It was interesting to use my holiday break to explore the internet for more of the misadventures of SSWAHS and its Executive members. Sure enough another SSWAHS fiasco was buried away in the cyberworld. This time they raised the ire of the Government and Related Employees Appeal Tribunal (GREAT) in November 2003. Ah! and guess who came in for some of their ire? None other than Ms Jan Whalan, who was then Deputy to Mike Wallace in the old Central Sydney Area Health Service.
In the short version of the matter (Appeal 252 of 2003) a professional employee of the CSAHS took the Health Service to the Tribunal over the decision to reduce her pay and conditions. At the hearing the Area Health Service was represented by Mr Garry De Courcey, Solicitor Advocate for the Crown Solicitor while the employee represented herself. A very David versus Goliath scenario!
The outcome was that the Tribunal dismissed the Area Health's challenge to the appeal by their employee. The Tribunal then directed the Registrar to list the matter for conciliation and to re-list the the matter for a hearing if the Area Health Service failed to conciliate.
Most interesting is the procedure adopted by the GREAT Tribunal to make the determination against the Area Health Service.
" 70. At paragraph 24 of these reasons therein is set out a report of a meeting involving Ms Torok and a number of other people. The report states that the appellant was told by Ms Mills that she could not discuss the matter elsewhere and she must pursue appropriate internal channels. Ms Mills is said to have nominated Ms Neville, Area Director, Human Resources as the appropriate person. It is significant that Ms Mills was one of the person’s involved in the investigation, according to the evidence provided in Ms Neville’s letter of 24 July 2003 to the appellant. In that letter Ms Neville does not suggest that there is no further appeal or that any appeal time has elapsed. Ms Neville did not conduct an appeal even though the appellant requested her to do so. After further correspondence Ms Neville referred the appellant to Ms Whalan on 6 October 2003 in a letter. The issue Ms Neville refers to is “your request to appeal my review of the investigation conducted by Mr Feliks Lewandowski.”
71. It is the evidence of Ms Neville that Mr Lewandowski was one of the three people who comprised the investigators being himself, Mr Bathur and Ms Mills. There is no suggestion that Ms Torok has no right of appeal. In her all her letters Ms Torok asserts her right of appeal.
72. I find that the respondent continually advised the appellant that she had appeal rights and has continued up to this time by referral to Ms Whalan. The evidence clearly establishes the respondent’s officer induced the appellant to believe an internal appeal would take place. At all times the appellant has challenged the
appropriateness and procedural fairness of the procedures adopted by the respondent’s various officers. I find that the respondent has induced in the appellant a belief that she could exhaust her internal review mechanisms in appeals prior to having to take an external appeal to GREAT, if dissatisfied. To suggest otherwise, as contended by the respondent is not consistent with the evidence. At any time it was open to the respondent’s officers to say fairly and squarely to the appellant, either orally or in writing, there are no further avenues of appeal; we will not entertain an appeal from you; our decision is final; or you must go to the Government and Related Employees Appeal Tribunal; or something else to that effect. It is clearly as suggested in the decision of Walton Stores21 at p6, at [16] that the employer has been aware of the mistake that the appellant laboured under but has done nothing to correct that, even though it was the duty of the respondent to do so. The respondent’s policy required timely and accurate advice about appeals .
73. The respondent would contend, if it had relied on Harvey 6, that the decision of Harvey 6 binds the Tribunal. That decision can be distinguished for the reasons I have given. Also that decision must be considered in the light of the ultimate authority of the High Court of Australia prevailing over the NSW, Supreme Court, Court of Appeal. This is not a failure to advise or a refusal to advise about appeal rights in circumstances where the respondent has no duty to advise but the respondent has gone further through the actions of Mr Lewandowski, Ms Mills and Ms Neville to misrepresent what the appeal procedures are and induce a belief in the appellant about those appeal procedures by failing to give a full and accurate
disclosure of the situation. It indeed would be unconscionable to allow the respondent (CSAHS) to profit from its own inaccuracy, obfuscation and confusion."
Obviously, the GREAT Tribunal was not amused by the attempt of CSAHS to hide its "unconscionable ..... inaccuracy, obfuscation and confusion" in dealing (or not dealing) with the complainant/plaintiff: their employee, Ms Torok.
Below is a definition of that which the CSAHSs Ms Jan Whalan appears to have mastered in her role as Deputy CEO of CSAHS and SSWAHS: Estoppel
"Equitable Estoppel
Unconscionable conduct is the touchstone for the operation of equitable estoppel but requires more than a mere failure to fulfill a promise. It denotes a creation or encouragement by the defendant in the other party of an assumption that a contract will come into existence or a promise will be performed and for the other party to have relied upon that assumption to his or her detriment to the knowledge of the first party (Waltons Stores (Interstate) Ltd v Maher (1988))."
One wonders whether the people from the Southern Highlands who are still waiting for responses to their complaints delivered some 18 months ago are able to mount a legal challenge against SSWAHS on the basis of the legal construct of Equitable Estoppel. Hmmm! a case for the local lawyers?
