Swanson v Monash Health
[2018] FCCA 538
•9 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SWANSON v MONASH HEALTH | [2018] FCCA 538 |
| Catchwords: INDUSTRIAL LAW – Applicant’s exercise of workplace right to take paid personal leave under s.97 of the Fair Work Act 2009 (Cth) (“the Act”) – allegations that Respondent contravened s.340(1)(a)(ii) of the Act by threatening to and ultimately summarily terminating Applicant’s employment by reason of, or for a reason including, the exercise by the Applicant of a workplace right – directions issued by Respondent for Applicant to attend an independent medical assessment whilst on paid personal leave – whether the exercise of a workplace right under s.97 of the Act includes a right not to work, including a right to refuse directions made by an employer to attend an independent medical assessment – whether directions made by Respondent were lawful – whether directions made by Respondent were reasonable – held that the exercise of a workplace right under s.97 of the Act does not include a right not to work, including to refuse directions made by an employer – held that directions issued by Respondent were lawful and reasonable – held that Respondent did not take adverse action for the reason, or for a reason or reasons including, that the Applicant exercised a workplace right – application dismissed. |
| Legislation: Disability Discrimination Act 1992 (Cth) Fair Work Act 2009 (Cth), ss.61(1), 97, 107, 340, 342, 351(1), 352, 360, 361, pts.2-2, 3-1 Occupational Health and Safety Act 2004 (Vic) |
| Cases cited: Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150 McMaster v Qube Ports Pty Ltd [2015] FCA 1385 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 |
| Applicant: | LEIGH SWANSON |
| Respondent: | MONASH HEALTH |
| File Number: | MLG 1695 of 2016 |
| Judgment of: | Judge Jones |
| Hearing dates: | 23-24 October 2017 |
| Date of Last Submission: | 24 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 9 March 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Fitzgerald |
| Solicitors for the Applicant: | McDonald Murholme Solicitors |
| Counsel for the Respondent: | Mr Harrington |
| Solicitors for the Respondent: | K & L Gates |
ORDERS
The Application filed by the Applicant on 8 August 2016 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1695 of 2016
| LEIGH SWANSON |
Applicant
And
| MONASH HEALTH |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an allegation by the Applicant that the Respondent took adverse action against the Applicant, by threatening to dismiss and ultimately dismissing the Applicant because she exercised a workplace right under s.97 of the Fair Work Act 2009 (Cth) (“the Act”), namely, the right to take paid personal leave. Accordingly, the Applicant submits that the Respondent has contravened s.340(1)(a)(ii) of the Act.
The argument of the Applicant is novel in the sense that she claims that her allegation that the Respondent contravened s.340 of the Act does not depend upon any factual consideration of what actuated the decision maker’s decision to take adverse action against her. The Applicant submits that this is because the reason given by the Respondent for taking the adverse action was the exercise by the Applicant of a workplace right, namely, to refuse to comply with unlawful directions made by the Respondent that the Applicant attend, whilst she was on paid personal leave, an Independent Medical Assessment (“IMA”). The Applicant argues that the Respondent’s directions were inherently unlawful on the basis that that they commanded the Applicant to give up a central feature of her leave right granted by s.97 of the Act, that being the right not to work, including the right not to follow an employer’s directions when an employee is on paid personal leave.
The Applicant submits that it follows that the adverse action was taken by the Respondent because the Applicant exercised a workplace right and, thereby, the Respondent contravened s.340(1)(a)(ii) of the Act. In support of her argument, the Applicant relies on the decision of North ACJ in McMaster v Qube Ports Pty Ltd [2015] FCA 1385 (“McMaster v Qube Ports”).
In the Applicant’s Outline of Submissions filed on 21 April 2017, the Applicant stated that, in the alternative, she was dismissed for reasons including her mental disability and/or temporary absences from work due to illness or injury and, accordingly, the Respondent contravened ss.351(1) and 352 of the Act. These alternative alleged contraventions were not the subject at all of submissions made by Counsel for the Applicant during the proceedings. In opening and closing submissions, Counsel for the Applicant made it clear that the Applicant relied only on the alleged contravention as characterised in [1]-[3] above. I have therefore not considered the alternative alleged contraventions in my reasons for judgment.
In order to outline the Applicant’s argument put before the Court, it is necessary to first briefly state the background facts.
The Applicant commenced employment with the Respondent in an administrative position on 4 March 2002, working as a Personal Assistant to various managers. On 27 October 2015, the Applicant took personal leave due to illness and provided the Respondent with medical certificates completed by the Applicant’s general practitioner, Dr Shui Khoo (“Dr Khoo”). In addition, Dr Khoo completed a Monash Health “Doctor Report” form on 10 December 2015 and provided further correspondence to the Respondent on 14 April 2016.
There is no dispute that during the relevant period the Applicant was taking paid personal leave within the meaning of s.97 of the Act. There is also no dispute that during the period of her paid personal leave the Applicant did not make an application for compensation under the relevant State workers compensation legislation, nor did the Applicant indicate to the Respondent that she wished to return to work.
On 8 April 2016, 13 April 2016 and 15 April 2016, the Applicant was directed by the Respondent to attend upon an occupational physician nominated by the Respondent for the purpose of an IMA. On each occasion, through her solicitors, the Applicant refused to attend the IMA. On 21 April 2016, Ms Gaylene Giles (“Ms Giles”), Senior Manager of Monash Medical (People and Culture), sent correspondence to the Applicant informing the Applicant that the Respondent was reviewing her employment in light of her failure to comply with lawful and reasonable directions. The undisputed evidence before the Court was that this correspondence was sent at the direction of Mr Andrew Stripp (“Mr Stripp”), Chief Executive Officer of the Respondent. There is no dispute that the content of this correspondence constituted a threat that the Applicant’s continuing employment may be at risk and, consequently, amounted to adverse action within the meaning of s.342 of the Act.
The Applicant remained on paid personal leave until her dismissal on
6 May 2016. There is no dispute that, although the correspondence sent to the Applicant informing the Applicant of her termination was signed by Ms Jane Poxon (“Ms Poxon”), the then Acting Chief Operating Officer of the Respondent, the person who decided that the Applicant’s employment should be terminated was Mr Stripp. The reason given in the letter of termination for the Applicant’s summary dismissal was the Applicant’s “failure to comply with the lawful and reasonable directions” that she attend the IMA.The Applicant’s argument is that, because she was on paid personal leave pursuant to s.97 of the Act, she had and was exercising her workplace right not to work. The Applicant argues that this workplace right not to work carries with it a right not to be directed to do or not do things by the Respondent. The Applicant supports this argument by submitting that it is an inherent aspect of the notion of “work” that an employer can direct employees to do various things, including attending meetings, interviews and/or assessments.
The Applicant argues that because the Respondent’s directions to the Applicant to attend the IMA were unlawful, the question of whether the directions were, in the circumstances, reasonable is irrelevant. The Applicant argues that the Respondent’s threat to dismiss her and its subsequent decision to terminate her employment for failure to comply with their unlawful directions to attend the IMA can only lead to a finding by the Court that the Respondent took adverse action against the Applicant for the reason of, or a reason which included, a prohibited reason, that is, the Applicant’s exercise of her workplace right to refuse to comply with the Respondent’s directions that she attend an IMA whilst she was on paid personal leave.
The Applicant argues that the circumstances of this case are to be distinguished from what are described as “disaggregation cases” where an employee has exercised a workplace right, but where the reason or reasons the employer took adverse action against the employee was or were not a prohibited reason or reasons. The decisions referred to in these proceedings in relation to this argument are Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 (“Barclay”); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243 (“BHP Coal”); Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76 (2015); 231 FCR 150 (“Endeavour Coal”); and Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 (“Anglo Coal”).
In McMaster v Qube Ports, North ACJ found that an employee had a right to refuse a direction to upgrade to a higher level of employment under the relevant Enterprise Agreement and that the employee’s refusal to upgrade, which was motivated by safety concerns, was an exercise of a workplace right under the Enterprise Agreement. The employer dismissed the employee because he refused to comply with the employer’s direction to upgrade. Consequently, His Honour found that the employer, who misunderstood that the employee had a right under law to refuse to upgrade his employment, dismissed the employee because he exercised a workplace right. The Applicant relies on the following extracts from the decision (McMaster v Qube Ports at [215], [236]-[238], [241]):
215 The present case does not raise the issue considered in the three authorities just discussed. In each of those cases there was a debate about the reasons which motivated the adverse action. The Court had to make a choice between a number of possible reasons. In Barclay, the reason may have been that Mr Barclay was a union delegate and an alternative reason, which was accepted, was that he had sent the email of a particular character in particular circumstances. In BHP Coal the employee may have been dismissed because he was engaged in the protest activity or, alternatively, he may have been dismissed because of the nature of the reference to the word “SCABS” on the sign which he held. In Endeavour Coal the roster change may have been motivated because the employee had taken personal carers leave or, alternatively, because the employer was concerned with the predictability of attendance of employees on a particular shift.
…
236 Whilst the authority of Barclay, BHP Coal and Endeavour Coal must govern the circumstances to which they were addressed, they were not concerned with the present situation in which an employer dismissed an employee because the employer made a mistake of law in concluding that the employee did not have a workplace right.
237 In relation to matters of fact, the authorities have established that the mental process of the decision maker determines whether the action taken was “because” the employee exercised a workplace right. The consequence of that reasoning has the possibly unintended result in cases such as Anglo where the decision maker misunderstands the facts. The decision maker avoids liability even though on the facts as they were the victim was subjected to adverse action by the decision maker. The result is to restrict the area of protection of the victim provided by the section and to expand the area of non-culpability of the decision maker. The purpose of the section is to provide protection to the victims of adverse action. In order to do so it is necessary to limit the scope of the doctrine so far developed to mistakes of fact made by decision makers. The beneficial purpose of the section would be impeded if decision makers who mistake the law avoid liability.
238 Further, there is a distinction in principle between a mistake of fact in such situations and a mistake of law. People are presumed to know the law. That is a requirement for an ordered society. Members of society are not able to claim ignorance of the law as an excuse for action which is contrary to law. To allow people to do so would undermine the foundation on which an ordered society rests. It is unlikely that ignorance of the legal right was intended by the section to render the perpetrator immune from liability for the adverse action.
…
241 Mr Sousa dismissed Mr McMaster because Mr McMaster refused to upgrade. Mr McMaster had a legal right to refuse to upgrade. It was immaterial to Qube’s liability under s 340(1)(a)(ii) of the Act that Mr Sousa believed that Mr McMaster had no right to refuse to upgrade. In the result, Qube contravened s 340(1)(a)(ii) of the Act by dismissing Mr McMaster because he exercised a workplace [right].
Applying the findings of North ACJ in McMaster v Qube Ports, the Respondent dismissed the Applicant because she refused to be directed what to do while she was on paid personal leave. The Applicant asserts that she had a legal right to refuse to be directed what to do by the Respondent whilst she was on paid personal leave, to which the Applicant was entitled and for which the Respondent had the necessary medical evidence in support. The Applicant argues it is immaterial to the Respondent’s liability that it believed that the Applicant had no right to refuse the direction.
On appeal in Qube Ports Pty Ltd v McMaster [2016] FCAFC 123 (“Qube Ports v McMaster”), the Full Court of the Federal Court of Australia disagreed with the trial judge and held that the employee did not have a right to refuse to upgrade his level of employment under the relevant Enterprise Agreement. Only Jessup J referred to North ACJ’s distinction between fact and law in cases dealing with contraventions of the general protection provisions under pt.3-1 of the Act. Justice Jessup stated by way of obiter as follows (Qube Ports Pty Ltd v McMaster at [41]):
41 However, and for no reason other than to avoid misunderstanding, I would add that my decision to stay out of the area of controversy raised by the appellant’s fifth ground should not be interpreted as an endorsement of the primary Judge’s reasons in relevant respects. In particular, I would not, with respect, associate myself with the distinction which his Honour made, categorically, between an error of fact and an error of law on the part of the relevant decision-maker. Neither, with respect, was his Honour correct to say that people are presumed to know the law. As Gleeson CJ and Kirby J said in Ostrowski v Palmer (2004) 218 CLR 493, 500 [1]:
Professor Glanville Williams said that almost the only knowledge of law that many people possess is the knowledge that ignorance of the law is no excuse when a person is charged with an offence [Williams, Textbook of Criminal Law, 2nd ed (1983) at 451]. This does not mean that people are presumed to know the law. Such a presumption would be absurd. Rather, it means that, if a person is alleged to have committed an offence, it is both necessary and sufficient for the prosecution to prove the elements of the offence, and it is irrelevant to the question of guilt that the accused person was not aware that those elements constituted an offence.
And so it is with civil contraventions of the provisions of Pt 3-1 of the FW Act. But it would, in my view, be an unwarranted extension of the principles laid down in existing authority to impute to a decision-maker a reason for acting which did not in fact exist by reason of a presumption that he or she knew the law.
The Respondent’s submission is that the Applicant did exercise a workplace right to take paid personal leave pursuant to s.97 of the Act, and that the Respondent took adverse action against the Applicant when it threatened to dismiss the Applicant’s employment and when it then terminated her employment. The Respondent submits, however, that the reason for her termination was not the Applicant’s exercise of her workplace right, but her failure to comply with lawful and reasonable directions by the Respondent that she attend an IMA. The Respondent submits that the circumstances of this case fall within the scope of the decisions in Barclay, BHP Coal, Endeavour Coal and Anglo Coal. The Respondent submits that the Applicant’s submission that the Respondent’s direction that the Applicant attend an IMA was unlawful is misconceived as it fails to take into account the Respondent’s common law right, and indeed obligations, to do so under relevant State health and safety laws.
I will consider the competing submissions made by the Applicant and the Respondent with respect to the question as to what workplace right the Applicant was exercising and whether the Respondent’s direction to the Applicant to attend an IMA was lawful and reasonable later in this judgment.
Background
Due to the way in which the Applicant has argued her case in these proceedings, it is unnecessary to set out in detail much of the evidence adduced by way of affidavits and cross-examination. The relevant factual chronology is as follows:
a)on 4 March 2002, the Applicant commenced employment with the Respondent in an administrative position within its Education Department at the Clayton branch. The Applicant continued her employment as a Personal Assistant to various managers at the Clayton branch and reported directly to those managers;
b)in 2013, Ms Shannon Wight (“Ms Wight”) was appointed to the position of Director of Nursing at Clayton. From this time onward, the Applicant reported directly to Ms Wight as her Personal Assistant;
c)on 20 October 2015 and 7 November 2015, the Applicant complained to Ms Nicki Ursu (“Ms Ursu”), Human Resources Manager of the Respondent, about Ms Wight’s behaviour;
d)on 27 October 2015, the Applicant took personal leave due to illness;
e)the Applicant provided the Respondent with medical certificates completed by her general practitioner, Dr Khoo. The medical certificates on each occasion stated no more than that the Applicant “is unfit to work/study”. The medical certificates initially covered weekly periods and then monthly;[1]
f)on 10 December 2015, Dr Khoo completed a Monash Health “Doctor Report” form which the Applicant provided to the Respondent.[2]
i)In that report, Dr Khoo stated as follows:
[1] Affidavit of Gaylene Giles filed on 17 March 2017, Annexure GG-1.
[2] Affidavit of Leigh Swanson filed on 19 January 2017, Annexure LS-6.
…
[The Applicant] is unable to work under Shannon Wight indefinitely.
…
…[The Applicant] cannot return to her previous role/position under Shannon Wight. However, she has capacity to the fulfill the job description of her previous role in a different area/department/site – where there will not be any contact with Shannon Wight.
…
Nil [vocational/functional restrictions], but no contact with Shannon Wight.
…
No physical restrictions but indefinite non-contact with Shannon Wight.
…
Preferable to be working in a different site (eg. Casey or Dandenong).
ii)Dr Khoo stated that the expected date the Applicant could return to pre-injury duties was 2 January 2016;
g)on 1 February 2016, the Applicant was offered an alternative position as a Personal Assistant in the Monash Children’s Hospital team at Clayton. On 2 March 2016, the Applicant was offered another alternative position as a Personal Assistant in the Patient Flow Unit at the Respondent’s Kingston branch. The Applicant declined both of these offers;
h)on 4 March 2016, an external investigation into the Applicant’s bullying complaints against Ms Wight concluded and findings were made. The investigation concluded that there was insufficient information to establish unreasonable conduct by Ms Wight;
i)following the conclusion of the investigation, the Applicant was directed to attend a meeting with Ms Giles to discuss the outcome of the investigation and the Applicant’s decision not to accept the Respondent’s second offer of alternative positions. The Applicant declined to attend. On 10 March 2016, the Applicant was again directed to attend a meeting.[3] This time the Respondent stated that any refusal of the Applicant to attend the meeting may result in disciplinary action, including termination of the Applicant’s employment;
[3] Ibid Annexure LS-13.
j)on 11 March 2016, the Applicant’s solicitor, Mr Andrew Jewell (“Mr Jewell”), Principal of McDonald Murholme Solicitors, responded by email to the Respondent’s direction on the Applicant’s behalf, saying as follows:[4]
[4] Affidavit of Gaylene Giles filed on 17 March 2017, Annexure GG-5.
The letter refers to our client’s medical certificate but dismisses her reliance on it. She is unfit to attend work – you have directed her to attend work. This is clearly contrary to her medical certificate.
We remind you of section 340, 351(1) and 352 of the Fair Work Act 2009. Dismissal while our client is absent pursuant to a medical certificate will place Monash Health (and any decision maker personally) in breach of these sections. In fact, the letter itself constitutes adverse action insofar as it threatens dismissal, and that adverse action is clearly motivated by our client’s exercise of her workplace right to take paid personal leave.
k)by correspondence dated 11 March 2016, Ms Gabrielle Czarnota (“Ms Czarnota”), Corporate Counsel for the Respondent, replied to the Applicant’s solicitor’s email. Ms Czarnota disputed Mr Jewell’s assertion that the Applicant was unfit to attend meetings and stated as follows:[5]
[5] Ibid Annexure GG-6.
Your correspondence today seems to suggest that Ms Swanson asserts that she is unfit to perform any work as a personal assistant, not limited to the restrictions detailed in the Report [of Dr Khoo]. We request your confirmation or otherwise in this respect as soon as possible. If that is the case, Monash Health will need to consider this new information accordingly in relation to Ms Swanson’s return to work.
l)by correspondence dated 22 March 2016 sent to Ms Czarnota,[6] the Applicant’s solicitor set out a detailed chronology based on the Applicant’s instructions. The correspondence then dealt with various matters under the headings “Breach of General Protections”, “Bullying” and “Redundancy”;
[6] Affidavit of Leigh Swanson filed on 19 January 2017, Annexure LS-16.
m)
by correspondence dated 6 April 2016 sent to the Applicant’s solicitor, Ms Czarnota referred to Dr Khoo’s report dated
10 December 2015 and the offers of alternative positions made to the Applicant by the Respondent and stated as follows:[7]
[7] Ibid Annexure LS-17.
Monash Health is concerned to ensure that it is sufficiently informed to make appropriate decisions about Ms Swanson’s employment, including current information regarding her prognosis and restrictions on her fitness. To this end, Monash Health directs Ms Swanson to attend an assessment by an independent occupational physician. This independent health assessment will be arranged and communicated to Ms Swanson as soon as possible. Monash Health will cover the costs of the assessment.
We consider this a lawful and reasonable direction to Ms Swanson, and require that she comply. Following her attendance at the independent health assessment and receipt of the medical report, Monash Health will consider appropriate steps for Swanson’s return to work
n)on 8 April 2016, by correspondence signed on behalf of Ms Giles, the Applicant was directed to attend an IMA on 19 April 2016. The letter relevantly stated as follows:[8]
[8] Ibid Annexure LS-18.
In case of long term absences due to lack of fitness for work, Monash Health is concerned to ensure that it has the information that it requires to make the appropriate decisions about a staff member’s employment including to assess whether the staff member is or is not able to perform the inherent requirements of their position and, if appropriate, to prepare and plan for a staff member’s return to work. Due to our concerns regarding your health and wellbeing, and in order to properly assess your return to work prospects including suitable alternative roles, Monash Health would like you to attend an independent health assessment.
o)on 11 April 2016, the Applicant’s solicitor responded by correspondence sent via email to Ms Czarnota, stating as follows:[9]
[9] Ibid Annexure LS-19.
Your letter directs our client to attend a medical assessment, however it provides no basis for the direction.
We agree that Monash Health has an obligation to provide our client with a safe working environment. However, as she has not advised that she is returning to work this provides no basis for the direction.
In relation to our client’s ability to “perform the inherent requirements” of her role, this is a consideration under section 351(2) of the Fair Work Act 2009 (Cth). However, while our client remains temporarily absent due to illness or injury, section 352 of the of the [sic] Fair Work Act 2009 (Cth) prevents any decision on her employment.
Accordingly, our client will attend a medical assessment either when she is advised that she is fit to return to work, or when she is no longer on paid personal leave and therefore no longer temporarily absent due to illness or injury. Before either of these events occurs Monash Health has no ability to direct her attendance at a medical assessment.
Should Monash Health dismiss our client she will immediately make a general protections application.
p)on 13 April 2016, Ms Giles directed the Applicant to sign and return a consent form confirming that she will attend the IMA scheduled for 19 April 2016. In her correspondence, Ms Giles stated as follows:[10]
[10] Ibid Annexure LS-20.
As stated in my letter dated 8 April 2016, the reason for directing you to attend the medical assessment is to enable Monash Health to have more information regarding your fitness for duty in light of your extended absence from work since 27 October 2015. This is a lawful and reasonable request, and your cooperation in this process is required.
Based on the information provided to date (being various general medical certificates and the report of Dr Shui Khoo dated 10 December 2015), Monash Health understands that you have no current vocational or functional restrictions save that you are not to have contact with Ms Shannon Wight.
Monash Health is endeavouring to accommodate that restriction and identify for you suitable alternative roles. However in March 2016 you refused to attend a meeting with myself to discuss a potential suitable alternative role where the basis for that refusal is not clear on the medical information that we currently have regarding your absence and fitness for duty (and where you had previously participated in meetings and discussions regarding another suitable alternative role).
q)on 14 April 2016, the Applicant provided correspondence from Dr Khoo to Ms Giles via email. In that correspondence, Dr Khoo stated as follows:[11]
[11] Affidavit of Gaylene Giles filed on 17 March 2017, Annexure GG-11.
This is to certify that Mrs Swanson attends this practice and I am her her [sic] treating GP over the last 20 years. She has suffered severe post traumatic stress due to workplace harassment/bullying for approximately 2 years under her previous Director of Nursing (Shannon Wight) to whom she was the Personal Assistant. She had been struggling continuing to work under her [within] the months leading to October 2015 – her work conditions were unsustainable, she describes being unsupported, undermined, lack of communications/regarding her duties, aggressive demeanour. She had been working in that position for many years prior. As a result of working under the constant pressure, negative environment, Leigh has suffered a significant trauma and continues to be impacted by it. She was pre-morbidly well, with no past history of any mental/psychological illness. She has suffered significant losses as result of this – her self esteem, confidence, financial losses/future employment.
It is not in her best interest to return to that work environment/work culture. Therefore, she is not certified to return to work for Monash Health under the present circumstances.
r)on 15 April 2016, Ms Giles informed the Applicant that the IMA scheduled for 19 April 2016 had been cancelled.[12] Ms Giles directed the Applicant to sign and return a consent form confirming that she would attend an IMA with the occupational physician. Ms Giles stated that once the Respondent had received the Applicant’s signed confirmation and consent form, arrangements would be made for an IMA appointment on a date and time to be advised. Ms Giles relevantly stated as follows:[13]
[12] Affidavit of Leigh Swanson filed on 19 January 2017, Annexure LS-21.
[13] Ibid.
As previously stated, Monash Health requires further information about your fitness for work and ability to undertake suitable alternative duties or roles, and this is the reason for requiring your attendance at an assessment by an independent occupational physician. Unfortunately the letter that you have provided from Dr Shui Khoo dated 14 April 2016 does not provide sufficient detail on the matters which need to be addressed.
s)on 18 April 2016 by email to Ms Czarnota, the Applicant’s solicitor responded as follows:[14]
[14] Affidavit of Gaylene Giles filed on 17 March 2017, Annexure GG-13.
Our client has provided sufficient medical information. Should you require further information, please provide us with a list of questions which we can provide to Dr Khoo.
i)the email also requested that the Respondent direct all future correspondence in the matter to the Applicant’s solicitors.
t)by correspondence to the Applicant dated 21 April 2016, Ms Giles, having set out a chronology of events, stated as follows:[15]
Monash Health takes its obligations relating to facilitating your return to work seriously, and has endeavoured since December 2015 to identify suitable alternative roles for you as detailed above in line with the Restriction advised by Dr Khoo. Monash Health has communicated to you that it is now seeking to understand further your fitness for work in light of your recent refusal to attend meetings to discuss suitable alternative roles. To that end, Monash Health has directed you on numerous occasions to attend an independent assessment with an occupational physician, such direction being lawful and reasonable in the circumstances. You have failed to comply with the lawful and reasonable directions issued on 8 April 2016, 13 April 2016 and 15 April 2016.
In light of the above, Monash Health is reviewing your employment in light of your failure to comply with its lawful and reasonable directions. You are invited to provide any information which you consider relevant to your failure to comply by 5.00pm, Thursday 5 May 2016. Monash Health will proceed with a review of your employment thereafter based on the information that it has available to it.
u)by correspondence sent via email to Ms Czarnota on 27 April 2016, the Applicant’s solicitor stated as follows:[16]
Our client is unwell and has exercised her right to take paid personal leave. Monash Health’s threatened dismissal is evidently for reasons including her exercise of this right. Further, she is temporarily absent due to illness and any dismissal will be in breach of section 352 of the Fair Work Act 2009 (Cth).
Monash Health has no right to demand further medical information until our client either advises that she is fit to return to work or no longer temporarily absent (i.e. she has exhausted her entitlement to paid personal leave). Should it take any action our client will make a general protection application which will progress through to the Federal Court of Australia.
v)on 6 May 2016, in correspondence to the Applicant signed by Ms Poxon, the Applicant’s employment was terminated summarily. The correspondence relevantly stated as follows:[17]
In these circumstances, it is with regret that I inform you that your employment is now terminated on the basis of your failure to comply with the lawful and reasonable directions issued on 8 April 2016, 13 April 2016 and 15 April 2016. We consider that your actions constitute serious misconduct, and on this basis your employment will cease effective immediately, Friday 6 May 2016.
[15] Affidavit of Leigh Swanson filed on 19 January 2017, Annexure LS-23.
[16] Ibid Annexure LS-24.
[17] Ibid Annexure LS-25.
The references in the correspondence to the Applicant dated 21 April 2016 and the letter of termination dated 6 May 2016 to the “directions” issued on 8 April 2016, 13 April 2016 and 15 April 2016 refer to the directions made to the Applicant by the Respondent to attend an IMA.
Did the Respondent contravene s.340 of the Act?
The Applicant argues that the workplace right exercised by her was a right not to work, which included a right to refuse a direction from her employer that she attend an IMA. The Applicant argues that, as she had a right not to be directed by the Respondent to attend an IMA, the Respondent’s direction was unlawful in the sense identified by North ACJ in McMaster v Qube Ports. The Applicant alleges that the Respondent’s correspondence dated 21 April 2016 amounted to a threat that the Applicant’s continuing employment with the Respondent was at risk and constituted adverse action. Further, the Applicant claims that the Respondent’s decision to terminate her employment constituted adverse action. The Applicant submits that as the Respondent’s threats to terminate the Applicant’s employment and its subsequent decision to then terminate her employment were because the Applicant exercised a workplace right to refuse an unlawful direction, the Respondent took adverse action against the Applicant because she exercised a workplace right and, consequently, contravened s.340 of the Act.
The Applicant’s submissions raised two questions for the Court’s determination. First, what the Applicant’s workplace right was, and second, whether the Respondent’s direction to the Applicant to attend an IMA was a lawful direction.
What was the Applicant’s workplace right?
Central to the Applicant’s submission that she exercised a workplace right in refusing to attend an IMA as directed by the Respondent, is the Applicant’s argument that during the period she was on paid personal leave pursuant to s.97 of the Act she had a right not to work.
This argument is misconceived for the reasons set out below.
Section 97(a) of the Act provides that:
An employee may take paid personal/carer’s leave if the leave is taken:
(a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or…
Section 107 of the Act relevantly provides that:
Notice
(1) An employee must give his or her employer notice of the taking of leave under this Division by the employee.
(2) The notice:
(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and
(b) must advise the employer of the period, or expected period, of the leave.
Evidence
(3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that:
(a) if it is paid personal/carer's leave--the leave is taken for a reason specified in section 97; or…
(Emphasis added)
In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (“Project Blue Sky”), McHugh, Gummow, Kirby and Hayne JJ discussed the approach to be taken to statutory interpretation, stating as follows (Project Blue Sky at [69]-[71]):
69The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.” Thus, the process of construction must always begin by examining the context of the provision that is being construed.
70 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other.” Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
(Footnotes omitted)
It is plain from the text of s.97 of the Act that an entitlement of an employee under s.97 of the Act is to take paid personal leave and that that entitlement is conditional upon the requirement that the employee “is not fit for work” because of personal illness or injury. Section 107 of the Act sets out the obligations of an employee in relation to the requirement which must be satisfied in order for the employee’s entitlement to take paid personal leave due to illness to be enlivened.
It is inconsistent with the construction and meaning of the language used in s.97 of the Act to assert that an employee’s entitlement to paid personal leave is in fact a right of an employee not to work. Such an assertion confuses the condition an employee must satisfy, that he or she “is not fit for work”, with the entitlement. The fact that an employee is not fit for work and has provided the requisite “evidence” does not mean an entitlement to paid personal leave is an overarching right not to work. The argument put by the Applicant seeks to introduce into the text of s.97 of the Act words which are not found in the description of the entitlement. This approach to interpreting the legislation must therefore be rejected.
The context in which ss.97 and 107 of the Act operate is relevant. They are located in pt.2-2 of the Act – The National Employment Standards. Section 61(1) of the Act provides that:
61 The National Employment Standards are minimum standards applying to employment of employees
(1) This Part sets minimum standards that apply to the employment of employees which cannot be displaced, even if an enterprise agreement includes terms of the kind referred to in subsection 55(5).
Note: Subsection 55(5) allows enterprise agreements to include terms that have the same (or substantially the same) effect as provisions of the National Employment Standards.
(Emphasis in original)
Clearly, the provisions are beneficial provisions which apply to the “employment of employees”. It is telling that these minimum entitlements are said to apply to the employment of employees. It is evident from this description of the effect of The National Employment Standards that the statute takes, as its premise, an existing employer–employee relationship and deals with the treatment of employees in that context. That premise means that there will be terms and conditions already attached to the employee’s employment contract.
This reveals a critical deficiency in the argument of the Applicant. That is, the Applicant’s argument ignores the fact that when an employee takes paid personal leave, the employment relationship and contract of employment between the employee and the employer continues. In submissions, Counsel for the Applicant acknowledged that the essence of the employment contract is the employer’s right to direct their employees what to do. However, Counsel for the Applicant then went on to submit, in my opinion erroneously, that when an employee is taking paid personal leave pursuant to s.97 of the Act, the employee is not bound by a contract of employment. The actual submission made was that the employee was “on a break” from their obligations under their contract of employment. This cannot be a correct statement of the law.
Whilst an employee is taking paid personal leave, as with any other leave entitlements under pt.2-2 of the Act, the employee nevertheless continues to be employed under a contract of employment. There is no “break” from or suspension of that contract of employment. The contract of employment remains on foot and the employee on leave remains employed by his or her employer.
For these reasons, I reject the Applicant’s submission that whilst she was taking paid personal leave she was exercising a right not to work, which included a workplace right not to comply with any incidence of work, including directions made by her employer.
I find that at all relevant times the Applicant was exercising a right to take paid personal leave pursuant to s.97 of the Act.
Were the directions by the Respondent lawful?
A further and related question for the Court’s determination is whether the Respondent’s directions to the Applicant to attend an IMA were lawful.
In my opinion, the Applicant’s argument that she had exercised a workplace right not to comply with directions made by an employer and that the Respondent’s directions to her to attend the IMA were therefore unlawful overlooks the interrelationship between statutory entitlements and obligations and obligations under the common law.
In Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 (“Barker”), the High Court of Australia considered whether under the common law there is a term of mutual trust and confidence implied in a contract of employment. The High Court unanimously found that there was not. Relevantly, to the consideration of the Applicant’s argument, the plurality in Barker commenced their consideration by stating (at [1]):
1 The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment…
The plurality in Barker set out at [21] the basis upon which terms may be implied in a contract of employment as follows:
21 Courts have implied terms in contracts in a number of ways:
• in fact or ad hoc to give business efficacy to a contract;
• by custom in particular classes of contract;
• in law in particular classes of contract; or
• in law in all classes of contract.
Contractual terms implied in law may be effected by the common law or by statute. If effected by the common law they may be displaced by the express terms of the contract or by statute.
(Footnotes omitted)
Relevantly, the plurality later stated (Barker at [30]):
30 Employment contracts have attracted a number of implied terms in the course of the evolution of the employment relationship. All such terms are subject to the express provisions of the particular contracts and any applicable statutes. They include an implied duty imposed on the employer to provide the employee with a safe system of work and to give reasonable notice of the termination of the contract other than for breach. An employee has an implied duty of fidelity to the employer not to engage in conduct which “impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee”…
(Footnotes omitted)
The Respondent has correctly submitted that it is under a common law obligation to provide a safe system of work for its employees. The Respondent further argues that this obligation arises from applicable State occupational health and safety laws and is not dependent upon an employee having applied for compensation under relevant State workers compensation legislation. This is clearly correct. It is settled principle that the obligation on an employer to provide a safe system of work is a term to be implied in a contract of employment, which operates harmoniously with and cannot be displaced by beneficial legislation providing employees with minimum entitlements, such as those entitlements under pt.2-2 of the Act.
In Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 (“Qantas Airways”), Rares J was required to consider the interaction between an Enterprise Agreement (a statutory instrument made under the Act) applicable to the employment of a pilot and the implied terms of the contract of employment between Qantas and the pilot. His Honour relevantly defined the issues in dispute as follows (Qantas Airways at [44]):
44 There are three substantive questions in the proceedings. First, did Mr Kiernan have a workplace right under cl 31.3.10 to provide, at his election, a medical certificate when required to produce a medical certificate or other evidence of unfitness for duty? This question involves whether Qantas was, in fact, acting under cl 31.3.10 or independently exercising its common law rights under an implied term of the contract of employment of the kind identified by Madgwick J in Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395 at 411 [67]-[70], having regard to the requirements of ss 19 and 28 of the Work Health and Safety Act.Secondly, did Qantas take adverse action against Mr Kiernan by threatening to take disciplinary action if he did not provide the medical report Qantas requested? And, thirdly, did Qantas make that threat because Mr Kiernan had exercised a workplace right?
It is appropriate to set out the circumstances of Qantas Airways as they bear some resemblance to these proceedings. The employee in question in Qantas Airways had been on various forms of paid leave for some time, still had available to him accrued personal leave, and did not intend to return to work. The employee had not made any application for compensation under relevant State workers compensation legislation. The employee’s general practitioner had provided two medical certificates, one of which stated that the employee was suffering from clinical depression and both of which stated that the employee would be unfit for normal work for around a four month period.
Qantas made a request to the employee that he provide a written report from his treating doctor which “…should clearly indicate [his] diagnosis, prognosis, capacity to return to [his] preinjury duties and the anticipated timeframe” (Qantas Airways at [21]). The employee refused to provide the requested report and further directions were made by Qantas for the provision of a medical report. Qantas asserted in its communications with the employee that it had made a lawful and reasonable direction and that a failure to provide the medical report may lead to disciplinary action being taken against the employee. Ultimately, Qantas informed the employee that it considered his failure to comply with lawful and reasonable directions constituted serious misconduct and that Qantas was considering taking disciplinary action which may include termination of employment. Qantas provided the employee with three weeks to provide them with information as to why disciplinary action should not be taken.
In the meantime, the Australian and International Pilots Association (“the Association”) commenced proceedings on the employee’s behalf seeking declarations that Qantas had taken adverse action against the employee in the form of threats to take disciplinary action for reasons including the employee’s exercise of a workplace right to provide a medical certificate as evidence that he was unfit for duty in accordance with the provisions of the relevant Enterprise Agreement. Shortly before proceedings were due to commence, the Association sought to discontinue the proceedings. Qantas opposed this course on the basis that there was a real dispute as to the proper construction of the Enterprise Agreement and the obligations which were imposed on the parties and Qantas employees.
Justice Rares rejected the Association’s submission that s.107(3) of the Act operated to give an employee a choice of which of the two forms of evidence he or she would provide to Qantas in response to a request for medical evidence under the Enterprise Agreement (Qantas Airways at [55]).
Justice Rares noted that neither the relevant provisions of the Enterprise Agreement nor s.107 of the Act dealt with the particular requests made by Qantas for a medical report regarding the employee’s diagnosis, prognosis, capacity to return to pre-injury duties and expected date of return to work. His Honour then proceeded to consider the question of the implication of particular terms in the contract of employment as follows (Qantas Airways at [61]-[64]):
61 In Blackadder 118 FCR at 411 [67]-[69], Madgwick J held that, because of the strict obligations imposed on an employer by earlier legislation, that was replaced by the Work Health and Safety Act, it was essential for an employer to be able to require an employee, first, where necessary, to furnish particulars and or medical evidence affirming his or her continuing fitness to undertake duties and, secondly, where there was a genuine indication of a need for it, on reasonable terms, to attend a medical examination to confirm his or her fitness. He held that a term to that effect should be implied by law into contracts of employment because it was necessary to give business efficacy to the contract and so was an incident of the relationship as explained by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450. This aspect of his Honour’s decision was not referred to in the High Court’s restoration of his orders on appeal from their reversal by a Full Court of this Court: see Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 reversing Ramsey Butchering Services Pty Ltd v Blackadder (2003) 127 FCR 381). His Honour continued (118 FCR at 411 [70]):
“In the light of such considerations, it should not be readily concluded that an express reference to undergoing medical examinations in the AWA [Australian Workplace Agreement] in one context was intended to indicate that that was the only context in which such an examination might be required, or that the express promise in the employment application had been, by a process of novation attributable to the parties’ entering into the AWA, rendered nugatory.”
62 I agree with Madgwick J’s analysis. Here, the terms of the agreement were not exhaustive of the contractual rights of Qantas and its employees in respect of when or why Qantas could require an employee to undergo a medical examination or provide it with further information in relation to his or her medical condition: see too Byrne 185 CLR at 422-423 per Brennan CJ, Dawson and Toohey JJ, and at 450-452 per McHugh and Gummow JJ. Moreover, the fact that the agreement was certified under the Workplace Relations Act by the predecessor of the Fair Work Commission and given force of law by that Act did not make it a part of the contract between Qantas and its employees: Byrne 185 CLR at 420 per Brennan CJ, Dawson and Toohey JJ, 462 per McHugh and Gummow JJ.
63 The necessity to imply a contractual right of Qantas to require its pilots to provide medical evidence of the kind it sought from Mr Kiernan and for them to attend a meeting to discuss matters concerning their conditions arises from the obligations imposed on Qantas by both the agreement itself and the Work Health and Safety Act. In a contract of employment, as in most other contracts, ordinarily, each party agrees to do all such things as are necessary on his, her or its part to be done to enable the other party to have the benefit of the contract: Mackay v Dick (1881) 6 App Cas 251 at 263 per Lord Blackburn applied by Griffith CJ in Butt v M’Donald (1896) 7 QLJ 68 at 70–71; and Mason J (with whom Barwick CJ, Gibbs, Stephen and Aickin JJ agreed) in Secured Income Real Estate (Aust) Pty Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607, Byrne 185 CLR at 448-449 per McHugh and Gummow JJ.
64 An employee’s statutory, certified agreement or analogous industrial award based entitlement to take sick leave does not displace the contractual relationship in which, at some point, the employer is entitled to make its own business arrangements to adjust for the impact that the leave caused by the sickness of the employment will have on it and to address its obligations under the Work Health and Safety Act and its analogues…
(Emphasis in original)
I concur with the reasoning of Rares J in Qantas Airways. At all times the Respondent in these proceedings was under an obligation pursuant to the Occupational Health and Safety Act 2004 (Vic) to provide its employees with a working environment that is safe and without risks to health. I find that the statutory entitlement to take paid personal leave under s.97 of the Act does not displace the implied term of the subsisting contract of employment, that the Respondent provide a safe and healthy workplace, which carries with it a right that the Respondent may, where reasonable, require an employee on paid personal leave to attend a medical examination to confirm the employee’s incapacity to perform work. I am satisfied that this implied term of the contract of employment does not depend upon either the employee stating that he or she wishes to return to work or an application by the employee for compensation under relevant State workers compensation legislation.
In an earlier case, Thompson v IGT (Australia) Pty Ltd [2008] FCA 994 (“Thompson”), Goldberg J was required to consider whether a direction of an employer to an employee to undergo a medical examination constituted a detriment within the meaning of the relevant provision of the Disability Discrimination Act 1992 (Cth) (“the Disability Discrimination Act”). His Honour found that the direction did not constitute a detriment and gave the following reasoning (Thompson at [48]-[52]):
48 The following principles are well established. An employer may give an employee a lawful and reasonable direction, and it is the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer. In McManus v Scott‑Charlton (1996) 70 FCR 16, Finn J said at 21:
“The accepted view in this Court is that it is the common law obligation of an employee to obey the lawful and reasonable commands or directions of the employer: see Australian Telecommunications Commission v Hart (1982) 65 ALR 41; Bayley v Osborne (1984) 4 FCR 141; for a different view on the matter of reasonableness see 10 Halsbury’s Laws of Australia, ‘Employment’, par 165‑265, but cf W B Creighton, W J Ford and R J Mitchell, Labour Law (2nd ed, 1993), pars 8.2‑8.8. …
The ‘standard or test’ of the lawfulness of a command or direction that has been adopted in this Court for common law purposes is that of Dixon J in R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601 at 621‑622:
If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of services and are reasonable.’
The need for some such limitation is patent: employment does not entail the total subordination of an employee’s autonomy to the commands of the employer. As was said by the President in Australian Tramways Employees’ Association v Brisbane Tramways Co Ltd (1912) 6 CAR 35 at 42:
‘A servant has to obey lawful commands, not all commands. The servant does not commit a breach of duty if he refuse[s] to attend a particular church, or to wear a certain maker’s singlets. The common law right of an employee is a right to wear what he chooses, to act as he chooses, in matters not affecting his work.’
There are obvious, and powerful, considerations of civil rights and liberties and of due process which inform this. These need not be laboured here although they are of no little significance in the resolution of this case.”
49 It is also an established principle that it is reasonable to direct an employee to attend a medical examination to determine whether the employee is fit to perform his or her duties and whether he or she can do so safely. In Victoria, duties are cast upon employers by the Occupational Health and Safety Act 2004 (Vic). Section 21 provides:
“(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.”
(2) Without limiting sub‑section (1), an employer contravenes that sub‑section if the employer fails to do any of the following –
…
(d) provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;
(e) provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.”
Section 22(1) provides:
“An employer must, so far as is reasonably practicable
(a) monitor the health of employees of the employer; and
(b) monitor conditions at any workplace under the employer’s management and control; and
(c) provide information to employees of the employer (in such other languages as appropriate) concerning health and safety at the workplace, including the names of persons to whom an employee may make an enquiry or complaint about health and safety.”
50 In Blackadder v Ramsay Butchering Services Pty Ltd (2002) 118 FCR 395, Madgwick J considered the issue of a requirement of an employer in New South Wales for a reinstated employee to undergo a medical examination before reporting for work on reinstatement. Madgwick J said, at 411:
“An employer has, as indicated above, strict obligations under the NSW legislation to ensure the safety and well‑being of its employees. The importance of occupational health and safety is also reflected in the Act. Whilst an AWA, in general, prevails over conditions of employment specified in State laws to the extent of any inconsistency, provisions which relate to certain matters, such as occupational health and safety, operate subject to any relevant State law (see s 170VR(2) of the Act).
It is in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee’s continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments. Abattoirs entail obvious risks, among other things, of injuries from the repetitive use of knives at speed, and to the spinal column from the necessity to twist, bend and/or lift.
The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination. The matters will generally require a sensitive approach including, as far as possible, respect for privacy. Nevertheless, I assume that there now should be implied by law into contracts of employment terms such as those set out in the first two sentences of the preceding paragraph, on the basis that such terms pass the test of ‘necessity’ accepted by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450.”
Those observations of Madgwick J were not disturbed on appeal to the Full Court of the Federal Court and finally on appeal to the High Court, which upheld Madgwick J’s decision in whole: (2005) 221 CLR 539.
51 As I have already noted, an employer has an obligation under the Occupational Health and Safety Act 2004 (Vic) to provide a safe place of work. In carrying out and discharging that obligation, an employer may, from time to time, need to assess and determine whether an employee suffers from a disability that might affect his work. The employer might need to have regard to the nature and consequences of the employee’s disability in relation to the workplace in which the employee works.
52 As I noted earlier, s 15(4)(a) of the Disability and Discrimination Act does not render a dismissal unlawful where the disability prevents the employee from carrying out inherent requirements of his or her work. It is because of those matters that it is appropriate that an employer be able to obtain medical information about an employee that might be relevant to the performance of his or her work. It follows, in my view, that there are circumstances in which a requirement to provide medical information to one’s employer, provided it is made on reasonable terms and is shown to be reasonably necessary, does not constitute a detriment in employment but is, as Madgwick J observed, a necessary part or an incident of the employment.
(Emphasis in original)
The Applicant has sought to distinguish the decision in Thompson on the basis that it was concerned with the question as to whether an employee could perform the inherent requirements of their position under the Disability Discrimination Act. It is the case that Goldberg J was concerned with an alleged contravention of that Act. However, Goldberg J set out the general principles before addressing whether the circumstances of the case before His Honour rendered a lawful direction a reasonable one. In deciding whether the direction was reasonable, His Honour had recourse to the particular provisions of the Disability Discrimination Act.
In my opinion, Thompson also stands for the proposition that there are freestanding common law rights of an employer implied as a term of the contract of employment, arising from their obligations under the relevant State occupational health and safety laws, to provide a safe place of work for their employees, which includes a right to require an employee, on a reasonable basis, to attend an IMA.
Accordingly, I reject the Applicant’s submission that the direction made by the Respondent that the Applicant attend an IMA was not a lawful direction.
It is settled principle that one of the most important obligations resting on an employee is the obligation to obey all lawful commands given by their employer. This is said to be one of the characteristics of the contract of employment which distinguishes it from other types of contracts.[18] As observed in Barker, in a contract of employment an employee has an implied duty of fidelity to their employer not to engage in conduct which “impedes the faithful performance of [his or her] obligations...” (Barker at [30]).
[18] Carolyn Sappideen et al, Macken’s Law of Employment (Thomson Reuters, 7th ed, 2011) 208-210 [5.790].
Directions issued by employers must also be reasonable. What is reasonable in any given circumstances will depend on the particular type of employment. In some cases, disobedience of a lawful and reasonable direction may justify summary dismissal of the employee.[19]
[19] Ibid.
I have found that the direction by the Respondent to the Applicant to attend an IMA was lawful. Although the Applicant submits that she does not rely on whether or not the direction was reasonable, I am satisfied, having regard to the circumstances, that the direction issued by the Respondent was also reasonable. The relevant circumstances are:
a)the Applicant’s initial psychological injury arose from particular circumstances, namely, alleged bullying by her manager, Ms Wight;
b)the Applicant’s treating general practitioner, Dr Khoo, reported on 10 December 2015 to the Respondent that the Applicant had a capacity to fulfil the job description of her previous role subject to the Applicant working in a different area/department/site to Ms Wight. Dr Khoo anticipated that the Applicant would be able to return to her pre-injury duties by 2 January 2016;
c)thereafter, Dr Khoo issued medical certificates which were general in nature, certifying simply that the Applicant was “unfit to work/study”;
d)the Respondent was active in seeking alternative positions for the Applicant, having regard to Dr Khoo’s medical report dated 10 December 2015;
e)Dr Khoo’s correspondence to the Respondent dated 14 April 2016 was, in my opinion, unhelpful in assisting the Respondent in understanding the Applicant’s incapacity to work in circumstances where the medical certificates provided were general in nature. Further, Dr Khoo’s correspondence appears to primarily pertain to the initial cause of the Applicant’s psychological injury, described as “severe post traumatic stress”. Dr Khoo’s statement that “[the Applicant] is not certified to return to work for Monash Health under the present circumstances” was, with respect, obscure and unhelpful. I agree with the views formed by the Respondent that the information provided by Dr Khoo was insufficient in assisting the Respondent to properly understand the Applicant’s capacity or incapacity for work, bearing in mind that the Applicant’s initial incapacity was said to arise only from remaining in any contact, communication or proximity with Ms Wight;
f)the Applicant had been on personal leave for some time;
g)the Respondent, being a large employer, was entitled to plan its organisational operations and attempt to ascertain the Applicant’s capacity for work, including any prospects for the Applicant to return to work prior to the time at which her accrued personal leave entitlements expired; and
h)there was no evidence that the Applicant was incapable of attending an IMA.
Accordingly, I find that the Applicant did not have a workplace right to refuse any lawful and reasonable direction by the Respondent during the period the Applicant was taking paid personal leave pursuant to s.97 of the Act. I further find that the directions by the Respondent to the Applicant to attend an IMA were both lawful and reasonable.
Did the Respondent take adverse action because the Applicant exercised her workplace right under s.97 of the Act?
The Applicant has supported her contention that the Respondent contravened s.340 of the Act only by reference to her argument that her workplace right, while she was taking paid personal leave under s.97 of the Act, was a right not to work which included a right not to be directed by the Respondent and that the Respondent’s directions were therefore unlawful. The Applicant has resiled from engaging at all in addressing the Court as to whether the directions issued by the Respondent were reasonable and/or a factual assessment based on the evidence before the decision maker, Mr Stripp, which actuated his decision to take adverse action against the Applicant. I have already dealt with the question of the reasonableness of the direction.
For the sake of completeness and because I have found that the Applicant was at the relevant time exercising a workplace right to take paid personal leave pursuant to s.97 of the Act, I shall consider whether the Respondent took adverse action against the Applicant because she exercised that workplace right.
As noted earlier, the Respondent concedes that it took adverse action against the Applicant, within the meaning of s.342 of the Act, when correspondence dated 21 April 2016 was sent by Ms Giles to the Applicant and when the Applicant’s employment was subsequently terminated. There is no dispute that the decision maker with respect to each of the adverse actions was Mr Stripp.
Having established as a matter of fact that the Applicant exercised a workplace right pursuant to s.97 of the Act and that the Respondent took adverse action against the Applicant, the evidentiary onus shifts to the Respondent to satisfy the Court that the reason or reasons it took adverse action did not include the reason that the Applicant had exercised her workplace right to take paid personal leave under s.97 of the Act.
Barclay is the leading authority on the operation of ss.360 and 361 of the Act. The principles explained in it were affirmed by the High Court of Australia in BHP Coal. Those principles were summarised as follows by the Full Court of the Federal Court of Australia in State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32]:
32 …
·The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
·That question is to be answered having regard to all the facts established in the proceeding.
·The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
·It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
·Even if the decision-maker gives evidence that he or she acted solely for non‑proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
·If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
…
In his affidavit filed on 17 March 2017, Mr Stripp relevantly deposed that:
a)he agreed with the recommendation that the Respondent should issue a letter to the Applicant directing her to attend an IMA because he was concerned that the Respondent have all necessary information in relation to the Applicant’s fitness for work, because he was aware of the Respondent’s obligations to provide a safe working environment for its employees and because he wanted the Applicant to return to work;
b)in April 2016, he was provided with various documents, including correspondence between the Applicant’s solicitors and the Respondent and correspondence from Dr Khoo dated 14 April 2016. Mr Stripp deposed that having read these documents he was aware that the Applicant had been directed on three occasions to attend an IMA and that, through her solicitors, the Applicant had refused these directions. Mr Stripp deposed that he considered the refusals were unreasonable, and that he formed the view that simply obtaining information from Dr Khoo after such a long absence from work was unsatisfactory and decided that an IMA was preferable. Mr Stripp formed the view that the Respondent was entitled to know and understand the scope of the Applicant’s work restrictions and what capacity she had, if any, to return to work;
c)he considered then, and considers now, that the continuing refusal by the Applicant to attend an IMA indicated that the Applicant had no intention of agreeing to such an assessment. Mr Stripp said he formed the view that the Applicant’s refusals to comply with the Respondent’s directions constituted misconduct;
d)consequently, he directed that the letter dated 21 April 2016 be sent to the Applicant on the basis that he considered the Applicant had failed to act reasonably by not agreeing to attend any of the IMAs; and
e)he decided that the Applicant’s employment should be terminated solely for the reason that she had refused to comply with the three directions by the Respondent to attend an IMA.
During cross-examination by Counsel for the Applicant, Mr Stripp said that the reason he decided that the Applicant should be directed to attend an IMA was because he was trying to engage with the Applicant to facilitate her return to work in the most constructive way, and having her undertake an IMA was an important part of the Respondent’s planning process. Mr Stripp said that the Respondent did not confine its requirements of an employee on paid personal leave to attend an IMA to only those employees who had indicated a desire to return to work. Mr Stripp said that it was the practice of the Respondent, in the Applicant’s circumstances, to require the employee on leave to attend an IMA so that the Respondent would have the information necessary to decide what might be an appropriate position for the employee when he or she is able to return to work. Mr Stripp agreed that a reason he decided that the Applicant should be directed to attend an IMA was the Applicant’s refusal of the alternative positions of employment offered to her by the Respondent. Mr Stripp said this was because it was difficult, without the benefit of an IMA, for the Respondent to ascertain whether or not the reason the Applicant had not accepted the alternative positions was because she did not have the capacity to accept those positions.
Having heard the oral evidence given by Mr Stripp at the hearing, I am satisfied that the sole reason for his decision to terminate the Applicant’s employment was that Mr Stripp formed the view that the Applicant had engaged in serious misconduct by refusing three lawful and reasonable directions by the Respondent that she attend an IMA. In my opinion, the fact that the Applicant was exercising a workplace right at the time of her refusals, that being paid personal leave, formed no part of Mr Stripp’s decision to terminate her employment. In this sense, this case is on all fours with the decisions in Barclay, BHP Coal, Endeavour Coal and Anglo Coal.
Accordingly, I find that although the Respondent did take adverse action against the Applicant by threatening to and ultimately dismissing the Applicant’s employment, the Respondent did not take adverse action because the Applicant exercised her workplace right to take paid personal leave under s.97 of the Act.
It should be noted that in her opening submissions the Applicant argued that the issuing of directions by the Respondent to the Applicant on 10 March 2016 and then later on 8 April 2016, 13 April 2016 and 15 April 2016 were part of a deliberate legal strategy of the Respondent, developed on the basis that compliance with such directions was essential to the employment contract, to ultimately dismiss the Applicant for misconduct. Having heard the oral evidence of Ms Giles, who issued the direction to the Applicant on 10 March 2016 to attend a meeting, and the evidence of Mr Stripp, who decided that the Applicant should be directed to attend an IMA, I reject this submission of the Applicant. I am satisfied that even though Ms Giles conceded that she could have discussed the workplace investigations into the Applicant’s bullying complaints over the phone with the Applicant, Ms Giles’ genuine view at the time was that it was preferable to engage in the discussion face-to-face and that, as the meeting was to be located at a place where the Applicant could not come into contact with Ms Wight, the direction to attend the meeting was reasonable and made with the intention that the meeting would be beneficial for both the Applicant and the Respondent. I accept Ms Giles’ evidence.
I further accept the evidence of Mr Stripp that the directions to the Applicant to attend an IMA were made because he believed they were reasonable in circumstances where the Respondent wanted to have the information necessary to consider the Applicant’s capacity for alternative positions at Monash Health.
Conclusion
For the reasons set out in this judgment, I will make orders dismissing the Applicant’s application.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 9 March 2018
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