Walsh v Healthscope
[1996] IRCA 197
•03 May 1996
DECISION NO: 197/96
C A T C H W O R D S
INDUSTRIAL LAW - termination of employment - capacity to perform duties
Industrial Relations Act 1988 ss.170DC, 170DE(1), 170DE(2)
CASES:
Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224
Transport Workers Union of Australia v Tip Top Bakeries (1994) 75 WA Industrial Gazette 9
Ball v Tip Top Bakeries IRCA (unreported) Wheeler JR 21 April 1995
Byrne and Frew v Australian Airlines (1995) 69 ALJR 827 and 828; and (1995) 131 ALR 422
WALSH -v- HEALTHSCOPE
No. TI-1331 of 1995
Before: Judicial Registrar Ryan
Place: Hobart
Date: 3 May 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
TI-1331 of 1995
B E T W E E N :
WALSH
Applicant
AND
HEALTHSCOPE
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 3 May 1996
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
TASMANIA DISTRICT REGISTRY
TI-1331 of 1995
B E T W E E N :
WALSH
Applicant
AND
HEALTHSCOPE
Respondent
Before: Judicial Registrar Ryan
Place: Hobart
Date: 3 May 1996
REASONS FOR JUDGMENT (EX TEMPORE)
(Revised from the Transcript)
THE CLAIM
The Applicant claims unlawful termination of employment. She seeks reinstatement. The Respondent operates a number of private hospitals including the North-West Private Hospital at Burnie in Tasmania. The Applicant has been a State Enrolled Nurse all her adult life. Nursing is a very important part of her life. She worked at North-West Private Hospital from 1988 to 1995.
BACKGROUND
The background and facts emerge in part in the summaries prepared by the solicitors for the Applicant and the Respondent. Those summaries of case are summarised further later in this judgment but, at the outset, the Court sets out the following factual chronology. The Applicant was a conscientious nurse during the whole of her employment with the Respondent from 1988 to 1995. The Applicant was an effective nurse in all aspects of her duties from 1988 to 14 June 1993 when she sustained a severe injury to her back during the simple procedure of bending to dry the feet of a patient she had assisted in a shower.
The Applicant had earlier injured her back on 14 December 1989 when she and another nurse were performing a fireman's lift on a patient who weighed about 130 kilograms and on 6 January 1992 when forced to take the total weight of an elderly arthritic patient when that patient slipped or fell when the Applicant was performing a shoulder lift alone and unaided. The Applicant suffered acute pain in the right side of her neck on 7 July 1992 and for two days thereafter as a result of lifting a patient.
On 10 December 1993, and as a direct result of the simple but severe injury on 14 June 1993, the Applicant underwent a spinal fusion for L4-5 and L5-S1 invertebrate discs performed by a surgeon in Canberra, a Mr Robson. In mid-1994 the Applicant returned to work briefly on clerical non‑nursing duties, the intention being that she work two hours a day, three days a week. After only one and a half hours a back spasm on bending slightly led to leaving work and a readmission to hospital for a week.
In October 1994 the Applicant resumed non-nursing duties two hours a day, three days a week and by March 1995 had gradually increased her working hours including some nursing duties to 20 hours a week. On 9 March 1995 the Applicant was examined by Dr MacLaine-Cross, consultant physician. This examination was undertaken at the request of her solicitors and counsel in this hearing, Mr Bartlett, but it was undertaken for workers compensation assessment purposes.
In the week preceding 9 March 1995 the Applicant had been forced to reduce her working hours from 20 to 15 hours a week because of backache and fatigue. On 14 August 1995, the Applicant redeemed all her workers compensation entitlements in respect of her impaired back by way of a lump sum settlement, and the release is exhibit A1. On 17 August 1995, exhibit R9, the insurer advised the Respondent that the Applicant's claims for back injuries said to have occurred at work on 14 December 1989, 6 January 1992 and 14 June 1993, had been settled by common law release and that no further weekly compensation payments were to be made to the Applicant and that the insurer would not be responsible for any medical or other expenses incurred after 17 August 1995.
THE ABILITY OF THE APPLICANT TO PERFORM NURSING DUTIES
In August 1995, between 17 and 23 August, the Respondent became aware of a report of 30 May 1995 from Dr MacLaine-Cross to the Applicant's solicitors. This was a report of the examination of the Applicant on 9 March 1995 and it is exhibit R5. In the report at page 4, in response to written questions from the Applicant's solicitors, Dr MacLaine-Cross wrote:
“It is very unlikely that further surgery will be necessary although this possibility cannot be ruled out completely. It is most important that she, the Applicant, exercises caution in all of her activities to minimise the risk of further injury. She should not attempt activities or work where she has to bend over or lift objects weighing more than about 5 kilograms. Nor should she travel in motor vehicles for long periods of time over rough or uneven roads in vehicles where she is subjected to jarring or violation of the spine. I see no prospect of her returning to work as a nurse. If she is to remain at work she must continue in her present job as a clerical assistance ward clerk and she should not be able to do physical work involved in patient care.”
On 23 August 1995 Mr Swan discussed the medical report of Dr MacLaine-Cross, that is, the report of 30 May, with the Applicant. Her solicitor Mr Bartlett was present, as were the Director of Nursing Mrs Faulkner and the Deputy Manager Mr Allen Leaman. On 25 August 1995 Mr Swan spoke to Dr MacLaine-Cross by telephone and on 30 August in a detailed letter, exhibit R8, requested him to examine the Applicant and report to the North-West Private Hospital.
Mr Swan enclosed an authorisation from the Applicant and his letter concluded with a request as to whether the Applicant could undertake nursing duties that can be reasonably expected of a nurse in a small hospital environment, assist in log-roll of a patient following major surgery, escort patients to theatre on a trolley and care for dependent patients. Mr Swan concluded his letter as follows:
“I appreciate that Mrs Walsh wishes to return to duties as a nurse and is concerned at this moment that there may be barriers preventing this occurring. Notwithstanding this, I am conscious that we need to ensure that whatever duties Mrs Walsh undertakes, such duties are not going to place a strain on her back or possibly cause further risk of injury. We are also concerned about the possible risk to other staff which may be assisting Mrs Walsh to undertake duties such as lifting. We have recently increased Mrs Walsh's rehabilitation program which includes a light patient load. From a nursing management perspective this has caused problems, including allocating workloads to other staff which are potentially placing them at risk of injury. We are therefore concerned that to continue with this arrangement would place our employees in risk of physical injury. As you will see from the attached schedule of sick leave, Mrs Walsh has found it difficult to maintain her hours of employment without requiring rest during each fortnightly period.”
The Court notes that the sick leave schedule was incorrect and the Respondent concedes this to be so. However, Dr MacLaine-Cross indicated in evidence that his report and assessment took little, if any, account of the amount of sick leave wrongly indicated as taken in the schedule.
On 16 October 1995 Dr MacLaine-Cross reported to Mr Swan of his examination of the Applicant on 6 September; that is exhibit R6. He expressed the belief that the Applicant was not able to undertake the duties expected of a nurse in the framework outlined by Mr Swan in his letter of 30 August and he stated that:
(a) the Applicant could not undertake nursing duties reasonably expected of a nurse in a small hospital environment
(b) there was some risk of injury to the Applicant assisting in log-roll of a patient as one of a team of three nurses and escorting patients to theatre on a trolley with the assistance of an orderly
(c) the Applicant would be at risk caring for dependent patients including assisting patients with daily hygiene, caring for post-operative surgical patients and medical patients, particularly the frail, elderly and terminally ill
(d) it would be unsafe for the Applicant to assist other nursing staff with basic lifting techniques
He concluded his report as follows:
“I share your concern that there is a need to ensure that whatever duties she undertakes, such duties are not going to place a strain on her back or possibly cause risk of further injury. You are right in your assumption; there is not only a risk to her but also to other staff who may be assisting her in undertaking duties such as lifting. It is my reluctant opinion that it is not safe for Mrs Walsh to return to nursing duties in the situation that you describe. However, she would be able to undertake clerical work and participate in many activities that do not require lifting and bending. The problem, of course, is whether work with such restricted duties is available in a small institution.”
EVENTS LEADING UP TO TERMINATION
On 26 October 1995 Mr Swan provided a copy of the medical report, exhibit R6, to the Applicant and invited her to a meeting to discuss the report. He told her by telephone that day and stated in a letter written that day that she was free to bring a representative of her choice to the meeting. The meeting took place on 3 November, not 2 November. Present were the Applicant, Mr Swan, Mrs Faulkner and Messrs Bartlett and Leaman.
The Applicant expressed the view that the questions put to Dr MacLaine-Cross by Mr Swan in his letter of 30 August, exhibit R8, were unfair and placed undue emphasis on the frail aged and that Dr MacLaine-Cross was not aware of the nature of the nursing at North‑West Private Hospital. Mr Bartlett appears to have suggested that the Applicant should be returned to work, at least on a trial, and undertake the duties she had been performing during the graduated return-to-work program over many months.
Mr Swan appears to have agreed to consider the possibility of such a return to work, but he stated in his evidence that his consideration was one he undertook in the light of the recommendations of Dr MacLaine-Cross. Notes of the meeting of 3 November were settled by Mr Swan, exhibit R11. These notes confirm the above and conclude as follows:
“Mr Swan agreed to consider the issues raised at our meeting and contact Mrs Walsh, the Applicant, as soon as possible for further discussion.”
Mr Swan did not contact the Applicant for further discussion, but on 16 November, exhibit A7, he wrote to her inadvertently and incorrectly referring to the meeting as having occurred on 27 October. The substance of that letter, which is a letter of termination, reads as follows:
“We confirm from our meeting that you believe, amongst other things,
that Dr MacLaine-Cross' medical report is biased towards nursing the frail, elderly and patients in a confused state;
that you can undertake a range of duties on our medical surgical ward that will allow you to resume normal shift work at North-West Private Hospital. Notwithstanding the above, we have accepted the views expressed by Dr MacLaine-Cross in his report of 6 September 1995 which states, inter alia:
(1) that everything stated in his report of 30 March still applies;
(2) that you are at considerable risk of a further injury occurring.
It is the view of the North‑West Private Hospital that the limits placed on your duties by the medical report would not allow you to resume normal shift work at this hospital. We have therefore assessed all possible opportunities on what role you could perform within our organisation, taking into consideration opportunities for deployment, retraining and part‑time duties in line with the medical restrictions placed on you. This assessment has also included the role of the North-West Private Hospital. Unfortunately, as a result of this assessment, we have found no positions available for you at North-West Private Hospital. As a consequence of the above your contract at the North-West Private Hospital will cease from Monday, 27 November 1995. If you would like to discuss any aspect of our previous discussions or this letter, I am more than happy to meet with you and your representative at our mutual convenience.”
On 27 November 1995, exhibit R12, the Applicant's solicitors wrote to Mr Swan contesting the validity of the termination, requesting reinstatement and indicating that if the Applicant was not re-employed an application would be made in this Court. Mr Swan replied the same day, exhibit R13, and concluded that nothing put to him led him to the view that the decision of termination should change but that he would be happy to discuss with Mr Bartlett or the Applicant any new information which may be beneficial. On 8 December 1995 the Applicant and Mr Bartlett signed a claim of unlawful termination of employment and the application was lodged in the Court on 11 December 1995.
THE HEARING
The Applicant, through her counsel Mr C.J. Bartlett, called her husband Allan Walsh, her general practitioner Dr Keith Andrew McArthur and a rehabilitation counsellor Frances Margaret Boyenga. The Applicant also gave detailed evidence and was examined and cross‑examined in some detail and at some length. The Respondent through its counsel, Mr S.B. McElwaine, called Dr Andrew Duncan MacLaine-Cross, consultant physician, and the following from the North-West Private Hospital: Mr David Swan, General Manager, Mrs Sally Faulkner, Director of Nursing, Mrs Juliet Sondermeyer, Charge Nurse, Bass Ward, and Mrs Vicky Cameron, Ward Clerk and Ward Assistant.
THE APPLICANT’S CASE
The Applicant claims unlawful termination of employment and seeks reinstatement. She asserts:
she was injured on 12 June 1993 in the course of her employment as a permanent part-time nurse with the Respondent
the injury was to her lower spine, as indicated earlier in this judgment and on the 10th day of December 1993 she had a spinal fusion
the spinal surgery was successful
during period of incapacity for work following the surgery the Applicant was paid workers compensation in accordance with the Tasmanian Workers Compensation Act 1988
she returned to work pursuant to a rehabilitation program in early 1995
she returned to substantially all her pre-accident nursing duties after undertaking the rehabilitation program
the Applicant sought a lump sum for her impaired back. After negotiations with the insurer the Applicant redeemed all her entitlements to workers compensation under the Act for $65,000
A release was signed by the Applicant to effect the redemption of compensation, at which time she was still working for the Respondent. The Applicant was actively working for the employer till the release was signed and a short period thereafter
shortly after signing the release the Respondent indicated to the Applicant she would possibly not be further employed; arranged for her to be medically examined and the terminated her employment on 27 November 1995
(10) the dismissal was harsh, unjust or unreasonable
The Court agrees with assertions (1), (2), (4), (5), (7), (8) and (9) and makes findings of fact in accordance with those assertions.
In respect to the third assertion, success of such an operation in such circumstances is a relative term. It has subjective and objective connotations.
In a subjective sense the Applicant claims she is fit to perform all her pre-accident duties as a State Enrolled Nurse and has been fit to perform all of those duties since prior to her termination and prior to her last full work day, which was 21 August 1995. In an objective sense it is more difficult to assess the success of a spinal fusion and, in any event, that is not a task that is necessary or relevant in the determination of the application before the Court.
The sixth assertion that the Applicant return to substantially all her pre-accident nursing duties after undertaking a rehabilitation program is contested by the Respondent on the basis of the evidence of Mesdames Faulkner, Sondermeyer and Cameron, which the Court accepts. The Court finds that the Applicant did not at any stage return to a number of her pre-accident duties.
THE RESPONDENT’S CASE
The Respondent denies the termination is unlawful and contends:
there were valid reasons for termination related to the Applicant's capacity to work
the Applicant, through injury, is not able to perform the full range of duties required by the Nurses (Tasmania Private Sector) Award, the Applicant’s job description, the applied terms of her employment and/or the functions necessarily performed by an enrolled nurse at the Respondent’s hospital
alternatively, the Applicant’s employment was terminated for reasons relevant to her conduct or performance in that she was not able to perform her duties and she was given a reasonable opportunity to respond to the Respondent’s concerns before the Respondent decided to terminate her employment
alternatively, employment was terminated for reasons related to the operational requirements of the Respondent's hospital, being that the Respondent was not able to further employ the Applicant on a range of reduced or light duties and nor was the Respondent able to offer the Applicant suitable or alternative employment within the Respondent's hospital
in all of the circumstances of the case the termination was not harsh, unjust or unreasonable
despite her willingness to work as an enrolled nurse, the Applicant is not physically able to perform all of the duties which are required of her in that position
This case turns on:
whether the Applicant has the capacity to perform all of her duties as a State Enrolled Nurse at and before the termination of her employment on Monday, 27 November 1995
the opportunity given to the Applicant to respond to the allegations of her alleged incapacity to perform those duties
the ability of the Respondent to continue to offer the Applicant suitable alternative employment by way of reduced duties, light duties or different duties
In many ways the Applicant has put her eggs in baskets (1) and (2) because, in the main, she steadfastly asserts - and I use the word advisedly - that she is and has been from August 1995, or earlier, fit and able and willing to perform all of the duties of a State Enrolled Nurse in the North-West Private Hospital in Burnie.
However, in assessing whether there was any harsh, unjust or unreasonable element in the termination of the Applicant's employment by the Respondent, it is appropriate to consider the third basket, the ability of the Respondent to continue to offer the Applicant suitable alternative employment by way of reduced duties, light duties or different duties.
In categorising such considerations as appropriate the Court does not suggest that a Respondent is required in terms of the Industrial Relations Act 1988 to continue indefinitely or, indeed, for any specific period or for any period at all, to offer an employee alternative employment once a Respondent has concluded that an employee is unable to perform the duties accorded to a particular position. However, any consideration or lack of consideration of alternative work is relevant to the fairness and justice of a termination which is based in whole or in part on the operational requirements of the Respondent.
Mr McElwaine in his final submission contended:
the termination was for a valid reason connected with the Applicant's capacity
the termination was not for reasons related to the Applicant's conduct or performance and S170DC was not applicable
if the termination for a valid reason connected with capacity was held to be a termination for reasons related to the Applicant's conduct or performance - and perhaps particularly for a reason related to both capacity and performance - the Respondent had complied with S170DC and had ensured the Applicant had ample opportunity to defend herself against allegations, be they allegations connected with capacity, allegations related to conduct or performance or allegations related to any combination of capacity, conduct or performance
the validity of a reason or reasons for termination under S170DE(1) and the possible invalidity of a termination as harsh, unjust or unreasonable under S170DE(2) must be assessed on the facts known to the employer at the time of termination or on facts which could, with reasonable diligence, have been ascertained by the employer at the time of termination
provided the employer's actions can be described as fair in all the circumstances the employer should be allowed some scope for genuine error
CONCLUSIONS
The Applicant contends that the Respondent has erred. The Applicant contends that the Applicant is fit to work as a State Enrolled Nurse and was fit to so work when terminated on 27 November. The Applicant contends that the general practitioner Dr McArthur is better equipped to assess the Applicant's fitness and capacity than Dr MacLaine-Cross and that the Applicant's reliance, in part, on the latter's view of 50 per cent impairment of back function in obtaining a lump sum workers compensation payment does not alter the fact that the Applicant can perform her nursing duties and has been so assessed by Dr McArthur. The Applicant also seems to contend that the Respondent has an obligation to provide her with modified or different duties even if her capacity is impaired for full nursing duties.
The Court notes that Dr McArthur's assessment of the Applicant's capacity is not unqualified and that he did not perform an assessment of impairment and was not asked to perform such an assessment. His opinion that the Applicant can perform a complete range or State enrolled nurse duties at the North-West Private Hospital is based on his observations and his assessment of the Applicant and on the opinion, whatever it might be, of the surgeon, Mr Robson, and his analysis of State enrolled nurse duties at the hospital based on his work as a referring doctor and as a patient.
The Court notes that Dr McArthur's opinion is based on caring for and lifting patients within what he calls “accepted guidelines”. At one stage in cross-examination Dr McArthur expressed the view that within such accepted guidelines it is unlikely that the Applicant would have to bend or twist in a way he would consider inadvisable. It is not necessary for the Court to resolve any conflict between the assessments of Dr Maclaine‑Cross and Dr McArthur, or the assessments of other medical practitioners such as Messrs Southby and Macintyre and Dr McArthur.
The Court has concluded that the Respondent was entitled to investigate and obliged to investigate the ability of the Applicant to perform her duties in a manner which ensured her own safety and that of patients. Once the Respondent had been informed that the workers compensation insurer was no longer responsible for any medical or other expenses in respect of any back injury of the Applicant, and once the Respondent became aware of medical reports suggesting, in the strongest terms, that the Applicant could not safely work as a nurse, the Respondent had to investigate the Applicant's fitness.
The Applicant was consulted. Her legal adviser was consulted. She consented to a further examination by a doctor of her choice; the doctor retained by her and relied on by her in the settlement of her workers compensation claim. The Respondent, too, relied on the assessment of that physician, Dr MacLaine-Cross. The Respondent relied on information obtained and known at the time of termination and was thorough and diligent in arranging medical investigation and in consulting the Applicant and her legal adviser.
FINDINGS
The Court finds the Respondent was fair and diligent in investigation in the terms described in Bi-Lo Pty Ltd v Hooper (1992) 53 IR 224 and Transport Workers Union of Australia v Tip Top Bakeries (1994) 75 WA Industrial Gazette 9, and Ball v Tip Top Bakeries IRCA (unreported) Wheeler JR 21 April 1995. If S170DC applies - and I think it does because the capacity issue was linked to performance - the Respondent complied.
The Applicant was given ample opportunity to respond to - and did respond to the assessment of Dr MacLaine-Cross. The termination, whether based on capacity, performance or conduct, was for valid reason. The termination was not harsh, unjust or unreasonable.
The Respondent did consider the possibility of other duties for the Applicant. The Respondent was not obliged to create other duties for the Applicant. Within the operational requirements of the hospital - and particularly having regard to team nursing and multi-skilled nursing - the Respondent could not provide other duties for the Applicant.
The court does not consider that the failure of Mr Swan to contact the Applicant for further discussion about a possible return to work amounted to procedural unfairness. The court accepts that Mr Swan gave that assurance on 3 November 1995 and also accepts that he had stated that any consideration by him of a return to work would be considered in the light of the medical recommendations.
Furthermore, an opportunity was extended to the Applicant and Mr Bartlett for further discussion, albeit after termination. If the failure to discuss a return to work again after 3 November was to be held to be procedurally unfair, the court would nevertheless in all the circumstances find the termination valid under S170DE(2) and would rely for that on the recent amendments to S170DE(2) and on the judgment of McHugh and Gummow JJ in Byrne and Frew v Australian Airlines (1995) 69 ALJR 827 and 828; (1995) 131 ALR 422 at 459 to 464.
The Applicant badly wants to continue as a State Enrolled Nurse at the North‑West Private Hospital. The resumption of some nursing role is very important to her, but the Respondent terminated her employment fairly and justly and for valid reason and the order of the court is that the application is dismissed.
MINUTES OF ORDERS
THE COURT ORDERS:
That the application is dismissed.
I certify that this and the preceding 13 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 20 May 1996
Solicitors for the Applicant: McLean, Phillips & Bartlett
Counsel for the Applicant: Mr Bartlett
Solicitors for the Respondent: Zeeman, Kable & Page
Counsel for the Respondent: Mr S B McElwaine
Date of hearing: 3 May 1996
Date of judgment: 3 May 1996
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