Health Services Union of Australia and Elizabeth Smith and Royal Melbourne Hospital

[1995] IRCA 52

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 622 of 1994

B E T W E E N :

HEALTH SERVICES UNION OF AUSTRALIA &
ELIZABETH SMITH
Applicants

AND

ROYAL MELBOURNE HOSPITAL
Respondent

Before:       Judicial Registrar Chancellor
Place:         Melbourne
Date:           28 February 1995

REASONS FOR JUDGMENT

This is an application pursuant to Section 170 EA of the Industrial Relations Act by the Health Services Union of Australia (“the Union”) and Elizabeth Smith (“the Applicant”) in respect of the termination of the Applicant’s employment by the Royal Melbourne Hospital (“the Hospital”) in mid-1994.

The Applicant commenced employment with the Hospital as a food and domestic services assistant in 1988.  Her main duties included mopping, vacuuming, high and low dusting, cleaning toilets and bathrooms, removal of rubbish and a variety of other tasks which she performed from time to time.

Unfortunately the Applicant suffered an injury during the course of her employment on 13 June 1991 resulting in injuries to her neck and back and later problems with her shoulders, arms and legs.  The Applicant was off work and paid Workcare payments until February 1992.  By letter dated 21 January 1992 the Applicant was made a job offer which involved her returning to work on reduced days and hours and on restricted duties as a cleaner.  The job was formulated by Peter Sutcliffe, the return-to-work coordinator at the Hospital and Phillipa Watt the environmental services manager at the Hospital.  The long term goal was for the Applicant to return to full-time hours and normal duties via a graduated return to work program.

The Applicant gave evidence that upon her return to work she did low dusting, removed light rubbish, cleaned toilets, cleaned the top and outside of bath tubs but not the inside and cleaned the base of showers but not the rest of the showers.  She commenced on 3 days per week, 3½ hours per day and gradually increased the days and hours.

A further job offer was made by the Hospital to the Applicant by letter dated 30 November 1992.  This involved the Applicant in working on full-time restricted cleaning duties and that is what occurred.  Again, it was anticipated that normal duties would be made available by 11 January 1993 if at that time being medically appropriate.
At a meeting held prior to the job offer being made in November 1992, Ms Watt assured the Applicant that the Hospital would look after her but encouraged the Applicant to perform a fuller range of duties and hours so that she could at least get back to a full wage.

Peter Sutcliffe gave evidence that in practical terms there was a time limit as to how long a department could cope with a person on modified duties.  There was a greater degree of difficulty in the department coping if there was a greater degree of modification required.  This was particularly so with ongoing staff reductions.

The Applicant’s evidence was that she did not believe that she was physically fit to carry out the full range of full-time modified duties but felt that she should push herself to try full-time work.  She felt there was some pressure on her to increase the range of duties and felt she should try, despite the belief that she may not be able to cope.  The Applicant attended Dr Pappas, her treating general practitioner, in early February 1993 and Dr Pappas wrote a certificate dated 8 February 1993 stating that the Applicant was “fit to return to normal duties 8 hours per day”.  I form the view that although both the Applicant and Dr Pappas felt that Mrs Smith would probably be unable to cope with normal duties, including as they did mopping and vacuuming, they felt that it was still appropriate to provide such a certificate so that Mrs Smith could at least test herself out on full-time normal duties.

In response to that medical certificate the Hospital made a job offer of normal duties commencing 15 February 1993.
From 8 February 1993 the supervisor asked the Applicant to mop and vacuum for one hour every day.  She tried this for one week but her body became sore and painful.  The Applicant told Peter Sutcliffe that she could not perform full-time duties.  A meeting was held on 15 February 1993 involving Mrs Smith, a union representative, Phillipa Watt and Peter Sutcliffe.  The Hospital still wanted the Applicant to perform some gradual return to mopping and vacuuming duties as it was the Hospital’s aim to return the Applicant to normal duties within eight weeks.  A memorandum of 17 February 1993 confirmed that the Applicant was to attempt some mopping and vacuuming and said that Jim Tarevski was to provide training.  However, I find that no training took place.

During late February and early March 1993 the Applicant attempted some mopping and vacuuming duties but aggravated her neck, back and arm problems.  She was forced to take a couple of days off work and eventually this was accepted by Workcover as an aggravation of her injury.  Thereafter, the Applicant discontinued mopping and vacuuming.

A further meeting was held on 30 March 1993 involving Mr Sutcliffe, Ms Watt and Mr and Mrs Smith.  The Hospital agreed that the Applicant was no longer required to perform mopping and vacuuming duties but asked that she include dry and wet dusting in the work that she was performing.  The Applicant confirmed that at that meeting Mr Sutcliffe advised her that restricted duties could not be provided indefinitely.

In June 1993 a further meeting between the Applicant, Mr Sutcliffe and Ms Watt took place to review the Applicant’s work performance.  The Applicant was not well enough to vacuum and mop and was having difficulties coping with her limited duties.  The medical report of Dr Pappas prepared in June 1993 said that the Applicant was fit for dusting and very light cleaning only, not to do mopping and vacuuming and any more duties would serve to aggravate the condition.  The medical report of Mr Kevin King, the Applicant’s treating orthopaedic surgeon, in May 1993 indicated that the Applicant was suffering from chronic neck and back pain and stiffness with restrictions around the house and was doing light cleaning duties at work and managing with difficulty.

The Applicant’s evidence was that between March and November 1993 she was doing mainly dry and damp dusting together with cleaning of basins, toilets and some collection of light rubbish.  The duties she was performing were similar to those performed since her return to work in January 1992 but it appears that she reduced and perhaps rarely carried out the cleaning of parts of showers or baths.

There was considerable argument as to how productive the Applicant was when carrying out these duties.  Anna Aristotle, an officer of the Union gave evidence that she had attended at the Hospital for about 2 hours, had watched the Applicant work for ½ an hour and formed the view that the Applicant was performing a wide range of productive tasks.  On the other hand, Phillipa Watt gave evidence that the Applicant’s work was generally not productive because Ms Watt had to send an extra person to the area to do the floor work and above shoulder work and various other duties that the Applicant could not perform.  With both multi-skilling and down sizing introduced it was the aim of the Hospital to have one person work in a particular area and perform all of the relevant tasks in that area.

After hearing all of the evidence I form the view that the Applicant’s work was of limited productive value.  By being restricted to cleaning only parts of baths and showers and to dusting and cleaning only parts of walls and windows within her reach, it necessarily meant that another person was duplicating at least some of the work that she was doing.  Presumably, most of the rubbish also had to be double checked as the Applicant would make an assessment as to whether or not the rubbish would be too heavy and if she declined to move it then somebody else would have to undertake the task.

On the basis that the Applicant’s work was less than productive Phillipa Watt took the view in November 1993 that the Applicant had to perform a bit more because there were no longer supernumery positions available.

The Hospital made a further job offer to the Applicant by letter dated 15 November 1993.  The offer was different to previous offers in that the long term goal was not to return the Applicant to normal duties but to establish her in full-time suitable employment within the next two months.  The job offer was somewhat contradictory in that the modified duties were only to remain available up to and including 17 December 1993 meaning that the job offer was effectively for one month only.  The job involved no vacuuming and no wet mopping but required the Applicant to perform dusting, light cleaning and also introduced a requirement that she use a swivel mop in the front foyer and main block lift area of the Hospital.  The offer stated that use of the swivel mop would involve training by Mr Tarevski.  The offer indicated that the swivel mop was a sweeping tool and would not require the use of water nor involve repeated bending, pushing or pulling.  Peter Sutcliffe gave evidence that he regarded these duties as suitable and within the Applicant’s medical constraints.  The particular job which was offered had actually been performed by a former employee of the Hospital for a twelve to eighteen month period prior to it being offered to the Applicant.  The previous employee had undergone back surgery prior to her return to work and had coped with the job.  Phillipa Watt agreed in cross examination that this was a real job, a normal structured position and that it was productive for the Hospital.

Unfortunately, the Applicant felt that she was unable to accept the job offer.  She said in evidence that the only duty she could not perform was the use of the swivel mop although she probably would not have coped with the higher dusting.  A swivel mop was produced to the Court by Mr Sutcliffe and after having viewed it and seen a brief demonstration as to how it was used it appears to be very light, ergonomically designed, and to require minimal force.  Despite this the Applicant alleged that it was likely to cause her arm problems and this was evidence that the Applicant has very significant physical limitations.

It was at the time of the November job offer that the Union became actively involved in this matter.  Anna Aristotle was called in and discussed matters with Mr Sutcliffe.  The Applicant had refused to sign the job offer on the advice of the Union.  Anna Aristotle gave evidence that she indicated to Mr Sutcliffe that the Applicant was unable to increase her duties, that other options should be explored, that the Hospital was being unreasonable as it was being intimidatory toward and harassing the Applicant, and that in the view of Ms Aristotle the Applicant was doing a wide range of productive tasks.

After hearing all the evidence I disagree with the view that the Hospital was being intimidatory or harassing, indeed it had changed its direction by altering the goal to a return to suitable employment and had offered a real, structured job which had previously been undertaken by a woman following back surgery.  I have already found that the Applicant’s work up until that time was less than productive and I believe that the Hospital had been both fair and patient in its dealings with the Applicant.

The Applicant gave evidence that she told both Anna and Dr Pappas that she was being harassed and pushed too hard and that she told them of her concerns towards the end of 1993.  The Applicant said that the job offer of 15 November wanted her to do more, even if lighter, duties but that the duties were “too many, too much” and that she wouldn’t have time to do them.  Given that these were legitimate concerns on the part of the Applicant, it is merely an indication of the serious extent of her physical incapacity.

A meeting was held on 22 November 1993 when Mr Sutcliffe asked the Applicant why the offer had not been accepted.  I think it is unlikely that the Applicant referred specifically to the swivel mop, but more likely that she said she couldn’t do the duties.  The Applicant agreed that Mr Sutcliffe again warned her that the Hospital could not provide her with light duties on an indefinite basis.

By letter dated 30 November 1993 Mr Sutcliffe wrote to Dr Pappas outlining the duties which he felt the Applicant was then performing.  The letter detailed the duties then being performed as dusting, cleaning toilets and cleaning hand basins.  This was probably fairly accurate although it seems that the Applicant was removing some light rubbish and may have cleaned part of showers or baths from time to time.  Unfortunately, Mr Sutcliffe did not show a copy of this letter to the Applicant and accordingly she was unable to have any input into its accuracy.  The letter outlined many duties which were not performed including vacuuming, mopping, cleaning floors, high dusting, removing heavier rubbish, cleaning walls, showers and baths.  Despite the proper criticism that this letter was not shown to the Applicant it seems to me that it reasonably and accurately reflected the duties being performed at the time.  The letter sought advice as to which of the tasks which were not currently being performed would be compatible with medical guidelines.  Unfortunately Dr Pappas did not reply and just as unfortunately it appears that Mr Sutcliffe did not follow the matter up.

After refusing to accept the November job offer it appears that the Applicant continued working on the very restricted duties which he was performing.  The Applicant gave evidence that in February 1994 she attended Dr Pappas, told him that people at work were pushing her and told him that she should be able to work at her own rate and rest if required.

In response to this consultation Dr Pappas wrote a medical certificate dated 25 February 1994.  The certificate stated:-

“Elizabeth Smith suffers from chronic neck, back and wrist pain which are due to:-

1.chronic musculo ligamentous strain;

2.aggravation of degenerative disc disease of cervical and   lumbar region.

She should work as indicated in Workcover certificates in light work and she should work AT HER OWN RATE AND REST WHENEVER SHE NEEDS TO.

As such she should not be PUSHED as she ALLEGES.”

I must admit that the evidence given by the Applicant did not make it clear to me by whom or why she was being pushed at work.  In any case, she made those allegations to Dr Pappas and his response was to issue the certificate of 25 February.

It is clear from the evidence that the receipt of this certificate had a very substantial impact on the Hospital in relation to its handling of the Applicant and her rehabilitation.  Mr Sutcliffe took the view that it was not possible to provide duties compatible with the certificate.  He felt that it was no longer possible to safely offer the Applicant duties within the organisation as the certificate was so restrictive.  Mr Sutcliffe gave evidence that on the basis of the certificate it was no longer feasible to re-train or re-deploy the Applicant.  He felt that his realistic involvement as return to work coordinator had ended.  He expressed these views to Phillipa Watt and also to Jeff Smith, the manager personnel administration of the Hospital.  Mr Sutcliffe felt it was not possible to provide duties which enabled somebody to work at their own pace and rest if required.  He felt that the Applicant was a risk in her position as further injury could occur.  On the basis of the certificate Mr Sutcliffe formed the view that there was nothing feasible that the Applicant could do in the Hospital.

This seems to be a rather strange conclusion to have been reached by an experienced and well qualified return to work coordinator, particularly when the Applicant was working on non-sedentary duties at the time.  Mr Sutcliffe was strongly criticised during the course of cross examination for his reaction to the certificate and in my opinion this criticism was justified.  It appears that Mr Sutcliffe made no attempt to contact Dr Pappas to discuss the certificate with him nor did he discuss the certificate with Mrs Smith.  He merely took the certificate on face value.  This was obviously a very risky thing to do.  One only has to recall the medical certificate issued by Dr Pappas on 8 February 1993 that the Applicant was fit to return to normal duties 8 hours per day.  That certificate did not accurately reflect the view of either Dr Pappas or the Applicant but was submitted so that the Applicant could “have a go”.  In my opinion it was appropriate that Mr Sutcliffe attempt to contact Dr Pappas both in relation to the medical certificate and the letter of 30 November 1993.  Whilst I agree that it does not seem that Dr Pappas was being particularly helpful, I find that if the receipt of the certificate was to have such a substantial effect on Mr Sutcliffe’s view of the matter, then it should have been discussed with Dr Pappas and the Applicant.

Phillipa Watt gave evidence that upon seeing the certificate she felt that the Hospital no longer had a guaranteed outcome of work which was a completely untenable situation.  She gave evidence that the staff had specific workloads and it was inappropriate that there not be a guaranteed outcome where the certificate indicated that the rate of work could slow and indeed stop.  Phillipa Watt indicated that she did not attempt to contact Dr Pappas because she felt that the certificate was self explanatory.  She returned the matter to Mr Sutcliffe to follow up.

Mr Sutcliffe’s follow up was to write a letter to Dr Pappas dated 7 March 1994.  The letter said as follows:-

“Thank you for your certificate of 25.02.94 relating to the above and your accompanying letter.

Given your latest requirement that Mrs Smith work and rest “whenever she needs to”, the Hospital does not have such duties compatible with the disability you describe.

In the circumstances she will “not be pushed” as you have so requested.

Many thanks for your assistance in this matter”.

Although Mr Sutcliffe denied in cross examination that this was a sarcastic response to the certificate, it seems to me that that was a fairly accurate description.  Mr Sutcliffe may have quite rightly been upset about the allegations that the Applicant was “being pushed” but his duty as return to work coordinator required him to make a far more positive response.  Indeed, the Applicant continued working at the Hospital subsequent to the provision of the certificate of 25 February.  It would have been a relatively easy matter to have monitored her progress over a number of days to see what effect the certificate had in terms of rest periods and rates of work.  This was not done.  In my view the follow up to the certificate was inadequate and the response unreasonable given the information then available.

I reiterate that this was particularly so given the very substantial effect the certificate had on the Hospital and its view of the matter.  Mr Jeff Smith gave evidence that when shown the certificate he felt that it took away the element of employer control.  He felt that it was not possible to monitor the worker or to be sure of work outcomes.  A worker was required to perform a certain amount of work each day and this could not be guaranteed.  However, in cross examination Mr Smith admitted that he had not spoken to the Applicant between 25 February and 29 March nor did he recall instructing anyone to do it.  He admitted that he could have looked further into the matter.

In response to the Applicant’s refusal to accept the job offer of November 1993 and also in response to the certificate of Dr Pappas, Mr Smith wrote to the Applicant on behalf of the Hospital on 29 March 1994 in the following terms:-

“I note that since your injury and resulting incapacity of 13 June 1991, you have been medically incapable of returning to work to your pre-accident duties of domestic services assistant.

The Hospital offered to you, on a temporary basis, selective duties to assist you in returning to work to sustainable productive employment.  Despite the best endeavours of all parties:-

(a)Your incapacity continues to preclude you from returning to              pre-accident duties;

(b)The Hospital is unable to offer you selected duties (as they                no longer exist).

It is open to the Hospital to form the view that the original contract has been frustrated due to your inability to perform the duties for which you were employed.  However, prior to the Hospital forming a concluded view, we invite you to submit any material or make any submission in this matter.”

Mr Smith gave evidence that it was his opinion that on the basis of the evidence before him that the Applicant could not do anything within the Hospital.

I note that up to this stage the Hospital’s primary objective had been to return the Applicant to her pre-injury duties.  This was clearly not a sustainable objective.  In November of 1993 there was some attempt to return her to suitable duties within the environmental services department.  At the time of the Hospital’s letter of 29 March 1994 the evidence indicates there had been no real consideration given to the Applicant being re-trained or re-deployed somewhere else within the Hospital.  Jeff Smith’s evidence was that when he wrote the letter he was basically concerned with the fact that the environmental services department had reduced its number of employees substantially from over 300 to just over 200 employees and that he was primarily ascertaining the likelihood of the Applicant’s return to full duties.  It appears that he had certainly given no consideration at all to a return to alternate duties outside the environmental services section of the Hospital.

Following the letter of 29 March a meeting was held on 22 April 1994 at which Jeff Smith, Phillipa Watts, Anna Aristotle and the Applicant were present.  The Applicant was asked in some detail what duties she could and could not perform.  She indicated an ability to perform slightly more duties that those outlined in the letter of the Hospital to Dr Pappas of 30 November 1993.  However, it was clear that she was still unable to perform a large proportion of the duties of a cleaner.  Mr Smith gave evidence that he indicated that there were three possible options open to the Hospital:-

1.      To continue with the Applicant on the same duties;

2.      To pay her at a reduced rate of pay reflecting the very restricted          duties which she was performing;

3.      To terminate her employment.

Both the Union and the Applicant rejected the second option out of hand.  The third option was rejected on the basis that the Applicant was doing some duties to the best of her ability and wanted to continue in employment.  Both the Union and the Applicant felt that the first option was appropriate on the basis that she was performing a productive job at the time.

Mr Smith said in evidence that prior to the meeting he felt that the third option was a much greater chance than the first option.  He said that the Hospital would probably only have decided not to terminate if the Applicant had said at the meeting that she would be fit for full cleaning duties at the time or in the near future.  It appears clear to me that the Hospital had formed the view at that stage that the Applicant was to be terminated unless she could perform full or near full cleaning duties within the immediate future.

The question of re-training and re-deployment was not raised at the meeting.  Mr Smith said he did not consider it an option as the certificate of Dr Pappas placed such restrictions upon the Applicant that it would be impossible to re-deploy her.  It appears that the union did not raise the matter as Ms Aristotle was of the view that the Applicant was performing productive work at the time, although as I have previously stated I do not agree with that conclusion.

In cross examination it was put to Mr Smith that if the Hospital was properly investigating the Applicant’s future employment and reasonably consulting with all relevant parties, then it would have been appropriate to have raised the question of the medical certificate of 25 February at the meeting given the conclusions that had been drawn from it.  Mr Smith’s response was that he felt 100% sure that the Applicant was fully aware of its contents.  She may not have been so aware and it is probable that the Union had no knowledge of the certificate.

Following the meeting of 22 April the Applicant left work on holidays.  Mr Smith gave evidence that after the meeting he was not involved in any discussions in relation to re-deployment or re-training.  He had no recollection as to whether or not he spoke to other managers to inform them of what the Applicant had said she could and could not do in relation to her work.  Mr Smith formed the view that because the Applicant would not get back to her full duties that work efficiencies within the environmental services department would be upset.  He was also of the view that due to the less than productive nature of her modified duties that they couldn’t be continued within the department.

By letter dated 27 April 1994 the Hospital advised the Applicant that her services were to be terminated.  The letter said in part:-

“I note from our meeting your advice that you are medically unable to work performing the duties of a domestic services assistant, and that this incapacity shall persist indefinitely into the future.  Under the circumstances, the Hospital is constrained to treat your contract of employment as frustrated.  Your employment shall accordingly cease on 25 May 1994, four weeks hence.”

The Applicant received the letter whilst on holidays and immediately contacted the Union.  Ms Aristotle contacted the Hospital and objected strongly to the termination.  A meeting was held on 20 May 1994 to discuss the matter.  Ms Aristotle was present together with Anne Halloran, the manager employee relations of the Hospital and Janet Donohue from the employee relations department of the Hospital.  Ms Aristotle indicated that the Union felt that insufficient consideration had been given to the Applicant’s continuing employment either by way of re-deployment or ongoing employment on modified duties.  The Union indicated that there were many classifications of employment within the Hospital and that they had not been properly considered.  Eventually, the Hospital representatives agreed to arrange for a rehabilitation assessment to be undertaken in relation to the Applicant.  Anne Halloran gave evidence that she wanted to be quite sure that the Hospital had done everything in terms of re-deployment and re-training.  She further indicated that she had never had any direct discussions with the Applicant in relation to these matters. She further indicated that she felt that with the Applicant’s limited literacy skills that it would be difficult to re-deploy her.  She had obtained this information by reading through the Applicant’s personnel file.  However, she did not have the return to work file or Workcare files available to her and she had no information concerning what steps or approaches had been made previously in relation to re-deployment or re-training.

The Applicant attended the Commonwealth Rehabilitation Services (“CRS”) where a work capacity evaluation was carried out together with a full vocational assessment.

By letter dated 25 May 1994 the Hospital advised the Applicant that her period of notice had been extended for two weeks.  She was advised that she was on paid special leave and that her co-operation was sought in attending the CRS.  Jeff Smith gave evidence that this letter was seen by the Hospital as representing a stay on her dismissal from employment.

The CRS completed a report dated 2 June 1994.  The vocational assessment was to gauge the Applicant’s suitability for employment, re-deployment and re-training.  It found that she had a limited education and that her reading and writing levels were inadequate for clerical or administrative work.  CRS found that the Applicant spoke English but with a limited vocabulary which would make any re-training particularly difficult.

The report outlined the variation in opinion between the Applicant and the Hospital in relation to the nature of duties which were being performed.  As I have indicated I tend to agree with the view of the Hospital that the Applicant was performing severely restricted duties which did not constitute an acceptable permanent productive variation on a standard position.  The report indicated that the Applicant’s skills lay only in the cleaning or food preparation areas, and her involvement with food preparation had been a number of years earlier.  The report found that the Applicant’s physical capacity was severely limited.  The report indicated a number of categories of work within the Hospital, however only a very broad overview was included.  Mr Sutcliffe gave evidence that he had minimal contact with the CRS prior to the preparation of the report, and provided only an overview of the broad positions which may be available within the Hospital.  There was no list of specific positions provided and it appears that Mr Sutcliffe did not give any particular thought to positions that might be appropriate for the Applicant prior to contacting the CRS.  Mr Sutcliffe agreed that there might be up to 130 different categories of work in the Hospital, most of them of non-medical nature.

The Hospital received the report in early June.  Anne Halloran then sent an internal memorandum to the food services department asking the manager if the Applicant could be re-deployed into that area.  A detailed list of the Applicant’s restrictions was included with the memorandum.  The restrictions as indicated in the report and repeated in the memorandum were very substantial:-

·     lower than average grip strength

·     sitting tolerance of approximately one hour

·     able to stand for short periods of time only

·     restriction of active range of movement of back, neck and shoulder

·     arms cannot be raised above shoulder height

·     must work at her own pace

·     cannot lift from floor level

·     only able to work at heights ranging between knee and shoulder levels

·     only able to carry loads of up to 4.2kg

·     maximum load for pushing 4.3kg

·     not able to read or write English beyond very simple items.

Given those restrictions it was obviously going to be very difficult to place the Applicant in any alternate employment.

The manager of food services replied that some of the restrictions as listed would prohibit the individual from performing the full range of duties as required.  The memo indicated that there were no jobs with such a restricted range of duties.

Anne Halloran agreed in cross examination that the Hospital did not check with any other category within the Hospital, for example maintenance, clerical, administrative, mail, courier or whatever but only forwarded the request to the food services section.  Further, there was no evidence to suggest that any contact was made with the Applicant, Dr Pappas, various other department heads who may have had jobs available or indeed Peter Sutcliffe who was the Hospital’s own return to work coordinator.  It seems that very limited use was made of the report.

A further discussion between Anna Aristotle and Janet Donohue occurred on 10 June 1994.  Ms Aristotle again asked if alternate employment had been fully explored and looked at.  In the alternative she requested that part-time work or a voluntary departure package or payment due to redundancy due to her employment injuries be considered.  The Hospital replied that part-time work could not be considered as the worker would be expected to perform a full range of duties.  Janet Donohue gave evidence that she did not believe it was the policy of the Hospital to dismiss employees if they could not return to their pre-injury employment as a result of injury.

By letter dated 10 June 1994 and signed by Anne Halloran on behalf of the Hospital the Hospital wrote to the Applicant in the following terms:-

“After careful consideration of your work capacity evaluation and the vocational assessment report and the advice that  you are medically unable to work performing the duties of a domestic services assistant, the Hospital finds it is unable to provide you with continued employment.  As previously advised, you will be paid up to and including today.  Your termination date will be advanced from 25 May to 10 June 1994”.

Was there a Valid Reason for the Termination

The Respondent argued that it had valid reasons for the termination of the Applicant’s employment on the grounds that she no longer had the capacity to carry out the job for which she was employed or any other productive job reasonably open to her within the area in which she was employed, and further based on the operational requirements of the business in that with the substantial reduction in staff in the environmental services section of the Hospital from approximately 330 at the beginning of 1992 to some 202 in late 1994 that there was no longer the opportunity to employ persons in supernumery positions.

Upon consideration of all of the evidence I find that the Respondent has satisfied the onus in relation to both of these reasons.  Although the Union argued that the Applicant was performing productive work I have already indicated that in my view this was not the case due to her lack of capacity.  Further, Ms Aristotle agreed in cross examination that the Royal Melbourne Hospital did not have excess employees, that the staffing situation was tight, that there had been a substantial reduction in staff over the preceding two years and also agreed that a return to work should not create problems or excess work or difficulties for other staff.

I note that the Applicant expressed the view in her evidence that she should have been provided with light duties indefinitely, but in my opinion this is only a viable long-term option if the light duties are productive or if the light duties job is a normal structured position whether full-time or part-time.

I note that the Victorian Accident Compensation Act provides an obligation on the employer to provide suitable employment for at least 12 months from the date of incapacity.  It seems to me that within this 12 month period, which should be seen as a minimum period, it is fair to expect an employer to take a worker on less than productive duties.  Outside that period there must be some expectation of productive light duties being worked within a reasonable time depending on such factors as the size and type of work of the employer and the particular circumstances of the worker.

I find that the decision to terminate was made on 10 June 1994 and was confirmed in writing to the Applicant on that date.  Although an earlier decision had been made, I find that that decision was stayed, and that at the time of the final decision valid reasons existed in relation to both lack of capacity and the operational requirements of the business.

Was the Termination Harsh, Unjust or Unreasonable?

Up until late 1993 the Hospital acted properly and fairly in relation to the Applicant.  The Hospital continued to provide appropriate duties albeit duties that were less than productive.  Further, although attempts were made to increase the range of duties, the Applicant’s wishes were fully respected and adhered to when she indicated that she was incapable of performing certain tasks.  The Hospital had regular meetings with the Applicant to discuss her progress and had at least managed to get her back to full hours per week although on fairly heavily modified duties.  Some criticism was made of lack of training but I accept Mr Sutcliffe’s evidence that he had sufficient experience and ergonomic knowledge to ensure that the Applicant was carrying out her modified duties in the best possible manner.  The question of the lack of training in relation to the swivel mop becomes irrelevant as the Applicant rejected the job offer.

In my opinion when looking at the case of an injured worker there is a strong onus placed on the employer to take all reasonable and possible steps to continue that person’s employment.  This necessarily involves the employer in considering all possible employment options including re-deployment, re-training, modified and part-time duties.  It also requires consultation, or at least as full as consultation as possible, with the worker, fellow workers, rehabilitation providers, treating medical practitioners, his or her Union and other relevant persons.

As I have previously indicated the blanket acceptance of the Dr Pappas certificate of 25 February 1994 without any attempt to discuss the matter with Dr Pappas or Mrs Smith or indeed to monitor the Applicant’s progress subsequent to the receipt of that certificate, seems to me to have been highly inappropriate in the circumstances.  This is particularly so when Peter Sutcliffe, Phillipa Watt and Jeff Smith effectively formed the view that the Applicant was no longer employable as a result of the contents of that certificate.  Even when the meeting was called on 22 April the importance of the certificate and its contents were not raised.

Although the Respondent has been critical of both the Applicant and the Union for failing to raise the question of re-deployment or re-training at an earlier date, in my opinion the onus really lies with the employer to initiate and consider these matters.  The view of Peter Sutcliffe that the certificate of 25 February was so restrictive that it was no longer feasible to re-train or re-deploy the Applicant seems to have been unreasonably formed at that time, in particular given that if a sedentary position was available the same restrictions might not have applied.

All in all, I feel that the Hospital’s response to the certificate was inappropriate in all the circumstances.  It can also be said that the Hospital, once the job offer of 15 November 1993 had been rejected, ought to have looked at alternatives in other areas of the Hospital.

At the time of the initial decision to terminate on 27 April the Hospital had not considered any aspects of re-deployment or re-training.  Indeed, it seems that Mr Smith’s view was that it was only if the Applicant could resume full duties in the very near future that her continuing employment would be contemplated.  This view seems to be harsh and unjust and indeed is contrary to the view expressed by Janet Donahue that she did not believe it was Hospital policy to dismiss workers if they could not return to pre-injury employment.

It was only after the initial decision to terminate and upon considerable pressure being applied by the Union that the Hospital agreed to a rehabilitation assessment being carried out.

Unfortunately, I gained the distinct impression that to a large extent this was a matter of “going through the motions” in order to appease the Union and the Applicant.  There was minimal information provided from the Hospital to CRS as to what primarily sedentary duties would be available for Mrs Smith.  Indeed, when the rehabilitation report was received by the Hospital it was only forwarded to the food services department.  If proper levels of consultation and consideration were to take place then it was appropriate that other department heads be advised and that the return to work coordinator, Mr Sutcliffe, should be actively involved.

In my opinion, the Hospital acted unreasonably in failing to fully and properly assess any alternate employment that might be available.

I agree with the proposition that on the basis of the rehabilitation report the restrictions both physical and also in terms of re-training were very restrictive indeed.  It may well be that even upon full and proper consideration that the Hospital could not accommodate the Applicant.  However, procedural fairness requires that the matter be fully and properly considered and in my opinion this was not done.

In my opinion the Hospital has not properly complied with its own rehabilitation and return to work strategy.  The policy requires that appropriate suitable duties be identified and that consultation will occur with managers, employees and where applicable their representatives, regarding the return to work of an injured worker on suitable duties and on occupational activities in general.  The return to work coordinator will liaise with all parties to ensure suitable duties are found relevant to the abilities of the person and the needs of the Hospital.  Consideration will be given to medical advice received and decisions will be made in consultation with the employee.  In cross examination Mr Sutcliffe agreed that the policy was to ensure that a great many steps and consultations would take place before a person is dismissed if suffering a disability.  By failing to involve Mr Sutcliffe and others in discussions after receipt of the CRS report the Hospital was not in a position to fully consider all alternatives.  Mr Sutcliffe felt that in February he considered all options open to him at the time, but agreed that he was not always aware of every single opportunity that exists.  For example he did not make specific enquiries if a courier position might be available or may become available with appropriate training in the future.  Mr Sutcliffe agreed in cross examination that where an employee was suffering from a physical disability it was really up to him to sit down and look at what she might be able to do and look at it in a systematic way and he agreed that this was the case both in principle and in practice.  I find that he did not do it fully and properly in Mrs Smith’s case.

In my opinion the failure to adequately consult and fully consider all possible re-deployment, re-training and re-employment options renders the termination of the Applicant harsh, unjust and unreasonable.

Remedy

The Applicant sought reinstatement to the Hospital.  Her Counsel suggested that there were two possible positions to which she could be reinstated.  The first was to the position the subject of the job offer made on 15 November 1993 but without the high dusting work and use of the swivel mop.  However, it seems that the higher dusting and particularly the swivel mop are important aspects of that job and the Applicant rejected the job when it was offered to her.  Accordingly, it does not seem practicable to reinstate her to that position.

As an alternative Counsel for the Applicant suggested that the Applicant be reinstated to the duties which she was performing immediately prior to April 1994.  As I have previously indicated I find that these duties were not sufficiently productive in nature to justify their continuation by the Respondent, and indeed there seemed to be little prospect of any increase in the duties being carried out by the Applicant.  In those circumstances, reinstatement to a position in the environmental services department also seems impracticable.

The evidence of Mr Jeff Smith given at the trial seemed to indicate that there were even fewer positions available within the Hospital than there were in June of 1994 and none available that met with the Applicant’s severe restrictions.  Given the restrictions contained in the CRS report it was hard to envisage any job that might be appropriate.

The Respondent opposed reinstatement on the basis that neither of the positions suggested by the Applicant was appropriate, that there was a real risk of further injury if a physical job was suggested and that no alternate job seemed to exist at the present time or was likely to exist.

In all the circumstances and given the severe nature of the restrictions indicated in the CRS report I do not believe that reinstatement is practicable in this case.

In the alternative the Applicant sought compensation.  The maximum amount of compensation payable in her case is limited to the sum of $11,460.00 being six months remuneration.

In my opinion, after hearing all the evidence and after reading the report of the CRS it seems to me that the chances that alternate employment would have been provided were very slight.  On the other hand the Applicant was denied procedural fairness in 1994 and if that was not the case she may have been lucky enough to have obtained suitable restricted employment at least until there were further reductions in the Hospital’s staffing levels during the rest of 1994.

Given that there has been a clear breach of the Act I order that compensation in the sum of $10,000.00 be paid.

When opening the case Counsel for the Applicant sought to rely on Section 170 DF(1)(f) of the Act alleging that the employment was terminated because of the Applicant’s physical disability, national extraction or social origin.

I find that there was no evidence to support the proposition that termination was in any way due to national extraction or social origin.  Although it may be said that the Applicant’s limited English and limited education were reasons, these are matters which may have been relevant to any person irrespective of national extraction or social origin.  Whilst it is true that the termination of the Applicant’s employment was on the basis of physical disability Section 170 DF(2) states that the matter can be a reason for terminating employment if the reason is based on the inherent requirements of the particular position.  In my opinion that is the situation in this case and accordingly I find that there has been no breach of Section 170 DF.

MINUTES OF ORDERS

THE COURT ORDERS AND DECLARES:

1.The Respondent pay the Applicant compensation in the sum of $10,000.00.

2.There be a stay of twenty-one days.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding twenty-nine (29) pages are a true copy of the reasons for judgment of Judicial Registrar Chancellor.

Associate:            
Dated:  28 February 1995

Solicitors for the Applicant:      Health Services Union of Australia
Counsel for the Applicant:        Ms Gyfteas

Solicitor for the Respondent:     George John Szlawski
Counsel for the Respondent:     Mr McDonald

Date of hearing:  6, 7 & 8 December 1994
Date of judgment:  28 February 1995