Fire & Rescue NSW v Public Service Association of NSW and Professional Officers Association of NSW Amalgamated Union (No 2) [2018] NSWIRComm 1078

Industrial Relations Commission New South Wales Medium Neutral Citation: Fire & Rescue NSW v Public Service Association of NSW and Professional Officers Association of NSW Amalgamated Union (No 2) [2018] NSWIRComm 1078 Hearing dates: 15 November 2018 Date of orders: 06 December 2018 Decision date: 06 December 2018 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC Decision: Draft letter proposed by the notifier to be amended in accordance with these reasons. Catchwords: INDUSTRIAL DISPUTE – referral of employee for independent medical assessment – content of referral letter. Category: Consequential orders (other than Costs) Parties: Fire & Rescue NSW (Notifier) Public Service Association of NSW and Professional Officers Association of NSW Amalgamated Union (Respondent) Representation: Ms P Lenehan (Notifier) Mr A Wright (Respondent) File Number(s): 2018/00179580 Publication restriction: Order pursuant to s 164A of the Industrial Relations Act 1996 that the disclosure of the identity of the person described herein as Mr A is prohibited.

Judgment 1. In Fire & Rescue NSW v Public Service Association of NSW and Professional Officers Association of NSW Amalgamated Union [2018] NSWIRComm 1066 I determined that the direction given to Mr A to attend an independent medical assessment ("IMA") was lawful and reasonable. At [45] of that decision I noted that I had directed the parties to have discussions about the terms of any referral. Those discussions were unsuccessful. 2. The notifier applied for a relisting of the matter and sought a direction determining "what should be included in the referral". The respondent sought further conciliation on that issue. The further conciliation was unsuccessful and I am now asked to make this determination. I directed the parties to file written submissions and indicated I would make a decision in chambers. 3. The central issue dividing the parties was whether the Eldershaw report referred to in [11] of my earlier decision should be included, or even referred to, in the referral. The Eldershaw report gave rise to the employer's consideration of whether referral for an IMA was appropriate. In making its decision the employer also had regard to prior instances of "workplace injury" allegedly related to Mr A's involvement in conduct investigations. I note those matters are referred to in the draft letter of referral and no issue is taken with that. 4. I begin with a consideration of the reason for the direction to confer. Mr A's advocate had made submissions expressing fears that the referral would lead to a wide ranging investigation of Mr A's mental health. The notifier responded as follows: "Let's come right back to it. We want to obtain the assistance of a suitably qualified IME to determine if there is anything clinical or otherwise that might create a risk to Mr A's health and safety by becoming a person subject of complaint and facing a letter of allegations; and if there were those considerations present in the opinion of the IME, what is it that we could reasonably do to minimise the risk to Mr A's health and safety. … Chief Commissioner, I don't know if you are prepared today, as you were on 3 September, to make a pronouncement as to whether or not the Department's letter of 1 June was reasonable, along with having already been found to be lawful. In the event that you are and if the Commission has time today, I am here ready and prepared to assist, should Mr Wright wish to, in formulating the confines of the material to be considered in the course of an IME should you be so minded to find that the direction of 1 June was, in fact, reasonable." (Emphasis added) 1. In light of the suggestion made on behalf of the notifier I reserved briefly to decide whether an ex tempore decision could be delivered. I decided against that course but indicated I was inclined to the view that the direction in relation to Mr A was lawful and reasonable and therefore made the direction for the parties to confer. In making that direction I had not intended that the parties should revisit the issue of whether reliance on the Eldershaw report was reasonable. 2. In my reasons for decision I said at [12] – [17]: [12] Ms Eldershaw reported that there were "grounds for concern as to [Mr A's] mental health and functioning". She recommended that: "it is appropriate that FRNSW require [Mr A] to attend on a psychiatrist for review before further steps are taken in this matter." [13] Ms Eldershaw also recommended that, subject to the outcome of that review, it was appropriate to give consideration to alleging Mr A had engaged in misconduct in certain respects. [14] Counsel also made several other recommendations relating to other staff, including the cross-complainant, and as to a review of certain procedures. [15] It is unnecessary to detail the matters underpinning Ms Eldershaw's conclusion as to the grounds for concern. Suffice to say that reasons were identified particularly at paragraphs 81- 91, 98, 103 and 107 of her report. It cannot be said that the expression of concern was without foundation. That is not to say that her concern is a concluded or conclusive opinion of a mental health expert. [16] Ms Clarke deposed that counsel's conclusion raised concerns for her as to Mr A's mental health and functioning. She was further concerned that participation in a disciplinary process may impact upon his health. [17] The latter concern was founded upon her knowledge that Mr A had, on two previous occasions, reported workplace injury directly related to his participation in separate conduct investigations. In one he was the complainant. In the other he was the person the subject of the complaint.