KUBAT v Northern Health
[2015] FCCA 3050
•17 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KUBAT v NORTHERN HEALTH | [2015] FCCA 3050 |
| Catchwords: INDUSTRIAL LAW – Adverse action – whether dismissal for reasons including the applicant’s mental disability, being depression – whether dismissal for reason that applicant was unable to meet the inherent requirements of her position – belittling – unreasonable disciplinary action – pressure to resign – reasonable adjustments. |
| Legislation: Disability Discrimination Act 1992 s.15(4) Fair Work Act 2009 ss.342, 342(1) item 1(a), 342(1) item 1(c), 351, 351(1), 351(2), 351(2)(b), 360, 361 |
| Cases cited: Hodkinson v Commonwealth (2011) 248 FLR 409, (2011) 207 IR 129, [2011] FMCA 171 Khiani v Australian Bureau of Statistics [2010] FCA 1059, (2010) 199 IR 281 |
| Applicant: | EMILY KUBAT |
| First respondent: | NORTHERN HEALTH |
| File number: | MLG 2318 of 2014 |
| Judgment of: | Judge Riley |
| Hearing dates: | 26, 27 and 28 October 2015 |
| Date of last submission: | 28 October 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 17 November 2015 |
REPRESENTATION
| Counsel for the applicant: | Ray Ternes |
| Solicitors for the applicant: | AED Legal Service |
| Counsel for the respondent: | Anna Forsyth |
| Solicitors for the respondent: | Victorian Government Solicitor |
THE COURT ORDERS THAT:
The application filed on 7 July 2014 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2318 of 2014
| EMILY KUBAT |
Applicant
And
| NORTHERN HEALTH |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Fair Work Act 2009 (“the Act”). The applicant alleged that:
a)the respondent took adverse action against her in breach of s.351 of the Act;
b)the adverse action was taken against her for reasons that included her mental disability, namely, depression; and
c)the adverse action consisted of:
i)belittling the applicant, taking unreasonable disciplinary action against her, and putting pressure on her to resign in the period June to August 2012;
ii)refusing to allow the applicant to return to work and/or refusing to put adjustments in place to allow her to return to work from July 2013 to early 2014; and
iii)dismissing the applicant from her position as a Turkish interpreter on 2 May 2014.
Chronology
The applicant commenced employment with the respondent on
18 April 2011. The applicant was employed as an on-site Turkish interpreter. She initially worked for two days a week but that was later increased to three.
In May 2011, the applicant was granted three weeks leave without pay because she needed to travel to Turkey to attend to matters related to the estate of her deceased father.
On 3 October 2011, the applicant had her first performance appraisal with Mr Zucchi, the respondent’s Manager of Transcultural and Language Services. It was positive.
On 11 January 2012, the applicant was approximately two hours late for her shift. She met with her supervisor, Mr Zucchi, later that day to discuss her lateness.
On 17 January 2012, the applicant failed to attend two community therapy services appointments at Broadmeadows. On 18 January 2012, the applicant met with Mr Zucchi to discuss her failure to attend the two appointments, and also met another supervisor, Ms Zen, to discuss staff guidelines and annual leave. The applicant had a further meeting about her failure to attend the two therapy services appointments with Ms Zen on 24 January 2012.
On a number of occasions in the period from January to May 2012, the applicant requested leave without pay to travel to Turkey for two months later in 2012.
On 11 April 2012, the applicant was absent from work.
On 8 May 2012, Mr Zucchi emailed the applicant, saying that her application for leave without pay for two months later in 2012 would not be granted.
On 14 May 2012, the applicant was absent from work.
On 16 May 2012, the applicant arrived at work 50 minutes late. On the same day, the applicant met with Mr Zucchi to discuss her lack of punctuality.
On 6 June 2012, the applicant was absent from work.
On 26 June 2012, the applicant was 35 minutes late for work.
On 27 June 2012, the applicant was one hour late for work.
On 2 July 2012, the applicant attended a disciplinary meeting with Mr Zucchi and a human resources manager, Ms Hart. At that meeting, the applicant was given a first, verbal warning. That warning was confirmed in writing later the same day.
On 16 and 17 July 2012, the applicant was absent from work.
On 23 and 25 July 2012, the applicant was absent from work.
On 31 July 2012, the applicant applied for three days annual leave from 20 to 22 August 2012 to travel to Hawaii with her daughters for a holiday. That leave was granted.
Between 6 and 8 August 2012, the applicant was absent from work.
On 13 August 2012, the applicant attended an unplanned leave meeting with Mr Zucchi. At this meeting, the applicant produced a medical certificate dated 6 August 2012 for two months sick leave starting on
1 September 2012 and ending on 31 October 2012. The medical certificate said:
It is my opinion that [the applicant] needs medical leave from
1 September 2012 to 31 October 2012. It is important that she be in Turkey for her father’s second death anniversary.
On 14 August 2012, the applicant attended a meeting with Mr Zucchi, Ms Hart and Ms Vye, who was the director of the interpreting section, to discuss the medical certificate dated 6 August 2012. The last day on which the applicant attended work for the respondent was 14 August 2012.
On 15 August 2012, the applicant was absent from work.
On 16 August 2012, the applicant telephoned Mr Zucchi and said that she would be attending her doctor after returning from her forthcoming trip to Hawaii and she might not be at work on 27 August 2012 as scheduled.
Between 17 and 26 August 2012, the applicant was on annual leave and in Hawaii. While there, she sent 23 emails to Mr Zucchi enclosing photographs and videos of her holiday.
On 27 August 2012, the applicant emailed Mr Zucchi saying that she would not be at work that week.
Between 1 September 2012 and 31 October 2012, the applicant was on sick leave without pay pursuant to the medical certificate dated
6 August 2012.
On 5 November 2012, the applicant was absent from work. She sent Mr Zucchi an email attaching a medical certificate on WorkCover letterhead for one month’s leave.
On 8 November 2012, the applicant initiated a WorkCover claim.
A copy of the claim was not provided to the court. However, it appears that the claim indicated that the applicant had been suffering from depression.
On 13 December 2012, Dr Timothy Entwisle provided a medical report in connection with the WorkCover claim. Dr Entwisle considered that:
a)the applicant had a recurrent major depressive illness;
b)she first developed depression in 2005 following a motor vehicle accident which had resulted in two years off work;
c)she had been on antidepressants since that time;
d)she had intensive treatment with a psychiatrist commencing in 2005;
e)she had further treatment from a psychologist following her father’s death in 2010;
f)she had a propensity to depression;
g)she had a recurrence of depression when she was working for the respondent;
h)interpreting for elderly people who were dying reminded her of her father’s death;
i)her current depression was an aggravation of her pre-existing condition;
j)she did not then have the capacity for her full-time pre-injury duties and hours at her then current workplace; and
k)she did not then have the capacity to work in a different workplace.
The applicant’s WorkCover claim was rejected.
In July 2013, the applicant telephoned the respondent and indicated that she would like to return to work. On 15 July 2013, Ms Hart arranged for the applicant to have an independent medical examination by Dr Bloom, an occupational and environmental physician.
On 20 August 2013, Dr Bloom provided his first report. He noted that the purpose of the examination was to determine the applicant’s fitness to undertake the inherent duties of her position. Dr Bloom noted from the position description for the applicant’s position that the psychological risks involved in the job included potential exposure to aggressive situations.
In relation to work capacity, Dr Bloom said:
At this stage I do not think that [the applicant] has the safe capacity to resume pre-injury hours in her normal duties. However I think that her work is very important to her, and if she were able to return to work in a graduated and controlled manner, in the absence of undue conflict and stress, I think that work would be healthy for her.
Thus I think that she has now recovered sufficiently to commence a return to work programme, but this must be graduated. I suggest that she commence with one half day per week, and if she successfully copes with her work on that basis, then I would recommend a gradual increase in her hours towards her normal 3 days per week, over a 6 month period.
All unnecessary conflict or stress should be avoided. I think that she now does have the capacity to engage in her normal interpreting and translating duties on a very part-time basis.
On 21 November 2013, Ms Hart requested a supplementary medical report from Dr Bloom. In her letter to Dr Bloom, Ms Hart said that:
a)there were a number of psychological risks involved in being an interpreter in a hospital;
b)the information interpreted is often sensitive and the patient’s response can be unpredictable and at times aggressive;
c)interpreters’ assignments are unpredictable;
d)it is not possible to provide an environment where all unnecessary conflict or stress could be avoided;
e)it is not possible to determine in advance whether a particular assignment might result in a stressful situation with aggression from an agitated patient; and
f)working as an interpreter for a half a day a week is problematic in that clinics often run late.
On 5 December 2013, Dr Bloom provided a supplementary medical report. Dr Bloom said:
… I continue to think that any return to work program must be very gradual, and therefore I would hesitate to commence her on a full day per week. As I suggested in my report dated 20 August 2013, I think that a trial of half a day per week is reasonable, but I would not recommend pushing her to trial a full day initially.
I think it likely that she will perceive the commitment to a rigid timetable to be stressful, and this could have adverse health consequences for her, with the risk of jeopardising her further recovery. I also think that exposure to difficult/stressful situations or conflict in the workplace will likely prove counterproductive to her further recovery.
Thus in summary, I am not convinced that [the applicant] yet has the resilience to commence work for more than half a day at a time, and if she were pushed to complete a whole day, her further recovery could be at risk.
On 9 December 2013, Ms Hart sent the applicant a letter saying that the respondent was unable to accommodate her return to work because:
… we cannot determine in advance whether staff will be exposed to stressful situations or aggression from agitated patients. We are unable to plan to assign to you only appointments in the “absence of undue conflict and stress” due to the unpredictable nature of these events.
We want to avoid putting you in a position where your health may be aggravated by the context in which you will be working. Therefore [the respondent] can only agree to you returning to work once you are cleared to work at least one full day per week.
On 17 March 2014, Ms Hart sent the applicant a letter saying that:
…
Unfortunately, the medical evidence available from Dr Bloom suggests that your medical condition renders you incapable of returning to restricted duties and hours as a part-time interpreter. Owing to your ongoing incapacity, this evidence suggests that you are not capable of safely performing the inherent requirements of your pre-injury duties, both now and into the foreseeable future.
Accordingly, I regret to advise you that your employment with Northern Health will be terminated from 2 April 2014. Your termination of employment will be confirmed at this time unless you are able to provide evidence to persuade Northern Health that the conclusion reached above concerning your inability to return to unrestricted pre-injury duties and hours is incorrect. If you wish to provide any further such evidence, please do so by Tuesday 25 March 2014.
On 25 March 2014, Ms Hart received a letter from the applicant’s treating general practitioner, Dr Szwede, saying that the applicant could return to work one afternoon each week to avoid the problems of clinics running overtime.
In late April or early May 2014, Ms Hart met with the acting CEO of the respondent, Mr Burnham, and recommended that the applicant’s employment be terminated. Mr Burnham accepted that recommendation.
On 2 May 2014, Ms Hart wrote to the applicant advising her that her employment with the respondent was terminated with effect from that day.
Belittling the applicant
The applicant claimed that the respondent belittled her on 14 August 2012:
a)when Ms Vye told her that she was no longer an asset to the respondent; and
b)
Ms Hart questioned the validity of her medical certificate dated
6 August 2012.
The respondent denied the alleged statements were made and disputed that they constituted adverse action in any event.
After some discussion, counsel for the applicant confined the claim in relation to belittling to item 1(c) of s.342 of the Act. That item provides that:
Adverse action is taken by an employer against an employee if the employer alters the position of the employee to the employee’s prejudice.
Belittling a person is adverse action in normal parlance. However, the Act provides an exhaustive definition of adverse action. It is only the actions specified in s.342 of the Act that are prohibited adverse actions and that give rise to a remedy.
Counsel for the applicant submitted that the applicant’s position was altered to her prejudice by:
a)Ms Vye telling her she was no longer an asset to the respondent because the applicant was lowered in the esteem of the respondent; and
b)Ms Hart challenging her medical certificate because the applicant ceased to be a trusted employee.
The applicant relied upon Hodkinson v Commonwealth (2011) 248 FLR 409, (2011) 207 IR 129, [2011] FMCA 171 at [175] where Cameron FM (as his Honour then was) said:
In order to determine whether the respondent altered the applicant’s position to her detriment, it is necessary to identify and compare her “position” before and after the decision to not extend the [Work Improvement Plan] and then to determine whether it was altered to her detriment as a result of that decision. On 7 December 2009, when Ms Blyth and the applicant discussed the possibility of an extension of the latter’s WIP, the WIP had concluded and the applicant’s position was that of a probationary employee who was entitled to be considered for an extension of a WIP. After Ms Blyth’s decision to not extend the WIP, the applicant was a probationary employee who had been denied an extension of her WIP and who was subject to the alternative recommendation that her employment be terminated. Ms Blyth’s making of that decision did amount to an alteration of the applicant’s position to her prejudice because it resulted in her position after the decision being less advantageous than her position had been before it.
The applicant argued that her case was analogous to Hodkinson. I do not accept that submission. In the case of Hodkinson, the decision not to extend the applicant’s work improvement plan had a tangible impact on her position. The comments complained of in the present case did not actually alter the applicant’s position at all, even assuming that the comments were made.
To say that an employee is no longer an asset to her employer is simply an observation. It implies that there was another action taken previously by someone, probably the employee, that has resulted in the employee ceasing to be an asset. Making the observation does not in itself alter the employee’s position to her prejudice and is not adverse action as defined.
Similarly, the words spoken in challenging the validity of a medical certificate do not cause a person to cease to be a trusted employee or otherwise alter the person’s position to her prejudice. Issues of trust would be based on the previous actions or inactions of the people involved. The applicant did not identify any actions or inactions on the part of the respondent that could have constituted adverse action connected with the challenge to the applicant’s medical certificate.
In the present case, the issue about the applicant’s trustworthiness, if it arose, was the result of the applicant producing, on 6 August 2012, a medical certificate saying that she would be unfit for work from
1 September 2012 until 31 October 2012, when:
a)
she appeared to be fit for work between 6 August 2012 and
1 September 2012;
b)she was having a holiday in Hawaii between 17 and 26 August 2012; and
c)there was no suggestion that she was scheduled for elective surgery or some such thing on 1 September 2012.
It was entirely proper for the employer to seek an explanation in those circumstances.
For these reasons, I am not persuaded that the belittling complained of by the applicant constituted adverse actions as defined in the Act. Consequently, this ground cannot succeed.
For completeness, I find that on 14 August 2012, Ms Hart did challenge the medical certificate dated 6 August 2012. There was some dispute in the evidence about exactly what was said and whether it amounted to a challenge to the validity of the certificate. However, the dispute was largely semantic. It is clear on the evidence that Ms Hart queried the validity of the medical certificate dated 6 August 2012, in the sense of querying whether the applicant was really going to be too sick to attend work between 1 September 2012 and 31 October 2012.
It is unnecessary to make findings about whether Ms Vye said that the applicant was no longer an asset to the respondent.
Taking unreasonable disciplinary action
The applicant claimed that unreasonable disciplinary action was taken against her during and after the meeting on 2 July 2012 in that the applicant was given a first, verbal warning on 2 July 2012 and the warning was later confirmed by email. The applicant claimed that the disciplinary action was adverse action as defined and it was taken against her because of her mental disability, namely, depression. That is a prohibited reason under s.351 of the Act. The applicant submitted that the relevant employees of the respondent knew that the applicant suffered from depression at that time.
The respondent accepted that the disciplinary action taken at the meeting on 2 July 2012 and the follow up email were adverse action within the meaning of item 1(c) of s.342 of the Act. However, the respondent noted the clear authority, which I follow, that adverse action claims do not involve questions of fairness and reasonableness, except perhaps to the extent that they cast doubt on the claimed reasons for an action.[1]
[1] Khiani v Australian Bureau of Statistics [2010] FCA 1059, (2010) 199 IR 281, Sallehpour v Frontier Software Pty Ltd [2005] FCA 247, (2005) 139 IR 457.
The respondent argued that the relevant employees of the respondent did not know that the applicant had depression. Consequently, the respondent argued, the applicant’s mental disability could not have been a reason for the disciplinary action.
The applicant conceded in cross examination that she did not tell any employees of the respondent that she had a mental disability until her WorkCover claim was lodged on 8 November 2012. However, she said that she had previously told Mr Zucchi that she “was not right in herself”. The applicant submitted that the respondent’s relevant employees:
a)should have understood from that statement and from her other behaviours that she had depression; and
b)in fact, did know that she had depression,
and that is why they gave her a warning on 2 July 2012.
Ms Hart conceded in cross-examination that she had a good lay person’s understanding of the signs and symptoms of depression. However, she denied that the applicant’s depression was a reason for the first warning given to the applicant. Ms Hart said that the reasons for the first warning were the applicant’s ongoing lateness for work and her failure to attend scheduled interpreting appointments without a valid reason.
The applicant said in her affidavits that, during the meeting on 2 July 2012:
a)she sobbed frequently;
b)she said repeatedly that she “was not well in herself”; and
c)she said she had personal issues.
Ms Hart said in her affidavit that, during the meeting on 2 July 2012:
a)the applicant said that she had personal issues and had not been well;
b)Ms Hart told the applicant that if she was not well she should tell her manager; and
c)the applicant cried but did not display extreme distress.
Having observed all of the relevant witnesses give evidence, I am not satisfied that Ms Hart or Mr Zucchi knew in July 2012 that the applicant had depression. The applicant had not told them at that stage that she had depression. By saying that she had personal issues and was not well in herself, the applicant did not effectively communicate that she had depression. Personal issues and not being well in oneself are vague and general concepts and can refer to a broad range of things. Being tearful might be a sign of depression. However, it is also, I daresay, a not uncommon reaction when subjected to a disciplinary meeting. Being repeatedly late for work might be a sign of depression. However, it might also indicate a lack of commitment to the job.
All in all, I found Ms Hart and Mr Zucchi to be credible witnesses on this issue. I accept their evidence that they were not aware until November 2012 that the applicant had depression. I accept that the first, verbal warning was issued by Ms Hart, after discussions with Mr Zucchi, for reasons that did not include the applicant’s depression. In other words, I consider that, on this issue, the respondent has discharged the reverse onus of proof specified in s.361 of the Act.
Pressuring the applicant to resign
The applicant said that Mr Zucchi suggested that she resign at various times in July to August 2012. Mr Zucchi denied that he had made any such suggestion to the applicant.
The suggestion that the applicant resign was said to be adverse action consisting of altering the applicant’s position to her prejudice within the meaning of item 1(c) of s.342(1) of the Act.
I do not accept that suggesting that an employee resigns falls within the concept of altering that employee’s position to her prejudice. If the suggestion is accompanied by action, such as demotion, or reducing working hours or relocating the employee’s workplace, that would be a different matter. However, I fail to see how simply suggesting that the applicant resign constituted altering her position to her prejudice.
Moreover, even if suggesting that the applicant resign did constitute adverse action as defined, I do not accept that it was for reasons that included the applicant’s depression. As discussed above, Mr Zucchi did not know in July and August 2012 that the applicant was depressed. Therefore, his reasons for suggesting that she resign could not have included her depression. In other words, I consider that, on this issue, the respondent has discharged the reverse onus of proof specified in s.361 of the Act.
Not allowing the applicant to return to work
The applicant said that:
a)in accordance with the report of Dr Bloom, the applicant was able to return to work in a part time capacity from July or August 2013; but
b)the respondent unreasonably prevented the applicant’s return to work; and
c)the respondent unreasonably refused to implement temporary alterations to the applicant’s work hours; and
d)the respondent took these actions because of the applicant’s disability, namely, depression.
The applicant initially submitted that the respondent’s actions fell within item 1(a) of s.342(1) of the Act, namely, that, by not allowing the applicant to return to work one half day per week, there was a constructive dismissal. However, as conceded by the applicant, constructive dismissal occurs where an employee resigns in circumstances where his or her position has become untenable. As also conceded by the applicant, she did not resign. I consider therefore that item 1(a) of s.342(1) of the Act has no application to this case.
The applicant then submitted that the respondent’s refusal to allow the applicant to work one half day per week amounted to altering her position to her prejudice within the meaning of item 1(a) of s.342(1) of the Act. The applicant said that, previously, she had not been required to be “cleared” to work at least one full day per week, whereas, after the respondent’s letter dated 9 December 2012, the applicant could only return to work if she was “cleared” to work full days. The applicant said that the imposition of the requirement to be “cleared” to work at least one full day a week was an alteration of her position to her prejudice.
This is a spurious argument. The applicant’s position required her to work three full days per week. Following the relapse of her depression in 2012, she was unable to work full days. Requiring her to be “cleared” for at least one full day per week did not alter her position. It simply required medical evidence that she was able to meet the pre-existing requirements of her position for at least one day per week.
For these reasons, I do not accept that not permitting the applicant to return to work for one half day per week constituted adverse action as defined. This ground cannot succeed.
In any event, the respondent said, firstly, that the termination of the applicant’s employment was due to the applicant being unable to fulfil the inherent requirements of her position. However, the termination did not occur until the following year. The termination is irrelevant to the question of reasonable adjustments to working hours.
The respondent said, secondly, that s.351 of the Act did not require the respondent to make reasonable adjustments to the applicant’s position. That is correct. Section 351 of the Act prohibits adverse action by reason of certain characteristics of an employee. It does not impose a positive obligation on an employer to accommodate an employee who is physically or mentally unable to do all of the elements of his or her job.
There may have been other avenues by which the applicant could have challenged the respondent’s refusal to make adjustments to the applicant’s working hours. However, that does not mean that the action complained of fits within the definition of adverse action in the Act.
The respondent also said that there were no reasonable adjustments that it could have made, given the requirement from Dr Bloom that the applicant be spared “all unnecessary conflict or stress”. I found the evidence of Ms Hart and Mr Zucchi to be compelling on this issue. They explained that, in a hospital environment, interpreters are often called upon to interpret sensitive and confronting information that people can react badly to, whether by becoming emotional, agitated or aggressive. Mr Zucchi said that some of the most serious incidents had occurred in the most banal of circumstances or in the corridor. He mentioned one case where a patient had chased an interpreter down the stairs and hit her and spat at her. Ms Hart and Mr Zucchi both explained that it is impossible to predict which patient might produce a stressful situation for an interpreter.
There was some discussion about whether certain areas of the hospital might be less stressful than others. It was suggested that outpatients or physiotherapy might be less stressful than oncology or emergency. However, Ms Hart and Mr Zucchi were both clear that stressful situations for interpreters are unpredictable and are not confined to certain areas of the hospital. That evidence strikes me as plausible and I accept it.
Ms Hart and Mr Zucchi emphasised that they had a duty of care to the respondent’s patients, to ensure appropriate interpreting services, and also had a duty of care to the applicant. Consequently, they said that they could not expose her to a working environment that might exacerbate her depression. I accept that evidence. The applicant did not produce any expert or other evidence that there are some areas of the respondent’s hospital that would nearly always be sufficiently safe for the applicant.
The respondent also submitted, in the alternative, that, even if there had been some adverse action involved in the respondent refusing to make adjustments to the applicant’s working hours, there is a defence under s.351(2)(b) of the Act. That paragraph provides that the general prohibition on adverse action because of particular characteristics of an employee does not apply to action that is:
taken because of the inherent requirements of the particular position concerned.
In relation to the inherent requirements of the position, I note that in X v Commonwealth (1999) 200 CLR 177, (1999) 59 ALD 321, (1999) 74 ALJR 176, (1999) 20 Leg Rep 35, (1999) 167 ALR 529, (2000) EOC 93-054, [1999] HCA 63 McHugh J said:
31.Whether something is an “inherent requirement” of a particular employment for the purposes of the Act depends on whether it was an “essential element” of the particular employment. However, the inherent requirements of employment embrace much more than the physical ability to carry out the physical tasks encompassed by the particular employment. Thus, implied in every contract of employment are obligations of fidelity and good faith on the part of the employee with the result that an employee breaches those requirements or obligations when he or she discloses confidential information or reveals secret processes. Furthermore, it is an implied warranty of every contract of employment that the employee possesses and will exercise reasonable care and skill in carrying out the employment. These obligations and warranties are inherent requirements of every employment. If for any reason - mental, physical or emotional - the employee is unable to carry them out, an otherwise unlawful discrimination may be protected by the provisions of s 15(4).
32.Similarly, carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment. It is not merely “so obvious that it goes without saying” - which is one of the tests for implying a term in a contract to give effect to the supposed intention of the parties. The term is one which, subject to agreement to the contrary, the law implies in every contract of employment. It is but a particular application of the implied warranty that the employee is able to and will exercise reasonable care and skill in carrying out his or her duties.
33.It would be extremely artificial to draw a distinction between a physical capability to perform a task and the safety factors relevant to that task in determining the inherent requirements of any particular employment. That is because employment is not a mere physical activity in which the employee participates as an automaton. It takes place in a social, legal and economic context. Unstated, but legitimate, employment requirements may stem from this context. It is therefore always permissible to have regard to this context when determining the inherent requirements of a particular employment. (citations omitted)
and Gummow and Hayne JJ said:
109.As we have said, inability to perform must be assessed practically. In particular, we consider that an employee must be able to perform the inherent requirements of a particular employment with reasonable safety to the individual concerned and to others with whom that individual will come in contact in the course of employment.
The defence in s.351(2) of the Act concerns the reasons for particular action. Consequently, the presumption in s.361 of the Act that a particular action was taken for a prohibited reason would apply unless the respondent proves otherwise.
In the present case, I consider that the respondent has proved otherwise. That is, I accept that the respondent’s reason for not allowing the applicant to return to work for half a day a week or at all in 2013 was because the applicant was unable to fulfil the inherent requirements of her role. The respondent emphasised that, on the medical evidence, the applicant needed to avoid difficult or stressful situations and conflict and the respondent could not provide such an environment. The respondent also emphasised the evidence of Ms Hart and Mr Zucchi that interpreting duties in a hospital could unpredictably lead to the interpreter being placed in a stressful situation. Ms Hart gave cogent evidence that her reason for not permitting the applicant to return to work for half a day per week or at all in 2013 was not because of the applicant’s depression but because of the applicant’s inability to fulfil the inherent requirements of her position. I accept that evidence. Consequently, I consider that, even if refusing to allow the applicant to return to work for half a day per week or at all in 2013 constituted adverse action, the respondent discharged the reverse onus in s.361 of the Act.
Dismissing the applicant
On 2 May 2014, the respondent dismissed the applicant from her employment. That was clearly adverse action within the meaning of item 1(a) of s.342(1) of the Act.
The applicant submitted that, by May 2014, the applicant was fit for the inherent requirements of her position as an interpreter or, in the alternative, was fit for the inherent requirements of the position after reasonable adjustments had been made.
As discussed above, in 2013, there were no reasonable adjustments that could have been made that would have permitted the applicant to return to work for the respondent. The medical evidence remained the same in May 2014, but with the addition of Dr Szwede’s report dated
25 March 2014. That report reiterated that the applicant could only work one half day per week, but suggested that the half day could be in the afternoon, to minimise the problems caused by morning clinics running overtime.
Dr Szwede’s report also said that the applicant had continued to improve since Dr Bloom’s last assessment in August 2013. However, Dr Szwede did not say that the applicant no longer needed a largely stress-free environment in which to work. On the evidence, it could only be concluded that the applicant did still need a largely stress-free working environment as at May 2014.
The respondent argued that, even if the applicant had been permitted to work one afternoon per week, she still would not have been able to fulfil the inherent requirements of her position because the respondent could not provide her with a largely stress-free working environment. I accept that submission. That is, for the reasons discussed above, I accept that interpreter assignments in hospitals are frequently and unpredictably stressful. As the applicant continued in May 2014 to need a largely stress-free working environment, there were no adjustments that the respondent could reasonably have made to the applicant’s work. Consequently, the applicant’s alternative position cannot succeed.
That leaves the applicant’s primary position, which was that she was fit for the inherent requirements of her position as at May 2014. The applicant said further that she was dismissed because she had a mental disability, namely depression, in breach of s.351(1) of the Act. Pursuant to s.361 of the Act, the respondent is presumed to have dismissed the applicant for that reason unless the respondent proves otherwise. Also, pursuant to s.360 of the Act, the respondent would have dismissed the applicant for a prohibited reason if the prohibited reason was only one of a number of reasons for the dismissal.
As discussed above, the evidence does not support the applicant’s contention. The medical evidence indicated that, as of May 2014, the applicant still needed a largely stress-free environment in which to work. The evidence indicated that the respondent was not able to provide such an environment for the applicant. As such, I accept the evidence of the respondent’s witnesses that the applicant was not able to meet the inherent requirements of her position in May 2104.
There was some dispute about who actually made the decision to terminate the applicant’s employment. The applicant said that the decision was made by Ms Hart or by Ms Hart and Mr Burnham, the respondent’s acting CEO. The respondent said that the decision was made by Mr Burnham alone.
The respondent filed a witness statement of Mr Burnham’s proposed evidence. He said in his oral evidence that the witness statement was true and correct.
Amongst the statements in Mr Burnham’s witness statement were the statements that:
a)it was the respondent’s policy that a manager must have approval from the CEO prior to terminating the employment of any employee;
b)for that reason, it was the CEO’s decision whether an employee’s employment was to be terminated; and
c)he made the decision to terminate the applicant’s employment on the recommendation of Ms Hart.
That evidence was not challenged and I accept it. That is, I find that Mr Burnham alone made the decision to terminate the applicant’s employment, albeit on the recommendation of Ms Hart. Consequently, the enquiry must concern Mr Burnham’s reasons.
Mr Burnham said in his witness statement that:
a)he had a meeting with Ms Hart about the applicant in April or early May 2014;
b)he could not recall the meeting in any detail, but did recall that Ms Hart recommended that the applicant’s employment be terminated;
c)on the basis of Ms Hart’s recommendation, he decided to terminate the applicant’s employment;
d)he made that decision because the applicant was not able to fulfil the inherent requirements of her position;
e)he did not make the decision to terminate the applicant’s employment because of, or for any reason including, her depression; and
f)he had never decided to terminate any employee’s employment because he or she was suffering from depression or any other disability.
In cross-examination, Mr Burnham:
a)agreed that his meeting with Ms Hart took about 10 minutes;
b)said he did not make any notes of the meeting;
c)could not recall the inherent requirements of the applicant’s position;
d)said he did not review the applicant’s medical reports; and
e)said he did not recall any detail of the conversation, except that it was with Ms Hart, was about the applicant and the word “Turkey” was mentioned.
The difficulty with Mr Burnham’s evidence is that his witness statement was not sworn or affirmed. Although he said in his oral evidence that his witness statement was true and correct, he said elsewhere in his oral evidence that he could not remember anything about the meeting with Ms Hart except that it concerned the applicant and the word “Turkey” was mentioned. In these circumstances, although Mr Burnham’s witness statement made some strong and clear statements, they were undermined by his oral evidence. His oral evidence was that he basically could not remember anything about the meeting, much less why he decided to terminate the applicant’s employment. In other words, Mr Burnham’s evidence was not sufficient to discharge the reverse onus in s.361 of the Act.
In the absence of any other evidence, the presumption in s.361 of the Act would apply and would lead to the conclusion that the applicant’s employment was terminated by reason of her mental disability, namely, depression. The presumption in s.361 of the Act would override the defence in s.351(2) of the Act, because s.361 applies to actions that would be a contravention of Part3-1 of the Act, and s.351 falls within that Part.
However, there was also Ms Hart’s evidence. She said in her witness statement that:
a)on 17 March 2014, she sent the applicant a letter stating that, on the medical evidence, the applicant was not capable of safely performing the inherent duties of her position;
b)in late April to early May 2014, she met with Mr Burnham and recommended that he authorise the termination of the applicant’s employment as the medical evidence confirmed that she was unable to fulfil the inherent requirements of her role because the respondent could not provide her with a working environment free from the risk of exposure to stressful situations;
c)on 2 May 2014, Ms Hart sent the applicant a letter stating that it was clear from the medical evidence that the applicant was unable to fulfil the inherent requirements of her position and terminating her employment; and
d)the reason Ms Hart recommended to Mr Burnham that the applicant’s employment be terminated was that the medical evidence made it clear that the applicant could not fulfil the inherent requirements of her role because the respondent could not provide her with a largely stress-free working environment.
In her oral evidence, Ms Hart adopted her witness statement as true and correct. In cross-examination, Ms Hart revealed a solid recollection of the relevant events and was not shaken in her recounting of them. In the absence of any reason to not do so, I would accept Ms Hart’s evidence as identifying the reasons that she made the recommendation to Mr Burnham and the reasons that he accepted those recommendations.
However, the applicant submitted that there were a number of reasons to not accept Ms Hart’s explanation of the reasons for her recommendation to Mr Burnham. The first was that Ms Hart had taken unreasonable disciplinary action against the applicant on 2 July 2012. It will be recalled that this was the first, verbal warning when the applicant had been late for work and missed scheduled appointments. As discussed above, I do not consider that the first verbal warning was unreasonable disciplinary action on the part of Ms Hart. Nor do I consider that it reflects badly on her attitude or approach to the applicant, such that her avowed reason for recommending the termination of the applicant’s employment should be disbelieved.
The second reason advanced by the applicant for not accepting Ms Hart’s explanation of the reason for the termination of the applicant’s employment was that Ms Hart knew or ought to have known that, by August 2013, the applicant was able to fulfil the inherent requirements of her role. This was said to be because Dr Bloom’s report of August 2013 said that the applicant had been doing some freelance interpreting work.
Ms Hart was not cross-examined about what she understood by that statement. As we know, interpreters sometimes do telephone interpreter work, which would spare the interpreter the risk of physical aggression and would also spare the interpreter the prospect of actually seeing a patient who was close to death. As we know, interpreters also translate documents. It may be that Ms Hart understood that the applicant was doing that kind of work. On the available evidence, I do not accept that Ms Hart ought to have known that the applicant was able to deal with the stresses of a hospital environment.
Ms Hart said in her witness statement that interpreters are often called upon by the respondent to interpret in literally life and death situations. Dr Bloom’s report, which said that the applicant was doing freelance work, also recommended that she only do one half day per week with the respondent. Clearly, Dr Bloom did not consider that the applicant’s freelance work was indicative of the applicant being able to fulfil the inherent requirements of her position. All in all, I do not accept this criticism of Ms Hart’s evidence.
The next reason that the applicant advanced for not accepting Ms Hart’s statement of the reasons for her recommendation to Mr Burnham was that the process leading to the termination was allegedly unreasonable. This was because Ms Hart’s letter dated 17 March 2014 to the applicant gave her only one week to provide updated medical evidence prior to the termination becoming effective on 25 March 2014. That letter was posted and the applicant gave unchallenged evidence, which I accept, that she did not receive it for some days.
However, the question in adverse action cases is not whether the decision was reasonable or the process was reasonable but whether the reason for the adverse action was a prohibited reason. Having seen all of the witnesses give evidence, and considering the evidence as a whole, I am not persuaded that the short time frame given by Ms Hart in her letter of 17 March 2014 undermines her claimed reason for her recommendation to Mr Burnham.
Finally, the applicant submitted that Ms Hart’s claimed reason for her recommendation to Mr Burnham could not have been her true reason because, by the time the decision was made, the medical evidence was eight months out of date. The applicant submitted that Ms Hart should have obtained an updated report from Dr Bloom and her failure to do so meant that the reasons that she advanced for her recommendation to Mr Burnham could not be accepted.
I do not accept the applicant’s submissions on this issue. Ms Hart gave the applicant an opportunity, albeit a very short one, to provide updated medical evidence showing that she could return to work. The applicant used that opportunity to obtain evidence from Dr Szwede, in a letter dated 25 March 2014. That evidence reiterated that the applicant could only work half a day per week and did not retract the view that the applicant needed a largely stress-free working environment. In these circumstances, I am not persuaded that the medical evidence, or the timing of it, provides a proper basis for rejecting Ms Hart’s claimed reason for her recommendation to Mr Burnham.
All in all, on the basis of all the evidence, including my observation of the witnesses while giving evidence, and bearing in mind the cumulative effect of all of the applicant’s attacks on Ms Hart’s reasoning, I accept that Ms Hart’s asserted reason for her recommendation to Mr Burnham was her true reason. I also accept that Mr Burnham made the decision to terminate the applicant’s employment based on Ms Hart’s recommendation, and that he, in effect, adopted her reasons as his reasons. That is, I accept that the respondent has discharged the reverse onus of proof on this issue.
Observation
It seems to me that the applicant’s case involved a number of logical errors. It may be of benefit to the applicant to note the comments of Cameron FM (as his Honour then was) in Hodkinson at [146] as follows:
Where it is used in s.351(1), I conclude that the word “disability” should be understood to refer to a particular physical or mental weakness or incapacity and to include a condition which limits a person’s movements, activities or senses. Examples can be found in the definition of disability in the Disability Discrimination Act. Importantly, however, while physical or mental limitations may be a disability or an aspect of a disability, their practical consequences, such as absence from work, are not. This distinction is significant when a party is required to identify the disability said to be the reason of adverse action alleged to have been taken against them.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Riley.
Associate:
Date: 17 November 2015
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