Wojtulewicz v. New South Wales Health Department [2009] NSWIRComm 1077

Wojtulewicz v. New South Wales Health Department [2009] NSWIRComm 1077 - NSWIRComm 2009 case summary — Zoe

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Antonakopoulos v. State Bank of New South Wales (1999) 91 IR 385 Attorney-General's Department v. Miller (2007) 160 IR 185 Australasian Transport Officers Association v. Department of Motor Transport (1988) 25 IR 235 Australian Salaried Medical Officers' Federation v. Director General of the New South Wales Health Service [2008] NSWIRComm 229 Bankstown City Council v. Paris (1999) 93 IR 209 Bigg v. New South Wales Police Service (1998) 80 IR 434 Blyth Chemicals Limited v. Bushnell (1933) 49 CLR 66 Briginshaw v. Briginshaw (1936) 60 CLR 336 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 Busways v. Johnson (1994) 55 IR 255 Byrne and Frew v. Australian Airlines Limited (1995) 185 CLR 410 Castlemaine Toohey Limited v. State of South Australia (1986) 161 CLR 148 CCH Australia Limited v. Bowen (1998) 79 IR 206 Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 Coles Myer Limited v. Shop Distributive and Allied Employees' Association (1989) 27 IR 299 Electricity Commission of New South Wales v. Nieass (1995) 81 IR 46 Federal Supply and Cold Storage Company of South Africa v. Angehrn (1910) 103 LT 152 Four Sons Pty Limited v. Limsiripothong (2000) 98 IR 1 Hales v. Kerr (1908) 2 KB 601 Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 John Lysaght (Australia) Limited v. Federated Iron Workers Association; re York (1972) AILR 517 Jones v. Dunkel (1959) 101 CLR 298 Re Loty and Holloway and the Australian Workers Union (1971) AR 95 M v. M (1988) 63 ALJR 108 Macleay Valley Health Service v. Jeffree (1994) 58 IR 187 CASES CITED: Maitland v. Royal Blind Society of New South Wales (2004) 138 IR 75 Makin v. Attorney-General for New South Wales (1894) AC 57 Martin v. Osborne (1936) 55 CLR 367 North v. Television Corporation Limited (1976) 11 ALR 599 O'Callaghan v. Loder (1984) 5 IR 320 Oswald v. New South Wales Police Service (1999) 90 IR 42 Outboard World Pty Limited v. Muir (1993) 51 IR 167 New South Wales Public Service Professional Officers' Association v. Forestry Commission of New South Wales (1990) 39 IR 46 Pacific Power v. Crump (1993) 48 IR 296 Parker v. Capital Painters Pty Limited (1996) 68 IR 100 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 PDS Rural Products Limited v. Corthorn (1987) 19 IR 153 Perkins v. Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 Plummer v. Stannard Brothers Launch Service (2005) 145 IR 111 Public Service Association of New South Wales v. Public Service Board of New South Wales (1988) 25 IR 148 R v. Anderson; ex parte Ipec- Air Pty Limited (1965) 113 CLR 117 R v. Smith (1915) All ER Rep.262 St Aloysius College Case (1976) AR 91 Sewell v. New South Wales Police Force (2008) 174 IR 247 State of New South Wales v. Seedsman - unreported Subramaniam v. Public Prosecutor (1956) 1 WLR 965 Tipping's Case (1957) AR 273 Ueckert v. Australian Water Technologies Pty Limited [2000] NSWIRComm 123 Van Huisstede v. Commissioner of Police (2000) 98 IR 57 Wang v. Crestell Industries Pty Limited (1997) 73 IR 454 Watters v. Zig Zag Railway - unreported Western Sydney Area Health Service v. Australian Salaried Medical Officers' Federation (2004) 138 IR 203

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76 Mr Taylor has argued in his written submissions that "....to attempt, after the evidence was completed, and in the absence of any cross-examination to this effect, to add a further fifth 'ground', namely that Dr Wojtulewicz is refusing to work as a neonatologist..." would constitute a procedural unfairness to Dr Wojtulewicz. Nevertheless, if Dr Wojtulewicz is to be reinstated in employment with the Department of Health the work to which he returns to perform must be consistent with his contract of employment with the Department of Health. What Dr Wojtulewicz is seeking is re-training and re-skilling as a paediatrist, albeit his professed ultimate intention is to embark on an (independent) career in sleep medicine. Mr Taylor has indicated in his submissions that Dr Wojtulewicz's intention to work in sleep medicine is his long term aim only. 77 In my opinion, in the case of any employment of professional employees, there is always an implied condition in the contract of employment that the employer would facilitate training, re-training and re-skilling of a type relevant to the work in question. Indeed, in view of the lengthy period when Dr Wojtulewicz has not been working in neonatology it would be no more than common sense that he be permitted to refresh his knowledge in that work and bring himself up to date with developments while he has not been working. 78 The position as I see it, is not a case where Dr Wojtulewicz would be in breach of his contract of employment with the Department of Health by ultimately wishing to work in sleep medicine. He has simply been frustrated by the events I outline later in this decision which effectively have denied him employment in the type of work to which he was originally trained and performed in the GCNC and which, up to the hearing of the matter before me, was still his preferred position. I perceived that Dr Wojtulewicz was always content to work in neonatology (at the level of senior staff specialist for which he is qualified) in a public hospital providing such work. Mr Taylor asserts that the type of retraining he seeks is only available in a public hospital. 79 Effectively, as was acknowledged by Mr Taylor, an order that he be reinstated in employment would be inappropriate for Dr Wojtulewicz. He is presently still employed by virtue of the decision of Boland J, albeit not performing any useful work for the Department of Health. At the present time there is no obligation on the Health Department to actually provide him any such work - provided, of course, that they continue to pay him his salary. But such a course would be in the interests of neither Dr Wojtulewicz, the Department of Health, nor for that matter the general community, having regard to the fact that Dr Wojtulewicz is so clearly anxious to resume constructive work but has been prevented from doing so. 80 But there is an issue of jurisdiction in that respect on which Mr Einfeld also relies, ie whether such an arrangement is within the jurisdiction of S.89(7). He argues that my jurisdiction under S.89(7) goes no further than to either reject or confirm the decision of Boland J on Tuesday, 2 December, 2008. Pursuant to S.83(5) a dismissal in Part 6 proceedings extends to include a threat of dismissal and in that respect S.89(8) provides:

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281 Customarily, allegations of harassment, sexual or otherwise, against employees involve, in the first instance at least, some form of counselling (which appears to have taken place from time to time as far as Dr Wojtulewicz is concerned, albeit on what I regard as a fairly informal basis) and clear warnings given to him that such further conduct may lead to further disciplinary action, including his dismissal (which appears never to have really occurred). Instead the concerns and complaints of the nursing and more junior medical staff in the GCNC who were prepared to bring the matters of concern over Dr Wojtulewicz's conduct forward passed from Dr Halliday, Dr Gillis, Professor Procopis, Dr McCaskill and, finally, Dr Dorney, before any decision was made - and that decision was to suspend Dr Wojtulewicz from employment. 282 Subsequently, the Department of Health decision was to dismiss him - contrary to the views expressed by the IR's report and what was being advanced in the conciliation proceedings before Grayson DP. Some intermediary, and less drastic, step to dismissal would have been appropriate, in my view. The dismissal of any employee should be regarded as the last step for an employer to take in disciplining an employee. That is especially the case for a senior employee in a specialised field of work. 283 And it remains unclear to me who now has actually stepped in to abort the conciliation of the matter before Grayson DP which, to my mind, would have brought this sorry saga to a more effective conclusion than the lengthy arbitration that has eventuated before me. Mr Taylor makes reference to the failure of the Health Department to call the actual decision maker on this matter as a witness in the hearing in written submissions, viz: "....The respondent elected to call no decision maker: not Dr McCaskill who had recommended the original suspension; nor Mr Clout, who had decided not to proceed with the secondment; nor Dr Penna, the chief executive, who had decided to dismiss Dr Wojtulewicz; and not Mr Horn, the IR manager who had provided advice throughout and who had signed the dismissal letter on behalf of the Chief Executive. The Commission was given no evidence as to why the dismissal was considered necessary, and certainly no evidence that anyone had concluded that Dr Wojtulewicz had committed acts of misconduct justifying his immediate and summary dismissal. It is unfair to attempt to seek to justify a dismissal without any attempt to explain what the decision maker took into account or relied upon..."

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Cases Cited (40)