Department of Corrective Services v Cassidy [2007] QIRC 9 (2007) 184 QGIG 69

[Extract from Queensland Government Industrial Gazette, dated 9 February, 2007, Vol. 184, No. 6, pages 69-75] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 331 - application for orders Department of Corrective Services AND Damien Cassidy (B/2007/4) COMMISSIONER THOMPSON 19 January 2007 REPORT ON DECISION (as edited) In giving his decision from the Bench on 19 January 2007, Commissioner Thompson stated: "An application (B/2007/4) was filed by the Department of Corrective Services (Corrective Services) on the afternoon of 18 January 2007 seeking that the Commission dismiss or refrain from hearing a dismissal application from Mr Damien Cassidy (in matter TD/2006/387), pursuant to s. 331(b) of the Industrial Relations Act 1999 (the Act) which says: '(b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers - (i) the cause is trivial; or (ii) further proceedings by the court or commission are not necessary or desirable in the public interest. . .'. The substantive matter, in Directions Orders issued by Vice President Linnane on 26 October 2006, had been scheduled to be heard by the Commission in Townsville on 22 to 25 January 2007. The Commission responded to application B/2007/4 by setting the matter down for hearing the following day, that being 19 January 2007. The application sought the following outcome by way of a decision from the Commission which was set out at paragraph 2 of the application: '(a) the Commission dismisses matter TD/2006/387. (b) the Commission refrains from hearing or deciding matter TD/2006/37 because the Commission considers that further proceedings by the Commission are not necessary. (c) the Commission refrains from hearing or deciding matter TD/2006/387 because the Commission considers that further proceedings by the Commission are not desirable in the public interest.'. An affidavit made by Mr Shane Donovan, the Manager of Employee Relations with Corrective Services, formed part of the application. The affidavit contained facts and circumstances relied upon by the applicant (in the strike out matter), supportive of their application. Included amongst the material was the following: '(a) Today, 18 January 2007, I was provided with correspondence from QSuper dated 17 January 2007 stating as follows: a. RE: Damien Christopher Cassidy - Date of Birth: 7 May 1972. I refer to previous correspondence regarding the member's claim for disability benefits. After consideration of the medical evidence, it has been determined by the Board's Delegate that the member is considered permanently unable to carry out the duties of their position. Accordingly, the member is entitled to a Permanent and Partial Disability benefit. [emphasis added] (b) This independent determination is supported by a ruling of the Medical Assessment Tribunal - Psychiatric, dated 15 March 2006, which states: a. Following consideration of all the medical evidence presented, interview of the worker and reference to the WorkCover Queensland Table of Injuries and American Medical Association Guides to the Evaluation of the Permanent Impairment, the Tribunal determined: -- 1 of 6 -- 2 i. S.442(2) (a) the worker has sustained a degree of permanent impairment; and (b) (ii) the nature of the impairment is Adjustment Disorder with Mixed Anxiety and Depressed Mood; and the degree of the impairment is two and a half (2 1/2) percent (6001). (c) A review of the applicant's WorkCover medical certificates demonstrates that he was in fact 'not able to work' up to at least 29 September 2006, some three months after the date of dismissal. (d) Queensland Corrective Services (QCS) interprets this information as follows: a. The applicant can never be reinstated to his position. b. The applicant was incapable of performing work for at least three months after his termination date. c. The applicant has requested and received a payout benefit from QSuper according to his predicament. d. The applicant would have been ill-health retired (as provided for under section 85 of the Public Service Act 1996) had he not been dismissed. (e) The Industrial Relations Act 1999 provides remedies according to section 78. 78 Remedies - reinstatement or re-employment (1) This section applies if the commission is satisfied an employee was unfairly dismissed. (2) The commission may order the employer to reinstate the employee to the employee's former position on conditions at least as favourable as the conditions on which the employee was employed immediately before the dismissal [emphasis added]. (3) If the commission considers reinstatement to be impracticable, the commission may order the employer to re-employ the employee in another position that the employer has available and that the commission considers suitable. (f) Construction of section 78, in QCS's submission, prohibits an applicant from seeking anything in the first instance other than reinstatement. Only if reinstatement is deemed impracticable may the commission then turn their attention to the alternative orders. (g) In this instance reinstatement is not only impracticable but 'impossible'. The applicant cannot, by his own admission in requesting the QSuper outcome, seek reinstatement. (i) In consideration of the public interest it is submitted that a four day hearing in Townsville is a costly exercise given the applicant's inability to apply for the primary remedy. Given his unfit state to work for at least 3 months after the date of dismissal and the fact that he has now been granted QSuper benefits, which means he would have been ill-health retired from the public service, the applicant has suffered no actual loss. (j) There is significant prejudice to the respondent (in the dismissal matter). To now proceed to hear this matter represents an intolerable burden on the employer. (k) The applicants conduct is not appropriate. On being informed the applicant vacated a Magistrate court appearance due to a medical condition, the Agency enquired as to [the] health and ability of the applicant to proceed with the hearing scheduled in Townsville, to be told the applicant could proceed to hearing. (l) This was obviously done in the knowledge that the applicant was pursuing ill health retirement benefits. (m) Effectively it could be argued that he has now ended his employment with the agency voluntarily, by pursing this course [of] action. (n) The decision by the applicant to pursue, and of QSuper to grant permanent incapacity, thus make reinstatement impossible. He freely chose to pursue those benefits and the employer should not be forced to expend any further money on defending this case. (o) In all the circumstances it is most appropriate for the matter to be struck out.'. Mr Dion Matley, the advocate appearing on behalf of Corrective Services, provided extensive submissions to the Commission supportive of the application. Significant argument was advanced in respect of the proceedings being unnecessary for the reason that the applicant, due to medical and other information which Corrective Services had access to, would be unable to seek the primary remedy available under the Act, that being reinstatement or re-employment. -- 2 of 6 -- 3 Information, by way of correspondence from QSuper dated 17 January 2007, had indicated that Mr Cassidy had been considered permanently unable to carry out the duties of his position and was entitled to a permanent and partial disability benefit. A further document (from WorkCover), to which Corrective Services had access going back to 15 March 2006, went to a finding where Mr Cassidy had a degree of permanent impairment to the extent of two and a-half per cent. It was submitted that the construction of s. 78 of the Act prohibited an applicant from seeking anything, in the first instance, other than reinstatement and, only if reinstatement was deemed to be impracticable, could the Commission turn their attention to other remedies such as compensation. Mr Matley stated that 'in this instance reinstatement was not only impracticable but impossible' following the QSuper finding. In the matter of the Department of Education v Svenson (2000) 165 QGIG 135, Commissioner Fisher dealt with the possibility of an application being struck out in the public interest which had similarities with the substantive application before the Commission. Further, on the issue of remedy, the Commission was taken to Brown v Total Building Maintenance (2000) 165 QGIG 277. Commissioner Bloomfield, in that decision, stated: 'Further, and most importantly, the applicant has not sought reinstatement but, rather, has sought compensation. In that regard the decision of de Jersey J in Auto Logistics and Auctions Pty Ltd trading as Pacific Auto Auctions v Kovacs ([1997] 155 QGIG 320) and my own decision in Opalicki v Queensland Pine Company ([1996] 153 QGIG 624) are relevant given that the applicant is not seeking the primary remedy made available under the legislation viz. reinstatement. . . In the end result it seems to me that it would be a futile exercise to grant the applicant an extension of time within which to lodge his application. Even if he was able to establish that he had been unfairly dismissed reinstatement could not be ordered for the dual reasons that the employer is no longer in existence and because the applicant, on his own admissions, is still unfit for work.'. The applicant, in the substantive matter, had suffered minimal financial loss, if any, according to Mr Matley. Again the Commission's attention was directed to the Brown v Total Building Maintenance matter. In terms of the public interest, the relevant considerations for the Commission to consider were identified by Mr Matley as follows: (a) the conduct of the applicant; (b) protecting the jurisdiction of the Commission; and (c) prejudice to the respondent (in the substantive matter). The applicant in the substantive matter, Mr Cassidy, had voluntarily sought to be deemed unable to be reinstated by way of his application to QSuper. Section 85 of the Public Service Act 1996, which provided for two separate paths for being retired from the Public Service on the grounds of ill health, was subject to coverage from Mr Matley in his submissions. The applicant, in the substantive matter, had been involved in unreasonable conduct by way of seeking to benefit from separate sources, those being QSuper and now the reinstatement application. The Commission should protect its jurisdiction by not allowing access to what was described as 'double dipping' by Mr Matley. The situation confronting the Commission was an unusual and rare case, but one where the Commission should exercise its discretion and strike out the substantive application. In reference to a matter before Commissioner Blades in Tilley v Uniting Church in Australia Property Trust (Queensland) on 13 September 2005, the Commission was drawn to a section of the decision which stated that such an action was 'obviously untenable that it cannot possibly succeed'. Such was the substantive application subject of the application to be struck out. In terms put by Mr Matley, that was clearly the case. -- 3 of 6 -- 4 For the respondent in the strike out application, Mr Adam Tayler of Shine Lawyers was granted leave to appear in this application (only), with Mr Matley conceding legal representation due to the circumstances of the lateness of the application. Mr Tayler addressed issues of law in the initial stages of his written and oral submissions and, further the public interest and rights of the litigant. In amongst numerous authorities, the Commission was directed to the matter of Orchid Avenue Realty Pty Ltd v Percival (2003) where President Hall said: 'In Nugent v. Aromas Pty Ltd (1996) 153 QGIG 630 I accepted that in exercising the power at s. 331(b) (then the power at s. 90(1)(b) of the Industrial Relations Act 1990) respect should be given to the general principle enunciated by O'Connor J in Burton v. The President of the Shire of Bairnsdale (1908) 7 CLR 76 at 92 that: "Prima facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action that is frivolous or vexatious in point of law will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed.". I continue to adhere to that view. I also accept that great care must be exercised to ensure that under the guise of achieving expeditious finality an applicant is not improperly deprived of the opportunity of having the case tried by the appointed Tribunal, compare General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ.'. The authorities provided by the applicant in this case, the Corrective Services, were questioned at length by Mr Tayler as to their relevance to the current circumstances of the strike out application. An affidavit of Mr Tayler was presented to the Commission which, in part, went to a conversation between Mr Cassidy and himself on the previous day (that being 18 January 2007). Mr Cassidy had informed him that the application relating to being determined permanently and partially disabled was not made on the basis of preventing him from returning to work in his previously held position. Mr Cassidy, according to Mr Tayler, was aware of other Custodial Correctional Service Officers having previously made similar applications and continuing to work. At the time of making the QSuper application (which was made prior to his termination), the applicant's mental state (according to a recent conversation between Mr Cassidy and Mr Tayler), was much worse than presently the case. Mr Cassidy had informed him that changes to medication had improved his energy levels and he was feeling more positive and normal. Mr Cassidy had advised in that conversation that he wanted his job back, meaning that he was seeking reinstatement or re-employment. He wanted to remain within the Public Sector. He had not, through QSuper, received income replacement, as such. In respect of s. 85 of the Public Service Act 1996, that may be available to the parties should Mr Cassidy in the hearing of the substantive matter be successful with reinstatement, the Commission was drawn to a range of policies and procedures where public sector employees with illnesses can be assisted with remaining in the workforce and not necessarily needing to be retired by way of s. 85 of the Public Service Act 1996. Whilst accepting that Mr Matley may be correct in that Mr Cassidy had medical certificates declaring him unfit for work up to 29 September 2006, Mr Tayler indicates that it did not alter the position that as a result of his termination he had suffered financial loss. Also, he may have an ability to access general damages. The argument advanced by Corrective Services on the cost factors in having the substantive matter continuing to be heard, were not in line with normal operations of the Commission. The argument that the matter should be struck out should be rejected in that Mr Cassidy would suffer a real prejudice by way of losing his rights to contest the unfair dismissal or reinstatement (more correctly put) application. -- 4 of 6 -- 5 Conclusion The Commission, like the parties in this matter, was subject to time constraints, and due to the substantive matter being scheduled to be heard from 22 January 2007, was required to provide a finding on the strike out application prior to close of business on 19 January 2007. The Commission, in determining to exercise discretion under s. 331(b) of the Act, must only do so after the most diligent and careful consideration of all materials placed before proceedings. In this matter, whilst Mr Donovan (through the application) and Mr Tayler had provided affidavits, the Commission did not have a direct benefit of evidentiary material, and was restricted basically to submissions only. Each party provided written material that was considered, with the Commission applying limited weightage due to the inability of either party having access to witnesses who had generated such material for the purposes of cross- examination in respect of that material. Mr Tayler, in his submission, recalled the most recent conversations with Mr Cassidy, where Mr Cassidy had clearly stated that he wanted his job back - describing what appears to be the outcome he had hoped for out of his reinstatement application. Mr Matley submitted that, due to the condition of his health, Mr Cassidy could never return to his previously held position. The parties are in significant disagreement on this point, and for the Commission to address that argument properly, it would likely be necessary to adduce some form of medical evidence. Whilst Mr Matley argues the case that reinstatement due to Mr Cassidy's health could not be facilitated, it is clear that when the application for reinstatement was filed in the first instance, reinstatement was the preferred remedy. According to the submission of Mr Tayler, that is still the case. If the substantive application was decided in favour of the applicant, then, as a matter of course, the Commission would take into consideration arguments for and against the impracticability of reinstatement or re-employment, and only after that would the Commission deal with the issue of remedy of compensation. On the financial loss, suffice to say the Department of Corrective Services, in the view of the Commission, has failed to convince the Commission to date that at least, from 29 September 2006 to the present, the applicant did not suffer some form of financial loss. On the area of public interest, it is often most difficult for a party to argue and advance, and in this case the Commission, in carefully considering that aspect of the claim, was drawn to the minority judgment of Deane J in the High Court matter of Queensland Electricity Commission ex parte Electrical Trades Union (1987) 72 ALR, where he expressed the following view, as provided in the submissions provided by Mr Tayler: 'In rare instances where a particular court or tribunal is given a broad discretionary power to refuse to exercise its jurisdiction on public interest grounds, the necessary starting point of a consideration whether such a refusal would be warranted in the circumstances of a particular case in which its jurisdiction has been duly invoked by a party must ordinarily be the prima facie right of the party who has invoked the jurisdiction to insist upon its exercise (cf. per Higgins J., Merchant Service Guild Australasia v. Commonwealth Steamship Owners' Association (No. 1)(1920) 28 CLR 278, at p 281).'. Justice Deane went on to say: 'Were it otherwise, effective access to the courts and other public tribunals would be not a right which could be denied in an exceptional case on the grounds of extraordinary considerations of public policy but an uncertain privilege which could be withheld at any time on unconfined and largely unexaminable discretionary grounds (see, generally, Friedman, 'Access to Justice: Social and Historical Context' in Cappelletti and Wisener (eds.) "Access to Justice" vol. II, book 1, (1978)pp.5ff.; 'Raz, The Authority of Law' (1979) at p. 217). In such a case, the function of the Commission, viewed in the perspective of the rule of law and general legislative policy and philosophy, is the confined one of deciding whether the circumstances are so special or extraordinary that the public interest requires that it refrain from the ordinary exercise of its jurisdiction with the consequence that a party who has duly invoked that jurisdiction for the resolution of a non-trivial dispute is effectively denied access to it and left without effective recourse to any tribunal (cf. the comments of Higgins, J. in Australian Builders' Labourers' Federation v Archer (1913) 7 CAR 210, a p. 217).'. -- 5 of 6 -- 6 On the material before the Commission it is, in the circumstances, appropriate in my view to accept the application for reinstatement filed on 21 June 2006 genuinely sought reinstatement of the applicant. Whilst there are concerns (generally held by Corrective Services) that Mr Cassidy would not be medically fit to resume this previously held position, I have not been convinced that, that in itself, should preclude the applicant from having his application heard as previously mentioned in respect of the Directions Orders issued by Vice President Linnane in October 2006. Mr Cassidy (according to the recall of Mr Tayler's most recent discussion with him) confirmed that reinstatement and/or re-employment were still the goal. It would appear that reasonable doubt as to Mr Cassidy's financial loss exists to the extent that neither party could adequately address the exact position as it stands as this decision is released. The Commission certainly acknowledges that there is financial cost for all parties, including the Commission, in refusing to strike out the application, however, that in itself is not sufficient to find in favour of Corrective Service's application. Nor has the public interest aspect been enlivened to the extent that the Commission believes it should refrain from hearing the substantive application. The application to strike out the application for reinstatement is refused. I order accordingly.". Dated 19 January 2007. By the Commission, [L.S.] G.D. SAVILL, Industrial Registrar. Hearing Details: 2007 19 January Appearances: Mr D. Matley, of Department of Corrective Services, Applicant. Mr A. Tayler, of Shine Lawyers, for the Respondent. Released: 30 January 2007 Government Printer, Queensland The State of Queensland 2007. -- 6 of 6 --