Wei Fen Xian and Rail Corporation New South Wales (No. 2) [2009] NSWIRComm 199 (17 November 2009)

Last Updated: 4 December 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Wei Fen Xian and Rail Corporation New South Wales (No. 2) [2009] NSWIRComm 199



FILE NUMBER(S):
1002

HEARING DATE(S):
17 November 2009


EX TEMPORE DATE:
17 November 2009

PARTIES:
Ms Wein Fen Xian
RailCorp New South Wales

CORAM:
Grayson DP


CATCHWORDS: Unfair dismissal - Threatened dismissal - Finding at first instance that no such threat exists - Appeal against first instance decision withdrawn - Matter remitted for re-hearing - Respondent concedes threat to dismiss - Stay of dismissal sought - Refusal by applicant to attend mandatory health assessment - Applicant classified as Category 3 Rail Safety Worker - Concerns about applicant's ability to work safely - Employer's contractual right to terminate employment not lightly set aside - Principals for such injuctive relief discussed

Held - Relevant tests for injunctive relief not met including but not limited to lack of sufficient prospects of success - Application dismissed

LEGAL REPRESENTATIVES
Applicant in person
Mr P Ginters of counsel instructed by Deacons Lawyers (Ms N Martin)

CASES CITED:
ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [ 2008] NSWIRComm 299
Hill v Department of Education (1998) 85 IR 201
Wei Fen Xian and Rail Corporation New South Wales [2009] NSWIRComm 1083

LEGISLATION CITED:
Industrial Relations Act 1996
Rail Safety Act 2008
Rail Safety (General) Regulation 2008


TEXTS CITED:




JUDGMENT:

I have listened carefully to the applicant. I have considered the documentary material that has been provided. I sense in the applicant a distinct reluctance to attend the health assessments that she has been directed to attend by the respondent employer and I note as the evidence plainly indicates that attendance for such 'triggered' health assessments is both a reflection of the respondent's concerns about the applicant's ability to perform her job safely and is mandatory under the terms and conditions of the applicant's employment regulated as it is by, inter alia the Rail Corporation NSW Union Collective Agreement. The obligation to undertake a triggered health assessment also arises pursuant to the Rail Safety Act and Regulations made thereunder as well as the National Standard for Health Assessment of Rail Safety Workers. The applicant's reluctance is clearly based on a mistrust and scepticism as to the respondent's motives for requiring her to attend for such health assessment. I have carefully considered those matters. I have also listened carefully to the submissions of counsel for the respondent and am assisted not only by the supplementary written submissions which are marked exhibit 8 in the proceedings and the factual background set out therein but I have also had the benefit of reading the reasons for decision of Commissioner Bishop in [2009] NSWIRComm 1083. The respondent's position here is of course materially different to the position it adopted before Bishop, C in that it now acknowledges the existence of a threat to dismiss the applicant. In addition to that, I have carefully considered and paid close regard to the principles laid down in the authorities to which I have been taken (Hill v Department of Education (1998) 85 IR 201 and ASMOF (NSW) (on behalf of Dr Wojtulewicz) v Director General of NSW Health Service (Children's Hospital at Westmead) [2008] NSWIRComm 299). In my view the tests required by those authorities have not been met in this case and it follows therefore that the balance of convenience does not favour the grant of injunctive relief here sought by the applicant.

It may well be that in the fullness of time if the respondent actually dismisses the applicant, that she will have her rights and may seek remedy within the unfair dismissal jurisdiction by means of a fresh application. However, for the time being, I am not persuaded that the applicant has shown that there are even modest let alone sufficient prospects of successfully challenging the respondent's decision such as would justify in all the circumstances the preservation of the status quo. I do not propose therefore to restrain the respondent in the exercise of its contractual and/or statutory rights in that regard. This application is accordingly dismissed. These proceedings are concluded. I thank the parties.



LAST UPDATED:
23 November 2009