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 unfit to drive an emergency vehicle because of the potential impact of psychoactive drugs being consumed. It was the evidence of Ms V that she was later advised that the report did not express a unanimous view.

[8] This concern about the lack of unanimity was raised by Ms V when discussions were being held to see if a return to some form of non-operational duty could be arranged. At that stage, it was agreed that an independent medical assessment would be carried out and she would return to non-operational duties until that was completed.

[9] In September 2003 Ms V underwent an assessment by Dr Gijsbers. Dr Gijsbers expressed some surprise at the earlier opinion, given what he said was common knowledge that the use of some medications did not constitute a driving risk. It was the conclusion of Dr Gijsbers that:

“I have assessed [Ms V] and given her story that she is using Methadone for her chronic pain and not using any other psychotropic medication I would deem [her] fit to drive Ambulances.” 1

[10] In early 2004 following the birth of a baby, Ms V returned to work performing operational duties without incident for about 10 months. At that time she had four children and was a single parent (her evidence was that she had been in an abusive relationship).With these stresses, her health and medical condition deteriorated and she was unable to work. Following medical and legal advice she was put back under her original Workcover claim and received weekly payments. The insurer then advised that as she was considered to have a permanent impairment, she could either receive a lump sum payout or be paid weekly benefits.

[11] It was the evidence of Ms V that she did not believe that she could never return to work. It was her evidence that Ambulance Victoria advised her to accept the payout, resign from her employment and apply for a pension through ESS Super.

[12] Ms V accepted the lump sum and commenced a process of applying to ESS Super, however she did not progress her applications as she considered that she wished to return to work. She was advised that accepting the lump sum did not prejudice that possibility. Ambulance Victoria advised that further absences from work would be unpaid.

[13] In July 2009, Ms V sought to return to work as her children were of school age. Meetings were held in July and September of 2009. In January of 2010, Ms V presented Ambulance Victoria with a letter from her treating physician advising that she could return to work on light duties of up to 20 hours per week. In February 2010 Ms V wrote to Ambulance Victoria formally requesting a return to work plan.

[14] Ambulance Victoria insisted on another medical examination with dates to be confirmed. Dates were not confirmed until August 2010 for appointments later that month and December 2010.

[15] Leading up to this confirmation of dates, it was the evidence of Ms V that:

“As I had no money coming in I had difficulty in paying my mortgage. I was forced to relinquish my children after not being able to feed them [literally] in May 2010. I lost my house in July 2010.” 2

[16] In January 2011 Ms V asked to see copies of the reports. A further request to see the reports was made in February 2011. In late March, Ambulance Victoria advised Ms V that a report from one of the medical practitioners would be due shortly and then contact would be made with her.

[17] In June 2011 Ms V again contacted Ambulance Victoria seeking the reports. By letter dated 9 June 2011 Ambulance Victoria advised Ms V that it had considered the reports and that:

“medical information regarding your condition concludes that we are unable to provide you with duties that you can safely perform given your underlying condition and we cannot see that your conditions (sic) is likely to imminently resolve. Therefore, we are giving you notice that we intend to terminate your employment on 17 June 2011.” 3

[18] The medical reports were not provided to Ms V and on 21 June 2011 Ms V's employment was terminated by Ambulance Victoria.

[19] These are largely uncontested facts. There is a difference of view as to the efforts made by Ms V to attend for meetings and in this connection, it is submitted that this should weigh in the employer’s favour. For completeness, I will also record that during some of this period Ms V also sought to establish a weight loss business as a master franchisee. It was the evidence of Ms V that the business had poor earnings and that she was currently seeking to sell and restructure the business.

[20] I draw nothing from this aspect of the evidence, which was adduced by Ambulance Victoria, as there was no allegation of impropriety, conflict of interest or indeed did it figure in the reason for her termination of employment.

REASON FOR TERMINATION OF EMPLOYMENT

[21] The sole reason for the termination of employment of Ms V is contained in a letter sent to her by Ambulance Victoria on 21 June 2011.

[22] The letter states, inter alia:

“..As per our letter dated 9 June 2011, unfortunately you have not been able to provide us with information that certifies you as fit to perform the inherent requirements of your role or that your ongoing condition is likely to imminently resolve.

Therefore, we are advising you that your employment with Ambulance Victoria has been terminated on the grounds that you are unable to perform the inherent requirements of your role.” 4

THE MEDICAL EVIDENCE

[23] The last two medical practitioners who were asked to examine Ms V were Associate Professor G. Mendelson and Dr M. McDonough.

[24] There were a number of specific questions put to the Doctors for consideration by Ambulance Victoria.

[25] A critical question was: In your opinion is [Ms V] fit to return to full operational duties without restriction?

[26] Dr McDonough concluded:

“In my opinion, [Ms V] is not fit to return to full operational duties without restrictions for the above mentioned reasons. I note she has stated her preference to return to work in a slow and graduated manner; however, a slow, partial return to some duties may be possible.” 5

[27] The “above mentioned” matters referred to by Dr McDonough related to what he regarded as right knee arthritis and a continuing degree of opioid dependence. It was the view of Dr McDonough that stressful workplace situations may overwhelm Ms V. In addition, Dr McDonough stated that her continuing “poor mental state does pose some risk to her safe return to operational duties.” 6

[28] Associate Professor Mendelson, who saw Ms V about five months after Dr McDonough, dealt directly with Dr McDonough’s opinion in relation to Ms V’s mental state and concluded:

“While Dr McDonough referred to [Ms V’s] “continuing poor mental state”, during her consultation with me [Ms V] did not describe or acknowledge the presence of any emotional symptoms or manifestations of mood disturbance, and there were no abnormalities on mental status examination.

In my opinion there is no indication that at the present time [Ms V] has any diagnosable disorder. It is also my opinion that there is no indication of loss of work capacity due to any psychiatric illness or psychiatric impairment.” 7

[29] As to the diminished level of opioid dependence, Acting Professor Mendelson agreed with Dr McDonough that Ms V’s condition was stable and only required monitoring. As to the critical question, Associate Professor Mendelson stated:

“In my opinion, given that she has not worked as an ambulance officer since February 2005, it would be appropriate for Ms V to resume duties on a gradual basis, following an appropriate retraining programme if considered indicated. I would not recommend that she resume full time operational duties on a full time basis without a period of supervision, to ensure that the emotional problems she had experienced subsequent to the accident in September 1998 have not made her particularly sensitive or vulnerable to the usual stressors involved in working as an ambulance paramedic.”

[30] He added:

“It is possible that the emotional problems that Ms V had experienced as a result of the accident in September 1998—which have now resolved—had caused an enhanced sensitivity or vulnerability when exposed to significant stressors, as noted in my earlier answer to the question above. If such is the case Ms V might experience clinically significant depressive or anxiety symptoms in response to such stressors at work.” 8

AMBULANCE VICTORIA’S CONCLUSION ON THE MEDICAL EVIDENCE

[31] Ambulance Victoria relied upon the position description for an Ambulance Paramedic which requires an employee to possess a “tolerance for stress” and the ability to “maintain stable performance whilst under pressure including the ability to relieve stress in a manner that is acceptable to self and the organisation”. 9 It was the evidence of Mr Roughton (Group Manager) that given the first and second independent medical reports, he could not be confident that Ms V could meet the inherent requirements of the position without unacceptable risk to patients, her colleagues and her own health and safety. He also concluded that she could no longer perform her pre-injury duties and that the situation was unlikely to change.

THE SUBMISSIONS

[32] Both parties relied upon the medical reports. Ambulance Victoria highlighted the concerns each medical practitioner had expressed. Ambulance Victoria highlighted the following conclusions of Dr McDonough:

“..However, in my opinion, her continuing poor mental [sic] state does pose some risk to her safe return to on-road operational duties.”

[33] In relation to the suspected right knee arthritis “may pose a risk to others including her peers and patients.”

“In my opinion Ms V is not fit to return to full operational duties without restriction for the abovementioned reasons”.

[34] Ambulance Victoria highlighted some of Associate Professor Mendelson’s conclusions:

“..I would not recommend that she resume full operational duties on a full time basis without a period of supervision, to ensure that the emotional problems she had experienced subsequent to the accident in September 1998 have not made her particularly sensitive or vulnerable to the usual stressors involved in working as an ambulance paramedic.

..Ms V might re-experience clinically significant depressive or anxiety symptoms in response to such stressors at work.

….. there is a potential risk of recurrence of depressive and/or anxiety symptoms in response to stressors.”

[35] It is submitted by Ambulance Victoria that the medical reports could not support a conclusion that Ms V could be returned to operational duties without undue risk being taken. It is submitted that the special nature of the employment is crucial and that the employer needs to have complete faith in an employee’s ability to perform the duties of an ambulance paramedic. It was highlighted that the role of a paramedic involves being put in life or death situations and that due to the emergency nature of the role, there needs to be judgment and reactions unimpeded by risks identified by the independent medical reports.

[36] Ambulance Victoria concluded that given the absence of Ms V from duties and the various reasons for those absences it could not be confident that she could safely return to duty. In particular, it is submitted that given the nature of the work it was no answer to “give it a go” and see how it turns out. Further, it was no answer to have a graduated or supervised return to duties as the acknowledged risks together with a possible further injury might reasonably give rise to the conclusion that Ms V could not perform the inherent requirements of the job. Given the timeframes involved, it is submitted that this was not a hasty decision by the employer.

[37] Some further arguments were raised that Ms V did not help herself with her general tardiness to attend interviews and reply to questionnaires. These issues were the subject of contrary arguments, but in the result are unnecessary to consider as they formed no basis for the decision to terminate the employment.

[38] On behalf of Ms V, Ms Forbath submitted that:

• At the time of Ms V’s accident she was a student ambulance paramedic.



• Following her accident, Ms V returned to work in December 1998, successfully completed all the requirements of the ambulance paramedic course and graduated in 1999.



• Ms V worked for about three months until other medical issues arose including the stillbirth of her child.



• In mid 2001 Ms V returned to duty initially on a part-time basis and then transitioned to full time employment with no restrictions.



• In 2002 Ms V was on maternity leave for a period of time but worked for approximately six months without restriction.



• Ms V returned to work as a paramedic without restriction at the end of 2002 and continued working as a paramedic without restriction from January until April 2003. At that time she was suspended from duty because the employer was concerned that she was taking methadone for pain management. There was conflicting medical evidence regarding the impact of methadone but she was cleared to return to normal duty. However, she was pregnant and took leave.



• In early 2004 she returned to normal duty without restriction and worked for about 10 months.



• From early 2005 until 2009 Ms V did not work citing a further pregnancy and the difficulty in looking after four children as a single mother.



• In 2009/10 Ms V commenced the process of seeking to return to her position as a paramedic.

THE LEGISLATION AND CONCLUSIONS

[39] As I have reached conclusions earlier in relation to the mandatory requirements of s.396, I now turn to consider whether the termination was harsh, unjust or unreasonable. To this end attention is directed to s.387 of the Act.

“387 Criteria for considering harshness etc.

“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

(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 dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—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 that FWA considers relevant.”

[40] I turn firstly to consider 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).

[41] The termination of employment related directly to the capacity of Ms V. Ambulance Victoria reached the conclusion that Ms V could not perform the inherent requirements of her role and that her ongoing condition is unlikely to imminently resolve.

[42] This conclusion was said to be based upon the medical evidence. This is not the state of the medical evidence, as it is less certain than that stated by Ambulance Victoria. Whilst Dr McDonough was concerned about a continuing “poor mental state” his conclusion was that a slow, partial return to some duties may be possible. Dr McDonough was of the view that Ms V was not fit to return to full operational duties without restrictions. Those restrictions related to right knee arthritis and the potential for additional stressful workplace situations overwhelming her. The findings of Associate Professor Mendelson are more positive. He concluded that Ms V should resume duties on a gradual basis following an appropriate period of training and under a period of supervision. He further stated that there was no indication of any diagnosable mental disorder. However Associate Professor Mendelson did express some caution as to whether or not she would be particularly sensitive or vulnerable to the usual stressors working as an ambulance paramedic.

[43] This has been a difficult matter for all concerned. I have no doubt that Ambulance Victoria seeks to make the right decision to protect its employees and the public it serves.

[44] However I have not been persuaded that there was a valid reason for the termination of Ms V.

[45] I do so for these reasons:

• There has not been a clear finding that Ms V cannot perform the inherent requirements of the job by the independent medical practitioners;



• There is no finding by the independent medical practitioners that any concerns they expressed will not imminently resolve;



• Ms V has on several occasions, since her accident, returned to operational work without incident; and

• The reason she was suspended from duty (the use of methadone) and from which she didn’t immediately seek to return, was not finally found by Dr Gijbers as an inhibiting factor to the normal performance of her duties.

[46] I do not accept the proposition advanced by Ambulance Victoria that it cannot “give it a go”. Before any ambulance paramedic, who has had an extended period of leave, resumes normal operational duties they must undergo a knowledge gap analysis and receive any relevant training. Further, there can be no doubt that a community aim is to assist people who have been the subject of illness or injury to return to work if that is possible. Ms V wishes to return to work and both independent medical practitioners have not said that this is not possible. Ms V should be given this opportunity. If she is unable to satisfy Ambulance Victoria that she is able to perform the duties expected of her after a suitable return to work strategy has been devised and implemented, then this decision should not be read as requiring Ambulance Victoria to place someone in a role where it is demonstrably unsafe to do so.

[47] I am also conscious that Ambulance Victoria would have ongoing strategies to assist and deal with stressors experienced by paramedics who are called upon on a daily basis to deal with what can be the most harrowing of situations. Ambulance Victoria is correct when it states that the work of ambulance paramedics is a difficult one indeed. However it is also uniquely placed to understand and manage those stressors for its staff.

[48] As to the other provisions of the statute to which I must have regard, I find that:

• Ms V was notified of the reason for her termination;



• Ms V was not given an opportunity to respond to the allegations as she was not provided with the medical reports upon which the conclusions were reached;



• There was no unreasonable refusal by the employer to allow Ms V to have a support person;



• The termination of employment did not relate to unsatisfactory performance;



• There is no impact upon the procedures followed given the size of the employers enterprise; and



• There are dedicated human resources management specialists available to the employer.

[49] I now turn to the remedy which should follow these findings. In this regard attention is directed to ss.390, 391 and 392. Section 390 provides:

“390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[50] It can be seen that FWA must not order payment of compensation unless FWA is satisfied that reinstatement of the person is inappropriate. I do not consider reinstatement to be inappropriate. Ms V has trained as an ambulance paramedic and all efforts should be made to return her to a position for which she is trained. There are limited, if any, opportunities within Victoria for Ms V to undertake work as an ambulance paramedic.

[51] Accordingly attention must now be given to s.391 which provides:

“391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:

(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

[52] I will make an order reinstating Ms V to the position in which she was employed immediately prior to her dismissal from 2 January 2012. Following her reinstatement, her return to normal duties is subject to her satisfactorily undertaking any gap analysis, training and supervision deemed necessary by Ambulance Victoria. I will also make an order maintaining continuity of employment from the time she was terminated. I decline to make any order in relation to lost remuneration. There does not seem to be any quantifiable remuneration lost since the time she was terminated. In addition, the concern expressed by Ambulance Victoria in relation to Ms V’s attention to meetings and returning documents has some relevance in this consideration.

COMMISSIONER

Appearances:

B. Forbath with P. Cavanagh for the Applicant.

R. Millar of Counsel on behalf of Ambulance Victoria.

Hearing details:

2011.
Melbourne:
October 6 and 7.

 1   Exhibit A2, attachment JV6

 2   Exhibit A2 at paragraph 31

 3   Ibid, attachment JV11

 4   Ibid, attachment JV14

 5   Exhibit R2, attachment AR11

 6   Ibid

 7   Ibid, attachment AR10

 8   Exhibit R2, attachment AR10

 9   Exhibit R2 at paragrph 21

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