Industrial Relations Commission of New South Wales CITATION: Skeates v. Illawarra Area Health Service [2005] NSWIRComm 1026 Illawarra Area Health Service PARTIES: RESPONDENT FILE NUMBER(S): 6265 of 2002 CORAM: Connor C termination of employment - medical fitness for duties - delay in proceedings - want of prosecution - case management CATCHWORDS: Industrial Relations Act 1996 LEGISLATION CITED: Cooper v. BHP Steel (AIS) Pty Limited (unreported) Public Service Professional Officers' Association Case (1979) AR 375 CASES CITED: State Pollution Control Commission v. Australian Iron and Steel Pty Limited (1992) 22 NSWLR 487 Versace v. New South Wales Police Service [2005] NSWIRCComm 20 HEARING DATES: 02/23/2005 EXTEMPORE JUDGMENT DATE : 02/23/2005 APPLICANT Paul Matters Leo and Morrison Lawyers LEGAL REPRESENTATIVES: RESPONDENT Anthony Britt Counsel DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Wednesday, 23 February, 2005 Matter No IRC 6265 of 2002 David Skeates and the Illawarra Area Health Service Application by the Health and Research Employees' Association of New South Wales (now the Health Services Union) under S.84 of the Industrial Relations Act, 1996 DECISION [2005] NSWIRComm 1026 1 This matter falls under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act. It has a depressingly long history. I have decided to bring it to a conclusion, notwithstanding that there were no submissions before me to that effect. Neither party in the proceedings - the Part 6 applicant nor the former employer - have really proposed that I dismiss the matter but have requested an adjournment. It is therefore appropriate that I outline the circumstances which have prompted me to conclude this matter. 2 The Part 6 application was made initially by the Health and Research Employees' Association of New South Wales (now the Health Services Union) on behalf of its member, Mr David Skeates, who had been employed as a wardsman with Wollongong Hospital. Mr Skeates' services were terminated on Friday, 25 October, 2002 after thirteen years of employment. The termination of Mr Skeates' services arose originally following a workplace injury he had sustained but there are other issues which have complicated the resolution of Mr Skeates' claim. All proceedings with this matter have been convened in the Commission's premises in 90 Crown Street, Wollongong. 3 In the middle of 1999, whilst transferring a patient from a chair to a bed, Mr Skeates injured his left shoulder and for several months was unable to work. When he returned to work he was placed on rehabilitation and a return to work programme with the aim of returning him to his normal wardsman duties within a timeframe dictated by his attending medical practitioners. By Monday, 25 September, 2000 he had progressed through the rehabilitation programme to a point where he worked as a wardsman in a supernumery position, ie additional to establishment, on restricted duties and with a limit on the weights he may lift and on the times he worked each week. The intention of the IAHS was to return him to his full range of wardsman duties on a rotating roster, involving some work on weekends, but that intention appears to have been frustrated. 4 Mr Skeates was scheduled to return to work at his pre-injury duties level on Monday, 20 November, 2000, with weekend work, and his progress was to be monitored for a further four weeks. However, Mr Skeates sought to remain in his supernumery position which the hospital was no longer prepared to make available to him. In particular, Mr Skeates resisted weekend work. He remained on workers compensation until some six weeks later when he received a full clearance from his attending medical practitioner. His workers compensation payments ceased on Saturday, 30 December, 2000 and he was placed back on the hospital payroll. 5 Ultimately, on medical advice that Mr Skeates' continuing medical condition precluded him work as a wardsman, the IAHS proposed that he be retrained in a clerical role. Mr Skeates resisted that approach. The HAREA, acting on his behalf, lodged a notification of the matter as an industrial dispute under S.130. The matter was allocated to me. The HAREA sought through the S.130 notification that Mr Skeates return to his pre-injury position as wardsman. A medical report from Mr Skeates' surgeon purportedly suggested his fitness to return to his pre-injury position. The IAHS management believed then, as they believe now, that he was not medically fit for such duties but had proposed that he be redeployed to administrative work. The IAHS had based its view on medical advice it had received which allegedly conflicted with that received by Mr Skeates and the HAREA. 6 In compulsory conference proceedings before me on Thursday, 21 June, 2001 I expressed some concern over the conflict in medical opinions and I suggested: "...some dialogue or discussions between the two medical practitioners in this area with a view to producing some common position on the matter, bearing in mind the requirements of the job and also the medical condition of Mr Skeates..." The matter was to be the subject of a series of further conferences before me. In the meantime, the HAREA apparently informed Mr Skeates to attend to work in the new administrative role and he did so. However, he found difficulties with that clerical work and his work attendance was also apparently poor. 7 The IAHS remained convinced that by this time Mr Skeates was not assisting in his vocational assessment, rejecting all attempts by the IAHS to advance for his consideration any administrative and clerical work. Correspondence between the IAHS and the HAREA brought the issue in dispute no closer to resolution. And the IAHS management subsequently received a telephone call from a solicitor who indicated that he now represented Mr Skeates in place of the HAREA. Further negotiations took place between the IAHS and that solicitor. But again no progress appeared to be made. 8 In the meantime, I was satisfied that the process of conciliation had been exhausted before me in the S.130 proceedings. I did not issue the certificate of attempted conciliation required by S.135 to permit the S.130 matter before me to proceed to arbitration, however. The simple fact was that there appeared to me to be no constructive course that the HAREA may have effectively pursued for the arbitration of the matter by way of the S.130 notification. I ultimately dismissed the S.130 matter on that basis. But the issue in dispute between Mr Skeates and the IAHS apparently remained unresolved. 9 Mr Skeates was absent on leave from late in 2001 and, in fact, he did not return to work. He lodged a workers compensation claim on Monday, 18 February, 2002, alleging workplace related depression but that workers compensation claim was declined by the hospital's workers compensation insurer. On Wednesday, 29 May, 2002 Mr Skeates' solicitor informed the IAHS that he was no longer representing Mr Skeates and the HAREA again took up the matter with the IAHS, requesting a review of the vocational assessment for a position of technical assistant in medical imaging which Mr Skeates had his sights on. The IAHS response to the HAREA in a letter dated Wednesday, 19 June, 2002 was to reaffirm that only clerical work would be available to Mr Skeates. A series of medical certificate had been obtained from Mr Skeates' attending medical practitioner that Mr Skeates remained unfit for work due to depression. 10 On Thursday, 26 September, 2002 the IAHS again wrote to the HAREA offering Mr Skeates six months leave without pay "...in a hope that at the conclusion of that period that his current medical conditions have resolved or reached a point where they can be accommodated by way of finding suitable administrative duties for him...". That offer was rejected by Mr Skeates through the HAREA. On Friday, 11 October, 2002 Mr Skeates' attending medical practitioner wrote to the IAHS to inform it that, following a further review of Mr Skeates' medical condition on Friday, 4 October, 2002, he was assessed as recovered from his depressive illness and that, among other things, he was fit for work as a wardsman. The IAHS remained unconvinced that Mr Skeates was medically fit to perform the range of duties required of a wardsman, however, and in a letter dated Monday, 21 October, 2002 to Mr Skeates it foreshadowed the termination of Mr Skeates' services. He was subsequently dismissed on Friday, 25 October, 2002. 11 On Thursday, 7 November, 2002 the HAREA lodged its Part 6 application on Mr Skeates' behalf. In the Part 6 application the HAREA claimed that the termination of Mr Skeates' services was unfair and that his general practitioner and his specialist surgeon had declared him fit to return to his original duties as a wardsman. However, the IAHS continued to dispute that he could return to his original position and claimed that they could not find alternative duties for him. It was also the IAHS's claim that Mr Skeates has consistently rejected any administrative or clerical work offered to him as alternative employment and not co-operated with the rehabilitation programme that it had put in place for him. 12 The Part 6 application was allocated to me and it was the subject of a preliminary hearing before me on Tuesday, 10 December, 2002. I recommended that the IAHS seek to place Mr Skeates, at least temporarily, in an administrative position, commensurate with his medical condition. But, particularly in the light of the lengthy history of this matter, there appeared to me to be no alternative but to programme this matter for arbitration and I did so. 13 On Friday, 14 March, 2003 the HAREA wrote to me to inform me that it was withdrawing from the proceedings. I granted it leave to do so on Monday, 12 May, 2003. I was subsequently informed that Mr Matters would now represent Mr Skeates. I directed the parties to file the necessary documentation. I directed Mr Matters to lodge his witness statement by no later than Thursday, 26 June, 2003 but he had not done so when the matter resumed before me on Monday, 25 August, 2003 for a mention. Nor, initially did either Mr Skeates or his representative appear in the proceedings on Monday, 25 August, 2003, although I waiting for 20 minutes before commencing the proceedings. In fact, I dismissed the matter for want of prosecution at that time under Rule 146 but Mr Matters then arrived in the hearing room after I had done so and sought an extension of time for the filing of his witness statements - which I granted. I rescinded my decision to dismiss the Part 6 application. 14 I adjourned the proceedings for a further mention on Tuesday, 9 September, 2003. The arbitration was to occur on Monday, 19 April, 2004, Tuesday, 20 April, 2004, Wednesday, 21 April, 2004 and Thursday, 22 April, 2004. However, Mr Matters sought a further adjournment of those hearing days. I vacated them and set them down instead for a hearing on Monday, 23 August, 2004, Tuesday, 24 August, 2004, Wednesday, 25 August, 2004 and Thursday, 26 August, 2004. On the first day of the hearing - Monday, 23 August, 2004 - Mr Matters informed me that Mr Skeates was ill and was unable to attend the hearing and give evidence. Mr Matters sought a further adjournment which was not opposed by Mr Britt who represented the IAHS in the proceedings. The hearing was rescheduled for Wednesday, 23 February, 2005, Thursday, 24 February, 2005, Friday, 25 February, 2005 and Monday, 28 February, 2005. But again a problem arose. 15 On Monday, 21 February, 2005 my assistant was informed by Mr Matters by telephone that Mr Skeates was at present incarcerated in prison. I understand from local press reports on Thursday, 17 February, 2005 that Mr Skeates had not applied for bail on charges of possession and supply of a commercial quantity of a prohibited drug and had, in fact, been remanded to appear in the Wollongong Local Court on Wednesday, 23 February, 2005 - the same date that the hearing of his Part 6 application was to commence before me. Mr Matters has consequently sought a further adjournment of the Part 6 proceedings for a further three months. He has informed me in the proceedings on Wednesday, 23 February, 2005 that Mr Skeates proposes to plead not guilty at arrraingment and that Mr Skeates was still anxious to pursue his claim in the Part 6 application for his reinstatement as a wardsman. 16 Whilst I appreciate that Mr Skeates' incarceration inevitably must mean that his Part 6 application cannot effectively go forward for hearing before me, I am naturally enough very concerned over the lengthy delays in bringing this matter to a conclusion. Mr Skeates has consistently pressed for his reinstatement in employment but time is his enemy in that respect. As I indicated in my unreported decision of Wednesday, 28 July, 2004 in Cooper v. BHP Steel (AIS) Pty Limited [Matter No.IRC 2753 of 2003 at pp.3 and 4]: "...Delay is most unfortunate for any Part 6 application, but especially where the claim made is for reinstatement... There is, of course, initially a 21 day time limit imposed by S.85(1) on the lodgment of Part 6 applications but, once a Part 6 application has been lodged, there is no real time limit on its disposition, the matter being essentially under the control of the applicant employee or his representative. For instance, in the Public Service Professional Officers' Association Case (1979) AR 375 McClelland J of the former State Industrial Commission held that there were no specific time limits on the jurisdiction of tribunals to hear applications for reinstatement. Nevertheless, the time factor and any undue delay goes to the question of merit and the discretion of the Commission. And from a practical point of view, delay obviously militates against reinstatement of a dismissed employee. In the Berger Paints Case (1984) 9 IR 273 Macken J of the former Commission commented (at p.274) that a delay of nearly twelve months in processing an application for reinstatement was an '…almost unsuperable barrier…' for such an application succeeding..." I also note in that respect the judgment of the Court of Criminal Appeal of the State Supreme Court (Gleeson CJ, Sheller JA and Badgery-Parker J) in State Pollution Control Commission v. Australian Iron and Steel Pty Limited (1992) 22 NSWLR 487, and particularly the following comments of Gleeson CJ (at pp.493 and 494): "...The courts of this State are overloaded with business, and their workload has, over a number of years, increased at a greater rate than any increase of the resources made available to them. The inevitable consequence has been delay. This, in turn, has brought an increasing responsibility on the part of judges to have regard, in controlling their lists and cases that come before them, to the interests of the community, and of the litigants in cases awaiting hearing, and not merely to the concerns of the parties in the instant case. The days have gone when courts will automatically grant an adjournment of a case simply because both parties consent to that course. The flow of cases through the courts of this State is now managed by the judiciary, and not left to be determined by the parties and their lawyers..." I am concerned that, whilst this matter has committed many days from my diary, it is no further advanced than it was when the HAREA first lodged the Part 6 application on Mr Skeates' behalf. It is the inconvenience to other parties waiting for their claims to be heard where the problem chiefly arises and it has prompted me to reject Mr Matters' submission to stand this matter over for hearing in a further three months. 17 Whilst the IAHS does not oppose a further adjournment of this matter, I am not disposed to adjourn these proceedings yet again. In view of the history of this matter, I propose instead to dismiss it for want of prosecution in accordance with Rule 146, viz: "Where any party has not...pursued the proceedings with due diligence, a tribunal may: (a) order that the application be dismissed for want of prosecution; or (b) fix a definite time for the doing of the act and at the same time order that upon non-compliance the application shall stand dismissed for want of prosecution or non-compliance or, subsequently, in the event of non-compliance, order that it be dismissed; or (c) make such further or other order as in the circumstances may seem just." The ordinary case where a Part 6 application is dismissed for want of prosecution under Rule 146 arises where an applicant fails to appear in proceedings without giving any reasons for that failure and attempts to contact him have proven unsuccessful. That certainly was the position, for instance, in the unreported decision of Sams DP on Thursday, 10 February, 2005 in Versace v. New South Wales Police Service [Matter No.IRC 1139 of 2004]. On this occasion, of course, the reason for Mr Skeates' failure to appear in the proceedings is all too clear - his incarceration in gaol and his defence of the criminal charges levelled against him. 18 Notwithstanding that fact, however, in the interests of the proper case management of my diary, and to ensure no further inconvenience to the IAHS - and, even more important, other parties waiting for the resolution of issues before me, it seems appropriate that I bring this long outstanding matter to some finality. But I do so on this basis: to protect the position of Mr Skeates, I reserve to him the right to seek the re-listing of the Part 6 application within six months of this decision if he should wish to do so (and he is in a position to proceed). Otherwise, my decision to dismiss the matter will become final at that time. P J CONNOR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.