Guiseppina (Josie) Cartisano v Sportsmed SA Hospitals Pty Ltd

[2014] FWC 3005

[2014] FWC 3005

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Guiseppina (Josie) Cartisano
v
Sportsmed SA Hospitals Pty Ltd
(U2013/16124)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 8 MAY 2014

Application for unfair dismissal remedy - absence from work - inherent requirements of the position - valid reason - dismissal process - remedy not determined.

[1] On 22 November 2013 Ms Cartisano lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) through which she sought relief with respect to the termination of her employment with Sportsmed SA Hospitals Pty Ltd (Sportsmed).

[2] Ms Cartisano’s application was not settled through the Fair Work Commission (FWC) conciliation process. The application was the subject of a determinative conference on 22 April 2014. At the hearing of this matter Ms Cartisano was represented by Mr Radford of counsel and Sportsmed by Ms Victory, of counsel. In both instances, permission was granted pursuant to s.596(2)(a) of the FW Act.

[3] The background to the application is straightforward. Ms Cartisano was employed by Sportsmed in May 2011 in the position of Manager Central Sterilising Supply Department (CSSD). There were no performance issues associated with the manner of her work performance. In September 2012 Ms Cartisano was involved in a motor vehicle accident unrelated to her work. Ms Cartisano returned to work but was unable to work on a full-time basis because of her medical condition. Following her return to work she had various amounts of time off work over several months because of her injuries. There is no dispute that Ms Cartisano’s absences from work were the result of her medical condition. She last worked for Sportsmed on 15 May 2013. After this date she took annual leave, then paid and unpaid sick leave. I note that the parties are in dispute about certain payments made to Ms Cartisano in June 2013 but little information has been provided to me in this respect. Before and after 15 May 2013 Ms Cartisano and Sportsmed management had various ongoing discussions about her injuries and return to work issues. The content of those discussions is not agreed.

[4] On 1 July 2013 Ms Cartisano advised that she was going to have shoulder surgery as a result of the motor vehicle accident. Whilst the exact content of this discussion is not agreed, it is clear that Sportsmed agreed to provide her with extended leave. The duration of that agreed leave is disputed.

[5] Ms Cartisano had shoulder surgery on 27 August 2013. On 9 September 2013 she provided advice relevant to her capacity to return to work. The effect of that advice is also disputed. Sportsmed then required Ms Cartisano to have a medical assessment to determine her fitness for work.

[6] Sportsmed nominated a medical practitioner and provided him with Ms Cartisano’s position description. Following that assessment, Ms Cartisano and Sportsmed met on 24 October 2013. The basis for, and conduct of that meeting are disputed but the meeting concluded with the termination of Ms Cartisano’s employment. Advice subsequently provided to Ms Cartisano confirmed that this termination of employment took effect on 7 November 2013.

The Submissions

[7] Ms Cartisano’s position is that the termination of her employment was harsh, unjust and unreasonable in that Sportsmed did not have a valid reason for that termination and adopted a procedurally unfair approach.

[8] Specifically, Ms Cartisano asserts that after her motor vehicle accident she ceased performing lifting duties, that this was known to Sportsmed and was consistent with the instructions given to her about her job and did not detract from her satisfactory performance of the inherent requirement of her position.

[9] Further, Ms Cartisano asserts that Sportsmed had advised that it would allow leave of 12 weeks following her shoulder surgery, and had assured Ms Cartisano that she would not lose her job because of that surgery or her injury.

[10] In terms of the procedural concerns, Ms Cartisano asserts that she was not given fair notice of the purpose of the 24 October 2013 meeting which resulted in the termination of her employment, that she was denied appropriate representation at that meeting and was not given a fair opportunity to consider and respond to the medical report relied upon by Sportsmed.

[11] Finally, Ms Cartisano asserts that the termination of employment decision was made prematurely and too soon after her shoulder surgery so as to enable a fair assessment to be made.

[12] The Sportsmed position is that the medical assessment provided to it confirmed that Ms Cartisano was not fit or able to perform the inherent requirements of her role and represented a valid reason for the termination of her employment.

[13] Sportsmed assert that its managers had numerous conversations with Ms Cartisano about her incapacity for work and it did not promise to keep her job open indefinitely. Sportsmed advised that the meeting on 24 October 2013 was to discuss the independent medical report and Ms Cartisano’s health and ability to perform the role. At this meeting Ms Cartisano indicated she considered it unlikely that she would receive medical clearance from her surgeon and Sportsmed confirmed that her job could not be left open indefinitely. On this basis, Sportsmed assert that Ms Cartisano and the managers present at that meeting agreed that her employment should be terminated.

[14] Sportsmed assert that Ms Cartisano was given an opportunity to respond to its concerns about her capacity on numerous occasions, including 24 October 2013. Sportsmed assert that Ms Cartisano made no request for a support person to assist in any discussions, including the meeting on 24 October 2013.

The Evidence

[15] Ms Cartisano’s evidence went to the duties she undertook, both before and after the September 2012 motor vehicle accident. She gave evidence about the content and the manner of the various discussions she had with Sportsmed managers relative to her shoulder surgery and her understanding of the return to work position agreed with Sportsmed. Her evidence went to her medical condition before, and subsequent to the shoulder surgery. She provided evidence about the 24 October 2013 meeting which concluded with the termination of her employment and to the effect this had on her, together with her subsequent attempts to obtain other employment.

[16] Mr Porter is Ms Cartisano’s partner. His evidence went to his participation in a meeting with Ms Cartisano and Ms Smith of Sportsmed on 9 September 2013 and his recollection that Ms Smith advised that Ms Cartisano should "take all the time you need" 1 and that her job was safe.2

[17] Mr Golding is an acquaintance of Ms Cartisano’s. His evidence was that he drove Ms Cartisano to the 24 October 2013 meeting and that she expressed concerns that her job could be at risk. 3 Mr Golding recalls Ms Cartisano asking if he wanted to participate in the meeting but that he advised he would wait outside. He waited in the waiting area. His evidence was that when Ms Cartisano returned, she advised that she had been dismissed.

[18] Ms Smith is the Perioperative Manager of Sportsmed SA Hospitals. Ms Cartisano reported to Ms Smith. Ms Smith's evidence went to Ms Cartisano’s work performance and arrangements put in place after the September 2012 motor vehicle accident. Ms Smith gave evidence about the discussion on 9 September 2013 with Ms Cartisano and her understanding that Ms Cartisano would be cleared, by her surgeon, to return to work on 10 October 2013. She advised Ms Cartisano that it was likely she would be sent for an independent medical assessment prior to any return to work. 4 Ms Smith then referred the matter to Ms Murray, the Director of Nursing and Clinical Services and Ms Hill and commenced a period of leave.

[19] Ms Hill is the Human Resources Manager for Sportsmed. Her evidence went to her involvement in the matter from 10 September 2013 when she initiated a medical assessment of Ms Cartisano by Dr Graham. She provided Dr Graham with Ms Cartisano’s position description and advised Ms Cartisano of the assessment.

[20] Ms Hill received the results of that assessment on 14 October 2013. Her evidence went to this report and her participation, with Ms Murray and Ms Cartisano in the 24 October 2013 meeting. Ms Hill advised that she decided that the termination of Ms Cartisano’s employment was the only remaining option in the course of this meeting. Her evidence was that Ms Murray suggested that a termination of employment decision be deferred pending Ms Cartisano’s next appointment with her surgeon on 18 November 2013, but that Ms Cartisano advised that this would be pointless as it was unlikely that she would be cleared to return to work at that time.

[21] Ms Hills’ evidence was that the initial effective termination of employment date was proposed on 28 October 2013 but that she later advised that this would be 7 November 2013.

[22] In addition to the witness evidence I have noted that there is no dispute about the significant amount of documentary evidence 5 provided to me and I have taken this into account.

[23] In terms of the witness evidence I have noted that Sportsmed did not call Ms Murray to give evidence. Whilst I understand that Ms Murray is not now employed by Sportsmed, her evidence may have assisted in clarifying a number of disputed issues, particularly relative to the conduct of the 24 October 2013 meeting.

[24] The evidence is, in a number of significant respects, quite contradictory. I do not consider that this means that any of the witnesses have set out to deliberately deceive me and have concluded that they simply had different perspectives on the situation. I have, however, taken into account the evidence that for some time after her shoulder operation, Ms Cartisano was heavily medicated and this may have affected her perception of certain issues.

Findings on significant issues

[25] Section 387 establishes a requirement for the Commission to consider a range of factors. In order to do this I have set out below my conclusions about a number of significant disputed facts.

[26] To the extent that there is any dispute over the reasons for the termination of Ms Cartisano’s employment I have concluded that this was due to Sportsmed's conclusion about her capacity to perform the job. There were no issues of a performance nature. The May 2013 performance review 6 confirms that Ms Cartisano was well regarded in terms of her work performance and the evidence of Ms Hill7 confirms that Sportsmed had no performance concerns with respect to Ms Cartisano.

[27] There is no dispute that the CSSD position description 8 is accurate. The evidence of Ms Cartisano and Ms Smith differs with respect to the extent and significance of "floor work" which I have concluded represents active handling of materials and the lifting or pushing weights which may be reasonably heavy. In reaching this conclusion, I have particularly considered the evidence of Ms Cartisano and Ms Smith and have set out my reasons for this conclusion.

[28] Ms Cartisano’s evidence was that, even before her motor vehicle accident, she was encouraged to delegate more and "look at the big picture and overall performance". 9

[29] Her evidence was that after her motor vehicle accident she arranged for other CSSD personnel to undertake the manual handling elements of her job, whilst maintaining a floor presence and that she expected that, when she had properly recovered, this arrangement would continue.

[30] Ms Smith agreed that, prior to Ms Cartisano’s motor vehicle accident she had beenencouragedto delegate more, but significant manual handling work remained as an integral component of the job. Her evidence was that: 10

“Ms Smith: No .... it is very clearly in the position description says that you have to be able to participate in the day to day activities out there in CSD that you have to be able to be able to ... And there’s a loans room, there’s fragment sets which Josie was very good at educating people with. They’re heavy to lift up. There’s loading sterilisers, there’s unloading, there’s covering sick leave, there’s morning tea, there’s covering when someone gets upset and leaves the department, so it is quite a high risk area, there is a lot of hot sterilisers, there’s sharps, there’s all kinds of reasons why you wouldn’t work out there if you weren’t well.”

[31] In terms of the work undertaken by Ms Cartisano after the motor vehicle accident, Ms Smith's evidence was that changes were made to accommodate Ms Cartisano’s medical condition: 11

“Ms Smith: Yes, that’s true, but that was at a cost to us. We asked staff to make that happen and it was at a cost to the department and I have issues with CSD having to cover that ...

Mr Radbone: ... Well, I am sorry, I am a little bit confused ... you say it was at a cost to the department, and yet, previously you indicated to me you weren’t even aware that she was doing work out on the floor. Are you saying that the cost to the department, you understand, was that there was extra staff put on because you believe that Ms Cartisano was not working on the floor after that ...

Ms Smith: No, there was not extra staff put on there was extra effort that they had to put on, and I knew that from the Acting Manager who came to see me twice to say that it was very difficult for the other staff to compensate for ...”

[32] And further, 12

“Mr Radbone: And I think that when Ms Cartisano was on the floor she always had between about 5 - 13 staff members there depending on the demand and that sort of this, is that correct?

Ms Smith: Very mobile, it depends on how many operating theatres we’ve got going, we have a formula for staff members.

[33] Ms Smith differentiated that arrangement from the general requirements of Ms Cartisano’s position in the following terms: 13

“Mr Radbone: ... Would it be fair to say that only a small percentage of the work that you would say was on the floor required lifting weights of say 10 kg or more?

Ms Smith: ... I don’t know what you mean by small percentage .. but you know ... I don’t know what your percentage there is, but the point was that you had to be able to do it. You had to, as a manager, you had to be able to get out there you had to be able to be part of it. You had to be able to do that educating ... which is what we contracted for. That is what is sitting in the job description.

Mr Radbone: ...Yep, well when it says to participate in the day to day activities in the work area, it doesn’t specify that that would necessarily include the lifting of heavy weights that could be done by say male members of the staff and that sort of thing.

Ms Smith: ... No, you can’t rely on that, you don’t know who you’ve got there at the time. Loading sterilisers can be heavy, pushing trolleys can be heavy, I mean every area of CSD has about five different areas, would have a function in it that could be heavy.

Mr Radbone: ... And certainly there is no reason why say the lifting of weights of 10 kg or more could not be delegated to any one of the you know 5 to 15 different other people.

Ms Smith: ...There is a reason Mr Radbone, that wouldn’t work, you couldn’t do it. There are five or six different areas of CSD, there is the loans room, decon room, there’s the going into washers, coming out of washers, wrapping, loading sterilisers, you can’t be calling across CSD to help someone compensate.”

[34] Consequently, I have concluded that the "floor work" with a component of manual handling functions was part of the inherent requirement of the position. Sportsmed has not established to me the extent of that manual handling work or the extent to which it involves lifting of 5kg, 10kg or other manual handling functions.

[35] I have accepted Ms Smith's evidence 14 that she had instructed Ms Cartisano not to undertake floor work and had implemented other staffing arrangements to accommodate this instruction. Ms Smith agreed that, it was possible that Ms Cartisano may have undertaken some floor work. I have accepted Ms Cartisano’s evidence that she did undertake some floor work after her motor vehicle accident, and before her operation, but I have concluded that this did not involve the heavy lifting and manual handling requirements of the position.15 I am not satisfied that the evidence establishes the precise instructions given to Ms Cartisano regarding floor work, or that she breached instructions in this regard.

[36] There is some disagreement over whether Ms Cartisano’s absences were all covered by medical certificates. I have considered the medical information provided by Ms Cartisano to Sportsmed. On the material before me there may have been a time when a medical certificate was not current, but I have concluded that this was not relevant to the decision to terminate Ms Cartisano’s employment.

[37] The parties differ over the provision of leave to Ms Cartisano after May 2013. I am satisfied that Ms Cartisano was initially on annual and then paid sick leave. After her paid sick leave entitlement expired she was on unpaid leave. I have concluded that, at a meeting Ms Cartisano had with Ms Smith on 1 July 2013, Ms Cartisano advised that she was going to have a shoulder operation as soon as this was approved by the motor vehicle insurance authority. Ms Smith’s e-mail to Ms Murray of that date states: 16

“July 1st 1400 2013

Josie came to see me to bring a certificate for the next month and update me on her situation.

She is still waiting for approval for operation by AS on her shoulder from the MVA.

This operation will have a 6-8 week recovery phase but Andrew has told her this will only contribute in a small way to overall recovery as the whiplash is over 90% of her problem.

Josie is on a high dose of chronic analgesia to cope at the moment and very restricted in what she can do. We discussed the fact that this is looking like a rather long term issue.

Josie understands that we may have to make a decision around her position but I have told her that subject to your approval, we will extend the leave up to 12 weeks, because Anita is coping well at the moment.

We will talk with her after the imminent surgery and discuss further.

Certificate is in the mail.”

[38] Ms Murray's response to that e-mail confirmed the extension of leave to 12 weeks.

[39] I have taken it that Sportsmed intended that this extension of unpaid leave applied from 1 July 2013 and that it included the anticipated 6-8 weeks recovery period for the shoulder operation.

[40] However, the advice then provided to Ms Cartisano about the duration of any approved absence is not as clear. Ms Smith's evidence was: 17

“In June 2013 (precise date unknown) Ms Cartisano called in to see me. She was accompanied by her partner. Ms Cartisano advised me that she had shoulder surgery scheduled in 6 weeks’ time, however this was dependant on MVA approval. The recovery period would be about 6 weeks. I questioned Ms Cartisano about her decision to undergo shoulder surgery given she had (in previous discussions) advised me that her surgeon had advised her that the shoulder injury accounted for only 5% of her overall pain issues. Ms Cartisano stated that she felt the surgery might help her psychologically as she viewed it as doing something positive toward her recovery instead of lying on a bed and taking lots of pills. I told her I understood this.

In July 2013 (precise date unknown) Ms Cartisano called in to see me and we discussed her ongoing employment. I advised her that we would wait until after the shoulder surgery which was scheduled for around 27 August 2013 before any final decision was made.”

[41] I note that, in her evidence, Ms Smith confirmed that letter reference was to the meeting on 1 July 2013.

[42] On 6 August 2013 Ms Murray wrote to Ms Cartisano in the following terms: 18

“Susie Smith has been providing me with regular updates regarding your health status and in particular impending surgical interventions.

You must be finding this situation very challenging Josie.

As you are unfit to return back to your CSSD Manager role in the near future, Susie and I will complete a Leave without Pay form for the purposes of providing this to payroll in the interim.

We can then review your ongoing employment situation thereafter, dependant upon the hopefully positive outcome of your surgery Josie.

Please keep in touch with Susie and I.”

[43] On 9 September 2013, at the meeting with Mr Porter and Ms Smith, Ms Cartisano provided a medical certificate signed by her surgeon which relevantly stated: 19

“This is to Certify that Giuseppina Cartisano attended for Medical Examination on 9/9/13 and is suffering from Shoulder Surgery

....

and may then return to work on 10/10/13.”

[44] Ms Cartisano’s evidence, and that of Mr Porter does not assist in clarifying whether Ms Cartisano actually expected to return to work on that date but Mr Porter's evidence provides limited assistance: 20

“SDP O’Callaghan: ... In responding to a question from Mr Radbone you said that Ms Smith said that Ms Cartisano’s job was safe.

Mr Porter: ...That is correct, yes.

SDP O‘Callaghan: ... And then in responding to Ms Victory’s question, you said she gave the impression the job was safe.

Mr Porter: ...Yes.

SDP O’Callaghan: ...Can you recall what words she actually said?

Mr Porter: ... that she could take all the time that she needed to recoup from her injury ... although the exact wording would be ... take all the time you need.

SDP O’Callaghan: ... Was there any discussion about a possible duration of time?

Mr Porter: ... As in when the injury was ...

SDP O’Callaghan: ... No, if you say that Ms Smith said that Ms Cartisano could take all the time she needed to recover from her injury ...

Mr Porter: ... No, no specific time, no. There was no date mentioned, if that is what you mean.”

[45] I have concluded that Sportsmed’s correspondence and discussions with Ms Cartisano confirmed its position that her recovery was the paramount issue. The advice provided to her confirmed that ongoing employment issues may need to be addressed depending on her recovery but did not nominate a specific date for that review. Ms Cartisano’s advice of 9 September 2013, that she may be cleared for a return to work on 10 October 2013, led to the assessment by Dr Graham which substantially contributed to the Sportsmed conclusion that her employment should be terminated.

[46] I am satisfied that the evidence of Ms Hill establishes that the Sportsmed requirement for an independent medical assessment was, at minimum, not an approach that was uniquely applied to Ms Cartisano. Ms Hill’s evidence was that: 21

“As Ms Cartisano had sustained a non-work related injury, I initiated an independent medical assessment to ascertain whether Ms Cartisano was able to perform the inherent requirements of her role, as she had been off work since around May 2013. The assessment was scheduled for 10 October 2013, the same day she had been cleared to return to work. This is a normal procedure undertaken by SPORTSMED SA.”

[47] I have considered the significance of Dr Graham’s report. This independent assessment of Ms Cartisano concluded:  22

“At the current time I would not consider Ms Cartisano fit and able to perform the inherent requirements of her former role as described in the position statement and as she described them to me. She could undertake managerial duties although I would have some concerns at the level of medication she is taking. She would not be able to actively participate in sterilisation duties, working on the floor.”

[48] While there is nothing in the material before me which indicates that Sportsmed misled Dr Graham in terms of Ms Cartisano’s duties and functions, it is very clear that this assessment took into account her position and medication at that particular time. In this respect, had Ms Cartisano had access to that report she could have argued that the assessment by Dr Graham was premature.

[49] Ms Cartisano's evidence was that: 23

“I was then told that the physical assessment has found me unfit to return to work.

As I was aware from the previous telephone conversation that Dr Graham had provided his report, I asked if I could read the assessment. Ms Suzanne Murray said that during the interview she and Ms Paula Hill would refer to the assessment but I could not read it.

There can be no doubt that during the interview, Ms Paula Hill and Ms Suzanne Murray categorically refused to let me read the report of Dr Graham, despite my requests.”

[50] Ms Hill's evidence was that Ms Cartisano asked if her lawyers could have a copy of the report but that she refused that request. 24

[51] Irrespective of whether Ms Cartisano sought access to the report for herself or her lawyers, Sportsmed's refusal to allow her to access it deprived Ms Cartisano of the opportunity to consider that report and the extent to which it was based on the information available to Dr Graham at that time.

[52] Notwithstanding this, the advice Ms Cartisano provided at the 24 October 2013 meeting confirmed that she could not undertake all of the inherent requirements of her job at that time, and that she would be unlikely to be able to fulfil those requirements in the foreseeable future. 25 In reaching this conclusion I have taken it that Ms Cartisano’s position, even at the 24 October 2013 meeting, was that she would soon be able to do her duties apart from the floor work.

[53] Whilst there was no significant difference between the parties relative to Ms Cartisano’s current health, it is appropriate that I also note that, Ms Cartisano’s evidence was that, on 16 April 2014 she obtained a doctors certificate 26 from her general practitioner which confirmed that she was fit for light duties from 18 November 2013. Ms Cartisano advised that this meant she could undertake duties which did not involve lifting of more than 5 kg. Most of the evidence before me referred to work functions involving 10 kg or more. Consequently, were I to find that the termination of Ms Cartisano’s employment was unfair, there is a significant issue associated with her current capacity to fulfil the inherent requirements of the job.

[54] In terms of the 24 October 2013 meeting, I have concluded that neither Ms Cartisano nor Mr Golding requested Mr Golding's participation in that meeting. 27 I have concluded that Ms Cartisano’s participation in the 24 October 2013 meeting was impacted by her medical condition at that time but that she was able to advise Sportsmed of her current and projected medical status. I am not convinced that Ms Cartisano was specifically advised that the purpose of the meeting was to consider termination of her employment.

[55] I am not satisfied that the termination of Ms Cartisano’s employment was by mutual agreement. Ms Hills’ evidence was that she decided to terminate that employment. Her evidence was that: 28

“I explained to Ms Cartisano that we were running out of options and we could not hold her job indefinitely. It was only at this stage, as a result of Ms Cartisano’s responses and the nature of the discussion that had unfolded, that I felt that a separation of employment was the only option left.

I asked Ms Cartisano if she had considered resigning to which she replied she would not.”

[56] Whilst Ms Cartisano may have agreed that her job could not be held open indefinitely, this did not reflect an agreed termination of employment on 24 October 2013. Ms Cartisano acknowledged that she was unlikely to be able to undertake lifting or heavy work even after the next consultation with her surgeon. Ms Hill’s evidence was that: 29

“Ms Murray asked Ms Cartisano about her general health and in particular how she was recovering from her shoulder surgery. Ms Cartisano stated that she was still in pain and she was seeing the surgeon again on 18 November 2013. Ms Murray advised that we had received a copy of the independent medical report which was in view on the table. Ms Murray advised that the report suggested Ms Cartisano was not fit to perform the inherent requirements of her former position and raised concerns over the amount of medication she was taking. I stated that the report indicated that Ms Cartisano’s reflexes were slow and Ms Cartisano agreed with this, adding that if she dropped something she was slow to pick it up.

[57] Ms Cartisano's evidence was that she would be reassessed by her surgeon on 18 November 2013 and that she provided advice to this effect at the 24 October meeting. I have taken it that this advice was provided in the context of Ms Cartisano's position that she could quite possibly undertake the majority of her job after that date. That advice is inconsistent with the proposition that she agreed with the termination of her employment.

[58] Consequently, the termination of Ms Cartisano’s employment occurred because Sportsmed concluded that it was not prepared to provide Ms Cartisano with further leave without pay on the basis of Dr Graham's October 2013 assessment, Ms Cartisano’s confirmation of her medical condition as at 24 October 2013, and it's assessment of the likely continuing nature of that condition.

Section 387

[59] This section states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[60] I have considered each of these factors.

Valid Reason

[61] Notwithstanding subsequent legislative changes I have adopted the concept of a valid reason enunciated by Northrop J in Selvechandron v Petersen Plastics Pty Ltd. .30

[62] In J Boag & Son Brewing Pty Ltd v Button 31 a Full Bench stated:

“[29] It is well established that a valid reason is one which is “sound, defensible or well founded”, but not “capricious, fanciful, spiteful or prejudiced”. An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event. Further, a dismissal based on an incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job. But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense.”

(references removed)

[63] I have also adopted this approach.

[64] As at 24 October 2013, Ms Cartisano was unable to perform all of the inherent requirements of her position. At that time there may well have been a question about whether she could perform all of those inherent requirements of the position at a later time when she had further recovered from her shoulder surgery. Indeed, the backdated medical certificate 32 leaves open the possibility that Ms Cartisano’s capacity to undertake "light duties" after 18 November 2013, was such that, after that date she may have been able to fulfil all, or a substantial proportion of the inherent requirements of her duties. Notwithstanding this, Ms Cartisano agreed at this 24 October 2013 meeting that she was unable to return to work at that time and would not be able to do so for some time into the future. Ms Hill’s evidence was that:33

“Ms Murray produced a copy of Ms Cartisano’s position description and highlighted the necessity for ‘hands on’ work not only to maintain Ms Cartisano’s own skills but to train members of the team. Ms Cartisano stated that she understood this and acknowledged that she was not able to perform all the duties she could previously. Ms Cartisano stated that she could do the management side but she could not lift or carry the trays and she realised this was part of the job.

I asked Ms Cartisano if she believed she would get clearance from her surgeon to return to work, to which Ms Cartisano replied “no”. General conversation in relation to Ms Cartisano’s pain and inability to do things she used to do (like driving) was open and honest. Ms Cartisano gave no indication that a return to former duties was likely in the near future. As a result, Ms Murray asked Ms Cartisano to help us explore other options as we had exhausted all avenues. Ms Cartisano stated that she was still in a lot of pain and often slept 6 hours per day and could not see herself returning to work soon. Ms Cartisano stated that her shoulder injury only accounted for “5%” of her injuries; the rest was due to the neck pain she sustained in the motor vehicle accident.

I asked Ms Cartisano if she believed she would be able to come back to work in the near future, to which she replied that she could not. I asked Ms Cartisano what she did to occupy her time to which she replied she did some ‘scrap booking’ but even then she could not do it for long periods. Ms Cartisano added that she could not even vacuum her house due to the injury.”

[65] The 24 October 2013 termination decision was informed by Dr Graham's report. The catalyst for that report was the certificate of 9 September 2013 and the assessment was made in the context of a possible return to work on 10 October 2013.

[66] Ms Cartisano was not advised that the meeting of 24 October was to consider termination of her employment. The last meeting that she had with Sportsmed on 9 September 2013 did not specify a time restriction for her continued absence.

[67] In that context, while Sportsmed was clearly entitled to be concerned about Ms Cartisano’s capacity to work, its termination of employment decision of 24 October 2013 was inconsistent with the earlier advice to Ms Cartisano about the duration of her absence. That the termination decision was informed by Dr Graham’s report with its focus on issues associated with an imminent return to work. That the report was not provided to Ms Cartisano is inconsistent with the concept of fairness inherent in a valid reason. Additionally, I am not satisfied that Sportsmed explained to Ms Cartisano that while it had been prepared to accept that she could undertake modified duties from the time of her accident to May 2013, this could not continue in the future. Had Sportsmed given Ms Cartisano notice that it was reviewing her employment, had it provided her with the relevant report and then discussed her capacity to undertake all of the inherent requirements of the job, the approach in Boag would have mitigated in favour of a different conclusion. On the material before me I am not satisfied that there was a valid reason for the termination of Ms Cartisano’s employment as at 24 October 2014. The evidence before me tends to suggest that Ms Cartisano’s medical condition since that time has not changed such that she could undertake the inherent requirements of the job but does not definitively establish that so as to enable a conclusion in this respect.

Notification of the reason

[68] I am satisfied that Ms Cartisano was advised of the reason for the termination of her employment in the course of the meeting on 24 October 2013. That is clear from both Ms Cartisano’s and Ms Hill’s evidence. I am also satisfied that the correspondence forwarded to Ms Cartisano of that same date 34 confirms that the termination of her employment was because she was unfit and unable to perform the inherent requirement of her role.

Opportunity to respond

[69] The meeting of 24 October 2013 provided Ms Cartisano with an opportunity to respond to the termination of employment proposal. Nevertheless, I think this opportunity was severely compromised. Firstly, I have noted that, given that Ms Cartisano was in the process of recovering from surgery and Sportsmed had Dr Graham's report which advised that she was taking significant quantities of medication, this opportunity was inherently flawed. Had Sportsmed given Ms Cartisano advance notice that the meeting of 24 October 2013 could result in the termination of her employment, or had it scheduled another meeting soon after that for this purpose, Ms Cartisano would have been more fairly placed so as to be able to respond.

[70] This concern is heightened by the extent to which the Sportsmed were able to consider Dr Graham's report in deciding to terminate Ms Cartisano’s employment decision but should have provided that report to her so that she was able to respond to it.

[71] Accordingly, I have concluded that this factor is indicative of unfairness directed at Ms Cartisano.

[72] I have also concluded that Ms Cartisano may, in the course of the 24 October 2013 meeting, have adopted the position that the termination of her employment was inevitable but this is distinguishable from agreement with that termination decision.

Unreasonable refusal to allow a support person

[73] I am not satisfied that Ms Cartisano requested that a support person attend the 24 October 2013 meeting with her. In reaching this conclusion I have noted that Mr Porter attended an earlier meeting with her and that the evidence indicates that Mr Golding discussed attendance at the 24 October 2013 meeting with Ms Cartisano whilst travelling to that meeting and agreed that he would wait outside. Further, the evidence of Ms Hill is that no request to this effect was made. 35

[74] My conclusion in this respect must also be substantially qualified by the observation that Ms Cartisano was not told before, or at the commencement of the 24 October 2013 meeting that termination of her employment was a possibility such that she could have requested that a support person be present. Accordingly, I consider this is a factor which goes toward demonstrating unfairness in the process.

Warnings about unsatisfactory performance

[75] The termination of Ms Cartisano’s employment was not related to unsatisfactory performance and the evidence before me establishes that she was highly regarded in this respect.

Size of the Sportsmed enterprise in terms of impact on procedures

[76] I am satisfied that Sportsmed is a substantial employer and that it had procedures and policies which would assist in ensuring fairness to employees. I am not satisfied that procedures and policies were applied in a manner which demonstrates that Ms Cartisano was treated as fairly as might have been the case in terms of the dismissal process.

Access to dedicated human resource management expertise

[77] Ms Hill is the Sportsmed Human Resources Manager. She was involved in the termination decision-making and implementation process. In that context, whilst it is somewhat surprising that issue of fairness in the decision-making process were not more thoroughly addressed, this may have been a consequence of the way in which the meeting on 24 October 2013 progressively unfolded.

Other matters considered relevant

[78] Ms Cartisano has referred to documents which may be missing from her personal file. I am not satisfied that, even if this is the case, that it is intentional or relevant to the termination of her employment.

[79] As at 24 October 2013 Ms Cartisano was no longer receiving weekly payments and, with the exception of the disputed payment in June 2013 had not done so for some six months. Had she remained absent from her employment beyond that date I have concluded that this would have been on the basis of continuing unpaid sick leave.

Conclusion - harsh, unjust or unreasonable

[80] I am not satisfied that there was a valid reason for the termination of Ms Cartisano’s employment in the particular circumstances of this matter. Had the approach of Sportsmed been different I may well have reached a different conclusion in this respect. Irrespective of the valid reason consideration I have concluded that the manner of the termination of Ms Cartisano’s employment was such that it was harsh and unjust. It was effectively implemented without advance warning, was inconsistent with earlier advice to her and was effected in a manner which deprived her of the capacity to fairly challenge the Sportsmed position.

[81] Consequently I have concluded that the termination of Ms Cartisano’s employment was unfair.

Remedy

[82] Section 390 establishes that in these circumstances a remedy may be ordered. This section states:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[83] The primary remedy is that of reinstatement to the position held by Ms Cartisano prior to her dismissal or to another position, on terms and conditions no less favourable than those that then applied.

[84] As I have indicated, I have significant reservations, on the medical evidence before me, about Ms Cartisano’s capacity to undertake the inherent requirements of the position. There is no evidence before me which identifies possible alternative positions.

[85] In the event that I considered reinstatement to be inappropriate s.390(3), an amount of compensation may be considered. The factors which must be taken into account in considering an order for the payment of compensation are set out in s.392. In terms of those factors, if I concluded that Ms Cartisano would have been likely to have remained on unpaid sick leave had she not been dismissed on 24 October 2013, an award of compensation may become highly problematic.

[86] I am not satisfied that the evidence before me enables a conclusion relative to the issue of remedy and have decided that the matter should be relisted for further consideration in this regard. That further consideration may be informed by additional evidence about Ms Cartisano’s current medical condition. In this respect I would expect more substantial medical evidence than the backdated medical certificate obtained by her shortly before the hearing of this matter. 36 To the extent that Sportsmed request a more detailed medical assessment of Ms Cartisano’s health I would expect Ms Cartisano to attend an appointment arranged for her. The parties may also provide additional evidence about the extent to which Ms Cartisano is now able to undertake the inherent requirements of the position. The matter will be listed for a determinative conference to consider this issue on the basis that some time will be allowed before the listing to allow for medical assessments.

SENIOR DEPUTY PRESIDENT

Appearances:

J Radbone counsel for the applicant.

C Victory counsel for the respondent.

Hearing details (Determinative Conference):

2014.

Adelaide:

April 22.

 1   Exhibit C5, para 10

 2   Exhibit C5, para 12

 3   Exhibit C4, para 10

 4   Exhibit S3, para 13

 5   Exhibit S2

 6   Exhibit S3, document 10

 7   Sound recording, 1:40 pm, 22 April 2014

 8   Exhibit S2, document 1

 9   Exhibit C2, para 19

 10   Sound recording, 11:54:39 am, 22 April 2014

 11   Sound recording, 11:55:50 am, 22 April 2014

 12   Sound recording, 11:58:30 am, 22 April 2014

 13   Sound recording, 11:58:52 am, 22 April 2014

 14   Sound recording, 11:53:30 am, 23 April 2014

 15   Exhibit C2, para 30

 16   Exhibit S2, document 14

 17   Exhibit S3, paras 11 and 12

 18   Exhibit S2, document 15

 19   Exhibit S2, document 17

 20   Sound recording, 11:23:13 am, 22 April 2014

 21   Exhibit S4, para 3

 22   Exhibit S2, document 20, last para

 23   Exhibit C2, paras 84 - 86

 24   Exhibit S4, para 11

 25   Exhibit C2, paras 82 and 83

 26   Exhibit C3

 27   Exhibit C4, para 11

 28   Exhibit S4, paras 15 and 16

 29   Exhibit S4, para 10

 30 (1995) 62 IR 371 at 373

 31   [2010] FWAFB 4022

 32   Exhibit C3

 33   Exhibit S4, paras 12, 13 and 14

 34   Exhibit S2, document 23

 35   Exhibit S4, paras 8 and 9

 36   Exhibit C2

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