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. Consideration 1. I do not intend to summarise the submissions of the parties in detail. The notifier relied upon what had been offered on its behalf and the reasons for decision of the commission in support of its submission that inclusion on the Eldershaw report was appropriate. 2. The respondent argued that the Eldershaw report was based upon unproven allegations and opinions of a person who was not a qualified medical practitioner. Those matters, it submitted, may mislead the independent medical examiner ("IME"). In the alternative the respondent suggested that it should prepare a "report" of its own to be included in material referred to the IME. 3. The notifier's reply to that suggestion was to indicate that Mr A was entitled to take such material as he may wish to present to the IME but opposed including a "report" from the respondent. 4. The respondent's submissions, at least in part, canvas the conclusions I expressed in my earlier reasons as to the Eldershaw report containing expressions of a medical opinion. At [40] I said: "I turn then to the reasonableness of the direction. In this case there is a recommendation by an experienced barrister based on observations she made in a detailed report that the employee be referred for an IME. That is not, contrary to the submissions of the PSA, an expression of a medical opinion. It is a recommendation to obtain a medical opinion." 1. In my view the other aspect of the respondent's concern is overstated at best. The draft letter makes clear that the purpose of the IMA is to determine whether there is a risk to Mr A's health in participating in a disciplinary process involving the investigation of allegations made against him. The draft letter sets out in some detail the nature and course of the disciplinary process. In my view the likelihood of the IME misunderstanding the allegations to be proven facts is miniscule. Any residual doubt about that, at least in the mind of Mr A, can be removed in discussion between him and the IME. 2. I also think it inappropriate to include a "report" from the respondent. Unlike the Eldershaw report, any such document will not be an independent preliminary report that a submission arguing that the allegations are without substance will stop the determination whether the allegations have substance is the function of the proposed disciplinary process not the IMA. The inclusion of such a document is likely to raise the very concern articulated by the respondent, that is that the IME would feel obliged to determine the truth of the allegations. I reiterate that is not the purpose of the IMA. 3. I accept also, the submission of the notifier that the Eldershaw report will provide context as to the nature of the allegations and the potential issues, and therefore stress or is, that may arise in the proposed process. Such information will allow the IME to assess whether there is a risk to Mr A's health and, if so, what steps if any may be taken to mitigate that risk. 4. In my view the only amendments of substance required to the draft letter to ensure it conforms to the notifier is stated purpose set out in [4] above is to insert in section 4 the words "without risk to his mental health" in each of the dot points after the word "capacity". 5. I determined accordingly. ********** 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. Decision last updated: 06 December 2018