APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 18 FEBRUARY 2022

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00299

DELIVERED : WEDNESDAY, 13 JULY 2022

FILE NO. : PSAB 15 OF 2022

Appellant

AND

North Metropolitan Health Service

Respondent

CatchWords : Public Service Appeal Board – Application to dismiss appeal under s 27(1)(a) – Appellant cannot perform his role because of an undertaking given to the Australian Health Practitioner Regulation Agency – Not in the public interest to hear appeal – Section 27(1)(a) application to dismiss appeal upheld

Legislation : Industrial Relations Act 1979 (WA): s 26(1)(a), s 27(1)(a) & s 80I

  Health Services Act 2016 (WA): s 147, s 150 & s 172

  Health Practitioner Regulation National Law (WA) 2010 (WA): s 125(1) & s 127     

Result : Order issued

Representation:

Appellant : On his own behalf

Respondent : Mr J Carroll (of counsel)

Cases referred to in reasons:

Coal & Allied Mining Services Pty Ltd v MacPherson (2010) 185 FCR 383

Gee v WA Country Health Services [2022] WAIRC 00224

Pharmacy Board of Australia v Ramsey [2021] SACAT 21

Re v Inspector of Custodial Services [2013] WAIRC 00830

State Government Insurance Commission v Johnson (1997) 77 WAIG 2169

Vega Vega v Hoyle [2015] QSC 111

Reasons for Decision

1         These are the unanimous reasons of the Public Service Appeal Board (Board).

2         Mr Delfante was a Pharmacist at North Metropolitan Health Service (Health Service). By way of brief background, in October 2019, the Health Service suspended Mr Delfante without pay because he had been charged with a serious offence. Several years later, the Health Service dismissed Mr Delfante.

3         Mr Delfante appeals his dismissal to the Board. In his notice of appeal he argues that, although he pleaded guilty to criminal charges, he has not been convicted of a serious offence so the Health Service did not have the authority to dismiss him under s 150 of the Health Services Act 2016 (WA) (HS Act). In the alternative, he says he was denied procedural fairness. Mr Delfante seeks reinstatement or for the Health Service to ‘give proper consideration of viable options for alternative roles.’

4         The Health Service has applied to the Board for an order dismissing application PSAB 15 of 2022. The Health Service says that even if Mr Delfante were to be successful in his appeal, the only remedy available to Mr Delfante would be for the Board to adjust the decision to dismiss. The only way the Board could adjust the decision to dismiss is by ordering that Mr Delfante be reinstated to his original position as a Pharmacist. However, Mr Delfante has given the Australian Health Practitioner Regulation Agency (AHPRA) an undertaking that means he cannot lawfully perform that position. In those circumstances, the Health Service argues that it is not in the public interest for Mr Delfante’s appeal to be allowed to proceed because no remedy is available.

5         Mr Delfante opposes the Health Service’s application to dismiss application PSAB 15 of 2022. He argues that his appeal should be allowed to proceed but be stayed pending the resolution of the criminal matters. Mr Delfante says that the Undertaking only prevents him from working as a Pharmacist, not from working in other roles. For several years before his suspension, Mr Delfante worked for the Health Service in a role that was ‘outside of pharmacy practice’. He says that dismissing his appeal ‘would set an unfair precedent that any employer can simply dismiss an AHPRA registered practitioner who has made an undertaking not to practice, ahead of the AHPRA investigation concluding, and the practitioner will have no right of appeal.’

Question to be decided

6         The Board must decide whether to dismiss application PSAB 15 of 2022 because it is not in the public interest for Mr Delfante’s appeal to be allowed to proceed because there is no remedy available.

Background facts

7         The following facts are not in dispute.

8         Mr Delfante was employed by the Health Service to work as a Pharmacist. His duties are set out in the Pharmacist Job Description Form (JDF).

9         The JDF provides that the Pharmacist role includes providing pharmacy services to patients, counselling patients about the correct use of medication, preparing pharmaceuticals, providing medicines information to staff and consumers, supervising and developing other staff and participating in education programmes for pharmacists and other health professionals.

10      One of the Essential Selection Criteria for the Pharmacist role is that the person is eligible for registration by the Pharmacy Board of Australia. An appointment ‘prerequisite’ is the provision of evidence of current registration by the Pharmacy Board of Australia.

11      Mr Delfante has given an undertaking to AHPRA which have been in place since 6 September 2019 (Undertaking). The Undertaking is broad, providing:

I, Brock Delfante PHA0001757161, will not practise as a pharmacist.

For the purposes of this undertaking, ‘practice’ is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a pharmacist in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a pharmacist in a direct non clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the pharmacy industry.

12      Under sections 125(1) and 127 of the Health Practitioner Regulation National Law (WA) 2010 (WA), removal of undertakings requires approval of the National Board.

13      There is nothing before the Board to suggest that the Undertaking is likely to be removed any time soon or at all.

14      The parties had the opportunity to lead oral evidence in relation to this application before the Board but they chose to rely on documents and submissions.

The Health Service’s case

15      In support of its case the Health Service relies on:

a. a screenshot evidencing the Undertaking Mr Delfante has given to AHPRA;

b Mr Delfante’s contract of employment; and

c. the JDF.

16      The Health Service refers to s 80I(1) of the Industrial Relations Act 1979 (WA) (IR Act), under which the only remedy available for the Board is to ‘adjust’ the decision the subject matter of the appeal. The decision the subject matter of this appeal is the Health Service’s decision to dismiss Mr Delfante.

17      The Health Service points to Industrial Appeal Court’s decision in State Government Insurance Commission v Johnson (1997) 77 WAIG 2169 which considered the meaning of the word ‘adjust’. Anderson J held at 2170:

The only ‘matter’ which is referred to in that paragraph is ‘a decision, determination or recommendation… that the Government officer be dismissed’. It is that, and only that, which may be ‘adjusted’ in the exercise of the Board’s jurisdiction. The power to ‘adjust’ a decision or determination can only be a power to reform the decision in some way. In the case of a decision or determination by an employer to dismiss an employee with one month’s pay in lieu of notice, the most obvious way to do that would be to reverse it. Whether there may be other ways of adjusting such a decision is perhaps an open question. It may be arguable that the power to adjust a decision of dismissal includes a power to adjust the period of notice. The issue does not arise in this case because no such adjustment was sought by the respondent.

18      The Health Service also relies on two Public Service Appeal Board decisions.

19      First, Re v Inspector of Custodial Services [2013] WAIRC 00830 in which the appellant, Ms Re, gave evidence that she did not want to go back to work in the Office of the Inspector of Custodial Services. Rather, she wanted to be reinstated so she could be placed on the ‘unattached list’ with a view to being redeployed elsewhere in the public sector. The respondent applied for the matter to be dismissed on the basis that the remedy sought by Ms Re was not available, because it would not amount to ‘adjusting’ the decision of dismissal. The Board held:

[21] In the context of the present matter, the Appeal Board only has the jurisdiction to adjust the decision to dismiss Ms Re. There is no power to substitute for the decision to dismiss Ms Re, another and entirely different decision to, for example, transfer Ms Re to another government department. The remedy open in this case is one of reversing the decision to dismiss Ms Re and reinstating her to her former employment with the Inspector. Ms Re did not seek for example, an adjustment to the period of notice of her dismissal. Reinstatement is a course that plainly, on the testimony of Ms Re, she does not genuinely seek. Ms Re sought a remedy not open to the Appeal Board.

…

[24] … Ms Re at the conclusion of her testimony, made it plain that she does not wish to restore her working relationship with the Inspector. … Any order of reinstatement, even if it were to be made, would only be, as counsel for the Inspector put it, part of a tactical approach to find a way to leave the Inspector’s employment. To proceed to hear the rest of the appeal, in the view of Ms Re’s testimony, would be contrary to equity and good conscience under s 26 of the Act. The Appeal Board’s jurisdiction would have been invoked, ultimately to achieve an ulterior purpose.

(Respondent’s emphasis)

20      Second, in Gee v WA Country Health Services [2022] WAIRC 00224, the Public Service Appeal Board observed at [98] – [99]:

To adjust a dismissal decision might involve quashing it but it does not extend to formulating new contract terms…

Further, to quash a dismissal decision resulting in reinstatement of an employee to a position which the employee cannot perform, because of their vaccination status would mean that they would be in breach of any terms of the employment contract, the [Public Health] Directions, or an employer’s policies would not be consistent with the requirement that the Board ‘act according to equity, good conscience and the substantial merits of the case’: s 26(1)(a) of the IR Act.

21      The Health Service argues that quashing a decision to dismiss results in the reinstatement of an employee to their former position.

22      The Health Service argues that the Undertaking is extremely broad. In essence, it prevents Mr Delfante from engaging in any paid or unpaid work that relates to his knowledge and skills as a Pharmacist. Mr Delfante is unable to work in management, administration, training, education or policy development, where it relates to his knowledge as a Pharmacist or the pharmacy industry.

23      The Health Service says the Undertaking prevents Mr Delfante from performing all duties of the position in which he was employed. Even if it could be said that Mr Delfante could perform some minor duties of the role, which the Health Service does not concede, the Health Service says it is not required to accept partial performance of the duties of the position, particularly such minor partial performance: Coal & Allied Mining Services Pty Ltd v MacPherson (2010) 185 FCR 383 [42]-[43] (Marshall and Cowdroy JJ).

24      The Health Service says that if the Board adjusted its decision to dismiss Mr Delfante to quash the decision, resulting in his reinstatement, Mr Delfante would be unable to lawfully perform any of, or at least any of the core, duties of his role. That inability would continue for an indefinite period.

25      The Health Service argues that there is no power for the Board to adjust the decision to dismiss in a way that would require the Health Service to either employ Mr Delfante in some other position or provide him with duties other than the duties of his position that he can lawfully perform. The Board cannot formulate new contract terms for the parties on reinstatement.

26      Accordingly, the Health Service says that it would be futile to reinstate Mr Delfante, regardless of the merits of his appeal. Mr Delfante would be unable to perform the core requirements of an employment contract, being to provide service to the Health Service in accordance with the contract of employment.

27      The Health Service says that quashing the dismissal and reinstating Mr Delfante into a role he cannot perform would not be consistent with the Board’s obligations under s 26(1)(a) of the IR Act. The Board should uphold the Health Service’s application for an order under s 27(1)(a) of the IR Act and dismiss this appeal.

Mr Delfante’s case

28      In summary, Mr Delfante opposes the Health Service’s application to dismiss his appeal because he says:

1. the Undertaking impacts only his ability to practise pharmacy, not whether he may be employed;
2. he was employed as a Pharmacist and worked outside of pharmacy practice for several years before he was suspended;
3. the Health Service chose to suspend Mr Delfante from August 2019 until February 2022, thereby acknowledging that the Undertaking does not prevent Mr Delfante from being employed in a position as a Pharmacist, with the Undertaking in place, as long as he does not practise as a Pharmacist;
4. ‘the circumstances that have resulted in the [Undertaking] still being in place at the time of termination is due to the respondent deciding to terminate [him] before the resolution of [his] criminal matter and before even having knowledge of the conduct supposedly associated with the decision to terminate. Dismissing the appeal denies [him] the right to appeal [his] termination simply because the respondent did so before the matter had resolved in court.’;
5. it is open to the Board to quash the decision to dismiss Mr Delfante because the Health Service ‘has demonstrated that it considers it perfectly reasonable to maintain a suspended employee in their role for an extended duration of time’;
6. it is open to the Health Service to review the suspension and consider ‘the suitability of [Mr Delfante’s] broad skills and experience for performing other work’; and
7. dismissing his appeal would set an unjust and unfair precedent, because any employer could simply dismiss an AHPRA registered practitioner who has given an undertaking not to practise, ahead of the AHPRA investigation concluding, leaving the practitioner with no right to appeal.

29      In addition to the screenshot of the Undertaking, his contract of employment and the JDF, Mr Delfante relies on the JDF for the position of Senior Policy and Compliance Officer, a screenshot from AHPRA’s website setting out examples of ‘issues that would prompt a National Board to consider taking immediate action’, the Health Services Bill 2016 (WA) Explanatory Memorandum and s 147, 150 and 172 of the HS Act, the first page of a letter from APHRA to Mr Delfante dated 21 August 2019, excerpts from the WA Health Discipline Policy and WA Health Code of Conduct, a screenshot of listings from the District Court, an email he sent the Health Service on 20 February 2022 and the letter of dismissal.

30      Mr Delfante also made submissions about Re v Inspector of Custodial Services, although he says that the reasoning in that matter is supportive of hearing his appeal, because he seeks reinstatement.

31      Mr Delfante says Gee v WA Country Health Services is distinguishable, because that decision did not contemplate reinstating an employee to a suspension.

32      Mr Delfante refers to s 172 of the HS Act and says the Board has the power to quash the Health Service’s decision to dismiss and remit the matter back to the employer with a direction as to the stage at which the disciplinary process should recommence. 

33      Mr Delfante argues that s 150 of the HS Act ‘clearly demonstrates that parliament had in mind as legitimate circumstances where an employee is restricted from practice of their profession but where they are maintained in employment in their position, albeit suspended in nature.’

34      Mr Delfante referred to two decisions of administrative tribunals. In Pharmacy Board of Australia v Ramsey [2021] SACAT 21 a practitioner gave an undertaking to AHPRA that he would not practise while a disciplinary matter was being investigated. Employment was maintained and eventually the practitioner continued working for the employer. In Vega Vega v Hoyle [2015] QSC 111 a health service maintained a practitioner’s employment while a complaint was investigated by AHPRA.

35      Mr Delfante says s 147 of the HS Act ‘indicates that suspension of an employee, in their substantive position, is a perfectly viable circumstance, when restrictions on that employees (sic) right to practice (sic) is restricted by AHPRA such that they cannot perform their role.’

36      Mr Delfante also made various arguments that relate to the merits of his appeal and not to the Health Service’s application to dismiss, for example at [29] – [44], [49] – [54], [57] and [58] of his written submissions.

37      Mr Delfante says an undertaking is inherently unilateral and had he not given one, his registration would have been suspended.

38      Mr Delfante agrees the Undertaking is broad, but says that it does not prevent him from performing all of the duties of the position in which he was employed. He says Pharmacists do not perform all listed duties at any one time or on any one day. Mr Delfante says the Health Service has provided no evidence to show which duties he cannot perform due to the Undertaking, or whether those duties would result in partial performance of the duties of the position.

39      Mr Delfante says the pharmacy department within the Health Service is large and ‘there is nothing to suggest that there are not sufficient duties [he] would be able to perform to enable [him] to perform the role of pharmacist fully.’

40      Mr Delfante agrees that there is no power for the Board to adjust the decision to dismiss in a way that would require the Health Service to either employ him in some other position or provide him with other duties that he can perform. But he says the Board does not need to do so. Mr Delfante argues ‘The very fact that it is open to the respondent to do this means that the appeal is not futile.’

41      Mr Delfante notes that there are currently roles advertised that he is suited to perform, ‘should the respondent wish to put [him] to work if the Board were to reinstate [him].’

42      Mr Delfante argues that upholding the Health Service’s application to dismiss would set a precedent that the right to appeal is conditional. The Health Service would be able to dismiss practitioners charged with a serious offence ‘traversing an inappropriately made guilty plea without concern the practitioner will respond to the proposed decision or be able to appeal it.’ He says the right of appeal provided for in s 172 of the Health Services Act is not conditional.

43      Mr Delfante says that denying him the right to appeal, when he was also denied the opportunity to respond when he was suspended, would not be consistent with the requirement that the Board act in accordance with equity, good conscience and the substantial merits of the case. He says the Health Service’s application for an order under s 27(1)(a) of the IR Act should be dismissed and the appeal allowed, albeit temporarily stayed.

Consideration

44      The Board notes that Mr Delfante sought a stay in these proceedings, at first saying that he could not respond to the Health Service’s application to dismiss his appeal without jeopardising his right to silence in relation to the criminal charges against him.

45      In our view, responding to the Health Service’s application to dismiss this appeal does not impact on Mr Delfante’s right to silence. The Health Service’s application is unrelated to the criminal charges. No unfairness arises to Mr Delfante because it is not necessary for Mr Delfante to waive his right to silence to respond. Determining the Health Service’s application to dismiss does not require consideration of Mr Delfante’s conduct relevant to the criminal proceedings, nor whether he has been convicted. The Board is satisfied that Mr Delfante was able to, and did, respond to each aspect of the Health Service’s application to dismiss his appeal without waiving his right to silence. Further, the Board considers that Mr Delfante has had ample opportunity to be heard in relation to the Health Service’s application to dismiss his appeal.

46      In essence, the Board accepts the Health Service’s submissions.

47      This decision turns on its own facts and does not set the precedent argued by Mr Delfante at [42]. But even if it did, the Board should not make orders it considers to be contrary to the Board’s obligations under s 26(1)(a) of the IR Act to avoid setting a precedent.

48      The Health Service does not argue that the Undertaking prevents Mr Delfante from being employed. Rather the Health Service argues that the effect of the Undertaking means that Mr Delfante cannot perform the role he was employed to perform, and therefore the Board should not make an order reinstating Mr Delfante to his original position as Pharmacist.

49      Further, that the Health Service may have maintained Mr Delfante’s employment during an extended suspension does not mean that the Board should reinstate Mr Delfante in circumstances where Mr Defante cannot provide the service that the Health Service employed him to provide.

50      Contrary to Mr Delfante’s submission, the reasoning in Re v Inspector of Custodial Services does not support hearing Mr Delfante’s appeal. We understand that Mr Delfante distinguishes his case from that of Ms Re, because he seeks reinstatement and she did not. The reasoning in Re v Inspector of Custodial Services is relevant in that it relates to the Board’s power to adjust a decision to dismiss. Re v Inspector of Custodial Services confirms that the remedy on reversing a decision to dismiss is the reinstatement of the employee. It is not in dispute that reinstatement means returning the employee to his former role. If Mr Delfante were able to perform his former role of Pharmacist in the event that he were reinstated, the Board would not uphold the Health Service’s application to dismiss his appeal. But it is common ground that Mr Delfante cannot perform his former role of Pharmacist.

51      Mr Delfante’s submissions about Gee v WA Country Health Services are also misconceived. The reasoning in Gee v WA Country Health Services is relevant so far as it relates to whether a Board should reinstate an employee to a position that the employee cannot perform. That the Board in Gee v WA Country Health Services did not consider reinstating the employee to a suspension is irrelevant. Further, the particular reason that the employee cannot perform the role, whether because of vaccination status or an undertaking, also does not make a difference to the principle considered.

52      We are not persuaded that the reasoning in Pharmacy Board of Australia v Ramsey and Vega Vega v Hoyle assists Mr Delfante.

53      In Pharmacy Board of Australia v Ramsey, a pharmacist self-reported to AHPRA that he had self-administered prescription medication without clinical oversight. He gave an undertaking not to practise for two weeks while he formulated a response to AHPRA’s proposed action of imposing conditions on the pharmacist’s registration. The conditions were subsequently imposed and required the pharmacist to engage in treatment for his mental health condition with a general practitioner, a psychologist and a psychiatrist and to undergo random urine and hair drug testing. SACAT later imposed a suspension of registration for one month and ordered ongoing mentoring for the pharmacist.

54      The Board considers that Pharmacy Board of Australia v Ramsey is not a relevant authority. It arises in an entirely different legislative framework, involves a dispute related to a practitioner’s clinical ability and does not deal with the consequences in relation to that practitioner’s employment.

55      In Vega Vega v Hoyle, a health service maintained a practitioner’s employment while a complaint about his clinical practice was investigated by AHPRA. Initially, AHPRA’s Medical Board suspended the practitioner’s registration, then instead decided to impose conditions on his registration, however that decision was appealed to QCAT and the Medical Board’s decisions were set aside. Meanwhile, the Chief Executive of the health service appointed an investigator under Part 9 of the Hospital and Health Boards Act 2011 (Qld) to conduct an investigation under s 189 of that Act. The investigation report recommended that the practitioner’s clinical privileges remain suspended until he had defined a process and strategies that would overcome the deficiencies in his surgical practice.

56      In the Board’s view, the circumstances of this matter are clearly distinguishable from those in Vega Vega v Hoyle. In Vega Vega v Hoyle the practitioner had not been charged with a serious offence and the concerns related to the practitioner’s clinical skill, not criminal charges or integrity. Further, AHPRA’s decision to suspend the practitioner’s registration had been overturned on appeal and the investigation was conducted in the context of a prescribed process under a different legislative framework.

57      Mr Delfante’s submissions about s 147 and 150 of the HS Act do not assist him. The employer’s power to suspend is not in dispute. That the Health Service could have chosen to do something other than dismiss Mr Delfante is not an answer to the Health Service’s application to dismiss.

58      Mr Delfante’s argument that Pharmacists do not perform all listed duties at any one time or on any one day is irrelevant. Further, the Board cannot accept Mr Delfante’s submission that the Health Service has not provided evidence to show which duties he cannot perform due to the Undertaking or whether those duties would result in partial performance of the duties of a Pharmacist. Mr Delfante’s employment contract, JDF and Undertaking are before the Board. Those documents are not in dispute.

59      Under the heading ‘Prime Function/Key Responsibilities’, Mr Delfante’s JDF states:

Contributes to optimum patient care by undertaking duties as a pharmacist within a framework of services provided by the Department of Pharmacy including dispensing, compounding, patient counselling, drug information services and supervision of support staff. Ensures that all activities are conducted according to the ethics of the profession and requirements of the law.

60      It is clear that the broad nature of the Undertaking prevents Mr Delfante from performing the duties of a Pharmacist. Mr Delfante gave the Undertaking. In doing so, he has agreed that he will not practise as a Pharmacist or use his skills and knowledge as a Pharmacist, whether remunerated or not. The Undertaking is not restricted to the provision of direct clinical care. Mr Delfante has agreed that he will not use the knowledge and skills of a Pharmacist in a direct non-clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development. He will not use the knowledge and skills of a Pharmacist in any other roles that impact on safe, effective delivery of services in the pharmacy industry.

61      The Board wholly rejects Mr Delfante’s argument that because the pharmacy department within the Health Service is large, there are sufficient duties that he would be able to perform ‘to enable [him] to perform the role of pharmacist fully.’

62      Mr Delfante made a number of submissions in relation to his substantive appeal, as set out at [36]. Those submissions are not relevant to the Health Service’s application to dismiss and it is unnecessary for the Board to comment further about them.

63      We are persuaded that the Board should uphold the Health Service’s application to dismiss for the following reasons.

64      The Board is satisfied that the evidence shows that the Undertaking prevents Mr Delfante from performing the role of Pharmacist. There is no evidence or argument before the Board to suggest that the Undertaking will be removed any time soon or at all.

65      It is common ground that the Board has the power to adjust an employer’s decision to dismiss. In this matter, Mr Delfante asks the Board to quash the Health Service’s decision to dismiss him and he seeks reinstatement. Therefore the question of whether the Board has the power to adjust the decision to dismiss in some other way, for example by adjusting the period of notice of termination, does not arise in this case.

66      In the Board’s view, an order quashing the Health Service’s decision to dismiss Mr Delfante would be impracticable because it would result in Mr Delfante being reinstated to a role that he cannot perform as a result of the Undertaking that he gave.

67      Mr Delfante accepts that the Board cannot order the Health Service to employ him in a different role or to do other duties. Mr Delfante’s arguments about how the Board should adjust the decision to dismiss him are all premised on the Health Service voluntarily offering Mr Delfante the opportunity to work in a different role or to do different duties.

68      Mr Delfante was employed by the Health Service as a Pharmacist. The Board considers that it should not make an order that quashes the decision to dismiss and reinstates Mr Delfante to a position he cannot perform, in the mere hope that the Health Service might voluntarily offer to employ Mr Delfante in a different role or doing different duties.

69      The Board considers that to hear this matter in the circumstances would be contrary to the Board’s obligations under s 26(1)(a) of the IR Act. In our view, further proceedings are not necessary or desirable in the public interest. The Health Service’s application for an order under s 27(1)(a) of the IR Act is upheld.

70      The Board will order that this appeal be dismissed.