ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229 (12 February 2008)

Last Updated: 16 January 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 229



FILE NUMBER(S):
IRC 367 of 2007 and IRC 2123

HEARING DATE(S):
26 November 2008

DATE OF JUDGMENT:
12 February 2008

PARTIES:
NOTIFIER/APPLICANT:
Australian Salaried Medical Officers' Federation (New South Wales) on behalf of Dr Julian Wojtulewicz

RESPONDENT:
Director General of the New South Wales Health Service

CORAM:
Boland J President


CATCHWORDS: UNFAIR DISMISSAL - Threatened dismissal - Notice of motion - Application that employee not be dismissed pending hearing and determination of unfair dismissal application - Tests to be applied - Prima facie case existed - Balance of convenience favoured applicant - Orders made

INDUSTRIAL DISPUTE - Threatened dismissal - Orders sought that employee not be dismissed pending hearing and determination of unfair dismissal application - Application for such orders in the alternative - In light of orders made in respect of unfair dismissal application no orders necessary under s 137(1)(c) of Industrial Relations Act 1996

LEGAL REPRESENTATIVES
NOTIFIER/APPLICANT:
Mr I Taylor of counsel
Australian Salaried Medical Officers' Federation (New South Wales)
(Mr S Mead)
RESPONDENT:
Mr A T Britt of counsel
Clayton Utz, Lawyers
(Mr J Simpson)

CASES CITED:
Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57; [2006] HCA 46
ASMOF on behalf of 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
Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Dhayanithi Sivathondan) and South Western Sydney Area Health Service [2002] NSWIRComm 98
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618
Castlemaine Tooheys Limited v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148
Hill v Director-General of the Department of Education and Training (NSW) (1998) 85 IR 201 at 208
National Union of Workers, New South Wales Branch on behalf of Mr Arvin Tubungbanua and Express Data Pty Limited [2005] NSWIRComm 57
NWL Ltd v Woods [1979] IWLR 1294
Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) (2005) 146 IR 388; [2005] NSWIRComm 305
Unions NSW v Carter Holt Harvey Wood Products Australia Pty Ltd (2006) 149 IR 361; [2006] NSWIRComm 2
Western Sydney Area Health Service v Australia Salaried Medical Officers’ Federation (NSW) (2004) 138 IR 203; [2004] NSWIRComm 246

LEGISLATION CITED:
Industrial Relations Act 1996


TEXTS CITED:




JUDGMENT:

- 22 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: BOLAND J, President

Tuesday 2 December 2008

Matter No IRC 367 of 2007

NOTIFICATION UNDER SECTION 130 BY AUSTRALIAN SALARIED MEDICAL OFFICERS' FEDERATION (NEW SOUTH WALES) OF A DISPUTE WITH THE CHILDREN'S HOSPITAL AT WESTMEAD RE SUSPENSION OF MEMBER

Matter No IRC 2123 of 2008

AUSTRALIAN SALARIED MEDICAL OFFICERS' FEDERATION (NEW SOUTH WALES) (ON BEHALF OF JULIAN WOJTULEWICZ) AND DIRECTOR GENERAL OF THE NSW HEALTH SERVICE AND ANOTHER

Application by Australian Salaried Medical Officers' Federation (New South Wales) on behalf of its member Julian Wojtulewicz re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION
[2008] NSWIRComm 229

1 These proceedings concern two matters. The first is a dispute notified by the Australian Salaried Medical Officers' Federation (New South Wales) ("ASMOF") that involves the suspension of the employment of a member of ASMOF, Dr Julian Wojtulewicz. The second is an application by ASMOF on behalf of Dr Wojtulewicz under s 84 of the Industrial Relations Act 1996 regarding the threatened dismissal of Dr Wojtulewicz.

2 As to the first matter, Dr Wojtulewicz is employed by the Director-General of the New South Wales Health Service as a senior staff specialist in Neonatology at the Children's Hospital, Westmead ("the Hospital") (I note that the Chief Executive Officer of the Hospital had been given delegated authority to employ and dismiss Dr Wojtulewicz). Dr Wojtulewicz's employment was suspended on 22 June 2006.

3 The suspension had been the subject of proceedings before the Commission. On 22 August 2008 Bishop C issued a certificate of attempted conciliation under s 135(2) of the Act. The matter was taken out of the Commissioner's hands by virtue of an application by ASMOF under s 173 of the Act. In any event, on that day the respondent issued to Dr Wojtulewicz a letter purporting to terminate his employment. ASMOF sought an urgent hearing for the purpose of obtaining interlocutory orders that the respondent not dismiss Dr Wojtulewicz. The interlocutory application came before me late on 22 August when I was advised that the respondent had agreed it would not proceed with the termination and that it would engage in further talks with the applicant organisation in an attempt to resolve the dispute. The dispute was subsequently allocated to Grayson DP for further conciliation.

4 The proceedings before the Deputy President have so far been unsuccessful in resolving the dispute. On 7 November 2008, ASMOF filed a notice of motion in the dispute proceedings seeking an order under s 137(1)(c) that the respondent not dismiss Dr Wojtulewicz until the hearing and determination of any final relief.

5 As to the second matter, on 7 November 2008 ASMOF filed an unfair dismissal application on behalf of Dr Wojtulewicz and at the same time filed a notice of motion seeking the same interlocutory relief as that sought in relation to the dispute proceedings, albeit under s 89(7) of the Act. Both motions were heard on 26 November 2008. The applicant moved the Commission to make an order pursuant to s 89(7) of the Act and, in the alternative, pursuant to s 137(1)(c) of the Act. The respondent opposed the applications. This decision deals with the applications for orders in the two motions.

Evidence

6 The evidence in these interlocutory proceedings consisted of an affidavit of Simeon Mead, Executive Director of ASMOF and an affidavit of Dr Stuart Dorney, Director of Clinical Governance and Medicine at the Hospital. Neither deponent was required for cross-examination.

Background

7 Dr Wojtulewicz has been a staff specialist employed to work at the Hospital since 1993. He was promoted to Senior Staff Specialist in 2004. By September 2005, following the hospitalisation of Dr Wojtulewicz’s father and a large on-call workload, Dr Wojtulewicz was feeling tired and depressed. At or about this time Dr Wojtulewicz informed his department head, Dr Nadia Badawi as to the state of his health. Dr Badawi suggested that Dr Wojtulewicz take a few weeks off. Dr Wojtulewicz subsequently took two periods of two weeks leave each in October and November 2005.

8 According to the applicant, in December 2005, Dr Wojtulewicz’s performance agreement with the Hospital was signed off, in accordance with the recommendation of independent assessors, by the Program Chair Dr Grahame Smith and Dr Badawi without any negative comment or criticism.

9 In January 2006, Dr Wojtulewicz had sought professional help from a psychiatrist, Dr Loyola McLean who prescribed medication and twice weekly psychotherapy sessions. In April 2006, at the request of Dr Badawi, Dr Wojtulewicz provided to Dr Smith a report from Dr McLean dated 1 April 2006. The report relevantly concluded that “... I consider him fit for day to day duty” and “... I have no current evidence that his clinical decision making is impaired” and “... I consider it ideal for his recovery and rehabilitation that he be excused from on-call work for a period of three months ...”

10 Dr Wojtulewicz was suspended in June 2006 by Dr McCaskill, Director of Clinical Governance. Her letter confirming his suspension gave two reasons for the suspension: concerns in respect of the clinical care Dr Wojtulewicz was providing; and his health. Dr Wojtulewicz was advised that the alleged concerns held by the Hospital as to aspects of his clinical care and judgment, mental health and behaviour had been referred by the Hospital to the Impaired Practitioner’s Program of the NSW Medical Board. The matters referred by the Hospital to the NSW Medical Board were in turn referred to a sub-committee of the Medical Board constituting the Impaired Registrant’s Panel (“IRP”).

11 The suspension of Dr Wojtulewicz was preceded by a letter written to Dr McCaskill in June 2006 by some members of the Grace Centre for Newborn Care ("GCNC") that raised concerns about Dr Wojtulewicz’s “behaviour and judgement in newborn care”. The applicant submitted that prior to his suspension it appeared that there was no investigation to endeavour to ascertain the veracity of allegations made against Dr Wojtulewicz. It was further submitted that an investigation would have established that there was no proper basis to suspend Dr Wojtulewicz at that time given:

i. As was subsequently established when investigated, there had been no incidents of inappropriate clinical care, only the usual incidents where professionals have (legitimately) different views as to the appropriate steps that should be taken in respect of any particular medical situation;
ii. While Dr Wojtulewicz was at that time feeling tired and depressed following the hospitalisation of his father and a large on-call work load, his health did not render him unfit for duty as the report of his treating psychiatrist Dr Loyola McLean stated, that report having been voluntarily provided to the Respondent by Dr Wojtulewicz some three months prior to the suspension. Dr McLean stated in that report that Dr Wojtulewicz was fit for day to day duty and further that there was no current evidence that his clinical decision making was impaired. That position was subsequently conceded by the respondent.
12 During the course of a hearing held on 3 November 2006 the IRP, following submissions made on behalf of Dr Wojtulewicz, agreed that the inquiry should be adjourned until the question of Dr Wojtulewicz’s clinical performance was dealt with by the Hospital.

13 Dr Wojtulewicz's clinical performance was assessed by "Independent Reviewers", who conducted their investigation over the period from approximately 30 May to 20 June 2007. The Reviewers' final report was handed down on 10 August 2007.

14 The report made no negative conclusions in respect of Dr Wojtulewicz’s clinical competence or health. The Reviewers concluded that there were “no grounds for Dr Wojtulewicz to be considered medically incompetent. His ability to provide competent care for sick neonates is not questioned”. However, the Reviewers, in the course of interviewing various persons, heard complaints in respect of certain specific incidents said to be relevant to Dr Wojtulewicz’s “behaviour” towards some members of staff and concluded that the incidents “demonstrated a significant lack of respect for colleagues and others, particularly those colleagues in positions of less authority. This behaviour has significantly impacted on staff relations, the morale in GCNC and clinical practice”. The applicant submitted this conclusion was reached notwithstanding the fact that the letter of suspension written by Dr McCaskill in June 2006 did not refer to or rely on any allegation of inappropriate management style or inappropriate communication with fellow workers to justify the suspension.

15 Dr Wojtulewicz’s response to the Reviewers’ final report raised what the applicant claimed were serious questions about the nature of the investigation and the denial to him of basic procedural fairness as well as the manifestly unreasonable and unsound findings and recommendations contained in the report.

16 The Independent Reviewers did not recommend that Dr Wojtulewicz’s employment should be terminated nor did they find that he had committed any act of serious misconduct justifying termination of employment. Rather, having found that Dr Wojtulewicz could not return to work because of a breakdown in personal relations with other staff within GCNC, the Independent Reviewers concluded that an alternative position for Dr Wojtulewicz should be considered, combined with guidance and behavioural counselling.

17 The respondent advised the New South Wales Medical Board in November 2007 that as a result of a review by independent reviewers:

§ there was no grounds for Dr Wojtulewicz to be considered medically incompetent; and

§ Dr Wojtulewicz’s ability to provide competent care was not questioned.

18 In February 2008, the IRP formally determined that Dr Wojtulewicz was not currently suffering from any impairment.

19 During the period February to early August 2008 further without prejudice negotiations took place between ASMOF, Dr Wojtulewicz and representatives from the Hospital regarding Dr Wojtulewicz's future. These negotiations were not successful in resolving the matter. Dr Wojtulewicz remains suspended from his employment on pay. The respondent has indicated that it will not move to terminate Dr Wojtulewicz's employment prior to any decision in these interlocutory proceedings.

20 I should refer to Dr Dorney's affidavit. In that affidavit, Dr Dorney deposed that:

§ Dr Wojtulewicz's employment is covered by the Salaried Senior Medical Practitioners (State) Award (Award);

§ Dr Wojtulewicz has been relieved (on full pay) of his clinical duties since 22 June 2006;

§ Dr Wojtulewicz is entitled to a salary of $201,678 (including the on-call allowance) plus a private practice allowance of $40,336, totalling $242,014 from 1 July 2008;

§ the public health sector is significantly under-funded and the 2008-09 NSW Mini-Budget has revealed that the rate of growth of health costs is outstripping the growth in total State revenue. As a consequence, the Mini-Budget has cut Health Service funding by $205 million. The Respondents are therefore under significant financial pressure to meet their service delivery costs;

§ the protracted suspension of Dr Wojtulewicz has contributed to the financial pressures experienced by the Respondents and has directed resources away from the provision of health services to the community;

§ if this matter does not settle and there is a substantive hearing, I have been informed by the Respondents' solicitors that at least another 6 to 8 months may run before a decision is made. If Dr Wojtulewicz continues to be on paid suspension until that time, the Respondents will be required to continue paying Dr Wojtulewicz a considerable salary;

§ as at 20 November 2008, Dr Wojtulewicz has accumulated over 88 days of annual leave, 131 days of sick leave and just under 7 months of long service leave. In addition, he has also accumulated over 78 days of Training, Education and Study Leave (TESL);

§ based on the assumption that a substantive hearing of the matter would not be completed until at least another 6 months have passed, by 26 April 2009, Dr Wojtulewicz will have accumulated a further 103 hours (12.88 days) of annual leave, 41.2 hours (5.15 days) of sick leave and 7.73 days of long service leave. By 26 April 2009, Dr Wojtulewicz will also have accumulated a further 12.9 days of TESL;

§ Neonatology is a sub-specialty of paediatrics and there are currently only about 20 neonatologists in New South Wales. Given the small number in the sub-specialty, all of the neonatologists know each other. Some have helped train him and some have undergone training at the Hospital. Certainly, the other neonatologists would be aware of some of the circumstances surrounding Dr Wojtulewicz's current situation; and

§ if Dr Wojtulewicz's employment was terminated, I believe that this would provide some closure for the staff of the GCNC as they would observe the Hospital taking a decisive step forward, in order to move on from the circumstances. It would also alleviate some of their anxiety and stress. This step would serve to strengthen the relationship between the senior management of the Hospital and the GCNC staff.

Jurisdiction

21 Section 83(5)(a) provides:

(5) In this Part:

dismissal includes:

(a) the threat of dismissal, ...

22 Section 89(7) of the Act provides:

(7) Threat of dismissal

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.

23 Sections 136 and 137 of the Act appear in Parts 1 and 2 respectively of Chapter 3, Industrial Disputes. Section 136 provides:

(1) The Commission may, in arbitration proceedings, do any one or more of the following:

(a) make a recommendation or give a direction to the parties to the industrial dispute,

(b) make or vary an award under Part 1 of Chapter 2,

make a dispute order under Part 2,

(c) make any other kind of order it is authorised to make (including an order made on an interim basis).

(2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute.

24 Section 137(1) provides:

(1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings:

(a) The Commission may order a person to cease or refrain from taking industrial action.

(b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute.

(c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so.

(d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute.

25 There was not, and could not be, any issue about the Commission's jurisdiction to make orders, either under s 89(7) or s 137(1)(c), that the respondent not dismiss Dr Wojtulewicz. In respect of orders under s 89(7) see Hill v Director-General of the Department of Education and Training (NSW) (1998) 85 IR 201 at 208, cited with approval and/or applied in: Australian Salaried Medical Officers' Federation (New South Wales) (on behalf of Dhayanithi Sivathondan) and South Western Sydney Area Health Service [2002] NSWIRComm 98 at [32] - [34]; 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 [27]; ASMOF on behalf of Elizabeth Benson and Western Sydney Area Health Service [2003] NSWIRComm 337 at [6]; Western Sydney Area Health Service v Australia Salaried Medical Officers’ Federation (NSW) (2004) 138 IR 203; [2004] NSWIRComm 246 at [31].

26 As the respondent submitted, the exercise of power pursuant to s 137 is not identical to the exercise of power under s 89(7) but some similar considerations are involved: see Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) (2005) 146 IR 388; [2005] NSWIRComm 305 at [32] and [36] - [37] and Unions NSW v Carter Holt Harvey Wood Products Australia Pty Ltd (2006) 149 IR 361; [2006] NSWIRComm 2 at [13]. See also National Union of Workers, New South Wales Branch on behalf of Mr Arvin Tubungbanua and Express Data Pty Limited [2005] NSWIRComm 57 at [13] - [17] where the related power to reinstate pursuant to s 137(1)(b) was successfully invoked.

Existence of a threatened dismissal

27 It was also not in issue that there existed a threat of dismissal of Dr Wojtulewicz.

Attempts at conciliation

28 Again, there was no issue that all reasonable attempts have been made to resolve the dispute by conciliation and those attempts having been unsuccessful a certificate of attempted conciliation was issued by Bishop C. I note that following the issue of that certificate further attempts were made to resolve the dispute before Grayson DP but without success. These further attempts were consistent with s 135(9) that:

Nothing in this Act prevents the exercise of conciliation powers merely because arbitration powers have been exercised under this Act.

29 I also note in respect of the unfair dismissal claim that s 87 provides:

87 Arbitration where conciliation unsuccessful

(1) When, in the opinion of the Commission, all reasonable attempts to settle the applicant’s claim by conciliation have been made but have been unsuccessful, the Commission is to determine the claim by making an order under section 89, dismissing the application or making any other order it is authorised to make under this Act.

(2) Nothing in this section prevents further conciliation from being attempted at any time before the Commission makes such an order.

30 I am satisfied that all reasonable attempts to settle the applicant’s claim by conciliation have been made.

Discretion to make interlocutory orders

31 As ASMOF submitted, the exercise of the power to make interlocutory orders under s 89(7) is discretionary. As it was further correctly conceded, the Commission will not lightly interfere with an employer’s contractual (or statutory) right to terminate the employment of an employee. However, the reliance by ASMOF on the approach identified by Mason ACJ in Castlemaine Tooheys Limited v The State of South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153 to the granting or refusing of interlocutory orders is no longer correct. In Castlemaine, Mason ACJ considered that the plaintiff must show:

§ That there is a serious question to be tried:

§ That the plaintiff is likely to suffer irreparable injury for which damages will be an inadequate remedy: and

§ That the balance of convenience favours the grant of the injunction.

32 Mason ACJ suggested (at 153) that the prima facie test formulated by the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 was not of general application. However, in Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57; [2006] HCA 46 the High Court returned to the test articulated in Beecham. In O’Neill, Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed, said at [65] (references omitted):

The relevant principles [governing interlocutory injunctions] in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:

"The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted."

By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.

33 At [19], Gleeson CJ and Crennan J stated (references omitted):

The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd, and Jakudo Pty Ltd v South Australian Telecasters Ltd. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be folIowed.

34 Thus what the plaintiff must show is that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights asserted by the plaintiff and the practical consequences likely to flow from the order sought.

35 Further, given the decision in O'Neill and the endorsement of the 'two inquiry' approach in Beecham, it would seem that the issue of irreparable damage by reason of damages not being an adequate remedy, no longer stands as a separate consideration, but is one that comes under the second inquiry referred to in the judgment of Gummow and Hayne JJ, namely, "whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted" or, in other words, the balance of convenience test.

36 Gummow and Hayne JJ refer to preserving the status quo pending trial. The status quo may be the position of the parties at the time of the commencement of the proceeding. However, the defendant's allegedly wrongful conduct may have commenced by the time the proceeding is issued. In that case the plaintiff will seek to maintain the status quo pending trial in the sense that it wants the position to remain as it was before the defendant commenced to engage in the conduct complained of. That is the present case.

37 In respect of the alternative order sought by ASMOF in IRC 367 of 2007, a similar approach should be applied when considering whether to issue a dispute order requiring the reinstatement of an employee on an interlocutory basis where the dispute concerned the fairness of a decision to terminate the employment of an individual employee: see Tubungbanua.

38 Both ASMOF and the respondent observed that where a dispute order is sought the tests formulated in Castlemaine Tooheys as adopted in Hill, while offering guidance, would not be applied strictly or inflexibly: Sydney Water Corporation v Australian Services Union (NSW and ACT Branch) at [36]. In particular, it was submitted that whilst the impact on the individual employee(s) is relevant to the question of balance of convenience, the second test (irreparable injury for which damages will not be an adequate compensation) will not usually apply to orders sought under s 137: Sydney Water at [41]. Notwithstanding that O'Neill is now to be followed rather than Castlemaine Tooheys, it seems to me that the principle of what the Full Bench had to say in Sydney Water holds good, to the extent that:

While it is relevant to consider "irreparable injury for which damages will not be an adequate compensation" in private law litigation, the preceding discussion makes it abundantly clear that although the second test may well be applicable to orders sought in ordinary unfair dismissal cases pursuant to s 89(7), it will be very unusual for this test to apply to orders sought under ss 136 and 137 in the context of an industrial dispute. As a preliminary point, ss 136 and 137 do not allow for the remedy of compensation. The remedy is confined to either orders preventing a threatened dismissal (s 137(1)(c)) or orders of reinstatement or re-employment (s 137(1)(b)).

39 Be that as it may, having regard to ASMOF's reliance, principally, on s 89(7), I have considered the two tests enunciated in O'Neill in the context of that section and in light of my decision in that respect, it is unnecessary for me to consider orders under s 137(1)(c) of the Act.

Whether ASMOF has made out a prima facie case

40 There was no issue that there is a serious question to be tried. However, as I have explained, the question is whether there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the final hearing, status quo being understood to be the suspension of Dr Wojtulewicz on full pay.

41 Whilst I must refrain from undertaking a preliminary trial by resolving questions of fact, the strength of ASMOF's claim is a relevant consideration in these proceedings. The essential elements of ASMOF's case seem to be as follows:

(1) Dr Wojtulewicz has been a staff specialist employed to work at the Hospital since 1993. He was promoted to Senior Staff Specialist in 2004.

(2) He was suspended without any proper grounds to do so in 2006 and having been suspended was denied procedural fairness.

(3) There are positive findings from independent persons to the effect that there are no grounds to question his medical or clinical competence and he is not suffering from any psychiatric impairment. Hence neither of those two factors provides any basis for the termination of his employment.

(4) The findings of the Independent Reviewers that Dr Wojtulewicz “demonstrated a significant lack of respect for colleagues and others, particularly those colleagues in positions of less authority. This behaviour has significantly impacted on staff relations, the morale in GCNC and clinical practice” were findings made contrary to principles of natural justice and were fundamentally flawed and unreasonable.

(5) Despite their findings, the Independent Reviewers did not recommend that Dr Wojtulewicz’s employment should be terminated nor did they find that he had committed any act of serious misconduct justifying termination of employment.

42 Importantly, the respondent has not yet put on its evidence, but if the evidence remains as it is I consider there is a sufficient likelihood, indeed probability, of success to justify, in the circumstances, the preservation of the status quo pending the final hearing. Dr Wojtulewicz may be entitled to relief in accordance with s 89 of the Act if his dismissal is found to be harsh, unreasonable or unjust. On the face of the material presented by ASMOF, any dismissal of Dr Wojtulewicz could be held to be at least unreasonable.

Balance of convenience

43 In NWL Ltd v Woods [1979] IWLR 1294 Lord Diplock, at 1306 and 1307, explained the notion of balance of convenience thus:

Cases of this kind are exceptional, but when they do occur they bring into the balance of convenience an important additional element. In assessing whether what is compendiously called the balance of convenience lies in granting or refusing interlocutory injunctions in actions between parties of undoubted solvency the judge is engaged in weighing the respective risks that injustice may result from his deciding one way rather than the other at a stage when the evidence is incomplete. On the one hand there is the risk that if the interlocutory injunction is refused but the plaintiff succeeds in establishing at the trial his legal right for the protection of which the injunction had been sought he may in the meantime have suffered harm and inconvenience for which an award of money can provide no adequate recompense. On the other hand there is the risk that if the interlocutory injunction is granted but the plaintiff fails at the trial, the defendant may in the meantime have suffered harm and inconvenience which is similarly irrecompensable. The nature and degree of harm and inconvenience that are likely to be sustained in these two events by the defendant and the plaintiff respectively in consequence of the grant or the refusal of the injunction are generally sufficiently disproportionate to bring down, by themselves, the balance on one side or the other.... Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other.

44 As to whether Dr Wojtulewicz is likely to suffer injury for which damages will not be an adequate remedy, there are a number of considerations. The "damages" that might be available as a remedy are reinstatement in employment, re-employment or compensation up to a maximum of six months' pay. So that it is possible, upon a final hearing, that Dr Wojtulewicz could be reinstated to the position of Senior Staff Specialist at the Hospital in the role he was performing prior to his suspension with no loss of salary or benefits.

45 However, I must ask myself the question that if the interim order under s 89(7) is refused, but ASMOF succeeds in establishing at the hearing its member's legal right to be reinstated in his employment, whether Dr Wojtulewicz may, in the meantime, have suffered harm and inconvenience for which reinstatement provides no adequate recompense.

46 In other cases concerning applications under s 89(7), involving as they did medical specialists (see Sivathondan, Benson, Hall), the Commission considered the damage that might be inflicted on the individual's reputation. In Sivathondan, for example, the Commission was concerned with an anaesthetist and on the question of damage stated at [48]:

If Dr Sivathondan were to be dismissed, this fact would become widely known within the small anaesthetist community and, indeed, throughout the health care industry and it would undoubtedly impact even more adversely on her professional standing then hitherto has been the case. Reinstatement may not wholly overcome the stigma associated with the dismissal. For example, if Dr Sivathondan were at some later stage to seek employment other than with the Respondent, the stigma attached to the circumstances of her dismissal are likely to act against her.

47 In the present case, ASMOF contended that based on the evidence, it was open to the Commission to conclude that Dr Wojtulewicz "would suffer an irreparable injury if he were dismissed". The reasons were that:

a. Dr Wojtulewicz is a specialist medical practitioner practising in a highly specialised area, namely neonatology.

b. There are only approximately 20 to 30 Neonatologists operating in New South Wales. As Dr Dorney’s affidavit confirms, this small specialist group are aware of each other’s work.

c. If Dr Wojtulewicz’s employment was terminated that information would quickly become notorious within that small community irreparably damaging his reputation.

d. Mr Mead gives evidence that it is extremely rare for a senior staff specialist to have their employment terminated and accordingly the dismissal of Dr Wojtulewicz would be a matter of notoriety for that reason alone causing damage to his reputation that could not be repaired even by success at a subsequent hearing. No evidence to the contrary is put by the Respondent.

e. The Commission would conclude ... that there is a real risk that even if Dr Wojtulewicz was successful at a subsequent hearing the fact that he was dismissed would be a significant impairment to him obtaining work as a Neonatologist in the future.

48 The other cases involving medical specialists are, as the respondent submitted, distinguishable on their particular facts. However, I do not consider the respondent can escape the proposition that if no order was made under s 89(7), and Dr Wojtulewicz was dismissed from his employment, that it would do harm to his reputation or standing in the medical and in the larger community, including prospective patients. The dismissal would presumably be on the basis of "a complete breakdown of trust and confidence". That is to say the respondent would have moved on the basis that Dr Wojtulewicz was no longer trusted. That is to seriously impugn a person's character, especially one holding a senior medical appointment in a public hospital.

49 It might be contended, and indeed the respondent did, that any employee who is dismissed could suffer damage to his or her reputation, but that was not sufficient to interfere with an employer’s contractual (or award) right to terminate the employment of an employee. In my opinion, each case would need to be judged on its facts. In the present case, Dr Wojtulewicz is a senior medical practitioner working in a small, specialised field. Reputation and standing are important elements in his profession in ensuring his peers, the employees in the hospital system and patients, have confidence in him. To be dismissed on the basis that his employer no longer had trust and confidence in him would be devastating.

50 No doubt, if Dr Wojtulewicz was reinstated he would recover some ground, but that gives insufficient weight to the continued hurt to Dr Wojtulewicz pending the final hearing and to the danger that by the time of vindication of his reputation by an order for reinstatement, not all of those who have read or heard of the dismissal may have become aware of the final outcome.

51 To the extent I have considered whether Dr Wojtulewicz is likely to suffer injury for which damages will not be an adequate remedy, the balance of convenience lies in his favour.

52 In addition to the foregoing considerations, I must consider whether any injustice would be caused to the respondent by maintaining the status quo. It was submitted for the respondent that if the status quo were maintained, it would incur additional cost in circumstances where the Health Service is under significant financial pressure. Further, that dismissal of Dr Wojtulewicz would provide some closure for the staff of the GCNC as they would observe the Hospital taking a decisive step forward, in order to move on from the circumstances and that it would also alleviate some of their anxiety and stress. The respondent also notes that Dr Wojtulewicz has a considerable amount of accumulated leave to his credit.

53 In response to the respondent's position, ASMOF submitted:

§ While the Respondent would continue to be obliged to pay Dr Wojtulewicz, that factor is outweighed by the significant harm that would be caused to Dr Wojtulewicz by any dismissal;

§ Dr Wojtulewicz has indicated a willingness to consent to any reasonable application that the Respondent might make to expedite the final hearing of these proceedings;

§ The Respondent has had the report of the Independent Reviewers since August 2007 and it was not until 12 months later that it took steps to terminate his employment;

§ It cannot be said that there is any urgency requiring the termination of employment immediately, nor in light of Dr Wojtulewicz’s suspension, any immediate reason why such a dismissal should occur;

§ Up until the unexpected decision to terminate employment without notice immediately prior to a conciliation hearing there had been what appears to have been constructive and bona fide negotiations and there is no reason to find that Dr Wojtulewicz by his behaviour since his suspension has acted in a way that would justify a decision to terminate his employment immediately;

§ Dr Wojtulewicz if terminated could not find alternative employment in New South Wales as a Neonatologist, since the Respondent is the only employer of Neonatologists in this State. Given Dr Wojtulewicz’s need to care for his elderly parents it is not possible for him to seek such work outside of New South Wales (even if that were considered otherwise practicable in the period prior to a final hearing). Consequently if terminated Dr Wojtulewicz suffers the real likelihood of a loss of all or most of his current income;

§ Other than the ongoing cost of paying Dr Wojtulewicz, the Respondents would not appear to suffer any prejudice in the orders being issued on an interim basis pending final hearing.

54 On the question of cost, ASMOF submitted it was only the costs on and from the decision to dismiss that could be relevant. As to those costs, while not insignificant, they were outweighed by the irreparable harm that a dismissal would cause Dr Wojtulewicz. In any event, it was submitted, the costs could be minimised by the hearing being expedited. And it was not irrelevant that however significant the cost of having Dr Wojtulewicz on paid leave was said to be, that situation had been in place for over two years, including over 12 months from the date the Independent Reviewers provided their report.

55 On the question of the anxiety of other staff, ASMOF submitted that it was not clear from Dr Dorney's evidence what “anxiety” would be alleviated or “closure” obtained by allowing a dismissal given that this was only an interlocutory stage in the proceedings and Dr Wojtulewicz will press for reinstatement or re-employment if any dismissal were to occur.

56 For the reasons submitted by ASMOF, I am satisfied that the harm or inconvenience that would be suffered by the respondent is outweighed by the damage that would be done to Dr Wojtulewicz were I not to make the order under s 89(7). Accordingly, I propose to make orders under s 89(7).

57 However, I note that Dr Wojtulewicz has accumulated a significant amount of leave. In weighing up the balance of convenience, Dr Wojtulewicz should take up to eight weeks of that leave, the actual amount of leave to be taken to depend upon when a final hearing can be scheduled. I have considered the effect of the Full Bench decision in Western Sydney Area Health Service v Australia Salaried Medical Officers’ Federation (NSW) as to whether I have jurisdiction to make an order that requires such leave to be taken. I consider an order to take leave is reasonably incidental to the substantive order and that it is open to me to make it: see Western Sydney Area Health Service v Australia Salaried Medical Officers’ Federation (NSW) at [38]. Nevertheless, I would prefer the parties to come to an agreement about the taking of leave that is mutually convenient rather than the Commission make an order. I will, however, provide for liberty to apply if no agreement can be reached.

58 I propose to allocate the files in these matters to Commissioner Connor for hearing and determination and request him to deal with them as expeditiously as he is able.

Orders

59 The Commission makes the following orders and directions:

(1) Neither the Director-General of the New South Wales Health Service nor her delegate shall dismiss Dr Julian Wojtulewicz from his employment pending the hearing and determination of the application in Matter No IRC 2123 of 2008.

(2) The files in Matter No IRC 367 of 2007 and Matter No IRC 2123 of 2008 are allocated to Connor C for hearing and determination with a request that he deal with the matters expeditiously.

(3) In accordance with this decision, the parties are directed to confer on the taking of leave by Dr Wojtulewicz.

(4) Liberty to apply on reasonable notice.

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LAST UPDATED:
12 February 2008