Bian and Comcare
[2011] AATA 241
•11 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 241
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2010/3091
)
GENERAL ADMINISTRATIVE DIVISION )
Re SHEFANG BIAN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date11 April 2011
PlaceCanberra
Decision The decision under review is set aside and in substitution it is decided the applicant had a reasonable excuse for failure to comply with the rehabilitation program, and that compensation payments should recommence. .................[sgd].............................
Professor RM Creyke, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – rehabilitation program – refusal or failure to undertake rehabilitation program – whether reasonable excuse for failure to undertake rehabilitation program – whether nature of rehabilitation program can be taken into account when considering reasonable excuse - whether compensation should have been suspended – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 36, 37(1), 37(3), 37(7)
Australian Postal Corporation v Forgie (2003) 76 ALD 578
Australian Postal Corporation v Pascoe [2003] FCA 390
Australian Postal Corporation v Pascoe (2004) 77 ALD 464
Buck v Bavone (1976) 135 CLR 110
Comcare v Chenhall (1992) 109 ALR 361
George v Rockett (1990) 170 CLR 104
Gilbert and Comcare [2009] AATA 224
Re Finch and Telstra Corporation Ltd (AATA 13130, 27 July 1998)
Re Georges and Telstra Corporation Ltd [2009] AATA 731
Repatriation Commission v Webb (1987) 13 ALD 421
Trajkovski v Telstra Corporation Ltd (1998) 153 ALR 248
REASONS FOR DECISION
11 April 2011
Professor RM Creyke, Senior Member
1. Ms Shefang Bian has an accepted claim for compensation for an adjustment reaction with anxious mood, sustained on 10 September 2007.
2. On 4 March 2010, the ACT Department of Education and Training (Agency) suspended Ms Bian’s compensation entitlements from that date because, it was asserted, she refused to undertake a rehabilitation program without having a reasonable excuse.
3. That decision was upheld on review on 18 June 2010. On 26 July 2010, Ms Bian sought further review by the Tribunal.
LEGISLATION
4. The relevant legislation is found in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).
4 (1) rehabilitation program includes medical, dental, psychiatric and hospital services (whether on an in-patient or out-patient basis), physical training and exercise, physiotherapy, occupational therapy and vocational training.
36 Assessment of capability of undertaking rehabilitation program
(1) Where an employee suffers an injury resulting in an incapacity for work or an impairment, the rehabilitation authority may at any time, and shall on the written request of the employee, arrange for the assessment of the employee's capability of undertaking a rehabilitation program.
(2) An assessment shall be made by:
(a) a legally qualified medical practitioner nominated by the rehabilitation authority;
(b) a suitably qualified person (other than a medical practitioner) nominated by the rehabilitation authority; or
(c) a panel comprising such legally qualified medical practitioners or other suitably qualified persons (or both) as are nominated by the rehabilitation authority.
(3) The rehabilitation authority may require the employee to undergo an examination by the person or panel of persons making the assessment.
(4) Where an employee refuses or fails, without reasonable excuse, to undergo an examination in accordance with a requirement, or in any way obstructs such an examination, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.
…
(7) Where an employee's right to compensation is suspended under subsection (4), compensation is not payable in respect of the period of the suspension.
(8) Where an examination is carried out, the person or persons who carried out the examination shall give to the rehabilitation authority a written assessment of the employee's capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require.
37 Provision of rehabilitation programs
(1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.
(2) If a rehabilitation authority makes a determination under subsection (1), the authority may:
(a) provide a rehabilitation program for the employee itself; or
(b) make arrangements with an approved program provider for that provider to provide a rehabilitation program for the employee.
…
(3) In making a determination under subsection (1), a rehabilitation authority shall have regard to:
(a) any written assessment given under subsection 36(8);
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee's opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee's attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
(4) The cost of any rehabilitation program provided for an employee under this section shall be paid by the relevant authority in relation to that employee.
…
(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
(8) Where an employee's right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.
ISSUES
5. The issues are:
·Whether Ms Bian refused or failed, without reasonable excuse, to undertake a rehabilitation program provided for her by the Agency.
·Whether Ms Bian’s rights to compensation, and to institute or continue any proceedings under the Act in relation to compensation, were properly suspended.
·Whether the reviewable decision of 18 June 2010 should be affirmed.
BACKGROUND
6. Ms Bian was born in China in 1965 where she trained as a secondary school teacher and taught for one to two years. She came to Australia in 1989, and began work in 1995 on a casual basis as a teacher with the Agency. After a review of her qualifications, Ms Bian commenced full time work in 2005 and became a permanent employee of the Agency in 2006. Her principal teaching role has been as a teacher of Mandarin although she had also taught music and, as a support teacher, English as a second language.
Teaching History
7. There is some confusion between the material on file and the testimony about Ms Bian's teaching history. For the purposes of this matter, what is significant is that on three occasions, Ms Bian had taught in primary schools in the ACT. In 1995 Ms Bian started teaching at Mawson and Higgins primary schools. She said that she only taught at Mawson for six months as the position did not continue in 1996. At Higgins primary school she was teaching from kindergarten to year six. Ms Bian was given a positive reference by the Principal, Higgins Primary School and was offered reappointment. However, she said she found the teaching demanding and stressful and did not accept the offer. Ms Bian had child rearing responsibilities for the next few years and did not teach.
8. In 2002 she resumed teaching at Higgins primary school and towards the end of that year she commenced at Mawson primary school as well. She taught four days a week at Mawson and one day a week at Higgins. She continued in these positions in 2003, but resigned from Mawson at the end of the first term. She said in her letter of resignation of 25 March 2003 that she resigned because she found travelling more than three hours every day tiring, she had little support, inadequate time for preparation, and a full workload. She taught again at Higgins primary school in 2004, with positive results. She also worked on contract as a casual relief teacher at Belconnen and Ginninderra high schools for another year. In a statement in support of her application for casual relief work, dated 20 March 2002, Ms Bian said her teaching experience at Belconnen/Ginninderra high schools, and Higgins and Mawson primary schools had been ‘a success’.
9. In a health questionnaire dated 20 March 2002, Ms Bian said there were no medical conditions, including anxiety state, stress or difficulties with concentration or memory, that might prevent her from doing the duties for which she had applied. She also said she could undertake teaching at both primary and secondary school level. At this stage, Ms Bian was still working to achieve permanency.
10. Ms Bian’s formal workplace assessments in 2002 and 2003 demonstrated competency in most areas of teaching, and clear improvement in areas in which she was less confident. In a Contract and Probationary Assessment, dated 21 October 2003 and completed by the principal of Higgins primary school, Ms Bian was rated ‘satisfactory’ or ‘excellent’ in all areas and the report noted she had ‘actively embraced her Professional Pathways goals’ that term. Her reports from the principal of Mawson had been less positive.
11. In 2006 Ms Bian began teaching at Lake Ginninderra college in conjunction with Mawson primary school. Ms Bian said in the hearing that she had continued teaching at Mawson for 2006 because it was her first year as a permanent teacher and she was still on probation. In 2007, following her request to transfer from primary teaching, Ms Bian commenced a split role teaching between Lake Ginninderra college (35 per cent) and Dickson college (65 per cent). Ms Bian also taught at the Canberra Institute of Technology (CIT, a TAFE college) for some time prior to May 2007.
12. At the hearing Ms Bian pointed out that she had tried primary school teaching on three occasions and had left on one occasion when the position ended, resigned on the second occasion (from Mawson primary school), and sought a transfer on the last occasion in 2006. She said she tried her best to do a competent job but because she was not primary trained, and because dealing with Australian children was different from dealing with children in China, she said she had found the experience very demanding and stressful.
13. In April 2007, Ms Bian was diagnosed with breast cancer and underwent surgery in early May. She returned to work at Dickson and Lake Ginnindera colleges two weeks post surgery. At the time she underwent radiotherapy treatment, but postponed chemotherapy.
14. Ms Bian suffered an injury due to her employment, namely, an adjustment reaction with anxious mood, deemed to have been sustained on 10 September 2007. That injury was principally due to treatment she received while teaching at Dickson college. This included threats and accusations from parents, behaviour of pupils, undermining of her authority by actions of the deputy principal, and the failure of executive management at the school to protect and support her when she was faced with these problems. She also experienced some problems with the principal and executive at Lake Ginninderra college. Her GP, Dr Catherine Khong, recommended she go off work. At that time, Ms Bian began seeing a psychologist, initially weekly, and she was prescribed an anti-depressant.
15. Ms Bian did not work from September 2007 until 3 February 2009. During that interval, she and her husband separated. She returned to work on a graduated return to work program (RTW program) doing administrative (clerical) duties in the Agency. Initially she was working nine hours a week, but this increased to 12 hours a week. Later her work hours were again reduced to nine hours per week.
16. Ms Bian had been referred for rehabilitation assessment on 31 January 2008 and an initial needs assessment report was provided on 18 February 2008. The final goal of the RTW program was to return Ms Bian to the position of ‘equivalent to Teacher, Level 1’. The RTW document, as amended in August and December 2009, referred to ‘modified duties’ which had been identified as clerical duties in the Agency. It was accepted at the hearing that although alternatives were discussed, the final goal was always to return Ms Bian to teaching. The obligations on the employee were to ‘Adhere to medical guidelines and restrictions’ and ‘Actively participate in the RTWP and attend workplace RTW meetings’. The RTW program placed obligations on the supervisor to ‘Provide suitable duties’. Expected outcomes under ‘Case Management’ were to:
· Facilitat[e] … communication within the workplace and all relevant stake holders
· Ensure all parties are aware of their obligations and roles, and
· … allow for timely and outcome focused rehabilitation to occur.
Outcomes for ‘Case Manager liaison’ and ‘Medical Professional liaison’, respectively, were:
· ‘The exchange of information to assist with the GRTW process and to allow for informed decisions’; and
· ‘To clarify the employee’s medical status and treatment plan, ensuring a safe and durable RTW’.
Medical Evidence
Dr Pascall
17. On 21 October 2009, Ms Bian was assessed by Dr Virginia Pascall, an occupational physician. Dr Pascall’s report of 10 December 2009 said that Ms Bian could begin her return to teaching work, provided her health permitted and she was in a supportive environment. She recommended a combination of adult and primary school teaching. However, she also said that, absent that support, Ms Bian would be better off working outside the Agency. The report noted: She would be able to teach 3-4 hours per day at this time at the level of teaching CIT and primary school. This would equate to approximately 15-20 hours per week now, and she would gradually progress from that level. Her recommendation was for ‘teaching one or two classes of her own at CIT and teaching at primary level’.
18. Ms Bian said that following her assessment by Dr Pascall she understood Dr Pascall had agreed she should not teach at a primary school and that Dr Pascall had spoken with Dr Watson and told him that she should only teach adults. Ms Bian claimed at the hearing that this was the information she had at the time she was scheduled to meet with the Principal of Latham primary school as part of her RTW program. Comcare does not agree with these facts.
19. Ms Bian claimed she did not see the report until after Ms Margie Lam, Ms Bian’s return to work coordinator, had emailed it to her on 5 March 2010. Comcare disputes this claim on the basis that Ms Lam sent the report to Dr Tim Watson, Ms Bian’s treating practitioner, under cover of a letter dated 23 December 2009. Dr Watson’s medical practice stamped the letter as received on 5 January 2010, with another date stamp of 15 January 2010 showing ‘Scan & Shred’.
20. At the hearing, Dr Watson maintained that Dr Pascall’s report was only received from Ms Bian’s solicitor on 2 February 2011. He said he had not seen it before then. Dr Watson’s clinical notes in the intervening period do not suggest he discussed the contents with Ms Bian. So it appears Dr Watson either did not see the report or had forgotten that he did so. This supports Ms Bian’s assertions that she had not seen the report prior to 5 March 2010, despite her attempts to obtain a copy, and the Tribunal so finds.
21. On 10 December 2009, Dr Pascall telephoned Dr Watson who recorded Dr Pascall as agreeing that Ms Bian should not return to teaching within the Agency, including at primary level, but should return to teaching adults only. He believed primary school was not an option. Dr Pascall did not keep notes of that conversation. Dr Watson’s clinical notes on that day said only of the discussion: 'pascall discussion; ‘looking to move her into apporiate (sic) employment cit ANU’. Dr Pascall said of her conversation with Dr Watson, that while she may have mentioned primary teaching, her emphasis was on teaching adults and that she and Dr Watson agreed that the CIT option was a good one.
22. At the hearing, Dr Pascall said that she had no recollection of Dr Watson saying in that telephone conversation that it would be ‘unwise to put Ms Bian in primary school and that she was better suited to adult teaching’. She said that she could not recall mentioning primary teaching but confirmed that the focus of the discussion was on Ms Bian teaching adults.
23. Ms Bian said she had told Dr Pascall at the assessment that she believed she could not work in primary school as she was not qualified, and that she had tried on three occasions, but her experience in such teaching had not been positive. Dr Pascall said she had no record of this, which was surprising since she takes extensive notes.
24. Dr Pascall said at the hearing that she thought that teaching adults was appropriate for Ms Bian. There would be no pressure from parents, and less likelihood of the confrontation with students such as she had experienced at Dickson college. Dr Pascall said she included in her report the recommendation that Ms Bian be involved in primary education because she thought it would be less confrontational, and that the combination of adult teaching with primary teaching was also suitable.
25. She also acknowledged that the idea of teaching in a primary school had been hers alone and had occurred to her while she was writing the report. She also agreed that she had never asked Ms Bian whether she enjoyed teaching at that level and that if she had known Ms Bian had difficulties in teaching at primary school level, it would have influenced the recommendations in her report.
26. Dr Pascall also said at the hearing she could not recall whether she specifically referred to Ms Bian returning to primary teaching as a possibility in her discussion with Ms Bian. She agreed there were discussions about the option of CIT or the Australian National University (ANU) and she said she could understand if Ms Bian thought her report would be focused on adult education. She agreed that Ms Bian needed to avoid conflict with parents in the school but she felt in a primary school with small children and parents with different learning attitudes, conflict would be avoided. Dr Pascall said in her view there was no doubt that Ms Bian was competent to teach a class of 20 primary school children.
27. In her view, Ms Bian was a dedicated teacher and it would have been a loss of talent had she abandoned teaching. She also recalled receiving an email from Ms Lam about the duties involved at Latham primary school and agreed that the duties appeared appropriate. However, she did say that these duties involved teaching without another adult present, which would avoid humiliation for Ms Bian.
28. That was contrary to the suggestion in the duty statement for Ms Bian’s proposed work trial at Latham primary school at the beginning of 2010 which said that Ms Bian would be teaching ‘in tandem with class teachers’ and that Ms Bian ‘would not be required to teach any class without another adult present’. This suggests Dr Pascall’s recall was deficient on this point. At the hearing, Dr Pascall's testimony was that Ms Bian was not fully recovered but was considerably better than she had been in September 2007.
29. On 10 November 2009, prior to publication of her report, Dr Pascall had spoken with Ms Lam. This conversation was recorded in an email from Ms Lam to Ms Sonja Haynes, a trainee return to work coordinator, on 11 November 2009:
[Dr Pascal [sic]] advised that Sophie [Ms Bian] is not suited to administrative work and we should move her back into teaching. Not with Dept of Education & Training though. She feels she would be better suited to adult teaching. Possibly with CIT or the Uni.
The email also noted that the CIT contact 'advised that the uni would have similar teaching conditions'.
30. Another file note from Ms Lam, dated 17 November 2009, noted:
Spoke with Dr Pascal [sic] & advised of my conversation with CIT. Dr Pascal thought this would be good for Sophie but they can not offer enough hours. She mentioned maybe teaching over the two sites, CIT & Uni. She also mentioned private tutoring.
Dr Pascal said leave it with me and I will think about it. She will call either Sonja or myself if she has any questions.
31. In an email from Ms Lam to Ms Haynes on 10 November 2009, Ms Lam relayed this information including that 'Dr Pascal [sic] suggested we contact CIT and Uni to ask what is asked from teachers for 6 hours face to face and also ask how much prep time would be involved'.
Dr Watson
32. Dr Watson’s clinical notes of the telephone conversation from Dr Pascall are reflected in his medical certificate dated 23 December 2009 in which he notes under ‘Restrictions’: ‘RTW plan as per Dr Pascalls recommendations. She is to work as a teacher in Adult education GRTW’. At that stage Dr Watson only had his telephone conversation with Dr Pascall as the source of his information about her report. At the hearing, Dr Watson said his reference to ‘Restrictions’ in his medical certificate was intended to refer only to the telephone discussion he had had with Dr Pascall, which he recalled referred solely to teaching at CIT or a university.
33. At the hearing, Dr Watson confirmed that it was his view that although Ms Bian’s condition had been static for the previous couple of years, it was too fragile for her to return to teaching in a primary school where she had to face dealing with parents as well as unruly students. In his view, she was already depressed, her coping mechanisms were down and she had no reserves left. If faced with teaching in a primary school she could become unable to work in the future. In his view she was at most able to teach in adult education. Dr Watson said she was only capable of working three hours, three days a week and said ‘This work trial should be organized so this lady is working with another person for the early period’. This last reference appears to be a reference to working as a teacher, since if to a clerical position, the reference to the presence of another person would be unnecessary.
34. In a report to Comcare dated 17 March 2010, he noted that Ms Bian’s depression was still ‘florid’ and this was causing a flare-up of various physical symptoms for which he had recommended chiropractic and massage therapy. He said: ‘Future employment will need to be in a very supportive environment.’
Events leading to suspension
35. Ms Lam arranged two meetings in early December to discuss Ms Bian's RTW program, as Ms Bian’s temporary placement in an administrative position was to cease on 18 December 2009 and she was certified fit for modified duties. Ms Bian did not attend either meeting, claiming she was unwell, only advising this ten minutes prior to the first meeting. Ms Lam said following these failures, she did not pursue that option.
36. According to Ms Bian, she rang Ms Lam on or about 21 December 2009 to check up on her RTW program, her clerical work trial having ceased. In response Ms Lam had said Dr Pascall had recommended she work in adult education and since CIT was on holiday, Ms Bian too should have a holiday and 'we will work on that in January or February'.
37. Dr Watson had provided continuous medical certificates relating to Ms Bian’s ability to work. These contained various limitations or restrictions. For example the certificate dated 20 October 2008 noted under ‘Restrictions’: ‘No classroom work, for admin role, low stress, initially 3 hours 3 days, no direct student or parental interactions’. His certificate dated 18 February 2009 noted under ‘Restrictions’: ‘working 4 hours mon wed Friday. No class room work. Admin only.’ The certificates for 3 March 2009 and 30 March 2009 simply recorded under ‘Restrictions’ ‘as before’. On 8 May 2009 the certificate noted for ‘Restrictions’: ’12 hours per week. Flexible hours. Other restrictions as before’. There is no entry under ‘Restrictions’ in the certificates dated 17 June 2009, and 30 September 2009. However, these certificates were signed by Dr Prema Rajendra, who was not Ms Bian’s regular general practitioner and was, presumably, not as aware of her circumstances. Dr Watson's certificate for 31 July 2009, has for 'Restrictions': ‘as before, same hours as before’; and for 23 December 2009: ‘RTW plan as per Dr Pascalls recommendations. She is to work as a teacher in Adult education GRTW’.
38. At the hearing, Ms Lam said she thought she received these certificates from Comcare and could not remember when. However, she had at least seen Dr Watson's certificate of 23 December 2009 in early January 2010 since she said as that certificate was more confined than the recommendations in Dr Pascall's report, she had wanted to speak with Dr Watson to clarify the issue.
39. Ms Lam made no attempt to contact Dr Watson in January 2010 by telephone or in person although she had earlier written to him outlining the duties at Latham primary school and seeking his views. She said in cross-examination that she believed her attempts to contact him had been adequate. She conceded she had made no other direct approaches.
40. The Tribunal notes that the RTW program states that it 'must be developed in consultation with ... your case manager, your supervisor, your approved rehabilitation provider and your treating doctor'. Ms Lam said at the hearing that she did not consider it was essential for the treating doctor to be involved in the development of the RTW program and it was only usual for the doctor to be sent a copy. She said she was not aware whether Dr Watson had been involved in its preparation.
41. In December 2009, Ms Lam commenced exploring employment options in the teaching sector. At the hearing she said she had enquired at the CIT and was advised that the CIT only provided two classes. These involved only five hours in total of teaching time with preparation time of a further three hours, that is, eight hours in total. The CIT had been interested in meeting Ms Bian, but Ms Lam said Ms Bian was hard to contact at that time as she had changed her address and her telephone numbers. Ms Lam said because Dr Pascall stated Ms Bian was capable of working 15-20 hours a week, the CIT position did not fulfil that requirement. Ms Lam said she had asked her contact at the CIT about teaching Mandarin at the ANU and was told that no such classes were taught at that university. She said she did not believe she had contacted any other adult provider, nor explored private tutoring.
42. On 19 January 2010, Ms Lam and Ms Hanneka Symonds, Ms Bian’s rehabilitation consultant, had a meeting. The notes of the meeting state: ‘We both agreed that placing Sophie in a primary school is the better option as CIT can not provide enough hours’. Ms Lam then spoke with the staffing officer who recommended Latham primary school and a meeting was arranged with the principal on 28 January 2010 which Ms Bian was to attend.
43. Ms Lam acknowledged at the hearing that normally, prior to setting up a work trial, she would go with the client and obtain a certificate from the treating doctor that the position was suitable. However, she said she had tried to contact Dr Watson and had not heard anything so she assumed it was okay. However, she said she was aware that his 23 December 2009 medical certificate only referred to adult education and that was why she wanted to speak with him.
44. On 27 January 2010, Ms Lam recorded that she had spoken with Ms Bian on 25 January 2010 and told her there was an appointment on 28 January 2010 to attend Latham primary school and meet with the principal with respect to working there. Ms Bian's evidence was that Ms Lam said that she would need to take the position since otherwise her compensation entitlements were at risk. There was no corroboration of this assertion.
45. Ms Bian refused to meet with the principal saying she was not primary trained, and that her health would be at risk if she had to deal with parents. However, she said she would be prepared to work as a casual relief teacher. When told that Dr Pascall had cleared her to work in primary schools, Ms Bian said Dr Pascall did not know her like Dr Watson and he had said she should work only in adult education. She said she also pointed out that she was aware that Latham primary school had not had a Mandarin program for 17 years.
46. In the course of the telephone conversation with Ms Bian on 25 January 2010, Ms Lam advised her that ACT Education did not distinguish between primary, secondary and tertiary trained teachers and she was classified simply as a classroom teacher. So her claim not to be primary school trained had no relevance in an ACT teaching context. Ms Lam confirmed at the hearing, however, that if a teacher expressed a preference for teaching at a particular level, the Agency would attempt to accommodate the request. Ms Bian said she was aware of this practice and had relied on it in her assumption that her rehabilitation provider would attempt to obtain work for her teaching adults in future.
47. During that conversation, Ms Bian asked whether she could work at the CIT teaching adults. Ms Lam explained that there was only eight hours of teaching available at the CIT and Dr Pascall had recommended Ms Bian commence at 15-20 hours a week. Ms Lam's file note says she advised Ms Bian she had double checked with Dr Pascall that Ms Bian was fit to teach in a primary school and that Dr Pascall approved this.
48. Following Ms Bian's refusal to attend at Latham primary school, Ms Lam phoned the principal to cancel the appointment. The principal said she was disappointed and sent her the duty statement for the position to show Ms Bian. The duties were described as follows:
· Developing a Mandarin program for years 3-6 (support given by access to past programs and visiting other schools that have developed similar programs);
· Teaching an introductory mandarin program to students in years 3-6, in tandem with class teachers. Ms Bian would not be required to teach a class without another adult present;
· Support provided to development [sic] ICT skills, if necessary (ie use of Interactive Whiteboards);
· The first three or four weeks of term could be used for Ms Bian to develop a program (with support) with lessons beginning in week 5
Ms Lam sent the duties to Ms Bian. Later that day, Ms Lam also emailed the duties to Dr Pascall to ask whether they were suitable for Ms Bian. Dr Pascall replied that day saying 'It looks very good to me. It is more than enough for her to demonstrate how well she can work. If all goes well by the time of the panel assessment, she may be able to [be] considered ... to work independently in some classes.'
49. The Tribunal notes that when Dr Pascall responded to Ms Lam’s email, she was in China, communications were not easy, she did not have her notes on Ms Bian, and she may not have been able to give the matter her fullest attention. Also, a follow up email from Ms Lam indicated and Dr Pascall acknowledged in a reply on 4 February 2010, that Dr Pascall had been commenting on someone other than Ms Bian.
50. On 2 February 2010, Ms Symonds faxed the duty statement for the Latham primary school position to Dr Watson and asked whether he considered it was suitable. Dr Watson did not respond.
51. At the hearing Dr Watson confirmed he had received the fax (and a later one sent on 16 February 2010) but said it was his view that consultations with rehabilitation providers should be conducted in the treating practitioner’s surgery with the patient and the provider present in order that the outcome should be a team decision. It is not clear whether he had advised Ms Bian’s rehabilitation providers of his policy. It is accepted that Dr Watson is a very busy general practitioner but his policy makes it difficult for rehabilitation providers in circumstances such as these. Ms Lam said at the hearing that she not always see the treating doctor in person and it is sufficient to keep the doctor informed.
52. In an undated email Ms Lam sought Dr Pascall’s advice following the conversation with Ms Bian. The email pointed out that Ms Bian had said she advised Dr Pascall: ‘that primary school was not suitable for her and you agreed. She also said that you spoke with Dr Watson and advised that she can only teach adults. I called you on 20 December 2010 regarding a placement in a primary setting. You advised that a primary setting is suitable’.
53. Ms Lam emailed Dr Pascall again on 3 February to say that Ms Bian had said she was not capable of working 20 hours a week, nor of dealing with parents. She relayed that Ms Bian had said she believed she could manage the eight hours a week available at the CIT. In a response dated 4 February 2010 (from China) Dr Pascall confirmed that she thought Ms Bian could teach at the primary school which she said 'would be excellent for her'.
54. In cross-examination of Ms Lam it was also pointed out that since the duties at Latham primary school included establishing a program for years 3-6, this would have been a daunting task. Ms Lam noted in response that Ms Bian would not bear the whole responsibility since she would be teaching in tandem with classroom teachers, and her hours were reduced, not full-time. The program was not expected to start until week 5, that is, early March 2010.
55. Following Ms Bian’s non-attendance at the Latham primary school on 28 January 2010, Ms Lam warned her in a letter dated 9 February 2010, that her failure to attend the meeting ‘specifically to discuss suitable duties at that school … duties … approved by an Occupational Physician as appropriate for you to undertake’ appeared to be a breach of her obligations under the RTW program. Unless she had a reasonable excuse she could be in danger of facing suspension of her compensation. The letter then stated:
You must …. either:
· Immediately commence (or recommence) your rehabilitation program as agreed and attend a meeting scheduled for Wednesday 24 February 2010, 2 pm at Latham Primary School; or
· Provide me, in writing, your reasons for refusing or failing to do so.
If within 14 days of the date of this letter you have not taken either of these steps, your rights to compensation may be suspended.
The 14 days expired on 23 February 2010.
56. Following that letter Ms Bian says she provided a response with a medical certificate dated 23 February 2010 from Dr Watson attached, explaining why she could not work as a primary school teacher. The letter was dated 23 February 2010 but was wrongly addressed and did not arrive until 1 March 2010. In any event, it would not have met the 14 day time limit. Ms Lam said she had attended the meeting at Latham primary school on 24 February 2010 and waited 40 minutes before deciding Ms Bian was not coming.
57. Ms Symonds wrote to Dr Watson on 16 February 2010, pointing out that she had sent a fax on 2 February 2010, and another on 16 February 2010 asking for his response to the proposed work trial and duties for Ms Bian.
58. The fax was received but it is not clear from the date stamp what action was recommended by Dr Watson. The action stamp was initialled and alongside ‘discussed with patient’ is shown the date, 23 February 2009. Dr Watson did see Ms Bian on that date as his clinical notes record a long discussion and note: ‘This lady does not want to work in the ACT primary school job needs to work in the college system s [sic] a relief teacher as a work trial. RTW plan will be done’.
59. By letter dated 25 February 2010, the Director, Human Resources in the Agency said that Ms Bian had failed on 28 January 2010 and 24 February 2010 to attend appointments to discuss suitable duties as part of an approved rehabilitation program and had failed to provide reasons in writing for refusing or failing to do so. Accordingly, unless there was a reasonable excuse for the failures her compensation would be suspended. Ms Bian was asked to provide her reasons in writing for her non-attendance 'within 7 calendar days of this letter'.
60. Ms Bian responded by email to the Director, dated 2 March 2010, setting out her reasons. The Director indicated that the reasons were not regarded as amounting to a reasonable excuse for not attending the meetings. Accordingly, as of 4 March 2010, her compensation entitlements were suspended.
61. In a letter to Ms Lam, on 10 March 2010, Ms Bian expressed disappointment with the decision to suspend her payment, noting that it was incorrect to say she had not attended the meeting on 28 January 2010. Ms Bian said that she and Ms Lam had agreed in advance why the first meeting should not go ahead and Ms Lam had cancelled the meeting. Ms Bian repeated that she told Ms Lam she was prepared to work as a casual relief teacher in a college or in an administrative position.
62. In her request to Comcare for a reconsideration of the suspension decision Ms Bian repeated that she was not primary trained, that both Dr Watson and Dr Pascall had recommended she ‘should start RTW work in CIT’ and that Dr Watson had further confined this suggestion by saying ‘she is to work as a teacher in Adult education GRTW’. She said of the Latham primary school option that it was necessary to consider:
The enormous stress placed on me in the past during the past 10 years which I had resigned and left a post when I was placed in a Primary school, even when I was perfectly healthy. The Department are aware through my medical report as well as other sources that Primary schools run me the high risk of suffering another work injury, and is a very unsuitable teaching environment.
She also noted that the ‘duties [at Latham primary school] had been previously arranged by the Department without any communication to me or my treating Doctor, Dr Watson’.
CONSIDERATION
63. A ‘rehabilitation program’ includes ‘vocational training’.[1] The RTW program provided for Ms Bian, being a ‘plan … formulated for the purpose of restoring [Ms Bian] to … her greatest potential … vocationally’[2] clearly involved a ‘rehabilitation program’’ as defined in the Act.
[1] Act s 4(1) – ‘rehabilitation program’; s 60(1) – ‘determination’.
[2] Re Finch and Telstra Corporation Ltd (AATA 13130, 27 July 1998) at [200].
64. The principal issue is whether Ms Bian refused or failed without reasonable excuse to undertake the rehabilitation program and, as a consequence, whether her compensation payments were properly suspended. It has been accepted that despite the apparently self-executing nature of the suspension, the suspension process involves a decision or determination which is reviewable.[3] Attendance at the two meetings arranged with the principal of Latham primary school was an obligation on Ms Bian under the RTW program, namely, that she ‘Actively participate in the RTWP and attend workplace RTW meetings’. The Tribunal must determine whether Ms Bian has a reasonable excuse for failing to attend those meetings.
[3] Trajkovski v Telstra Corporation Ltd (1998) 153 ALR 248; Australian Postal Corporation vForgie (2003) 76 ALD 578.
65. Other relevant elements of the RTW program were the obligations on the supervisor, namely, a person who was in charge of the rehabilitatee during any graduated RTW program, to ‘Provide suitable duties’. The obligation to provide suitable duties is inherent in the requirements of a rehabilitation program designed to restore a person to their ‘greatest potential … vocationally’.[4] After the work trial ceased on 18 December 2009, the obligation to find ‘suitable duties’ reverted to the case manager who became charged with the task of finding a suitable work program.
[4] Re Finch and Telstra Corporation Ltd (AATA 13130, 27 July 1998).
66. The Tribunal has assumed that the obligation under the RTW program on the client to ‘attend workplace RTW meetings’, although open to interpretation, could include a meeting with a potential supervisor under a RTW program. Ms Bian’s failure to attend the two meetings at Latham primary school at first sight falls within the requirement, and her non-attendance at those meetings was a breach of the obligation under her rehabilitation program. Before reaching that conclusion, however, it is necessary to consider whether Ms Bian’s excuses were reasonable so as to justify the suspension of her compensation payments. In coming to a conclusion on that issue, Ms Bian’s perceptions in or around January and February 2010 are relevant, as is the previous history, Ms Bian’s medical condition, and her obligation to participate actively in her RTW program.
Requirements of the rehabilitation program
67. Ms Bian spoke with Ms Lam about finding her a new placement in December 2009 and was told by Ms Lam that she was exploring tertiary options but, as these institutions had a summer break, Ms Lam would contact her in the New Year. That approach was supported by Dr Watson’s medical certificates which show that Ms Bian was certified fit for modified duties ‘from 29/9/09 to 23/12/09’, but from the date of the certificate on 23 December 2009, she was not fit for modified duties till 23 February 2009. Accordingly, in that period Ms Bian neither had a specific work program to attend nor was she certified fit to do so.
68. During November 2009, Ms Lam explored a teaching option at the CIT. Although the CIT were interested to pursue the possibility, since the position only involved eight hours a week of teaching duties, Ms Lam did not pursue the option. Dr Pascall’s report had suggested that, provided Ms Bian’s health permitted, Ms Bian could teach between 15 and 20 hours a week, gradually increasing her hours. Ms Lam also asked the CIT contact whether the ANU had a program teaching Mandarin and was advised this was not so.
69. She did not confirm this with the ANU. Ms Lam also said she had no recollection of whether she explored tertiary teaching options within the three other universities operating in the ACT or private tutoring in Mandarin. All these options had been suggested in the conversation with Dr Pascall. Ms Lam said because Dr Pascall had said 'Leave it with me' she had not pursued any of these options. However, since it was her responsibility to find a suitable work program, the Tribunal finds that she should have explored whether Dr Pascall had further considered the option and if she had not, Ms Lam should have explored these options herself.
70. The file notes indicate that instead, Ms Lam and Ms Symonds decided on 19 January 2010, ‘that placing Sophie in a primary school is the better option’. The staffing officer suggested Latham primary school and Ms Lam arranged the meeting with the principal, Latham primary school, for 28 January 2010.
71. Ms Lam did not speak with Dr Watson. Ms Lam agreed that she would normally liaise with the treating doctor about such an issue, but said since she had tried to make contact with Dr Watson and heard nothing she assumed that he had agreed. The Tribunal accepts that Dr Watson was difficult to contact. Nonetheless, the RTW program does state that an outcome for the case manager is ‘To clarify the employee’s medical status and treatment plan, ensuring a safe and durable RTW’. In this case, given the qualifications in Dr Pascall’s report that teaching should only be considered provided Ms Bian’s health permitted and that she should be ‘given the “all clear” … before pressuring Ms Bian to teach in the school system’, Ms Lam had been alerted to the need for a medical clearance from Dr Watson before any return by teaching by Ms Bian was contemplated. She should, therefore, have made further efforts to contact him.
72. Ms Lam said she was aware that Dr Watson’s 23 December 2009 medical certificate had not certified Ms Bian as fit for modified duties at the time, but that his certificate appeared to agree with Dr Pascall’s recommendations, which in her mind included teaching at a primary school. Against that assumption, however, was the qualification in his certificate that it related to ‘Adult teaching’. The Tribunal notes also that Ms Lam could not have assumed that Dr Watson’s referral to Dr Pascall’s recommendations was made followed his reading of Dr Pascall’s report since she herself had posted the report to him on 23 December 2009. In that event, she could not have assumed Dr Watson was referring to the primary school element of Dr Pascall’s recommendations.
73. In the relevant December 2009/January 2010 period, apart from Dr Watson’s comment in the 23 December 2009 medical certificate, the only information Ms Lam had about his attitude to Ms Bian’s program was from the certificates he completed during 2009, all of which had noted as restrictions ‘no direct student or parental interactions’ and ‘no class room work’. Although his 23 December 2009 certificate seemed to relax these requirements, since it did sanction a return to teaching, Ms Lam should have been sensitive to the fact that his December 2009 certificate specified ‘adult teaching’. She would have been aware that compliance with that qualification would avoid the contact with parents which had been a key factor precipitating Ms Bian’s condition and which lay behind the restrictions in Dr Watson’s certificates throughout 2009.
74. Ms Lam did contact Dr Pascall to confirm the suitability of the proposed program at Latham primary school after she had spoken with Ms Bian on 27 January 2010. Although she received an apparently positive response, it should have been treated with caution as Dr Pascall was then in China. Dr Pascall’s initial response was also questionable since, in a further email on 28 January 2010, Ms Lam notes that Dr Pascall appears to be thinking of the wrong client, a mistake Dr Pascall had acknowledged in her next email of 4 February 2010.
75. Given these circumstances, Ms Lam must have been aware that Dr Pascall’s ability to recall details could not be relied on. So despite Dr Pascall’s statement in an email of 4 February 2010 that ‘I was not confused when I thought that Sophie Bian could teach at the primary school’ and her statement that ‘I think that the primary school position would be excellent for her’, Ms Lam should have been cautious about relying on Dr Pascall’s responses.
76. Ms Lam also should have considered that Dr Pascall’s report had been made nearly two months’ earlier, and the proposed program at Latham had no details about the number of hours involved, nor whether the teaching in another tertiary position in conjunction with the primary school option was being contemplated, as Dr Pascall had suggested. For these reasons it was unsafe for Ms Lam to press ahead with the Latham option purely on the basis of these communications with Dr Pascall. Nor could she rely on the approval of the treating practitioner for the program given the ambiguity about the 23 December 2009 certificate of Dr Watson and its reference to ‘Adult teaching’ alone.
77. The Tribunal is aware that the proximity of these events to the commencement of the school year gave a degree of urgency to any decisions. Nonetheless, Ms Lam not only had warnings about taking action without the approval of Ms Bian’s treating doctor but should have been concerned about the suitability of the proposal. In addition, planning and writing a program for teaching Mandarin over four grades requires considerable work, even for an experienced primary school teacher and even with the allowance of some time to set up the program. Teaching Mandarin to children, even in tandem with classroom teachers, and even by someone who is fully fit, is also demanding. Nor is there any indication in the material available about the feasibility of managing both the writing and teaching of the program within a timescale of between 15 and 20 hours a week.
78. Ms Lam was also on notice that Dr Pascall reported she would only suggest a return to teaching if Ms Bian’s health issues had been given the ‘all clear’, and Dr Watson had not yet certified Ms Bian as fit even for modified duties. In addition, she had not approached Ms Bian prior to 25 January 2010 to assess her attitude to the proposal. So for Ms Lam to assume this was a suitable position without obtaining a fully considered response from Dr Pascall, without obtaining the concurrence of Dr Watson, or without seeking Ms Bian’s views, was premature. These factors are elements of the circumstances against which the excuses proffered by Ms Bian should be assessed.
Ms Bian’s failure to attend
79. Ms Bian raised an initial objection to the suspension. She claimed that she did not ‘refuse’ to attend the first meeting since after she indicated she would not be attending, Ms Lam cancelled the meeting. Ms Bian argued accordingly that she could not have ‘refused or failed’ to attend that meeting since it had been cancelled.
80. The Tribunal does not accept that argument. The behaviour proscribed by section 37(7) is a failure or a refusal to undertake a rehabilitation program. Ms Bian’s actions clearly fall within that expression since she had indicated she was not willing to attend, which signals an intended failure and a refusal to participate in the meeting. It is specious reasoning to contend that since the meeting was not held, Ms Bian had not failed or refused to attend it, when the cancellation was the cause of the meeting not going ahead.
81. Nonetheless, the Tribunal must assess the reasonableness of Ms Bian’s excuses for not attending the meetings. Those excuses were summarised in the decision as:
·you prefer not to be disturbed as [you] do not feel well over the past few months and need to have some peaceful time for improving [your] health;
·Dr Pascall decided that [you] should be teaching in CIT and ANU;
·It is very stressful to teach Chinese in primary in ACT even to a normal primary trained teacher;
·your first preference is for adult education.
The excuses were rejected as not reasonable on the grounds that:
… you have been medically cleared to attend [workplace meetings] by both your medical practitioner Dr Watson and by Occupational Physician, Dr Virginia Pascall. … The proposed duties have been reviewed as appropriate and suitable by a specialist Occupational Physician Dr Virginia Pascall [who] did not limit your placement to CIT and ANU, and there is no medical reason for you not attending meetings to discuss your rehabilitation program.
82. What is a ‘reasonable excuse’ requires a consideration of the excuses proffered in the context of the provision and the legislation as a whole. Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful.[5] What is reasonable is assessed objectively and relates to the specific conduct involved.[6] Dr Campbell explored the concept of reasonableness in Re Georges and Telstra Corporation Ltd:
I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound of [sic] judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less nor more than might be expected, tolerable, fair.[7]
[5] Comcare v Chenhall (1992) 109 ALR 361.
[6] Re Georges and Telstra Corporation Ltd [2009] AATA 731.
[7] Ibid, at [22].
83. In addition, for an excuse to be reasonable, it must be established that there was nothing ‘untoward’ about the excuse involved.[8] The excuse must also not be ‘irrational, absurd or ridiculous’.[9] That is the obverse of the dictionary definition. Within the boundaries between what is ‘tolerable, fair, or what might be expected’, and being not ‘untoward, irrational, absurd or ridiculous’ there is considerable territory. Making a decision within that territory involves questions of judgment and degree.[10]
[8] Re Gilbert and Comcare [2009] AATA 224, at [33].
[9] Repatriation Commission v Webb (1987) 13 ALD 421.
[10] Australian Postal Corporation v Forgie (2003) 130 FCR 279 at [40].
84. Generally decisions about reasonableness involve an objective fact.[11] However this is not an invariable requirement. The need to take account of all the circumstances pertaining to the individual as well as the criteria in section 37(3), the terms of the RTW program, and the interactions of those involved invites attention to a range of matters, some of them subjective in nature. An ‘excuse’ inevitably involves circumstances peculiar to an individual. Although what is a ‘reasonable excuse’ is not to be tested against the criteria listed in section 37(3) of the Act,[12] the factors in section 37(3), including, for example, ‘the likely psychological effect on the employee of not providing the program’ and ‘the employee’s attitude to the program’, are matters pertinent to the individual.[13] Reference to these factors has been found to be ‘not necessarily irrelevant to a decision to be made under section 37(7)’.[14]
[11] Buck v Bavone (1976) 135 CLR 110; George v Rockett (1990) 170 CLR 104.
[12] Australian Postal Corporation v Pascoe [2003] FCA 390, at [18]; a statement approvided by the Full Court in Australian Postal Corporation v Pascoe (2004) 77 ALD 464, at 467.
[13] Australian Postal Corporation v Pascoe (2004) 77 ALD 464, at 467.
[14] Ibid, at 467.
85. The Tribunal is, however, mindful that the task on which it is engaged is not to confuse the reasonableness or otherwise of the rehabilitation program with the reasonableness or otherwise of an excuse or excuses for a failure or refusal to undertake the program.[15] The first requires challenge to the decision made under section 37(1); the second is the task before the Tribunal.
[15] Ibid, at 468.
86. Ms Bian’s counsel contended that Ms Bian’s actions in refusing to attend the appointments at Latham primary school were reasonable because on 28 January 2010 and on 24 February 2010 when the two appointments were scheduled Ms Bian believed that Dr Pascall and Dr Watson had agreed that she should work only in adult education. That view was reinforced by the information conveyed to her by Dr Watson in October 2009; and Dr Watson’s medical certificate of 23 December 2009. What was relevant was her perception, and this aligned with the views of Dr Watson, her treating practitioner, someone who had treated her for a number of years, and on whom she relied heavily. That reliance was understandable given her situation as a separated mother, suffering a major depressive disorder, attempting to rehabilitate herself into a position which was commensurate with her interests and talents, and at the same time to vindicate her claims in relation to support for that rehabilitation process.
87. Counsel for Comcare contended that the decision to suspend her compensation was reasonable because the material that the Agency had at the time of the decision was Dr Pascall’s report in December 2009, Dr Watson’s medical certificates and Dr Watson’s apparent acceptance that it was appropriate for Ms Bian to commence primary school teaching. Dr Pascall’s report had indicated primary teaching in conjunction with adult education would be suitable and her letter on 1 November 2010 suggested there were no barriers to Ms Bian teaching at the primary school level. Dr Watson’s medical certificate of 23 December 2009 referred to restrictions ‘as per Dr Pascalls recommendations’, and, despite its ambiguity, this could have endorsed Dr Pascall’s option of primary education. As the rehabilitation team had not heard from Dr Watson, his silence could be interpreted as tacit acceptance of this option.
88. In counsel’s views, therefore, in failing to attend the appointment at Latham primary school, when on the available information, she was medically capable of doing so, Ms Bian ‘failed to attend workplace meetings that had been arranged to discuss suitable duties’. Accordingly she was taken to have refused, without reasonable excuse, to undertake a rehabilitation program provided for her
Excuses
89. The first excuse provided by Ms Bian, summarised in the Agency’s letter of 4 March 2010, related to her health. The objective evidence based on the medical certificates was that Ms Bian was not yet sufficiently fit to return even to modified duties. That embargo was not lifted by Dr Watson until his certificate of 23 February 2010 when he certified her as fit for modified duties. At the time of these events, Ms Lam was not aware that the embargo would be lifted. On that basis she should have been wary about negotiating a work placement for Ms Bian without the approval of any medical provider. The statement in the decision that ‘you have been medically cleared to attend [workplace meetings] by both your medical practitioner Dr Watson and by Occupational Physician, Dr Virginia Pascall’ was misleading. Dr Pascall specifically qualified her recommendations with the requirement that Ms Bian’s health be given the ‘all clear’ before she should return to teaching. Her apparent approval of the program could only be a qualified approval in the circumstances outlined without the agreement of Dr Watson and without more details of the proposed position. Dr Watson had, at that point, also not cleared her medically to commence teaching. In those circumstances, Ms Bian’s expressed concerns about her health had substance
90. The second and fourth excuses were that Ms Bian had a legitimate expectation that any return to teaching would be in the adult sector, and that she had a preference for teaching at that level. That expectation was based on a number of factors. She had experienced problems in the past in dealing with parents in the secondary school system. That was known to the Agency as it was the cause of her compensable condition. She also said she had tried three times to teach in primary schools and had resigned, not continued or requested a transfer, because she felt she was not sufficiently trained to manage the children or their parents. Further, she said these difficulties had occurred when she was well. So any proposal for her to establish a program and then teach in the primary school setting when she was still recovering from her condition would, in Ms Bian’s opinion, threaten her health.
91. Her discussions with her treating practitioner had led her to believe that both Dr Watson and Dr Pascall favoured teaching at the tertiary level. Dr Watson’s belief was based on his conversation with Dr Pascall, and it is clear from his clinical notes that he recalled no discussion of primary school teaching in the conversation. Dr Pascall, in the hearing, said she could not be certain that primary teaching had been discussed in the conversation with Dr Watson and that the focus of the conversation had been teaching adults. She also acknowledged that the idea of teaching at the primary school level had been her independent idea and she had not explored this option with Ms Bian at the interview in October 2009 or in any further communication with her. Dr Watson had believed that Dr Pascall’s recommendations were solely about teaching adults and he had conveyed this understanding to Ms Bian. That was consistent with his clinical notes and his medical certificate. Ms Lam's communications with Dr Pascall in November 2009 had also focused solely on adult teaching and this was reflected in Ms Lam's own notes of those conversations.
92. Further, Ms Bian’s conversations with Ms Lam in November 2009 related solely to Ms Lam’s efforts to find suitable work for her in the tertiary sector. Until the conversation between the two on 25 January 2010, Ms Bian had no inkling that any other option was contemplated. The Tribunal also accepts that Ms Bian had not seen a copy of Dr Pascall’s report until at least 5 March 2010. She was not advised of its existence by Dr Watson since it was apparent at the hearing that he had not been aware that his practice had a copy. As far as he was concerned he did not see the report until 2 February 2011.
93. These findings mean that Ms Bian had no means of knowing that Dr Pascall’s report suggested that a possible option was a combination of teaching at tertiary and primary levels. In any event, the proposed work placement was solely in a primary school, so even if Ms Bian had seen the report, her expectations would have been that she might slowly be reintroduced to teaching with some classes where she taught adults, such as at CIT, with perhaps some supplementary teaching at a primary school level.
94. In these circumstances Ms Bian’s reasonable perceptions were that the work being sought for her would be work teaching adults. Ms Bian was also aware that although teachers in the ACT are employed simply as classroom teachers, the Agency does attempt to meet preferences expressed by the teachers on their permanent staff. She had an expectation, based on her conversations with Ms Lam, that her rehabilitation support team was seeking a position within that sector for her and, given her experience over the previous years with primary and secondary teaching, it was reasonable for her to expect that the Agency would view her wishes sympathetically.
95. The remaining excuse was that Ms Bian said it was ‘very stressful to teach Chinese in primary in ACT even to a normal primary trained teacher’. Ms Bian said she did not have ‘the necessary skills to work effectively in a primary school’ and that ‘I find that the behaviour of primary school children is very different to that which I would expect of children in China. I have found this to be a very large cultural differences [sic] and a difference with which I would not cope.’ Dr Pascall also said in her report: ‘without a doubt there were significant cultural and ethnic issues that were in play in 2007’. So Ms Bian’s concerns about teaching what she regarded as more unruly and less respectful students might have meant she faced difficulties not experienced by an Australian teacher.
96. A warning flag should have been raised with the Agency when Ms Bian resigned from her position at Mawson, requested transfer from one other primary school and did not return to the other, and had then been awarded compensation for the impact of events during her teaching in the secondary sector.
97. Against this, in her efforts to obtain a permanent position in the period between 1995 and 2005, and to surmount her probation year in 2006, Ms Bian had claimed that she was equipped to teach at all levels. That is not surprising in the circumstances., In addition, the reasonableness of this excuse is diminished since a teacher in the ACT is expected to be equipped to teach across subjects and across different levels of education. Permanent teachers are simply classified as ‘classroom teachers’[16] and they are not allocated to a particular level of teaching within the system, although they can express a preference which would be taken into account, if possible, in allocating teaching positions. So, despite cultural differences, Ms Bian could be no exception to the requirement to meet the standards of teaching required of a competent teacher.
[16] ACT Department of Education and Training Teaching Staff Union Collective Agreement 2007-2009
98. In summary, since Ms Bian’s health could, on the evidence, be affected by the proposal and her expectations were reasonably based that her preference for adult education was being taken into account and was the sole sector under active consideration, the Tribunal finds that on balance her excuses were reasonable.
Responses
99. The remaining response to Ms Bian’s replies were twofold:
· The proposed duties have been reviewed as appropriate and suitable by a specialist Occupational Physician Dr Virginia Pascall [who] did not limit your placement to CIT and ANU, and
· there is no medical reason for you not attending meetings to discuss your rehabilitation program.
100. The first of these replies has been discussed earlier. So stated it is not an accurate reflection of Dr Pascall’s views. She recommended a combination of teaching adults and possibly primary school children, not solely children at the primary level. The recommendation was premised on Ms Bian being cleared medically as fit to teach.
101. The suggestion that attending a meeting to discuss the program was not medically contraindicated is superficially correct. However, the argument fails to take account of Dr Watson’s medical certificate that she was not then fit for modified duties. Of more concern was the implication that simply attending a meeting was not an onerous demand and was accordingly reasonable. On its face that is correct, but Ms Bian was both aware of background information regarding teaching Mandarin at Latham primary school, and the reasons the program had been inactive for nearly two decades. Also, given the duty statement which was provided to her, there was clearly an expectation that the meeting was not about the suitability of the proposal so much as an opportunity to refine the proposal on the expectation that Ms Bian would participate. Her alarm at this prospect was, therefore, understandable.
102. The Tribunal notes that Ms Bian’s behaviour has not been as cooperative at all times as is needed under her rehabilitation program. On balance, however, the Tribunal finds that the excuses provided by Ms Bian were reasonable and that her compensation payments should not have been suspended. The Tribunal orders that the rehabilitation program be reinstituted and that payments recommence.
I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Professor R Creyke, Senior Member.
Signed: .................[sgd]............................
C. Baillie, AssociateDate of Hearing 10 - 11 March 2011
Date of Decision 11 April 2011Solicitor for the Applicant Brian Hatch
Brian Hatch Solicitor
Counsel for the Applicant Wayne Sharwood
Solicitor for the Respondent Amanda Danti
Dibbs Barker
Counsel for the Respondent Jane Godtschalk
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