s 89(1), (2), (3), (4), (5) or (7). As we have already observed, there is no express power in s 89 to make an interim order to preserve the employment of an employee who brings a claim under s 84 about a threatened dismissal pending final determination. It follows that s 89(8) is not a source of power to make interim orders.

46 The cases referred to by Ritchie C did not involve the question of the power to make interim orders under s 89(8). In Four Sons the Full Bench was concerned with the power of the Commission to make a final order that compensation be paid within seven days of the date of a decision in circumstances where the Commission ordered compensation to be paid pursuant to s 89(5). The Full Bench held that s 89(8) enabled the Commission to make an order under s 89(5) subject to terms and conditions and that an order that compensation be paid within seven days was such an order. There is nothing in Four Sons to suggest the Full Bench in that case endorsed the view that s 89(8) was a source of power to make interim orders.

47 In IGA Distribution Pty Ltd v Moses the relevant passage is in [22]: 22 If it were to be accepted that the former position of the respondent was that of a storeworker carrying out the full range of duties for that position, it is within the power of the Commission under s 89(1) to make an order reinstating the respondent to that position but, having regard to the provisions of s 89(8) of the Act, upon terms and conditions that would place him within the "Repack Centre" upon light duties. This is, in our view, the true effect of the decision at first instance. It is also entirely consistent with the manner in which the appellant treated the respondent prior to his dismissal. That is, the appellant engaged the respondent as a storeworker, albeit on terms which did not require, for a lengthy period of time, the respondent to perform the full range of duties.

48 The judgment in IGA Distribution Pty Ltd v Moses was concerned with final, and not interim, orders. The judgment is not authority for the proposition that the Commission has power to make an interim order under s 89(8) on such terms and conditions as the Commission determines. Therefore, the order made by Ritchie C, relying as the Commissioner did on s 89(8), was not a valid order.

49 It was, however, open to the Commissioner to make an interim order on the authority of Hill if the requisite findings had been made. The question that Ritchie C should have considered was whether the interim order sought by the respondent was an order necessary to preserve the employment of Professor Benson from dismissal in accordance with an alleged threat until the substantive application has been heard and determined. In seeking to answer this question it was necessary for the Commissioner to have considered the following: 1 Whether there was funding that could have been available to Professor Benson to enable her to engage a research assistant to enable her to continue with research she had been conducting; 2 Whether Professor Benson had been denied access to the funding; 3 Was there a serious question to be tried as to whether the denial of access to the funding and the implications of that denial constituted a threat to dismiss Professor Benson? 4 Were damages (or compensation) an adequate remedy? 5 Where did the balance of convenience lie?

50 As to the first two questions, it is apparent from his decision that Ritchie C considered there were funds left over from the Virax research she had undertaken that would normally have been made available to Professor Benson to allow her to continue with other research work, but that she had been denied access to those funds, something the Commissioner found had not happened previously or to any other researcher. Whilst we have some reservations, we consider these findings were open to the Commissioner on the evidence.

51 As to the third question, the Commissioner considered there was a serious question to be tried as to whether the denial of access to funds constituted a threat to dismiss apparently because the Commissioner found the research for which the funds were required was "an important and integral part of the applicant's duties". On its own, this finding would not be sufficient, in our opinion, to raise a serious issue as to whether Professor Benson's continued employment was being threatened because the research was only part of her work with the appellant. However, the Commissioner was aware of the judgment of Peterson J, where his Honour accepted on a prima facie basis that the appellant was attempting to rid itself of Professor Benson. In our opinion, it was open to the Commissioner to find that the denial of access, when considered in conjunction with the other matters referred to by Peterson J (relief from duty and spill of positions), constituted a serious question to be tried as to whether the appellant's conduct was a threat to dismiss the appellant.

52 As to the fourth and fifth questions, Ritchie C may have considered the question of damages (or compensation) and/or the balance of convenience but in very oblique or limited fashion and that was by referring to the damage to Professor Benson's reputation if she were unable to continue with her research. It is not clear, however, whether the Commissioner paid full regard to these matters. He did not, for instance, canvass any countervailing considerations in weighing up the balance of convenience.

53 We do not consider the order made by Ritchie C was an appropriate exercise of the Commission's jurisdiction in the matter, relying as he did on s 89(8) of the Act and failing as he did to properly apply the usual tests applicable to interlocutory orders. We do consider, however, that there was jurisdiction to make an interim order to the effect that Professor Benson was to be provided with the funding that was necessary for her to continue the research work that she would have performed as part of her normal duties as if access to funding had not been denied. Such an order would be subject to meeting the usual tests that apply to interlocutory orders.

54 We have considered the option of remitting the matter back to Ritchie C to determine the matter in accordance with this decision. In our view, however, there is sufficient material to enable us to set aside the decision and quash the order of Ritchie C and substitute what we consider to be an appropriate order. We take the same view in relation to the decision and orders of Peterson J.

55 In this respect, and against the background of the findings of Peterson J and Ritchie C, we consider there exists a serious question to be tried as to whether the denial of access to funding to enable Professor Benson to continue with her research work constituted a threat of dismissal. There was sufficient evidence to raise the very real concern that there may be some sort of strategy being pursued by the appellant against Professor Benson with the objective being, ultimately, to terminate her employment. The denial of access to funds to allow Professor Benson to continue her research work, considered in conjunction with other moves adverse to Professor Benson's interests referred to by Peterson J, creates a worrying set of circumstances that favour the granting of interlocutory relief.

56 As to damages being an appropriate remedy, we consider the observations of Boland J in Australian Salaried Medical Officers' Federation (New South Wales) on behalf of Professor Bruce Hall and South Western Sydney Area Health Service [2003] NSWIRComm 8 are apposite and we note the reliance on those observations by Peterson J.

57 As to the balance of convenience, it is obviously important for Professor Benson in order to continue with her research work, which constitutes part of her normal duties, to have access to the necessary funding in order to employ a research assistant. On the other hand, the appellant contended that the $200,000 surplus in the Virax cost code, following the completion of the contract, was transferred into the general corporate undistributed cost code in circumstances where there was a shortage of operating funds and a freeze on recruitment of new employees had been imposed. We consider that the balance of convenience lies in favour of Professor Benson. In saying this it is not our intention that Professor Benson will be provided with funds to be used and dispersed as she sees fit but only to the extent she is able to continue her existing research work and until final orders are made in the substantive proceedings. In the circumstances of this case it is important that the substantive proceedings be dealt with as a matter of expedition subject to their being brought by the appellant in an appropriate way.

58 We make the following orders and direction: 1 Leave to appeal in Matter Nos IRC 6289 of 2003 and 2680 of 2004 is granted. 2 The appeals in Matter Nos IRC 6289 of 2003 and 2680 of 2004 are upheld and the decisions and orders of Peterson J and Ritchie C respectively, are set aside, to the extent set out in these reasons. 3 The Western Sydney Area Health Service shall not dismiss Professor Benson from her employment for any cause or reason pending the hearing and determination of the application in Matter No IRC 5045 of 2003.

59 We propose to make orders to the following effect: 1 Until final orders in Matter No IRC 5045 of 2003 and subject to any medical restrictions that are imposed on the performance of work by Dr Jungfer, the Western Sydney Area Health Service shall not relieve Professor Benson of any part of the normal duties she was performing as at 5 September 2003 on the ground that the Service is unable to provide suitable employment. 2 Until final orders in Matter No IRC 5045 of 2003 the Western Sydney Area Health Service shall not spill Professor Benson's position as Director of Immunopathology, or any part of it, such that an obligation would be created on Professor Benson to re-apply for that position, or any part of it. 3 Until final orders in Matter No IRC 5045 of 2003 Professor Benson shall be given access to funding that is necessary for her to continue the research work that she would have performed as part of her normal duties as if access to funding had not been denied.

60 The parties shall confer on the terms of the proposed orders and the respondent shall file and serve short minutes of orders within seven days of the date of this decision. In the event there is any disagreement regarding the form of the orders the issue shall be referred to Boland J for determination. ____________________________

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Cases Cited (12)