Ms Monir Mottaghi v Adelaide Community Healthcare Alliance Incorporated T/A the Memorial Hospital
[2013] FWC 1906
•27 MARCH 2013
[2013] FWC 1906 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Monir Mottaghi
v
Adelaide Community Healthcare Alliance Incorporated T/A The Memorial Hospital
(U2012/439)
COMMISSIONER STEEL | ADELAIDE, 27 MARCH 2013 |
Termination of employment.
Overview
[1] This is an application by Ms Monir Mottaghi (the applicant) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The respondent is Adelaide Community Healthcare Alliance Incorporated.
[2] This application was the subject of a jurisdictional objection by the respondent on the basis that pursuant to s.732 of the Act the application was made in relation to the applicant’s dismissal and the applicant had also notified to the WorkCover Corporation an alleged breach of s.58B of the Workers Rehabilitation and Compensation Act 1986 (SA) (the Workers Compensation Act) in regard to her dismissal and that such an application was in effect a further existing remedy and hence the unfair dismissal claim should be excluded.
[3] The objection was heard by Hampton C and in his decision the Commissioner found:
● That the notification to WorkCover in regard to an alleged breach of s.58B of the Workers Compensation Act is not an application for complaint in relation to dismissal as contemplated by s.732 of the Act.
● That s.58B of the Workers Compensation Act does not involve any relevant form of remedy for the applicant. It is directed at the potential prosecution of the employer for a breach of the Act and such prosecution is not a benefit to the employee for present purposes.
[4] The jurisdictional objection was consequently dismissed.
[5] The applicant commenced employment with the respondent on 10 December 2001 as a casual health service employee. She was dismissed on 17 February 2012.
[6] The reason for dismissal as set out in the letter to the applicant dated 20 February 2012 was as follows:
“You failed to produce any or any sufficient medical evidence to demonstrate you could perform the inherent requirements of your position, even with reasonable accommodation.
As a consequence we have no choice but to terminate your employment as of close of business on 17 February 2012.” 1
[7] The applicant was paid five weeks pay as notice together with her various accumulated entitlements.
[8] The Commission was not provided with any evidence or submissions in this matter in regard to disciplinary matters within the applicant’s record of employment.
Witness Evidence
[9] The applicantrequested the services of an interpreter. The proceedings were at times slowed by that process. The applicant, in her evidence, illustrated a reluctance at times to answer directly and that the proceedings were upsetting to her. She may not have comprehensively understood her situation at times. The Commission did consider that the applicant generally endeavoured to be helpful within her experience and abilities.
[10] Dr Reece Jennings provided evidence in his professional capacity as to the health and capability of the applicant. The Commission found the doctors testimony of limited assistance as all assessments were taken some time after the events in question in this matter.
[11] Mr Nathan Thompsongave evidence in his capacity as a United Voice official and the Commission found his evidence frank, direct and reliable.
[12] Ms Karen Boyle, the Return to Work Co-ordinatorfor the respondent, was a reliable witness and appeared a direct, capable individual.
[13] Ms Angela McCabe, the General manager and Director of Nursing for the respondent, was a direct and reliable witness, save for some issues in regard to recall of past events.
[14] Ms Tracy Secombe, an Industrial Physiotherapist engaged by the respondent, was a direct reliable witness.
[15] Dr Grantley Tschirn, a Consultant Occupational Physician engaged by the respondent, was a direct and reliable witness.
[16] Mr Robert Hutchinson, the Integrated Services Manager for the respondent was a reliable witness.
Prescribed Medical Certificates (PMCs)
[17] The applicant’s prescribed medical certificates in relation to her WorkCover claim were provided for the Commission’s information and evidence as to the medical diagnosis of the applicant’s health and capacity during her claim period. 2
[18] The applicant provided between 23 October 2008 and 15 March 2012 various PMCs which included a diagnosis of her condition and various specified restrictions, e.g. “avoid overuse of right hand, exclude pushing trolleys, no lifting over 3 kg, exclude any work that aggravates pain, restrictions as per the OT report, restrictions on dinner trolleys.”
[19] Within the PMC for 26 May 2009, the applicant was diagnosed as “fit to return to pre-injury workplace duties on 26 May 2009” and the comment appears “Pt states her duties have been permanently changed to “doctor’s shift”. The PMC further indicated the doctor did not arrange to further reassess the worker as no date is entered in that area. 3
[20] A further PMC on 22 December 2009 repeated the diagnosis in respect to return to pre-injury duties and the comment in relation to permanent change to “doctor’s shift” and that again no further reassessment was noted. 4
[21] The last PMC provided in evidence before the date of the applicant’s dismissal is for 12 February 2012. The applicant is designated “fit to return to modified/other duties from 13 February 2012 to 12 March 2012 with the following restrictions: no repetitive use of hands, no lifting >3 kg” and contains the comment by the doctor as follows under the section “Treatment Plan”:
“Ms Mottaghi’s restrictions were made permanent on 26/5/2009 and I believe from the report dated 15/8/2011 by Tracy Secombe that the restrictions are consistent with her injury from 2009 and that she should be able to perform the restricted duties she had in place back then.” 5
[22] The applicant was dismissed on 17 February 2012 whilst on suspension from her employment since the 1 February 2012.
The evidence of the events leading to the dismissal
[23] The applicant commenced work in 2001 as a casual employee. In 2007 she signed a new contract of employment as a part-time food service assistant. In 2009 she signed a new contract as a part-time catering assistant. Such contracts were continuous.
[24] The catering assistant role is responsible for serving meals and morning teas and for wash up of all dishes/utensils associated with the meals. 6 The main role of distribution person is to: assist with serving of meals; load and unload trolleys of trays of meals; distribute trays of meals to patients in their rooms; collect trays and take them back to the kitchen; wash dishes and all items on trays including use of an industrial dishwasher at one of four stations; cleaning floors and general maintenance of the kitchen. The Commission was not provided with evidence that all the catering assistants completed all the above duties at anytime.
[25] The applicant, towards the end of 2008, was diagnosed with ‘Carpel Tunnel Syndrome’ the symptoms of which, she asserts, were aggravated by her pushing various trolleys within her work duties. She made a WorkCover claim which was accepted by the insurer on 6 November 2008 and she provided thereafter various medical PMC’s as to her capacity to the respondent.
[26] The applicant asserts that her duties did not change at work as a consequence of her claim. The respondent did however provide assistance to her because of her injury. 7 Such assistance resulted in her avoiding heavy lifting etc. Those duties were done by others.
[27] In cross-examination the applicant accepted that she was not required at this time to push trolleys, service the dishwasher and be involved in heavy lifting of stores. 8
[28] Following the applicant’s surgery for ‘Carpel Tunnel’, in May 2009 she returned to work. She again asserts that her duties did not change despite asking for a transfer to other duties. The applicant also stated that by arrangement with other staff she began doing the specific designated tasks known as the ‘doctors job duties’ and in early 2010 she had progressed to doing that task or duties five days per week. 9
[29] Sometime after 23 August 2010 she had an interview with Mr Hutchinson, her new supervisor. She advised him that her current duties were the ‘doctors job’ and the details of her WorkCover claim. She requested that she be able to continue that job. The applicant’s evidence was that Mr Hutchinson confirmed at that time that her job was to be her permanent job, that is the ‘doctors job ’duties, and she thereafter did that job on very shift until her dismissal. 10
[30] In cross-examination the applicant’s evidence altered to Mr Hutchinson not objecting to her doing that job or duties and that he did not change her job subsequently. Further in examination, the applicant stated that Mr Hutchinson said “fine, please continue” to her request to do the ‘doctors job’ duties.
[31] The respondent asserts that any change to the applicant’s contract in regard to these changed duties would require a specific “Change to Employment” document be completed and approved. This was not provided or advised to the applicant at this time nor was it completed in anyway by the applicant. 11 The applicant was provided with rosters which referred to her ‘doctors job’ role.12
[32] Mr Hutchinson denies he had such a meeting with the applicant and denies the asserted statements attributed to him or his alleged apparent acceptance of the applicant doing the ‘doctors job’s role. Mr Hutchinson’s evidence is that following the commencement of his employment with the respondent he became aware that the applicant was doing the ‘doctors job’, that she had a WorkCover claim and that she had a special knife for kitchen work. He understood she was doing the ‘doctors job and that she was not on light duties. His perception of the applicant’s situation did not change until August 2011. 13
[33] The applicant’s evidence is that she also had a meeting with her treating doctor, Ms Boyle and a person referred to as Anne, regarding her status. She says her return to work on light on light duties and avoidance of excessive lifting etc. was discussed. She asserts this was agreed to by the employer.
[34] This alleged meeting was not referred to in the applicant’s witness statement and was not pressed in examination save that Ms Boyle would deny the alleged content referred to. 14
[35] Later, the applicant agreed that she did return to work and completed other than the light duties identified but with help from other employees to the effect she was doing her substantive job but with the assistance from others from time to time. 15
[36] Subsequent to returning to work after her operation for carpel tunnel on 26 May 2009, the applicant’s WorkCover weekly payments stopped. 16 The applicant asserts that the return to work PMC was provided by her doctor on the basis that the duties she was returning to were permanent modified or light duties, not the pre-injury duties that have been referred to previously.17 The respondent asserts that the PMC illustrates, at best, a comment made by the applicant as to her duties and it was not a restriction on her return to work by the doctor.
[37] From the evidence, the applicant’s WorkCover claim was closed by the insurer in February 2011. The applicant did not receive a document but the respondent was advised.
[38] In examination, the applicant agreed she was doing other duties apart from the ‘doctors job’ for a short period but progressively did the job exclusively. 18
[39] The applicant utilised a small trolley for her doctor’s job work and did not transport hot meals or drinks on this trolley.
[40] In July 2011, the applicant was approached by Ms Boyle who advised her that she required a “re-examination of her health status as to functioning”. Ms Boyle’s evidence is that she advised that there was a concern regarding the applicant pushing trolleys in a dangerous way and the respondent wanted to have her assessed to see if she could do the job or not. The applicant denies this occurred.
[41] The assessor appointed was Ms Secombe. The assessment was completed in July 2011 and a report provided to the respondent in August 2011. It was not provided to the applicant until apparently February 2012 in that it was given to her union representative after the 1 February 2012 meeting in which she was advised of her possible dismissal.
[42] In November 2011 the applicant was approached again by Ms Boyle and advised that she was required to have a further assessment by Dr Tschirn. The applicant’s evidence is that she was unclear about the reason for this further assessment as she was given no specific reason for it to occur.
[43] A few weeks subsequent to this later assessment the applicant requested copies of the two reports from Mr Hutchinson who referred the applicant to Ms Boyle. The applicant’s evidence is that she requested such reports from Ms Boyle on two occasions but was “fobbed off” and told the reports were the property of the respondent.
[44] The applicant received a letter regarding her status from the respondent including a meeting arranged with her for 1 February 2012. The applicant asserts that she did not receive this letter dated 19 January 2012 until 27 January 2012. The applicant referred the letter to her union on the Monday 30 January 2012 for assistance. The applicant, in examination, says she was shocked and did not understand the letter, its reference to her duties and did not fully read the letter or understands its contents. She thought it meant she could not work. She states she was in shock.
[45] The letter received by the applicant reads as follows:
“19 January 2012
Ms Monir Mottaghi
65A Hallet Road
BURNSIDE SA 5066
Dear Monir,
Re: Continued Inability To Perform Contracted Duties
We note that you continue to be unable to perform the inherent requirements of your position as catering assistant. You sustained an injury of carpal tunnel syndrome on or about September 2008. As a consequence you have not been able to perform your pre-injury duties since that date.
The organisation has also provided a graduated return to work plan for you. You have been performing modified alternative duties since on or about late 2008.
The organisation is now in possession of a medical report that indicates you will not be able to return to your pre-injury duties, at least for the foreseeable future, if at all.
Whilst the organisation has tried to be patient and accommodating having regard to your medical condition, it can no longer continue to do so as your absences are disruptive to its operational requirements. Furthermore there is no evidence that is continued absence will not continue. As a consequence it represents an inability to discharge your obligations under your contract of employment to provide services to the organisation of a nature envisaged by the parties when they entered into the contract of employment.
In the event that a decision is made that you cannot work in accordance with the terms of your contract of employment, a decision may be made to terminate your employment.
Prior to this decision being made we seek to meet with you to ascertain your fitness for duty. The meeting will be held at 2:30pm on Wednesday 1 February 2012 in the General Managers office at The Memorial Hospital. You should bring any evidence which you have as to your current medical condition, including any reports from treating medical practitioner(s). To avoid your employment being terminated, the organisation will need to be satisfied that on the basis of this medical evidence you are able to carry out the inherent requirements of your position under your contract of employment and/or no reasonable accommodation can be made having regard to your medical condition.
You may be represented or bring a witness of your choosing to this meeting.
If you wish you may discuss the matters contained in this letter with the undersigned prior to the meeting.
Yours sincerely
(Signed)
Angela McCabe
General Manager/Director of Nursing
CC: Robert Hutchinson, Integrated Services Manager.” 19
[46] The applicant attended the meeting of 1 February 2012 with a representative from her union, Mr Thompson. The applicant states she was upset in the meeting, that she had not completed reading the above document and that she did not have any contact with anyone during the week prior to prepare for the meeting.
[47] The applicant met Mr Thompson from her union just prior to the meeting after working her normal duties. The applicant states she had no time for prior discussions. This was confirmed by Mr Thompson and in respect to the content of the letter received by the applicant; he had not discussed its contents with her.
[48] The applicant’s evidence is that she was terrified, upset and crying in this meeting. She could not recall the events that transpired or the instructions from the respondent. She recalls she was given the week off to recover and that she would be notified. She further states at sometime in the meeting she begged for other work in any of the respondent’s hospitals.
[49] Mr Thompson referred the letter and matter to the union the next day and confirmed in his evidence the applicant was upset and did not understand the issues very well. He further recalls that the respondent said they had researched but could find no other duties for the applicant.
[50] In regard to the contents of the letter the applicant indicates that she did not respond to the respondent’s request for medical evidence because she did not have any medical evidence, that she could not do the distribution work because she was doing the ‘doctor’s work’ and she did not know how she was failing that requirement. The respondent had not provided evidence or information to her.
[51] The applicant went home from the meeting and her evidence is that she did not have any further conversations with her representatives. She did attend her doctor and discussed her situation, apparently discussing the Ms Secombe’s report with him. She was given a further PMC. She did not reconsider the above mentioned letter’s contents and was not aware of the requirement of the respondent that she was again to provide medical evidence or material to support that she could perform the inherent requirements of her role under her contract of employment.
[52] The applicant put in a further WorkCover claim via her doctor on 17 February 2012. A PMC dated 13 February 2012 was provided to her union representative for forwarding to the respondent. This claim was accepted on 6 June 2012 as connected to her original claim injury of 2008 for carpel tunnel.
[53] The applicant received a letter dated the 20 February 2012 the next day. It reads as follows:
“20 February 2012
Ms Monir Mottaghi
65A Hallet Road
BURNSIDE SA 5066
Dear Monir,
Re: Continued Inability To Perform Contracted Duties
We refer to our meeting of 1 February 2012 which was held for the purpose of you demonstrating you have the capacity to undertake your duties under your contract of employment.
You failed to produce any or any sufficient medical evidence to demonstrate you could perform the inherent requirements of your position, even with reasonable accommodation.
As a consequence we have no choice but to terminate your employment as of close of business on 17 February 2012. The Company will make a payment in lieu of 5 weeks notice, together with any accrued and untaken annual leave and/or long service leave.
We wish you all the best for your future.
Yours sincerely
(Signed)
Angela McCabe
General Manager/Director of Nursing” 20
[54] This was a letter of termination and indicated she would be paid notice in lieu of termination.
Dr Jennings’ evidence
[55] Dr Jennings is a General Practitioner with various post doctoral qualifications and has examined the applicant subsequent to her dismissal and provided a report on her occupational status.
[56] Dr Jennings’ report went to his opinion that following the applicant’s operation she could not continue her distribution task requirements but could do the modified duties in respect to the ‘doctor’s job’.
[57] It acknowledged that she was cleared to return to pre-injury duties by her doctor. However he specifically says she is fit for her modified duties rather than pre-injury duties.
[58] Dr Jennings is of the view the applicant has a fit left hand whereas Ms Secombe’s report says she has a weak left hand. The doctor asserts that Ms Secombe’s report is twelve months older than his report and the applicant’s condition would have improved in this intervening period.
[59] Dr Jennings’ report differs in his conclusions as to the applicant’s status for work and takes issue with the conclusions in Dr Tschirn’s report but points out the report was done some time earlier.
Mr Nathan Thompson
[60] Provided a witness statement and hand written notes A3 and A4
[61] Mr Thompson had a limited interaction with the applicant prior to the meeting of 1 February 2012 and did not have the opportunity for discussion of the letter from the respondent or its contents and requirements with regard to the meeting. He confirms that the applicant was distressed and crying.
[62] Mr Thompson’s evidence of the discussion illustrated that the respondent was concerned with the applicant’s wrist injury and her accepted WorkCover claim. He concluded the union needed to investigate the WorkCover claim further. 21
[63] Mr Thompson says he was only given Ms Secombe’s report but not Dr Tschirn’s report after he had requested both in the meeting. Ms McCabe’s evidence was to the effect that she gave both reports to Mr Thompson.
[64] Mr Thompson agrees the respondent advised what the meeting was about as to their requirements on the applicant in regard to her providing medical evidence. However he disagreed on the basis of the meeting being adjourned. He stated that it was to allow the union to contact the WorkCover insurer, Employers Mutual, regarding the applicant’s claim. Mr Thompson denies it was for the applicant to provide further evidence of her capacity or for the union to do so on behalf of their member. 22
[65] Mr Thompson’s notes indicate the meeting was to reconvene in one week. 23 He states he had no knowledge of the status of the applicant’s WorkCover claim other than the opinion of the respondent that it had been closed or redeemed.
[66] Mr Thompson states he understood at that time that the respondent wanted the applicant to do the full range of catering assistant duties but it was apparent that she had never been returned to full duties at anytime. 24
[67] Mr Thompson states he discussed further with Mr Hutchinson on 9 February 2012 (which is denied by Mr Hutchinson) and followed up with an email. 25 In that email Mr Thompson confirmed that the applicant’s original WorkCover claim was closed and that he had advised the applicant to obtain a new PMC and file a WorkCover claim as her condition was related to the original injury.
[68] Mr Thompson was told in the meeting that the applicant never returned to full duties and the respondent was concerned with her performance in the modified role. He states they (Mr Hutchinson and Ms McCabe) gave him that impression from their conversations in the meeting. 26
[69] On being referred to Dr Tschirn’s report, which he denied receiving, Mr Thompson states he was not aware of the report’s contents and that the applicant had any issue with a left shoulder and that this was not put to the applicant in the meeting of 1 February 2012.
[70] Mr Thompson also stated he was also told in the meeting that both reports had assessed that the applicant could not do the requirements of her job. Mr Thompson states he queried as to the reasons for delay in the consideration of the applicant’s status by the respondent until the 1 February 2012 meeting. He left the meeting believing this was a WorkCover issue and there would be further discussion after he had made enquiries.
[71] Mr Thompson could not recall any discussion with the respondent about the applicant’s absences from work and their effect on the respondent’s business.
[72] Ms Boyle’s evidence for the respondent acknowledges the return to work PMCs of the applicant but indicated that the comments by the doctor were incorrect. However Ms Boyle did not mention any issue of follow up by the employer to the doctor involved.
[73] Following concerns raised by some anonymous medical staff to Ms McCabe regarding a possible safety issue in regard to the applicant’s control of trolleys, Ms Boyle says she initially approached the applicant and spoke with her. The applicant demonstrated how she was pushing the trolley.
[74] Ms Boyle confirmed she was concerned with her observation of the applicant and conferred with Ms McCabe that the respondent should have the applicant medically assessed. She then went back to the applicant and informed her she would be assessed at the hospital. Ms Boyle then arranged the assessment by Ms Secombe and presumably conveyed the details of the assessment arrangements to the applicant.
[75] In face of these apparent separate transactions the applicant’s evidence is that she was advised by Ms Boyle that it had been two years since she her operation and its time I had a re-examination of the health status. She says an appointment has been made with a physiotherapist. The applicant denies she was advised that her pushing trolleys were considered in any way to be in a dangerous manner. 27 Further neither party provided evidence that the applicant was advised of the respondent’s concerns in relation to the applicant’s technique was instigated by the concerns of anonymous doctors and so called “other managers.”28
[76] The applicant was assessed at the hospital by Ms Secombe and a report was provided to the respondent in August 2011. The report was considered of concern by the respondent and they discussed it further.
[77] In Ms Boyles’s view, Ms Secombe’s report determined that “Ms Mottaghi does not have the capacity to work at the distribution end of the kitchen nor does she have the capacity to load and unload the dishwasher.” 29
[78] Ms Boyle, in her statement, refers to the applicant being identified as refusing a number of tasks which were within her defined capacity as an additional reason for Dr Tschirn’s report being required. 30
[79] Ultimately the respondent decided to arrange a report from an occupational physician. Ms Boyle organised this report. This assessment by Dr Tschirn was done in late November 2011 a report subsequently provided.
[80] Despite this scenario of events and the apparent concerns by Ms Boyle as to safety of the applicant and her pushing the trolley and was concerned she was putting her safety at risk and the safety of others at risk. The respondent did not tell the applicant of those concerns or apparently took any action to alter her practice over the period between August and late November. In this respect Ms Boyle says this was not her job it was the applicant’s manager’s role.
[81] The report by Ms Secombe provided various recommendation’s in respect to the applicant. In this regard Ms Boyle provided aids to the catering department but did not check on their implementation.
[82] Ms Boyle s evidence is that Dr Tschirn’s report indicated the applicant’s capacity was limited in other areas other than those that related to her WorkCover claim, i.e. her left shoulder had a limited capacity. Further the applicant did not have a current WorkCover claim in the respondent’s view. The respondent had two medical reports that conveyed the applicant had a limited capacity in respect to the tasks inherent in her job (that is her job as a catering assistant not the more limited ‘doctors job’). No PMCs were provided that indicated further restrictions within her current catering role, with the exception of the PMC of 13 February 2012. That PMC may not have been received by the respondent prior to the dismissal.
[83] The respondent identified that the PMCs were specific to the carpel tunnel claim and that claim and its restricted duties had been resolved and signed off by this juncture. 31
[84] Legal advice as to their options was taken by the respondent and that advice was that the applicant was unable to perform the inherent requirements of her role and that termination of employment was an option. The applicant was provided a letter of show cause with an arranged meeting on 1 February 2012.
[85] Ms Boyle’s evidence is that within that meeting conversation, the medical reports indicated the applicant was unable to return to pre-injury duties (catering assistant role) also that it was not possible for her to do any of the work that was required of her position and that her ongoing inability to perform was disruptive to the operational requirements of the hospital.
[86] Ms Boyle said it was clear at the meeting the hospital would review its decision if there was medical evidence that the applicant could fulfil the inherent requirements of the position. An offer was made to do so in conversation. The applicant did not provide such evidence.
[87] Ms Boyle stated Mr Thompson advised he would follow up and respond to Ms McCabe by 8 February 2012. No response was provided and the hospital formed the view the applicant could not perform the inherent requirements of the position in a safe manner. She was accordingly sent a letter of dismissal on 20 February 2012.
Ms McCabe’s evidence
[88] Ms McCabe confirmed she was approached by “doctors” as to their concerns of the applicant pushing a trolley unsafely with her elbows. She further confirmed that the respondent had formed a view the applicant was not able to fulfil the requirements of her role as a catering assistant.
[89] Ms McCabe advised that the meeting’s purpose on 1 February 2012 was to outline the reports for the applicant to produce evidence that she had the capacity or for her to submit a further WorkCover claim. 32
[90] The applicant did not have a current WorkCover claim. Ms Secombe’s report was available and investigations indicated that the applicant was refusing to do tasks that were within her defined capacity. Then the Dr Tschirn report was done and essentially indicated the applicant could not perform the inherent requirements of her role as catering assistant in a safe manner.
[91] Ms McCabe asserted the applicant’s previous WorkCover claim was resolved and the applicant was expected to carry out the duties of a kitchen hand, consistent with her employment contract. It was subsequently clear she could not do so.
[92] The respondent gave an opportunity to the applicant to provide further medical evidence or she would be terminated letter (sent on 19 January 2012 for meeting on 1 February 2012). In that meeting Ms McCabe states it was made clear to the applicant in the letter she was to produce evidence to the respondent. The applicant did not do so in the meeting. Mr Thompson said he would follow up and respond to the respondent by 8 February 2012. Again no response was forthcoming. The resultant letter of dismissal was sent on 20 February 2012 as the applicant or her representative failed to respond.
[93] Ms McCabe says she supplied both reports in the meeting they were especially copied for Mr Thompson. Ms McCabe says the reports were discussed at the meeting (but it was apparently clear the applicant did not have them prior to or in the meeting).
[94] Ms McCabe referred to monitoring of the applicant in locations between Ms Secombe’s report and Dr Tschirn’s report and assistance being provided to the applicant in her duties. 33
[95] Ms McCabe confirms the applicant was upset and the concern of Mr Thompson was the WorkCover claim status. The meeting adjourned on clear understanding that they would respond within one week and contact be made with the office. They did not respond within that timeframe.
[96] The email from Mr Thompson to the respondent of 14 February 2012 is an email from purporting to attach a PMC from the applicant of the previous day. 34 Ms McCabe states she did not receive it and did not see this certificate until 23 February 2012, after the dismissal letter had been sent. Ms McCabe was not taken to these issues.
[97] Ms McCabe was aware of obligations on employers in regard to s.58B of the Workers Compensation Act and is aware such responsibilities continue indefinitely with an obligation to pay expenses should they be incurred in respect to the injury or claim.
[98] From Ms McCabe’s evidence it was confirmed the concerns expressed by doctors as to the applicant’s method of work were never provided to the applicant, but to her manager Mr Hutchinson and to Ms Boyle. Ms McCabe was not aware if they had provided those concerns to the applicant.
[99] Further, Ms McCabe indicated the report of Ms Secombe was not given to the applicant as it was not relevant as it was about the respondent’s obligations to safety. 35 In regard to those concerns Ms McCabe spoke with Ms Boyle about the recommendations by Ms Secombe. She was assured by Ms Boyle that the recommendations had been implemented. Between August and November 2011 the risks associated with the applicant continued but no further action was taken. Further, no restructure took place in the kitchen at this time.36
[100] Ms McCabe confirmed that at the 1 February 2012 meeting she indicated the view that the applicant’s WorkCover claim had been closed or redeemed. She further agreed that the meeting resolved that the union representative Mr Thompson would come back to the respondent with information about the status of the applicant’s WorkCover claim within one week and or provide some medical evidence or provide a secondary WorkCover claim associated with her carpel tunnel disability. The respondent indicated that they would have been satisfied if the applicant had put a further claim in that week, they would have had an obligation to employ and would have liaised with WorkCover and claims manager regarding the claims acceptance. 37
[101] Ms McCabe confirmed she received an email from Mr Thompson on 9 February 2012 regarding Mr Thompson’s advice to the applicant to obtain a further PMC and to make a further claim and that he was happy to discuss the issues further at anytime. Ms McCabe confirmed she did not respond. She confirmed she was advised not to until the PMC was received.
[102] Ms McCabe says she never received a further email from Mr Thompson and made the decision to dismiss the applicant on 20 February 2012. She never considered talking further to Mr Thompson regarding the applicant.
[103] Under cross-examination Ms McCabe said the applicant refused her management to do various catering tasks which were assigned to her generally associated with heavy pots etc. Further she asserted that the applicant was taking too long to do her work and was not available for other tasks affecting the operational efficiency of the area. These matters were raised with the applicant at the meeting on the 1 February 2012, but not prior to that meeting. Since early 2010 the applicant was not on a return-to-work program, hence her role was that of a catering assistant.
Ms Secombe’s evidence
[104] Ms Secombe provided a clinical assessment of the applicant for the respondent. 38. That assessment was to define the applicant’s physical objective capacity and outline what duties she was able to perform. The report examined the applicant’s subjective capabilities as well as measurements of strength etc. Ms Secombe was aware of the applicant’s present duties from the respondent’s brief and from the applicant. She examined the job analysis duties described as the ‘cold larder’ or ‘doctors job’ and the distribution and dishwasher duties. The applicant’s method and ability to push a trolley was also examined.
[105] With regard to the trolley Ms Secombe identified the applicant was using her left hand to grip and push and her right forearm resting on top to push (not her elbows).
[106] Ms Secombe was aware the applicant was engaged in the cold larder duties for some period of time and made three recommendations in the report in relation to the applicant performing those duties. They were that the applicant use a knife handle aid; a wrist gel wrap; and foam for the trolley handle. In her view these recommendations would incur little expense. In her evidence Ms Secombe was not aware that these recommendations had been implemented or otherwise by the respondent.
[107] Further Ms Secombe’s report identified specific capacities of the applicant and a list of duties that she could safely perform. Comparing these duties with the Cold larder duty list (R8). It would seem the applicant was capable in Ms Secombe’s view to do all the list with the exception of lifting and putting away items in excess of 3kg and the loading the dishwasher other than occasionally.
[108] Ms Secombe states it is possible for the applicant’s grip strength to improve as suggested by Dr Jennings. This is not inconsistent with her assessment as she would expect this to occur over time after surgery and in conjunction with an exercise regime.
[109] The Commission took Ms Secombe to statements in her report on page one under the heading of “Current Prescribed Medical Certificate.” Ms Secombe indicated that she assumed it came from the client briefing from Ms Boyle. These comments are as follows and are in relation to the applicant being:
“Cleared to pre injury workplace duties on 26/05/2009 with the following comments:
Patient states her duties have been permanently changed to “doctor’s shifts”
(Note: To accommodate the permanent provision of duties the doctor’s shift was increased from 6 hours to 6 ½ hours)” 39
[110] The PMC’s in question do carry the first paragraph as to the duty change as above. They do not refer to the details of the note as to the change in hours. This issue was not raised in examination by the parties.
[111] Ms Secombe’s report nominates what ‘cold larder duties’ or doctor’s job duties are suitable, but she indicated these may not be an exhaustive list. The report, having reviewed the applicant against the available job analysis reports indicates the applicant does not have the capacity to load and unload the dishwasher (with exceptions as above) and does not have the capacity to work at the distribution end of the kitchen.
Dr Tschirn’s evidence
[112] Dr Tschirn provided a report and gave his evidence by telephone for the Commission. Dr Tschirn did not inspect the worksite. He was provided with a request for assessment by Ms Boyle by email on 29 November 2011 that contained background information on the applicant provided obviously to assist his assessment.
[113] This email refers to the PMC containing the applicant’s clearance to return to pre-injury duties and the comment regarding her duties have been permanently changed to “doctor’s shift.” It goes on
“As a result of this she was moved to a position known as “Doctors” which is responsible for the preparation of meals/snacks for the doctors in the theatres. In addition there are other tasks involving preparation for functions, unpacking orders and assisting in the distribution end of the kitchen. (I have attached the duty list)”
[114] The email also refers to a “manager” alerting Ms Boyle to the applicant pushing trolleys with her elbows and a manager saying she was not doing all the tasks required because she did not have the capacity.
[115] The above email from Ms Boyle contains further comments such as the applicant had said to Ms Secombe the applicant just needed an easy job and that the respondent had restructured the kitchen and employed an apprentice who will be doing the “doctors duties” as part of his role. Ms Boyle suggested that the respondent needed to move the applicant to other tasks within the catering department and that there are no medical restrictions and that the applicant does not have a current WorkCover claim.
[116] Ms Boyle requested Dr Tschirn’s opinion as to the suitability of continuing employment for the applicant given that it appears she cannot meet the critical physical demands of her position within the kitchen.
[117] In testimony Dr Tschirn could not confirm he relied on this information but did give regard somewhat to the background information supplied by Ms Secombe’s report which had been supplied to him. He describes his report as a fit for duty assessment, of providing advice on the person’s occupational disposition and their capabilities to work safely.
[118] In terms of testing he did not rely on his grip testing material as it was of potentially questionable validity and as the results were so poor.
[119] Dr Tschirn concluded the applicant was capable, with some reservations, of doing her current role but not the others. He also did not rely on Ms Secombe’s results as to grip testing as he says they were so low as to be unreliable.
[120] He concluded:
“Overall the only role I can see the applicant undertaking is her current role but it also appears she is struggling because of her poor grip strengths and ongoing left shoulder condition not otherwise disclosed but clearly imposing functional limitations, raises questions of whether she can continue to be employed safely in the role, given her current status. Assessment and treatment may lead to improvement in her shoulder condition, though given the light nature of the activities both at home and work, as reported, the prognosis is guarded for recovery. That aside her hand dysfunction is sufficiently impaired in itself such as to render her unsuitable for this type of work.” 40
[121] Dr Tschirn thus relied upon the applicant’s hand dysfunction, which he did not test, to state she was “unsuitable.” This is in contrast with Ms Secombe’s report and the respondent accepted that this meant the applicant could not do the work.
Mr Hutchinson’s evidence
[122] Mr Hutchinson denies he had any separate meeting and a specific conversation with the applicant about the “doctor’s job” following his appointment. He denies he ever agreed to give the applicant the permanent role of doctor’s larder or that he did not raise an objection to her continuing in that role. He further denies he had knowledge of her WorkCover claim at that time.
[123] Mr Hutchinson was not aware that the applicant was on light duties, he believed she did the doctors job, carried out the full tasks and continued to do it. His perception of this continued until August 2011. 41
[124] Mr Hutchinson says he met with the applicant after Ms McCabe received a complaint from “doctors” regarding the applicant’s method of work. He says he spoke to the applicant about having the first report (by Ms Secombe) done and why.
[125] At this time Mr Hutchinson was attempting to apply quality improvements in the kitchen areas. He did not terminate any staff but redistributed some tasks and duties generally. He was aware the applicant was doing the ‘doctor’s job’ but that several tasks were not being addressed, e.g. stores were not being put away, chef pots not being done, others were helping her. Mr Hutchinson stated he had discussions with the chefs on these matters but not the applicant. In his view all the tasks were catering assistant duties but he did not talk to the applicant about them.
[126] After the report by Ms Secombe was available Mr Hutchinson further reinforced its recommendations with the applicant, made arrangements and assisted the applicant as required. He stated under examination:
“...after we got the report back from Tracy, we made sure that someone was there to assist Monir...” 42
[127] In regard to the reports three recommendations, Mr Hutchinson provided foam for a new knife but he did not obtain one and the foam was located in the kitchen. Ultimately other staff were assisting the applicant by cutting the fruit up for her. Mr Hutchinson did not disturb this arrangement. He sought to avoid conflict in his mind and have the work completed and did not put any demands on the applicant as to other tasks.
[128] Mr Hutchinson did not provide or share Ms Secombe’s report with the applicant. He says he was concerned as to her capacity to do the job but was hopeful with support she would be able to do her tasks. 43 He says he had put in place measures to eliminate the applicant hurting herself and he thought the risk had been reduced to an acceptable level if she had assistance.44
[129] Mr Hutchinson attended the 1 February 2012 meeting with the applicant. He recalls the applicant was to come back with medical information and did not do so. Mr Hutchinson does not recall a phone call from Mr Thompson on 9 February 2012.
[130] Mr Hutchinson was aware of Dr Tschirn’s report and he thought it was about securing a positive outcome to secure ongoing performance from the applicant. 45 He did not give the report to, or discuss it with, the applicant. He thought Dr Tschirn’s report concluded the applicant could not do the inherent requirements of her doctor’s job and cold larder position safely.
[131] Mr Hutchinson accepts that Ms Secombe’s report indicates that the applicant can do her job but he now says that not all the tasks were being completed by her. He states the applicant was doing the ‘doctors job and the cold larder’ and some pots and assisting in the kitchen on a five days per week basis. 46 However it was in August 2011 when he became aware that some shortfalls were being picked up by others. He says there were enough persons to help her.47
Submissions
[132] Mr Dean, for the applicant, submitted there was no valid reason for dismissal and there were a number of procedural flaws in which the termination was given effect.
[133] The reason provided for dismissal is that the applicant did not have the capacity to perform her contracted duties or substantive duties. In addition, the respondent say she could not perform her described modified duties.
[134] The applicant submits that (a), the failure to perform contracted duties is not a valid reason for termination because of the operation of the Workers Compensation Act and (b), the substantive duties of the applicant was in fact her pre-termination job and that she did have the capacity to perform those duties.
[135] The Commission was referred to the decision in J Boag and Son Brewing Pty Ltd v Button 48 (Boag) by both parties.
[136] The applicant asserted that the full bench in that matter held that, in ordinary circumstances, temporary or modified duties can’t be used to assess the capacity of the individual. The employee’s capacity must be assessed against the substantive or contracted duties. The applicant however asserts that in this case the full bench also makes the obligations imposed by the Workers Compensation legislation an explicit exception.
“An inability to perform the requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. For example the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason in that event.” 49
[137] Mr Dean referred to the obligations under the Workers Compensation Act on the respondent in respect to the applicant within section 58B of that Act.
[138] Mr Dean submits this is consistent with the decision in Smith v Capral Aluminium 50 which sets out some indicia which might give rise to a valid reason for termination in the case of an injury, being an incapacity to perform work or a medical incapacity. It is asserted however to state explicitly, that such reason is subject to an obligation to provide continued employment arising from state legislation. The applicant asserts that this decision reinforces that it is not intended that the employer can rely upon a work related injury as a basis for incapacity and ignore their responsibilities. Further there is no evidence the respondent in any event could not provide the applicant with work as she was carrying out a productive role previously. Further, that Dr Jennings’ evidence is that an improvement has occurred in the applicant’s strength consistent with the evidence of Ms Secombe’s report and evidence.
[139] In Smith, Lawler VP states at paragraph 17:
“If the termination of an employee on account of incapacity arising from a work-related injury involves a breach of an obligation arising under state legislation to provide continued employment to that employee then such incapacity will usually not constitute a reason for termination that is “sound, defensible or well founded” and thus not a valid reason within the meaning of s.170CG(3)(a).”
[140] Me Dean also asserts there is no evidence that the applicant could not do her job, no evidence anybody was at risk and no evidence of trolley safety. Further, Ms Secombe’s report was not implemented in regard to recommendations even though it expresses some concern.
[141] Mr Addison, for the respondent, asserted that there was a valid reason for dismissal, borne out by the medical evidence. The applicant was employed for a substantive job in evidence, the duties of which were borne out by Ms Secombe’s report.
[142] The respondent asserts Ms Secombe’s report indicated she could not do the required tasks and role, i.e. the dishwasher role and the distribution work, servicing of heavy pots and lifting over 3 kg.
[143] This assessment was agreed with by Dr Tschirn. His conclusion was that the applicant’s hand dysfunction is sufficiently impaired in itself to render her unsuitable for this type of work. He was referring to the “doctor’s job” role she was presently engaged in.
[144] The respondent says this role was clearly restricted duties and not the substantive role for which she was employed. The applicant was not able to carry out all the duties she was employed to do and was in fact on modified duties.
[145] The respondent encouraged the Commission not to accept the modified duties as being completed by the applicant as being otherwise substantive duties because she was able to do those duties and had been performing the inherent requirements of those restricted modified duties for some period of time.
[146] The full bench in the Boag appeal case made it clear and said it should have been the substantive role not the modified, restricted or temporary alternative position that was considered in respect to incapacity.
[147] The respondent asserts they went through all the proper steps to identify whether the applicant could carry out the duties safely required of her. The report of safety concerns was material, given to Ms McCabe, that the applicant was pushing with her elbows, later found to be her forearms. The report questioned the applicant’s effective control of trolleys.
[148] The respondent concluded the applicant’s method was an inappropriate work practice and potentially dangerous for her to be pushing trolleys. She was a danger to all parties including herself. This gave rise to concerns. The respondent subsequently investigated the applicant’s capacity. Ms Boyle discussed the matter with the applicant and observed the applicant. Ms Boyle was concerned and concluded her method with the trolley was dangerous.
[149] Examinations were arranged, a report obtained and the respondent put in place support arrangements and people were asked to assist the applicant. (Were they put in place as a consequence of the TS report?)
[150] Dr Tschirn, an expert, was in evidence unchallenged. The respondent asserts the doctor assessed the applicant could not do the work, in that she was not suitable for the work and it would not have been safe for her to do the work.
[151] The respondent asserts the two obtained reports and the precedent in Boag provided the respondent with a valid reason for termination. They further assert the Commission is bound by the Boag decision in that assessments as to incapacity are considered against the substantive position of the applicant’s contract of employment.
[152] In regard to the asserted breach of s.58B of the Workers Compensation Act the respondent submits that s.58B states the respondent should provide suitable alternative duties to the employee, ”subject to subsection (2c) being the proviso “If it is reasonably practicable to provide employment”. In this respect the respondent says the Commission has no jurisdiction to determine the jurisdiction of the Workers Compensation Act and s.58B(2). There is no determination of a breach on the public record and hence no breach. There is no prosecution of the respondent in train, there is no breach. Those are matters for the Workers Compensation jurisdiction to determine, not the Commission.
The question of s.58B in terms of valid reason
[153] The respondent asserts that s.58C(2) in regard to notice of intention to dismiss is not required if a party is (a) not relevant and (b) the worker is neither receiving workers compensation or participating in a rehabilitation program for the injury. Clearly the applicant was not receiving workers compensation benefits nor in a rehabilitation program. The question of s.58C is irrelevant.
[154] In Longyear Australia Pty Ltd v Workers Rehabilitation and Compensation Corporation 51, regarding the provision of alternative work, the reasonable practicality of providing suitable employment under s.58B is a question of fact, the onus on the employer.
[155] In Workers Rehabilitation and Compensation Corporation v James 52, Zelling AJ states at 394:
“Suitable employment means employment which the workman can do and which in the total circumstances of that injured workman, will promote his rehabilitation and reintegration into the workforce.”
[156] The applicant returned to work and was given duties for a considerable period. Modified arrangements were made and recognised and then this was altered by an observation and assessment reports and withdrawn. Is it unreasonable in this scenario?
[157] The respondent submitted it was not practicable to create a position that would promote the objects asserted as above. The evidence indicates the applicant required to have assistance from Mr Hutchinson and Ms McCabe and that she was absent from her duties in that she took longer as she was not available to do certain tasks. She was employed for 6.5 hours and the respondent asserts a normal employee would not take that long. Thus there were productivity issues for the respondent.
[158] In the event of potential reinstatement the respondent submits this is not an option as there is evidence that the applicant is unsuitable for such work. The employer cannot take that risk, a legal risk, clear from the specialist opinion. In this circumstance the employer would be forced to give the applicant a chair and for her to sit and not to work, as to expose her to risk of harm is unacceptable under workers compensation and at common law.
[159] To do otherwise, the employer would be knowingly putting the applicant in a position of risk sand such an arrangement would not be suitable employment. (see Orica Australia Pty Ltd v WorkCover Corporation of South Australia No.3 53
[160] In Smith, Lawler VP found it was not reasonable for the employer to provide ongoing employment and the decision to dismiss was valid.
[161] In Couto v P & O Catering & Services Pty Ltd 54 Say a tribunal should not have regard to s58B in similar circumstances. Larkin C found:
“It may be appropriate and/or within power to consider whether an employer has contravened another statute, when turning one’s mind to the existence of a valid reason and the object of a fair go all round. This however does not dictate that the Respondent has the onus, under the WR Act, of satisfying the requirement s of a different legislative regime.”
[162] The respondent submits that such considerations ought to be considered under the Act, not Workers Compensation legislation and there is no finding in that mechanism. Therefore the employer cannot be in breach of that statute.
[163] The Boag decision is the substantive authority in this matter. The valid reason in this matter is the inability of the employee to carry out the inherent requirements of the position.
Procedural fairness
[164] The respondent asserts that the evidence is clear. They sought the best advice possible and there is no evidence of bad faith by the respondent. Further, that there were good systems in place in the workplace. Dr Tschirn’s report confirmed the report of Ms Secombe.
[165] The respondent waited until after Christmas and should have acted earlier but they wanted to let the Christmas period go by before acting on the medical information. 55 The respondent wrote to the applicant and cannot explain the delay in her receiving the letter (not contested). It was received on the Friday for the proposed meeting on the following Wednesday.
Criticism of the applicant
[166] The respondent asserts the applicant’s evidence should not be accepted as she changed her story and always chose the most favourable answer. Further, that she had a selective memory whereas the respondent’s witnesses were unshakeable. The respondent submits the Commission should favour the respondent’s evidence and reject Dr Jennings’ evidence as it was not accurate.
[167] The applicant says she did not understand the letter and states she does not read English well. The respondent encouraged the Commission to reject the applicant’s evidence. She states she did not put the letter to her family but waited until she saw a delegate at work. She asserts the delegate did not explain the letter to her. The respondent submits that this is not believable. The letter regarding the meeting was not faxed to the union until the Tuesday before the meeting despite it being a serious matter.
Criticism of the Union
[168] The respondent submits that the inaction and approach by the union in representing their member cannot be sheeted home to the respondent. Procedurally the respondent tried to obtain a response from the applicant but it did not happen. The applicant was provided with procedural fairness. Ultimately the applicant did not provide any evidence as requested. The matter was further adjourned for that to happen. In that week nothing was done by the applicant. The respondent asserts there can be no procedural deficit in this scenario. The respondent made their decision to dismiss when they say no response was received from the union.
Legislation
[169] In regard to the criteria that the Commission must take into account in consideration of these matters, that is the provisions of s.387 of the Act, they are conveniently summarised by Asbury C in the matter of Mourilyan v James Hardie Australia where the Commissioner states as follows:
“The criteria that FWA must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, are set out in s.387 in the following terms:
(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees) and;
(b) Whether the person was notified of that reason; and
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and
(e) If the dismissal related to unsatisfactory performance – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) Any other matters FWA considers relevant.
A valid reason for termination of employment must be “sound, defensible and well founded” and not “capricious, fanciful spiteful or prejudiced.” The termination must be defensible or justifiable on an objective analysis of the facts. The validity is judged by reference to the tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.” 56 (Footnotes omitted)
Consideration and findings
[170] The evidence in this matter gave rise to a number of contested facts and various versions of events. A number of the respondent’s staff and management and two external medical experts were involved with the applicant as well as separately with officers of the respondent. In addition the applicant was represented to a limited extent by an officer of her union in the concluding phase of her employment.
[171] The Commission is required to resolve the inconsistencies of fact in determining the efficacy of the activities of the parties in the versions of events leading up to dismissal provided by the parties. The following findings are found in relation to the evidence and they are identified by an examination of the total evidence and giving consideration to all the available documentation and the probability of the events in question.
The return to work
[172] Previous to her operation for Carpel Tunnel the applicant was attending work and was engaged in duties determined by the respondent. The applicant had some physical restrictions as a consequence of her injury since September 2008 but was repeatedly determined fit for modified/other duties as notated. The respondent accommodated her restrictions at times by her being engaged in work that did not aggravate her restrictions or avoided them. They assert they had a return to work program for the applicant up until early 2010.
[173] The applicant following her surgery returned to work. She provided a PMC in which she was fit to resume pre-injury duties with the clear comment by the treating medial practitioner “patient states her duties have been permanently changed to the doctor’s shift.”
[174] The applicant’s evidence is that she commenced doing these tasks (doctor’s job) progressively from late 2009 and thereafter did them exclusively. It is not contentious this job was formerly done by another staff member. The respondent’s evidence is that the applicant did this job as they were assessed light duties as part of her return to work program before her operation and subsequent to her return to work. However they were duties required to be done by the catering staff. Further Ms Boyle confirms the applicant was moved permanently to the ‘doctor’s shift’ in her advice to Dr Tschirn.
[175] The Commission concludes on the evidence the applicant’s version of events is to be preferred in that she became exclusively or predominately involved in the “doctor’s job” duties. However her evidence of dates is in error as she must have provided information to her doctor prior to May 2009 that she had these duties allocated to her on a permanent basis .
[176] The Commission therefore finds that the applicant was substantially engaged in the ‘doctor’s job’ duties, before her operation in May 2009. She informed her doctor she was engaged in those duties on a permanent basis and he formed a view that the employer had altered her duties within her substantive job requirements to provide her with a position that she was, in his view, fit to return to. Following her return to work on the basis of the clearance after 26 May 2009 the applicant began to do the doctors role on a permanent, but not exclusive, basis. There was no challenge to her clearance for work by the respondent, although they now consider the comment by the doctor was in error.
[177] The Commission notes that a letter of 8 March 2012 from the applicant’s doctor to Employer’s Mutual refers to the applicant being:
“...cleared for modified duties on the 26th of May, 2009...” 57
This letter was not specifically referred to in the proceedings, but in the Commission’s view supports the above.
[178] Further, Ms Secombe’s report also refers to:
“(Note: To accommodate the permanent provision of duties the doctor’s shift was increased from 6 hours to 6 ½ hours)” 58
This also was not referred to in the proceedings and in the Commission’s view supports the above findings.
Was the ‘doctor’s job’ light duties?
[179] It was not designated such in the evidence. Mr Hutchinson says it was not light duties. It is referred to repeatedly as modified duties. Ms Secombe identifies this work as one of three tasks within the catering role. The respondent did not have a return to work program for the applicant in place after early 2010.
Did the role form the substantive duties of the applicant?
[180] The Commission finds the applicant was engaged in duties forming her substantive duties at that time as there is no evidence she was involved in “light duties” or provided with designated light tasks. They were duties required by the employer of the employee for a considerable period of time from her return to work until dismissal. From May 2009 until August 2011 no issues were raised about the applicant and her role. The applicant continued in her role within the kitchen during this time without any apparent difficulty or concern by the respondent.
[181] Mr Hutchinson became her manager in August 2010. His evidence is that he became aware the applicant was doing the doctors job role, which he did not consider it was a light duties role and that he was aware the applicant had an altered knife relating to a previous WorkCover injury. His view on the applicant did not change until August 2011. He raised no issues with the applicant as to her performance or with the respondent during this time. The applicant continued to be rostered to the ‘doctor’s job’ role. The respondent’s manager therefore did not know her role was other than a historical job allocation.
[182] In July 2011 the respondent received a complaint from doctors as to the applicant’s method of pushing trolleys. The applicant was approached and the accounts of the information provided differ. The Commission finds that the applicant was not clear as to the requirement for the assessment that Ms Boyle arranged for her in that she was not aware or understood the respondent had a safety concern as to her performance. However she attended and assisted Ms Secombe. The report was not provided to the applicant at any time prior to her dismissal despite her requests.
[183] The subsequent report by Dr Tschirn was undertaken and the applicant again was unclear as to the reason for the report. The applicant requested such reports twice and was refused by the respondent despite such reports being exclusively in relation to her physical capacity and health.
[184] Between July 2011 and late January 2012 the applicant was not made aware of the concerns of the respondent in relation to her performance, their concerns as to safety aspects of her performance of tasks, or any concerns as to her safety health and welfare. The respondent further did not implement in any way the recommendations provided by their requested Occupational Therapist’s report (Ms Secombe).
[185] In face of this lack of communication the respondent was discussing her position and their approach to her continued employment. They had briefed two medical professionals and had considered such reports that were provided. They had considered their options. They took legal advice. Further, despite some concerns as to her previous clearance on multiple PMCs, no approach was made to the applicant’s treating doctor.
[186] The respondent had at sometime well before the Christmas period, concluded on the basis of the two medical reports, that the applicant could not perform the inherent requirements of her substantive role, that of a catering assistant. They did not consult or inform her of this at anytime.
The letter of 19 January 2012
[187] The respondent waited until after the Christmas period and provided the applicant with a letter dated 19 January 2012 headed, Continued Inability to Perform Contracted Duties. 59
[188] The letter informed the applicant for the first time, that:
“You have been performing modified alternative duties since on or about late 2008.”
[189] The Commission finds that this is just informative of the respondent’s considerations. The applicant had been involved in a role since May 2009 which formed her return to work duties that she was nominated to and which progressively became her permanent duties.
[190] The letter further stated:
“The organisation is now in possession of a medical report that indicates you will not be able to return to your pre-injury duties, at least for the foreseeable future, if at all.”
[191] The Commission finds that this purports to advise the applicant that the results of her assessment by the medical expert are very serious. In absence of any previous consultation with the respondent over more than five months, to be told a medical specialist is of the opinion she will not recover had the potential to severely shock the applicant, especially if it was in contrast to her own medical practitioners opinion. In that respect such advice was not empathic by the respondent. The Commission also finds that verification of this view must entail an examination of Dr Tschirn’s report, which was not made available at any time to the applicant prior to her dismissal. Therefore the applicant was not in a position to verify, consider and respond effectively within that time frame without the report.
[192] The letter also indicated to the applicant that:
“Whilst the organisation has tried to be patient and accommodating having regard to your medical condition, it can no longer continue to do so as your absences are disruptive to its operational requirements. Furthermore there is no evidence that is continued absence will not continue.”
[193] The Commission finds that it was only within the proceedings that it became clear the respondent was not referring to absenteeism in the ordinary sense by the applicant, but to the non-availability of the applicant to do all the required tasks within the catering role. Such comments were plainly confusing, distracting and unhelpful to the applicant.
[194] This confusing reference is followed by further comments:
“As a consequence it represents an inability to discharge your obligations under your contract of employment to provide services to the organisation of a nature envisaged by the parties when they entered into the contract of employment.
In the event that a decision is made that you cannot work in accordance with the terms of your contract of employment, a decision may be made to terminate your employment.”
[195] The Commission finds that the applicant with her level of English proficiency and the non-engagement by the respondent in communications with her would have been confused by this letter and specifically these comments. Presumably “it” refers to her absences which the Commission has referred to above. The balance of that paragraph requires some experience in definitions of the contract of employment to be understood. The Commission finds that the applicant understood such material.
[196] The second paragraph refers to a decision to be made yet the first paragraph indicates the “it” has already identified such an inability to work within the contract of employment. The respondent had already concluded a view on the applicant’s position prior to any discussion and sharing of their reports.
[197] The letter invites the applicant:
“Prior to this decision being made we seek to meet with you to ascertain your fitness for duty. The meeting will be held at 2:30pm on Wednesday 1 February 2012 in the General Managers office at The Memorial Hospital. You should bring any evidence which you have as to your current medical condition, including any reports from treating medical practitioner(s). To avoid your employment being terminated, the organisation will need to be satisfied that on the basis of this medical evidence you are able to carry out the inherent requirements of your position under your contract of employment and/or no reasonable accommodation can be made having regard to your medical condition.”
[198] The Commission finds the applicant was being required, at short notice, to provide medical information and evidence which countered or rebutted the medical evidence in the possession of the respondent. The applicant was to do so in the absence of being provided with that information and evidence.
[199] The applicant received the letter later than the respondent intended. She was confused and shocked as to the letters’ contents. She understood enough to identify it was serious. She sought advice from her union. For various reasons she was unable to have any significant consultation with Mr Thompson, who attended the meeting with her.
[200] Given the versions of events of this meeting the Commission finds the following. The applicant was distressed throughout the meeting as he understood the meeting was about her dismissal and she wanted to continue working. Mr Thompson understood the respondent was concerned as to the capacity of the applicant and her WorkCover claim and he needed, because of his limited involvement, to investigate that claim. The meeting was adjourned for one week. Mr Thompson thought it was for him to follow up on the WorkCover claim. The respondent was of the view it was for the applicant to provide medical evidence. They gave Mr Thompson a copy of their medical reports. Mr Thompson was in any event to respond by 8 February 2012. He ultimately did not do so. The respondent’s legal advice was that they could dismiss the applicant and the decided to do so. They did so by letter dated 20 February 2012.
[201] That letter indicates the applicant is dismissed as of 17 February 2012 and she was to be paid in lieu of notice as:
“You failed to produce any or any sufficient medical evidence to demonstrate you could perform the inherent requirements of your position, even with reasonable accommodation.” 60
[202] Mr Thompson provided an email to the respondent evidencing his intended actions on 10 February 2012 and he talked with Mr Hutchinson and Ms McCabe on 9 February 2012 to the effect that the applicant was seeking to attend her doctor to obtain a new PMC and a renewed WorkCover claim in regard to her existing and continuing workplace injury that was preventing her from completing her duties to the requirements of the respondent. Ms McCabe had indicated in the meeting that such an option was acceptable to the respondent.
[203] In this scenario the Commission finds that in face of actions by the union to seek to identify information and to follow a course of action discussed at the meeting of 1 February 2012, and in face of emails and phone calls confirming that action from Mr Thompson, the respondent without further consultation or response dismissed the applicant and backdated the termination date. They did not impose the “respond by a week or else approach” but dismissed the applicant in face of information that she was obtaining or had obtained a new PMC in relation to her WorkCover claim, an option that had been encouraged by them.
The Secombe report
[204] This report was precipitated by the respondent’s concern at the applicant’s method of pushing a trolley. The Commission finds the report confirms the applicant was permanently assigned to the “doctor’s job” since early 2009 and has continued in that role with extended hours. Further, the applicant is not suitable to service the dishwasher tasks or the distribution end of the kichen, but she is safely capable of the cold larder tasks with a few exceptions. That was the role she was doing in the workplace at that time. Ms Secombe further recommended three facilitative recommendations for the applicant.
[205] The Commission finds that these recommendations were not implemented or provided to the applicant despite her continuing in the job until her dismissal, a period of in excess of five months.
The Tschirn report
[206] This report was requested by Ms Boyle who provided a request for assessment previously referred to above on 29 November 2011. The respondent requested an opinion as to the suitability of continuing employment for the applicant given that it appeared she could not meet the critical needs of her position within the kitchen. The instruction to Dr Tschirn was:
“We have no medical restrictions or advice to the contrary & the worker does not have a current WorkCover claim”
[207] The Commission finds the briefing given to Dr Tschirn misleading in various content. Notably the reference to “no medical restrictions” whereas the medical clearance in effect to the applicant was a fit to resume working in specific permanent duties provided by the respondent and completed by the applicant since before May 2009. That is for more than two and a half years.
[208] Dr Tschirn does not endorse the Secombe report except where it nominated limitations of the applicant in respect to the physical demands of the ‘distribution end of the kitchen job,’ a role which Ms Secombe found clearly the applicant was not capable of doing.
[209] Dr Tschirn’s concludes:
“Overall the only role I can see Ms Mottaghi undertaking is her current role but it appears she may also be struggling with this because her extremely poor grip strengths and ongoing left shoulder condition not otherwise disclosed but clearly imposing functional limitations, raises questions as to whether she can continued to be employed safely in this role, given her current status. Assessment and treatment may lead to improvement in her shoulder condition, though given the light nature of activities both at work and home, as reported, the prognosis is guarded for recovery. That aside her hand dysfunction is sufficiently impaired in itself such as to render her unsuitable for this type of work”
[210] The Commission finds that in respect to a requested opinion as to whether the applicant should continue to be employed, Dr Tschirn stated the only role the applicant can do is her current role and her hand is sufficiently impaired such to render her unsuitable for this type of work. Given that the Secombe report says she is capable of the work and made recommendations for it to occur the respondent had conflicting advice in consideration. They had to decide if “unsuitable” was enough of a report to dismiss an employee who had been completing the job for over two years. They decided such a statement was sufficient to dismiss the applicant, even though the doctor had not provided a specific opinion on such an occurrence.
Did the respondent have a valid reason for dismissal as required?
[211] The submissions of the parties conflict in the first instance in the debate about the effects of the prevailing workers compensation law on the ability of the respondent to dismiss and also the question as to whether the applicant’s duties pre-dismissal were in fact her substantive duties.
[212] Both parties have relied upon precedent case law in this matter in regard to substantive versus modified duties of an employee. It is acknowledged that in ordinary circumstances it is the substantive duties that are referenced rather than temporary or modified duties being used to assess an individual (see Boag).
[213] The applicant stresses the exception is when such dismissal is prohibited by workers compensation law or is unlawful and is supported by Smith.
[214] The respondent asserts the applicant was on modified duties, fit to return to work but could not complete or was not suitable for her substantive duties and that Boag supported an assessment against her substantive role. The respondent further asserts that the assessment was completed properly and the diagnosis of the medical experts was the applicant was not suitable and could not do the requirements of the substantive position. Hence it was not practical to provide duties. Thus there is no breach of the Workers Compensation Act and no prohibition on dismissal.
[215] In consideration the Commission has formed the view the duties provided to the applicant were an explicit part or subset of tasks within the catering assistant role. The applicant is and was not capable of doing all the required tasks of the catering assistant. Nor was she at various times required to do them similar to other employees who were engaged in the doctor’s task. The applicant has been apparently capable of completing the tasks for some considerable time, since at least May2009 until the issues arose in August 2011, without dispute or displeasure. She was further capable subsequent to the medical examinations and up until her dismissal. Taking into consideration the evidence of the circumstances of the applicant as well as the evidence and actions of the respondent, the Commission has concluded that the applicant’s role prior to dismissal, determined by the respondent, was not “temporary or modified” work but were substantive duties forming part of her contracted role.
[216] The Commission finds therefore the respondent does not have a valid reason for dismissal within the requirements of the Act and hence does not conform to the requirements of s.387(a) of the Act.
Was the termination procedurally fair?
[217] Turning to the Commission’s earlier findings in this matter, the applicant was engaged in the doctor’s duties prior to May 2009 and exclusively in those duties after that date. She remained in those duties until dismissal. Those duties were permanently assigned to her at return to work and thereafter formed her permanent duties as they continued uninterrupted for a substantial period and could not be considered to be temporary.
[218] The respondent in its approach to the applicant failed to consult and advise the applicant of perceived shortcomings in her capacity, performance, effect on her safety and welfare or the safety and welfare of others at any time when she was employed in this role. They failed to advise her also of the complaints of doctors or a manager in regard to her conduct.
[219] They did not provide adequate explanation or an understanding to the applicant as to the need and content of her medical assessments.
[220] They refused to provide the reports as to her personal health when she repeatedly requested such reports, thus excluding her options for further medical consideration by herself or her advisors.
[221] They failed to implement the Secombe report recommendations despite such recommendations being directed to the applicant’s safety, health and welfare.
[222] They concluded well before Christmas that she was unsuitable and failed to act upon such consideration until a time that suited them.
[223] They advised by letter and gave the applicant no benefit of consultation, explanation and understanding despite her language skills.
[224] They required of the applicant that she provide, within a short time, various medical evidence when she had no access to the two medical reports and their conclusions. Such a requirement was manifestly impracticable and unreasonable. How could the applicant do so in isolation of the material results and conclusions within those reports? She was required to produce medical evidence whilst at a severe disadvantage.
[225] The meeting was adjourned with the intent of the parties. The issue of a further PMC and WorkCover claim was a discussed matter between the parties. In face of action and communication to that end by the applicant’s representatives the respondent dismissed the applicant without further contact, or discussion.
[226] The Commission considers it unacceptable to dismiss a person by letter as of a convenient retrospective date nominated by the respondent.
[227] For all the foregoing reasons the Commission finds a distinct lack of procedural fairness and responsible conduct by the respondent in the dismissal of the applicant. In that respect the Commission finds that the conduct of the respondent was deficient and does not meet the requirements of section s.387(b), (c), (d) and (e) of the Act. S.387(f) has no effect on the consideration of this matter. The Commission finds that the applicant was unfairly dismissed.
Remedy
[228] Having found that the applicant was unfairly dismissed, the question of remedy is to be considered. The applicant is seeking reinstatement, the primary remedy under the Act. The consideration of the Commission in this respect are within s.390 of the Act and the emphasis of consideration is on the determination as to the appropriateness or otherwise of such reinstatement.
[229] Since the evidence in this matter is that the applicant may have a subsequent workers compensation claim or medical restrictions of some sort evolving from the events of the dismissal, the Commission has decided to hear further from the parties on the matter of remedy before making final orders in this matter. The parties will be advised of a date for this purpose in due course.
COMMISSIONER
Mr P Dean for the applicant
Mr M Addison for the respondent
Hearing details:
2012:
Adelaide
8, 9 and 25 October
1 Exhibit A1, Attachment G
2 Exhibit A1, Attachment D
3 Exhibit A1, Attachment G
4 Ibid
5 Ibid
6 Exhibit R9
7 PN 632
8 PN 689-696
9 PN 718
10 Exhibit A1, paras 52-53, PN 536-539
11 PN 606-609
12 PN 722
13 PN 2770-2784
14 PN 751-759
15 PN 848
16 PN 744-745
17 PN 753
18 PN 761
19 Exhibit A3, Attachment L
20 Exhibit A1, Attachment G
21 PN 1448
22 PN 1459
23 Exhibit A4
24 PN 1508
25 Exhibit A3, Attachment C
26 PN 1404
27 PN 817
28 Exhibit R3, para 6
29 Ibid, para 8
30 Ibid, para 9
31 Ibid, para 6
32 PN 1874
33 PN 1881
34 Exhibit A3, Attachment F
35 PN 1981
36 PN 2000
37 PN 2015-2018
38 Exhibit R5, Attachment
39 Ibid
40 Exhibit R3, Attachment KB3
41 PN 2794-2796
42 PN 2655
43 PN 2813-2814
44 PN 2856
45 PN 2824
46 PN 2899-2901
47 PN 2837
48 (2010) 195 IR 292
49 Ibid at 299
50 AIRC unreported judgement of Lawler VP, Print PR944238
51 (1995) 180 LSJS 134
52 (1992) 57 SASR 365
53 [2003] SAWLRP 6
54 AIRC unreported judgement of Larkin C, Print S5929 at para 29
55 PN 3133
56 [2010] FWA 9672 at paras 84-85
57 Exhibit A1, Attachment H
58 Exhibit R5
59 Exhibit A3, Attachment L
60 Exhibit A1, Attachment G
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