Malesu v SWAHS [2010] NSWIRComm 1073 (21 December 2010)

Last Updated: 31 October 2011

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Malesu v SWAHS [2010] NSWIRComm 1073



FILE NUMBER(S):
412

HEARING DATE(S):
03/12/10

DATE OF JUDGMENT:
21 December 2010

PARTIES:
APPLICANT:
Dr Rammohan Malesu
RESPONDENT
Sydney West Area Health Service

CORAM:
Ritchie C


CATCHWORDS: Unfair dismissal claim.
Through conciliation agreement reached and placed on record.
Applicant submitted that respondent had not adhered to agreement.
Applicant submitted that respondent had misled applicant into making agreement.
Notice of Motion filed by respondent to enforce agreement.
Evidence heard from respondent that it had taken action in accordance with the agreement.
Commission found that actions of respondent in accordance with the appropriate policy.
Commision found that respondent had not misled applicant.
Orders made in accord with the agreeement.
Unfair dismissal matter dismissed.

LEGAL REPRESENTATIVES

Applicant for the Notice of Motion
Mr M Byrnes solicitor of Clayton Utz Lawyers
Respondent for the Notice of Motion
Mr C McArdle solicitor of McArdle Legal

CASES CITED:
Masters v Cameron (1954) HCA 72
Timothy Fox v GIO Australia Limited (2002) NSW IRComm318
Harvey v Phillips 7Others 95CLRC243
De Payne v The University of Sydney 7Anor(2000) NSW IRComm102

LEGISLATION CITED:
Industrial Relations Act,1996


TEXTS CITED:




JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Ritchie C

21 December 2010

Matter No IRC 412 of 2010

IN THE MATTER OF : Rammohan Rao Malesu and NSW Health trading in its capacity as Sydney West Area Health Service

Application by Rammohan Rao Malesu re unfair dismissal pursuant to section 84 of the Industrial Relations Act, 1996

DECISION

[2010] NSWIRComm 1073

1. Dr. Rammohan Rao Malesu (Dr Malesu) filed an application for unfair dismissal pursuant to section 84 of the Industrial Relations Act, 1996 (the Act) on 27 May 2010 against Sydney West Area Health Service (the SWAHS).

2. The matter was listed for conciliation on 16 June 2010 and 9 July 2010. On 9 July 2010 the two parties through conciliation advised the Commission, as presently constituted, that an agreement had been reached.

3. The following was placed on record:

COMMISSIONER: This is the resumption of matter number 412 0f 2010. In the intervening time I've had the opportunity to speak to both parties off the record and an agreement has been reached to resolve this matter. The respondent will pay the applicant 15 weeks pay plus there will be a letter to the board explaining the current situation. Also, the respondent will take action to amend the doctor's record to update it to show the end of suspension that occurred in December '09 will be put on the doctor's record and this will all be encompassed in a deed of release. Do you agree Mr McArdle ?

McArdle: I agree with that, Commissioner.

COMMISSIONER: Mr Simpson ?

SIMPSON: Yes, thank you , Commissioner.

COMMISSIONER: On that basis this matter is now concluded as long as the terms of settlement are complied with. Thank you very much. Off record.

4. On request of Dr Malesu the matter was re listed on 11 August, 2010 where the substantive amount of discussion was held off record. At the end of proceedings Dr Malesu was to contact the Commission by close of business 13 August 2010 with respect to their intentions.

5. The Commission received correspondence dated 16 August, 2010 from the Dr Malesu's legal representative Mr McArdle, dissatisfied with what was stated concerning the applicant on the Service Check Register (SCR). The correspondence stated in the penultimate and final paragraph the following:

We accept that an agreement was reached before the Commission. Had we known the facts we now know, Dr Malesu would not have made that agreement.

Dr Malesu accepts that agreement is unlikely. He therefore requests that a hearing date be set as soon as possible.

6. A mention was held on 18 August, 2010. On that day Mr Simpson for the SWAHS inferred that a Notice of Motion may be filed by the respondent as in their view an agreement had been reached.

7. On 26 August 2010, the SWAHS filed a Notice of Motion. A mention of this Notice of Motion was held on 31 August, 2010 when directions for the filing and serving of evidence was provided to the parties and a Hearing date of 8 October 2010 was set.

8. The Commission received correspondence from the Dr Malesu's representative seeking that the hearing date of 8 October 2010 be adjourned to enable further discussions to take place between the parties with a view to reaching a resolution.

9. A further mention was held on 28 October 2010 when there was still a hope by Dr Malesu that settlement could be reached.

10. The matter was listed again on 12 November 2010. No agreement had been reached by the parties so therefore the SWAHS pressed for the Notice of Motion to be heard and determined. The date of 3 December 2010 was set for Hearing.

Case for the SWAHS.

11. The Notice of Motion filed by the SWAHS stated in part that the Commission make:

1. An order that the proceedings be dismissed, pursuant to section 174 of the Industrial relations Act 1996.

2. Subject to order 3, an order that each party pay their own costs of the proceedings.

3. An order that the Applicant( Respondent on the Motion) pay the Respondent's (Applicant on the Motion) costs of an incidental to this motion.

12. In summary the grounds and reasons stated that during off the record discussions on 9 July 2010 the SWAHS offered to settle the proceedings and that offer was accepted. That offer was then placed on the record and the settlement would be encompassed in a Deed of Release. The proceedings would be discontinued with no order as to costs. The applicant has not discontinued the proceedings.

13. Ms Gina Finocchiaro is the Human Resources Manager for the SWAHS. She filed an affidavit in these proceedings and was subject to cross examination. In her affidavit she stated that the NSW Health Service maintains a "service check register'(SCR) which is an electronic, state wide database which contains records of actions taken during, or at the conclusion of, an investigation into a disciplinary matter.

14. A copy of the Service Check Register for NSW Health Service which is a Policy Directive of NSW Health was attached to Ms Finocchiaro's affidavit. In her affidavit Ms Finocchiaro stated that prior to engaging staff, officers responsible for recruitment must check candidates against the SCR. The inclusion of a person on the SCR does not preclude that person from being employed or appointed to an Area Health Service.

15. The SCR does not allow users who wish to make entries in the SCR with the freedom to record any type of information in the SCR. A limited number of options are available.

The exhaustive list of entries that can be included under "Risk Management Action" are :

(a) Resigned during investigation

(b) Restricted duties/privileges

(c) Suspended contract

(d) Suspended with pay

(e) Suspended without pay.

Under the section relating to "Disciplinary Action" there is a specific list of matters that can be recorded. The exhaustive list of matters that can be recorded are:

(a) Pending

(b) Contract non-renewed

(c) Contract terminated

(d) Resigned during investigation

(e) Restricted duties

(f) Returned to full duties/privileges

(g) Staff dismissed

(h) Staff suspended.

16. Ms Finocchiaro stated that it was not possible to include on the SCR a disciplinary outcome such as " Suspension of employee lifted in December 2009". In accordance with the Policy Directive records can only be removed from the SCR in specific circumstances. Outside of those circumstances the approval is required from the Chief Executive of the Area Health Service, following a review to verify that the entry of the record in the SCR is correct. If dissatisfied with the outcome a person can seek a review of the decision by the Director of Corporate Governance and Risk Management, NSW Health.

17. Prior to 9 July 2010 Ms Finocchiaro stated that she advised Mr McArdle that the Chief Executive and the Director General are the only persons who could approve the removal of Dr. Malesu name from the SCR. Mr McArdle did not accept this.

18. Dr Malesu was initially placed on the SCR on 9 June 2009. At this time Dr Malesu was suspended on pay as was the subject of a pending investigation.

19. Ms Finocchario stated that at the conciliation conference on 9 July 2010 negotiations between the parties involved extensive discussion regarding the quantum of a settlement payment made to Dr Malesu . In her view there was no much discussion at all about the SCR.

20. In her affidavit Ms Finocchario denied or could not recall various statements found in Dr Malesu affidavit. She did remember that during discussions she did state words to the effect:

I will update the SCR to reflect the fact that his suspension has now ended.

and

The fact that there is an entry about Dr Malesu on the SCR does not restrict him for applying for other jobs. It will not affect his ability to apply for jobs and should not impact on his ability for re-registration.

She denied that she had done anything to restrict Dr Malesu eligibility to be re-registered or employed by another Area Health Service or that there was anything else she could do to assist Dr Malesu in being registered or cleared for employment with a NSW Health facility.

21. She also stated that she had a conversation with Dr Malesu either on or before 9 July 2010 to the effect that she told the doctor that his SCR couldn't be removed completely and that the doctor in reply stated that he did not want it removed, he only wanted it updated to show that his suspension was lifted in December 2009. She responded to say that she could update the SCR to reflect that his suspension had now ended.

22. Post 9 July 2010 Ms Finocchario said she advised the Workplace Relations Manager to amend Dr Malesu's SCR to reflect the fact that Dr Malesu's suspension had been lifted. The SCR was amended to indicate that the investigation had concluded and that the outcome was that Dr Malesu had been placed on restricted duties.

23. Ms Finnocchiaro stated that on or around 26 July 2010 she received a letter from Dr Malesu indicating that he had obtained employment with another Area Health Service.

24. Also marked as an exhibit was correspondence dated 22 June 2009, from Mr Geoff Murphy, Workplace Relations Manager, Sydney West Area Health Service directed to Dr Malesu. The correspondence stated that the doctor's name had been recorded on the SCR in accordance with the NSW Health Policy Directive(PD2009_004) Service Check Register for the NSW Health Service.

The correspondence stated that the doctor was entitled to a print out copy of the information about him that was recorded on the SCR.

The correspondence stated that a copy of the SCR was attached.

It also stated how one accesses information concerning the operation of the SCR,( such as how to request a review of the SCR and when an SCR record must be amended or removed).

It noted that a copy of the SCR policy is available on the NSW Department of Health website and it gave the web site address.

A name and phone number was stated in the correspondence if there were any questions.

25. In cross examination Ms Finocchario stated that the SCR may be amended depending on the outcome of an investigation. There is the possibility of removal if there were no findings or no substantiation to any of the allegations that were investigated. The fact that Dr Malesu's SCR was amended to remove "on suspension" showed that there was no longer a suspension of Dr Malesu.

26. Ms Finocchario stated that she discussed during negotiations in July that her options in amending Dr Malesu's SCR were limited but did not go into the detail of the available options.

Case for Dr. Malesu

27. In a reply to the Notice of Motion stated that he opposes the making of the orders set out in the Notice of Motion and that the Commission should dismiss same and instead direct the parties to return before the Commission for further conciliation and that the SWAHS pay the costs of Dr. Malesu of and incidental to the Notice of Motion.

28. The grounds and reasons expressed in the reply stated in summary the discussions that took place on 9 July 2010 concerning the SCR. Dr Malesu's name had been entered on the SCR by the SWAHS in or around May 2009.Doctors who wish to be employed by the NSW Public Health Services must be checked against the SCR when applying for registration with the NSW Medical Board. Dr Malesu wished to apply for registration and to work in another NSW Health facility.

29. It was stated that DR Malesu was advised on 9 July by the SWAHS that:

he could not have a copy of his SCR because it was a confidential electronic database, it was not possible to remove his name from the SCR, the SCR recorded Dr Malesu's as being suspended from duties, the SWAHS would amend the SCR to reflect that the suspension was lifted on 17 December 2009, there was nothing further that the SWAHS had done to restrict Dr Malesu's eligibility to be registered or employed by another Area Health Service and that the SWAHS could do nothing more to assist Dr Malesu in being registered with the NSW Medical Board and cleared for employment with a NSW Health facility.

It was on that basis that Dr Malesu agreed to settle the matter.

30. Dr Malesu received a copy of his SCR around 16 August 2010 notwithstanding that the SWAHS said it could not be produced as it was confidential. Dr Malesu's SCR did not show that he had been suspended from duties but that he had been placed on restricted duties over the period from 16 January 2010 to 31 May 2010.

That the SWAHS knowingly or not misrepresented to Dr Malesu the true contents of his SCR.

31. On 18 August 2010, Dr Malesu received from the SWAHS a copy of the NSW Health Services SCR Policy with the exception of pages 18 to 24 being " Section 7 Right of Individuals to review or request a review of a SCR entry".

32. That the SWAHS either knowingly or not misrepresented its obligations and Dr Malesu's rights under this policy in:

Not informing him of the contents of his SCR , not giving him a copy of his SCR, not informing him of his rights under this policy, not informing him of how the entry could be removed from the SCR and not giving him an opportunity to have his record reviewed.

Dr Malesu would not have agreed to settle the matter on 9 July 2010 but for the SWAHS misrepresentations.

33. The terms of settlement did not specify that the proceedings would be discontinued with no order as to costs.

34. Also Dr Malesu's SCR had still not been corrected, and therefore is unable to be reregistered or to work in Australia whilst this incorrect entry remains on the SCR. There are no valid grounds for the orders sought by the notice of motion and that further settlement discussions with the SWAHS are sought to reach a binding settlement.

35. Dr Malesu filed an affidavit and was subject to cross examination. In his affidavit he stated that during discussions on 9 July 2010 between Mr McArdle and Ms Finocchario she was asked for a copy of the doctor's SCR. Ms Finocchario stated that she did not have one as it was on an electronic database and it could not be printed off. She was asked what was on the record and was told that he was suspended from duty. Mr McArdle stated that the doctor had been advised in January that his suspension had ended in December. Mr McArdle stated that his SCR should be updated and he should be removed from it. Ms Finocchario said that the database had very limited options on the computer and she could not change it. She did state that she can update his record to show that the suspension had ended in December to allow him to apply for other Area health jobs. Dr Malesu denied the conversation as expressed in Ms Finocchario statement at point 26.

36. Dr Malesu stated that he rang Ms Finocchario on 13 August, 2010 and sought a copy of his SCR which he received.

37. On 16 August 2010 he directed Mr McArdle to write to the Commission. The correspondence criticises the SWAHS and what was expressed on Dr Malesu's SCR. It is argued that what was expressed on the SCR is not in accordance with the facts and is a false document. It therefore should be altered. The correspondence stated:

We accept that an agreement was reached before the Commission. Had we known the facts we now know, Dr Malesu would not have made that agreement.

38. On 20 August, 2010 Dr Malesu directed Mr McArdle to email the SWAHS's legal representative making an open offer of settlement of all matters. The email sought amongst other matters, for the SCR to be amended as it was in their view inaccurate.

39. On 17 September 2010 he contacted the SWAHS and sought a current copy of the SCR which was sent to him. This document had a print out date of 29 July 2010.

Consideration and Decision

40. The Service Check Register for NSW Health Services is a Policy Directive issued by NSW Health which was published on 30 January 2009. It is available for viewing through the NSW Health website. It is a Policy that covers 24 pages.

41. Subjects expressed in the Policy relevant to this matter are:

Inclusion on the register does not automatically preclude a person from employment or appointment.

A person must be advised if information about them is entered into the SCR and the circumstances by which their name may be removed.

A copy of the record must be provided to the person if requested.

If an individual is dissatisfied with a decision taken by an organisation in response to a request to correct, amend or remove a record they can seek a review of this decision by the Director of Corporate Governance and Risk Management.

The Chief Executive (or their delegate) of the Health Service must approve the creation or removal of a record in the SCR.

A person's name is removed from the SCR where following a risk assessment the suspension is lifted and the Health Service has not placed any other restrictions on an individual or on their clinical privileges.

An investigation has been completed, the matter has been found not to be sustained and the Health Service has not placed any other restriction on an individual or on their clinical privileges.

42. Dr Malesu was provided with the information to access this Policy on 22 June 2009. He therefore would have been aware of his rights and the process involved post that date.

43. The SCR of Dr Malesu printed on 10 June 2009 and provided to him on around 22 June 2009 stated in part under the Heading :

Investigation Finding

Pending

Review Date

10-Jul-2009

Under the heading

Risk Management Action Records

Risk Action Risk Start Risk End

Suspended with pay 30-Apr-2009

44. The second SCR printed on 29 July 2010 and provided to Dr Malesu stated in part:

Investigation Finding Substantiated

Investigation Finding Date 19-Jan-2010

Disciplinary Outcome Restricted duties

under the heading:

Risk Management Action Records

Risk Action Risk Start Risk End

Restricted Duties/Privileges 19- Jan-2010 31-May-2010

I note that expressed in Ms Finnochario affidavit at point 7 she uses the term "Disciplinary Action" when in fact I believe she meant to write "Disciplinary Outcome"

45. What was expressed in the second SCR was arrived at by Ms Finocchario taking action to amend Dr Malesu's SCR. What was expressed is what in her view was agreed, taking into consideration the available options. Ms Finocchario stated that the amended SCR showed that Dr Malesu suspension had ceased.

46. If one compares the two SCR's, the first shows that the doctor had been suspended with pay since 30 April 2009 with the investigation pending.

The second shows that the finding of the investigation was substantiated on 19 January 2010 and that disciplinary outcome was that he was placed on restricted duties until the end of his contract on 31 May 2010.

47. Found in annexure B of exhibit A is the proposed Deed of Release raised by the SWAHS's legal representative and directed to Dr Malesu's legal representative on 16 July 2010. Under the sub heading of Update Service Check Register for NSW Health Services is expressed the following:

Within 7 days of SWAHS receiving from DR Malesu an executed copy of this Deed, SWAHS will update the Service Check Register for NSW Health Services to reflect that DR Malesu is no longer subject to a suspension from employment.

48. What was agreed between the parties was that Dr Malesu's suspension had ceased. What is in dispute between the parties is what currently is expressed on Dr Malesu's SCR.

The applicant had a copy of his SCR provided to him in June 2009. Nothing was changed on his SCR until 29 July 2010 when it was amended in part to delete " Suspended with pay" and inserted " Restricted Duties/Privileges". This was in accordance with the findings of the investigations concerning Dr Malesu.

Ms Finocchiarro stated that what was expressed in Dr Malesu's SCR ( dated 29 July 2010) should have been updated in like terms back in January 2010. As it was not presented in evidence I must assume that Dr Malesu did not seek a copy of his SCR post the findings of the investigation.

The findings of the investigation were subsequently disputed by Dr Malesu and if I understood the evidence, is being re examined by another person.

49. Whilst there existed disagreement between Ms Finnocchario and Dr Malesu as to what was expressed by each other on and around 9 July 2010, I am satisfied on the balance of probabilities that Ms Finnocchario did state words to the effect that her options were limited.

There was no evidence from Dr Malesu as to what exactly he wanted to have expressed on his SCR other than that his suspension had ceased in December 2009.

50. The Service Check Register for NSW Health Services Policy Directive under 3.5 When a SCR record must be amended or removed states:

Restrictions removed

An individual's record on the SCR must be removed if-as the result of a completed investigation or further risk assessment-all restrictions are removed.

Suspension lifted

An individual's name must be removed from the SCR where:

following a risk assessment the suspension is lifted and the Health Service has not placed any other restrictions on an individual or on their clinical privileges

an investigation has been completed, the matter has been found not to be substantiated and the Health Service has not placed any other restriction on an individual or on their clinical privileges.

If a Health Service places restrictions on a staff member or a visiting practitioner after lifting a suspension, those restrictions must be recorded on the SCR.

51. From my understanding of the amendments made to Dr Malesu's SCR, what is expressed in the above paragraph is what happened in his case. Therefore what Ms Finocchario did in directing an amendment to Dr Malesu's SCR was in accordance with this Policy. It is my finding that Ms Finocchario did not misled Dr Malesu during the settlement negotiations.

52. Taking into consideration the fact that Dr Malesu had access to this Policy since June 2009 and therefore was aware of the processes and procedures concerning SCR's then I do not accept the submission that his SCR should have or even could have been deleted in toto. If the re examination of his objections with respect to the original findings of the investigation are successful then what he seeks may well then take place.

53. What was agreed between the parties was that Dr Malesu's SCR would be amended to show that his suspension had ended. It is my finding that this has taken place.

54. Mr Byrnes for the SWAHS reserved his position with respect to costs. Whilst Mr McArdle gave reasons why costs should not be awarded for the Notice of Motion action, and there was merit in what he stated, I do not at this point make a Decision with respect to the matter of costs.

55. In summary it is my finding that considering what was agreed between the parties on record on 9 July 2010 before the Commission as presently constituted and applying the decisions of Masters v Cameron[1954] HCA72, Timothy Fox v GIO Australia Limited [2002]NSWIRComm318, Harvey v Phillips and others 95 CLR@243 and Dr Payne v The University of Sydney & Anor[2000]NSWIRComm102 that it is appropriate that conciliation having taken place between the parties, agreement having been reached that pursuant to section 174 of the Act the Commission makes the following Orders.

56. I make the following Order pursuant to section 174 (b) of the Act.

1. That the SWAHS pay to Dr Malesu the sum of fifteen weeks salary.

2. That the SWAHS write to the New South Wales Medical Board to explain the current situation of Dr Malesu.

That this Order be complied with within 14 days of the date of this Decision.

57. I propose to dismiss Dr Malesu's Part 6 application on the basis of the settlement reached between the parties.

D. RITCHIE
COMMISSIONER

LAST UPDATED:
22 December 2010