Ms V v Ambulance Victoria - [2011] FWA 8576

Note: An appeal pursuant to s.604 (C2011/1174) was lodged against this decision - refer to Full Bench decision dated 15 March 2012 [[2012] FWAFB 1616] for result of appeal.

[2011] FWA 8576

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Ms V
v
Ambulance Victoria
(U2011/9399)

COMMISSIONER SMITH

MELBOURNE, 12 DECEMBER 2011

Inherent requirements of the job; medical opinion; reinstatement.

INTRODUCTION

[1] By application dated 1 July 2011, Ms V sought relief in relation to her termination of employment by Ambulance Victoria. In accordance with ss.398 and 399 of the Fair Work Act 2009 (the Act) I discussed with the parties the most appropriate way to deal with the matter. The conference canvassed all the matters and possible areas of agreement but regrettably a solution was not possible and it was considered that a hearing would be the most effective and efficient way to resolve the matter.

[2] I have also considered the requirements of s.396 of the Act. I am satisfied in relation to s.396(a) and (b) that the application was made within the period required by ss.394(2) and that Ms V is a person protected from unfair dismissal. Sections 396(c) and (d) are not relevant.

[3] Ambulance Victoria was represented by Mr R. Millar of Council and Ms V was represented (with permission) by Ms B. Forbath from United Voice.

BACKGROUND

[4] Ms V was employed by Ambulance Victoria from 25 November 1996. On September 1998 she was in a motor vehicle accident whilst at work. A truck travelled through a red light and collided with the ambulance she was driving. Ms V was in intensive care with very serious facial and other injuries. These injuries resulted in further surgery in October 1998 and December 1999.

[5] Ms V returned to normal duties around December 1998. After the return to work there were periods of time that she was off work to have surgery resulting from the accident. In 2000 the chronic pain that she had been experiencing led to a depressive illness. Towards the end of 2000 Ms V gave birth at 37 weeks to a stillborn baby. At this time she was prescribed methadone to assist with pain management arising from the accident. In 2002 Ms V took a period of unpaid leave for the birth of her third child. After a period of several months she returned to operational duty.

[6] Around 2003 Ambulance Victoria suspended Ms V because it was concerned about the medication she was taking for chronic pain. Ms V was required to undertake a fitness for duty examination which found she was unfit for duty due to the drugs she was taking. Ms V contested this finding with her specialist and this led to conflicting medical opinions. Because of the conflict, Ambulance Victoria arranged for a third medical opinion to determine the outcome.

[7] That was carried out by a panel chaired by Professor David Wells. That medical report concluded that Ms V was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] FWA 8576
Decision Date: 12 DECEMBER 2011

CaseChat Overview and Summary

Ms V, an employee of Ambulance Victoria, was dismissed due to medical reasons. She sought reinstatement to her position in the Federal Circuit Court. The central legal issues the Court needed to address were whether Ms V's medical condition constituted a permanent incapacity for her role and if her dismissal was justified based on this condition. Additionally, the Court had to evaluate the inherent requirements of the job and determine whether they could be reasonably modified to accommodate Ms V's condition.

The Court considered medical evidence and expert opinions regarding Ms V's condition and its impact on her ability to perform her duties. The Court found that while Ms V's condition did present challenges, it did not necessarily render her permanently incapable of performing her role. The Court emphasised the importance of assessing whether the inherent requirements of the job could be modified to allow Ms V to continue working. Ultimately, the Court concluded that reasonable modifications could be made to accommodate Ms V's condition, and her dismissal was not justified.

The Court ordered that Ms V be reinstated to her position at Ambulance Victoria. The Court also directed that reasonable modifications be implemented to accommodate her medical condition, ensuring she could perform her duties effectively. This decision highlights the need for employers to consider reasonable adjustments and the importance of individualised assessments when dealing with employee medical conditions.

Orders