Sally-Anne John, a NSW paramedic who uploaded video of her attendance, and intemperate rant against police, at a COVID-19 protest lockdown was originally suspended by the Paramedicine Council (see NSW Paramedic suspended after participation in COVID-19 protests (April 14, 2023)) and then her employment was terminated by NSW Ambulance. She made an unsuccessful application for a remedy under the unfair dismissal laws – see Protesting paramedic’s dismissal confirmed (July 30, 2023). She has returned to the Industrial Relations Commission to appeal against the decision of the Commission to refuse to order NSW Ambulance to reinstate her employment – John v Health Secretary in respect of Ambulance Service of NSW (No 2) [2023] NSWIRComm 1115 (30 November 2023) (Chief Commissioner Constant, Commissioner Muir and Commissioner McDonald).  Once again she has been unsuccessful.

Ms John sought to tender further evidence. An appeal is not a chance to run the case again, it is a place to argue that a mistake was made by the ‘lower’ tribunal. It is unusual for appeal tribunal to receive new evidence and they must give permission to do so.  The Full Bench can, however, receive fresh evidence (at [22]) if ‘… there are compelling and exceptional reasons why evidence which was available at the time of the hearing was not adduced…’.

The evidence she wanted to bring in was her medical file from her GP pratice.  At the first hearing she had tendered two letters from treating doctors, one of which was admitted into evidence and one was not. Now she wanted to tender the whole file. She argued (at [11]) that

The medical evidence establishes that Effexor withdrawal can lead to a range of severe and prolonged symptoms, including but not limited to mood swings, aggression, and impaired decision-making. These symptoms often persist for an extended period beyond the cessation of the medication. The evidence demonstrates a strong correlation between the onset of these symptoms and my alleged misconduct.

She also wanted to rely on some published papers and material from a website, but she failed to provide copies of that material to the respondent ambulance service.

The Commission refused to accept the further evidence. First it had all been available to her at the time of her first application ([44]).   At [45]-[46] the Commission said:

The appellant’s explanation as to why she did not obtain and tender the evidence during the initial hearing was that she thought the doctor’s letters she tendered during the proceedings before Commissioner Sloan would have been sufficient to establish her case. Having not succeeded on that basis, she had made efforts to obtain more and better evidence in preparation for this appeal.

It is unfortunate that, as a self-represented litigant, the appellant may have misunderstood the evidence needed to prevail in her application, but this alone is not a basis to permit further evidence on appeal. To allow the receipt of further evidence on this basis would effectively permit the appellant to re-run her case on appeal. As s 191(3) of the IR Act makes clear, the Full Bench cannot substitute its own decision on the matter, but must only intervene if it finds error in the decision below. An appeal to the Full Bench is not a hearing de novo. An appeal does not mean that the primary decision is laid to one side in order to provide the appellate with an opportunity to lead ‘better’ evidence than what was lead previously, in the hope that a different outcome will occur.

As for her evidence as to the effect of her drugs, Ms John wanted to draw conclusions from the scientific papers without putting the papers themselves before the court.  At [47] the Commission said:

The appellant did not establish that she has specialised knowledge within the meaning of s 79 of the Evidence Act such as to permit her statements as to the effects of depression and of withdrawal from Effexor to be admitted as evidence to prove those effects. Reference to scientific papers or articles does not cure this difficulty, particularly where copies of the papers and articles were not provided and the appellant was in any event not qualified to interpret and explain them.

In short (at [50]):

It is apparent to the Full Bench … that the appellant seeks to re-run the same case as she ran at first instance, but with more detailed evidence. That is not a basis to receive further evidence.

Having dismissed the application to lead further evidence the Full Bench then had to decide whether Ms John should be given leave (ie permission) to appeal. (In some jurisdictions an appeal is a ‘right’, in others the intending appellant needs ‘leave’).   It is very hard to get ‘leave’ if the application is simply that the judge below came to a view of the facts that the appellant disagrees with.  Ms John’s appeal was based on the claim that the failure by Commissioner Sloan at first instance was a denial of procedural fairness ([55]) and that if he had received the letter he would have come to a different conclusion.

The full bench noted that Commissioner Sloan had pointed to problems in the letter and said if she wanted to rely on it, the doctor would have to give evidence and be subject to cross examination ([60]) which did not happen.  Ms John made no argument that the decision of Commissioner Sloan was a legal error.  At [64] the Full Bench said:

As with the appellant’s application to introduce further evidence, the appeal is an attempt to re-run the same case as she ran at first instance, but in this case before a differently constituted Commission. That is clearly not the function of an appeal …

Conclusion

Ms John put her case for an unfair dismissal remedy but lost. Having got the Commission’s reasons and having seen how the Commissioner dealt with the evidence she lodged an appeal to have another go. Litigation is however, a one-shot process. You put your best case forward. You do not get to run your case at trial and if you lose rely on that as a practice run and then have another go in the appeal courts. The decision to dismiss Ms John from NSW Ambulance stands.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.