APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 12 FEBRUARY 2020 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2020 WAIRC 00392 CORAM :PUBLIC SERVICE APPEAL BOARD Commissioner T Emmanuel - CHAIR MR G LEE - BOARD MEMBER MR P HESLEWOOD - BOARD MEMBER HEARD : FRIDAY 19 JUne 2020 (On the papers) DELIVERED : FRIday, 3 JUly 2020 FILE NO. : PSAB 3 OF 2020 BETWEEN : Carol Elena Hutchinson Appellant AND Department of Health, WA Country Health Service, South West Region Respondent CatchWords : PSAB – Discovery – Documents sought are not relevant to preliminary issues Legislation : Section 27(1)(o) Industrial Relations Act 1979 (WA) Result : Application for discovery dismissed Representation: Appellant : On her own behalf Respondent : Ms R Sinton (as agent) Cases referred to in reasons: Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801 Gallotti v Argyle Diamond Mines Pty Ltd [2003] WASCA 166; (2003) 83 WAIG 3053 Gallotti v Argyle Diamond Mines Pty Ltd trading as Argyle Diamonds [2002] WAIRC 06828; (2002) 82 WAIG 3011 Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611 Nicholas v Department of Education and Training [2008] WAIRC 01645; (2009) 89 WAIG 817 === REASONS FOR DECISION === ¶1 These are the unanimous reasons of the Board. ¶2 Ms Hutchinson was a Regional Patient Assisted Travel Scheme Officer (PATS Regional Officer). She is appealing the Department of Health, WA Country Health Service, South West Region’s (Health Department) decision to dismiss her on 5 February 2020. ¶3 The Health Department says it did not dismiss Ms Hutchinson and, even if it did, her appeal should not be accepted out of time. ¶4 Before the Board can hear Ms Hutchinson’s substantive appeal, it must deal with the preliminary issues of whether Ms Hutchinson was dismissed, and if she was, whether her appeal should be accepted out of time. ¶5 Ms Hutchinson has filed an application for discovery. She asks that the Board order that the Health Department provide to her: 1. a complete list of new fixed term or extended contracts for all PATS Regional Officers from 4 November 2019 to 1 March 2020, and the length of each new contract or contract extension; and 2. ‘the termination/cessation of short-term fixed term contract T1 termination/cessation form or M6 Contract Variation form (whichever applies) completed by Team Leader, Renee Whyatt for PATS Officer Lee Merrick when her 3-month Fixed Term contract with the PATS Office ended in December, 2019’. ¶6 The Health Department says the Board should dismiss the discovery application because the documents sought are not relevant to the preliminary issues to be decided. Relevant principles ¶7 Discovery is confined to what is in issue on the pleadings. The Board can only make an order for discovery under s 27(1)(o) of the Industrial Relations Act 1979 (WA) if it is just to do so and necessary for the fair disposal of the case. ‘Just’ means ‘right and fair, having reasonable and adequate grounds to support it, well-founded and conformable to a standard of what is proper and right’: Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch v Burswood Resort (Management) Ltd (1995) 75 WAIG 1801, 1805. ¶8 The parties consented to the discovery application being heard and determined on the papers. Are the documents necessary to resolve the preliminary issues in dispute? ¶9 At this stage, there are two preliminary issues in dispute before the Board. ¶10 To resolve the two preliminary issues, the Board will need to consider the following: was Ms Hutchinson sent away or removed from her office, employment or position, in accordance with Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611; Gallotti v Argyle Diamond Mines Pty Ltd trading as Argyle Diamonds [2002] WAIRC 06828; (2002) 82 WAIG 3011, at [55] – [62]. If she was, then: should Ms Hutchinson’s appeal be accepted out of time, taking into account the considerations set out in Nicholas v Department of Education and Training [2008] WAIRC 01645; (2009) 89 WAIG 817: the length of the delay; the reason for the delay; whether Ms Hutchinson has an arguable case; and whether there would be any prejudice to the Health Department if the appeal is accepted out of time. ¶11 Ms Hutchinson must therefore persuade the Board that the documents she seeks are necessary to resolve the matters set out in [10]. Ms Hutchinson’s submissions ¶12 Ms Hutchinson says that the documents she seeks will show that the fixed term contracts of other employees were extended before and after the date that she says she was dismissed. These documents will show that two 3-month fixed term contracts were given to her colleagues specifically to assist with clearing a document backlog. Those employment contracts were renewed and hers was not. Ms Hutchinson says this shows that she was replaced by another employee as part of the bullying she had been experiencing at the Health Service. ¶13 Ms Hutchinson says the documents set out in point two of [5] above will show that Ms Whyatt had experience completing the T1 Termination/Cessation form and ‘would not have put “dismissed” on the appellant’s T1 form unless that was her expressed intent.’ Health Department’s submissions ¶14 The Health Department says the documents Ms Hutchinson seeks are not relevant to the preliminary issues nor necessary for her to have a fair hearing on the preliminary issues. Ms Hutchinson’s submissions in reply ¶15 In reply Ms Hutchinson says evidence is relevant and admissible if it has probative value. Facts in issue include facts relevant to ultimate issues, which in this case includes: just two days after a formal complaint was made by Ms Hutchinson, she was told her contract would not be extended, constituting ‘a case of retaliation’; there is evidence that other employees’ employment contracts were extended or issued; Ms Hutchinson was not dismissed for performance reasons or operational requirements; and the Health Department’s administrative officer had sufficient experience filling out T1 forms because she had filled out several just before Ms Hutchinson’s termination. The gist of Ms Hutchinson’s submission in reply is that the documents she seeks are relevant to those issues. ¶16 Finally, Ms Hutchinson says her request for documents cannot be described as a fishing expedition because it is defined by dates and includes reference to documents that relate to particular individuals. It does not place a burden on the Health Department because it likely involves few documents and those documents are readily accessible. Ms Hutchinson will keep the documents confidential, only using them for the hearing of the preliminary issues and her substantive appeal. Conclusion ¶17 Having heard from the parties, the Board is not persuaded that the documents Ms Hutchinson seeks to discover are necessary to resolve the preliminary issues. ¶18 The first question for the Board will be whether Ms Hutchinson was sent away or removed from employment. To answer that question, it will not be necessary for the Board to consider the Health Department’s use of fixed term contracts for other employees, whether other employees had fixed term contracts extended or how T1 or M6 documents were filled out in relation to other employees. The Board will need to examine the relevant evidence as it relates to Ms Hutchinson and the circumstances of her employment, not that of other employees. ¶19 Ms Hutchinson argues that ‘it is an implied and expressed understanding between the parties, at the time of hiring that should operational requirements warrant an extension of contract, the contract terms will be extended (until such time that the employee be converted to permanent as the case may be).’ [original emphasis] In an appeal of this type, the Board is not considering an employer’s broader employment practices. Rather the Board must consider the conduct of the employer and the particular employee, in order to decide whether as a matter of fact and law the employee was dismissed. ¶20 The Board is bound by Gallotti v Argyle Diamond Mines Pty Ltd [2003] WASCA 166; (2003) 83 WAIG 3053 and EM Heenan J’s reasoning at [5]: ‘There is ample authority for the proposition that the cessation of the relationship of employer and employee by the effluxion of an agreed term of employment is not a “dismissal”’ and at [7]: ‘There will not be a dismissal where the term of a contract of employment expires’. ¶21 The Board will need to decide whether Ms Hutchinson was sent away or removed from employment, or whether her employment simply ended by the effluxion of time. It would not be sufficient for Ms Hutchinson to establish that there were no performance reasons or operational requirements that justified dismissing Ms Hutchinson. She will need to prove that her employment ended because of some action on the part of the Health Department, that it amounted to sending her away or removing her from her employment. ¶22 The documents sought are also not relevant to the considerations set out at [10] that the Board must take into account in deciding whether to accept the appeal out of time. ¶23 The documents Ms Hutchinson seeks are not relevant to resolving the preliminary issues. They are not necessary for the fair disposal of the case and it would not be just for the Board to order that the Health Department provide them. For these reasons, Ms Hutchinson’s discovery application is dismissed. Note: [2] and [15] amended by correcting order [2020] WAIRC 00432.