Sodexho Australia Pty Ltd v Rowe
[2009] VSC 298
•24 July 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 8282 of 2008
| SODEXHO AUSTRALIA PTY LTD | Plaintiff |
| V | |
| KAREN ROWE & ORS | Defendants |
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JUDGE: | SMITH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 May 2009 | |
DATE OF JUDGMENT: | 24 July 2009 | |
CASE MAY BE CITED AS: | Sodexho v Rowe & Ors | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 298 | |
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Administrative law – judicial review – Medical Panel – error of law; construction of “suitable employment” – irrelevant considerations – denial of natural justice.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Parrish SC and Ms A Ryan | Wisewoulds |
| For the First Defendants | Mr M O’Loghlen QC and Mr J O’Brien | Ryan Carlisle Thomas |
TABLE OF CONTENTS
The proceedings................................................................................................................................. 2
Background to the proceeding......................................................................................................... 2
The review grounds........................................................................................................................... 4
The relevant legislation.................................................................................................................... 5
Relevant passages from the reasons........................................................................................... 6
Grounds 1 to 4..................................................................................................................................... 7
Denial of Natural Justice................................................................................................................ 12
HIS HONOUR:
The proceedings
By Originating Motion filed 8 September 2008, the plaintiff Sodexho Australia Pty Ltd (“Sodexho”) seeks the following orders
“3.An order in the nature of certiorari quashing the decision made 4 July 2008 (“the decision”) by the Medical Panel (“the Medical Panel”) convened by the second Defendant and constituted by the third, fourth and fifth Defendants on a reference made 8 May 2008 by the Plaintiff of medical questions (“the medical questions”) pursuant to s 45(1)(b) of the Acts and Compensation Act 1985 (“the Act”).
4.An order in the nature of mandamus that the medical questions be referred to a differently constituted Medical Panel and heard and determined according to law.”
Background to the proceeding
In early 2000, while employed by Sodexho Australia Pty Ltd, Ms Rowe developed a skin condition of both her hands which rendered her unfit for her normal work duties from 31 July 2001. Her claim was initially accepted and she received weekly payments of compensation and medical and like expenses in accordance with the Accident Compensation Act 1985.
By letter dated 17 March 2004 QBE Mercantile Mutual (QBE) wrote to Ms Rowe and advised her that her entitlement to weekly payments of compensation would be terminated from 19 April 2004, weekly payments having been payable to her for a period of more than 104 weeks and QBE having determined that she had a “current work capacity” pursuant to s 114(2)(b).
On 20 July 2005 Ms Rowe issued proceedings out of the Magistrates’ Court of Victoria at Geelong seeking to overturn the decision of QBE. It appears that the critical issue raised in those proceedings was whether Ms Rowe had a current work capacity. The matter was subsequently uplifted to the County Court on or about 18 August 2006. Prior to the matter being heard in the County Court, Sodexho, on 27 March 2008, sought referral of several medical questions to the Medical Panel pursuant to s 45(1)(b). Those questions were
“1. What is the nature of the Plaintiff’s medical condition relevant to:
(a) the admitted skin condition of her hands?
(b) the alleged conditions –
(i) anxiety and depression?
(ii) anxiety disorder?
(iii)the alleged condition
post-occupational dermatitis?
2. Does the Plaintiff have a current work capacity?
3.If no to Question 2, is it likely that the Plaintiff will have no concurrent work capacity indefinitely?
4.If yes to Question 2, what employment would constitute suitable employment?”
On 17 April 2008 Judge Bowman made an order referring the medical questions to the Medical Panel. The Medical Panel’s Certificate of Opinion, provided on 4 July 2008, stated that the referral was received by the Medical Panel on 8 May 2008.
In the responses to the above questions, the Medical Panel responded as follows.
(a)Q.1.“In the Panel’s opinion the Plaintiff is suffering from fluctuating eczema/dermatitis of the hands, which constitutes post-occupational dermatitis, and from an adjustment disorder, with mixed anxiety and depressed mood, which is not in remission with treatment and a limited return to work, relevant to the admitted alleged conditions.”
(b)Q.2.“The Panel is of the opinion that notwithstanding that the Plaintiff is currently employed for up to seven hours per week, the Plaintiff does not have a current work capacity within the meaning of the Act.”
(c)Q.3.“The Panel found that the Plaintiff will have no current work capacity indefinitely.”
(d)Q.4.“By reason of the answer to Question 2, the Medical Panel found Question 4 inapplicable.”
The review grounds
The grounds relied upon by Sodexho are as follows
“1.The Medical Panel did not answer the second medical question in accordance with law.
2.The Medical Panel erred in law in its construction of s 93CC(1)(a) and (b) of the Act.
3.The Medical Panel erred in law in its construction of the term “suitable employment” as defined in s 5 of the Act.
4.The Medical Panel took into account irrelevant considerations in answering the second medical question namely –
(a)that in order to determine whether the Plaintiff had a current work capacity in accordance with s 93CC(1)(a) and (b) the Medical Panel had to determine whether the work she had performed in 2008 was “meaningful employment”;
(b)that in order to determine whether the Plaintiff had a current work capacity in accordance with s 93CC(1)(a) and (b) the Medical Panel had to determine whether the work she had performed in 2008 was “artificial employment.”
5.The Medical Panel denied the Plaintiff natural justice or procedural fairness in failing to advise the Plaintiff that the first Defendant had in fact worked in paid employment after the referral of the medical questions to the Medical Panel, the fact which was not known to the Plaintiff.
6.The Medical Panel denied the Plaintiff natural justice or procedural fairness in failing to provide the Plaintiff an opportunity to provide material to the Medical Panel as to whether the first Defendant’s work after the referral of the medical questions to the Medical Panel constituted evidence of the first Defendant:
(a)having a current work capacity within the meaning of s 93CC(1)(a) and (b)
(b) being unlikely to have any current work capacity indefinitely;
(c)having the capacity to engage in “suitable employment” as defined by s 5 of the Act.”
In essence, grounds 1 to 4 seek to raise an alleged error of law. The argument is concerned with the Panel’s construction of s 93CC(1)(a) and (b) and s 5 of the Act. Grounds 5 and 6 raise an issue of natural justice.
The relevant legislation
Sodexho relied on the following provisions to meet Ms Rowe’s claim:
“93CC (1) Subject to section 93CD, a worker's entitlement to weekly payments under this Part ceases after the expiry of the second entitlement period within the meaning of section 93CB(1) unless the worker is assessed by the Authority or self-insurer as-
(a)having no current work capacity; and
(b)likely to continue indefinitely to have no current work capacity.
The critical expressions were defined in s 5 as follows
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment;”
As to the meaning of “suitable employment”, s 5 provides:
“no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment;”
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following-
(a)the nature of the worker's incapacity and pre-injury employment;
(b)the worker's age, education, skills and work experience;
(c)the worker's place of residence;
(d)the details given in medical information including the medical certificate supplied by the worker;
(e)the worker's return to work plan, if any;
(f)if any occupational rehabilitation services are being provided to or for the worker;”
Relevant passages from the reasons
The principal arguments of Sodexho turn on information that Ms Rowe supplied to the Panel during her examination about obtaining work for seven hours a week commencing about three to four months prior to the assessment by the Panel and the Panel’s analysis and use of that information. This work concerned taking orders for a pet supply company. The Panel recorded that she told it that
“…she generally checks the shelves on Monday, looks up catalogues on Thursday and orders goods on Friday. The Panel noted that she only works a maximum of seven hours per week, she determines her own working hours, usually about two hours per day and is able to take time off for exacerbations of her condition.”
The Panel noted that for the two weeks prior to their examination, she had again been certified unfit for work due to a recent exacerbation of her symptoms.
After referring to her continued physical symptoms and her psychiatric condition, its own physical examination and psychiatric examination the Panel concluded that —
“…the worker is suffering from an adjustment disorder with mixed anxiety and depressed mood, which has arisen as a consequence of her physical injury, but is currently in remission as a result of treatment with Avanza and her limited return to work.
The Panel concluded that the nature of the worker’s physical condition is such that she is not capable of performing her pre-injury duties as a kitchen hand”.
It then stated the following
“Taking into account all aspects of the definition of ‘suitable employment’ in the Accident Compensation Act 1985 and in particular, her age of 47 years, the extent of her physical condition (which necessitates avoidance of all work which may cause excessive friction to her hands or where there is contact with detergent or other chemicals), her skills and previous work experience (confined to working as a cleaner, factory and process work, sales assistant, market gardener and waitress), her place of residence in regional Victoria, the Panel considered that ‘there is no work for which the worker is currently suited and which she can perform on a consistent basis’.
The Panel then referred to her current employment in the following terms —
“The Panel noted that the worker is currently employed for up to seven hours per week, but she determines her own working hours and is able to take time off for exacerbations of her condition. At the time of assessment by the Panel, she had been off work for two weeks as a result of the recent exacerbation of her eczema/dermatitis condition and had not yet returned to work. The Panel considered that the worker’s current employment does not constitute suitable employment within the meaning of the Act.
The Panel noted the documents in the referral material entitled “Defendant’s Contentions” and “Submissions of the Plaintiff”. The Panel accepts the Plaintiff’s submission and considers that the situation wherein the worker is employed to work for up to seven hours per week is not regarded as “meaningful employment” but rather is “artificial employment” and does not constitute suitable employment within the meaning of the Act. The Panel also noted the proposed alternative occupations and considered that they are not suitable options.”
It then turned to the options advanced by Sodexho.
“The Panel considers the proposed job options do not adequately take into account the aspects of the definition of “suitable employment”, in particular, the nature and extent of the worker’s medical condition with the resultant adverse effect on any claimed residual capacity for work and the requirement for vocational rehabilitation of the worker due to an absence of transferable skills. The Panel does not accept the Defendant’s submission that the opinions of medical witnesses and a rehabilitation consultant referred to in the “Defendant’s contentions” are evidence that the identified job options constituted suitable employment. In the Panel’s opinion the job options do not constitute suitable employment for the worker.”
The Panel then addressed the critical questions.
“The Panel therefore concluded that the worker has no current work capacity.
The Panel considers the worker’s condition is unlikely to change in the foreseeable future and therefore concluded that she is likely to continue indefinitely to have no current work capacity.”
Grounds 1 to 4
Counsel for Sodexho submitted that the Panel misconstrued and misapplied the relevant provisions. Counsel submitted that the evidence relied upon by the panel concerning Ms Rowe's employment immediately prior to her examination demonstrated that she had actually been exercising her physical capacity for employment and doing so, not with her former employer, but with an independent third-party. Counsel submitted that in those circumstances the Panel was obliged to find that she had a capacity for employment.
Counsel further submitted that the Act makes it clear that what is in issue is the assessment of physical capacity to work. Counsel argued that the analysis in Barwon Spinners Pty Ltd & Ors v Podolack[1] supported that proposition. Counsel submitted that bearing in mind that the test of "suitable employment" was concerned with the physical capacity to work or engage in employment, the use of concepts such as "meaningful employment" or "artificial employment" was inconsistent with the legislation and introduced irrelevant considerations.
[1][2005] 14 VR 622.
Counsel further submitted in support of Sodexho's construction, that it avoided the unsatisfactory consequences that counsel argued flowed from the construction applied by the Panel. Counsel submitted that the Panel’s construction had the effect that under s 93CC a worker would receive 75% of his or her average weekly wage even though the worker was engaged in employment by a third party in a “real job” and receiving a salary. Counsel argued that the concept of "suitable employment" was not confined to the hours or work in which the worker had been previously employed.
In my view, Barwon Spinners does not support the proposition advanced. The Court of Appeal in that case stated that the definition of suitable employment “is looking at the capacity to work” but it went further.
“[25] The concept of ‘suitable employment’ will, of course, give rise to difficulties from time to time, but the thrust of the definition is plain enough. It looks to the possibility of employment after injury; hence the reference to ‘work for which the worker is currently suited’. Age, education and experience are among the matters relevant, as also are the nature, and no doubt extent, of the worker’s incapacity and, of course, pre-injury employment. Obviously employment is not to be regarded as ‘suitable’ if situated too far from the worker’s place of residence; and so a specialist factory in Mildura will not ordinarily be regarded as providing suitable employment for a worker resident in Melbourne. The expression "whether or not that work is available" emphasises that the definition is looking at the capacity to work, meaning that physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is "suitable employment", whether or not the job is currently available"[2].
The Court did not say the issue was only the physical capacity to work or be employed. The issue identified was the physical capacity to engage in suitable employment.
[2]Above at [25]
In my view, the fact that Ms Rowe exercised her physical capacity for work or employment, such as it is, and did so with an independent third-party did not of itself require a finding of a capacity to engage in suitable employment. Further, a realistic approach needs to be taken in determining that question. Counsel for Ms Rowe referred to a number of authorities which support the proposition, and have the effect, that where a person is exercising a physical capacity for employment it does not follow that a current capacity to engage in suitable employment is established.[3]
[3]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Baker v Byrne (2005) VCC 1134; Smorgon Steel Tubemills Pty Ltd v Majkic [2008] VSCA 230.
Those cases confirm that it is necessary, when determining that question, to consider the reality of the alleged suitable employment and to that end it is relevant to consider whether the employment demonstrated can be described as meaningful or should more properly be described as artificial.
I refer, for example, to the discussion of Buchanan JA in Smorgon Steel Tubemills Pty Ltd v Majkic [4] in dealing with a claim made pursuant to s 134AB(38)(f) of the Act but nonetheless relevant on the present issue. His Honour commented in the context of the issues raised under that provision[5]
[4]Above.
[5]At [10].
“In my opinion the phrase ‘in suitable employment’ applies equally to income the worker is earning and is capable of earning. The element to be ascertained is the worker’s loss of earning capacity, and requires comparison between what the worker was earning or was capable of earning at the date of the decision and what he was earning or would have earned had the injury not occurred. If the phrase ‘suitable employment’ qualifies only the income from personal exertion the worker is capable of earning [and not income earned prior to the injury], the work on one side of the comparison may be a contrived, adventitious, short-term occupation bearing little or no resemblance to the work for which the worker is suited. I consider that the legislature intended that the worker’s loss of capacity was to be determined having regard to work that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker, who is incapable of performing his normal work”.
After referring to the definition of suitable employment in s5 his Honour commented[6]
[6]At [11].
“The definition directs attention to the realities of the labour market. It does require that regard is to be had to any return to work plan. A return to work plan must include an offer of suitable employment, and such an offer may take the form of employment catering for the disabilities caused to the worker by injury such as the position created for the respondent. It is one thing to have regard to a return to work plan for the light it may throw upon a worker’s ability to work, which can be turned to account in the commercial world outside the special relationship between a worker and an employer concerned to cater for the worker’s special needs. It is another to equate the work offered by such a plan with suitable employment for the purposes of s 134AB(38)(f). The definition does not require the second step to be taken”.
I have referred above to the discussion in Barwon Spinners. In Baker v Byrne[7], after referring to the last sentence of the passage quoted above from Barwon Spinners, Judge Bowman stated in his reasons for judgment
“The defendant must take a plaintiff as it finds him or her, not only in relation to his or her physical condition, but also in relation to the various factors set out in the definition of ‘suitable employment’ contained in s 5 of the Act and as referred to in Barwon Spinners”
His Honour commented that the provisions of s 5 and the decision in Barwon Spinners
“take one back to what his Honour Judge Higgins in Meehan v VWA (delivered 12 April 1996) referred to as ‘degree of reality when considering whether work can be described as suited to the worker’ That degree of reality would enable one to say, with some confidence, that, whilst Baker might have the physical capacity so to do, he will not be re-entering the workforce as a brilliant physicist[8].”
[7][2005] VCC 1334.
[8]Referring back to his Honour’s example of Professor Stephen Hawking.
Sodexho, in my view, faces the further difficulty that the Panel did not substitute the concepts of meaningful employment or non-artificial employment for the statutory test but rather used them as an aid to applying the statutory test.
The Panel in fact appears to have applied what has been the accepted position for some time, and that is to accept that the requirement of “suitable employment” refers to employment that is meaningful or not artificial.
I note Ms Rowe’s submissions filed with the County Court, which were subsequently supplied to the Panel amongst the papers referred to it. The consideration of the issue of meaningful and not artificial employment in construing “suitable employment” was advanced by Ms Rowe in her submissions. The Defendant did not dispute that approach, merely referring the Panel to the Court of Appeal decision in Barwon Spinners Pty Ltd v Podolak & Ors[9] and the Court’s analysis that whether a job is currently available is not relevant. The Panels’ approach to the construction of “suitable employment” had been previously referred to in Public Transport Corporation v Pitts[10] which was an appeal from a Magistrates’ Court decision. It turned on an issue concerning onus of proof. The Magistrates’ Court’s approach to the construction of “suitable employment” had included consideration of whether the employment was meaningful or not artificial. That issue was not the subject of the appeal. Leave to appeal to the Court of Appeal was refused. The Court of Appeal, in refusing leave, praised the quality of the reasons of the Magistrates’ Court.
[9][2005] VSCA 33
[10][2007] VSC 356.
The Court was informed by counsel for Ms Rowe that since the publication of those decisions, it has not be uncommon in cases about a worker’s capacity to engage in suitable employment for the debate to be conducted by having regard, amongst other things, to the question whether the employment for which the worker is said to have capacity maybe described as meaningful or artificial. In my view, that approach is consistent with the content of the requirement of “suitable employment” because the concept implies a requirement of meaningful and not artificial employment.
As to the consequences of the rival interpretations, I do not accept the argument advanced for Sodexho. It proceeds on the assumption that the worker is engaged by a third party in a “real job”. But that is the issue to be decided. Where, as in the present case, the worker is trying to earn some income from work but is having great difficulty and can only do so in circumstances where an employer is able and willing to extend not only flexibility of hours but also the choice of hours to the employee and is willing to retain the person even though their disabilities mean that they can only work up to seven hours a week and then only for periods when well enough, one could well understand the Parliament deciding that in such situations it would be appropriate for the worker to receive 75% of his or her average weekly wage received prior to the injury. On the other hand, the analysis advanced for Sodexho has the potential effect described by his Honour Judge Bowman
“that, after 104 weeks, everyone except the comatose, would have a capacity for employment and none would be entitled to compensation.”[11]
[11]Ibid.
For the foregoing reasons, grounds 1 to 4 are not made out.
Denial of Natural Justice
It is common ground that the Panel was under a duty to accord natural justice to the parties. It is also common ground that Sodexho was not made aware of the information received and considered by the Panel concerning Ms Rowe's engagement in paid work in the period shortly prior to the examination by the Panel. Counsel for Sodexho submitted that the Panel failed to discharge its duty to accord natural justice in that it failed to have the information received from Ms Rowe made available to Sodexho.
It is, of course, necessary to determine the content of the obligation to accord natural justice by reference to the statutory context in which the decision making power is given. In this instance there appear to be two provisions of potential relevance.[12] The first is that in s 65(4) dealing with the procedures and powers of Panels, it is stated
[12]I note also that Clause 35 of the Convenor’s Directions as to the Arrangement of Business and as to the Procedures of Medical Panels, Accident Compensation Act 1985, (1 March 2008) which requires Panels in the circumstances described to notify all parties of new information from the worker “integral to the Panel’s deliberations”.
“(4) Any attendance of a worker before a Medical Panel must be in private, unless a Medical Panel concedes that it is necessary for another person to be present.”
Counsel for Ms Rowe conceded, properly in my view, that the word “private” is used in contradistinction to “public” — that is it does not carry with it any implications relevant to the content of the obligation to provide natural justice. Another provision of potential relevance is s 68(4) which provides as follows
“(4) For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any Court, body or person and must be accepted as final and conclusive by any Court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred”.
The provision denies any right of appeal. Any person aggrieved by a decision is confined, as a result, to judicial review applications of the kind brought by this application. It should be borne in mind also that Medical Panels are not administrative tribunals of the kind discussed by Brennan J in Kioa cited below and relied on by counsel for Ms Rowe. They are not concerned with persons seeking rights or privileges. Their role is to decide whether persons who are injured and who have common law and statutory rights to seek compensation for those injuries will be allowed to proceed to enforce those rights. They occupy the anteroom of the courtroom. They decide mixed questions of law and fact which will bind the parties.
Counsel for Sodexho relied upon a number of authorities, including authorities relating to the duty of Medical Panels. The latter were recently summarised by Kyrou J in Vegco Pty Ltd and Victorian Workcover Authority v Dr Gibbons & Ors[13] in the following passage
“ A Medical Panel is bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by its opinions on medical questions[14]. The Medical Panel may breach the rules of natural justice where it relies on new information provided to it by the worker during the examination by the Medical Panel[15], a new medical report, evidence that has not been seen previously by the worker[16] and a matter within the panel’s own expertise[17] and does not prior to reaching the final opinion, provide the substance of this new information, evidence or matter to the parties affected by its opinion and give them a reasonable opportunity to address it.”
[13][2008] VSC 363 At [23].
[14]Masters v McCubbery (1996) IBR 635.
[15]Weerappah v Nisselle [1999] VSC 249 [41], [50].
[16]Above at [45].
[17]Calleja v Franet Pty Ltd [1999] VSC 202, [23] - [24].
Counsel for Ms Rowe submitted that there was no breach of the duty in not passing on the information about her employment to Sodexho because the information was not "adverse" to Sodexho. Counsel referred to and relied on the statements of Brennan J. in Kioa v West[18]
“A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise:….The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision making is not to be clogged by enquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed.”
[18](1985) 159 CLR 550, at 628.
The submission made on behalf of Ms Rowe relies upon the application of Brennan J's propositions to all situations. But I suggest that his Honour was simply stating what he saw to be the obligation in respect of matters of the kind before the Court. As his Honour stated[19] earlier in his reasons
“The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.”
I note also the comment of Mason J in the same case[20]
“In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person’s attention the critical issue or factor upon which the administrative decision is likely to turn so that he may have an opportunity of dealing with it”.
[19]At 612.
[20]At 587.
Not only was the material properly classifiable as adverse in this case from the point of view of Sodexho, it raised an important issue that should have been brought to its attention.[21] In my view, it was integral to the Panel’s deliberation. I am also satisfied that if the information had been conveyed to Sodexho, it would have taken steps to investigate the circumstances of that work and made a further submission on this new issue. It was deprived of the opportunity, therefore, to take steps that may have enabled it to change the Medical Panel's opinion.[22]
[21] See also Szbell v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] 228 CLR 152 at 162 citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576. Reference should be to Norvill Nominees Pty Ltd v Strathbogie Shire Council & Ors [2008 VSC 339 at[24] and [27].
[22]c.f. Stead v SGIO (1986) 161 CLR 141.
I also note that, in determining the question of whether the material is adverse, the reality is that the natural justice issue will commonly arise before a Tribunal in running and prior to a decision. I suggest also that it should be sufficient, where the argument relies upon adverse information, that the party alleging the denial of natural justice can demonstrate that it should have been apparent that the information was capable of being adverse. In the present case, it was so capable and was used adversely because it was considered, along with the other evidence, to result in an adverse conclusion for the employer.
Counsel for Ms Rowe raised an alternative issue – whether the Panel relied on the information. Counsel pointed to the response of the Panel to question 2 referred to above, namely, that
"The Panel is of the opinion that notwithstanding that the Plaintiff is currently employed for up to seven hours per week, the Plaintiff does not have a current work capacity, within the meaning of the Act."
It is put that the language used demonstrated that the Panel had not relied upon the information in question in reaching its conclusion. I am satisfied, however, that the Panel considered the information and came to the conclusion that it did not demonstrate that Ms Rowe had a current work capacity. Sodexho had a right to be heard on that issue.
For these reasons, I accept the submission of Sodexho that it should have been given the opportunity to
· consider and, if so advised, investigate the issues raised in the course of the Panel interviewing Ms Rowe on her recent employment history and
· address the information by further submissions at least and place any other relevant information it might have, or might gather, before the Panel[23].
[23] The situation was foreshadowed in my reasons for judgment in Weerappah v Paul Niselle & Ors [23].
For the foregoing reasons, I am satisfied that the Panel failed to provide natural justice to Sodexho. Accordingly the Certificate of Opinion should be quashed. The matter should be remitted to a different Medical Panel to be determined in accordance with law. I see no reason to depart from that normal course where denial of natural justice is established, notwithstanding the fact that the reasons produced by the Panel were of a high quality.
I will hear further submissions about appropriate orders.
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