CATCHWORDS ADMINISTRATIVE LAW - Judicial review - Commonwealth employee - Declaration that employee eligible for redeployment on the ground of physical or mental incapacity to perform his duties - Certificate that employee should be retired on medical grounds - Decision that employee be retired with effect from date medical officer certified him permanently unfit for duty ~ Application to review decision as to date of effect of retirement. Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5 Commonwealth Employees (Redeployment and Retirement) Act 1979 (Cth), ss.9, 14, 19 KENNETH GEORGE BISHOP v. NGAIRE MARGARET BRYAN No. ACT G 55 of 1987 Neaves J. 9 August 1988 Canberra RECEIVED 15 AUG 1988 FEDERAL COURT AUSTRALIA, OF PRINCIPA REGISTRY | 9 Seal " : i 1. j poe eee a x +: a pee ayaa ere erase per ne we me er IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) ) » No. ACT G 55 of 1987 DISTRICT REGISTRY ) ) } GENERAL DIVISTON SETWEEN : KENNETH GEORGE BISHOP Applicant AND: NGAIRE MARGARET BRYAN Respondent MINUTE OF ORDER JUDGE MAKING ORDER : Neaves J. DATE OF ORDER : 9 August 1988 WHERE MADE : Canberra THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 or the Federal Court Rules. so ae IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY ) ) ) ») No. ACT G 55 of 1987 DISTRICT REGISTRY ) ) ) GENERAL DIVISTON ' BETWEEN : KENNETH GEORGE BISHOP Applicant AND: NGAIRE MARGARET BRYAN Respondent CORAM: Neaves Jd. DATE: 9 August 1988 REASONS FOR JUDGMENT Prior to its repeal on 20 July 1987, the Commonwealth Employees (Redeployment and Retirement) Act 1979 (Cth) ("the CE(RR) Act") provided a mechanism whereby an officer within the meaning of the Public Service Act 1922 employed in a Department of the Australian Public Service might, in the prescribed circumstances, be redeployed on other duties or in another Department or in the employment of a prescribed Commonwealth authority and, if that could not be effected, compulsorily retired from the Service. The first step in the prescribed procedure was for the Secretary of the Department in which the officer was employed, after satisfying the statutory criteria, to cause the officer to be declared, by instrument in writing, to be eligible for redeployment in accordance with Part II of the Act (s.9). Such a declaration might be made on the basis es - a a : * that the services of the officer could not, for the reason that he was, in consequence of physical or mental incapacity, incapable of performing his duties (being the reason referred to in s.7(1)(b)(ii)), reasonably be used in the Department or in a part of the Department. Where such a declaration was made, but subject to the exercise by the officer of a right of appeal against the declaration (s.11(5)), the Public Service Board was required to take such action as it considered reasonable and practicable for it to take to redeploy the officer in the Australian Public Service, or to arrange for his redeployment in the employment of a prescribed Commonwealth authority, on duties which the Board considered he was competent to perform and could reasonably be required to perform (s.11(1)). If redeployment was not effected or arranged, the Board was required to issue to the Secretary a certificate in writing certifying that it had not been practicable to redeploy the officer (s.11(6)(b)). An appeal might also be taken from the decision to issue that certificate. Where an officer who had been declared to be eligible for redeployment in accordance with Part II of the Act for the reason referred to in s.7(1){(b)(ii) had not been redeployed in accordance with s.11l, the Public Service Board might, if it were satisfied that the officer should, in consequence of his incapacity, be retired from his employment, issue to the Secretary a certificate, in writing, certifying that the Board was satisfied that he should, for the reason so referred to, he qe ee ne ane rane use ce oe ee ee, roe omnes voe Lge pe cen ne re I Ee poems eee ee ee rg ee le ' retired from his employment'-(s.14{1)). An appeal might also be taken against the issue of that certificate. Where the Secretary received such a certificate and was not able to employ the officer in the Department on duties which the Secretary considered the officer was competent to perform and could reasonably be required to perform, the Secretary might retire the officer from the Australian Public Service ona day to be specified by the Secretary (s.19(1)). Where the officer was retired on the ground of invalidity, the day as from which he was retired might, with the consent of the officer, be a day earlier than the day on which the action to retire him was taken (s.19(4)). On 11 May 1987 the respondent, Ngaire Margaret Bryan, as a delegate of the Secretary to the Department of Defence, signed an instrument in writing retiring Kenneth George Bishop ("the applicant") from the Australian Public Service "with effect from close of business 28 August 1986". By Letter dated 1 June 1987 the applicant requested that he be furnished with a statement pursuant to s.13 of the Judicial Review Act. A statement dated 8 duly 1987 was subsequentiy furnished and on 14 August 1987 the applicant commenced a proceeding in this Court for an order of review under that Act in respect of the decision made by the respondent on 11 May 1987. The order of review, however, is sought not in respect of the decision that the applicant be retired from the Australian Public Service but only in respect of so much of the decision as specified 28 August 1986 as the day as from which he was to be so retired. aia ae on ee er re The significance of 28 August 1986 is that it was on that day that a Commonwealth Medical Officer certified that the applicant was unfit for continued employment and should be retired on the ground of invalidity. In reaching the conclusion that 28 August 1986 was the appropriate day as from which the applicant was to be retired, the respondent rejected a submission made by the applicant that he should be retired as from 17 July 1984. It is to be noted that the applicant no longer asserts that 17 July 1984 is the appropriate day: he now asserts that the respondent should have specified as the appropriate day the day on which his accumulated sick leave credits were exhausted, namely 30 January 1985. It is necessary to refer to the material which was before the respondent when making the decision the subject of review. What follows is a summary of that material. The applicant had been an officer of the Australian Public Service since 9 April 1973. Upon his appointment, he was employed in the Department of Defence as a _ laboratory attendant at the Royal Military College, Duntroon. He was promoted Technical Assistant, Grade 1 on 21 March 1974, still being employed at the Royal Military College. While employed in this position he suffered mild hypertension and anxiety due to his work situation. On 13 dune 1978 he was directed to perform, in an acting capacity, the duties of a position of Technical Assistant, Grade 2 in the Naval Design Branch of the Department located in the Campbell Park Offices. He was yen ee man wee ow 9 ennn— one 2 rte ee epee meee ee ee we ee promoted to that position on 19 October 1978. On 19 September 1983 he was transferred to a position of the same grade at' the Russell Offices. The duties of that position required the applicant to work in an air conditioned office building, his desk being adjacent to the entrance to a library housing technical publications concerned with aeronautical engineering. Nine other employees shared the office. The applicant's duties were mainly concerned with up-dating the publications in the library. In 1983 the applicant suffered symptoms of nausea and headaches, painful eyes and a congested nose. The symptoms became such that in early 1984 he consulted a medical practitioner. He was absent from work intermittently until 17 May 1984. From that date he was continuously absent from work. On 7 February 1984 Dr K.f. Tan had reported: "Mr Bishop appears to have an allergy to tobacco smoke at his work place. It causes him to suffer from frequent headaches, sneezing, irritation and burning sensation of his eyes, and rhinitis. He is unable to concentrate, feels anxious, tensed and depressed. He has been advised to work ina smoke-free environment." In connection with an application which he had made for compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth), ("the Compensation Act"), the applicant was referred by a Commonwealth Medical Officer to Dr §.P. Trenerry, a specialist in allergic diseases. On 25 May 1984 Dr Trenerry reported: spate pt ey oe "Thank you for referring Mr K.G. Bishop who complains of burning itchy eyes and burning periorbital skin plus blocked and burning nostrils and a lack of sense of smell, with an irritated throat which causes hima dry irritating cough and daily headaches plus a tight chest and lack of concentration if he is exposed to tobacco smoke. His troubles have been worse since October last year. His symptoms have been present since 1978 which he attributes to moving into the Campbell Park Offices. He worked previously at Duntroon for five years and had no trouble there. He admits to a wheeze sometimes at home in cold dry air which is particularly irritating to twitchy airways and at night sometimes when he is reading in bed with the kids. He finds weekends are too short to relieve his symptoms, but after a period of six weeks away from the office he feels a bit better though his nose he admits is st11l a bit blocked. I could not find any history of allergic disease in his family. He had an operation in 1974 for bilateral pterygia. He has hypertension and was taking Visken for about five years which he must have commenced about 1978 which has been changed to Lowpressor for the last six months. Both of these drugs could tend to give him a_e stuffy nose. On examination he has a gross polyp in his right nostril which would contribute to his symptoms of nasal blockage and possibly cause a loss of sense of smell and taste. His Spirograph figures were equal to the predicted normal for a man of his height and age and showed no evidence of small airways obstruction. On skin testing he reacted slightly to house dust mite and to two moulds. The feather pillow and feather doona which he has installed three years ago would tend to feed the dust mite and feathers are frequently contaminated by mould. I suggest the feathers be removed along with other measures which you might like to suggest to him on minimising his dust mite and mould exposure in the home. I enclose my suggestions for your perusal and possibly for Mr Bishop's help. sare wae woe ee — ee Heading the list of things to avoid as part of a dust hygiene routine is cigarctte smoke. This is No.l on the list. This is a very irritating substance for people with allergic respiratory mucus membrane. I agree that Mr Bishop should avoid cigarette smoke. I believe that smoking should be banned in all work places. Surely addicts if they must smoke could smoke outside at meal and coffee breaks. They should not be allowed to smoke in confined places with other people and nor even should they be allowed to smoke in the toilet. I disagree with Capt. Ferry who says it would be inefficient for smokers to be located in other areas. To improve efficiency in any office smoking should be banned. Goad studies have shown that the efficiency of any office is improved by 11% over all once smoking is banned." On 19 June 1984 Dr Tan examined the applicant. He then signed a medical certificate that the applicant was suffering from stress anxiety and that he, Dr Tan, considered that the applicant would be unfit for work from 18 to 29 June 1984. Dr Tan gave a further medical certificate on 2 July 1984. It stated that the applicant was suffering from anxiety depression and that Dr Tan considered that he would be unfit for work from 2 July 1984 to 2 August 1984. On 26 dune 1984 a determination was made under the Compensation Act that the applicant had suffered an aggravation of a disease, namely a pre-existing allergic rhinitis and allergic conjunctivitis condition, and that his employment by the Commonwealth was a contributing factor to the aggravation of that disease. By that and later determinations, the applicant became entitled to the payment of compensation in respect of periods of incapacity wre mee in roe resulting from the aggravation of the disease. Pursuant to s.45(2A) of the Compensation Act, the amount of compensation payable in respect of each of the first 26 weeks of the aggregate of the periods of the applicant's incapacity was an amount equal to the sick leave payment that he would have received in respect of that week if, during that week, he were entitled to, and were granted, sick leave on full pay (s.45(2B)). After the expiration of those 26 weeks, a lesser weekly rate of compensation was payable pursuant to s.45(2). The applicant elected to use his accumulated sick leave credits to make up the difference between the weekly amount of compensation that was then payable and his normal rate of pay as a Technical Assistant, Grade 2. His accumulated sick leave credits became exhausted on 30 January 1985. On 17 July 1984 the applicant was examined by a Commonwealth Medical Officer to determine his fitness for continued duty. The report referred to the applicant as suffering from chronic rhinitis, a brief history of his condition being given as follows: "Claims 'allergy' to tobacco smoke since moving into Campbell Park Offices. Has chronic rhinitis and also being treated with Lopressor Which has 'allergic rhinitis' as an adverse effect." In response to the question "How does the employee's medical condition (or conditions) affect his or her ability to undertake the duties outlined in the departmental statement?", the Commonwealth Medical Officer stated: . cree ve "Chronic rhinitis should receive treatment but tobacco smoke is not an allergen only an irritant. Should be able to work in most environments." To the further question "How would continuing to perform these duties affect the exployee's medical condition(s)?" the Commonwealth Medical Officer responded: "Will not affect physical condition". Having expressed the opinion that the applicant's prognosis was fair, the Commonwealth Medical Officer certified that he was "fit for continued employment in the position presently occupied". Notwithstanding the Commonwealth Medical Officer's report, the applicant did not return to work. This was due to continued disputation between the applicant and the Department of Defence as to his medical condition and the basis upon which he could return to work. Dr Tan submitted to the Department of Defence a report dated 17 December 1984 as follows: "Mr Bishop appears to suffer from an allergy to/irritation from tobacco smoke at his work place. He has been advised to work in a smoke-free environment. As the Department of Defence hitherto is unable to provide him with a smoke-free environment, he is unable to return to work. In the past, returning to work has caused him to suffer from frequent headaches, sneezing, irritation and burning sensation of his eyes, rhinitis and other symptoms. Mr Bishop 1s also concerned and worried about his job future and this causes him to suffer from further anxiety, tension and depression. Intra-family relationships have deteriorated. Mr Bishop is being prescribed and is taking won ee woot ea egos oye cone eee ree ce 10. anti-anxiolytic medication and is receiving counselling from a member of the psycho-social counselling team at Kambah Health Centre. His hypertension has not been easy to control during this period. If the Department of Defence is unable to provide Mr Bishop with a smoke-free environment I would recommend his retirement on the medical grounds stated above. TI submit the medical reports of medical specialists in allergic diseases - Dr Trenerry and Dr Little in support of this recommendation." It does not appear whether the reference to the report of Dr Trenerry is a reference to the report dated 25 May 1984 out above. No report by Dr Little is in evidence. Eventually, on 9 August 1985, a Medical Review set Panel met "to reassess Mr Bishop's fitness for continued duty". The report prepared by the panel included the following: "The panel in considering the evidence before it drew the following conclusions: - The extent of Mr Bishop's disability is not sufficient to Classify him as totally unfit for any type of work or working environment. - It is clear that for the foreseeable future Mr Bishop will complain of symptoms of allergic rhinitis and allergic conjunctivitis if required to work in an environment contaminated by tobacco smoke. This will preclude Mr Bishop from working in air-conditioned Government buildings where there are tobacco smokers. Mr Bishop would not be able to work ina Situation where he was required to leave a smoke free environment to visit, in the course of his duties, a smoke contaminated office area. yr te 3 li. » Mr Bishop ~~ couid work in an airconditioned environment uncontaminated by smoke or dust. (He has indicated that he has filtered air-conditioning in his home and car.) To achieve this it might be necessary to provide Mr Bishop with an office with its own individual air-conditioning which is not used in his absence by tobacco smokers. - Mr Bishop could work in an office with natural air-flow, and no tobacco smokers. - Mr Bishop could be employed in an outside situation. (He states that one of his interests is bike riding and there is no evidence that out door activity aggravates his complaint.) In summary, the Medical Review Panel concluded that Mr Bishop could not work in a smoke or dust contaminated environment and that this would preclude him from working in an airconditioned Government building where there are tobacco smokers. The Panel noted however that Mr Bishop is aged 43 years and apart from the complaints discussed and hypertension which is controlled with medication, appears to be otherwise healthy. The Panel considered that Mr Bishop could work in an office with individual air conditioning or natural ventilation provided there were no tobacco smokers present. Alternatively, Mr Bishop was considered fit to work in an outside situation." Attempts were thereafter made to find a position in the Department of Defence which would meet the criteria identified by the Medical Review Panel. Those attempts were unsuccessful and on i8 November 1985, the applicant was declared, pursuant to s.9 of the CE(RR) Act, to be eligible for redeployment in accordance with Part II of that Act. It may be assumed that that declaration was made in order that action might be taken to redeploy the applicant into a position in another Department or to arrange for his employment by a prescribed Commonwealth authority. 12. On 5 December 1985 the applicant appealed against that declaration. The grounds of his appeal were that he was incapacitated for work as a Technical Assistant, Grade 2 only because of the refusal of the Department of Defence to provide him with a working environment free of circulated tobacco smoke and that the making of the declaration was inconsistent with the responsibility of the Secretary of the Department of Defence under the CE(RR) Act to ensure' that the Department operated in such a manner "as to make efficient and economical use of the services of persons employed in the Department". On 25 March 1986, the appeal was determined, the declaration made under s.9 being revoked. The decision was based upon the conclusion that the Department of Defence should have taken more positive steps than it had taken to attempt to place the applicant in one of the 16 current vacancies at the level of Technical Assistant, Grade 2 that had been identified as then being available. Further attempts were thereafter made to find a position within the Department of Defence suitable for the applicant but, again, without success. On 12 May 1986, Dr R.K. Gupta, a senior specialist in psychiatry, made a report in the following terms: "I have seen the abovementioned on the 2nd of April, 1986 and on another few occasions since. 13. He presented with symptoms of moderate depression. His depression is work environment related and is caused by the prolonged litigation between himself and his department. I understand allergic reaction to tobacco smoke is the underlying issue. Without going into the extensive details of his case, I would answer the questions raised in your abovementioned letter: 1. Mr Bishop's current state of health could be described as 'Moderate Depressive Iliness'. He has considerable mental anguish and resentment towards the bureaucrats and their handling of his affairs. 2. Given the circumstances of his allergy to tobacco, his depression and his resentment, I do not consider he can function happily, productively and satisfactorily in the Public Service any further. Therefore, in my opinion, he should have been retired on the medical grounds, due to disabling allergic rhinitis and allergic conjunctivitis (tobacco smoke related) ." On 6 August 1986, the applicant was referred to the Commonwealth Medical Officer. He was examined on 12 August 1986. A report on that examination, dated 28 August 1986, stated that the examining doctor considered that the applicant was suffering from the following medical conditions (in order of severity) and specified the estimated percentage that each contributed to the applicant's incapacity: "Condition Percentage 1. Allergic rhinitis ) related to 50% ) tobacco 2. Allergic conjunctivitis ) smoke 50% 3. Depression 50% 4. Hypertension 10%" 14. The following brief history was given: "Off work constantly since February 1984 due to nasal symptoms aggravated by cigarette smoke, airconditioning and traffic fumes. He now lives at Sutton and avoids coming into the city as his symptoms worsen. His original symptoms consisted of irritation in nostrils, sore eyes, frontal headaches, frequent bouts of bronchitis and the need to frequently clear his throat. Presently his symptoms are perennial nasal irritation and sore eyes when exposed to smoke, airconditioning and traffic fumes. He no longer experiences bronchitis or headaches. He is also being treated for hypertension and depression. He feels his sensitivity to smoke can be attributed to the years he spent in the Campbell Park Offices." The Commonwealth Medical Officer assessed the applicant's prognosis as poor and considered that he was unfit for continued employment and should be retired on the ground of invalidity. The following questions which were set out in an attached questionnaire were answered by the Commonwealth Medical Officer in the manner indicated: "ll. a. How does the employee's medical condition (or conditions) affect his or her ability to undertake the duties outlined in the departmental statement? Unable to tolerate tobacco smoke, air conditioning or traffic fumes. b. How would continuing to perform these duties affect the employee's medical condition(s)? Condition would be aggravated. pepe re pee oe mer ee is. 2. %QIf redeployment is considered possible on medical grounds, please indicate the types of work or working situations which the employee's medical condition(s) preclude him or her undertaking. N/A due to accompanying condition of depression & intolerance to air conditioning & traffic fumes." On 23 September 1986, a further declaration was made under s.9 of the CE(RR) Act that the applicant was eligible for redeployment in accordance with Part II of that Act. No appeal was lodged against that declaration. On 28 November 1986 the Public Service Board issued a certificate under s.14 of the CE(RR) Act that it was satisfied that the applicant should, for the reason referred to in s.7(1)(b)(ii) of the Act, be retired from his employment. In a memorandum dated 28 November 1986 under cover of which the certificate was forwarded to the Department of Defence, the Public Service Board stated: "Mr Bishop's retirement should be effected under section 19 of the CE(RR) Act 1979. When calculating the retirement date, you should refer to Chapters 4 and 5 of the CE(RR) Act Handbook, contained in Volume 7 of the Personnel Management Manual." It will be necessary to refer to certain of the provisions of the handbook but, before doing so, it will be convenient to complete the narrative. 16. The applicant was consulted as to the date as from which he was to be retired. By letter dated 19 February 1987, he suggested 17 July 1984. By letter dated 12 March 1987, the respondent informed the applicant that, as the delegate of the Secretary to the Department, she did not consider that the circumstances of his case justified a retirement date earlier than 28 August 1986 and that his case would not be referred to the Public Service Board. The reference to the involvement of the Public Service Board is explicable in terms of the CE(RR) Act Handbook to which I shall refer. The letter read, in part: "In making this decision the following points were taken into consideration: - At the CMO's examination of 17 July 1984 it was determined that you were fit for continued employment. - Reassessment by a Medical Review Panel on 9 August 1985 found that you were not unfit for duty nor was retirement recommended. - In your appeal of 5 December 1985 against the issue of a Declaration of Eligibility for Redeployment - Section 9 you have stated in your grounds of appeal that but for the refusal by the Department to provide you with a working environment free of circulated tobacco smoke, you would be fit for your employment as a Technical Library Officer. Backdating of the retirement date prior to 28 August 1986 being the date on which the CMO has found that you are unfit for continued employment would be inappropriate. You will therefore be retired as of close of business 28 August 1986." cape ees oe ? 17. The letter also informed the applicant that he was liberty to information should date from 17 July 1984. provided what he termed "a further statement". read: at provide a further statement or additional in support of his request that his retirement In a letter dated 24 March 1987, the applicant "Thank you for your letter of 12 March 1987. I have noted the reasons for your decision, and I wish to make a further statement. It was perhaps typical of the particular CMO at the time, 17 July 1984, that he simply looked at the existing level of symptoms, and failed to address the significance of my underlying sensitivity to tobacco. Had he carefully considered all the relevant information including the underlying sensitivity, he should have seen I was unfit to go back to work because there was no smoke free workplace to go back to. The Senior Medical Officer, in his letter to you of 25 September 1984, acknowledges the tobacco sensitivity in my case, and points to the precedent set at AAT hearings in the Roy Bishop case. This case involved a finding that if the workplace was such that the employee could not work in it, he remained unfit for work even though whilst away from the place of employment, the employee was suffering no active ill-effects. It is probably the case that neither the CMO nor the SMO was an expert on the legal point of view prevailing in either that case or mine. As happened in my case, it was simply not good enough to say I was fit for duty: that tobacco smoke will not affect my physical condition. You cannot say someone is fit for duty and send him back to work to get sick again for the same reason; that's ridiculous! It certainly is not the legal solution to the problem. Some people, or I myself, may have had the view that I was Fit at a particular time; and that, from a That letter ne ee ee epee wae pe eee 18. simple medical point of view, may have been so. However, whilst at a given point in time I may have been fit, 1f the workplace was such that TI could not work in it, I was, from a legal point of view (and that's what counts) unfit for duty. In any event, the CMO's decision of 17 July 1984 has not been upheld by any succeeding medical opinion, or the AAT, simply because it is an untenable one. Whether or not the Medical Review Panel found I was not unfit, or recommended retirement, my argument remains that, even if I were fit in a simple medical sense at a given time, and given that the workplace was such that I could not work in it, I was unfit for duty. This is supported by the legal point of view. It is no answer for you to claim theoretical fitness for other duties, as I was neither legally obliged nor legally entitled to perform other duties whilst employed in a particular office. The Medical Review Panel's task was to reassess the CMO''s decision of 17 July 1984: that I was fit for continued employment in the position presently occupied. It is my understanding of the Panel's report that I was indeed unfit for continued employment in the position presently occupied. This same viewpoint was shared by you when you wrote to me 18 November 1985 stating your view that I was unfit to perform my present duties, and declared me under the CE(RR) Act. My statement to the CE(RR) Appeals Tribunal does not establish that I was fit for work; it merely establishes the essential elements of that part of my appeal: my fitness; and the unfitness of the workplace. Again, I refer to the legal viewpoint that, while the workplace was such that I could not work init, I was unfit for work. My point is that I don't have to prove my case because from early 1984 I have been paid continuous compensation for total incapacity. The 17 July 1984 decision of the CMO has been tested and found wanting. You would have to agree that there has been a lot of sidetracking, and employment issues pursued in my case. I have been considerably disadvantaged, time has flown, and I believe that, had proper care been taken by both the CMO and the Department to properly assess the medical and legal points of view in my case, I would have been entitled to earlier retirement. The fact remains that you couldn't provide me i ee eieeras ¥ re ee se pee oe tee er ee 80 F et ecco retained fey yo nr rr : 19. with a smoke free workplace. During this period there have been some useless and frivolous arguments put forward. Some may even consider it to have been maladministration. Therefore I respectfully request that you consider setting my retirement date at 17 July 1984 because that's when I was entitled to have had that finding made in my case." On 11 May 1987 the respondent signed the instrument to which reference has already been made. In a letter of the same date addressed to the applicant, the respondent stated: "With reference to your letter of 24 March 1987 I have considered all of the points you raised but remain convinced that the 28th day of August 1986 is the most appropriate retirement date." As has already been mentioned, the applicant, by letter dated 1 June 1987, requested that he be furnished with a statement pursuant to s.13 of the Judicial Review Act and such a statement was furnished by letter dated 8 July 1987. That statement included the following: "In your case where you had exhausted your sick leave credits the normal retirement date is the date of the Medical Officer's certification unless it is considered that special circumstances may justify an earlier date and the case should be referred to the PSB for a decision. In determining whether to refer your case to the PSB I had to be satisfied that special circumstances applied. In making this decision I have taken the following points into consideration:-— At the CMO's examination of 17 July 1984 it was determined that you were fit for continued employment ae ne en een 20. Reassessment by a Medical Review Panel on 9 August 1985 found that you were not unfit for duty nor was retirement recommended In your appeal of 5 December 1985 against the issue of a Declaration of Eligibility for Redeployment - Section 9 you have stated in your grounds of appeal that but for the refusal by the Department to provide you with a working environment free of circulated tobacco smoke, you would be Fit for your employment as a Technical Library Officer. Advice was also sought from the Legislation Branch, Policy Coordination Division on the matters you raised in your letter of 24 March 1987. Based on the advice that there was no genuine legal issue in the points you raised and the assessment that they were merely assertions I remained convinced that the 28th day of August 1986, being the date on which the Medical Officer certified that you were unfit for duty was the most appropriate retirement date." In an affidavit affirmed on 29 January 1988 filed in this proceeding, the respondent referred to letter dated 8 July 1987 and said: "In noting that in 1984 and 1985 the medical examinations show that Mr Bishop was fit for duty, I implied (without actually stating) that his medical condition had changed when he was reviewed by the CMO in 1986. This is confirmed by the CMO''s report .... which shows that Mr Bishop was suffering significantly from depression, and to a lesser extent from hypertension. This is also confirmed by an earlier report from Dr Gupta, dated 12 May 1986 wees Therefore it was not a 'special circumstance' that his medical condition was unchanged from 1984 to 1986, because the medical evidence showed that the medical condition for which he was retired in 1986 was significantly different from his medical condition in 1984 and 1985." and the pe teen 21. It is convenient 'at this point to refer to the CE(RR) Act Handbook. That was a publication designed to assist departmental officers in understanding and carrying out their responsibilities under the CE(RR) Act and under related legislative provisions. The information in the Handbook related to organisations staffed under the Public Service Act 1922 (Cth). The Handbook summarised the provisions of the CE(RR) Act and the regulations made thereunder. It also set out the full text of the administrative procedures to be followed by Departments which had been published by the Public Service Board pursuant to s.8 of the CE(RR) Act and the principles in accordance with which the Board would perform its functions under s.1l1(1) of the CE(RR) Act with respect to declared employees which had been published pursuant to s.11(2) of that Act. Those administrative procedures and those principles have no relevance to the issues in the present case. The Handbook itself had no statutory force or effect. Part III of the Handbook was headed "Medical Fitness". Chapter I in that Part had the heading "Management of Invalidity Cases". Paragraph 1.1 provided: "It is essential that departments handie as quickly as possible any case where it appears that the health of an officer or employee is impairing, in other than a temporary manner, his ability to perform his duties. This is essential both so that staff are kept informed of where they stand and of likely action in respect of their cases, and so that, as far as possible, situations are avoided where a_ staff member's paid sick leave credits expire before a final decision is made about redeployment to another position, or retirement. in this " Ce ere eee ee me eet con ae tee re gees . weer - Meee 22. connection it should be noted that the Common Rule re Sick Leave (Public Service Arbitrator's Determination No 119 of 1951) provides that the maximum period allowable with pay in respect of any continuous absence through illness is 52 weeks, unless War Service Sick Leave and Compensation Leave are granted. The 52 week period may be extended by up to 6 months in compensation cases and/or by the period of War Service Sick Leave. It should also be noted that a Permanent Head should not backdate the retirement to a date earlier than that on which the Commonwealth Medical Officer certified that the officer or employee was unfit for his duties. Thus any delays by the department in handling these cases could lead to the officer or employee concerned being without either salary or pension for a period. In exceptional circumstances, for example, where an officer or employee has been disadvantaged by maladministration, a department may seek the agreement of the Board's local Regional Director 1f the Permanent Head proposes to set a retirement date preceding the date of the Medical Officer's certification that the staff member was permanently unfit." Chapter 2 dealt with "Conflicting or Disputed Medical Evidence". Chapter 3 was headed "Medical Redeployment", Chapter 4 dealt with "Sick Leave Entitlements in Invalidity Redeployment and Retirement Cases" and Chapter 5 with "Retirement". During argument, reference was made to the following provisions of Chapters 4 and 5: ' "Leave entitlements in invalidity redeployment and retirement cases 4.4 In granting sick leave Chief Officers should have regard to the Common Rule re Sick Leave (Determination No 119 of 1951) which limits the maximum period of paid sick leave in respect of any continuous absence through iliness to 52 weeks. This maximum period may only be extended by paid war service sick leave and approved compensation leave. 4.5 Chief Officers may permit half pay credits to be converted to full pay in certain circumstances (see General Order 5/C/16A) for . be eee 23. officers or employees whose instrument of retirement has not been signed by the Permanent Head. However, where invalidity retirement procedures are contemplated or have been approved conversion should only be granted for short periods, say 2 weeks, in advance. No further grants of conversion can be made after the Permanent Head has signed the instrument of retirement. aeee Retirement date normally at end of full-pay sick ieave 4.10 The Common Rule re Sick Leave (Determination No 119 of 1951) provides that officers and employees cannot be retired before expiration of their full pay sick leave credits (subject to the limit of 52 weeks specified in paragraph 4.4) without their agreement. The retirement date can be set to allow use of half pay sick leave credits as well if the officer or employee being retired requests it (see paragraph 5.11). Backdating of retirements before Medical Officer's certification 4.11 Where an officer or employee exhausted sick leave credits before the Medical Officer certified him permanently unfit for his duties the normal retirement date is the date of the Medical Officer's certification. Where the Permanent Head considers that special circumstances (eg maladministration, unreasonable delays in arranging a medical examination) may justify an earlier date the case should be referred without delay to the Board's local Regional Director for decision. In such circumstances no action should be taken to retire the officer or employee until the Board's local Regional Director has advised his decision. Because no superannuation benefits will be paid until the retirement is effected Board Officers will endeavour to resolve these cases as quickly as possible. Fixing the date of retirement 5.6 Subject to the appeal provisions (see paragraph 5.4), retirement decisions should be made as soon as possible after a certificate is issued by the Board under the CE(RR) Act. In cases where the officer or employee does not institute an appeal the retirement instrument is me ne rye eee eens ee ee Lae ee a 24. to be signed no more than a month after the copy of the certificate is received from the Board's Regional Director. eames 5.10 On receipt of written advice from the staff member indicating the preferred retirement date, and provided the retirement date is within the staff member's entitlements, the Permanent Head will sign the instrument of retirement retiring the staff member with effect from the date nominated by the staff member. A copy of the retirement instrument will be given to the staff member. sense 5.12 As a general rule the date of retirement will be the date of exhaustion of full pay sick leave credits (subject to the limit specified in Paragraph 4.4). However, in proposing a retirement date staff may elect to be retired before that date, or to set a later date so as to use half pay sick leave credits. 5.13 With the written consent of the staff member the date of retirement can be backdated by the Permanent Head to a date no earlier than the date on which the Medical Officer has certified that the staff member is permanently unfit to discharge the duties of his office efficiently (but see paragraph 4.11)." I turn now toa consideration of the submissions made on behalf of the applicant in support of an order of review. In doing so, I must say that much of what was put on behalf of the applicant, although presented in terms of the grounds set out in s.5 of the Judicial Review Act, amounted to a submission that the respondent had reached the wrong decision on the material before her and that this Court should substitute its view as to the day as from which the applicant should be retired. In discussing the grounds relied upon, it will be necessary to keep constantly in mind that the present application is not an appeal from the mee ee were mee pa a8 ee ae eee 25. respondent's decision and that this Court may interfere only if the applicant establishes that the respondent erred in one or more of the respects set out in s.5 of the Judicial Review Act. The first ground for relief upon which counsel for the applicant relied was that the decision involved an error of law (Judicial Review Act, s.5(1)(f)). The error of law attributed to the respondent was that she erred in interpretting the report made by the Medical Review Panel following its meeting on 9 August 1985. Counsel referred to the statement, which appears both in the letter dated 12 March 1987 from the respondent to the applicant and in the letter dated 8 July 1987 being the statement under s.13 of the Judicial Review Act, that the respondent had taken into account that the reassessment by the Medical Review Panel found that the applicant was "not unfit for duty nor was retirement recommended". It was submitted that the reference to the applicant being not unfit for duty is to be read as meaning that the applicant was fit to carry out the duties of the position of Technical Assistant, Grade 2 of Which he was at that time the occupant. So read, the statement was said to be a misinterpretation of what the Medical Review Panel had concluded. In my opinion, this ground of review is untenable. First, I do not read the statement made by the respondent as doing other than accurately reflecting, albeit in abbreviated form, the conclusion reached by the Medical ins roe poe re ween = . 26. Review Panel that the extent of the applicant's disability was "not sufficient to classify him as totally unfit for any type of work or working environment". It would be quite inconsistent with the respondent's approach to the making of the decision under review to treat her as having proceeded on the basis that the applicant was able to perform the duties of that position in the environment in which those duties were to be performed. It is significant that, although she gave evidence in the matter, she was not asked in cross-examination any question tending to suggest that she had proceeded on the basis postulated by the submission. But, even if, contrary to the view I take, it be correct to say that the respondent was under a misapprehension as_ to what the Medical Review Panel had concluded, I can see no basis for the submission that such misapprehension amounted to an error of law. The applicant also submitted that the making of the decision was an improper exercise of the power conferred by s.19 of the CE(RR) Act in that the respondent, in the exercise of the power, failed to take relevant considerations into account (Judicial Review Act, ss.5(1)(e) and 5(2)(b)) and took an irrelevant consideration into account (ibid., ss.5(1)(e) and 5(2)(a)). In this connection, it is to be noted that the CE(RR) Act provided, in s.19(1), for an officer to be retired "on a day to be specified by the Secretary". That provision seems clearly to have envisaged that the day so specified would be the day on which the action to retire the officer was taken or a oe 27. later day. Special provision was, however, made in s.19(4) for an earlier day to be specified, bul only where the officer was being retired on the ground of invalidity and then only with his consent. The CE(RR) Act Handbook which, as has already been noted, had no statutory force or effect but was designed to provide guidance to those charged with the responsibility of carrying the CE(RR) Act into effect, elaborated upon s.19 in the case of retirement on the ground of invalidity. The handbook relevantly provided (par.4.10) that, in a case where the action to retire an officer was being taken before his accumulated sick leave credits had been exhausted, the day on which retirement was to take effect could be deferred so as to take effect contemporaneously with the exhaustion of those credits. rt also provided (par.4.11) that, in a case of retirement on the ground of invalidity where the accumulated sick leave credits had been exhausted before the officer had been certified to be permanently unfit for his duties, the day as from which the retirement was to take effect was to be the date upon which the Commonwealth Medical Officer so certified, subject only to the decision-maker considering that there were special features in the particular case which required an earlier date to be specified. Counsel for the applicant accepted that the respondent was entitled to proceed on the basis envisaged by the CE(RR) Handbook. He submitted, however, that the respondent had failed to take into account relevant considerations in determining whether the applicant's case woes cree 28. exhibited special features Such as to warrant consideration being given to specifying 30 January 1985, or some other day prior to 28 August 1986, as the day upon which the applicant's retirement should be effective. Those considerations may be summarised as follows: (a) The circumstance that, from the date upon which his accumulated sick leave credits were exhausted, viz. 30 January 1985, the applicant had been receiving payments under the Compensation Act in respect of incapacity arising from the same condition as that from which he was found to be suffering when assessed by the Commonwealth Medical Officer on 28 August 1986; (b) The circumstance that the applicant's medical condition had not differed significantly between 17 July 1984 and 28 August 1986; and (c) The lengthy period, some 2 years 3 months, which had elapsed beween the date upon which the applicant's accumulated sick leave credits were exhausted ((30 January 1985) and the date the respondent made the decision under review (11 May 1987). So far as the first of those considerations is concerned, the respondent in her oral evidence said that, at the time the decision was made, she knew that the applicant had been receiving payments under the Compensation Act in respect of a smoke allergy. In the light of her evidence, I am not prepared to find that she did not take that circumstance into account in reaching her decision. The weight to be given to it was, of course, a matter for her and it is clear that she did not regard it, taken alone or in combination with other relevant matters, as warranting 29. the specification of a retirement date earlier than 28 August 1986. I turn to the second of the matters upon which the applicant relies as being a relevant consideration which the respondent failed to take into account, namely that the applicant's medical condition had not differed significantly between 17 July 1984 and 28 August 1986. The difficulty in accepting this submission is that it seeks to treat as a relevant consideration which should have been taken into account what is, in truth, a conclusion which the applicant asserts the respondent should have reached upon a consideration of the medical reports that were available to her. To meet this difficulty, it was submitted on behalf of the applicant that the conclusion that his medical condition had not differed significantly over the period specified was the only conclusion which was open on the material before the decision-maker. Iam, however, unable to accept the latter submission. In my opinion, the respondent was entitled to conclude, on the material before her, that the medical conditions which the Commonwealth Medical Officer identified in the report dated 28 August 1986 as rendering the applicant unfit for continued employment were not present, or were not present to the same degree, when the applicant's condition was earlier assessed. Even if one puts aside the finding by the Commonwealth Medical Officer on 17 July 1984 that the applicant was "fit for continued employment in the position presently occupied", the Medical Review Panel, in the report dated 9 August 1985, concluded —e — . a) . ——; oo rn rs 30. that the extent of the Aapplicant's disability was not sufficient to classify him as totally unfil for any type of work or working environment. Even Dr Tan in his various reports and certificates did not, at that stage, conclude that the applicant's medical condition was such as to warrant his retirement on the ground of invalidity though he did say, in his report dated 17 December 1984, that he would recommend retirement on medical grounds if the Department of Defence were unable to provide the applicant with a smoke free environment. Retirement on the grounds of allergy to tobacco smoke and "Moderate Depressive TIliness" was first suggested by Dr Gupta in his report dated 12 May 1986. "Depression" was also a significant matter relied upon by the Commonwealth Medical Officer in the report dated 28 August 1986. The respondent was also entitied to take into account that the applicant''s appeal against the declaration made under s.9 of the CE(RR) Act on 18 November 1985 was conducted on the basis, and was consistent only with the view, that he was not then unfit on medical grounds for continued employment. The third of the trilogy of matters said to be relevant considerations which the respondent failed to take into account is the period which elapsed between the exhaustion of the applicant's accumulated sick leave credits and the date upon which the respondent made her decision. It is clear, on the evidence, that the respondent was aware that the applicant's accumulated sick leave credits had expired some considerable time before she made her decision. oun ~ 4 new = ere re cee ee a + 'c » ' 31. ¢ Sy ok v ' It is equally clear that, while the decision at which the respondent arrived had the effecl of relieving the applicant of any disadvantage arising by reason of such lapse of time after 28 August 1986, the respondent did not regard the circumstance that the applicant's accumulated sick leave credits had been exhausted on 30 January 1985 as amounting to a special circumstance justifying the specification of a day earlier than 28 August 1986 as the date of effect of the applicant's retirement. I accept that, in reaching this conclusion, the respondent regarded her assessment that there had been a significant deterioration in the applicant's medical condition over the period in question as being entitled to greater weight. I am unable to say that that view was not open to her. The irrelevant consideration which the respondent was said to have taken into account was expressed as follows: that she relied on par.5.13 of the CE(RR) Act Handbook without taking into account par.4.11 thereof. Paragraph 5.13 referred to the backdating of the date of retirement to a date no earlier than the date on which the Medical Officer had certified that the staff member was permanently unfit to discharge the duties of his office. That was followed by the words, in brackets, "but see paragraph 4.11". That paragraph, the text of which is set out above, dealt with the case where the officer had exhausted his sick Leave credits before the Medical Officer certified him permanently unfit for his duties. In such a case, it provided for the date of retirement to be the date mm ye pene \ NE mete a ne teen eI tet Bee cept ot 32. of the Medical Officer's "certification except where the Permanent Head (or, one may interpose, his delegate) considered that special circumstances might justify an earlier date. It will be apparent from what has already been said that the respondent did address the question whether such circumstances existed in the applicant's case. I, therefore, am unable to regard the ground relied upon as tenable. It may be noted in passing that, in so far as par.4.11 made provision for acase falling wiithin the Paragraph to be referred to the Public Service Board''s local Regional Director "for decision", it would appear to have misconceived the situation. Whatever input the local Regional Director might have been able to make to the final decision, the decision was, under the statute, one for the Permanent Head or his delegate. However, as the respondent's conclusion that no special circumstances had been shown justifying the specification of a date of retirement earlier than 28 August 1986 made it unnecessary for the matter to be referred to the local Regional Director of the Public Service Board, no question as to the validity of any decision made by the local Regional Director arises. The other grounds relied upon by the applicant are that the making of the decision was an improper exercise of the power conferred by s.19 of the CE(RR) Act in that the respondent exercised her discretionary power in accordance with a rule or policy without regard to the merits of the particular case (Judicial Review Act, ss.5(1)(e) and 5(2)(£)) and that there was no evidence or other material to las u) . Justify the making of the decision (ibid., s.5(1)(h)). These grounds, in effect, raise the same issues as have already been discussed and I need say no more about them than that I do not accept that they, or either of them, have been established. In the result and for the reasons set out above, the application is dismissed. The applicant must pay the respondent's costs of the application. I certify that this and the preceding 32 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. <hey stoning Associate Dated: 9 August 1988 Counsel for the applicant : Mr I.W. Nash Solicitors for the applicant Pamela Coward & Associates Counsel for the respondent Solicitor for the respondent Mr C.M. Erskine Australian Government Solicitor oe oe Date of hearing 18 April 1988 Wor ene rea ton wa ate ong gt wre ee ee ee re ee te ft — fy eine tects ee we Se eee