Gordon v St Vincent's Hospital Sydney Limited
[2023] FCA 1188
•6 October 2023
FEDERAL COURT OF AUSTRALIA
Gordon v St Vincent’s Hospital Sydney Limited [2023] FCA 1188
File number(s): NSD 834 of 2021 Judgment of: ABRAHAM J Date of judgment: 6 October 2023 Catchwords: HUMAN RIGHTS – Disability discrimination in employment – where employment terminated – where pleadings deficient – whether respondent failed to make reasonable adjustments for employee – whether any failure to make reasonable adjustments had the effect that the applicant was treated less favourably constituting direct disability discrimination.
HELD – claims not established – application dismissed.
Legislation: Disability Discrimination Act 1992 (Cth) s 4, 5(2), 11, 15(2)(a), 15(2)(c), 21A, 21B
Work Health and Safety Act 2011 (NSW)
Cases cited: Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2021] FCAFC 121; (2021) 287 FCR 388
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279
Berry v State of South Australia [2017] FCA 702
Chircop v Technical and Further Education Commission [2022] FCA 1015
Deam v Starlight Children’s Foundation Australia [2023] FCA 259
Izzo v State of Victoria (Department of Education and Training) [2020] FCA 770
Forbes v Australian Federal Police [2004] FCAFC 95
Munday v Commonwealth of Australia (No 2) [2014] FCA 1123; (2014) 226 FCR 199
Ponraj v Wycombe Services Pty Ltd [2023] FCA 118
Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92
Sievwright v State of Victoria [2012] FCA 118
Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247
State of New South Wales (Department of Justice - Corrective Services) v Huntley [2017] FCA 581
Varasdi v State of Victoria [2018] FCA 1655
Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220
Walker v State of Victoria [2011] FCA 258; (2011) 279 ALR 284
Wilson v Britten-Jones (No 2) [2020] FCA 1290
Winters v Fogarty [2017] FCA 51
Zhang v University of Tasmania [2009] FCAFC 35; (2009) 174 FCR 366
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 270 Date of hearing: 11-14 April 2023, 25 May 2023 Counsel for the Applicant: Ms L Andelman Solicitor for the Applicant: Australian Nursing and Midwifery Federation – NSW Branch Counsel for the Respondent: Mr M Seck Solicitor for the Respondent: Bartier Perry Lawyers ORDERS
NSD 834 of 2021 BETWEEN: ROSEMARY GORDON
Applicant
AND: ST VINCENT'S HOSPITAL SYDNEY LIMITED
Respondent
ORDER MADE BY:
ABRAHAM J
DATE OF ORDER:
6 OCTOBER 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the costs of the respondent to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ABRAHAM J:
The applicant, Ms Rosemary Gordon, is a registered nurse (RN) whose employment was terminated by St Vincent’s Hospital Sydney Limited (St Vincent’s) on 13 July 2021.
On 24 June 2021, the applicant made a complaint to the Australian Human Rights Commission alleging unlawful discrimination on the ground of disability in employment, which was terminated on 22 July 2021. On 18 August 2021, the applicant commenced proceedings in this Court.
In summary, the applicant alleges that St Vincent’s failed to provide her with reasonable adjustments to carry out the particular work for which she was employed, which led to discrimination in the terms or conditions of her employment and the termination of her employment because of, or for reasons which included, that she had a disability arising from three physical conditions: contact dermatitis, a left knee injury and a right arm/humerus injury. The applicant contends that this conduct contravened ss 15(2)(a) and 15(2)(c) of the Disability Discrimination Act 1992 (Cth) (DD Act).
For the reasons below, the application is dismissed.
Legal principles
Before addressing the evidence in any detail, it is appropriate to first address the legal principles relevant to the applicant’s claim.
Section 15(2) of the DD Act relevantly provides that it is unlawful for an employer to discriminate against an employee on the ground of the employee’s disability, in the terms or conditions of employment that the employer affords the employee: s 15(2)(a); or by dismissing the employee: s 15(2)(c). Under section 5(2) of the DD Act, “discriminates” will include, relevantly, where an employer “does not make, or proposes not to make” reasonable adjustments for an employee: s 5(2)(a); and the failure to make the reasonable adjustments has, or would have, the effect that the employee was treated less favourably than a person without the disability would be treated in circumstances that are not materially different: s 5(2)(b).
There is no issue that the applicant suffers from a disability within the meaning of s 4 of the DD Act.
Relevantly, in order to succeed in her claim in unlawful direct discrimination, the applicant must establish that St Vincent’s’ failed to make the reasonable adjustments, which has, or would have, the effect that the applicant was, because of her disability, treated less favourably than a person without the disability (the comparator) would be treated in circumstances that are not materially different. This requires identifying and determining:
(1)the alleged reasonable adjustments that St Vincent’s failed to make and the alleged effect of failing to make the reasonable adjustments;
(2)the alleged circumstances attributed to an actual comparator or hypothetical comparator in the same or not materially different circumstances and the alleged less favourable treatment of Ms Gordon relative to that comparator; and
(3)if less favourable treatment is established, whether the less favourable treatment of Ms Gordon relative to the comparator was because of her disability.
As addressed below, there is also a preliminary question of whether Ms Gordon has established the term or condition of her employment the basis of her claim under s 15(2)(a) of the DD Act.
Reasonable adjustments
It is appropriate to first consider the concept of a reasonable adjustment.
That is defined in the DD Act in the following way: “an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person”: s 4(1).
Unjustifiable hardship is then defined as having the meaning in s 11 of the DD Act, which is as follows:
11Unjustifiable hardship
(1)For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:
(a)the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
(b) the effect of the disability of any person concerned;
(c) the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;
(d)the availability of financial and other assistance to the first person;
(e)any relevant action plans given to the Commission under section 64.
Example:One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.
(2)For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.
As to the meaning of reasonable adjustments, in Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 (Watts), Mortimer J, as her Honour then was, observed at [22]-[24]:
[22]Thus, s 4 has effect as a deeming provision. The word “adjustment” is left undefined by the statute and is to be given its ordinary meaning as “an alteration or modification”: Oxford English Dictionary (online edition). However, unlike other aspects of the DDA (see, for example, s 6) the statute does not leave it to the discriminator in the first instance and the Court in the second instance to determine whether an adjustment is “reasonable”. Although the word “reasonable” is used, it has no qualitative character in its context. It is simply part of a term defined by legislative declaration of what is outside the term. All that Parliament declares to be outside the term is a modification or alteration which imposes unjustifiable hardship on a person, taking into account the considerations applicable to identifying hardship of that nature, which are set out in s 11 of the DDA.
[23]To what does the adjustment relate? By s 5(2), it is made “for” the person with a disability. It is not made “to” the position the person occupies. It is not made “to” the equipment a person uses. In the context of discrimination at work in Div 1 of Part 2 of the DDA, it is an alteration or modification “for” the person, which operates on the person’s ability to do the work she or he is employed or appointed to do. The adjustment is to be enabling or facultative. There is, in my opinion, no reason in the text, context or purpose of s 5(2), read with s 4 and within the DDA as a whole, to construe the word “adjustment” in a way which might arbitrarily limit the kinds of modifications or alterations required to enable a disabled worker to perform his or her work. Technology changes and advances at an increasing pace and disabled people can be the beneficiaries of such changes and advances. The technological advance which enables Professor Stephen Hawking to compose text and communicate orally through cheek movements detected by an infrared switch mounted on his spectacles is but one well-publicised example of an “adjustment” that, a decade or two ago, may have been little more than a theory.
[24]Similarly, the range of disabilities covered by the DDA, evident from the definition of “disability” in s 4 (some with clear physical manifestations and some without), means that the range of modifications for a particular person may be very specific to that person. Two individuals may have the same “disability” but how that “disability” manifests itself, and the impact it has on an individual’s capacity to work or access services or education, may vary widely. Breadth and flexibility in the meaning of the word “adjustment” is to be expected in a statute which recognises and seeks to protect (within the legislative choices made by Parliament) the dignity and rights of disabled people as individuals. Where the disability is psychological, “adjustment” must be construed in a way which will ensure the same level of protection under the DDA to those with this kind of disability as to those with any other disability. Ultimately then, so long as it is a modification or alteration “for” a person with a disability, the DDA says nothing about how specific or non-specific the adjustment must be. An adjustment “for” a person may involve only technology, or it may involve only human interactions, or something in between. An adjustment “for” a person may change over time, and may need to be flexible and adaptable. Much will depend on the particular disability and the particular individual, together with the circumstances in which the adjustment must operate. In order for s 5(2) of the DDA to provide, insofar as it is intended to, substantive equality for all individuals with disabilities, where those disabilities have different impacts on different people, it is important that there be no rigid categorisation or stereotyping of a concept such as an “adjustment”.
Relevantly for this case, her Honour went on at [25] and [27]:
[25]There is one relevant qualification to the breadth of what can constitute an “adjustment” for the purposes of the DDA, as Australia Post submitted. Even taking into account the potential need for flexibility and adaptations, the adjustment must be sufficiently identifiable so as to enable the alleged discriminator (and the Court if need be) to determine whether making the adjustment will impose unjustifiable hardship on the discriminator. Otherwise, the exception in s 21B could be frustrated. For the reasons I express below at [45], this issue also arises under s 21A(1) in respect of the inherent requirements exception. The level of specificity required will be a factual question in each case.
….
[27]The somewhat absolute nature of the definition of reasonable adjustment has tangible consequences for potential discriminators. There is no room in the operation of s 5(2) for a discriminator, or a Court, to assess conduct, or modifications, by reference to notions of reasonableness. The statute removes that capacity. Unless a modification involves unjustifiable hardship, it will by operation of s 4 be a reasonable adjustment and the discriminator must make it “for” the person, to avoid the consequences s 5(2) (read with other provisions in the DDA) might otherwise impose. The legislative choice about what is “unreasonable” for the purposes of this scheme is expressed in the inherent requirements exception, and in the concept of unjustifiable hardship. …One consequence is that what constitutes “hardship” and the circumstances in which it might be “unjustifiable” may be broader than if the statute used reasonableness as a criterion of liability.
Based on Watts and subsequent cases, it is clear that an adjustment is an alteration ‘for’ the person, “which operates on the person’s ability to do the work she or he is employed or appointed to do” but does not require an adjustment to the particular work she was required to perform or the position that the person occupies: Watts at [23]-[24]; Munday v Commonwealth of Australia (No 2) [2014] FCA 1123; (2014) 226 FCR 199 (Munday) at [146]-[148]. The adjustments are intended to be enabling or facultative to assist the employee perform the particular work rather than an end in themselves: Watts at [23]; Munday at [147]. More than one adjustment may be necessary, and more than one option may be available: Watts at [26]. It may involve the adjustments being implemented and being effective over a period of time to allow time for an employee to adapt, and gradually return to full capacity: Watts at [57].
The adjustment must be sufficiently identifiable as to enable the employer and, if required, the Court to determine whether making the adjustment will impose unjustifiable hardship on it, within the meaning of the DD Act: Watts at [25] and see State of New South Wales (Department of Justice - Corrective Services) v Huntley [2017] FCA 581 at [149]; Winters v Fogarty [2017] FCA 51 at [65]-[67]. The material facts comprising the reasonable adjustments must be pleaded and particularised: Izzo v State of Victoria (Department of Education and Training) [2020] FCA 770 (Izzo) at [51]; Varasdi v State of Victoria [2018] FCA 1655 at [11]-[13], [19].
Comparator
Section 5(2)(b) requires that the applicant is treated less favourably compared to an actual or hypothetical comparator without her disability in the same or not materially different circumstances. The applicant has not pleaded an actual comparator, and accordingly, must prove the unlawful discrimination against a hypothetical comparator: Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 (Purvis) at [113]-[114] and [223]-[228]; Forbes v Australian Federal Police [2004] FCAFC 95 (Forbes) at [56]-[57]. It is therefore necessary to construct a hypothetical comparator to determine whether there has been less favourable treatment of the applicant. In making the comparison, the circumstances that are the same or not materially different include all of the objective features which surround the treatment of the disabled person by the discriminator: Purvis at [14], [224]; Forbes at [56]-[57]; Zhang v University of Tasmania [2009] FCAFC 35; (2009) 174 FCR 366 at [66]; see also Chircop v Technical and Further Education Commission [2022] FCA 1015 (Chircop) at [147]; Wilson vBritten-Jones (No 2) [2020] FCA 1290 at [118].
I accept the respondent’s submission that the issues to be determined in this application are also to be considered in the context of the other legal obligations imposed on St Vincent’s by, inter alia, the relevant statutory scheme regulating work health and safety: see the Work Health and Safety Act 2011 (NSW). I note in that context that St Vincent’s has a duty to ensure, so far as is reasonably practicable, the health and safety of the applicant and her colleagues, and the applicant has a duty to take reasonable care of her own health and safety and that of others in the workplace.
As Gleeson CJ observed in Purvis at [7], it is important to maintain coherence in the law by ensuring that the obligations arising from anti-discrimination legislation are construed having regard to the functions, powers and responsibilities of the alleged discriminator: and see Sievwright v State of Victoria [2012] FCA 118 at [207]; Walker v State of Victoria [2011] FCA 258; (2011) 279 ALR 284 at [55]. The respondent’s conduct can only be evaluated fairly in light of understanding those functions, powers and responsibilities: Purvis at [7].
Causation
The applicant must also establish a causal connection between her disabilities and the alleged unlawful discrimination: Munday at [59]; Chircop at [139]. The disability must be a basis or reason for the conduct of the discriminator: Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247 at [23].
The exceptions
The respondent pleads both s 21A and s 21B of the DD Act, which provide exceptions to the prohibitions in s 15(2)(a) and (c).
Section 21A is as follows:
21A Exception—inherent requirements
Inherent requirements
(1) This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discrimination relates to particular work (including promotion or transfer to particular work); and
(b) because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.
(2) For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:
(a) the aggrieved person’s past training, qualifications and experience relevant to the particular work;
(b) if the aggrieved person already works for the discriminator—the aggrieved person’s performance in working for the discriminator;
(c) any other factor that it is reasonable to take into account.
(3) For the purposes of this section, the aggrieved person works for another person if:
(a) the other person employs the aggrieved person; or
(b) the other person engages the aggrieved person as a commission agent; or
(c) the aggrieved person works for the other person as a contract worker; or
(d) the other person and the aggrieved person are members of a partnership; or
(e) both of the following apply:
(i) the other person is an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation;
(ii) the aggrieved person is a member of that profession, carrying on that trade or engaged in that occupation.
…
Relevantly, the scope of this provision is limited to claims against s 15(2)(a) and (c) of the DD Act, and not s 15(2)(b) and (d), other than discrimination in determining who should be offered promotion or transfer. I return to the topic of “particular work” referred to in s 21A below.
Section 21B is as follows:
21B Exception—unjustifiable hardship
This Division does not render it unlawful for a person (the discriminator) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.
In Watts, Mortimer J said of these provisions at [50]:
The interaction between the prohibitions against unlawful discrimination (on either of the bases within s 5) and the two exceptions of inherent requirements and unjustifiable hardship can be summarised in the following way. In all circumstances in which Div 1 of Part 2 would otherwise make discrimination at work unlawful, the “discriminator” (usually an employer but not necessarily) will have available the exception of unjustifiable hardship, but will bear the burden of proving the exception applies. In circumstances which do not involve the denial of a benefit, the limiting of access to opportunities for promotion and the like, or the imposition of any other detriment against an incumbent worker, the “discriminator” (usually an employer but not necessarily) will have available the exception of inherent requirements, but will bear the burden of proving its existence. The inherent requirements exception will apply to selections for promotion or transfer more generally. That is the purpose of the words in brackets in s 21A(1)(a), which are intended to cover the same field as the words at the end of s 21A(4). Broadly, in my opinion, the inherent requirements exception is intended to preserve for employers the entitlement to appoint, retain, promote or transfer employees who can fulfil core aspects of their employment contract.
That is, in certain circumstances where Div 1 of the DD Act would otherwise make discrimination at work unlawful, the “discriminator” will have available the exceptions of unjustifiable hardship and inherent requirements, but will bear the burden of proving the exception applies: Watts at [50]; and see s 11 in respect to unjustifiable hardship, extracted at [12] above.
As referred to above at [12] and [14] (citing Watts), given the onus is on the respondent to establish unjustifiable hardship, the onus is on the applicant to first establish that any adjustment(s) were identified by her with sufficient particularity to enable s 21B to have application. I return to this topic below at [186]-[201].
I note that in relation to s 21A, the respondent submitted that the onus was on the applicant to exclude the application of the provision, though it pointed to what it said was divergent opinion on the matter. It was submitted that the observations of Mortimer J in the passage recited above are obiter because the inherent requirements defence was not available in that case. It submitted that in Huntley, Perry J at [177] and [186], proceeded on the basis of the obiter comments in Watts. However, although that may be so, the statements in Huntley are not obiter. Moreover, the respondent submitted that the statement of Charlesworth J in Berry v State of South Australia [2017] FCA 702 (Berry) at [27], that s 21A is not a defence, but a defining provision as to what amounts to discrimination, is to the contrary effect.
That submission places too much work on the observation in Berry. The respondent accepted that Charlesworth J did not use the language of onus of proof. In Berry, there appears to have been no discussion or consideration of the issue of who bore the onus in relation to s 21A. Indeed, Charlesworth J also makes reference at [26] to the fact that “circumstances would not constitute unlawful discrimination if the requirements of s 21A of the DD Act are satisfied”. Given the terms of s 21A, that statement could only be referring to a discriminator establishing the requirements. That the DD Act does not refer to onus in s 21A is not decisive. I note also s 21B is in the same terms, yet s 11(2) makes clear the onus is on the respondent. Considering the text of s 21A in context, given its purpose, I am satisfied that the onus is as Mortimer J opined. That said, this only serves to highlight the importance of the obligation on an applicant to identify the reasonable adjustments with sufficient particularity to enable a respondent to determine whether s 21A applies, and if so, to enable it to lead necessary evidence to establish the requirements.
Evidence
A significant body of the evidence compromised contemporaneous business records and correspondence. In addition, the documentary evidence included medical records and reports. Those documents were admitted without objection.
The applicant read affidavits (subject to objections) of the following witnesses:
(a)Ms Rosemary Gordon (affidavits affirmed 2 June 2022, 31 October 2022, 24 March 2023);
(b)Dr Christopher Canaris (affidavit dated 28 October 2022);
(c)Ms Joanne Purdue (affidavits affirmed 1 June 2022 and 31 October 2022); and
Each of those witnesses was cross-examined.
The applicant also read the affidavit of Ms Nicola Maher Boyle, affirmed 2 June 2022. A number of documents were also tendered, including a bundle of documents that had been produced by St Vincent’s in response to a subpoena.
The respondent read affidavits (subject to objections) of the following witnesses:
(a)Mr Rio Pun (affidavit affirmed 21 July 2022);
(b)Dr Andrew Keller (affidavit affirmed 22 August 2022);
(c)Mr Kenneth Peter Denton Webb (affidavit affirmed 21 June 2022);
(d)Ms Cassandra Amy Brown (affidavit affirmed 15 July 2022); and
(e)Ms Ji-Su Paik (affidavit affirmed 25 August 2022).
Each of these witnesses was cross-examined. Records of St Vincent’s were exhibited to various of these affidavits.
Business records of St Vincent’s formed a significant body of the evidence. The records contain, inter alia, a number of file notes recording discussions between Ms Gordon and various employees of St Vincent’s. I accept the respondent’s submission that there is no reason to doubt the reliability of the contents of the records and that in relation to the file notes of discussions, they are generally supported by contemporaneous emails or letters which followed the conversations.
The applicant addressed in her reply affidavit limited aspects of the file notes in respect to conversations she had with Ms Dyer, Mr Yates, Ms Smith and Ms Ode. Although the applicant takes issue with some limited aspects, in large part, that evidence was directed to explanations for why she said what she did, and her understanding of what was occurring.
I will return to my assessment of the witnesses below.
It assists to first provide a chronology of events, which in large part is taken from the business records and is uncontentious.
Chronology of events
St Vincent’s is a primary and tertiary referral hospital and research facility in New South Wales.
In or around May 1995, St Vincent’s advertised a vacancy for the position of RN working in the renal/urology unit on night shift. Ms Gordon applied and interviewed for that role, then commenced employment as a RN on the renal/urology unit at St Vincent’s on 22 June 1995.
Ms Gordon began caring for vascular surgery patients in or about February 1996. She subsequently transferred to: the haematology unit in 1998; a different physical building in or about 2001; the Xavier 9 South Ward caring for immunology/drug and alcohol patients in 2010 or 2011; and the immunology/drug and alcohol unit in Xavier 8 North Ward (X8N) in 2015.
Ms Gordon gave evidence that in or around 2015, she was told during a meeting with Geoff Yates (X8N Nurse Unit Manager, St Vincent’s) and Anneliese Oed (Recovery Coordinator, St Vincent’s) that she could use a product called Spirigel in the staff bathroom. Ms Gordon also gave evidence that sometime later she asked Mr Yates whether she could use Spirigel all the time in lieu of Microshield hand wash and alcoholic hand rub, using plastic dispensers she had purchased. She stated that Mr Yates did not accept this.
On 13 March 2015, Ms Gordon lodged a workers’ compensation claim in relation to an aggravation of her bilateral hand dermatitis. The date of injury was reported as 13 March 2015. Ms Gordon saw Dr Edmund Lobel (Occupational Dermatologist) in the week commencing 5 May 2015. Dr Lobel then wrote to Dr Lucinda Berglund on 20 May 2015, confirming that Ms Gordon’s nursing work was a substantial contributing factor of her hand dermatitis (although not the total cause) via cumulative irritant contact dermatitis and allergic contact due to Microshield Moisturiser. Ms Gordon continued her pre-injury duties, and on 26 June 2015 the workers’ compensation claim was closed.
Ms Gordon gave evidence that, in 2016, she noticed that the floor surface on X8N “had become dull and had a stickiness to it”. She stated that sometimes when she walked the toe of her shoe became stuck on the floor surface, which caused her to jar her knee and trip slightly.
On 30 November 2016, Ms Gordon lodged a workers’ compensation claim in relation to an injury of her left knee. The date of injury was reported as 8 October 2016. Ms Gordon gave evidence that, around this time, she lodged an incident report and discussed the floor surface with various St Vincent’s staff members, including Recovery Coordinators. On 28 April 2017, Professor Warwick Bruce (Clinical Professor) wrote to Dr Shanthini Ilanko (General Practitioner), opining that Ms Gordon had osteoarthritis of the medial compartment of her left knee. He also noted that the floor at work was “slightly sticky” and “catching her foot”. Ms Gordon returned to her pre-injury duties and, according to the file note taken by Patricia Aran De Jesus (Recovery Team, Work Health and Safety, St Vincent’s), on 2 May 2017 Ms Gordon said that she was happy for the claim to be closed. The claim was confirmed to be closed on 5 June 2017.
On 17 July 2017, Ms Gordon fell on the street after leaving work and sustained a fracture to her humerus (right upper arm) and commenced a period of paid sick leave. On 3 and 9 November 2017, Mr Yates and Rochelle Smith (Recovery Coordinator, St Vincent’s) emailed Ms Gordon attaching fitness to work documentation and requesting that she arrange a medical review to obtain further information regarding her prognosis and ability to return to her substantive role. Ms Gordon replied to Mr Yates on 6 November 2017 and, inter alia, asked whether an administrative position was available for her. At that time she was certified unfit for work up to and including 24 November 2017.
On 12 November 2017, Ms Gordon emailed Ms Smith, stating that she did not think the Physical and Sensory Demands listed on the Job Demands checklist had been rated accurately. She gave the example that pushing/pulling was “a frequent activity i.e. showering/toileting of patients on commodes, bed moves, moving chairs/lockers out of the way, moving patients’ luggage out of the way”.
On 22 November 2017, Ms Gordon telephoned Ms Smith. Ms Smith’s file note of that conversation records that Ms Gordon stated that: she was unclear why she could not be provided with administrative type duties; given her role is very physical, she did not want to return to work and worsen her condition; the job demands checklist under-estimated the physical nature of her role; and while she did not want to be injured, the break had been nice. During cross-examination, Ms Gordon gave evidence that she did not recall saying words to that effect.
On 25 November 2017, Dr Steven Tongson (General Practitioner) wrote, in a medical certificate, that Ms Gordon was suffering from an injury and would be unfit for work from 25 November 2017 to 25 December 2017 inclusive.
On 28 November 2017, the medical certificate of Dr B Jang (Orthopaedic Registrar) was provided to St Vincent’s, advising that Ms Gordon was able to return to light duties as of 3 January 2018 and full duties as of March or April 2018 at the earliest.
A medical certificate from Dr Tongson, dated 28 December 2017, stated that Ms Gordon would be unfit for her usual duties from 26 December 2017 to 26 January 2018 inclusive, but was fit for restricted administrative duty.
Dr Ilanko provided a medical certificate on 25 January 2018, which stated that Ms Gordon would be fit to work suitable administrative duties between 27 January 2018 and 27 February 2018.
On 5 February 2018, Employee Support Plan 1 was finalised for Ms Gordon and she commenced work at St Vincent’s Transport Department, performing administrative duties. The document covered the period 27 January 2018 to 27 February 2018, was signed by Ms Gordon and stated that “[s]uitable duties will be offered for a limited period only, and cannot be offered indefinitely”.
On 27 February 2018, Dr Tongson wrote, in a medical certificate, that Ms Gordon would be unfit for usual work from 27 February 2018 to 27 March 2018, but was fit for restricted administrative duties.
On 28 February 2018, Employee Support Plan 2, covering 27 February 2018 to 27 March 2018, was finalised for Ms Gordon.
On 26 March 2018, Mr Yates emailed Ms Gordon, requesting the following:
…
As you are seeing the fracture clinic tomorrow, regarding your injury and as discussed today on the phone together, we need some documentation from them that can clarify;
1. What actions are currently being taken to help resolve/improve your injury (i.e physio/OT etc).
2. An estimate of how long you may be unable to perform your duty as an RN pre injury.
3. What (if any) restrictions you currently have in terms of lifting/pulling/moving etc. This may require another thorough medical assessment which you will need to organise as soon as possible.
We need to continue to work together to optimise your return to work time frame and if there is anything I can do to assist please don’t hesitate to contact me.
…
On 27 March 2018, Dr A Chang wrote a medical certificate, stating that Ms Gordon was fit to return to usual work activities “as tolerated”. On the same date, Employee Support Plan 3 was finalised for Ms Gordon, covering the period 27 March to 4 May 2018.
On 5 April 2018, Mr Yates spoke to Ms Gordon over the phone. His file note records that Ms Gordon did not appear motivated to return to work in the ward.
On 6 April 2018, Kirsty McLeod (Medical Stream Manager, St Vincent’s), Mr Yates and Ms Smith met with Ms Gordon. The file note recorded by Ms Smith states that Ms Gordon: gave consent to liaise with her doctor to clarify whether she had any specific restrictions on her return to the ward; felt unsure about returning and was hesitant about her ability to lift, push, pull and transfer patients; advised that she may still be recovering for another 12 months; and appeared reluctant to return. In cross-examination, Ms Gordon denied that the file note was an accurate record. She denied saying words to the effect that she felt unsure about returning to the ward. However, she agreed that at the time she had reasons for not wanting to return to X8N. Ms Gordon gave evidence that she was reluctant to go back to the ward if she was expected to perform her full range of duties because she “knew that nothing had been done to fix the floor surface” and “because of the heavy nature of the work”.
On 16 April 2018, Ms Oed recorded in her file note of a telephone call with Ms Gordon that Ms Gordon had stated that: her treating practitioner refused to complete the questionnaire provided by St Vincent’s because it related to workers’ compensation; her knee had been “playing up again”, with the injury being due to the sticky floor on the ward; she bought shoes with a rocker sole (MBT shoes) as she could not walk on the sticky floor, but linked two further falls to those shoes; she felt she was “not able to return to working on the ward due to her shoulder, knee and dermatitis”; and she thought St Vincent’s would find another job for her within the hospital. Ms Gordon stated, in cross-examination, that she did not recall this telephone call. The file note also records that Ms Oed and Ms Gordon discussed that Ms Gordon had a responsibility to check the online job board and apply for roles.
On 26 April 2018, Ms Gordon spoke to Ms Smith. Ms Smith’s file note of that conversation records that Ms Gordon stated that: she felt that she was not able to return to working on the ward due to her shoulder, knee and dermatitis; she thought that St Vincent’s would find another job for her within the hospital; and she could not ever return to the ward due to her knee and dermatitis. In cross-examination, Ms Gordon did not recall these details of the conversation, but did not dispute them. The file note also records that Ms Gordon was told that St Vincent’s would “need something in writing from her GP” regarding her knee and dermatitis.
On 27 April 2018, Ms Gordon met with Ms Oed. Ms Oed’s file note of that meeting records that Ms Gordon stated that: she did not think she could go back to X8N because, inter alia, she was concerned she would not be able to do the frequent hand washing required due to her dermatitis; she was concerned her dermatitis would flare up if she returned to the ward; she had ongoing issues with her knee and was concerned a return to the ward would cause knee issues; she wanted another role; and she would like to work in mental health as it involved less hand washing. The file note also records that Ms Gordon was: advised of the cessation of suitable duties in the Transport Department effective 4 May 2018, on the basis that suitable duties had been supported for three months for a non-work related condition to assist a return to her pre-injury role; and asked to provide further medical advice from her treating doctors.
A letter from Ms Oed to Ms Gordon of the same date reiterates this information, stating that: “[t]he current certificate states that you are fit to undertake your pre-injury duties as tolerated and in order to provide you with safe work we need to understand the medical advice in relation to ‘as tolerated’”; and “you have advised myself on 16 April that you did not believe you were going to be able to return to your substantive position. If this is the case we need that confirmed by medical opinion”.
During cross-examination, Ms Gordon accepted that she said during the meeting on 27 April 2018 that she: did not think it would be wise of her or a good idea to go back to X8N; had concerns about frequent hand-washing and use of alcohol-based hand rub if she did return; and was concerned that returning to work would aggravate her knee. Ms Gordon also gave affidavit evidence that: she did not think returning to the ward would be a good idea because of problems with the floor and with her arm; and Ms Oed responded with words to the effect that Ms Gordon should take her accumulated leave and apply for positions in some of the outpatient drug and alcohol treatment units where the duties would be less physically demanding. Ms Gordon further detailed in the letter she sent to Ms Thornton on 7 September 2020 (see [117] below) that she did not think returning to X8N was a good idea due to the floor surface and because WHS did not want her to wear the MBT shoes any longer, meaning she would have to continue going to work and damaging her knees.
On 29 April 2018, Ms Gordon applied for a position in St Vincent’s casual pool.
On 2 May 2018, Dr Ilanko stated in a medical certificate that Ms Gordon was “suffering from chronic dermatitis”.
On 4 May 2018, Ms Gordon’s administrative duties in the St Vincent’s Transport Department ceased.
On 10 May 2018, Ms Smith telephoned Ms Gordon. Ms Smith’s file note of that conversation records that she told Ms Gordon that St Vincent’s did not have sufficient evidence to make a decision regarding her ability to return to work for the dermatitis, shoulder or knee condition. It also records that she explained in further detail that, in circumstances where Ms Gordon was reporting three conditions preventing her return to work: the medical certificate of 2 May 2018 regarding dermatitis did not comment on fitness for work; the medical certificate regarding her fractured humerus stated that she could return to work “as tolerated” (and no clarification was provided in response to the request made by St Vincent’s); and St Vincent’s did not have anything in relation to her knee. Further, it records that Ms Smith explained to Ms Gordon that there was not currently appropriate work available, and where she was off work because of non-work related conditions, she could request personal leave given she could not fulfil her normal role requirements. Ms Smith followed this conversation up by email, attaching the updated questionnaire requiring completion by her doctor by 18 May 2018. Ms Gordon gave evidence in cross-examination that she did not recall this telephone conversation.
On 3 June 2018, Dr Ilanko provided the requested medical information to St Vincent’s. Dr Ilanko’s responses were as follows:
1.Is Ms. Gordon currently fit to undertake the inherent requirements of her position as a Registered Nurse as outlined in the attached Position Description and Job Demands Checklist.
Fractured Humerus Pain in her shoulder while she has to lift and transferring pts. Dermatitis Constant washing causing contact dermatitis. Knee Walking up & down & long standing causing pain. 2.The latest medical certificate states that Ms. Gordon can return to her pre-injury role “as tolerated”. Are there any specific work restrictions or workplace modifications required on return to the substantive role to assist a graded return to clinical work? E.g. lifting/pulling/pushing, transferring patients etc.
Fractured Humerus Requires assistance with lifting, pulling and pushing while transferring pts. Dermatitis Reduced hand washing Knee Less walking & standing 3.If restrictions / modifications apply on return to the substantive position, please outline the period of time these restrictions will be required?
Fractured Humerus Not known Dermatitis Not known Knee Not known 4.Please outline the prognosis: When do you anticipate that Ms. Gordon will receive a full medical clearance for a return to her substantive role, including a timeframe for full medical clearance?
Fractured Humerus N/K Dermatitis N/K Knee N/K 5.Any additional comments or recommendations relevant to ensuring St Vincent’s Hospital are able to meet their obligations in providing a safe environment for our staff and patients.
Fractured Humerus Need assistance [with] the daily duties. Dermatitis Cotton gloves, avoid alcohol rub, constant moisturising. Knee Less walking.
On 4 June 2018, Ms Gordon applied for a RN position at Caritas Mental Health Unit at St Vincent’s (Caritas). On Wednesday 13 June 2018, Ms Gordon interviewed for the role.
On 2 July 2018, Ms Gordon applied for a RN position in the methadone dosing clinic, Rankin Court Treatment Centre (RCTC), at St Vincent’s. On 5 July 2018, Ms Gordon was advised by email that she was unsuccessful for the position.
On 19 July 2018, Associate Professor Anthony Schembri (CEO, St Vincent’s) signed a Matter for Determination document sponsored by Jacqui Clark (Director, Human Resources, St Vincent’s) approving the show cause process to terminate Ms Gordon’s employment due to her inability to undertake the inherent requirements of her position. On 13 August 2018, Ms Clark wrote to Ms Gordon, providing her an opportunity to indicate in writing why a recommendation should not be made to the CEO that her employment be terminated on the grounds of her inability to meet the inherent requirements of her role (First Show Cause Notice). On 22 August 2018, the Australian Nursing and Midwifery Federation – NSW Branch (ANMF), wrote to Ms Clark, responding to the First Show Cause Notice. That letter stated the ANMF’s view that “the appropriate course of action in such circumstances is for the facility to engage a rehabilitation provider and examine what workplace modifications can be undertaken to enable Ms Gordon to safely return to work in her original position”. It also requested that Ms Gordon be given priority consideration, noting that the “Recruitment and Selection of Staff to the NSW Health Service” and “Injury Management and Return to Work” policy directives did not require that injured workers take part in a competitive recruitment process.
On 28 August 2018, Ms Gordon applied for a RN position at Caritas.
In September 2018, Ms Smith contacted David Hedger (Alcohol & Drug Service Manager, St Vincent’s) about Ms Gordon meeting with him and Julie Dyer (Nurse Unit Manager, RCTC) about a RN position at RCTC. In a following email, after being informed of Ms Gordon’s medical circumstances, Ms Dyer stated that “[s]uitability is very important given our client group and the specialised nature of the nursing, but it is a great start that Rosemary has already identified Rankin as a place of interest”. On 26 September 2018, Ms Gordon was interviewed for the position by Ms Dyer and Thomas Jennings (Senior RN, RCTC). Ms Dyer’s file note records that Ms Gordon was not considered suitable for a RN position because, inter alia, she: did not have a reason for why she wanted to work at RCTC and generally lacked enthusiasm for the role and working in drug and alcohol; referred to drug and alcohol clients as “them” and “alcoholics” in not a kind and caring manner; stated that she would walk away if there was an incident and try not to be involved, or “just give them something”; and, when given a scenario about a client withdrawing from opiates who became agitated and irritated, said she would “just give them something” and give them a cup of tea.
On 29 October 2018, the ANMF wrote to St Vincent’s. Their letter stated that Ms Gordon was an excess staff member who had been given “priority assessment” and accordingly should be assessed for suitability for positions before other applicants, pursuant to a NSW Health policy titled “Managing Excess Staff of the NSW Health Service”.
On 6 November 2018, Ms Gordon applied for a RN position at Caritas.
On 9 November 2018, Malcolm McClelland (Acting Director, Human Resources, St Vincent’s) wrote to Ms Gordon, setting out the reasons she was found to be unsuitable for the RN role at RCTC: see [75] above.
On 13 November 2018, Mr McClelland wrote to the ANMF advising that St Vincent’s had not declared Ms Gordon an excess staff member pursuant to the “Managing Excess Staff of the NSW Health Service” policy, meaning the priority assessment process did not apply. The letter also advised that St Vincent’s had arranged for Ms Gordon to attend an appointment with an Occupational Physician on 5 December 2018, to ascertain her fitness for work.
On 5 December 2018, Ms Gordon was examined by Dr Sam Perla (Occupational Physician). On the same day he provided an Independent Medical Examination Report: stating that Ms Gordon was not fit to undertake the inherent requirements of her substantive position as a RN on X8N; noting that the Job Description indicated there was frequent hand-washing, frequent use of gloves, frequent walking, standing and frequent hand and arm movements; suggesting that given her clinical presentation, the position was not appropriate in relation to her dermatitis, the restricted range of movement of her shoulder and her left knee issue; and opining that if she was to return to X8N, it could exacerbate her issues, especially with frequent hand washing and repetitive arm movements.
Dr Perla also opined in the report that Ms Gordon was fit for the position of RN at Caritas, working full time with no restrictions. He stated that if Ms Gordon was working on X8N (described as “the usual type of ward work”) she would require the following restrictions: to avoid frequent hand washing; to avoid repetitive above shoulder work and heavy lifting of more than five to ten kilograms; and to avoid kneeling and squatting. However, Dr Perla opined that from what he could see, those restrictions would not be required if Ms Gordon was working as a RN at Caritas.
On 6 December 2018, Ms Smith spoke to Dr Perla. Ms Smith’s file note of that conversation records that they discussed concerns regarding the unpredictability of the work environment at Caritas and the requirement that all staff be fit to perform restraints at Caritas. It also records that Dr Perla was not aware of the need to restrain patients at Caritas as it was not obvious from the Job Demands/Physical Demands Description. In an update to the report, Dr Perla stated that he now understood there to be a “requirement on occasions to restrain difficult clients on an occasional basis as per the Job Demands/Physical Demands Description”. He felt that Ms Gordon “should be able to undertake that task” but suggested “that she would need to be able to show the appropriate competency during the training for this activity”.
On 13 December 2018, Ms Aran De Jesus emailed Dr Perla to provide further details on the mandatory Violence Prevention & Management (VPM) workshop for staff working at St Vincent’s/Caritas.
On 8 January 2019, Ms Gordon applied for a RN position at Caritas.
On 12 February 2019, Mr McClelland wrote to the ANMF relaying the findings in Dr Perla’s report. He also advised that as VPM training was a requirement for all RNs working in Caritas, St Vincent’s was making arrangements for Ms Gordon to attend an external VPM workshop. The letter also stated that should Ms Gordon successfully complete VPM training, St Vincent’s would endeavour to place her in Caritas, initially for a trial period of three months.
On 18 February 2019, Ms Smith had a telephone conversation with Ms Gordon. Ms Smith’s file note of that conversation recorded that Ms Gordon was keen to attend the VPM training and, upon discussing its physical requirements including squatting and bending, believed she would be fit enough to undertake it. Ms Smith also advised Ms Gordon that a VPM Fitness for Training Questionnaire form (VPM form) had been sent to her, and she agreed that she would return it as soon as possible. Ms Gordon asked if she could work in mental health before undertaking the training, and was advised that she could not as she was required to be deemed fit and competent in the first instance.
On 21 February 2019, Ms Gordon sent her completed VPM form to Ms Smith. On that form, in response to the question “[h]ave you sustained any fractures, dislocation or joint injuries in the last 24 months that may affect your ability to undertake the physical activities that are an essential part of this workshop?”, Ms Gordon marked “no”. She also indicated that: she did not currently have any health issues that would be exacerbated by the physical nature of the training; and there was not any other reason that may restrict or prevent her from safely taking part or carrying out physical intervention training.
On 1 March 2019, Aaron Barber (Learning and Development Officer, St Vincent’s) emailed Ms Smith, Susan Kjellberg (Work Health and Safety Manager, St Vincent’s) and another St Vincent’s staff member, stating that Ms Gordon had completed the VPM form and identified no issues, “however we know that this is not correct”. He continued that “[i]f we go ahead and book Rosemary in to this training, we would be placing her at risk of further injury due to the nature of the training and the movements”. Ms Kjellberg then emailed Rio Pun (Human Resources Business Partner, St Vincent’s) on 5 March 2019: advising that the VPM trainer “must be made aware of any health issues impacting on safety during the course and must be able to assess fitness to proceed”; stating her view that by Ms Gordon not completing the form accurately, there was a failure to alert the trainers to the possibility of risk; and suggesting that rather than booking Ms Gordon onto a course, an assessment of her ability to participate occur prior.
On 28 March 2019, Ms Smith emailed Ms Gordon to advise that she had been scheduled to attend an individual assessment of her ability to participate in VPM training. She wrote that Ms Gordon would be required to “demonstrate the physical requirements of the program” and should wear appropriate footwear (namely, trainers or flat shoes).
On 9 April 2019, Ms Gordon attended the VPM Independent Assessment. Prior to the assessment, Ms Smith advised the assessors that: Dr Perla had assessed that Ms Gordon was not fit to resume work at X8N because of the restricted movement of her shoulder and left knee issue; Ms Gordon had previously been found to be unsuitable for a role at Caritas as she did not meet the required skill base; and Ms Gordon had not completed the VPM form accurately. One of the assessors responded stating, “[w]e are both concerned that there is the potential for Ms Gordon to aggravate a pre-existing condition”.
The Independent Assessment report of the same date included the following:
Ms Gordon demonstrated forward lunge with back knee to floor (both sides) however had difficulty returning to standing. She denied discomfort in her knees. We explained that in order to be deemed fit she would need to demonstrate the ability to return to standing with ease as in VPM training and during restraint she would be required to perform this manoeuvre while supporting a patient. On her second demonstration of this task, Ms Gordon fell backwards from a low kneel onto her bottom. She denied injury or pain.
At this point we advised Ms Gordon that we would be ending the assessment. Ms Gordon stated that she fell due to her shoes and went to remove her shoes. We advised Ms Gordon that we would not continue the assessment due to the risk of her sustaining an injury. Despite both Assessors asking Ms Gordon to not undertake further lunges she did so. She denied injury or pain.
Ms Gordon was visibly upset by the ending of the assessment. We explained that as VPM Trainers, we could not assess her as physically fit to undertake VPM Team Restraint training or assist with the physical restraint of patients without the risk of serious harm to herself, the patient or other staff.
Her pre-existing right shoulder/humerus injury with decreased ROM would preclude her from attending this training. Her inability to perform lunges to floor without the risk of falling, which could result in serious injury to herself, a patient, and colleagues during a restraint, ended the assessment.
Ms Gordon gave evidence that she fell while coming up from a lunge due to a momentary lapse in concentration.
On 7 May 2019, the ANMF wrote to Associate Professor Schembri asserting that Ms Gordon was unable to complete the training due to the shoes she was wearing and asking that St Vincent’s schedule another VPM training session for Ms Gordon.
On 8 August 2019, Sarah Davis (Industrial Officer, ANMF), Marko Marelic (ER/IR Legal Counsel, St Vincent’s), Ms Kjellber, Mr Pun and Ms Gordon met. Mr Pun’s evidence was that Ms Gordon said “[t]he assessors were unfair, they did not explain the process or advise me that I had to wear certain footwear”, and that an agreement was reached that Ms Gordon would undertake a functional assessment to assess her ability to undertake VPM training.
On 16 October 2019, Ms Gordon attended the Functional Assessment, carried out by Karen Camilleri (Occupational Therapist). On 25 October 2019, Ms Camilleri provided a draft report to Lisa Goold (Occupational Therapist, St Vincent’s). On 28 October 2019, Ms Goold asked Ms Camilleri to provide comments on Ms Gordon’s ability to perform the selected activities with the challenge of an aggressive patient, prolonged postures and against resistance and force.
In her report dated 25 October 2019, Ms Camilleri stated:
Based on Ms Gordon’s performance on the day of testing, her safe ability to perform the tasks/ positions required for VPMT in a work setting with an aggressive patient, on a repetitive or sustained basis, over prolonged durations and/or whilst applying force or resistance is likely to be compromised. In particular, Ms Gordon's cardiovascular fitness level; dizziness triggered when standing from a supine position; and compromised speed and balance when standing from a kneeling position, as observed during the Functional Assessment is likely to pose increased risk of injury with additional forces involved with handling an aggressive patient.
Ms Camilleri recommended, inter alia, that:
Based on Ms Gordon's performance during the functional assessment conducted on 16 October 2019, she is considered fit for full – time light based work which does not require repetitive or prolonged overhead or forward reaching with the right arm, adopting kneeling or squatting positions on a repetitive or prolonged basis and lifting and carrying of loads exceeding her safe assessed limits …
On 29 October 2019, Adrian Talbot (VPM Consultant, St Vincent’s) emailed Ms Goold expressing his concerns as follows:
ŸGiven her stated limitations the VPM 3 Day restraint training has significant potential to exacerbate her current injuries. This alone would be due cause to not accept her enrolment on the course. We would have to get a medical professional to sign off for Ms Gordon to attend.
ŸThe training course has been designed to cater for those working in our highest risk areas within St Vincent's and other Health facilities. We had a recent case where a worker who wasn't trained in VPM 3 Day restraint was exposed to a high risk situation and received a work place injury due to the lack of training and experience. This has resulted in stricter governance around individuals who are not trained in 3 day restraint not starting in the high risk areas until the training has been completed. The policy states training should be conducted within 3 months of starting employment.
ŸOn average it takes 3 minutes for security to arrive to a code black. This means that our staff in high risk areas need to be able to conduct the restraint and wait for security to back them up. We have no guarantee which arm you will need to use to conduct the restraint. We can never guarantee that a prone restraint won't be required. And despite the policy stating we do not conduct prone restraint for longer than 2-3mins the entire duration of the restraint may require the person conducting the restraint to be in multiple different positions. Prone/Supine/kneeling/ Standing/Seated. Some restraints have gone on for over 40mins.
ŸIn the last month on Caritas we have had 9 incidents where restraint was used for aggressive and violent incidents.
Mr Pun stated in his affidavit that around this time he and Ms Goold decided the applicant should not progress with VPM training.
On 21 November 2019, Ms Goold and Mr Pun met with Ms Gordon and Ms Davis. Mr Pun’s evidence was that during that meeting, Ms Davis: said that Ms Gordon was not suitable for positions as a RN in mental health as she would be unable to complete the required VPM training; and requested that St Vincent’s allow Ms Gordon to apply for vacant positions that were of interest to her until 2020 rather than terminating her employment. Mr Pun also gave evidence that Ms Goold agreed with that request and said that she would complete suitability assessments for the roles Ms Gordon identified. Ms Gordon gave evidence in cross-examination that at this meeting she was in fact informed that she was not suitable to attempt VPM training, but accepted that it was agreed a review of available vacant roles she could apply for would be undertaken.
On 27 November 2019, Ms Gordon emailed Mr Pun a list of vacant roles. On the same date, she also applied for a RN position at Parklea Correctional Facility (Parklea).
On 13 December 2019, Mr Pun emailed Ms Gordon a review of the four vacant roles she had identified, completed by Ms Goold. Ms Gordon was identified as potentially being appropriate for the identified clerical position, pending assessment by infection control. On the same date, she responded stating that she did not think she would be a suitable candidate as she only possessed “basic computer skills”. The assessment also stated that Ms Gordon may wish to apply for any of the roles referred to, as a specific functional assessment may be undertaken prior to a job offer to confirm fitness.
On 18 December 2019, Cathy Macknight (CNC Infection Prevention Management & Staff Health Services, St Vincent’s) emailed Lisa Goold, stating that Ms Gordon had called her. Ms Macknight wrote that “returning to a clinical ward environment, would be difficult [for Ms Gordon] due to the high amount of hand hygiene product used today”. Ms Gordon gave evidence that, during her conversation with Ms Macknight, she explained that her dermatitis was manageable if she used Spirigel instead of alcoholic hand rub, and Ms Macknight responded with words to the effect of “I’m happy for you to use any product that you find non-irritating”.
On 19 December 2019, Ms Gordon attended an interview for a RN position at Parklea with Sonia Herrera (Nursing Unit Manager, St Vincent’s) and Kristy Johnson (Clinical Nurse Consultant, St Vincent’s). Ms Gordon was determined not to be suitable for the position based on her answers in the interview. Those answers included, according to the interviewers’ notes: saying that dealing with patients that have committed horrendous crimes would be difficult; and becoming flustered when she could not remember the fifth of five listed rights of medication. Ms Gordon speculated during cross-examination that the interview notes could have been made up, based on “everything that has happened”. In the letter she sent to Ms Thornton on 7 September 2020 (see [117] below), Ms Gordon stated that she did not say that “she would find it difficult to look after patients who had committed horrendous crimes”, but instead, in response to that statement from interviewers, she supposed “it might be difficult at times” as she had never worked in a prison before. On 28 January 2020, Mr Pun emailed Ms Gordon providing feedback regarding this interview.
In March 2020, Sandra Clubb (Director of Human Resources, St Vincent’s) was the Executive Sponsor for a Matter for Decision document seeking approval from the CEO to terminate the employment of Ms Gordon on medical grounds.
On 23 March 2020, Simon Davies (Employment and Industrial Relations Specialist, St Vincent’s) and Mr Pun met with Ms Gordon and Ms Davis. Ms Gordon was given a letter from Anna Thornton (Director of Nursing, St Vincent’s) which advised that St Vincent’s had been unable to identify a suitable role which could accommodate any adjustments that may be required, and provided an opportunity to make written submissions as to why her employment should not be terminated on the basis of her inability to meet the inherent requirements of her position (Second Show Cause Notice).
On 7 April 2020, the ANMF responded to the Second Show Cause Notice stating that, even if St Vincent’s maintained that Ms Gordon’s capacity for work was the result of non-work-related injuries, it was still incumbent on them to provide Ms Gordon reasonable adjustments to her employment to allow her to continue to work. It also stated that Ms Gordon’s injuries were not so severe to prevent her from nursing in an appropriate role and that St Vincent’s had many potentially suitable roles available. After identifying those positions, the ANMF stated that a decision-maker could not be certain that the positions were not suitable until Ms Gordon’s medical capacity was assessed against the specific job demands of each, and suitable consideration was given to what sort of adjustments may be made to the positions to allow Ms Gordon to adequately fulfil their requirements.
On 14 April 2020, there was a meeting between Sandra Sweeney (Deputy Director, People and Culture, St Vincent’s), Mr Simon Davies (ER/IR Specialist), Mr Pun and Ms Thornton. Mr Pun gave evidence that during that meeting, Ms Thornton expressed the view that she was not confident St Vincent’s could terminate Ms Gordon’s employment. After the meeting, Ms Thornton called Mr Pun and advised that she had decided to proceed to another independent medical examination. On 28 April 2020, Ms Davis met with Mr Pun and Mr Davies. Mr Pun informed Ms Davis that St Vincent’s would require Ms Gordon to undergo another independent medical examination. On 7 May 2020, Mr Pun wrote to Ms Gordon to confirm that an independent medical examination had been booked with Dr Farhan Shahzad (Consultant Occupational Physician).
On 13 May 2020, Ms Gordon attended the independent medical examination with Dr Shahzad. On 28 May 2020, he provided his report to St Vincent’s. Dr Shahzad diagnosed Ms Gordon with: bilateral contact hand dermatitis which could flare up with repetitive use of Microshield; a healed fracture of the right humerus; and left knee advanced osteoarthritis which at some stage would require further surgery and which was at increased risk of further injury.
Dr Shahzad opined that “[i]n a physically demanding role requiring manual labour or any intensive contact, there is a risk of injury to her left knee and to her right shoulder, especially with squatting, kneeling and lunges”. He recommended that Ms Gordon was “able to work in a role which involves light-based work, not requiring repetitive or prolonged overhead or forward reaching with the right arm, avoiding kneeling, squatting on a repetitive basis and not lifting and carrying heavy loads”. He also recommended that she was “able to return to work on light duties, working at her own pace and avoiding frequent hand washing, avoiding lifting, pushing and pulling more than 5 kg, and avoiding repetitive squatting and kneeling”.
Dr Shahzad assessed that there was “increased risk of safety to self and others, especially to patients working in the wards who require patient care, assistance and support”. The main barriers he identified were “related to [Ms Gordon’s] comorbidities, her underlying left knee and severe arthritis, the permanent nature of her injuries, inability to succeed in the interview process, perception of unsupportive management style, lack of contact with the workplace and prolonged duration of absence”. Ms Gordon was determined unfit to return to her RN position at X8N.
Based on Ms Gordon’s limitations in relation to her hand dermatitis and severe left knee arthritis, Dr Shahzad concluded as follows:
Ms Gordon will have the following permanent restrictions:
ŸAvoid frequent hand washing to avoid flare-up of hand dermatitis with the use of Microshield antiseptic use. May require appropriate supply of hand sanitiser or gloves suitable to her needs.
ŸAvoid repetitive or above shoulder work and lifting of more than 5 kg.
ŸAvoid heavy pushing, pulling or carrying more than 5 kg.
ŸAvoid repetitive squatting and kneeling activities to avoid a left knee injury.
The following permanent workplace modification is recommended:
ŸShe requires ongoing support and possibly working in pairs (buddy) rather than working alone while looking after patients.
Ms Gordon would also apply the following self-care recommendations:
ŸFollow up with an orthopaedic surgeon.
ŸRecommended counselling and specific case management and support by HR and a rehabilitation provider.
The following are additional workplace recommendations:
ŸAssessment independently (if this can be accommodated by her employer) for VPM training for Team Restraints prior to consideration of working in the mental health unit.
ŸIf she is successful with VPM training then she will require a permanent work modification with case-specific policy and risk management policy for her needs prepared by the Health and Safety Unit and HR Department at St Vincent's Hospital.
Mr Pun stated in his affidavit that, based on the report, he formed the view that the suggestion Ms Gordon be buddied with a colleague would have resulted in two people effectively doing one job: see [140] and [239] below.
On 20 August 2020, Mr Pun emailed Mr Davies a list of nursing positions being advertised and the risks identified in relation to placing Ms Gordon in each of them. The review indicated that the vacant roles required either frequent hand washing, occasional or frequent squatting, kneeling, lifting, pushing and pulling, moving loads or restraining and managing interactions with aggressive and uncooperative patients.
In August 2020, Ms Thornton was the Executive Sponsor of a Matter for Discussion document, concluding that given Ms Gordon’s incapacity to fulfil the inherent requirements of her role due to medical grounds, St Vincent’s should advise her that termination of her employment is under consideration and she be invited to make submissions.
On 1 September 2020, Ms Thornton wrote to Ms Gordon providing an opportunity to make submissions as to why a recommendation should not be made to the CEO to terminate her employment due to her being medically unfit to fulfil the inherent requirements of her position (Third Show Cause Notice). In that letter, Ms Thornton noted that notwithstanding an assessment against Ms Gordon’s substantive position, assessments were made in regard to her transferrable skills and medical restrictions, but “the trials were unsuccessful, any adjustments required were deemed unreasonable or [Ms Gordon was] otherwise unsuitable for the positions”. Ms Thornton also stated that: St Vincent’s had undertaken an assessment of currently vacant RN positions and their respective job demands checklists with regard to Ms Gordon’s safety and the safety of others at work; the positions available at the time required some capacity with regard to hand hygiene, lifting, pulling, pushing, squatting and kneeling; and any role that required VPM training had been determined as particularly unsuitable as they required squatting and kneeling (particularly in a mental health or correctional setting where the potential for patient restraints is high). Ms Thornton also noted that Ms Gordon had advised that she did not wish to be assessed against any non-nursing positions.
On 7 September 2020, Ms Gordon wrote to Ms Thornton in response to the Third Show Cause Notice. She set out her disagreement with a number of assertions made in the letter of 1 September 2020 and detailed a chronology of “disheartening” events. In particular, Ms Gordon stated that she had never been allowed to attend a work trial, and that she had told HR she was happy to undertake any clerical roles available. The letter also included, inter alia, that on 27 April 2018 she explained to Ms Oed that she did not think it was a good idea to return to X8N. Ms Gordon stated that “I definitely do not want to return to that ward and possibly ruin [my] right knee as well”: see [65] above. The letter concludes by stating that she wants to be “given a chance at another position…”.
On 17 September 2020, the ANMF wrote to Ms Thornton, responding to the Third Show Cause Notice. They wrote that Ms Gordon’s role is properly conceived of as a RN working for the benefit of St Vincent’s (as her contract of employment does not specify employment to a role on X8N) and identified redeployment as a reasonable adjustment, pointing to the practical adjustments identified by Dr Shahzad. The ANMF also stated that the attempts made by St Vincent’s to explore alternative duties had been inadequate and that St Vincent’s had submitted Ms Gordon to an unnecessarily high standard in relation to other roles, rather than applying the appropriate objective merit test required (namely, simply whether she was or could be qualified to perform the roles). Further, the ANMF wrote that no discussions had been held with Ms Gordon in relation to reasonable adjustments to proposed roles, and any assessment actually conducted by St Vincent’s was a mere desktop exercise without any detailed consideration as to what adjustments could be made. They also reiterated that Ms Gordon had repeatedly expressed an interest in non-nursing roles.
On 3 November 2020, Ms Gordon lodged an application with the Fair Work Commission. In the application, Ms Gordon sought that St Vincent’s make reasonable adjustments to her role as necessary to enable her to return to work, provide VPM training via a third party provider and identify suitable alternative positions. On 13 November 2020, Commissioner Johns conducted a conciliation conference and issued a direction that St Vincent’s provide Ms Gordon with a list of nursing and administrative vacancies and a statement explaining the steps taken to identify them. Those directions were complied with by St Vincent’s and a further conference was held on 16 November 2020.
From November 2020 to February 2021, Ms Gordon applied for: three RN positions at St Vincent’s; two RN positions at Parklea; a RN position at Kinghorn Cancer Centre; a Mental Health Pathways to Practice Program position at St Vincent’s; a Ward Administration Officer Position at St Vincent’s; a RN position at St Vincent’s Medical Imaging Department; and a RN position at the Gorman Unit at Parklea.
On 8 April 2021, Ms Gordon filed a Notice of Discontinuance withdrawing the application referred to above at [119].
On the same date, the ANMF filed another application with the Fair Work Commission on behalf of Ms Gordon. On 30 April 2021, St Vincent’s responded to that application, declining to participate in conciliation, and on 12 May 2021 the Fair Work Commission confirmed the matter was closed.
In June 2021, Ms Thornton and Todd McEwan (Director, Acute Care Services, St Vincent’s) were the Executive Sponsors of Matter for Discussion document recommending that, although they anticipated further litigation from Ms Gordon if they proceeded with her termination, the matter be brought to a head given St Vincent’s was in a good position to do so and to respond to any subsequent claim. They concluded that, given Ms Gordon’s incapacity to fulfil the inherent requirements of her role due to medical grounds, and the finalisation of the Fair Work Commission matters, a further show cause should be initiated to ensure procedural fairness. The document also stated that Ms Gordon had previously advised that she did not wish to be assessed against any non-nursing positions.
On 15 June 2021, Ms Thornton wrote to the ANMF, copying Ms Gordon (Fourth Show Cause Notice). Ms Thornton advised that she was still considering recommending that the CEO terminate Ms Gordon’s employment due to being medically unfit to fulfil the requirements of her substantive position. Ms Gordon was provided the opportunity to make submissions.
On 28 June 2021, both Ms Gordon and the ANMF responded to the Fourth Show Cause Notice. The ANMF reiterated that Ms Gordon’s particular work, or substantial position, was not confined to a role on X8N. It also stated that St Vincent’s had “fundamentally misunderstood” its responsibility to provide reasonable adjustments “by placing the responsibility on Ms Gordon to be appointed to a role through a competitive process and determining what if any adjustments are required”. The ANMF indicated eagerness to enter good faith discussions with St Vincent’s, but noted that in light of plans to terminate Ms Gordon’s employment, it had filed an urgent application in the Australian Human Rights Commission. Ms Gordon stated that she was more than willing to work in any department within the St Vincent’s network that could accommodate her.
On 7 July 2021, Ms Thornton and Mr McEwan sponsored a Matter for Discussion document recommending termination of Ms Gordon’s employment due to an inability to perform inherent requirements of her role on medical grounds. That recommendation was based on legal advice. It was also noted in that document that St Vincent’s was of the view that Ms Gordon being buddied up with another employee was not a reasonable adjustment and that offering Ms Gordon employment in a COVID vaccination clinic may set a precedent with the NSWNMA [NSW Nursing and Midwifery Association] that St Vincent’s would provide every employee with a non-work related injury permanent alternative employment. On 12 July 2021, Associate Professor Schembri signed the Matter for Discussion document, approving termination of Ms Gordon’s employment.
On 13 July 2021, Associate Professor Schembri wrote to Ms Gordon, confirming that her employment was terminated. As to termination on medical grounds, he concluded as follows:
29.It has now been over 3 years since you were deemed unfit to carry out the inherent requirements of your substantive position. I understand given your restrictions there are no reasonable adjustments that can be made to enable you to carry out your substantive position.
30.I further understand, and as outlined above, you have not been the successful candidate in available and suitable roles within SVHS. It is on this basis and the reasons above I have decided to terminate your employment with SVHS.
In or around 22 November 2021, Ms Gordon commenced casual employment as a RN at an agency, Meditech Staffing, working on average three shifts per week for various aged care facilities.
Assessment of witnesses
Applicant’s case
It is only necessary at this time to refer to Ms Gordon and Ms Purdue, as the evidence of Dr Christopher Canaris relates only to damages.
Ms Gordon
Although it may be accepted that the applicant generally attempted to give evidence honestly, at times her answers were evasive, argumentative and combative. At times, the applicant did not make obvious concessions in cross-examination that would have been expected. As her cross-examination progressed, she made unfounded allegations about the conduct of other people, including allegations of fabrication of documents (being notes made by two panel members in relation to a job interview). When put on the spot, at times the applicant volunteered evidence non-responsive to the question, justifying her position. If she perceived the content of a document did not assist her, her answer would challenge the correctness of the information in the document (at least initially). It may be that the applicant was frustrated by what she perceives to be the respondent’s treatment of her. Nonetheless, the applicant’s preparedness to respond in the manner she did at times during her cross-examination impinges on her reliability as a witness. The applicant might believe what she said to be correct, but it does not necessarily make it so.
Ms Purdue
Ms Purdue is employed as a Senior Professional Officer by the ANMF, the solicitors for the applicant. It appeared at times that Ms Purdue was giving evidence from that perspective, and not what could be described as an independent expert, as she was held out to be.
For example, as explained in more detail below at [213], her evidence appeared to suggest that having the required competencies to be an RN means that all RN’s are equally qualified to do any nursing job requiring a RN regardless of the area in which the work is to be done. This was to support a submission that the applicant could be transferred to work at another ward. However, in cross-examination, Ms Purdue did not make fairly obvious and proper concessions. For example, Ms Purdue only reluctantly acknowledged (and only after a number of questions on the topic) that when applying for a position, some RN’s might be more qualified than others, or transition to a new role more effectively based on their ability to adapt. Similarly, she was reluctant to accept that RN’s may perform the work in a new area with different aptitude and speed, or ultimately attain a higher level of proficiency. I had difficulty accepting aspects of her evidence.
The respondent’s case
Dr Keller
On 2 August 2022, Dr Andrew Keller (Occupational Physician) conducted an independent medico-legal examination of Ms Gordon. He was called by the respondent. His evidence, as will be apparent below, is not challenged by the applicant. Indeed, in closing submission the applicant relied on it in support of her application for reinstatement. I accept his evidence. He gave evidence carefully, in a considered manner.
In his report, dated 5 August 2022, Dr Keller concluded:
1.In your opinion, would the Applicant be currently fit to safely perform the inherent requirements of the position of an RN on X8N as outlined in the Position Description and Job Demands Checklist?
With careful consideration of the medical complaints commencing from 2015 and her current ongoing conditions including contact dermatitis of the left and right hands, right shoulder restriction of motion with pain due to a humeral neck fracture and left knee pain. It is my opinion that she is not fit to work as a full time registered nurse on the Xavier 8 North ward without restrictions.
2.In your opinion, and to the best of your ability to make such an assessment based on available evidence, would the Applicant have been fit to undertake the inherent requirements of the position of an RN on X8N as outlined in the Position Description and Job Demands Checklist, as at July 2021?
From the information available to me it appears that Ms Gordon was capable of working as a full time RN on Xavier 8 North until her fall in July 2017. She has never recovered the capacity to work as a registered nurse without restrictions since this fall and remains unfit for these duties currently.
3.If the answer to either (1.) or (2.) is “No”, then in your opinion, having regard to the Applicant’s disabilities and assessed state of health:
(i)What reasonable adjustments, if any, would need (and/or have needed) to be made to allow the Applicant to safely perform the inherent requirements of the RN on X8N position; and
In my opinion Ms Gordon is fit to work up to full time hours. She can do the light administrative or supervisory tasks involved in registered nursing and continues to do these currently on a part time basis through a nursing agency. To return to the Xavier 8 North position she would require other staff performing the duties of direct patient care, movements of furniture and movements of bed with patients.
(ii)what are the risks, and likelihood of those risks, that the Applicant could:
A. reinjure herself;
It is likely that returning to unrestricted registered nursing work on Xavier 8 North would aggravate or exacerbate her current conditions of left knee arthritis, right shoulder pain and restriction and hand dermatitis.
B. be impaired by other disabilities, injury or illness;
She is already impaired with disabilities as detailed above though these do not restrict her doing the administrative parts of registered nursing duties but do restrict her from doing the patient care parts of registered nursing duties.
I cannot predict/guess her risk of developing future disabilities.
C.aggravate, exacerbate or hasten deterioration of her health conditions; if she were to return to the role of an RN on X8N with or without reasonable adjustments?
It is likely that returning to direct patient care would accelerate or aggravate her ongoing complaints in her right shoulder and left knee. She could only do these tasks without exacerbation if not required to do direct patient care. It is not possible for me to determine whether the employer is able to offer this accommodation.
As identified at [224] above, it is apparent that apart from items 7 and 8, which may be considered separately, on the applicant’s case, the remaining items require more than one concurrent adjustment to occur to enable the applicant to return to work as a RN on X8N. For the reasons above, item 7, engaging the rehabilitation provider, is not established. The use of a buddy or pair is identified as item 6, without which none of items 1-5 are sufficient or can be established, having regard to the medical evidence of Dr Keller and Dr Shahzad outlined above. That medical evidence demonstrated that to return to X8N, Ms Gordon would require other staff performing the duties of direct patient care, movements of furniture and movements of beds with patients. This is recalling also that the applicant’s claim is directed to an allegation that if St Vincent's provided the reasonable adjustments, she would have been able to fulfil the inherent requirements of her RN position at X8N. I note also that applicant abandoned claims under s 15(2)(b) and (d). For the reasons above, item 6 is not established. That leaves item 8, being a transfer to another position.
Nonetheless, before addressing that item, it is appropriate to refer to matters relevant to items 1-5, even though they are not in themselves sufficient.
As a preliminary consideration, the only purported adjustments identified in the list above that the applicant personally raised with St Vincent’s, were raised prior to her arm injury: in 2015 in relation to hand wash; and complaints in 2016/2017 about the sticky floors. However, the applicant continued to work at X8N after those requests were made, until her arm injury prevented her from working. In respect to the knee and dermatitis injuries to which items 1 and 2 relate, the applicant’s workers’ compensation claims had been closed and no further complaint had been made during the period before her arm injury. The dermatitis and the knee injury did not prevent her performing her role, and nor did the sticky floor. The one possible exception is that St Vincent’s’ records from April 2018 record the applicant had an expectation St Vincent’s would find her another job (as she did not think she could return to X8N), which she now identifies as adjustment item 8, to which I will return. I note that the applicant raised this with St Vincent’s at the same time she raised that her dermatitis and arm injury were recurring in addition to her arm injury (at that time without medical evidence): see [144] above.
The applicant accepts that she did not request at the relevant time St Vincent’s provide any specific or particular adjustment for assistance performing the role relevant to item 5 (assistance with lifting, pushing and pulling). The applicant’s submission in closing was that it was not reasonable for her to do so, as it requires specialist knowledge. However, when working on the ward, the applicant had no hesitation making other requests (as referred to in the preceding paragraph), or expressing in her affidavit what she was later required to do, and what she says now ought to have been done. It perhaps reflects that, as explained above, and consistent with her repeated express statements, her mindset was not that she wanted to return to X8N, but rather that she should be given some other job in another ward or unit.
Addressing each of the items briefly in turn.
In relation to the sticky floor (item 1), there is no evidence that the condition of the floor would re-aggravate her knee injury. Rather, on the expert evidence, it was Ms Gordon performing the physical demands of the RN role that risked re-aggravating her knee. It was only the applicant who expressed a concern that the sticky floor might re-aggravate that injury. As mentioned above, the sticky floor had not previously prevented her from performing her role. There is evidence that when the applicant complained the floor had been looked at by a work health and safety advisor from St Vincent’s. There is no evidence that this was raised at the time her return to the ward was being considered before April 2018. Nor is there any evidence of the state of the floor at that time, the applicant having been absent from X8N for some considerable time. The applicant’s complaint that there is a lack of evidence from St Vincent’s on this topic does not assist her, as she did not plead this as a matter material to any issue at this hearing. As a consequence, the issue of whether, and if so what modification was required or able to be undertaken is entirely speculative. This illustrates the importance of proper pleadings. In any event, this suggestion does not address the applicant’s knee issue, as referred to in the medical reports. It does not assist her to perform the particular work she was engaged to do. Nor would this, even on the applicant’s case, be sufficient to enable her to return to her role at 8XN.
In relation to alternative hand wash (item 2), after the applicant raised this issue in 2015, she was permitted to use her suggested alternative hand wash in the bathrooms. It follows that suggestion was implemented, although not to the extent she had wanted (this hand wash was not used in the ward itself). That said, it did not prevent her fulfilling her role. In written opening submissions in reply, the applicant appeared to accept at [27] that she does not now need reasonable adjustments in regard to hand dermatitis. In any event, as addressed above, even if this proposal had been fully implemented as a reasonable adjustment, again that would not be sufficient to establish the applicant’s pleaded case, because the other necessary reasonable adjustments have not been established.
The matters referred to in Dr Ilanko’s report (items 3-5) are, given the nature of a RN role at X8N, in the most general and vague terms. Moreover, the applicant’s submission that Dr Keller’s evidence said the same as Dr Ilanko’s, is incorrect. There is substantial detail in Dr Keller’s report, including how the restrictions might be addressed, where there is no such detail provided by Dr Ilanko’s. It is also to be recalled that Dr Ilanko’s report is not referred to in the pleading.
The activities the subject of the suggestions by Dr Ilanko, in combination, are at the heart of an RN’s role at X8N, as reflected by the Job Demands Checklist.
The applicant has not identified, and did not identify at the relevant time, any adjustments in respect to the less handwashing (item 4). Rather, the applicant decided to apply for jobs which she perceived would require less handwashing.
In respect to less walking and standing (item 3), the applicant’s evidence and submission was that adjustment could have been implemented immediately by relieving her of the responsibility of walking to the medicine cabinet to obtain medication when she was nurse in charge and held the designated key. The applicant provided no further detail as to what that adjustment would involve other than that general description. She provided no explanation as to how this suggestion was sufficient to address or fulfil item 3, especially as it only has application to when she was the nurse in charge. It could not be based on Dr Ilanko’s report, given the breadth, generality and vagueness of the purported adjustment contained therein. Importantly, the applicant also never requested St Vincent’s implement that adjustment, or raised with them it was a means of walking less. The ANMF did not raise it as an adjustment. The submission is based solely on the applicant’s evidence in this hearing. That is relevant to whether the suggestion was sufficiently identifiable at the relevant time. I note also, this was the applicant’s only suggestion as to how to accommodate less walking. Accordingly, the submission does not assist her. On the applicant’s case, that suggestion alone would be insufficient to enable her return to X8N. It follows that it could be implemented immediately would not assist. Indeed, as explained above, the reasonable adjustment that the applicant submits ought to be made and is needed on her return, is the engagement of a buddy or pair.
In respect to lifting, pushing and pulling (item 5), the evidence and the applicant’s submissions about the use of electronic equipment to move beds and patients was also not raised or requested by the applicant with St Vincent’s at the relevant time. No request was made by the ANMF, rather, again the submission is based solely on the applicant’s evidence in this hearing. The applicant did not identify this at any relevant time as a reasonable adjustment that could be made. On the evidence, it is not a matter sufficiently identifiable at the time. Nor is this a matter pleaded or particularised as a reasonable adjustment. The only suggestion actually put to St Vincent’s, which was first made by Dr Shahzad, was the use of a “buddy”. That had not been raised or requested by the applicant prior. Although at times the applicant appears to criticise the respondent’s reliance on Dr Shahzad’s report on the basis he only said “possibly” that a buddy would be required, as explained above, the applicant is now advancing a case that that is the appropriate adjustment. As explained above, even if it was an adjustment, on receipt of Dr Shahzad’s report, St Vincent’s made an assessment and concluded that it would impose an unjustifiable hardship.
As mentioned above, the ANMF raised with St Vincent’s engaging a rehabilitation provider in the letter to St Vincent’s of 22 August 2018. In that letter, the ANMF requested as an alternative that St Vincent’s explore the applicant’s restrictions against the positions she had applied for at Caritas and RCTC, with a view to placing her in a vacant position. The letter does not suggest, identify or request any modifications or alterations to enable her to return to her position at X8N. As also addressed above, requesting St Vincent’s engage a rehabilitation provider to examine what workplace modifications could be undertaken is not itself an adjustment. No later correspondence by the ANMF to St Vincent’s identifies or requests such matters. After the first letter, the focus of the ANMF correspondence was directed to St Vincent’s providing or facilitating Ms Gordon to obtain work in some other position.
I accept the respondent’s submission that the matters identified in items 3-5 from Dr Ilanko’s report are in such vague and broad terms as to not identify any adjustments with necessary specificity. Moreover, the applicant and the ANMF did not identify or request any specific adjustments addressing those matters. Bearing in mind the breadth of her restrictions, which as explained above, go to the heart of the applicant’s role at X8N, on her case, a number of adjustments in combination would be necessary. In any event, the only matter that was ultimately identified in any of the reports, and which is now relied on by the applicant, which could be said to have the necessary specificity, is the provision of a buddy or pair. For the reasons above, that is not an adjustment within the meaning of the DD Act. Dr Keller expressed the adjustment as requiring other staff performing the duties of direct patient care, which as explained above, would be to have another person undertaking inherent aspects of her role.
Item 8
This leaves the issue of item 8, the transfer of the applicant to another suitable role within her skills and experience level, regardless of merit. At the time of the injury, the applicant was employed to work as a RN at X8N. It will be recalled, as explained in Watts, an adjustment is an alteration or modification which operates on the person’s ability to do the work for which she was employed. It is not a reasonable adjustment to simply transfer the applicant to a different role. That would not be an alteration ‘for’ the applicant, “which operates on the person’s ability to do the work she or he is employed or appointed to do”. It is another job. These are jobs that are advertised and for which applications must be made, with the successful candidate gaining the employment. The submission that providing employment in another position is a reasonable adjustment does not grapple with the concept of adjustment in s 5(2).
This submission must also be considered in the context of the hospital work environment. As previously explained, St Vincent’s has duty of care obligations to its patients, other staff and the applicant.
The specific vacant positions into which the applicant submits she ought to have been transferred (been given priority or been offered), are not particularised or identified in the submissions or evidence. The closest is the applicant’s written submission regarding providing her a role within her clinical experience as a RN at another workplace, such as Caritas or RCTC.
However, as explained above, the applicant was not provided a job at Caritas because she was found to be unsuitable at interview and did not have the qualifications. She was assessed as unable to complete the VPM training, which is a requirement for the position. There was some evidence from Ms Paik as to the qualities necessary to work in mental health. The applicant challenged much of Ms Paik’s evidence as to those qualities. It is not necessary to accept all of Ms Paik’s evidence to accept that nursing in such an environment requires particular qualities in greater measure than in other areas of nursing. It is not difficult to understand why this is so, given the nature of the illnesses being treated. This evidence was led by St Vincent’s to address the applicant’s evidence from Ms Purdue as to the ability of a RN to transfer to mental health. Given Ms Paik’s evidence, in circumstances where Ms Gordon was unable to complete the VPM training, she was not qualified or capable of working at Caritas: see [157]-[159] above. The applicant’s submission that she should have been given further opportunities to demonstrate her fitness for the VPM training/to be considered for a role at Caritas, cannot be accepted for the reasons given above at [158]. St Vincent’s had given her more than one opportunity. Moreover, given Ms Gordon’s injuries, and the purpose and importance of the ability to restrain patients when working in that area, there is nothing unreasonable about the decision that she not be given a job at Caritas: see for example [168] above. Also, as explained above, the applicant was also found to be unsuitable for a position at RCTC. This analysis supports the conclusion that transferring the applicant to a position at RCTC or Caritas is not an adjustment within the meaning of s 5(2).
The applicant’s submission that Watts supports the proposition that an employer providing another role is a reasonable adjustment, is misplaced. What is sought by the applicant in this case is to be contrasted with Watts, where the applicant, who was a bid consultant within the bid management team, was placed in another job in the marketing area, to assist her to return to work in her pre-injury position: Watts at [152]-[155]. This was not a reasonable adjustment, but rather, a means by which it was intended that the applicant would return to her pre-injury job. Further, Ms Gordon was seeking a permanent transfer, not being given another job with a view to returning to her pre-injury position. Her disabilities were assessed as permanent.
The applicant’s submission, based in part on the reference in Watts at [45] to marketing or human resources being examples of particular work, that the work must necessarily be categorised in a very general manner (here as a RN completing fundamental tasks based on standard competencies), and therefore a transfer to another position is a reasonable adjustment, cannot be accepted. The nature of Ms Gordon’s work is distinct from the examples proffered. The submission fails to read that passage in context, and fails to take account of the fact that a factual inquiry is required, as described above. As explained above, at the time of her arm injury Ms Gordon was performing particular work as a RN at X8N. Further, the applicant’s submission, based on Watts, that allowing time for the person to be trained to do the job or to adapt to the job (which would occur if she were to transfer) is a reasonable adjustment, does not advance her position. It is apparent from the example given in Watts at [55]-[57] that the training there was to enable the person to return to full capacity in their pre-injury duties. That is not what is suggested in this case. Rather, any training, if it were to occur, was in respect to a different job. Watts does not support the proposition that an applicant should be transferred to another job, not on merit, and regardless of her qualifications or suitability to the position. Significantly, Ms Gordon focused most on the job at Caritas, for which she was not qualified.
In any event, as noted above, the applicant applied for a number of jobs and was unsuccessful. In relation to some she was unsuitable: see [151]-[152].
I note there was some dispute in the evidence as to whether Ms Gordon was willing to do an administrative role, with St Vincent’s understanding from what they were told, she was not. However, this dispute is academic, as even on the applicant’s case, this is not a RN role, and could not fall within her description of a reasonable adjustment. This submission reflects that in reality, Ms Gordon’s position was not that placing her in alternative position is a reasonable adjustment, but rather, St Vincent’s were required to find her an alternative position.
Given that conclusion, it is not necessary to address St Vincent’s’ submission, that if it were an adjustment it would provide unjustifiable hardship. Nonetheless, and in any event, to the extent that appointing Ms Gordon to a different role without having to participate in a competitive selection process was an adjustment, and the conduct was discriminatory, there is merit in St Vincent’s’ submission that, in the circumstances of this case, that adjustment would not be reasonable because it would impose on St Vincent’s unjustifiable hardship. For example, there is merit in the submission that it would be an unjustifiable hardship to transfer her to the role at Caritas or RCTC. Not only was Ms Gordon considered not suitable, the most suitable and meritorious candidates would not be chosen for appointment to the role. This has the capacity to adversely impact the quality of work, productivity and patient care and safety. It would also undermine important principles promoting equal treatment of persons based on their skills, qualifications, experience and ability to meet objective selection criteria based on merit. This is bearing in mind also that Ms Gordon was not excess staff.
It appears that Ms Gordon’s contention is that she should not be required to participate in a competitive recruitment process because, unless she was given preference to the exclusion of other candidates, she could not have been, or would not be, successfully appointed to a role. Ms Gordon’s claim is in effect, that a reasonable adjustment would be to waive or ignore merit selection principles and processes and appoint her to the vacant role of her preference. This is not, properly understood, a reasonable adjustment for the reasons set out earlier in the reasons dealing with reasonable adjustments.
Conclusion
The only remaining claims allege conduct contrary to s 15(2)(a) and (c) of the DD Act.
As addressed above, the applicant failed to establish those claims as pleaded.
The failure by St Vincent’s to provide reasonable adjustments was a necessary part of the applicant’s claims in relation to s 15(2)(a) and (c). Even if the items identified by the applicant in closing submissions had been pleaded, the claims are not established.
Having considered those items identified by the applicant, for the reasons above, the applicant has not established that items 1 to 8 were adjustments within the meaning of s 5(2) of the DD Act, and/or if they were adjustments, St Vincent’s have established they were not reasonable adjustments as they would have imposed on St Vincent’s an unjustifiable hardship pursuant to ss 4 and 11 of the DD Act. I note also that, with the exception of seeking a rehabilitation assessment or that St Vincent’s provide employment in another position, the applicant (and the ANMF) did not, at the relevant time, specifically request any of the other matters now relied upon. Moreover, on the applicant’s case, none of items 1-5 of the purported reasonable adjustments were sufficient by themselves to enable her to return to work at X8N. Indeed, the applicant accepts that the necessary adjustment to enable her to return to work at X8N is working in pairs with another person, as described by Dr Shahzad and Dr Keller, which for the reasons above, is not an adjustment. It is not suggested there are any other alleged adjustments sufficiently identified in the evidence which were required to be undertaken. Accordingly, it has not been established that St Vincent’s failed to make reasonable adjustments that would have enabled her to return to the work for which she was engaged. This is noting that it is accepted that the applicant cannot perform the inherent requirements of her position without adjustments.
The applicant also has not established the term or condition of her employment the basis of her s 15(2)(a) claim.
The applicant has not established her claims under s 15(2)(a) and (c) of the DD Act.
The application is dismissed, with costs.
I certify that the preceding two hundred and seventy (270) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham. Associate:
Dated: 5 October 2023
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