Shobhana Sirdesai v Eastern Health

[2015] FWC 7705

[2015] FWC 7705

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shobhana Sirdesai
v
Eastern Health
(U2015/9908)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 NOVEMBER 2015

Application for relief from unfair dismissal Application for relief from unfair dismissal.

[1] Mrs Shobhana Sirdesai alleges the termination of her employment by Eastern Health was unfair.

[2] Eastern Health applied to be represented by legal counsel at the hearing of this matter. That application was opposed by Mrs Sirdesai.

[3] Mrs Sirdesai applied for an order for production and that application was opposed.

[4] The matter was heard by telephone hearing on 10 November 2015 and at the conclusion of the hearing I advised the parties that I would make the following orders:

1. Permission was granted to Eastern Health to be represented by a legal practitioner.

2. The orders sought by Mrs Sirdesai would be issued subject to the following conditions:

● The documents are to be treated as confidential and may not be used for any purpose other than these proceedings.

● The applicant may view the documents under supervision but may not make a copy of the documents.

● The documents may be redacted to de-identify the patient.

[5] These are my reasons for those decisions.

Permission to appear

[6] Eastern Health submitted that the application raises matters of sufficient complexity and that the Fair Work Commission will be assisted by having a trained lawyer. Some of the matters of complexity go to the issue of the admissibility of evidence protected by patient-doctor privilege under section 28(2) of the Evidence (Miscellaneous Provisions) Act 1958 (Vic); the status of the psychiatrist’s letter dated 15 November 2014; the lawfulness of the direction given to Mrs Sirdesai to either return to work or produce a valid medical certificate; and whether the failure to comply with that direction is misconduct.

[7] Added to this, Mrs Sirdesai raised at the hearing issues of whether Eastern Health failed to comply with its dispute resolution obligations and whether it failed to provide Mrs Sirdesai with alternative employment.

[8] Mrs Sirdesai submitted that there was no particular complexity and she submitted that legal representation would only add to the complexity. It was submitted that the Evidence Act has no relevance to this proceeding as it does not bind the Commission.

[9] Eastern Health submitted that it would be unfair not to allow it to be represented as Mrs Sirdesai is represented by Dr Shreerang Sirdesai. It further submitted that Eastern Health has retained legal representation in the VCAT proceedings issued by Mrs Sirdesai. It said that no person from Eastern Health can take up the advocacy role in the Commission. Ms Marni McKiernan, a HR adviser who has carriage of the matter, is a witness in the proceedings.

[10] Mrs Sirdesai submitted that Eastern Health is a large public hospital and it has in- house legal counsel and a specialist human resources department. Mrs Sirdesai accepts that she is represented by her son but he has no legal training.

[11] I granted permission because I consider that the matter involves some complexity and it will permit the matter to be dealt with more efficiently if legal representation is allowed. Mrs Sirdesai has chosen to run her case based on allegations of continuous discrimination by one of the parties with the tacit approval of Eastern Health. There are allegations that Eastern Health has breached her workplace rights as well as the applicable grievance procedures. If Mrs Sirdesai is seeking, through these proceedings, that the Commission make factual findings in relation to these allegations then, combined with the matters raised by Eastern Health, I am satisfied that legal representation will enable the matter to be dealt with more efficiently due to the complexity of the matters raised.

[12] I do not accept the submission that it would be unfair not to permit representation because Eastern Health is unable to represent itself efficiently. The decision by Eastern Health to be legally represented is a decision it made knowing that it would require permission to be legally represented at the hearing. I am not satisfied on the material before the Commission that there are no other human resources practitioners at Eastern Health who could appear on its behalf. A party who wishes to rely on this provision should put evidence before the Commission to support its submission.

[13] Eastern Health submitted that it would be unfair not to allow it to be represented taking into account fairness between itself and Mrs Sirdesai. While Mrs Sirdesai is represented in these proceedings she is represented by her son who is a doctor. There is no suggestion that Dr Sirdesai is legally trained. I do not consider that Eastern Health would be in anyway prejudiced by being required to represent itself in those circumstances.

The Notice to Produce

[14] Eastern Health received a complaint from a patient. Eastern Health investigated the complaint and issued Mrs Sirdesai with a letter of warning. So much is not in dispute. Mrs Sirdesai challenges the legitimacy of the investigation that led to the warning. She submits that the documents sought are relevant to determining whether the complaint should have been upheld and a warning issued.

[15] Eastern Health does not deny that the documents sought may be relevant to matters in dispute between the parties. However Eastern Health submitted that section 28(2) of the Evidence Act prevents their disclosure. Eastern Health provided a letter from the patient which advised that he did not consent to his records being produced.

[16] Section 28(2) of the Evidence Act provides as follows:

“No physician or surgeon shall without the consent of his patient divulge in any civil suit action or proceeding any information which he has acquired in attending the patient and which was necessary to enable him to prescribe or act for the patient.”

[17] The definition of ‘proceeding’ in section 42BA(1) of the Evidence Act provides as follows:

“’proceeding’ means any criminal, civil or other proceeding or inquiry, reference or examination in which by law or consent of parties evidence is or may be given, and includes an arbitration”

[18] I am prepared, without deciding this matter, to assume that the notice to produce is information acquired by a doctor in attending the patient which was necessary for him to act for the patient.

[19] I am also prepared, though it was not argued before me fully, that an unfair dismissal application is a proceeding.

[20] It is not clear in this matter that any physician or surgeon is being required to divulge the information as the information is held by Eastern Health which is being ordered to produce the documents. Again this was not argued before me but at this stage of the proceeding I am prepared to accept that the provision applies to Eastern Health.

[21] It is also not clear that the requirement to answer a notice to produce requires the disclosure of information. However it is not necessary for me to decide that issue in this decision.

[22] The Fair Work Act 2009 provides at section 590 that the Commission may inform itself:

“The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

Without limiting subsection (1), the FWC may inform itself in the following ways:

……………

(c) by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

…………………”

[23] Further, the Fair Work Act 2009 provides at section 591 that the Commission is not bound by the rules of evidence and procedures in relation to a matter before it.

[24] Eastern Health accepts that the Commission’s power to order the production of documents is a broad power. It was not put that the Commission was bound by section 28(2) of the Evidence Act.

[25] However it submitted that the Commission should have regard to the Evidence Act and should not order the production of the documents because the patient has not consented to his medical records being disclosed. If the order is issued the patient loses the protection provided by the Evidence Act. Further it submitted that a dispute over the production of the documents between the parties was before VCAT and there may be inconsistent rulings.

Conclusion

[26] I do not consider that I am bound by the Evidence Act.

[27] Section 79 of the Judiciary Act 1903 provides a follows:

“The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”

[28] The Fair Work Commission is not a Court. 1 As such the Judiciary Act 1903 does not have the effect of making the Evidence Act binding on the Commission.

[29] I further consider that Fair Work Act 2009, as a law of the Commonwealth is inconsistent with the Evidence Act.

[30] In determining whether I should exercise my discretion to order the production of the documents I have regard to the fact that the Commission is a federal tribunal and it would be unfair if an applicant in one state was able to access documents to support his or her claim but was denied that access in Victoria. The Commission’s conduct of its procedures cannot be limited by state legislation.

[31] In determining whether to make an order to produce I am required to determine if the documents sought have an apparent relevance to the issues in the proceedings.

[32] The Full Bench in Clermont Coal Pty Ltd and ors v Brown and ors 2said:

“The test is whether the documents sought have an apparent relevance to the issues in the proceedings.  Since, in the exercise of its discretion concerning the issuing of orders to produce documents, the Commission will generally be guided by what applies in courts of law, the test of relevance applied by courts has usually also been applied by the Commission.” (references omitted) 3

[33] In Australian Nursing Federation v Victorian Hospitials’ Industrial Association Commissioner Jones set out in detail the approach of both the Commission and the courts to the production of documents. 4

[34] I put to the parties that at this stage of the proceeding it appeared that, at the hearing, the direct evidence of what occurred between Mrs Sirdesai and the patient will be given by Mrs Sirdesai. Mrs Sirdesai will of course be subject to cross examination. Eastern Health relies upon the letter of complaint, the investigation and Dr Denise O’Driscoll’s conclusions to justify its letter of warning. I note it is the evidence of Eastern Health that Ms O’Driscoll reviewed the video footage of the sleep test to provide advice to Ms McKiernan about allegations when Ms McKiernan was reviewing the decision to issue a letter of warning.

[35] Further, Eastern Health opposes the reinstatement of Mrs Sirdesai because in part she had been the subject of numerous patient complaints and she never admitted any wrong doing. At this time only one patient complaint against Mrs Sirdesai has been investigated and findings made by Eastern Health. The other patient complaints have not been finalised because Mrs Sirdesai did not return to work. Mrs Sirdesai does not admit any wrong doing in relation to the patient complaint the subject of the order to produce. I am satisfied that at this stage of the proceedings the documents sought have apparent relevance to a matter in dispute between the parties.

[36] In making this decision I have balanced the patient’s right under the Evidence Act not to have this information provided without his consent with the right of Mrs Sirdesai to challenge the case put against her.

[37] Whilst I acknowledge that the records will contain private medical information I have made orders to prevent the disclosure of that information by any party and have made orders that the documents may not be used for any purpose other than this proceeding. The documents may be redacted to protect the patient’s identity. Further, Mrs Sirdesai is not permitted to make copies of the documents.

DEPUTY PRESIDENT

Appearances:

S. Sirdesai for the Applicant.

N. Harrington for the Respondent.

Hearing details:

2015.

Melbourne:

November 10.

 1   Smith v Trollope Silverwood & Beck Pty Ltd (in liquidation) PR940508

 2   [2015] FWCFB 2460

 3   Ibid at [19]

 4   [2011] FWA 8756

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