Charles v Northern New South Wales Local Health District [2016] NSWIRComm 1004

Industrial Relations Commission New South Wales Medium Neutral Citation: Charles v Northern New South Wales Local Health District [2016] NSWIRComm 1004 Hearing dates: 4 February 2016 Date of orders: 17 February 2016 Decision date: 17 February 2016 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: The unfair dismissal application by Alex Mervyn Charles is dismissed. Catchwords: UNFAIR DISMISSAL – casual employee – whistleblower – bullying and harassment – workers compensation claim – separation from casual pool – administrative process – no dismissal – application dismissed Legislation Cited: Industrial Relations Act 1996 Workers Compensation Act 1987 Health Administration Act 1982 Public Interest Disclosures Act 1994 Industrial Relations (General) Regulation 2015 Category: Principal judgment Parties: Alex Mervyn Charles (Applicant)

Northern New South Wales Local Health District (Respondent) Representation: The Applicant in person

Ms J Boot (Respondent) File Number(s): IRC 228 of 2015 | 2016/9002

DECISION 1. The applicant, Alex Mervyn Charles, has filed an application for relief in relation to unfair dismissal following receipt by him of correspondence dated 5 March 2015 from Yvette Bowen, Manager Work Health Safety & Insurance, of the Northern NSW Local Health District, the respondent. This correspondence advised the applicant, amongst other things, that on 12 June 2014 the respondent had "separated" his employment from the casual pool as he had not worked for a period in excess of six months. 2. The respondent opposes the application on the ground that the applicant was not dismissed. According to the respondent, because the applicant was a casual employee who had not worked a shift for a period in excess of six months, he was removed from the casual pool of employees by administrative action. It was the respondent's position that this is standard procedure, not just at the Northern NSW Local Health District, but across the public health sector. Further, it was said that this administrative action was not, as previously stated in Ms Bowen's letter of 5 March 2015, undertaken by the respondent but by the entity that manages the payroll of the respondent's employees, HealthShare NSW. 3. HealthShare NSW is a business unit within the Public Health System Support Division of the Health Administration Corporation established under the Health Administration Act 1982. As such, HealthShare NSW provides payroll and other services to the respondent but is separate from and independent of it. 4. By letter dated 5 February 2010 the applicant was offered employment with the respondent as a casual Hospital Assistant Grade 2 at Lismore Base Hospital. He accepted this offer on 14 February 2010 and worked his first shift approximately one month later. At various times throughout his period of employment with the respondent, his employment status was described in the payroll system administered by HealthShare NSW as "Full Time – Temporary", "Full Time – Exempt"', "Part Time – Temporary", "Part Time – Exempt" and "Casual". Not much turns on these various descriptions of the applicant's employment status. From July 2012 until he worked his last shift in July 2013 (apart from a four week period in January/February 2013) the applicant's employment status was consistently described in the payroll system as "Casual" and the variation in the hours he worked from one pay period to the next reflected that status. 5. It is apparent from the pattern of hours worked by the applicant that his casual employment came within terms of Regulation 6(1)(d) of the Industrial Relations (General) Regulation 2015 so as to not be excluded from the unfair dismissal provisions of the Act. 6. In September 2011 the applicant made a public interest disclosure to the Independent Commission Against Corruption concerning a practice which he had observed at the Lismore Base Hospital which he considered to be a work health and safety risk and a public health risk. The applicant had previously raised this issue with hospital management but was not satisfied with the response he received. 7. The applicant believed that other hospital staff who were unhappy about his raising of the WH&S issue began to subject him to a campaign of bullying and harassment which continued throughout 2012 and into 2013. According to the applicant, he sustained a psychological injury on 29 July 2013 as a result of the ongoing bullying and harassment to which he was subjected. The applicant did not work another shift at the hospital after this time. 8. On 25 August 2013 the applicant lodged a claim for workers compensation. On 20 December 2013 the respondent's insurer, QBE Insurance, disputed liability for his claim. On 16 July 2014 the applicant applied to resolve the dispute in the Workers Compensation Commission. In the meantime, on 12 June 2014, the applicant's employment had been "separated" from the casual pool at Lismore Base Hospital by HealthShare NSW as part of its routine functions as payroll manager for the respondent. The applicant was not advised that this had occurred. 9. On 26 November 2014 the Workers Compensation Commission determined the dispute in favour of the applicant and made orders for weekly compensation to him with effect from 29 July 2013 and continuing. Understandably, the applicant feels a measure of vindication from this determination. 10. It was only after the applicant made inquiries of the respondent as to his employment status with it that he received Ms Bowen's letter of 5 March 2015 which advised him, in effect, that he was no longer a casual employee at Lismore Base Hospital. Initially the applicant filed an unfair dismissal application with the Fair Work Commission but was advised by that tribunal that it lacked jurisdiction in relation to state public sector employees in New South Wales. Following receipt of this advice the applicant, on 16 April 2015, filed the application which is presently before the Commission. 11. Conciliation of the application occurred before Deputy President Harrison on 20 May and 24 June 2015 but was unsuccessful. 12. The applicant has nominated 5 March 2015 as the date of his dismissal. If this is accepted as the correct date, his application was filed 21 days out of time. The respondent takes no issue with the late filing of the application and, having regard to ss.85(2) of the Act I would not reject the application on the basis that it was filed out of time. 13. The essential basis of the applicant's claim that his dismissal was harsh, unreasonable and unjust is that it was carried into effect as a continuing process of bullying and harassment which followed as a consequence of the applicant having been a whistleblower to ICAC. He feels particularly aggrieved because ICAC had determined that his disclosure was covered by the Public Interest Disclosures Act 1994 which made it an offence to take reprisal action against him substantially in response to him having made a protected disclosure. 14. In response to the application, the respondent denies that the applicant was ever dismissed. The respondent submits that the applicant's employment was "separated" from the casual pool on 12 June 2014 by means of a standard administrative action which is taken when a casual worker has not worked a shift for at least six months. In the case of the applicant, he had not worked a shift for approximately eleven months. Further, the respondent submits that this administrative action was not taken by it but by HealthShare NSW. According to the respondent, the applicant's whistleblowing activities did not have, and could not have had, any bearing on the cessation of his casual employment. 15. I note that as at 12 June 2014, the date of his "separation", the applicant was not in receipt of workers compensation payments. QBE Insurance had disputed liability for his claim and he had not, by that time, made application to resolve the dispute in the Workers Compensation Commission. However, it should be noted that, if the applicant's workers compensation claim been accepted at or shortly after the time it was made, it would not have been an offence under s.248 of the Workers Compensation Act 1987 for the respondent to have dismissed the applicant at the time his casual employment ceased on 12 June 2014. 16. The applicant is not seeking reinstatement to Lismore Base Hospital. The most recent medical evidence before the Commission is a WorkCover certificate of capacity from Dr Daniel Oxlee dated 15 June 2015 which states: "any work in the North Coast Area health service would need to be away from the protagonists involved. ie NOT LBH". 17. The applicant has rejected an offer made by the respondent on 10 August 2015 that he be appointed as a casual cleaner to undertake ad hoc casual shifts as required, up to his capacity of six hours per week, as was advised by him during conciliation proceedings before Harrison DP, at either Tweed Heads Hospital or Murwillumbah Hospital. During the hearing I asked the applicant whether the making of a reemployment order by me in terms similar to the respondent's offer would be a futility from his point of view. He responded that it would. 18. The applicant had adopted this attitude on the grounds that there would be no guarantee of shifts being offered and because of the extra travel time involved. I note that there was no guarantee of shifts being offered to the applicant when he was a casual employee at Lismore Base Hospital. With respect to the issue of travel time, the distance between the applicant's residence and Lismore Base Hospital is 33.8 kilometres which took approximately 33 minutes to drive. The distance between the applicant's residence and Murwillumbah Hospital is 52.2 kilometres (18.4 kilometres further) which would take approximately 48 minutes to drive (15 minutes longer). 19. The applicant has proposed that he be reemployed as a casual employee at Kyogle or Nimbin Hospitals. However, Ms Boot gave evidence for the respondent to the effect that the cleaning contracts at these two facilities are operated and managed by a third party provider, HealthShare NSW, which is not a party to these proceedings. Further, the cleaning workforce at these two facilities is much smaller than at the other hospitals within the respondent's area of operation. Consequently, the prospects of the applicant being offered shifts at either of these two facilities are likely to be much less than at the larger hospitals. 20. I acknowledge that the applicant feels genuinely aggrieved by the loss of his casual employment at Lismore Base Hospital, which he believes was connected to his whistleblowing activities and the campaign of bullying and harassment which, according to the applicant, followed on from that. However, the evidence before the Commission does not support this belief. The respondent's evidence, which I accept, is to the effect that the cessation of the applicant's employment came about as a result of a routine administrative process whereby casual employees are removed from the casual pool if they haven't worked a shift for a period of six months or more. The removal of the applicant from the casual pool at Lismore Base Hospital was effected by HealthShare NSW, not the respondent. It was entirely unconnected with the applicant's whistleblowing activities. 21. In his final submission the applicant asked the Commission to do a number of things: 1. To rule on the battles between the applicant and the respondent and its employees which have occurred over the past few years involving untruths and vexatious conduct; 2. To require the respondent to proffer an apology to the applicant for the harm done to him and his family; 3. To investigate what he claims to be a misuse of government resources and serious breaches of work health and safety laws; 4. To make an award of money in favour of the Nimbin pre-school to support the projects upon which the applicant has been working. 1. None of these actions are within the jurisdiction of the Commission. In a matter such as this, the relief available to a successful applicant is limited to reinstatement, reemployment and/or compensation. 2. In this case the evidence discloses that the termination of the applicant's casual employment, even if it be regarded as a dismissal, was neither harsh, unreasonable nor unjust. 3. The application is dismissed. 4. I so order.