Henry (Jerry) Fitzsimmons v Alice Springs Town Council

[2018] FWC 6104

[2018] FWC 6104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Henry (Jerry) Fitzsimmons
v
Alice Springs Town Council
(C2018/1080)

COMMISSIONER BISSETT MELBOURNE, 15 OCTOBER 2018

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] Mr Henry (Jerry) Fitzsimmons has notified a dispute to the Fair Work Commission (Commission) in relation to his employment in accordance with s.739 of the Fair Work Act 2009 (FW Act). The dispute relates to the non-payment of wages to him for a five day period from 12 January 2018 to 18 January 2018. Mr Fitzsimmons is employed by the Alice Springs Town Council (Council). His employment is covered by the Alice Springs Town Council Enterprise Agreement 2015 1 (Agreement).

[2] Mr Fitzsimmons sought to resolve his dispute with the Council through direct discussions. When this was not successful he notified a dispute to the Commission in accordance with the dispute settlement procedure of the Agreement. The application was subject to conciliation where it did not settle. By consent the parties sought that I exercise private arbitration powers in accordance with the dispute settlement procedure.

[3] I am satisfied that the dispute is properly before me and I have jurisdiction to deal with the matter. The dispute can be characterised as to whether Mr Fitzsimmons is entitled to be paid for five days on which he was absent from work during which he failed to attend a medical examination as directed by Council. Payment for the absence is a matter that arises under the Agreement.

[4] At the hearing of the application Mr Fitzsimmons gave evidence in support of his case. Evidence was given for the Council by:

•  Ms Clare Fisher, Acting Manager Library Services, Alice Springs Town Council;

•  Ms Georgina Davison, Manager Library Services, Alice Springs Town Council;

•  Ms Biggi Gosling, Manager Human Resources, Alice Springs Town Council;

•  Mr Craig Wilson, Acting Director Corporate and Community Services, Alice Springs Town Council; and

•  Mr Lachlan Moulton, Practice Manager, Central Clinic.

Background

[5] Mr Fitzsimmons sought annual leave over the 2017/18 Christmas/New Year period. The leave he sought, and a subsequent amended leave request, were rejected by Council, both for operational reasons in that leave for other staff had been approved for some of the period sought. On the rejection of his annual leave requests Mr Fitzsimmons went on a period of paid and unpaid sick leave from mid November 2018 until mid-January 2018.

[6] Whilst he was on sick leave Mr Fitzsimmons received a letter from the Chief Executive Officer (CEO) on 15 December 2017 requiring him to attend a Council nominated doctor prior to his return to work.

[7] Mr Fitzsimmons acknowledged the direction on 2 January 2018.

[8] On Friday 12 January 2018 Mr Fitzsimmons obtained a medical clearance from his own doctor and did not attempt to see a Council nominated doctor. Mr Fitzsimmons attempted to return to work but was advised he needed medical clearance from a Council nominated doctor as set out in the CEO’s letter of 15 December 2017. An appointment was made for Mr Fitzsimmons to attend the Central Clinic (medical clinic) on Monday 15 January 2018. Mr Fitzsimmons attended the medical clinic on that date but, on being told by Mr Lachlan Moulton, the Practice Manager at Central Clinic, that the practice could not “force” him to see a Council nominated doctor, chose not to proceed with the appointment and left the medical clinic. Subsequent to this he was again advised by Council that he required a medical clearance from a Council nominated doctor prior to returning to work.

[9] Upon attending a second appointment made for him to see a Council nominated doctor on Thursday 18 January 2018 Mr Fitzsimmons returned to work with the medical certificate and advised his manager, Ms Georgina Davison, that he would not return to work until the following Monday.

[10] Mr Fitzsimmons was on personal leave without pay by 15 January 2018. Because he did not have medical clearance from a Council nominated doctor Mr Fitzsimmons was considered to be on personal leave without pay until that medical clearance was received on 18 January 2018.

[11] Mr Fitzsimmons says he had a medical certificate stating he was fit for work on 12 January 2018 and seeks payment for the period 12 to18 January 2018. He does not press for payment for 19 January 2018 as he chose not to attend work on that day.

[12] Whilst the application of Mr Fitzsimmons is in relation to payment of wages the question to be determined is if it was a reasonable and lawful direction from the CEO to require him to obtain medical clearance from a Council nominated doctor prior to returning to work or if Council should have accepted the medical certificate from Mr Fitzsimmons’ doctor on 12 January 2018.

Evidence

[13] Mr Fitzsimmons’ evidence is that, while he thought that applying for Christmas leave in October 2017 was adequate notice, he knew, ultimately, that his leave was not approved for operational reasons. When Mr Fitzsimmons put in his amended leave request to be absent from 22 December 2017 to 5 January 2018 he understood that his manager was going to get the approval for him to be granted the leave. Mr Fitzsimmons thought his leave had been approved and was shocked when told by Ms Davison on 10 November 2018 that his leave was not approved. As a result of this shock Mr Fitzsimmons said he immediately went to see his doctor who placed him on sick leave.

[14] Mr Fitzsimmons remained on sick leave, paid and unpaid, until 12 January 2018 when he attempted to return to work.

[15] Mr Fitzsimmons acknowledged that he did receive a letter from the CEO on 15 December 2017 directing him to attend a medical assessment with a doctor nominated by Council and he acknowledged that letter by return correspondence on 2 January 2018 that read as follows:

Just acknowledging receipt of your letter dated 15 December 2017.

I appreciate your recognition of the workplace duty of care and have noted your requirement to attend an appointment with a medical practitioner nominated by the Alice Springs Town Council prior to my return to work.

[16] Mr Fitzsimmons said in his evidence that, in acknowledging the letter from the CEO, he “acknowledged the fact that before [he] returned to work” 2 he would look at the CEO’s request. Mr Fitzsimmons also gave evidence that, in his reply, he was acknowledging that “[he] will do it”.3 Mr Fitzsimmons also said that he did not accept that there was a requirement to attend such a doctor4 and that he thought the requirement in the letter from the CEO was unreasonable although he agreed that he never advised anyone from Council of this.

[17] Mr Fitzsimmons said that when he attended the medical clinic on Friday 12 January 2018 he attended to see his own doctor and did not ask if there was a Council nominated doctor he should see as he did not know that the medical clinic he attended was also the medical clinic the Council used. When Mr Fitzsimmons attended the appointment made for him by Council on 15 January 2018 he accepted the advice of Mr Moulton that he did not have to see the Council doctor or had an option to attend so he left the medical clinic. Mr Fitzsimmons agreed that he did so notwithstanding the letter he had from the CEO on 15 December 2017.

[18] Even though he did not see the Council nominated doctor Mr Fitzsimmons said he believed he had complied with the direction given to him by the CEO.

[19] Mr Fitzsimmons did finally see the Council nominated doctor on Thursday 18 January 2018 and was given a medical clearance to return to work. Mr Fitzsimmons saw his manager later that day and thought it was agreed he would not go back onto the roster until the following Monday. 5

[20] Ms Georgina Davison was the Manager Library Services for the Council until January 2018 and was Mr Fitzsimmons’ manager. On 1 November 2017 Ms Davison received a leave request from Mr Fitzsimmons for 19 December 2017. She did not think she could accommodate the request as she had previously advised staff that no more leave for 19-22 December 2017 could be granted. Ms Davison did however discuss with the Director of Corporate and Community Services if there was some accommodation that could be made for Mr Fitzsimmons and was advised that leave could not be granted. After denying Mr Fitzsimmons’ leave request Ms Davison received an email from Mr Fitzsimmons on 7 November 2017 asking the earliest date he might be able to commence leave. Ms Davison replied that day telling him he could take leave from 22 December 2017 at the earliest. Mr Fitzsimmons then lodged a further leave application for 22 December 2017 to 5 January 2018. This too was rejected as a number of staff had already had leave approved for the first week of January 2018. Ms Davison advised Mr Fitzsimmons that he could take leave from 22 December 2017 but would need to return on 2 January 2018.

[21] Ms Davison said she explained to Mr Fitzsimmons on the morning of 10 November 2017 why his request for leave could not be accommodated. After telling Mr Fitzsimmons that he could not have leave for the full period sought, Ms Davison said Mr Fitzsimmons replied “I feel sick I’m going to the doctor.” 6 Ms Davison said that Mr Fitzsimmons said it in such a way that suggested to her that he was not sick but would get the time off that he wanted by sick leave.

[22] Ms Davison said Mr Fitzsimmons did not appear shocked when she rejected his leave. 7

[23] Mr Fitzsimmons attended the doctor that day and did not return to work until 22 January 2018. His medical certificate of 2 January 2018 8 indicated that he was “suffering from a medical condition and will be unfit for his normal work...” He was on unpaid personal leave by the time he returned to work.

[24] Ms Biggi Gosling was, at the time of Mr Fitzsimmons’ absence, the Manager Human Resources. Ms Gosling said that she was concerned that Mr Fitzsimmons’ absence was caused by stress in the workplace. She said this was reinforced by his pre-employment check that suggested he suffered from stress caused by “undue managerial issues”. In these circumstances the CEO determined to require Mr Fitzsimmons to attend a medical examination by a council nominated doctor prior to his return to work. A letter to this effect was sent to Mr Fitzsimmons on 15 December 2017 to which Mr Fitzsimmons replied.

[25] On 12 January 2018 Mr Craig Wilson, Acting Director Corporate and Community Services, who was also at that time Acting CEO, came to see Ms Gosling and said that Mr Fitzsimmons had handed him a medical clearance from his doctor. Ms Gosling was surprised by this as the most recent medical certificate from Ms Fitzsimmons indicated he would be unfit for work until 16 January 2018. Further, the medical clearance obtained by Mr Fitzsimmons was not from a Council nominated doctor. Ms Gosling subsequently telephoned the medical clinic and made an appointment for Mr Fitzsimmons for 15 January 2018.

[26] Mr Wilson said Mr Fitzsimmons saw him again on 15 January 2018 and advised he was discouraged by the Practice Nurse at the medical clinic from having another consultation for the purpose of obtaining a medical clearance to return to work. Mr Wilson reaffirmed with Mr Fitzsimmons Council’s direction of 15 December 2017. A further appointment was subsequently arranged for Mr Fitzsimmons to attend the medical clinic on 18 January 2018.

[27] While Mr Wilson said he was not personally aware of the power of Council to direct Mr Fitzsimmons to see a doctor of Council’s choosing, he said the CEO did not consider the direction to be unlawful. While he was not aware if the right was enshrined in law he considered that Council had a general duty of care to Mr Fitzsimmons.

[28] On 15 January 2018 Ms Gosling said that Mr Wilson came to see her and told her that Mr Fitzsimmons had “stormed” into his office saying that staff at the medical clinic had told him he did not need to have a medical assessment as he had already been cleared by a doctor. Mr Wilson asked Ms Gosling to sit in on a discussion with Mr Fitzsimmons where Mr Fitzsimmons was told his medical clearance was not satisfactory and he needed to get one by a Council nominated doctor. Mr Fitzsimmons insisted this be put in writing.

[29] On 16 January 2018 Ms Gosling attended a meeting with Mr Wilson, Mr Fitzsimmons and Mr Fitzsimmons’ support person. Mr Fitzsimmons said that when he had attended the medical clinic the day before, the doctor refused to see him as a medical clearance had been given to him. Ms Gosling rang the medical clinic and spoke with Mr Moulton who confirmed the conversation with Mr Fitzsimmons.

[30] Ms Gosling made a further appointment for Mr Fitzsimmons to see a Council nominated Doctor on 18 January 2018 which Mr Fitzsimmons did attend.

[31] Mr Lachlan Moulton said that Mr Fitzsimmons attended the medical clinic on 15 January 2018. He said that the normal practice at the medical clinic is that a patient sees the Practice Nurse who does some basic tests (blood pressure, height, weight etc.) prior to a patient seeing the doctor. Mr Moulton said that Mr Fitzsimmons questioned the Practice Nurse as to why he was required to attend the medical appointment. The Practice Nurse then spoke to Mr Moulton and explained that there was some confusion as to why Mr Fitzpatrick had to attend for the medical and that he needed clarification. Following a request from the Practice Nurse Mr Moulton spoke to Mr Fitzsimmons and clarified the purpose of the visit. Mr Moulton explained that he could not force Mr Fitzsimmons to attend the appointment but if he was not going to attend he should speak to his employer. Mr Moulton said that Mr Fitzsimmons appeared angry and perturbed that he should be required to see another doctor. Mr Moulton wrote a statement of what occurred. The Statement is undated however he said he was confident he wrote it on 19 January 2018.

[32] The following week Mr Fitzsimmons saw Mr Moulton and asked that he write a letter confirming Mr Fitzsimmons had attended the medical clinic. Mr Moulton said he would not as Mr Fitzsimmons had not seen the doctor.

[33] Mr Moulton said he did not know on what basis the Council could refuse to accept a medical certificate or the basis on which it should require a medical assessment.

Was the direction of the CEO a reasonable and lawful direction?

Was the direction lawful?

[34] I am satisfied that the general duty of care owed by an employer to all of its employees grounds a right to request an employee to undertake an independent medical examination to determine fitness for duty if the employer holds a reasonable belief that there may be some risk to the employee, other employees or the public if the employee should return to work without such an examination. 9

[35] Council submits that its duty of care arises from the relevant health and safety legislation in the Northern Territory.

[36] On 10 November 2017 Mr Fitzsimmons was advised by Ms Davison that his leave request had not been approved. Her evidence is that Mr Fitzsimmons said “I feel sick, I’m going to the doctor.” Ms Davison said that Mr Fitzsimmons did not appear shocked. Mr Fitzsimmons gave no evidence of his reaction to the rejection of his last leave request although suggested, in his cross-examination of Ms Davison, that his doctor observed he was shocked when he saw him that day.

[37] I accept that the advice that Mr Fitzsimmons’ was unwell was unexpected by Council. I accept however that Ms Gosling understood (sometime after he left) that when Mr Fitzsimmons did leave on 10 November 2017 he was in an agitated state. I accept that Ms Gosling reached a reasonable belief, based on the unexpected absence of Mr Fitzsimmons from 10 November 2017 when he was advised his annual leave request was not approved, his continual absence from 10 November 2017 at least until 15 December 2017 when the direction was issued to him and on his pre-employment statement that he may have been suffering from stress or anxiety brought about by work and his interactions with his managers in relation to the refusal of his leave request.

[38] Having reached this reasonable belief that there may be some risk to Mr Fitzsimmons, other employees or the public if he returned to work without a clearance from a Council appointed doctor, the direction the CEO ultimately issued to Mr Fitzsimmons was lawful.

Was the direction reasonable?

[39] I am satisfied that the direction given to Mr Fitzsimmons to attend the medical examination was a reasonable direction in these particular circumstances.

[40] I have concluded the direction was reasonable because of the state of shock Mr Fitzsimmons said he was in on 10 November 2017 that caused him to attend his doctor. Mr Fitzsimmons had just had his leave request refused for operational reasons. He left it late in the year to apply for his Christmas leave, well aware that the library where he worked needed to maintain adequate staffing over the Christmas/New Year period and that this time of year had a high demand for leave. To have a leave request rejected in these circumstances, whilst annoying, should not come as such a shock as to render a person unable to return to work because of illness for some 10 weeks. Council had grounds to be concerned, given the sudden departure on the advice of refusal of the leave, that it had taken actions to cause the absence. For this reason it was reasonable for Council to request a medical clearance from a Council nominated doctor for Mr Fitzsimmons to return to work.

[41] For these reasons the direction of Council was reasonable.

Did Fitzsimmons comply with the direction?

[42] Mr Fitzsimmons did not comply with the direction of the CEO.

[43] Mr Fitzsimmons agreed that he received the direction but gave a multitude of answers as to what his acknowledgement of that direction meant. Despite the variety of answers as to the meaning of his acknowledgement, in all of those answers there is an acceptance that he understood what the direction of the CEO meant. His evidence as to what he was not acknowledging the direction is not credible.

[44] At no stage, and certainly not in his acknowledgement of 2 January 2018, did Mr Fitzsimmons raise any concern about the direction given by Council or indicate that he thought it unreasonable or that he did not intend to comply or that he thought a medical certificate from his own doctor clearing his to return to work should suffice.

[45] By attending his own doctor on 12 January 2018 and gaining a medical certificate from him and attempting to return to work, Mr Fitzsimmons plainly failed to comply with the direction of the CEO. Mr Fitzsimmons’ doctor was not a Council nominated doctor. Mr Fitzsimmons’ explanation that he did not have an appointment with a Council nominated doctor is disingenuous as he did not contact Council to advise he thought he was fit to return to work and could they arrange such an appointment as soon as possible.

[46] By attending the medical clinic on 15 January 2018 but leaving prior to seeing the Council nominated doctor Mr Fitzsimmons did not comply with the direction of the CEO. The direction was to attend an appointment with a Council nominated doctor. Mr Fitzsimmons attended the medical clinic but left prior to seeing the doctor. This is an inescapable fact.

[47] The advice given by Mr Moulton to Mr Fitzsimmons was correct. The medical practice could not force Mr Fitzsimmons to see the doctor nominated by Council, physically or otherwise. But if Mr Fitzsimmons chose not to attend the appointment he needed to go back to Council and work this through with them. That was not a matter for the medical practice or the Practice Manager or the Practice Nurse.

Should Council have accepted Fitzsimmons’ medical certificate?

[48] I am of the view that it would not have been unreasonable for Council to have accepted the medical certificate produced by Mr Fitzsimmons on 12 January 2018. However, this does not absolve Mr Fitzsimmons of his conduct in refusing to attend the medical appointment on 15 January 2018 when Council advised him that it still required him to attend. Nor does it absolve him of his responsibility to comply with the direction of the CEO.

Conclusion

[49] Mr Fitzsimmons sought to rely on commentary in an article headed “See no evil, hear no evil: Refusing requests to attend medical assessments” on the website of Ashurst law firm. The article states in part that “[w]hen an employee is on prolonged personal (sick) leave a question may arise concerning the right of the employer to require the employee to attend a medical examination against their will…”

[50] Whilst both article and commentary are interesting, they are certainly not binding on the approach I should take in the matter before me. Rather I have had regard of the relevant authorities which suggest that such a direction as given to Mr Fitzsimmons can be made if it is a lawful and reasonable direction.

[51] Mr Fitzsimmons failed to comply with a lawful and reasonable direction of Council that he gain medical clearance from a Council nominated doctor prior to his return to work. This failure was caused solely by decisions taken by Mr Fitzsimmons. As a result of this failure Mr Fitzsimmons did not attend work from 12 to 19 January 2018.

[52] By 12 January 2018 (and prior to that date) Mr Fitzsimmons had exhausted his paid personal leave. He was therefore on unpaid personal leave for the period in question. His failure to attend an appointment with a Council nominated doctor is the sole reason for this period of unpaid leave. I therefore determine that there is, therefore, no basis on which I could find Mr Fitzsimmons should have been paid for the five days from 12 to 18 January 2018.

[53] In concluding I would observe that whether a direction is reasonable and lawful will depend on the particular circumstances of the matter. There is no simple rule that all directions given will be lawful and reasonable. However, ignoring a direction that an employee might not like or pretending it was not given or thinking there is some way around it is not a proper response. A discussion with the person giving the direction and escalation of the issue if unresolved is the appropriate manner in which to deal with any concerns.

[54] Having so determined the application is dismissed.

COMMISSIONER

Appearances:

H. Fitzsimmons on his own behalf.

K. McCann and C Turner for Alice Springs Town Council.

Hearing details:

2018.

Alice Springs:

July 30.

2018.

Melbourne and Alice Springs (by video link):

September 14.

Final written submissions:

Applicant: 20 August 2018.

Respondent: 31 August 2018.

Printed by authority of the Commonwealth Government Printer

<PR700955>

 1   AE417587.

 2   Transcript PN181.

 3   Transcript PN201.

 4   Transcript PN212.

 5   Transcript PN50.

 6   Transcript PN729.

 7   Transcript PN735-PN741.

 8   The material filed by Mr Fitzsimmons indicates this was the first medical certificate provided by him.

 9   See Swanson v Monash Health [2018] FCCA 538.