IRC overturns dismissal action taken by a major department

Welcome to our final Update for 2013 especially written for NSW public sector clients of O’Connell Workplace Relations and those managers responsible for overseeing or undertaking investigations into workplace issues within their departments. We welcome your feedback on these Updates and your views on whether they meet your needs – as well as any suggestions on improvements or future topics.

Our latest update covers recent guidance from the NSW Industrial Relations Commission in a matter of dealing with a staff member refusing directions to attend a medical examination as part of an internal process to identify suitable duties.

SUMMARY OF ISSUE:

– IRC ruled unlawful action taken by the NSW Department of Attorney-General and Justice in directing an employee to attend a psychiatric medical appointment for a wrist overuse injury

– A disciplinary report recommending disciplinary for allegations not formally put to the employee for response was criticised as was the reference to superseded legislation in correspondence from the Department to the employee

In a stinging judgement, Commissioner Newall of the NSW Industrial Relations Commission has ruled unlawful action taken by the NSW Department of Attorney-General and Justice for directing an employee to attend a medical appointment for psychiatric assessment. The employee’s refusal to submit to the assessment resulted in her dismissal and s.100C appeal which Commissioner Newall upheld.

The facts

The case involved a long serving public servant who in 2007-8 claimed workers’ compensation for a psychological injury associated with her work in a particular division of the Department. The employee returned to duties in July 2008 in another work location, with a doctor later certifying she was fully fit for work but that “unresolved interpersonal/human resources issues” meant any return to the particular division would result in an exacerbation of her psychological injury.

Two years later, from June 2010, the employee now claimed workers’ compensation for periods of work in her new work location due to ‘tendonitis caused by repetitive typing and was only fit for restricted duties. In an effort to manage the situation, the Department then directed the employee to undergo a psychiatric assessment to ‘assist with identifying suitable duties’ and after repeated refusals to attend, in January 2013 the Director-General determined to dismiss the employee.

IRC’s criticisms of the Department

In a lesson to investigators in the NSW public sector, Newall was scathing against the actions of the Department for the following deficiencies:

1) Making reference in correspondence to the employee to provisions under the Public Sector Management (General) Regulation 1996 rather than the correct Public Sector Employment and Management (General) Regulation 2009

2) For seeking to have the employee psychiatrically assessed when she had a wrist injury

3) For the Director-General forming part of his decision to dismiss the employee on the basis of a disciplinary report which contained allegations of the employee having sub optimal ethical standards as well as the inability to comprehend basis principles of respect and courtesy. Such allegations were found to be largely based on hearsay and were never put to the employee for a response.

Accordingly, Newall reinstated the employee despite the evidence of her making a number of serious allegations of corruption and other misconduct against the Director-General in correspondence leading up to her dismissal.

LESSONS FOR THE PUBLIC SECTOR:

Lesson #1: Check legislative provisions for currency

Always ensure that the correct legislative provisions are being referred to, especially in correspondence to employees. Making reference to legislation that had been repealed for over two years is not only incorrect and liable to make otherwise correct action potentially unlawful – it also puts the recipient and their union on notice that this may not be the only error being made by the department in their approach to the issue.

Lesson #2: All allegations must be put to accused

The second is to ensure that only allegations based on admissible evidence and not unsourced hearsay, and then put to the accused for a response, are used as any part of the justification of adverse action against an employee. This is a core principle of procedural fairness and any breaches are almost certain to be detrimental to the department concerned with the proposed action.

Lesson #3: Ensure right medical condition identified

The author believes the Department may have been somewhat harshly treated by the conclusions of Commissioner Newall on their decision to seek a psychiatric assessment of the employee in late 2010.

While it is true that the employee at the time was claiming to have a physical injury, tendonitis, it is also correct that redeployment opportunities available to the Department were limited by her previous 2007/8 compensable psychiatric condition and her certificated inability to work in a particular division to avoid an aggravation of this condition. Accordingly, it would seem reasonable to reassess this limitation on her redeployment opportunities over two years later to assess if the limitation continued to apply.

See Schoeman v Director-General, Department of Attorney-General and Justice [2013] NSWIRComm 1018

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