Dr Shaheen Qasim v Medical Council of New South Wales

[2022] FWC 1174

[2022] FWC 1174

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.773—Termination of employment

Dr Shaheen Qasim
v

Medical Council of New South Wales

(C2022/1769)

COMMISSIONER MCKINNON SYDNEY, 27 MAY 2022

Application to deal with an unlawful termination dispute.

1. Dr Shaheen Qasim has applied to the Commission to deal with a dispute about the alleged unlawful termination of her employment by the Medical Council of New South Wales under section 773 of the Fair Work Act 2009 (Cth) (the Act). The Medical Council is a statutory regulator that manages complaints about medical practitioners and students in New South Wales. Formerly known as the Medical Board of New South Wales, the Medical Council is expressly precluded from employing staff under section 41C of the Health Practitioner Regulation National Law(NSW), which came into effect on 1 July 2010.

1. Dr Qasim says that her employment was terminated by the Medical Council on 22 December 2010, when a hearing was held before the Medical Council about her health practitioner’s registration. On 25 January 2011, Dr Qasim’s registration was suspended by the Medical Council, preventing her from practicing medicine. Dr Qasim’s registration was later cancelled by the NSW Civil and Administrative Tribunal on 2 May 2014 for a minimum period of four years.[1] Dr Qasim appealed the decision but was unsuccessful in overturning the cancellation decision.[2] In 2019, she applied for reinstatement of her health practitioner’s registration. The application was dismissed and a further four‑year restriction imposed.[3] An appeal of that decision was dismissed by the Court of Appeal of the Supreme Court of New South Wales on 13 August 2021.[4]

1. Section 774(1)(a) of the Act requires an application under section 773 to be made within 21 days after employment is terminated, or within such further period as the Commission allows. If Dr Qasim’s employment was terminated as she says, her application is more than 11 years late. Under section 774(2), a further period for Dr Qasim to make the application can only be allowed if I am satisfied that there are exceptional circumstances, taking into account:

• the reason for the delay

• any action taken by the employee to dispute the termination

• prejudice to the employer (including prejudice caused by the delay)

• the merits of the application, and

• fairness as between the person and other persons in a similar position.

1. I would not grant an extension of time to Dr Qasim to make this application if I had the power to do so, because the relevant factors do not support an exercise of discretion in Dr Qasim’s favour. The reason given for delay in making the application is that she used lawyers and they were untrustworthy. She later spoke to acquaintances in the United States of America about her experience, and they convinced her to apply to the Commission under the Act. While not relied upon by Dr Qasim, it is also the case that for much of the past 11 years, Dr Qasim has been dealing with litigation relating at least to her registration with the Medical Council. The reasons for delay are not persuasive.

1. It is not relevant to consider any action taken by Dr Qasim to dispute the termination of her employment, because Dr Qasim was not terminated by the Medical Council in its capacity as employer. Fairness as between Dr Qasim and other persons in a similar position is also not relevant in the absence of any facts that would permit a parallel to be drawn between this case and another.

1. While it did not seek to be heard on the issue, I consider that the Medical Council will incur prejudice if additional time is allowed to make the application. The events the subject of Dr Qasim’s alleged termination of employment occurred well over a decade ago. The facts and findings in relation to those events are comprehensively in dispute. It is not without doubt that relevant individuals will be both available and able to participate in the proceedings given the passage of time. Further, the events in dispute did not occur in the context of the employment relationship. On this issue, and as to the merits, the application is unlikely to succeed because Dr Qasim could not have been employed by the Medical Council in December 2010.

1. The Medical Council’s relationship with Dr Qasim was one of regulator: it was responsible for dealing with complaints about her registration as a health practitioner. It was not, and could not have been, her employer.

1. As Dr Qasim was not employed by the Medical Council, her employment was not terminated by the Medical Council. The application is not made in accordance with the Act and the Commission cannot deal with the dispute.

Order

1. The application is dismissed.

COMMISSIONER

Appearances:

S Qasim on her own behalf.

S Kennedy for the respondent.

Hearing details:

2022.
Sydney (by video):
May 16.

[1] Health Care Complaints Commission v Qasim [2014] NSWCATOD 42.

[2] Qasim v Health Care Complaints Commission [2015] NSWCA 282.

[3] Qasim v Medical Council of NSW [2020] NSWCATOD 136.

[4] Qasim v Medical Council of New South Wales [2021] NSWCA 173.

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