Barrett v State of Queensland (Queensland Health)
[2022] QIRC 236
•21 June 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Barrett v State of Queensland (Queensland Health) [2022] QIRC 236 |
PARTIES: | Barrett, Carol v State of Queensland (Queensland Health) |
CASE NO: | PSA/2022/93 |
PROCEEDING: | Public Service Appeal - appeal against decision under a directive |
| DELIVERED ON: | 21 June 2022 |
MEMBER: HEARD AT: | Pidgeon IC On the papers |
ORDER: | The decision appealed against is confirmed |
CATCHWORDS: LEGISLATION | PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - PUBLIC SERVICE APPEAL - where the applicant is directed to attend an independent medical examination pursuant s 175 of the Public Service Act 2008 - weather the chief executive should have been reasonably satisfied the employee is not performing their duties satisfactorily - weather the chief executive should have formed a reasonable suspicion that employees unsatisfactory performance is caused by mental or physical illness or disability Industrial Relations Act 2016, ss 562B and 562C Directive 10/20: Independent Medical Examinations |
Decision
Ms Barrett is employed by the State of Queensland (Queensland Health) as a Clinical Nurse in the Infection Management Services Unit of The Prince Charles Hospital (TPCH) which is part of the Metro North Hospital and Health Service (MNHHS).
On 5 January 2022, Ms Barrett received a letter from Ms Karen Leighton, Director Corporate Services. The letter contained a direction to attend an independent medical assessment pursuant to ss 174 and 175 of the Public Service Act 2008 (PS Act).
Direction to attend independent medical assessment
Under section 175 of the Public Service Act 2008, I can direct an employee to attend a medical assessment if under section 174:(a) The employee is absent from duty or I am reasonably satisfied the employee is not performing his or her duties satisfactorily.
(b) I suspect the employee's absence or unsatisfactory performance is caused by mental or physical illness or disability.
In accordance with sections 174 and 175 of the Public Service Act 2008 I am directing you to attend a medical assessment. Please be aware this is a lawful direction and if you do not attend this appointment without reasonable excuse you may be liable for disciplinary action under the Public Service Act 2008. In addition, you may also be unable to access sick leave until you submit to the independent medical examination. It is expected that in you submitting to an independent medical examination (IME) you will actively participate in the medical examination, cooperate with the IME doctor and provide honest responses to questions about your relevant medical history.
In directing you to attend this medical examination I am cognisant of the duties imposed upon both the MNH [MNHHS] and yourself under the Work Health and Safety Act 2011. MNH has a primary duty of care to ensure your health and safety whilst performing your duties as one of its workers. In observing that duty, that Act also requires workers to comply with reasonable instructions to achieve that end. I am directing you to attend the IME as a reasonable instruction to ensure your health and safety can be maintained whilst in the workplace….
The grounds for the direction were set out in the letter:
You returned to work on a graduated return to work plan which commenced 12 April 2021. The graduated return to work plan included several weeks of re-orientation and mandatory training support and reduced hours of work. Your return to work was based on a medical clearance that you provided dated 25 February 2021.
Since your 12 April 2021 return there have been four new incidents of seizures in the workplace documented on 25 May 2021, 11 August 2021, 4 November 2021 and 13 December 2021.
As noted in the letter dated 17 December 2021 issued by Ms Tami Photinos, Executive Director, TPCH, MNH holds serious concern in relation the impact your medical condition has on your ability to safely perform the requirements of your substantive position. In light of your history of seizures in the workplace and the four new documented seizures in the workplace since your return earlier this year, MNH is now seeking the opinion of another independent medical practitioner to assess your current health status, your ability to undertake your substantive position efficiently and safely and any impact concerning your ongoing employment.
If you disagree with my reasons for directing you to attend this independent assessment, I encourage you to put those concerns to me in writing in the first instance.
…The letter informed Ms Barrett of her appeal rights and on 24 January 2022, Ms Barrett filed an appeal notice. Schedule 1 to the appeal notice sets out the reasons for appeal stating that the decision is not valid having regard to s 174 of the PS Act, specifically:
a. the Decision Maker is not the Chief Executive and was not authorised to issue the Direction; and/or alternatively,
b. there is no proper basis for the Chief Executive to be reasonably satisfied that the Applicant is absent for duty, or that her performance of the duties of the position is unsatisfactory.
Legal Framework
The relevant parts of the Public Service Act 2008 (PS Act) are:
174 Application of pt 7
This part applies to a public service employee if —
(a) the employee is absent from duty or the employees' chief executive is reasonably satisfied the employee is not performing his or her duties satisfactorily; and
(b) the chief executive reasonably suspects that the employee's absence or unsatisfactory performance is caused by mental or physical illness or disability. [my emphasis]
175 Chief executive may require medical examination
(a) appoint a doctor to examine the employee and give the achieve executive a written report on the examination; and
(b) require the employee to submit to the medical examination.
…
Directive 10/20: Independent medical examinations provides a practical application of ss 174 and 175 of the PS Act:
5.Decision to require an employee to submit to a medical examination
5.1 In some cases, early communication and management efforts may not be successful in addressing performance issues or a current absence.
5.2 Where the conditions in section 174 are satisfied, section 175 of the PS Act provides that a chief executive may appoint a doctor to examine the employee and give the chief executive a written report on the examination. It also provides that a chief executive may require the employee to submit to the medical examination. This is a lawful direction that does not require the employee’s consent. Failure to comply may be grounds for discipline action.
5.3 The conditions in sections 174(a) and (b) of the PS Act must both be met before a chief executive may require the employee to submit to a medical examination. Firstly, section 174(a) requires that an employee is either absent from duty (which is a question of fact) OR the chief executive must have sufficient grounds, supported by evidence, to be reasonably satisfied the employee is not performing their duties satisfactorily. Secondly, in section 174(b), the chief executive must have sufficient grounds, which have been documented, to support their reasonable suspicion that the employee’s current absence or unsatisfactory performance is caused by a mental or physical illness or disability.
…
5.4 The chief executive is to provide the employee with at least 28 days notice of a medical examination appointment unless the employee agrees to a shorter notice period. The direction to require an employee to submit to a medical examination must set out the basis and reasons for the direction under section 174, including the information provided to the IME doctor. The direction must also explain the employee’s right to seek an internal review or appeal the decision and the timeframes.
Was the decision maker authorised to make the direction to attend the IME?
The PS Act states that it is the Chief Executive who may direct the employee to attend the IME.
In Ms Barrett's Appeal notice, she contends that as Ms Leighton is not the Chief Executive, the direction is not valid. I note that in submissions filed on 4 March 2022, Ms Barrett does not press this appeal point.[1]
[1] Appellant submissions filed 4 March 2022, [58].
As set out in the Respondent's submissions, the ability of a Chief Executive to appoint a doctor to conduct an IME, and direct an employee to submit to such examination, under Chapter 5, Part 7 of the PS Act has been delegated under the authority of s 34 of the Hospital and Health Boards Act 2011 which provides a Health Service Chief Executive may delegate functions under that Act, or another Act (such as the PS Act), to an employee of the HHS.[2]
[2] Respondent submissions filed 10 February 2022, [61].
The Respondent goes on to state:
A delegation by the Health Service Chief Executive, under the abovementioned authority, has been affected via the Metro North Health Human Resource (HR) Sub-delegations Manual, specifically clause 36.1.[3] For the avoidance of doubt, to the extent that the person is also seen to be an employee of the Department of Health, the Hospital and Health Services HR delegations Manual: HRM Functions of the Director-General also delegates (with an accompanying sub-delegation authority) the abovementioned functions under clause 34.1.
The sub-delegated authority from clause 36…reside with Tami Photinos, Executive Director TCPH (Band 5) however that Band 5 delegation was temporarily given to Karen Leighton (Band 6) for the period of leave taken by Tami Photinos.[4]
[3] Ibid, Attachment MN 22.
[4] Ibid, Attachment MN 23.
For completeness, I note that I am satisfied that Ms Leighton had delegated authority to make the Direction.
Background
Both parties have made submissions regarding the background to the matter.
Ms Barrett is and has been employed by the Respondent since 29 April 1991 and is 58 years old.
Ms Barrett has had epilepsy since she was 18 years old. The epilepsy is focal, left temporal epilepsy.[5]
[5] Ibid, MN2, report of 20 July 2016 of Dr McLaughlin.
Ms Barrett has been employed at TPCH in the Infection Management Service since 26 July 2010 after an adjustment was made to her role of Clinical Nurse as a result of her epilepsy.
Ms Barrett addresses her seizure activity and work since 26 July 2010 in her submissions.[6] I do not intend to reproduce those submissions here, however, I note that there has been a history of actions taken by the Respondent since early 2016 when Ms Barrett had an increased seizure activity which she says was due to a change in her medication and took a period of sick leave from 8 December 2016.
[6] Appellant submissions filed 4 March 2022, [4]-[34].
The Respondent sets out the history of the 2016 seizures in its submissions.[7] The Respondent says that during the increased seizure activity in 2016, the Respondent sought information from Ms Barrett's treating Neurologist, Dr McLaughlin. On 1 July 2016, Dr McLaughlin provided a written report to indicate that he had seen Ms Barrett on 14 March 2016 and 24 June 2016 and that Ms Barrett had reported that her seizure activity had followed its previous pattern and did not report any seizures that interfered with her work. Dr McLaughlin stated that given the frequency of the seizures, Ms Barrett was unfit for work at that time.
[7] Respondent's submissions filed 10 February 2022, [8].
The Respondent says that on 9 August 2016, Dr McLaughlin saw Ms Barrett again and provided clearance for her to return to work effective 12 August 2016. On 7 December 2016, Dr McLaughlin provided further advice including that Ms Barrett requires supervision at all times while in the workplace and if this cannot be accommodated, Ms Barrett would be unfit for work until an IME could be completed.
Ms Barrett was directed to attend, and attended, an IME on 9 January 2017. Ms Barrett returned to work on 8 February 2017 but was on restricted duties. Ms Barrett submits that her own doctors disagreed with the opinions of Dr du Plessis who conducted the IME.[8] Dr du Plessis provided the IME report on 11 January 2017.
[8] Appellant submissions filed 4 March 2022, [16].
On 30 January 2017, Ms Barrett provided the Respondent with a medical certificate from Dr Stephen Read, Neurologist, declaring Ms Barrett 'fit to resume work in her position as Infection Control RN'.
On 8 February 2017, Ms Barrett returned to work in a restricted capacity and carried out predominantly administrative duties as per the advice provided by Dr du Plessis in the 11 January 2017 report. On 13 February 2017, the Respondent sought clarification from Dr Read providing him with a copy of the report from Dr du Plessis. On 20 February 2017, Dr du Plessis provided a supplementary IME report.
Dr du Plessis's supplementary report stated that as per the recommendations of Dr McLaughlin, Ms Barrett required supervision at all times in the workplace; was not able to fulfil all of the clinical/patient care duties as per her substantive position; that Ms Barrett could only be employed in a purely administrative position; and that Ms Barrett's condition had the ability to impact on the safety of fellow employees. On 4 April 2017, Dr Read responded to the Respondent's request for further information and advised that in the interim, restrictions on Ms Barrett's duties at work would seem reasonable and appropriate.
In July 2017, Dr Sasha Dionisio, Neurology Specialist, provided a written report stating that Ms Barrett is able to undertake the majority of her key responsibilities with the exception of vaccination provision.
On 3 August 2017, the Respondent sought additional information from Dr du Plessis. Dr du Plessis stated that he would not allow Ms Barrett to work in a clinical position until there is adequate confirmation her epilepsy is fully under control and that she has absolutely no seizures of any type for at least 6-12 months before returning to clinical work.
Between 4 September 2017 and 4 March 2018, Ms Barrett was transferred to an administration role based on Dr du Plessis's third supplementary report.
On 28 February 2018, Ms Barrett had a seizure at work and on 8 March 2018, Ms Barrett was suspended on full pay.
On 13 March 2018, Dr du Plessis provided a fourth supplementary report stating that Ms Barrett was unable to work in a clinical role for 12 months based on the seizure of 28 February 2018 and stated that Ms Barrett will, 'most likely never be permitted to return to her previous clinical role'. On 28 June 2018, the Respondent advised Ms Barrett that it was considering ill-health retiring her pursuant to s 178(1)(b) of the PS Act.
On 4 and 5 July 2018, Ms Barrett's own doctors provided clearance for her to return to work but with the removal of vaccination tasks.
On 20 August 2018, Ms Barrett's solicitors provided a show cause response setting out that there was no basis for ill-health retirement, in part because the reports of Dr du Plessis were not consistent with Ms Barrett's own treating doctors, one of whom was significantly had significantly more expertise than Dr du Plessis in the area of epilepsy.
On 23 November 2018, the Respondent issued a third IME direction to attend an IME with Dr Arman Sabet, Neurologist, however Ms Barrett was unable to attend at the time of the scheduled appointment and the appointment was cancelled. On 16 January 2019, the Respondent rescheduled the third IME.
Ms Barrett commenced dispute proceedings in the Commission in relation to the IME direction on the grounds that the direction to attend the IME was unlawful because Ms Barrett's absence from work was as a result of her suspension. A dispute resolution conference was held at the Commission on 13 June 2019. The outcome of the conference was that Ms Barrett would obtain a report from a medical practitioner of her choosing, provided that, the practitioner was a neurologist with experience in epilepsy; the practitioner had not previously provided treatment to Ms Barrett and the parties would liaise as to the contents of the letter to be sent to the medical practitioner.
The Respondent submits that agreement was never reached between the parties regarding the content of the letter to be provided to Ms Barrett's choice of a doctor to obtain an independent medical evaluation from a neurologist.
On 20 November 2019, the Respondent confirmed its willingness to consider any current medical report that Ms Barrett was able to provide. On 2 February 2020, Ms Barrett attended an examination with Professor Harry McConnell, a neurologist with a specialisation in epilepsy. There was no agreement on the content of a letter to be provided to Professor McConnell.[9] On 21 April 2020, Ms Barrett provided the report to the Respondent. The report confirmed that Ms Barret is able to perform her position and Ms Barrett asked to be permitted to return to work.
[9] And so I assume that the Health Service was unable to put questions to Dr McConnell.
The Respondent says that it has undertaken an online check of Professor McConnell's registration details and that he is registered to practice as a psychiatrist and not as a neurologist and therefore the report provided does no comply with the outcome of the conciliation conference. Professor McConnell is not recognised or registered to practice as a neurologist in Australia.[10]
[10] Respondent submissions filed 11 March 2022, [12]-[14]; Attachment MN23.
In her submissions of 25 March 2022, Ms Barrett says that she does not seek to rely on the opinion of Professor McConnell and relies solely on the opinion of Dr Donald Craig, Neurologist, Mater Hospital.
The Respondent did not lift Ms Barrett's suspension and Ms Barrett commenced further dispute proceedings.
The third IME direction was withdrawn by the Respondent on 24 September 2020. On 12 November 2020, the Respondent advised Ms Barrett that it would end her suspension subject to medical clearance from a neurologist.
Events since Ms Barrett's return to work on 12 April 2021
Ms Barrett sets out what she refers to as key events in the relevant period in her submissions filed 4 March 2022.[11]
[11] Appellant submissions filed 4 March, [35]-[42].
The report obtained by Ms Barrett from Dr Craig which enabled her to return to work stated:
Mrs Barrett reports events that are short duration seizures. They do not impair her awareness, do not have a long tonic-clonic or post-ictal phase…the events when they do occur have no impediment to her general health or cognitive abilities, outside the direct period of the event. …over years her epilepsy has been stable in its nature…I am content to clear Mrs Barrett to her role. While there is never any guarantee to be free of seizures if these events did occur in the workplace I do not envisage that there would be any harm to Carol or any individual that would be looked after by Carol.
On 25 May 2021, Ms Barrett had a seizure while she was preparing a vaccination for an employee. Ms Barrett says that the seizure was precipitated by significant personal stressors.[12]
[12] Appellant Affidavit filed 4 March 2022, [37]-[41].
The Respondent's submissions provide some observations regarding the seizure Ms Barrett experienced on 25 May 2021.[13] The Respondent says that an important component of giving a vaccination is to make a clinical assessment that the individual meets the criteria to be able to be vaccinated. The Respondent says that a seizure when actually performing the vaccine is a significant risk.
…had the seizure occurred during the actual insertion of the vaccine then outcomes could include a shoulder injury if the vaccine was injected in the wrong place on the arm, a needle stick injury to Ms Barrett or the patient. There is also the risk that a seizure during preparation or while performing the vaccination could undermine the confidence in the patient regarding the vaccination service.
[13] Respondent submissions filed 10 February 2022, [46], [47].
The Respondent notified Australian Health Practitioner Regulation Agency (AHPRA) of Ms Barrett's seizure. AHPRA investigated the notification and the Nursing and Midwifery Board of Australia (the Board) decided to take no further action in relation to the notification.
Ms Barrett says that the Board was aware of the first of the four seizures in 2021, which she says was arguably the most concerning in the circumstances of her preparing to give a vaccination and took no further action. Ms Barrett says that this is in stark contrast to the Respondent's decision making.
Ms Barrett says that she subsequently applied to have the 2016 conditions removed from her nursing registration. On 8 November 2021, AHPRA wrote to Ms Barrett notifying her that the Board had decided to remove the conditions stating:
…your seizures are reported to continue as recognised but these are infrequent, and this is the nature of your epilepsy. It is considered that you have demonstrated insight into your condition and you are compliant with your treating practitioners directions in relation to treatment and fitness to practice. Continued monitoring and oversight by the Board of your health is no longer required to protect the public.[14]
[14] Appellant Affidavit filed 4 March 2022, [54]; CB10 - Letter from AHPRA - Removal of Conditions.
Ms Barrett had three 'short duration seizures' on 11 August 2021, 4 November 2021 and 13 December 2021. Ms Barrett says that neither she nor anyone else suffered adverse effects as a result of the seizures and that she was able to continue working after a brief recovery period. The Respondent also makes submissions regarding the events surrounding the seizures on these dates.[15]
[15] Respondent submissions 10 February 2022 [50]-[55].
On 17 December 2021, the Respondent directed that Ms Barrett cease performing clinical duties.
On 5 January 2022, Ms Barrett received the IME Direction subject of this appeal.
On 31 January 2022, Ms Barrett attended upon Dr Craig for a review and to obtain a further report. Ms Barrett's solicitors took detailed instructions from Ms Barrett and provided Dr Craig with details of the seizures and Ms Barrett's position description. On 3 March 2022, Dr Craig's further report provided:
a) he has 're-oriented himself with the key responsibility and duties of her nursing role';
b) she almost certainly suffers short duration seizures;
c) the ictal[16] events reported are brief;
d) it is common to be irritable briefly after the ictal event;
e) she does not report tonic-clonic seizures;
f) it is likely her seizures will remain the same and her epilepsy is table;
g) if there is a seizure, this should not present a significant risk of harm to others who could be close;
h) the seizures are typically short being under one minute duration and five minutes recovery; and
i) his impression is similar to his last impression: the Appellant is clear to return to work in her position.
[16] The part of the seizure from the first symptom to the end of seizure activity.
What is the relevant time period for this appeal?
Ms Barrett contends that the history prior to her return to work in April 2021 set out above at [12] to [29] should be considered only as background to the current appeal. Ms Barrett says that the relevant period of time for this appeal commences upon her return to work on 12 April 2021, some 37 months after she was suspended by the Respondent. The Appellant submits that historical material considered by/provided by the Respondent is not relevant to the question of whether Ms Barrett 'is not performing her duties satisfactorily' and should not have been taken into account.
Ms Barrett submits that the period of time relevant to the question of whether she was not performing her duties satisfactorily is the time period from which she was cleared to return to work, until the IME direction, 5 January 2022.
Ms Barrett submits that the Respondent would not have withdrawn the 2020 IME direction and agreed to allow Ms Barrett to return to work after Dr Craig's medical clearance on 25 February 2021 if it was genuinely concerned about historical events it refers to. Ms Barrett contends that the Respondent cannot say that is concerned about events and reports before Ms Barrett's return to work in order to form its reasonable belief that there are grounds for an IME.
Ms Barrett says that whether she might be in the future or could have been in the past, affected in the performance of her duties by a medical condition is of no relevance to the matters in this appeal. Ms Barrett says that ss 174 and 175 do not provide:
…power to explore issues or future or past concerns; there must be a presently held belief that the employee's current performance is unsatisfactory. All of the historical material is irrelevant to the Appellant's current performance. Thus, the events which took place outside of the relevant period should not be taken into account.[17]
[17] Appellant submissions filed 25 March 2022, [10].
Ms Barrett says that 'at the crux of this appeal is whether or not Ms Barrett's epilepsy, as manifested through her four seizures at work in 2021, amounted to Ms Barrett not performing her duties satisfactorily'.[18]
[18] Appellant submissions filed 4 March 2022, [52].
The Respondent submits that Ms Barrett's significant history of past workplace seizures, previous specialist medical reports obtained and workplace adjustments are known to the decision maker when the decision to issue the direction to attend the IME was made.
The Respondent says that a review of the IME direction decision by way of a Public Service Appeal, needs to understand all of the information held and considered by the decision maker to fairly determine if the decision was fair and reasonable.
The relevant time period is 25 February 2021 until the IME was issued
Both parties have made submissions and provided material relevant to the period prior to Ms Barrett's return to work. In order to consider the appeal, I have read all of the material provided by the parties. I find that material provided from the period prior to Ms Barrett's return to work in 2021 has been useful in establishing the history of the matter, however, for the purposes of answering the questions I am required to consider in this appeal, I find that the relevant period is from 25 February 2021 until the IME was issued.
The reason I have determined that this is the relevant period is that there had been a decision made to withdraw the previous IME Direction and so it seems to me, that at the point Ms Barrett was returned to work in early 2021 and there was no IME direction in place, the delegate must not have held the view at that time that Ms Barrett was not performing her duties satisfactorily due to illness or a disability. To that extent, the historical matters, while part of the factual matrix, are not significant in considering this appeal.
Ms Barrett's substantive position description
The Respondent provides information about Ms Barrett's permanent position as a Clinical Nurse Infection Control, Infection Management Services, working full time on a day shift arrangement.
The Appellant's current portfolio of duties under her substantive position is surgical site surveillance which involves the duties outlined in the document titled Infection Management Service Portfolio Role Descriptions. While Ms Barrett's current portfolio is surgical site surveillance, Ms Barrett is also required to be able to undertake the duties of the staff health portfolio, multi-resistant organisms (MRO) and the bacteraemia portfolios as needed.
Each Clinical Nurse within the Infection Control department is required to do hand hygiene auditing in clinical areas, vaccinating health care workers at the staff vaccination clinic and occasional education sessions. All of these duties are done autonomously due to the seniority and experience a Clinical Nurse holds.
The Respondent says that Ms Barrett's Personal Development Plan (PDP) also outlines her requirement to provide a safe vaccination service to staff and patients.
The Respondent says that in accordance with Ms Barrett's role description and PDP:
…she is required to be able to successfully complete all mandatory training related to the work unit. This includes a mandatory requirement that the Appellant be trained in and able to perform basic life support for both children and adults, fire safety, patient handling and infection control. MNH holds serious concerns that if in the event Ms Barrett is required to respond to an emergency which requires her to respond such as providing basic life support, if she was to have a seizure at that time, this could have a serious impact to the person that she was assisting which could include but not limited to serious injury or death.
The Respondent says that due to four reported seizures since Ms Barrett's return to duty in 2021, Ms Barrett was issued with a lawful and reasonable direction to cease undertaking all clinical duties for an initial reasonable adjustment period of eight weeks with an expiry of 4 February 2022. The period of reasonable adjustment has been extended to 31 March 2022. As part of the reasonable direction to cease undertaking all clinical duties, Ms Barrett's duties were reasonably adjusted to only include administrative duties within the Infection Control Office. Ms Barrett is not required to perform: hand hygiene ward data collection; staff vaccinations in the Infection Control Office or in clinical areas; collection of data or placement of alerts in clinical areas. I note that Ms Barrett contends that there have been no reasonable adjustments made to her role.
With regard to the physical location of Ms Barrett's position, the Respondent says:
The Appellant's substantive position is physically located in the Medical Science Building Level 3 at TPCH. The Appellant is required to work within clinical areas to undertake audits and review patient charts.
When the Appellant is working in the Medical Sciences Building, the office environment is a shared office with usually two to three other staff depending on the day. However, there are times in which the Appellant will be in the office alone.
Additionally, the Appellant's duties require her to work within clinical areas and other offices such as Medical Records. At times the Appellant will be alone in these other locations.
When the Appellant is performing the full duties of her substantive position, she is required to travel around the hospital which may include passing through areas of little traffic and requiring use of stairs.
Ms Barrett has filed an affidavit in support of her submissions where she describes the duties of her role. Ms Barrett says that she does not have any patient contact in the portfolio she works in and that if she relieves in others' portfolios, the only patient contact she would have would be to: obtain consent forms in relation to occupational exposure and have a short conversation with a patient in relation to multi-resistant organisms.[19]
[19] Appellant Affidavit filed 4 March 2022, [69]-[92].
Ms Barrett describes the work she undertakes in collecting hand hygiene data and says that on occasions, she has had to help out the Clinical Nurse responsible for the staff health portfolio with performing vaccinations. Ms Barrett says that she performed approximately 20 vaccinations in the last year.[20]
[20] Ibid [89]-[90].
Ms Barrett says that she has a current basic life support competency and that she renews the competency every year.[21]
[21] Ibid [91].
Ms Barrett says that she has never had any issues responding to an emergency or threatened emergency because of her epilepsy.[22]
Section 174(a): Was it fair and reasonable for the chief executive to form a reasonable belief that Ms Barrett was not performing her duties satisfactorily?
[22] Ibid [92].
Ms Barrett's appeal notice states that the decision to direct her to attend the IME is not valid having regard to s 174 of the PS Act. Ms Barrett says that there was no basis for the Chief Executive to be reasonably satisfied that she is absent from duty or that her performance of the duties of the position is unsatisfactory.
Ms Barrett submits that the current evidence of her treating practitioner and the affidavit she has provided for this matter is the only evidence the Commission should consider with regard to the four seizures Ms Barrett has experienced at work since her return in April 2021. Ms Barrett notes that the submissions referring to her colleagues observations of her seizures are not accompanied by affidavits.
In response, the Respondent says that under the IR Act, the Commission must perform its functions in a way that is consistent with the objects of the IR Act and in a way which avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the IR Act. I take this to be an explanation for the inclusion of employee observations of the seizures being included in submissions rather than as sworn statements. In any case, the Respondent attaches witness reports via email and file notes of the events of 25 May 2021; 11 August 2021; 4 November 2021 and 13 December 2021 with its reply submissions.[23]
[23] Respondent submissions filed 11 March 2022, Attachments MN24, MN25, MN26; MN27 and MN28.
In reply to the material referred to at [69], Ms Barrett filed an affidavit on 14 March 2022 stating that she has never seen the documents before or been given a chance to respond to them. That same day, I issued a further directions providing Ms Barrett the opportunity to file further submissions in reply to the Respondent's submissions of 11 March 2022.
The Respondent further notes that the occurrence of the four seizures between May 2021 and December 2021 are not in contention as they are referenced in Ms Barrett's submissions.
Ms Barrett says that there is no factual basis upon which Ms Leighton could have been 'reasonably satisfied' Ms Barrett was not performing her duties 'satisfactorily'. In support of this, Ms Barrett says her evidence is that:
(a) the Respondent, through its employees, has acknowledged seizures would occur at work before Ms Barrett returned on 12 April 2016.
(b) the four seizures in the relevant period were each of short duration and required minimal recovery;
(c) she did not harm herself or others;
(d) she has never been made aware of any details of the claim she has harmed someone in the past;
(e) she was able to resume work or normal activities immediately following the seizures;
(f) she can sense when she is about to have an episode;
(g) she is able to take the necessary action prior to her loss of awareness to avoid harm to herself or others;
(h) the last seizure was not a tonic clonic seizure, as it is anticipated may be suffered by the respondent, and Ms Hastie who witnessed the seizure has confirmed she was not 'shaking' or 'slumped';
(i) her role does not require her to do any work that would cause unacceptable risk to herself or others if she has an episode;
(j) her solicitors provided details of the seizures and her position description to her treating neurologist and he has cleared her to continue to perform the duties of her position.[24]
[24] Appellant submissions filed 4 March 2022, [56].
With regard to Ms Barrett's submissions about the nature of her role, the Respondent says that Ms Barrett is a Clinical Nurse with clinical outcomes and her role description is clinical and not administrative.
Is Ms Barrett able to perform her duties satisfactorily with regard to health and safety obligations?
Ms Barrett does not dispute that she must be able to safely perform her duties. She says that the dispute in this matter is whether there is evidence that she cannot safely perform her duties in the relevant period. In the circumstances where she has medical evidence that demonstrates that she can safely work as a Clinical Nurse in the Infection Management Service, Ms Barrett says that it is clear that she can safely, and therefore, satisfactorily, perform the duties of the role.
Ms Barrett says that an argument that she cannot perform her duties safely cannot be sustained on Dr Craig's opinion, the views of her medical practitioners and the Board and AHPRA.
With regard to Ms Barrett's submissions set out at [72](a) above, the Respondent says that there is no acceptance by the Respondent either now or previously, where four seizures occurred in such a short timeframe from May 2021 when Ms Barrett returned to full duties to 13 December 2021 was acceptable or reasonable and not requiring investigation.
The Respondent submits that for an employee to be able to perform duties satisfactorily it is an inherent requirement that the employee be able to perform their duties safely, which also includes acting in accordance with the Work Health and Safety Act 2011 (WHS Act) which imposes a duty upon workers to take reasonable care for their own health and safety and reasonable care for the health and safety of others, including workers and patients.
With regard to Ms Barrett's submission that AHPRA has lifted the conditions previously placed on her, the Respondent says that the WHS Act places the primary health and safety duty on a person conducting a business or undertaking (PCBU). The Respondent says that as the PCBU, they must ensure so far as is reasonably practicable, the health and safety of workers in their workplace. The Respondent says that responsibility of the duties placed on officers of a PCBU, workers and other persons at a workplace does not reside with AHPRA.
With regard to the Respondent's submissions about its workplace health and safety obligations, Ms Barrett says that this submission fails to adequately consider that the Respondent's duties to ensure a safe workplace are informed by:
(a) the likelihood of the risk occurring;
(b) the degree of harm that might result from the purported risk;
(c) the availability and suitability of reasonable adjustments that can be made to eliminate or minimise the risk; and
(d) that the Respondent's obligations under the WHS Act are to eliminate or minimise risks to health and safety as far as is reasonably practicable.
Ms Barrett says that when those matters are given thorough consideration, it is clear that:
(a) the likelihood and degree of risk of harm to herself and others is low;
(b) any risks such as injury to patients or others are reduced to an acceptable level by her working in her current role, rather than in a role involving patient care; and
(c) the risk has been eliminated as far as is reasonably practicable when balancing all the factors in this matter which include the Appellant's right to be free of discrimination because of her impairment at work.
The Respondent refers to the four recorded seizures suffered by Ms Barrett since her return to work and points out that one of these seizures occurred while she was undertaking a vaccination. The Respondent says that this raises significant concerns for patients.
The Respondent refers to a historical seizure from the period predating the suspension from duty and the eventual return to work. In that case, on 8 July 2016, Ms Barrett was undertaking a hand hygiene audit, suffered a seizure and started to collapse and the Nurse who tried to stop Ms Barrett falling suffered a career ending injury to her lower back.
With regard to Ms Barrett's submission at [72](d), the Respondent says that details of the injury caused, including that it was possibly a career ending injury, were raised at the conciliation conference on 13 June 2019. The Respondent says further, that that the same injury, and the resulting medical retirement and a civil claim for damages were raised at a further conciliation conference on 17 June 2020. Ms Barrett was present for both conferences.
The Respondent says that post the 19 July 2016 seizure and the subsequent third party injury, letters to specialists have included the added detail of that injury.[25] The Respondent says that further to that, in its correspondence to Ms Barrett dated 28 June 2018,[26] it included reference to the seizure and the significant injury to the staff member who assisted in preventing Ms Barrett from falling to the floor.
[25] Respondent submissions filed 10 February 2022, Attachment MN 7.
[26] Respondent submissions filed 10 February, Attachment MN10.
With regard to Ms Barrett's submission above at [72](f) the Respondent says there is little indication of her being able to sense an episode, due to the number of reported seizures that occur in an open environment or with a patient or whilst standing. In reply, Ms Barrett says that this is a misunderstanding of her experience of seizures and that there is no evidence to the contrary of Ms Barrett's view that she almost always experiences an aura before having a seizure.
Ms Barrett says that she attended a PDP meeting with the Respondent on 21 February 2022 in which it was noted that Ms Barrett had met expectations for the review period from 17 June 2021 to 22 February 2022.[27] Ms Barrett says that this is further evidence that she is satisfactorily performing her duties.
[27] Appellant submissions filed 25 March 2022, Attachment 1.
The Respondent says that it agrees with Ms Barrett that there is a significant amount of medical opinion regarding Ms Barrett's medical condition and her capacity to undertake duties as a clinical nurse. The Respondent says that the medical opinion has at times been contradictory and that the Respondent has at all times attempted to negotiate through this and ensure the safety of Ms Barrett, her colleagues and patients.
The Respondent says that given Ms Barrett's history of seizures and the recently reported four seizures suffered by Ms Barrett:
the delegate was satisfied that the abovementioned facts provided a state of affairs that make it both rational, and reasonable, to be satisfied that the employee is not performing their duties satisfactorily as a result of the concern that Ms Barrett cannot perform her duties consistently with her Work Health and Safety duties.
In considering whether Ms Barrett's unsatisfactory performance is caused by a mental or physical illness or disability, the Respondent says that the delegate considered Ms Barrett's reported history of seizures in conjunction with reports that Ms Barrett had suffered four witnessed seizures within the workplace since her return to work.
The Respondent says that there were reasonable grounds upon which to base a reasonable suspicion that Ms Barrett's unsatisfactory performance was caused by mental or physical illness or disability, permitting invocation of the power under s 175 of the PS Act to require Ms Barrett to submit to a medical examination to explore the abovementioned concerns.
Consideration
I have read Ms Barrett's PDP and agreement and note that Ms Barrett's six month review indicates that she is meeting expectations in the areas set out in the plan. I do not think that the Respondent is contending that the 'unsatisfactory performance' relates to underperformance. It is clear that the unsatisfactory performance the Respondent relies on, relates to Ms Barrett's capacity to undertake her role safely, an obligation Ms Barrett agrees is a requirement of undertaking her duties.[28]
[28] Appellant submissions filed 25 March 2022, [40].
I have also read the submissions of Ms Barrett and of the Respondent, regarding the four seizures Ms Barrett experienced at work during the relevant period. Taking into account that one of the seizures occurred while Ms Barrett was in the process of preparing a vaccination for a staff member who she was attending to, I find that it was reasonable for the delegate to form a view that Ms Barrett was not satisfactorily performing her duties, in circumstances where there were genuinely held safety concerns about that event.
While Ms Barrett has expressed dissatisfaction with her colleagues being required to report any seizures she may have; this was an entirely reasonable action for the Respondent to take in circumstances where Ms Barrett had returned to work on a graduated return to work program and the Respondent was seeking to protect the health and safety of both Ms Barrett and her colleagues.
The reporting of the three further seizures was, in my view, sufficient to make it reasonable for the delegate to find that Ms Barrett was unable to perform her duties satisfactorily when considering the requirement for the Respondent to maintain a safe and healthy workplace and for Ms Barrett as an employee to be able to safely perform her role.
In order to accept the position Ms Barrett has taken that there is no evidence that the seizures at work have impacted on her capacity to perform her role safely, the Respondent would have to set aside its concerns about the relevant period (and knowledge of the four seizures, one of which occurred while Ms Barrett was preparing to undertake the vaccination of an individual) and wait for there to be a further incident, with potentially serious outcomes or resulting in a serious injury to Ms Barrett, a colleague or a patient. To knowingly allow Ms Barrett to continue to work without addressing the Respondent's concerns about safety would place the Respondent and the decision maker in an untenable position when considering its obligations under the WHS Act.
Dr Craig's report of 25 February 2021 had stated, 'I am content to clear Ms Barrett to return to her role. While there is never any guarantee to be free of seizures if these events did occur in the workplace I do not envisage that there would be any harm to Carol or any individual that would be looked after by Carol…'.
In this appeal, Ms Barrett relies on a further report of Dr Craig, which I understand she sought via her lawyers to support her in resisting the direction to attend an IME.
I have reviewed the letter sent to Dr Craig by Ms Barrett's lawyers. For various reasons, while I accept that the letter represents Dr Craig's opinion, I note that the opinion was provided by way of answering the request made by Hall Payne Lawyers. The letter of 27 January 2022 requesting the opinion includes the following:
In late December 2021 Ms Barrett was stood down from her clinical duties by TPCH on the basis of four episodes related to her epilepsy at work in 2021. TPCH is attempting to send Ms Barrett for a medical examination with Dr Noel Saine, Neurologist. Ms Barrett has appealed the decision to send her for the medical examination. In the meantime, Ms Barrett is only permitted to perform administrative duties and is not allowed to perform any duties in the clinical areas of the hospital. This situation is causing Ms Barrett considerable stress because she does not see there is any reason why her epilepsy stops her from performing her role. It is further causing her professional embarrassment and detrimentally affecting her self-worth.
The letter goes on to outline Ms Barrett's recollection of the four seizures. The lawyer's letter then states:
In our view, it would seem the above episodes are unremarkable and do not pose an unacceptable risk to Ms Barrett's or other workers' health and safety because based on (the description of the seizures) and our client's instructions:
· her condition is stable;
· she has insight into the triggers of her episodes and she takes action to manage the triggers where possible;
· she can sense when she is about to have an episode;
· she is able to take the necessary action prior to her loss of awareness to avoid harm to herself and others;
· the episodes are brief and only involve loss of awareness;
· she is able to continue work after an episode without issue;
· her role does not require her to do any work that would cause unacceptable risk to herself or others if she has an episode.
If you agree with this view, it would be of great assistance if you could write a short letter for Ms Barrett to provide her employer confirming your opinion in your letter of 25 February 2021. That is, that Ms Barrett is able to perform the duties of her role, despite the four episodes in 2021. If you consider the workplace surveillance of Ms Barrett's condition is contributing to her seizures we would also appreciate your comments in this regard…
[100]I have read the letter provided by Dr Craig on 26 February 2022 and note that relevantly, Dr Craig says: 'If seizures do occur simple observation is likely to be the best care for Carol. I cannot speak for every eventuality but simply making the area clear of obvious danger. This should not present a significant risk of harm to others who could be close to Carol near a seizure….' Dr Craig goes on to say, '…there does not appear to be circumstances that would present an immediate danger if a seizure occurred.'
[101]While this advice has been provided post the direction to attend the IME, I find that while some of the comments made by Dr Craig are reassuring and suggest that Ms Barrett should be able to work safely, I note that the remarks I have included at [100], largely reflect the type of health and safety concerns raised by the Respondent. In the absence of an IME, the Respondent has not had an opportunity to address these concerns and ask questions to help it to understand the extent of the risk in a practical workplace sense and the impact on Ms Barrett's capacity to satisfactorily perform her duties.
Effects of IME direction on Ms Barrett
[102]Ms Barrett says that the IME direction will have a significant effect on her as: she will be required to be examined by a doctor who is not her treating doctor over a number of hours; this will cause stress and humiliation; and past IMEs have resulted in adverse consequences for Ms Barrett, including, variously, removal of her clinical duties and her threatened ill-health retirement.[29]
[29] Appellant's submissions filed 4 March 2022, [62].
[103]Ms Barrett says that the requirement to attend an IME should be reserved for occasions where there is no other alternative. Ms Barrett says that it is not fair or reasonable for an employer to utilise an IME to engage in an 'exploration' of concerns.[30]
[30] Appellant's submissions filed 4 March 2022, [63].
[104]Ms Barrett contends that there is already an abundance of medical information available and that it cannot be seriously contended by the Respondent that it does not understand Ms Barrett's condition. Ms Barrett says that the fact that the Respondent may not like the medical evidence, as it currently stands, is not a proper basis for an IME direction.[31]
[31] Appellant's submissions filed 4 March 2022, [63].
[105]Ms Barrett says that the Respondent has obligations under the Anti-Discrimination Act 1991 (Qld) and the Disability Discrimination Act 1992 (Cth) in respect of employment of persons with disabilities. These are not matters I am required to consider in this appeal.
[106]While I understand Ms Barrett's contentions regarding the potential effect of the IME on her, this appeal requires me to consider whether it was fair and reasonable for the decision maker to form a reasonable belief that Ms Barrett's performance of her duties was unsatisfactory and to form a reasonable suspicion that the reason for this unsatisfactory performance was seizures resulting from epilepsy. The appeal does not require me, if I establish that those statutory elements are met, to consider what impact the attendance at an IME may have on Ms Barrett.
Conclusion and Order
[107]While the Respondent maintains concerns about Ms Barrett's personal safety and the safety of those around her, it is going to remain the case that it would be fair for the delegate to be reasonably satisfied that Ms Barrett is not able to perform all aspects of her role safely and therefore she is not satisfactorily performing her duties.
[108]Given that the concern regarding safety clearly arises from Ms Barrett's epilepsy, it is fair for the delegate to have a reasonable suspicion that the unsatisfactory performance results from Ms Barrett's 'physical illness or disability'.
[109]On this basis, I find that it was fair and reasonable for the delegate to determine to direct Ms Barrett to attend an IME. Until the Respondent is able to put its questions regarding Ms Barrett's capacity to undertake her role safely to an independent medical examiner with a neurology specialisation, it will remain the case that it is reasonable for the Respondent to hold a view that Ms Barrett is not performing her duties satisfactorily.
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