Eggins v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2015] QIRC 203

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Eggins v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2015] QIRC 203 PARTIES: Eggins, Ian (Applicant) v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) (Respondent) CASE NO: B/2015/41 PROCEEDING: Power to make Declarations DELIVERED ON: 26 November 2015 HEARING DATE: 9 November 2015 HEARD AT: Brisbane MEMBER: Industrial Commissioner Neate ORDER: The Application is dismissed CATCHWORDS: INDUSTRIAL RELATIONS - Application for declaration and injunction - whether chief executive or delegate was prevented by law from requiring the Applicant to attend a medical examination while on sick leave - whether entitlement to sick leave prohibited such a requirement - relationship between provisions of Public Service Act 2008 and s 10 of Industrial Relations Act 1999 - whether decision to require the Applicant to attend medical examination was unreasonable CASES: Industrial Relations Act 1999 ss 7, 10, 274A, 277, 686 Public Service Act 2008 ss 54, 103, 174, 175, 176, 177, 178 Australian and International Pilots Association v Qantas Airways Limited [2014] FCA 32 -- 1 of 22 -- 2 Blackadder v Ramsay Butchering Services Pty Ltd (2002) 118 FCR 395 George v Rockett (1990) 170 CLR 104 Grady v Commissioner for Railways (New South Wales) (1935) 53 CLR 229 Graham v Baker (1961) 106 CLR 340 Litchfield-Bennett v State of Queensland (Queensland Ambulance Service) [2015] ICQ 005 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 The Queen v Anderson; ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 Thompson v IGT (Australia) Pty Ltd (2008) 173 IR 395 APPEARANCES: Mr K. Watson, counsel instructed by Susan Moriarty & Associates, for the Applicant Dr M. Spry, counsel instructed by Crown Law, for the Respondent Decision [1] Ian Eggins ("the Applicant") is employed under the Public Service Act 2008 ("the PS Act") as a Correctional Services Supervisor with Queensland Corrective Services. Since 14 September 2015 he has been on sick leave. On 19 October 2015, the Deputy Director-General of the Department of Justice and Attorney-General ("the Department," "the Respondent") directed the Applicant to attend an independent medical examination on 29 October 2015. That direction was given under s 175(b) of the PS Act. The Applicant did not attend the medical examination. [2] On 28 October 2015, the Applicant filed an application with the Industrial Registrar for certain declarations under s 274A of the Industrial Relations Act 1999 ("the IR Act") and an injunction under s 277 of that Act. On 6 November 2015, he filed an amended application for a declaration and injunction. Submissions in relation to the amended application were made to the Queensland Industrial Relations Commission ("the Commission") at a hearing on 9 November 2015. The issues [3] In essence, the Applicant submits that, in the circumstances of this case: (a) the chief executive of the Department or their delegate1 is excluded by the operation of the IR Act from directing the Applicant under the PS Act to attend an independent medical examination while he is on sick leave; or 1 The chief executive may delegate the chief executive's functions to any appropriately qualified person: Public Service Act 2008 s 103(1). -- 2 of 22 -- 3 (b) if the chief executive of their delegate may direct the Applicant to attend an independent medical examination, the exercise of the discretion in relation to the Applicant has miscarried and was unreasonable. [4] The issues must be resolved by reference to relevant provisions of the IR Act and the PS Act. Factual background [5] A substantial volume of factual material was provided to the Commission by way of three affidavits, namely: (a) affidavit of Ian Eggins sworn on 28 October 2015 (Exhibit 1); (b) affidavit of Susan Lee Moriarty sworn 9 November 2015 (Exhibit 2); and (c) affidavit of Nicola Mary Smith affirmed on 6 November 2015 (Exhibit 3), and the attachments to Exhibits 1 and 3. [6] However, the relevant factual background to these issues can be stated briefly, drawing on an agreed statement of facts provided to the Commission. In summary: (a) on 15 May 2015, the Applicant was suspended from duty on full remuneration, following receipt of allegations regarding his conduct as a Correctional Supervisor, and he participated in an interview with the Department's Ethical Standards Unit ("ESU"); (b) on 23 July 2015, the Applicant sent to the Respondent by email a letter from his psychologist suggesting that the Applicant was, at that time, unable to participate in the interviews; (c) on 27 July 2015, the Assistant Director-General of the Department wrote to the Applicant outlining a number of allegations against him and inviting him to show cause why disciplinary action should not be taken against him (the Applicant has not yet responded to that show cause letter); (d) on 28 July 2015, the Applicant sent an email to the Respondent confirming that he had received the letter dated 27 July 2015, advising that he was to take pre-approved recreation leave from 3 August to 13 September 2015 (and would be overseas from 9 to 27 August 2015 inclusive), and requesting that the matter be put into abeyance until he returned from leave and had received a clearance from his treating psychologist and treating psychiatrist; (e) on 2 August 2015, the Assistant Director-General emailed the Applicant directing him to provide a medical certificate from his treating general practitioner or psychiatrist advising when his unfitness to participate in any interviews with the ESU began and the likely date that he would be able to participate in an interview; -- 3 of 22 -- 4 (f) on 5 August 2015, the Applicant provided a letter from his treating general practitioner (Dr David Dowling) dated 5 August 2015 advising that the Applicant was unfit for interviews from 20 July to 2 August 2015 and that Dr Dowling would review the Applicant on the Applicant's return from recreation leave and would assess his fitness for interviews at that time; (g) the Applicant remained on suspension on full remuneration from 15 May to 2 August 2015 inclusive; (h) although on 5 August 2015, the Applicant submitted a medical certificate from his general practitioner stating that he had been unfit for interviews from 20 July to 2 August 2015, no deduction was made from the Applicant's paid sick leave entitlements for this period; (i) for the period 3 August 2015 to 13 September 2015 inclusive, the Applicant was on pre-approved recreation leave and travelled overseas from 9 to 27 August 2015 inclusive; (j) on 8 September 2015, the Applicant's solicitor wrote to the Assistant Director-General advising that the Applicant was being treated therapeutically by a psychiatrist for Post-Traumatic Stress Disorder in conjunction with a clinical psychologist and his General Practitioner whose shared opinion was that the Applicant "is presently and indefinitely unfit for work and for engagement in the disciplinary process;" (k) by an undated letter received by the Applicant's solicitor on 11 September 2015, the Assistant Director-General directed the Applicant to provide, by 16 September 2015, medical evidence supporting the claim that he was presently and indefinitely unfit for work and for engagement in the disciplinary process, and further advised that, in the absence of specific medical evidence, she would proceed to make a determination based on the material currently before her, on or after 28 September 2015; (l) on 15 September 2015, the Applicant's solicitors wrote to the Assistant Director-General advising that a report was being obtained from the Applicant's treating psychiatrist but the report may not be available by 16 September 2015; (m) on 24 September 2015, the Assistant Director-General wrote to the Applicant's solicitor advising that the Applicant would be placed on sick leave from 14 September 2015; (n) on 29 September 2015, the Applicant's solicitor wrote to the Assistant Director-General's adviser attaching medical certification from the Applicant's treating psychiatrist (Dr Margaret Carmody); (o) on 2 October 2015, the Assistant Director-General wrote to the Applicant's solicitor advising the Applicant to complete an Application for Sick Leave; -- 4 of 22 -- 5 (p) on 12 October 2015, the Applicant completed the Application for Sick Leave and lodged it; (q) by letter dated 19 October 2015, and received by the Applicant on 22 October 2015, the Deputy Director-General directed the Applicant to undergo compulsory psychiatric assessment on 29 October 2015; (r) on 26 October 2015, the Applicant's solicitor wrote to the Deputy Director-General to advise that "an employee complaint outlining objections to your direction on the grounds that the direction is both invalid and unreasonable and therefore unlawful" would be "lodged with you as soon as possible." No complaint has been lodged by the Applicant to date; (s) on 27 October 2015, the Deputy Director-General wrote to the Applicant's solicitor advising that he had determined that his direction that the Applicant attend the independent medical examination "is a valid and lawful direction pursuant to Chapter 5 Part 7 of the Act" and advised that the Applicant remained directed to attend the assessment rescheduled to 29 October 2015; (t) on 28 October 2015, the Applicant's solicitor filed and served an Application for a Declaration and Injunction; (u) the Applicant did not attend the scheduled independent medical assessment on 29 October 2015. [7] It is relevant to highlight that: (a) from 15 May 2015 until 2 August 2015, the Applicant was suspended on full remuneration; (b) from 3 August 2015 until 13 September 2015, the Applicant was on pre- approved recreation leave; (c) from 14 September 2015, the Applicant was on sick leave; and (d) the Applicant's entitlement to paid sick leave will be exhausted by 30 November 2015. Respondent's undertaking [8] At the conclusion of the hearing, counsel for the Respondent gave an undertaking on behalf of the Respondent that, until the Commission hands down its decision on this application, the Respondent would not take any further steps in relation to any disciplinary action against the Applicant because of his failure to attend the independent medical examination on 29 October 2015. Applicant's submissions [9] As noted earlier, the Applicant submits that in the circumstances of this case: -- 5 of 22 -- 6 (a) the chief executive of the Department or their delegate is excluded by the operation of the IR Act from directing the Applicant under the PS Act to attend an independent medical examination while he is on sick leave; or (b) if the chief executive of their delegate may direct the Applicant to attend an independent medical examination, the exercise of the discretion in relation to the Applicant has miscarried and was unreasonable. [10] Limits on the chief executive's power: The focus of this part of the submissions was on what Mr Watson referred to as the intersection of the PS Act and the IR Act specifically at ss 174, 175, 176, 177 and 178 of the PS Act and ss 686 and 10 of the IR Act. [11] Section 174 of the PS Act relevantly provides that Part 7 of Chapter 5 of that Act (Mental or physical incapacity) applies to a public service employee if: (a) the employee is "absent from duty;" and (b) the chief executive "reasonably suspects that the employee's absence … is caused by mental illness or disability." [12] Section 175 of the PS Act provides that the chief executive "may:" (a) appoint a doctor to examine the employee and give the chief executive a written report on the examination; and (b) "require the employee to submit to the medical examination." [13] Under s 176 of the PS Act, the employee "must not be given sick leave for any period during which the employee fails to comply with the requirement," i.e. the requirement to submit to the medical examination. [14] Subsection 177(1) of the PS Act relevantly provides that the report on the medical examination "must include the examining doctor's opinion as to whether the employee has a mental … illness or disability that may adversely affect the employee's performance." If the doctor considers the employee has such an illness or disability, the report must also include the doctor's opinion as to: (a) the likely direct or indirect effect of the illness or disability on the employee's performance; (b) an estimate of how long the illness or disability or its effects are likely to last; (c) whether or not disclosing the information in the report to the employee might be prejudicial to the employee's mental health or well-being (s 177(2)). -- 6 of 22 -- 7 [15] The possible consequences of an independent medical report are set out in s 178 of the PS Act. If, after considering the report of the medical examination, the chief executive is "reasonably satisfied the employee's absence … is caused by mental … illness or disability," the chief executive may: (a) transfer or redeploy the employee; or (b) if it is not reasonably practicable to transfer or redeploy the employee - retire the employee from the public service (s 178(1)). The PS Act contemplates that other action may be taken relating to the employee (s 178 (2)). [16] The Applicant submits that the discretionary power conferred on the chief executive by s 175 of the PS Act must be exercised in accordance with law and must give way to a statutory requirement to the contrary. The Applicant relies on the following passage from the judgment of Kitto J in The Queen v Anderson; ex parte Ipec-Air Pty Ltd:2 "It is a general principle of law, applied many times in this Court … that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself." [17] There can be no issue with that statement of principle, but it does not answer the issue here, namely, whether there is a limit on the discretionary power such that the chief executive may not require the Applicant to submit to a medical examination. It is only if such a limitation is identified that the principle can be invoked. [18] In the present case, the Applicant submits: (a) by s 686 of the IR Act, the Respondent is bound by the relevant provisions of that Act in respect of its employees; and (b) the discretion invested in the chief executive of the Department under s 175 of the PS Act must give way where its exercise would water down or diminish an "entitlement" that the Applicant has under the IR Act, specifically because of the operation of s 10 of the IR Act. [19] Section 10 of the IR Act is within Division 2 (Sick leave) of Chapter 2 of that Act (which deals with Pre-modernisation employment conditions). Section 10 is headed "Entitlement." Subsection 10(2) sets out the number of days sick leave to which an employee is "entitled." That entitlement is qualified by s 10(3), the terms of which are central to the Applicant's submissions. [20] Subsection 10(3) of the IR Act provides: 2 The Queen v Anderson; ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177, 189. -- 7 of 22 -- 8 "However, the employee's entitlement is conditional on- (a) the employee promptly notifying the employer of- (i) any illness that will cause the employee to be absent from work; and (ii) the approximate period for which the employee will be absent; and (b) if the employee is absent for more than 2 days- (i) the employee giving the employer a doctor's certificate about the nature of the illness and the approximate period for which the employee will be absent; or (ii) the employee giving the employer other evidence of the illness to the employer's satisfaction." (emphasis added) Subsection 10(6) provides that sick leave accumulates. Other subsections are not directly relevant to the issue in this case. [21] The Applicant submits that, in the absence of a definition of "entitlement" in the IR Act, the word means "that to which one is entitled, as part of a contract, will, employment arrangement, etc."3 A person who is entitled to something has a right or claim to it.4 [22] The Applicant emphasises that he has an "entitlement" to sick leave as described in s 10, provided that conditions in that section are met. In particular, he submits, the requirement of s 10(3) of the IR Act was satisfied by the letter from his solicitor dated 8 September 2015 which notified his employer that the Applicant was: "being treated therapeutically by a psychiatrist for diagnosed Post Traumatic Stress Disorder [PTSD], in conjunction with a clinical psychologist and his General Practitioner whose shared opinion is that he is presently and indefinitely unfit for work and for engagement in the disciplinary process. A combination of the mental disability and medications is inhibiting memory and general cognitive functions." [23] Although that is the Applicant's submission, the chronology set out earlier shows that the Department did not accept the correspondence as sufficient. In summary: (a) by an undated letter in reply received by the Applicant's solicitor on 11 September 2015, the Assistant Director-General: i. referred to the statements in the solicitor's letter about the Applicant's condition and treatment; 3 Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th end, 2009) 556. 4 Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th end, 2009) 556. -- 8 of 22 -- 9 ii. stated that the Department had "not been provided with any evidence documenting that Mr Eggins is presently unfit to engage in the disciplinary process, nor has it been provided with any evidence that Mr Eggins is currently on medication;" iii. referred to previous correspondence from the Applicant's general practitioner to the effect that the Applicant was unfit to attend interviews from 20 July 2 to August 2015; iv. stated that the Applicant had not provided any medical evidence advising that he was "presently and indefinitely unfit for work and for engagement in the disciplinary process;" and v. directed the Applicant to provide, by 16 September 2015, medical evidence from his current treating psychiatrist or general practitioner supporting the claim that he was presently and indefinitely unfit for work and for engagement in the disciplinary process; (b) on 15 September 2015, the Applicant's solicitors wrote to the Assistant Director-General advising that a report was being obtained from the Applicant's treating psychiatrist but the report may not be available by 16 September 2015; (c) on 24 September 2015, the Assistant Director-General wrote to the Applicant's solicitor: i. advising that, in light of the advice that the Applicant "is obtaining a copy of a report from his treating psychiatrist advising he is not fit to participate in the disciplinary process," his suspension with normal remuneration would be placed in abeyance and he would be placed on sick leave from 14 September 2015;" ii. stating that the Applicant "is responsible for providing his employer with medical evidence supporting any extended absence due to illness," and that if he was not fit to engage in any interviews after the cessation of his recreation leave, he was required to provide evidence of this "at the cessation of his recreation leave on 13 September 2015;" iii. directing the Applicant to provide a report from his treating psychiatrist by 30 September 2015; iv. confirming that the department had not previously been provided with "any evidence documenting" that the Applicant was presently unfit to engage in the disciplinary process; (d) on 29 September 2015, the Applicant's solicitor wrote to the Assistant Director-General's adviser attaching a medical certificate from the Applicant's treating psychiatrist (Dr Margaret Carmody). That "brief report" referred to "significant workplace stressors which have resulted in Post Traumatic Stress Disorder and a Major Depressive Episode" and -- 9 of 22 -- 10 stated that the Applicant "does not currently have the cognitive capacity to attend to ongoing interviews" and that she "would like to admit him for further assessment and treatment;" (e) on 2 October 2015, the Assistant Director-General wrote to the Applicant's solicitor advising the Applicant to complete an application for sick leave; (f) on 12 October 2015, the Applicant completed the Application for Sick Leave and lodged it. [24] Despite that correspondence, it was submitted for the Applicant that his entitlement to sick leave operated from 8 September 2015, the date that the employer was notified that he was going to be absent. [25] Where an employee is going to be absent for more than two days, the employee is required to give the employer a doctor's certificate about the nature of the illness and the approximate period for which the employee will be absent. It was submitted that was done by the provision on 29 September 2015 of the certificate of Dr Carmody dated 24 September 2015. Further it was submitted that: (a) even though that document did not specify the "approximate period" for which the Applicant would be absent, it could be reasonably inferred that Dr Carmody did not disagree with the characterisation by the Applicant's solicitor that the Applicant was indefinitely unavailable for work; (b) given the nature of the illness, it might not be possible at a particular point in time for somebody to say how long the person is going to be ill and therefore how long they will be absent from work; (c) the Macquarie Dictionary definition of "period" includes "an indefinite portion of time, or of history, life, etc., characterised by certain features or conditions;"5 (d) because this is beneficial legislation, one would be slow to put too much focus on whether the word "period" used in s 10(3)(b)(i) of the IR Act means a specifically defined or "any specified division or portion of time."6 [26] That factual material provides the basis for the legal argument, which proceeds on the understanding that at all material times the Applicant had an entitlement to sick leave. [27] In the Applicant's submission, "sick leave" is one example of situations in which an employee is entitled to wages even though he or she is excused from performance of work.7 In other words, the employee can earn wages because, under the conditions of his or her service, the employee has been dispensed from carrying out his or her duties.8 Expressed in negative terms: 5 Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th end, 2009) 1240. 6 Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 5th end, 2009) 1240. 7 See Mark Irving, The Contract of Employment (LexisNexis Butterworth's, 2012) 566. 8 Grady v Commissioner for Railways (New South Wales) (1935) 53 CLR 229, 233 (Rich, Starke, Dixon, Evatt and McKiernan JJ). -- 10 of 22 -- 11 "it is quite wrong to say without qualification that if he is permitted to be absent … on sick leave, on 'full pay', and so relieved of the obligation to perform his duties, the pay which he receives cannot, therefore, be regarded as wages or salary."9 The High Court continued in that case to state that the conclusion that: "'sick pay' constituted wages in every sense of the word is completely in accord with a long line of authority concerning the right of an employee to receive his ordinary wages in respect of a period during which he is unable, by reason of sickness or accident, to perform his duties."10 [28] The Applicant submits that s 176 of the PS Act does not operate in relation to him in the present circumstances. That section refers to sick leave that is "given." By contrast, the sick leave which he has taken is his entitlement under s 10 of the IR Act because the relevant conditions were met. He illustrates the difference between leave which is "given" and leave to which an employee is "entitled" by reference to the Directive of the Minister Assisting the Premier: Sick Leave: No 04/13 ("the Sick Leave Directive"). The Sick Leave Directive refers to s 54(1)(a) of the PS Act and s 686 of the IR Act as the relevant legislative provisions. It provides that "entitlements" for sick leave are in accordance with Schedule One, which is in the form of a table. Schedule One distinguishes between sick leave and meritorious sick leave (which "may" be added to an employee's leave account where they have completed 26 years meritorious service). It is clear from Schedule One that in specified circumstances some sick leave may be advanced to newly appointed officers who have not accumulated the necessary sick leave on full salary. The Applicant has been employed by the Respondent for 30 years. His payslip has separate entries for sick leave and meritorious sick leave. [29] The distinction between sick leave which is "given" and sick leave to which one is entitled is not as clearly articulated in the Sick Leave Directive as the Applicant seems to submit. In particular: (a) although clause 7 of the Sick Leave Directive is headed "Sick leave entitlement," cl 7.5(a) states that sick leave "granted" to an employee is to be deducted from their accumulated "entitlement" of ordinary sick leave; (b) clause 8 "Taking leave," sets out the procedural conditions governing an employee's "entitlement" to sick leave; (c) if an employee becomes ill before the start of recreation or long service leave and their illness continues into that leave, they "may be granted" sick leave on full pay for the period of the illness instead of the leave which have been already approved, provided their application is supported by acceptable documentation (see also clause 10 "Illness during other leave"). 9 Graham v Baker (1961) 106 CLR 340, 345 (Dixon CJ, Kato and Taylor JJ). 10 Graham v Baker (1961) 106 CLR 340, 346 (Dixon CJ, Kato and Taylor JJ). -- 11 of 22 -- 12 [30] In the Applicant's submission, once he became entitled to sick leave, that entitlement could not be detracted from. In particular, his employer became disentitled to positively direct him to do certain things, including to perform his duties of employment or to attend an independent medical examination under s 175 of the PS Act. The power to direct an employee to perform a positive duty is suspended while the Applicant is on sick leave, even if he is physically able to attend the medical examination.11 If that power was not suspended, the employee would not be receiving his entitlement under s 10, but would receive something less than his entitlement. By contrast, if an employee has exhausted their sick leave, the employer could order an independent medical examination. [31] The Applicant also submits that an independent medical examination: (a) is solely for the purposes and benefit of the Respondent; and (b) is not for the benefit of the Applicant (though it might have that consequence); and (c) is not for the joint benefit of the Respondent and the Applicant. Where employees have a duty to submit to such an examination, it is for the employer's benefit. [32] In essence, the Applicant submits that in the current circumstances: (a) the Applicant has provided sufficient information to the Respondent to satisfy his employer that he is entitled to be on sick leave; (b) there is no suggestion that the Respondent requires any further information for the purpose of deciding whether the Applicant is entitled to sick leave (since it would appear that the Respondent is satisfied that the Applicant is entitled to that leave); (c) a medical examination under s 175 of the PS Act is not to be undertaken for the purpose of supplementing that information; (d) the effect of being on sick leave is to suspend the requirement to fulfil the duties of the Applicant; and (e) by directing the Applicant to attend an independent medical examination, the delegate for the Respondent is not acting according to law in the exercise of his discretion because he purports to derogate from the sick leave entitlement enjoyed by the Applicant, which entitlement is given to him by s 10 of the IR Act. [33] The exercise of the chief executive's discretion in relation to the Applicant: The Applicant submits that, if the Commission decides that the chief executive was not 11 However, the Applicant submits, his right to sick leave does not have the effect of suspending certain negative duties, such as a duty not to compete with an employer or a duty not to provide confidential information in breach of his contract of employment. -- 12 of 22 -- 13 precluded by s 10 of the IR Act from giving the direction on 19 October 2015, the exercise of discretion in giving that direction has miscarried and was unreasonable. [34] The Applicant submits there can be no reasonable suspicion held pursuant to s 174 of the PS Act because there is no doubt why the Applicant is absent from his workplace. His absence is plainly because he has exercised his entitlement (which entitlement is not disputed by the Respondent) to be absent on sick leave. [35] In particular, the Applicant submits, it could not be said that the chief executive "reasonably suspects" that the Applicant's absence is caused by mental illness or disability. At all material times, the chief executive or his delegate knew why the Applicant was absent from duty. At different times between May 2015 and the date of the hearing, he was suspended on full pay or was on recreation leave or was on sick leave. [36] Significantly for this case, the Applicant was (or was deemed to be) on sick leave from 14 September 2015. That much is apparent from: (a) the letter dated 24 September 2015 to the Applicant's solicitors in which the Assistant Director-General advised that the Applicant's suspension with normal remuneration will be placed in abeyance and he will be placed on sick leave from 14 September 2015; and (b) the letter dated 19 October 2015 to the Applicant in which the Deputy Director-General noted that the Applicant was "presently absent from duty" and had "been absent from duty due to illness since 14 September 2015." [37] A "suspicion" is something which would, in all the circumstances, create in the mind of a reasonable person an actual apprehension that a state of facts exists. The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief.12 In this case, the evidence reveals that the matter goes well beyond a reasonable suspicion and amounts to an acceptance that the Applicant's absence is because of his entitlement to sick leave, which entitlement was activated upon his suffering a psychiatric condition. Consequently, to suggest that the decision to seek an independent medical examination is based on a reasonable suspicion is incorrect and misrepresents the true situation. In all the circumstances it is capricious, arbitrary, irrational and quite unreasonable.13 [38] The Applicant submits in relation to the Commission's power to grant the relief sought that: (a) this case involves an "industrial matter"14 (namely, whether the Respondent has the power to require the Applicant to submit to a medical examination under Part 7 of Chapter 5 of the PS Act) and hence the 12 See George v Rocket (1990) 170 CLR 104, 115-116 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gadroon and McHugh JJ). 13 See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 349-352 (French CJ), 362-364 (Hayne, Kiefel and Bell JJ). 14 See the definition of "industrial matter" in s 7 of the Industrial Relations Act 1999. -- 13 of 22 -- 14 Commission may make a declaration about the industrial matter on application by the Applicant; and (b) there is no doubt that the Applicant and the Respondent are in dispute as to whether the Respondent can require the Applicant to submit to a medical examination under the PS Act, and hence the commission may grant an injunction. [39] The Applicant submits that, in all the circumstances, appropriate declaratory relief and an injunction should be granted. Respondent's submissions [40] Limits on the chief executive's power: The Respondent submits that the direction to the Applicant to attend an independent medical examination on 29 October 2015 was lawful and cannot be seen as a derogation or abrogation of his entitlement to take sick leave. The main components of this submission are summarised below. [41] First, the Applicant has not complied with the requirements of s 10 of the IR Act which give rise to his entitlement to sick leave. Although there is no dispute that the Applicant has been absent for more than two days: (a) he has not produced a doctor's certificate. The letter dated 8 September 2015 was from the Applicant's solicitor, who is not a medical practitioner. That letter is not and does not contain a doctor's certificate and, on its own, would give grounds for a suspicion sufficient to support a direction to be given under s 175 of the PS Act. The Applicant did not subsequently provide a sick leave certificate, even though he was directed to do so. (b) nowhere is there mention of an "approximate period" for which the Applicant will be absent. Rather, his solicitor advised the Department on 8 September 2015 that the Applicant is "presently and indefinitely unfit for work and for engagement in the disciplinary process." [42] Despite those circumstances, the Department placed the Applicant on sick leave. In the Respondent's submissions, that is what a reasonable employer would do while it carried out further investigations in relation to the Applicant's illness or condition. In taking the action, the Respondent has not waived its rights to carry out further investigations or to have the Applicant subjected to an independent medical examination. That is particularly the case in circumstances such as those applying here, where (in the absence of a medical certificate but on the basis of advice from a solicitor that the employee is unable to perform their duties for an indefinite period) the Department has agreed to the Applicant taking sick leave on the understanding that supporting medical documentation will be provided. [43] Second, the employer is not a doctor. Even if an employee provides a medical certificate, the employer is not bound by that certificate and is entitled to refer a worker such as the Applicant for an independent medical assessment on the basis that -- 14 of 22 -- 15 the employer reasonably suspects that the employee's absence is caused by illness or disability. [44] Third, the requirement to submit to an independent medical examination is for both parties' benefit. In particular, it could assist: (a) the employer to know whether the Applicant would be at an increased risk of sustaining an aggravation of his current condition if he returned to work in his present role, or if he were required to participate in an investigation, interview or any disciplinary process; (b) an employee because, for example, an appropriate return to work plan transfer or redeployment might be developed, or the process might protect an employee from any claim that he has abandoned his employment because he appears to be unable to perform his duties. If s 175 is read in context within the PS Act, it would be contrary to the scheme and intent of that legislation to read that section as the Applicant contends. Indeed, if the Applicant's submissions were adopted, the legislation would not be beneficial but would take important rights away from public servants. [45] Fourth, the relevant sections of the IR Act and the PS Act may be read together in a way that allows the employee to have sick leave while permitting the employer to require the employee to submit to an independent medical examination while the employee is on sick leave. The IR Act does not displace the employer's right. Nor does the requirement that an employee to submit to a medical examination interfere with his entitlement to sick leave on pay. That approach is both common sense and consistent with authority. Not only can the two pieces of legislation be read together, but that is exactly how they should be read. [46] In particular, the Respondent refers to the judgement of Madgwick J in Blackadder v Ramsey Butchering Services Pty Ltd,15 the judgement of Rares J in Australian and International Pilots Association v Qantas Airways Ltd16 which cited Madgwick J's decision with approval, and the judgement of Martin J (sitting as President of the Industrial Court) in Litchfield-Bennett v State of Queensland (Queensland Ambulance Service)17 which cited both of those decisions with approval. Those judgments refer to the position at common law, and were decided in contractual and statutory contexts that are distinguishable from the statutory scheme that applies to the present case. However, the Respondent submits that the PS Act entrenches the position at common law and makes it abundantly clear that an employer of a public service employee can require that employee to submit to an independent medical examination if the preconditions are met. In the present case, those preconditions are met. Although an employee has an entitlement to sick leave, that entitlement does not displace the employer's entitlement to make its own business arrangements and, given the specific provisions of the PS Act, to require him to submit to a medical examination. The employer's entitlement to give such a direction is reinforced by s 176 of the PS Act which clearly provides that where an employee fails to comply with the requirement to submit to such an examination, the employee must not be given sick leave for that 15 Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395, 411 [67]-[69]. 16 Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32. 17 Litchfield-Bennett v State of Queensland (Queensland Ambulance Service) [2015] ICQ 005. -- 15 of 22 -- 16 period. That is not a matter of discretion. The employee must not be given sick leave for the period in which the employee does not comply with the requirement. [47] In relation to s 174 of the PS Act, the Respondent submits that: (a) it is clear that the Applicant is absent from duty, so s 174(a) is satisfied; and (b) the chief executive (who is not a doctor) "reasonably suspects" that the Applicant's absence is caused by mental illness or disability because the Applicant's solicitor (who is not a doctor) has advised him that, based on a doctor's evidence (the report from Dr Carmody), the Applicant is not fit for work or engagement in the disciplinary process; and (c) even if the chief executive knew (rather than reasonably suspected) that the Applicant's absence is caused by mental illness or disability, that would not displace his entitlement under s 175 to direct the Applicant to submit to a medical examination. [48] In addition, or in the alternative, the Respondent submits that if the statutory provisions are inconsistent, the PS Act being the later enactment would prevail. In particular, to the extent that there is any inconsistency, s 176 of the PS Act conditions the operation of s 10 of the IR Act. [49] The exercise of the chief executive's discretion in relation to the Applicant: In response to the Applicant's alternative submissions that the Respondent's direction was unreasonable, the Respondent contends that there is no suggestion that the direction to attend the independent medical examination was taken impulsively or rapidly. Indeed, on the material available to the Commission and the chronology of events summarised earlier, no such suggestion could be sustained. Furthermore, putting to one side the argument about the unlawfulness of the direction, there is nothing raised by the Applicant to suggest that the direction was unreasonable. [50] In support of that submission the Respondent refers to the decision of Martin J in Litchfield-Bennett v State of Queensland (Queensland Ambulance Service).18 [51] In essence, the Respondent submits that a direction to attend a medical examination: (a) is lawful because the PS Act provides for it; and (b) is reasonable in the circumstances of this case. Consideration [52] Limits on the chief executive's power: I am not satisfied that the chief executive of the Department or their delegate is excluded by the operation of the IR Act from directing the Applicant under the PS Act to submit to an independent medical examination while he is on sick leave. 18 Litchfield-Bennett v State of Queensland (Queensland Ambulance Service) [2015] ICQ 005. -- 16 of 22 -- 17 [53] When the sections in Part 7 of Chapter 5 of the PS Act are read together, it is clear that the chief executive may require an employee to submit to a medical examination while an employee is on sick leave. The sections referred to earlier provide that: (a) Part 7 applies to a public service employee if the employee "is absent" from duty and the chief executive reasonably suspects that the employee's absence "is caused" by an illness or disability (s 174); (b) the employee must not be given sick leave for any period during which the employee fails to comply with the requirement to submit to the medical examination (s 176); (c) the report on the medical examination must include the examining doctor's opinion as to whether the employee "has" an illness or disease that may adversely affect the employee's performance and, if so, an estimate of how long the illness or disability or its effects "are likely to last" (s 177(2)); and (d) if, after considering the report of the medical examination, the chief executive is reasonably satisfied that the "employee's absence … is caused" by an illness or disability, the chief executive may take appropriate action (s 178). The use of the present tense in each of those provisions leads to the inevitable conclusion that a medical examination might be undertaken while the employee is on sick leave. [54] Those sections do not draw a distinction between leave which is given or granted, and leave to which an employee is entitled (assuming there is such a distinction). The wording of s 176 is ambiguous on this point. The section states that the employee must not be "given" sick leave for any period during which the employee fails to submit to the medical examination. In circumstances where (but for the disobeyed requirement) an employee is entitled to leave, the section might have referred to an entitlement being taken away. However, s 176 might contemplate circumstances where sick leave has been approved before the direction is given and circumstances where sick leave has not been approved by that date. [55] The absence of a distinction between granted leave and leave entitlement is confirmed by the terms of the Sick Leave Directive, summarised earlier, where the only distinction is between sick leave and meritorious sick leave (which only applies to employees who have completed 26 years of meritorious service). [56] In my view, considered in the context of the PS Act, Part 7 of Chapter 5 of that Act empowers the chief executive to require an employee to submit to a medical examination while the employee is on sick leave. The question raised by the Applicant's submissions is whether the exercise of that discretionary power is prevented or prohibited by the operation of s 10 of the IR Act. -- 17 of 22 -- 18 [57] There is no dispute that, if the conditions of s 10(3) of the IR Act are satisfied, the Applicant is entitled to sick leave.19 There is, however, no express statutory provision that one consequence of an "entitlement" to sick leave is that an employer is prohibited from giving any direction to an employee. No judicial authority to that effect was cited in these proceedings. Nor is the result sought by the Applicant necessarily implied. An "entitlement" to sick leave does not carry with it an implied prohibition against a direction being given under s 175 of the PS Act. The result contended for by the Applicant is not bolstered by reference to positive and negative duties of an employee. Nor was any scheme of jurisprudential analysis called in aid of that result. [58] More significantly, the outcome for which the Applicant contends is not necessarily implied when ss 174 to 178 of the PS Act are read with s 10 of the IR Act because the sections can be read together. In other words, there is no necessary inconsistency between those sections. They are capable of being read together and, in my opinion, it makes sense to do so. Furthermore, Part 7 of Chapter 5 of the PS Act is not expressed to be subject to the operation of s 10 of the IR Act. Nor is s 10 of the IR Act expressed to operate notwithstanding any other Act. In the absence of any such statutory guidance or direction on this point, I am not satisfied that the statutory entitlement to sick leave conferred by s 10 of the IR Act operates on its own either to prohibit the chief executive from requiring the sick employee to submit to a medical examination or to confer on the sick employee an immunity from such a requirement. [59] I have reached that conclusion without resort to the additional argument advanced by counsel for the Respondent that the PS Act is a more recent enactment than the IR Act and, hence, the operation of s 10 of the IR Act to prevent action under s 175 of the PS Act is excluded because the later provision conditions the operation of s 10 to the extent of any inconsistency.20 [60] The exercise of the chief executive's discretion in relation to the Applicant: Having decided that the chief executive has the power to require the Applicant to attend a medical examination, I am not satisfied that the exercise of the discretion in relation to the Applicant miscarried and was unreasonable. Whether a request is unreasonable will, nearly always, be a question of fact.21 Hence, it is necessary to consider the evidence of the circumstances in which the direction was given to the Applicant. The chronology of events is set out earlier in these reasons and it is not necessary to repeat it. [61] It is appropriate, however, to reiterate the extent of the information about the Applicant's condition (and the expected duration of it) available to the Respondent at the time when the Applicant was directed to attend an independent medical examination. (a) In his statement dated 22 July 2015 addressed To Whom It May Concern, a clinical psychologist Greg Hodgson expressed his opinion that the Applicant "is experiencing serious mental health problems. Currently he 19 The question whether the Applicant has satisfied the conditions of s 10(3) of the IR Act is considered later in these reasons. 20 See also DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011) [7.9]. 21 Litchfield-Bennett v State of Queensland (Queensland Ambulance Service) [2015] ICQ 005, [16]. -- 18 of 22 -- 19 is severely depressed and his safety has been compromised." In his opinion, the Applicant should not be exposed to further scrutiny and questioning "at the current time, as this process may further compromise his mental health with deleterious consequences." (emphasis added) (b) In his statement dated 5 August 2015 addressed To Whom It May Concern, Dr David Dowling, the Applicant's general practitioner, stated that the Applicant had been attending his surgery with a "work related Post Traumatic Stress Disorder and Major depressive illness" and he was "currently unfit to attend any interviews in relation to his work." According to Dr Dowling, the Applicant had been unfit for interviews from 20 July 2015 until to August 2015. He noted that the Applicant would be on leave until 13 September 2015. Dr Dowling said he would review the Applicant's condition on his return from leave on the week of 14 September 2015 to "assess his fitness for interviews at that time." (emphasis added) (c) In her letter dated 8 September 2015, the Applicant's solicitor notified the department that the Applicant was "being treated therapeutically by a psychiatrist for diagnosed Post Traumatic Stress Disorder [PTSD], in conjunction with a clinical psychologist and his General Practitioner whose shared opinion is that he is presently and indefinitely unfit for work and for engagement in the disciplinary process. A combination of the mental disability and medications is inhibiting memory and general cognitive functions." (emphasis added) (d) In her "brief report" dated 24 September 2015 addressed to the Applicant's solicitors, Dr Margaret Carmody referred to the Applicant's Post Traumatic Stress Disorder and a Major Depressive Episode and expressed the opinion that the Applicant "does not currently have the cognitive capacity to attend to ongoing interviews." She expressed her belief that further interviews would only exacerbate his symptoms "at this stage," and stated that she would "like to admit him for further assessment and treatment." (emphasis added) (e) The Application for Leave form prepared and signed by the Applicant dated 7 October 2015 applied for sick leave from 2 October 2015 but provided no supporting documentation and did not nominate the period for which sick leave was applied. [62] As noted earlier, the Assistant Director-General wrote to the Applicant's solicitor on about 11 September 2015 and 24 September 2015 seeking evidence that the Applicant was "presently and indefinitely" unfit for work and for engagement in the disciplinary process and stating that the Applicant was responsible for providing his employer with medical evidence "supporting any extended absence due to illness." [63] The overall effect of that material is that, although the Department had been provided with various statements to the effect that the Applicant was suffering from and being treated for a psychiatric condition, there was no indication from any doctor about the "approximate period" for which the Applicant would be absent, or whether the Applicant might recover. Consequently, even if one accepts the dictionary definition -- 19 of 22 -- 20 of "period" to include "an indefinite period of time … characterised by certain features or conditions," that does not help the Applicant because there was no doctor's certificate to that effect. [64] There is a real question about whether the Applicant met the requirement of s 10(3) of the IR Act as a precondition to his entitlement to leave. It is clear from the correspondence from the Department that, as at 24 September 2015, the Assistant Director-General was awaiting a report from the Applicant's treating psychiatrist. On the basis that it would be made available by 30 September 2015, the Applicant was retrospectively placed on sick leave from 14 September 2015. [65] In my opinion, it was open to the Department to conclude that the conditions in s 10(3)(b)(i) of the IR Act were not satisfied. Even if the brief statement of Dr Carmody constituted a doctor's certificate about the nature of the illness, it did not specify any "approximate period for which the employee will be absent." I do not accept, for the purpose of satisfying s 10(3)(b)(i), the Applicant's submission that, even though the document did not specify the "approximate period," it could reasonably be inferred that Dr Carmody did not disagree with the characterisation of the Applicant's solicitor that the Applicant was indefinitely unavailable for work. Dr Carmody only stated that, as at 29 September 2015, the Applicant did not "currently have" the cognitive capacity to attend to ongoing interviews and that she "would like to admit him for further assessment and treatment." [66] The correspondence also shows that the Applicant did not give the Department "other evidence of the illness to the employer's satisfaction." Consequently, in the alternative, the condition in s 10(3)(b)(ii) was not satisfied. [67] The fact that the Department placed the Applicant on sick leave from 14 September 2015 does not mean that it is estopped from arguing that the conditions set out in s 10(3) were not met. [68] It follows that, even if (contrary to my earlier decision) s 10(3) could operate to prevent the chief executive from requiring an employee on sick leave to submit to a medical examination, that subsection does not have that effect in this case. I turn now to the other submissions in relation to whether the chief executive's delegate exercised reasonably the discretionary power conferred by s 175. [69] The first is the Applicant's submission about the phrase "reasonably suspects." That the phrase seems somewhat curious in this context. Given that the chief executive has to reasonably suspect that the employee has an illness or disability (rather than that the employee does not have an illness or disability, and might be attempting to rort the system), another phrase like "reasonably considers" might have been used. Nonetheless the words of the statute are "reasonably suspects." They can be contrasted with the higher test of "reasonably satisfied" in s 178. [70] The phrase "reasonably suspects" need not be analysed to the depth submitted by the Applicant. I consider that it sets a benchmark which allows for action to be taken under s 175 in a range of circumstances so long as the chief executive has a reasonable basis for taking that action. The fact that the benchmark is set at the level of "reasonably suspects" does not preclude the chief executive from acting under Part 7 if he or she has a higher level of knowledge. No higher, precluding barrier is set, nor -- 20 of 22 -- 21 should it be inferred. To do so could defeat the operation of the scheme in an imprecise, unpredictable (and hence unjust and unwarranted) manner. [71] Consequently, it was open to the Deputy Director-General to "reasonably suspect" that the Applicant's absence from work was caused by mental illness or disability. The letter dated 19 October 2015 from the Deputy Director-General to Dr Shaikh clearly states that the purpose of making an appointment for Dr Shaikh to examine the Applicant is to "determine whether Mr Eggins has a mental or physical illness or disability that may adversely affect his work performance or attendance at work and, if so, to provide advice to inform the appropriate management of Mr Eggins's employment." The letter sought answers to a series of detailed questions which, in broad terms, related to: (a) a diagnosis of whether the Applicant currently had a mental illness or disability which might adversely affect his work performance or attendance at work and, if the Applicant has such an illness or disability: i. an estimate of how long that illness or disability or its effects were likely to last; ii. whether the Applicant was medically unfit to participate in any investigation, interviews and or disciplinary process (and, if so, whether that inability would be permanent or for the foreseeable future; (b) any adjustments and/or supports that would assist the Applicant undertake the duties of Correctional Supervisor; (c) whether the Applicant would be at an increased risk of sustaining an aggravation of his current condition if he were to return to work as a Correctional Supervisor, or if he were required to participate in an investigation, interview or interviews and/or required to do to participate in any disciplinary process, and whether the Applicant is capable of work in any other form of employment within the Department or the public sector (and, if so, what medical restrictions, adjustments and supports would need to be considered when identifying appropriate alternative work); and (d) whether Dr Shaikh had any objection to the release of his report to the Applicant (and whether disclosing the information in that report to the Applicant would be detrimental to his mental or physical health and well- being). Those questions were relevant to the Applicant's circumstances and consistent with the requirements of s 177 of the PS Act. [72] Having regard to the information available to the Deputy Director-General at 19 October 2015, the relevant provisions of the PS Act, and the terms of his letter to Dr Shaikh, I am satisfied that the steps taken in arranging an appointment for the Applicant with Dr Shaikh were reasonable. Consequently, I find that the direction given to the Applicant in the letter from the Deputy Director-General of 19 October -- 21 of 22 -- 22 2015 and reiterated on 27 October 2015 was reasonable. The exercise of the discretion under s 175 of the PS Act did not miscarry. [73] I have reached this conclusion without reference to judicial authority on whether, in circumstances such as apply to the Applicant, a direction to submit to a medical examination was reasonable. The authorities cited, albeit in different contractual or statutory contexts, provide support for that conclusion. [74] In Litchfield-Bennett v State of Queensland (Queensland Ambulance Service), Martin J noted that it has been accepted on number of occasions that directions to attend a medical examination with respect to an employee's fitness to work will ordinarily be reasonable.22 Although His Honour was referring to circumstances in cases involving the common law, there is no reason to use that distinction as the reason for rejecting those decisions, at the least by analogy, to support the proposition that directions properly given under s 175 of the PS Act are also reasonable. [75] The circumstances in Litchfield-Bennett were that a psychiatrist had expressed concern about the Appellant's mental health. According to Martin J, the respondent employer "clearly had an obligation to determine whether or not its employee was fit to perform the duties of her employment." Those steps were taken by the employer and they were "entirely reasonable in these circumstances."23 Conclusion [76] For the reasons outlined above, I have concluded that: (a) the chief executive of the Department or their delegate is not excluded by the operation of the IR Act from requiring the Applicant under the PS Act to submit to an independent medical examination while he is on sick leave; and (b) the exercise of the discretion when directing the Applicant to submit to such a medical examination while on sick leave did not miscarry and was not unreasonable. [77] It follows that the application for a declaration and injunction must be dismissed. [78] Order accordingly. 22 Litchfield-Bennett v State of Queensland (Queensland Ambulance Service) [2015] ICQ 005, [17] citing Blackadder v Ramsay Butchering Services Pty Ltd (2002) 118 FCR 395, Thompson v IGT (Australia) Pty Ltd (2008) 173 IR 395, and Australian and International Pilots Association v QANTAS Airways Limited [2014] FCA 32. 23 Litchfield-Bennett v State of Queensland (Queensland Ambulance Service) [2015] ICQ 005, [18]. -- 22 of 22 --