Erian v State of Queensland (Department of Agriculture and Fisheries) [2020] ICQ 12

INDUSTRIAL COURT OF QUEENSLAND CITATION: Erian v State of Queensland (Department of Agriculture and Fisheries) [2020] ICQ 012 PARTIES: IHAB ERIAN (appellant) v STATE OF QUEENSLAND (DEPARTMENT OF AGRICULTURE AND FISHERIES) (respondent) FILE NOS: C/2020/1 PROCEEDING: Appeal DELIVERED ON: 19 June 2020 HEARING DATE: 27 April 2020 MEMBER: Martin J, President ORDER: Appeal dismissed. CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – APPEAL – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant was employed by the respondent – where the appellant advised that the respondent was considering retiring him on ill health grounds following an independent medical assessment – where the appellant sought a response from another psychiatrist – where this report was not provided to the respondent – where the respondent decided to retire the appellant on ill health grounds – where the appellant later obtained a psychiatric assessment from another independent psychiatrist – where the Commissioner determined that the two reports obtained by the appellant were not relevant because they were not available to the respondent at the time it decided to ill health retire the appellant – whether the appellant has demonstrated an appellable error INDUSTRIAL LAW – QUEENSLAND – APPEAL – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant seeks an order setting aside the decision of the Commission and that the court substitute its own decision and grant the appellant compensation – where it was not suggested that there was any reason which would prevent the court from determining the issue of whether the appellant was well enough to return to work – where it was not suggested that there was any issue of credit which might arise from the demeanour of any witness such that the matter should be remitted to the Commission for rehearing – whether the termination was harsh, unjust or unreasonable -- 1 of 10 -- 2 CASES: Byrne v Australian Airlines Ltd (1995) 185 CLR 410, cited Byrne v Australian Airlines Ltd (1994) 47 FCR 300, cited Commonwealth (Australian Taxation Office) v Shamir (2016) 261 IR 176, cited Gregory v Philip Morris Ltd (1988) 80 ALR 455, cited APPEARANCES: C J Murdoch QC and S J Hogg instructed by Alexander Law for the appellant A Duffy QC and E Shorten instructed by GR Cooper, Crown Solicitor for the respondent [1] Ihab Erian was employed as a Senior Inspector - Biosecurity in the Fire Ant Unit of the Department of Agriculture and Fisheries. [2] For reasons which are not relevant to this appeal, the Director General of that Department had Mr Erian examined by Dr Luke Murphy, a psychiatrist. [3] On the basis of that report, Mr Erian’s employment was terminated. His application for reinstatement was dismissed. [4] On this application to appeal, he seeks to demonstrate that the Commission erred by not taking into account two other medical reports. Brief overview of the circumstances [5] This schedule is based largely on the chronology provided by the appellant: 15 June 2018 Mr Erian attends an independent medical assessment conducted by psychiatrist Dr Luke Murphy, as requested by the Department. 28 June 2018 Dr Murphy provides his report to the Director General of the Department. The report concludes that ‘Mr Erian is not able to return to work in the public sector. Because of his paranoia, anxiety and mistrust of the employer, Mr Erian is not able to continue working in any other public service position.’ 8 August 2018 The Director General writes to Mr Erian advising that she is considering retiring him on ill health grounds. In this letter she provides him with the opportunity to respond to this proposal. The letter gives Mr Erian 14 days to respond. 13 September 2018 Mr Erian’s solicitors request a response from Dr Theodoros to Dr Murphy report. 24 September 2018 Dr Theodoros provides his response to Dr Murphy’s report. He concludes that ‘Mr Erian is an intelligent, capable, and ethical man who would be capable of continuing employment within the public service.’ -- 2 of 10 -- 3 This report was not provided to the Director General. 3 October 2018 The Director General writes to Mr Erian via his solicitors advising that she had made the decision to ill health retire him with the decision to take effect from 10 October 2018. 10 October 2018 Mr Erian’s ill health retirement comes into effect. 12 November 2018 Mr Erian attends a psychiatric assessment by Dr Taylor, an independent psychiatrist. 17 November 2018 Dr Taylor prepares his report on Mr Erian. He concludes that Mr Erian no longer has any mental disorder or illness; he can work in any capacity in the public or private sectors; and he appears to be functioning well. The findings made [6] The Commissioner dealt with two major issues - whether redeployment was considered and whether it was fair to conclude that Mr Erian was not able to return to work. The issue of redeployment was not the subject of this application. [7] In her reasons, the Commissioner set out her findings with respect to the reports of Dr Murphy, Dr Taylor and Dr Theodoros. [8] The Commissioner found that the Director General made her decision based on the material which was available to her at the time. By a letter of 8 August 2018 Mr Erian was given an opportunity to consider the report from Dr Murphy and he was invited to provide a response to the indication of a decision to have him retire on ill health grounds. At the time, Mr Erian was represented by lawyers and they obtained permission to provide Dr Murphy’s report to Mr Erian’s treating medical practitioner. [9] Mr Erian, through his solicitors, obtained a report from Dr Theodoros on 24 September 2018. That report was not given to the Director General. No response was made to the letter of 8 August. Mr Erian’s employment was terminated on 10 October 2018. [10] Some five weeks after his employment was terminated, Mr Erian consulted Dr Taylor, a psychiatrist. He provided a report on 17 November 2018. [11] The paragraph at the centre of the appellant’s case is in a section of the Commission’s reasons headed: “Consideration of evidence: Mr Erian’s incapacity for work”. [12] In that section of the reasons, the Commissioner said: “[70] At no point did Mr Erian or his representatives inform the Department that they disputed the ill-health retirement or ask for an extension of time to be able to furnish the Department with medical opinions which differed to Dr Murphy's. [71] In circumstances were [sic] the Department had confirmation that the ill-health retirement letter had been received by virtue -- 3 of 10 -- 4 of the request for the IME report to be released to Mr Erian's treating medical practitioner, and where a clear timeline for any response had been established in the letter, I find that it was reasonable for the Department to form a view that the ill-health retirement was not opposed by Mr Erian when they received no further contact regarding the matter. [72] The Department were under no obligation to make the Applicant take up the opportunity to respond to the ill health retirement letter. The natural justice was afforded to the Applicant by virtue of being given the opportunity to respond. [73] For whatever reason, Mr Erian and his representatives chose not to provide the differing medical opinions until well after the ill- health retirement had been effected. [74] Dr Taylor provided an opinion that he believed Mr Erian could return to work, however, he saw Dr Taylor only after the medical retirement had been put in place. [75] Dr Theodoros gave evidence that was not inconsistent with his view previously expressed to the Department that Mr Erian could return to work if redeployed. [76] However, the reports of Dr Theodoros and Dr Taylor only became available after the medical retirement. In Glover v Education Queensland [2005] QGIG 180, the matter of reports being provided after the decision to ill-health retire was considered: But the real issue was that having been presented with such a report on 2 August, some seven months after it was determined Ms Glover was able to be ill-health retired and more than three months after the employment came to an end, what was the department to do? The decision to ill-health retire could not be undone, and Ms Glover was asked on 12 January to provide reasons why ill- health retirement should not proceed. Even if Dr Larder's opinion was not accepted, it could not change what had occurred as from the 22nd of April 2005. [77] With consideration to that decision, it is my view that Dr Woods cannot be expected to give consideration to reports she had no knowledge of or access to at the time of making her decision and, in the case of Dr Taylor’s report, were undertaken at a time after the IME assessment and following the ill-health retirement. [78] It was put to the Commission that the medical evidence called by Mr Erian would demonstrate that at the time of the ill-health retirement, Mr Erian was well enough to return to work. [79] The problem I have is that the medical evidence I consider relevant to that matter must be the medical evidence that was available to the Department and not some other reports -- 4 of 10 -- 5 which, while they may have been in existence around the same time, were unknown to the Department.” (citations omitted, emphasis added) [13] In coming to her conclusion, the Commissioner stated: “[80] Having considered all of the evidence and the sequence of events leading to the decision to ill-health retire Mr Erian, I am satisfied that the dismissal was not harsh, unjust or unreasonable.” Ground of appeal [14] The appellant relied on one ground of appeal: “The Commission erred in deciding that the reports of Dr Taylor and Dr Theodoros were not relevant to the question of whether Mr Erian’s dismissal was harsh, unjust or unreasonable.” What did the Industrial Commissioner decide? [15] The appellant argues that paragraph [79] of the Commissioner’s reasons evidences a decision that the reports of Dr Taylor and Dr Theodoros (“the appellant’s reports”) were not relevant to her decision. [16] The respondent contends that, when read in context, the paragraph merely demonstrates that the Commissioner’s observations only related to the weight to be given to them. [17] The respondent is, of course, bound by its conduct at the hearing in the Commission. It did not object to the reception into evidence of the appellant’s reports. Both doctors were cross-examined and each party made submissions about the weight to be given to the various reports. The respondent did not, in its closing submissions, submit that the appellant’s reports were irrelevant. It did submit that the evidence of Dr Murphy should be preferred. Similarly, the appellant made no submissions about relevance but argued that the appellant’s reports should be preferred to the evidence of Dr Murphy. [18] It follows, that there was no contest about the relevance of the appellant’s reports (because the respondent had, by its conduct, accepted their relevance) but only as to their weight. [19] The respondent argues that the Commission was not ruling on the “relevance” of the appellant’s reports to a matter in issue in the proceeding. It says: “Rather, the Commission’s finding concerned how ‘relevant’ – in the ordinary sense of that word – the respective medical opinions were to the Appellant’s submission that ‘… at the time of the ill-health retirement, Mr Erian was well enough to return to work.’” (emphasis in original) [20] That contention is followed by a reference to the dictionary definition of “relevant” which, with respect, is the meaning ordinarily applied in the legal sense. -- 5 of 10 -- 6 [21] I do not accept the respondent’s construction of the reasons given by the Commissioner. The paragraph the subject of contention follows immediately after a reference to another decision in which reports had been provided after termination and the expression of the Commissioner’s view that “it is my view that Dr Woods cannot be expected to give consideration to reports she had no knowledge of or access to at the time of making her decision”.1 Notwithstanding that the parties accepted the relevance of the Appellant’s reports, the Commissioner determined that they were not relevant for her determination. [22] In the light of the conduct of the parties, particularly the respondent, there was no question as to relevance. It should not be thought, though, that the admissibility of reports either provided after termination or obtained after termination is certain. In Gregory v Philip Morris Ltd,2 a Full Court of the Federal Court considered a provision of the Metal Industry Award 1984 which provided: “Termination of employment by an employer shall not be harsh, unjust or unreasonable ...”. The majority (Wilcox and Ryan JJ) held that the relevant contract of employment incorporated the terms of the award and terms were implied in the contract of employment such that the employer’s breach of the award was also a breach of its contract with the employee. That part of their decision was expressly disapproved by a Full Court of the Federal Court in Byrne v Australian Airlines Ltd,3 and that part of that decision was upheld by the High Court of Australia on appeal.4 [23] A relevant part of the majority decision in Gregory v Phillip Morris Ltd, which was not disturbed, was their consideration of the particular clause in this context: “However, cl 6(d)(vi) is not addressed to the question of termination of employment in the abstract. It is intended to deal with actual industrial situations, requiring that a termination of a particular individual shall not be harsh, unjust or unreasonable. The application of the paragraph requires consideration of the circumstances of each case, as they exist when the decision is taken to terminate the particular employee. … … The question whether a dismissal is harsh, unjust or unreasonable must be determined in the light of the facts as they appear at the relevant time. We accept that, if the relevant facts are not clear, it is the obligation of an employer bound by a provision such as cl 6(d)(vi) to establish those facts before dismissing an employee … But, provided that the employer discharges the obligation to investigate the facts, a dismissal does not contravene the provision merely because it later appears that the true facts differed from those which appeared at the date of the decision to dismiss. Clause 1 Erian v State of Queensland (Department of Agriculture and Fisheries) (No. 2) [2019] QIRC 202 at [77]. 2 (1988) 80 ALR 455. 3 (1994) 47 FCR 300. 4 Byrne v Australian Airlines Ltd (1995) 185 CLR 410. -- 6 of 10 -- 7 6(d)(vi) is intended to operate in a practical way in a commercial and industrial environment.”5 (citations omitted, emphasis added) [24] On the question of incorporation of the terms of the award into the contract of employment, Jenkinson J disagreed with the majority but on this point said: “The question whether the termination was unreasonable is, I think, one of fact. This question requires a determination, by reference to moral values and prudential considerations current in the community, of what the tribunal of fact thinks a reasonable employer in the circumstances would have decided to do at the time when the respondent terminated the appellant’s employment.”6 (emphasis added) [25] There are other authorities, to which I was referred by the appellant, which referred to the need to consider “the entire factual matrix”7 but that was with respect to the need to determine whether a termination was “for a valid reason”. As this was not the subject of detailed submission it need not be pursued. [26] In the light of the manner in which the hearing had been conducted, it was not open to the Commissioner to decide, as she did, that the Appellant’s reports were not relevant to the question before her. The parties had, by their conduct, agreed that they were. It follows, then, that the appellant has demonstrated an appellable error. What order should be made? [27] The appellant seeks an order setting aside the decision and that this court substitute its own decision and grant the appellant compensation. That assumes that the evidence supports such an order. [28] I turn to the question upon which this case turns – was Mr Erian well enough to return to work? The appellant’s argument is that the weight of the expert opinion favours an answer that he was well enough. But there is other relevant evidence. [29] As part of the evidence concerning the respondent’s efforts to find a different position in which the appellant could work the Commissioner accepted the following evidence: (a) the Department had a normal practice whereby it sought to return people to work in the role that they had substantively performed or if that was not possible to a different position after an assessment of their skills and capabilities, (b) the appellant had been asked to participate in an assessment of his capabilities and skills, (c) following Dr Theodoros’ advice that he was able to return to work but not in the Fire Ant Unit “steps were taken to undertake a functional capability and skills assessment so that we could determine what area of the Department 5 (1988) 80 ALR 455 at 471; cited with approval in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430. 6 (1988) 80 ALR 455 at 457. 7 Commonwealth (Australian Taxation Office) v Shamir (2016) 261 IR 176 at 189 [46]. -- 7 of 10 -- 8 would be best suited for Mr Erian until such time as when he did rehabilitate back into the workplace”,8 (d) Mr Erian refused to participate in this assessment. [30] The Commissioner found, as a fact, that it was Mr Erian’s own actions which stymied the return to work process which the Department had attempted to put in train following advice from Dr Theodoros. [31] This was consistent with the information the appellant gave to Dr Murphy. The Commissioner summarised Dr Murphy’s evidence in the following way: “ He said he wouldn't go back to the Fire Ant Unit, and he also said he wouldn't do a performance improvement plan.  According to his notes, Mr Erian was emphatic that he would not do a performance improvement plan. Dr Murphy wrote and underlined "not a PIP" and said that this was him quoting Mr Erian.  Mr Erian said 'The Department is setting me up to fail' Dr Murphy's impression was that Mr Erian was referring to the whole Department was at other times he referred to the Fire Ant Section rather than the Department.  Dr Murphy wrote in his report: "Mr Erian's mistrust and paranoia will quickly spread to any new manager who comments on his work performance". When questioned about whether this referred to the Department or the Fire Ant Section, Dr Murphy said it referred to the Department.  Mr Erian had said he was 'dying to go back to work' and Dr Murphy was being asked to consider if it was safe for him to return to work.  Mr Erian was functioning well in a lot of other contexts and referred to the letter of Dr Theodoros saying that Mr Erian was living a normal life, however: …My concern was that on specific subjects, the quality of his thinking began to break down, and he had lost the capacity for effective thought and problem solving. All very specific issues. That certainly included the Fire Ant Unit. That certainly included the performance improvement plan. But there were other comments he made that made me think that his thinking was also very distorted around the Department was a whole, and the way he behaved with me during the assessment also concerned me.  Mr Erian's body language was very unusual and suggested that he was not able to think calmly about the interview. 8 Erian v State of Queensland (Department of Agriculture and Fisheries) (No. 2) [2019] QIRC 202 at [30]. -- 8 of 10 -- 9  It is very unusual for Dr Murphy to decide to stop people from going back to work if they want to. He said that he did it out of genuine concern for Mr Erian's wellbeing.  Mr Erian appeared to not only be concerned about the two people in the Fire Ant Unit he had had problems with. It also included the Department. He made several comments saying the Department was out to – was trying to set him up to fail, and it also included me.  Compared to people he deals with day in day out, Mr Erian's behaviour was very different and it worried him.”9 (citations omitted) [32] The appellant argues that the appellant’s reports should have been taken into account by the Commissioner and that greater weight should have been given to them than the report by Dr Murphy. If that had occurred, it was contended, there would have been a finding in his favour. [33] I turn first to the report from Dr Taylor. Mr Erian was not assessed by Dr Taylor until 12 November 2018 – over a month after the termination of the appellant’s employment. In a letter from the appellant’s solicitors, he was asked to prepare a written report “stating, in your expert opinion: (a) Does Mr Ihab Erian have any diagnosis for a mental or physical illness that may affect his work performance? (b) If Mr Erian is diagnosed with a mental or physical illness, does this directly or indirectly affect his work performance? (c) The length of time the incapacity, illness or disability if it exists may last?” [34] It is important to note that Dr Taylor was not asked to give any opinion about Mr Erian’s capacity or fitness at the time his employment was terminated. In his report, he says: “I am satisfied at this time that Mr Erian no longer meets criteria for any mental disorder or mental illness.” (emphasis added) [35] The only reference he makes to Mr Erian’s condition before termination is: “16.3 I would accept on the balance of probabilities that Mr Erian did suffer adjustment disorder with depression and anxiety (ICD10 F43) between 2016 and 2017, and I would accept the account of the treating psychiatrist Dr Theodoros that this fully resolved by 2018.” [36] He accepted, in cross-examination, that the gist of his report was that Mr Erian “could go back to his previous employment … as long as that could be carefully managed.” Dr Taylor was not asked to, and did not form an opinion on his own examination, 9 Erian v State of Queensland (Department of Agriculture and Fisheries) (No. 2) [2019] QIRC 202 at [47]. -- 9 of 10 -- 10 about Mr Erian’s condition at the time he was asked to show cause. While he accepts the opinion of Dr Theodoros, he did not investigate that himself because he was not asked to. [37] Dr Theodoros was the appellant’s treating psychiatrist. I do not, in any way, intend to disparage Dr Theodoros’ skills or his ethics. It is, though, unusual for a treating medical practitioner to provide a report in circumstances such as this. In his report of 24 September 2018, he responds to Dr Murphy’s report and to the Director General’s letter to Mr Erian. He disagrees with Dr Murphy’s report but Dr Theodoros’ report is very brief and does not come to grips with the essence of the report from Dr Murphy. One of the reasons that treating medical practitioners do not ordinarily provide a report (other than as to the treatment they have provided) is that an expert’s report must be independent. Dr Theodoros had been advocating on behalf of Mr Erian for his return to work. He accepted that he had been providing medical certificates at a time when, on his evidence, Mr Erian was not suffering from a medical condition. In all the circumstances, the report from Dr Theodoros does not fall within the category of expert opinion upon which the Commission is entitled to rely. [38] The situation, then, is that there is one independent medical opinion stating that the appellant was not fit to return to work, one independent medical opinion that, after his termination, he was not suffering from any condition preventing his return to work, and one medical opinion which, for the reasons stated above, cannot be given weight. There is, then, only one acceptable piece of independent expert opinion which the matter may be determined, that is, the report of Dr Murphy. [39] The appellant did not provide either of the opinions on which he relies until this application was brought. He did not explain why he made no response to the Director General’s letter of 8 August 2018. He did not explain why he made no attempt to dissuade the Director General from terminating his employment. [40] It was not put that there was any reason which would prevent me from determining this issue. It was not suggested that there was any issue of credit which might arise from the demeanour of any of the witnesses such that the matter should be returned to the Commission for rehearing. [41] There was no challenge to any other finding made by the Commissioner and I am content to rely upon them. It follows that the decision to terminate Mr Erian’s employment was not harsh, unjust or unreasonable. [42] The appeal is dismissed. -- 10 of 10 --