Lichfield-Bennett v State of Queensland (Queensland Ambulance Service)
[2014] QIRC 33
•14 February 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Lichfield-Bennett | v | State | of | Queensland |
(Queensland Ambulance Service) [2014] QIRC 033
| PARTIES: | Lichfield-Bennett, Stephanie | ||
| (Applicant) | |||
| v | |||
| State of Queensland (Queensland Ambulance Service) | |||
| (Respondent) | |||
| CASE NO: | TD/2013/3 | ||
| PROCEEDING: | Application for Reinstatement | ||
| DELIVERED ON: | 14 February 2014 | ||
| HEARING DATES: | 29, 30, 31 October 2013 | ||
| 1 November 2013 19 November 2013 6 January 2014 (Applicant Submissions) 31 January 2014 (Respondent Submissions) 5 February 2014 (Submissions in Reply) | |||
| MEMBER: | Deputy President Swan | ||
| ORDERS : |
| ||
CATCHWORDS: | INDUSTRIAL LAW - APPLICATON FOR REINSTATEMENT - Termination of employment - Requirement for psychiatric assessment - Was process adopted fair and reasonable in the circumstances - Memorandum of Understanding between QPS and Respondent concerning mental health issues - Failure to attend many medical appointments - Disingenuous conduct by the Applicant - Dismissal did relate to Applicant's conduct/capacity - Applicant warned about conduct she was undertaking - Opportunity for Applicant to respond to allegations - Termination of employment not harsh, unjust or unreasonable | ||
| CASES: | Industrial Relations Act 1999, s 73, s 77 | ||
| Mental Health Act 2000 | |||
| Ambulance Service Act 1991, s 18A(1)(d) | |||
| APPEARANCES: | Mr J. Shepley, Counsel for Applicant. | ||
| Mr J. Merrell, Counsel instructed by Crown Law for the State of Queensland (Queensland Ambulance Service), the Respondent. |
[1] Ms Stephanie Lichfield-Bennett (the Applicant) filed an application on 5 January 2013 seeking reinstatement to her former position as a Paramedic within the State of Queensland through the Queensland Ambulance Service (the Respondent) arising out of her dismissal.
[2] This application is made pursuant to Chapter 3 of the Industrial Relations Act 1999 (the Act)
Relevant Legislation
[3] Section 73 of the Act provides as follows:
"73 When is a dismissal unfair
(1) a dismissal is unfair if it is -
(a) harsh, unjust or unreasonable; or (b) for an invalid reason."
[4] Section 77 of the Act provides as follows:
"77 Matters to be considered in deciding an application In deciding whether a dismissal was harsh, unjust or unreasonable, the
commission must consider -
(a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to - (i) the operational requirements of the employer's undertaking, establishment or service; or
(ii) the employee's conduct, capacity or performance; and
(c) if the dismissal relates to the employee's conduct, capacity or performance -
(i) whether the employee had been warned about the conduct, capacity or performance; or (ii) whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and (d) any other matters the commission considers relevant."
[5] The date of the Applicant's dismissal was 19 December 2012.
[6] The Applicant seeks an order that she be reinstated to her former position with the Respondent and seeks an order that the Respondent pay her remuneration lost between the date the dismissal took effect and the date of reinstatement.
[7] Alternatively, the Applicant seeks an order that the Respondent pay the Applicant an amount of compensation the Queensland Industrial Relations Commission (the Commission) considers appropriate.
[8] Witnesses for the Applicant were:
Stephanie Lichfield-Bennett (Applicant) Dr Sanjib Baruah (Psychiatrist). [9] Witnesses for the Respondent were:
Steven Clarke (Executive Manager Emergency Management QAS) Benjamin Clark (Clinical Fellow) Dr Daniel Bodnar (Staff specialist in advancing medicine) Gavin Trembath (Assistant Commissioner Metro North QAS) David Eeles (Paramedic) Peter Wood (Director of Brisbane Operations Centre QAS) Andrea Harvey (Advanced Care Paramedic). Applicant's employment history
[10] The Applicant had previously worked as an Ambulance Officer in Victoria and had moved to Queensland some six years ago to continue this type of work as a Paramedic for the Respondent.
A chronological account of specific events
[11] The Applicant was in the course of building a house near Mount Cotton Road and was undertaking negotiations, which the Applicant described as "negative" with the building company, Villawood.
[12] She held the belief that she had been stalked by persons from Villawood and she complained to the Queensland Police Service (QPS).
[13] Discussions with QPS were undertaken and the Applicant's friend, Detective Yeoman from the Victorian Police Service, acted as the go-between between herself and QPS.
[14] On 3 November 2011, the Applicant was scheduled to attend a case management meeting at her workplace unrelated to issues in this application.
[15] On that date, while attending at the designated place for the meeting, the Applicant was advised that the meeting had been cancelled and a new meeting had been scheduled. The new meeting related to concerns being expressed by the Respondent about the state of the Applicant's mental health.
[16] The Respondent says that it was advised by QPS that it was about to complete an Emergency Examination Order (EEO) or Justice Examination Order (JEO) in relation to the Applicant.
[17] The Mental Health Act 2000 sets out processes for a person to be assessed for the purpose of determining whether involuntary treatment and care is required.
A JEO is a justice examination order. This allows a community member to gain a non-urgent mental health assessment for a person who may be experiencing mental health problems. The process authorises mental health services to make an assessment, while also safeguarding the rights of the individual. An EEO is an emergency examination order. In effect, an emergency examination order authorises the temporary detention and examination of a person who is experiencing urgent mental health problems. If the EEO criteria apply, then a person can be forced to go to an authorised mental health service for examination.
[18] Ms Janelle Harm of QPS and Mr Martin Davies (Clinical Nurse Consultant working for Queensland Health at the Bayside Mental Health Services) had made contact via telephone with Ms Andrea Harvey (the Respondent's State Mental Health Intervention Coordinator). Mr Davies role was to liaise with both QPS and the Respondent on mental health issues. Mr Davies is alleged to have told Ms Harvey that QPS was concerned about the Applicant's welfare. The commentary from QPS was that the Applicant had visited QPS complaining of people following her to work. QPS also advised that the Applicant has been taking photographs of number plates of cars "while she is driving". QPS advised Ms Harvey that they had performed a full investigation of the matter and they were concerned about the Applicant's mental health.
[19] At the new meeting of 3 November 2011, the Applicant attended together with a United Voice representative and was advised by Ms Harvey and Mr Clark of the situation and further that until those concerns raised by QPS had been addressed, on the advice of the Respondent's Acting Medical Director, the Applicant was to be placed in a non-operational role.
[20] The Respondent claims that it persuaded the Applicant to voluntarily attend a mental health assessment so as to save her from embarrassment and trauma in having to be subjected to the Order by QPS.
[21] The Applicant nominated the Redland Hospital and had a consultation with Dr Baruah (Psychiatrist) who assessed her and thought, possibly, that she may have been suffering from a monosymptomatic delusions disorder but could not firmly diagnose a condition unless collateral material was provided by QPS. This did not eventuate. Dr Baruah advised that the Applicant should not be treating patients or driving an ambulance until the mental health assessment could be completed the following week at the Redland Hospital. Dr Baruah advised that an independent psychiatric examination be undertaken. The Applicant did not attend Redland Hospital for the follow-up assessment.
[22] On 11 November 2011, the Applicant had requested a meeting with Mr Wood, Mr Lichfield-Bennett, two United Voice delegates and Mr Clarke.
[23] The Applicant did not wish to attend the proposed psychiatric assessment at Redland Hospital because she said that by then she had no trust in the QAS and the Medical Director.
[24] The Applicant provided an unsigned medical certificate from her General Practitioner certifying her fitness for work but would not permit the Respondent's Medical Director having contact with her General Practitioner.
[25] On 11 November 2011, Mr Wood advised the Applicant that on Dr Clarke's advice, a psychiatrist's clearance was required in order for the Applicant to return to normal duties.
[26] The Applicant was then under direction from Mr Wood to attend an assessment with Dr De Leacy (Psychiatrist) on 24 November 2011.
[27] On 13 November 2011, Dr Clark advised Mr Wood that Dr Baruah believed that the Applicant's presentation was consistent with delusional disorder based upon his examination and some history, but he did not believe that her mental illness was severe enough to warrant an involuntary treatment order.
[28] On 22 November 2011, the Applicant returned to work on a suitable duties plan and worked in a non-operational capacity.
[29] On 24 November 2011, when the Applicant was to see Dr De Leacy, she did not attend nor did she provide a reason for her non attendance.
[30] In January 2012, the Applicant lodged a complaint of unlawful discrimination with the Anti-Discrimination Commission of Queensland.
[31] On 6 January 2012, the Applicant lodged a Notification of Dispute with the Commission where she agreed to attend a medical assessment with a psychiatrist recommended by her General Practitioner. The agreement also extended to the release of her medical information to the Respondent. The psychiatrist nominated was Dr Steinberg. The appointment was for 13 February 2012.
[32] The Applicant could not attend that consultation (as bereavement leave was sought and granted) and a new date was scheduled for 5 March 2012.
[33] The Applicant did not attend this consultation with Dr Steinberg (and has explained that she could not attend because of the volume of material she had to consider emanating from a Right to Information request).
[34] On 22 March 2012, the Applicant sustained a back injury whilst working in the non operational area of the Respondent's workplace and ceased attending work.
[35] A continuation of the Dispute Conference in the Commission occurred and an agreement was reached that the Applicant would attend a consultation with Dr Steinberg. On 23 April the Applicant did not attend the appointment and did not provide any reason for this non-attendance.
[36] On 24 May 2012, the Applicant was directed by Mr Trembath to attend the assessment with Dr Steinberg now scheduled for 4 June 2012. The Applicant was advised, at this time, that failure to attend without reasonable cause would result in disciplinary action, including termination of her employment.
[37] Assertions were made by the Applicant's legal representative that the Respondent had not complied with the agreement reached before the Commission. On 31 May 2012 the Respondent was advised that the Applicant could not attend the 4 June 2012 assessment because she would be undergoing surgery.
[38] On 6 June 2012, Mr Trembath requested a medical certificate from the Applicant confirming her condition and incapacities. That correspondence also advised the Applicant that arrangements would be made for another appointment.
[39] The Respondent stated that at all times it had complied with the agreement reached between the parties in the Commission.
[40] On 13 June 2012, the Applicant lodged a complaint with the Australian Human Rights Commission stating that the Respondent had intimidated, coerced and blackmailed her into attending the assessment.
[41] On 5 July 2012, Mr Trembath was provided with two medical certificates stating that the Applicant was unfit for duties until 25 July 2012.
[42] Further communication between the Respondent and Applicant occurred on 20 July 2012 and the Respondent advised that it would reschedule the assessment and that if the Applicant was unfit after this period then
(a) further medical particulars were required as to why she could not attend the assessment; (b) the Respondent should be able to seek particulars from her treating specialist and (c) if this information was not received by 30 July 2012, the Respondent would reschedule an assessment and re-issue a written direction for her to attend. [43] On 23 July 2012, the Applicant provided a medical certificate from General Practitioner, Dr Fernando to the effect that she was unfit to continue her usual occupation until further advised.
[44] On 8 August 2012, Mr Trembath directed the Applicant to attend an assessment with Dr Steinberg on 20 August 2012.
[45] The Applicant did not attend that consultation and states that this was in accordance with her medical certificates.
[46] On 4 September 2012 a Disciplinary Process was commenced by the Respondent. The Applicant was asked to 'show cause' why disciplinary action should not be taken against her.
[47] The "allegation" was that on 8 August 2012, Mr Trembath directed the Applicant to attend an independent psychiatric assessment with Dr Steinberg, Psychiatrist on 20 August 2012 and that the Applicant failed to do so without reasonable excuse.
[48] The Applicant responded to this show cause letter and attached with her response a medical certificate from Dr Fogarty, General Practitioner.
[49] Mr Eeles for the Respondent on 16 November 2012, advised the Applicant that his finding, on the balance of probabilities, was that the Applicant failed to comply with the direction given to her on 8 August 2012 to attend her consultation with Dr Steinberg and that she did so without reasonable cause. The allegation was substantiated and the Applicant was liable to disciplinary action pursuant to s 18A (1) (d) of the Ambulance Service Act 1991.
[50] The Applicant was giving 14 days in which to respond. The Respondent states that the substantive reason given for the Applicant's non attendance with Dr Steinberg was that she was unfit to attend on that day. The Applicant provided a medical certificate from her General Practitioner dated 26 November 2012. Dr Fernando stated that he saw the Applicant on 20 August 2012 and she was unfit for any other appointments for that day.
[51] Mr Eeles believed that there was nothing in the response provided by the Applicant on 30 November 2012, which would lead him to alter the decision of 16 November 2012 that the allegation was proven.
[52] Mr Eeles referred to the medical certificate provided by Dr Fernando on 26 November 2012 where he stated that he had seen the Applicant on 20 August 2012 and this provided proof that the Applicant had not provided a reasonable excuse for non attendance.
[53] On 19 December 2012, Mr Eeles advised the Applicant that he had determined to terminate her employment with the Respondent effective immediately.
Primary issues between the parties
"Voluntary" agreement to see Psychiatrist or "coerced into seeing a
Psychiatrist"[54] The Applicant's initial and primary concern was that she was 'coerced' into agreeing to be examined by a psychiatrist by threat of a JEO/EEO being taken out against her by QPS.
[55] The Respondent's position was that in order that the Applicant avoided the 'embarrassment and trauma associated with being subjected to an EEO or JEO', it persuaded the Applicant to voluntarily attend a mental health assessment [Respondent's submissions - point 7].
[56] How the matter arose in the first instance is not in issue. It arose out of a telephone call made by Senior Sergeant Janelle Harm of QPS and Mr Martin Davies from Queensland Health contacting Ms Harvey of QAS advising of their concerns about the mental health of the Applicant.
[57] Ms Harvey's evidence was that at various times she had been the line manager of the Applicant and had never encountered any problems with her [T5-21].
[58] Ms Harvey did not recall being advised that Ms Harm or Mr Davies had any conversation with the Applicant. However, Ms Harvey said she was advised that QPS "had completed investigations and the findings of their outcomes were they were concerned of her welfare" [T5-24].
[59] Ms Harvey was not asked by Respondent officers with whom she had spoken, nor asked directly herself, for anything in writing from QPS with regard to its concerns with the Applicant [T5-24].
[60] Ms Harvey said that she did not find this course of events unusual in that the Respondent and QPS had a professional understanding where issues of the type addressed in this application were concerned. While one or the other officer of these organisations may not have personally viewed that of which complaint had been made, "they listen and take note of it and vice versa" [T5-30].
[61] The evidence of Mr Trembath was not that the Respondent was not required to investigate the Reports of QPS, but because the Reports had come directly from QPS rather than from some third party. The Respondent and QPS share a commitment to the community and there was in existence a Memorandum of Understanding between QPS and the Respondent with regard to sharing information concerning mental health issues [T4-23].
[62] That the Applicant agreed to voluntarily attend a Hospital to be examined by a Psychiatrist is challenged by the Applicant to the extent that it appeared not to be an "agreement" in the usual sense of the word, but more an acknowledgement that if this did not occur, then she would be facing the implementation of a JEO or EEO by QPS.
[63] In my view, the Respondent was faced with a difficult situation and as has been already stated, I believe the Respondent was attempting to act in the Applicant's best interest. In doing that, however, I have also accepted that this caused the Applicant enormous stress and concern.
[64] According to the information provided to the Respondent, QPS were considering making one or the other Order. If the Applicant did not voluntarily agree to the assessment, then the Applicant's agreement to a particular course of action was not required under an EEO.
[65] In this instance, it was QPS which expressed its concern about the Applicant and it is the Respondent which implemented the action.
[66] The following correspondence which passed between Dr Stephen Rashford to Dr Bodnar, best identifies the situation in which the Respondent found itself.
"Dan
She is obviously delusional.
I would think an IME is the only way to go.
Get legal advice about what you can put in the letter but collateral information
is essential and she is trying to stop any collateral being provided.
We have gone through this before and if she fails to attend then she can be
ultimately dismissed. She would have to go to QCAT etc to prove the actions
of the QAS were wrong. This could hardly be substantial given this original
request came from QPS.I guess the overall lesson from this is that we should not have intervened once we know the QPS were going to act. We should have let them act and then started our process. I know that Region were just trying to be kind.
Very messy now.
I am sure I am reiterating everything you already know." [Exhibit 13]
[67] I have accepted that the Applicant did not wish to have the medical assessment made but believed that she had no option but to agree to the process being aware that a more dire process could be implemented against her.
[68] I concur with the views expressed by Dr Rashford, in hindsight, to the extent that
"we should not have intervened once we knew the QPS were going to act …".
"Medical evidence"
[69] The Applicant attended the Hospital which was nominated by her and was examined by Dr Baruah, Psychiatrist.
[70] He had formed the view that the Applicant may have a mono-symptomatic delusional disorder and that while he had not made a definite diagnosis, that was of concern. Dr Baruah had stated that he required collateral information from Mr Davies to assist him in making his diagnosis.
[71] Dr Baruha was provided with information concerning the Applicant by Mr Davies. Dr Baruha said that Mr Davies provided that information "because it was his position to liaise with the Respondent and QPS" [T-16].
[72] Dr Baruha asked Mr Davies to follow up with any collateral information from QPS and the Respondent which may assist him in his further diagnosis.
[73] In the course of the consultation with the Appellant, Dr Baruha said he raised issues which had been mentioned by Mr Davies and the Applicant in order to clarify the situation with her [T 1-30].
[74] Dr Baruah's evidence is that in November 2011, he received a telephone call from Dr Bodnar and that he advised Dr Bodnar that he was concerned about labelling the Applicant with a mental illness diagnosis until he had an opportunity to obtain and review collateral information from QPS.
[75] Dr Baruah also stated that given the implications for the Applicant if she had a mental illness vis a vis her work, he would ask that she have a second independent examination.
[76] Dr Baruah also agreed that it would be in the best interests of all if the Applicant be placed on non-operational duties until that independent examination had been performed.
[77] Beyond that period of preliminary assessment by Dr Baruah, the issue became one of the Applicant not wishing to undertake any further psychiatric assessment.
[78] That desire on the part of QAS to have the Applicant undertake further psychiatric investigation and her disinclination to do so is what followed that early process.
[79] In my view, the Respondent was required to see that the Applicant had further psychiatric investigation for the purpose of determining whether she could undertake the full gamut of her work duties for QAS.
[80] There is no question that the work of a Paramedic within the QAS is a highly responsible and pressured position. Whoever undertakes that work needs to be mentally fit, and to be able to perform the often onerous functions that are required.
[81] It is not necessary to traverse the twists and turns (previously identified in this decision) that occurred which ultimately resulted in the Applicant not undertaking any further psychiatric examinations. While there were often legitimate occasions when the Applicant was unable to undertake this course, when one considers the time period involved and the broken appointments over a considerable period of months, the Respondent, in my view, was entitled to request that the Applicant "show cause" as to why disciplinary action should not be taken against her.
Consideration of the Evidence and Conclusion
[82] The information provided by QPS to the Respondent was to the effect that QPS had determined to issue a JEO or EEO Order against the Applicant.
[83] The Respondent made a decision to meet with the Applicant to discuss this issue and decided to attempt to encourage her to attend a psychiatric assessment.
[84] Having considered all of the evidence in this matter, I find as follows:
The belief was reasonably held by the Respondent that it would be less embarrassing/humiliating for the Applicant to undertake this process by agreeing to visit a psychiatrist in order to assess whether she could continue working in her normal paramedic duties.
The Respondent had also taken into consideration the nature of the work performed by a Paramedic and had to ensure that the Applicant was capable of performing her duties appropriately. Given the nature of the job in question the Respondent's view was understandable and appropriate.
Notwithstanding that there had been no identifiable problems with the Applicant's work for the Respondent, because of the professional arrangements between QPS and the Respondent (and Queensland Health), coupled with the advice from QPS of its intended action, the request made by the Respondent to the Applicant to agree to undertake a psychiatric examination was reasonable in the circumstances. I have accepted Mr Trembath's evidence in this regard as being acceptable in the circumstances.
While it might be suggested that the Respondent acted impulsively in dealing with this issue, the imminence of the proposed QPS action against the Applicant ensured that quick action was required by the Respondent in addressing this issue and, within that context, it was reasonable in the circumstances.
At the meeting of 3 November 2011 attended by Mr Wood and Mr Clarke, the Applicant was represented by two Union delegates from United Voice, and her father Mr Lichfield-Bennett. The Applicant faced these issues with appropriate support persons.
The Applicant agreed to undertake a psychiatric assessment - and
advised of her preferred Hospital.
At the meeting at Redland Hospital with Dr Baruha, the Applicant was supported by her father, who attended the consultation with her agreement.
Dr Baruha made a tentative diagnosis and had requested collateral material from QAS and QPS before he could be more determinative. Dr Baruha requested that the Applicant have a further meeting with him, but the Applicant ultimately declined to attend.
The fact that Dr Baruaha had expressed his concern about the Applicant's mental health and requested that she undertake further psychiatric examination, highlighted very early in the process that the Applicant not perform operational duties until a firm diagnosis was made. This, together with the notification from the QPS, was an issue which rightly concerned the Respondent.
As Dr Baruha had not made a formal diagnosis, he stated that the Applicant should be independently psychiatrically examined. Those arrangements were made, but the Applicant did not attend many appointments, sometimes with a plausible excuse, other times without.
The Applicant was provided the opportunity of being psychiatrically examined by a Psychiatrist of her own choosing, and when arrangements were made for appointments with that specialist, the Applicant failed to attend.
During the period of missed appointments, the Applicant had some medical certificates stating that she was unfit to attend appointments. While, in those circumstances, that is understandable, what is not understandable is that over such a protracted period of time, the Applicant would not visit at least one other Psychiatrist for the purpose of an assessment.
The Applicant had been required to attend a consultation with Dr Steinberg on 20 August 2012. This was the Psychiatrist of her choosing. The Applicant did not attend that appointment on that day but was able to visit a General Practitioner for the purpose of gaining a Medical Certificate. In my view, it was disingenuous for the Applicant to submit that she was well enough to visit the General Practitioner and not the Psychiatrist when all the emphasis over the preceding months was on her attaining a further independent psychiatric assessment.
The need/urgency for a psychiatric assessment was to ensure that the Respondent could be confident that the Applicant could continue her duties as a Paramedic and that she could be returned to those duties in a reasonable time frame. In my view that requirement from the Respondent was necessary.
This did not occur, and consequently, the Respondent was left with little
else than to implement a disciplinary process against he Applicant.
[85] Section 73 of the Act states that a dismissal is unfair if it is harsh, unjust or unreasonable; or for an invalid reason.
[86] Section 77 of the Act refers to the matters to be considered in deciding an application.
[87] In applying the provisions of the Legislation, I find that:
The Applicant was notified of the reasons for dismissal; The dismissal did relate to the Applicant's conduct/capacity; The Applicant had been warned about the conduct she was undertaking; The Applicant had an opportunity to respond to the allegations made
with regard to her conduct/capacity.
[88] I have found nothing harsh, unjust or unreasonable in the termination of the Applicant's employment with the Respondent.
[89] While acknowledging that the issues involved in this matter were stressful and unpleasant (and not only for the Applicant), the Respondent was entitled to address the issue confronting it with regard to the Applicant and did so, fairly, under difficult circumstances.
[90] The application is dismissed.
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