[2014] FWC 2873

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Electricity Retail Corporation T/A Synergy
v
Ms Shirley Menegola
(C2013/6828)

Electrical power industry
COMMISSIONER WILLIAMS	PERTH, 8 MAY 2014

Alleged dispute about any matters arising under the enterprise agreement and the NES.

[1] This decision deals with an application made under s.739 of the Fair Work Act 2009 (the Act) by the Electricity Retail Corporation T/A Synergy (the Applicant). The Respondent is Ms Shirley Menegola (the Respondent).

[2] The dispute is bought to the Commission via clause 25 - Dispute Resolution of the Synergy Enterprise Agreement 2012 1. The parties agree the Commission is empowered to arbitrate the dispute under the terms of that clause and I accept the Commission has jurisdiction to do so.

[3] The Applicant characterises the dispute as follows:

“a. Is the Applicant’s requirement for the Respondent to attend a medical assessment, for the purposes of managing the Respondent’s health and safety at work, reasonable in all of the circumstances?

b. Is the Applicant’s requirement for the Respondent to attend an examination by a Respiratory Specialist, and then for medical information relevant to her fitness for work to be released by the Respiratory Specialist to an Occupational Physician nominated by the Applicant, reasonable in all of the circumstances? ”2

[4] There originally was a further issue involving a period of annual leave which occurred whilst the Respondent was on special leave. The Respondent has advised this issue is no longer in dispute.

[5] The Respondent is represented by Australian Municipal, Administrative, Clerical and Services Union (ASU). The Respondent has been an employee of the Applicant since November 2010 in a full time capacity as a Customer Service Representative in the Applicant’s Call Centre.

[6] The Respondent suffers from asthma and made the Applicant aware of this when applying for the position of Customer Service Representative.

[7] During her employment the Respondent had issues with her asthma due to various triggers in the workplace such as the use of strong perfumes/colognes in the work area as well as the transmission of viral infections occurring in the workplace.

[8] In late 2011 the Respondent was called into a meeting with the Applicant to discuss her attendance at work and concerns regarding her “health issues”. Following these meetings and at the insistence of the Respondent, some changes were made to her work area such as relocation of workstations and changes to the solvents and cleaning materials in the work area.

[9] To try and alleviate the issues which were exacerbating her asthma the Respondent organised for the Asthma Foundation to attend the workplace and give a presentation and deliver training regarding the issues and triggers related to asthma in the workplace. Despite the presentation and training there were still ongoing issues with triggers in the workplace including employees continuing to wear perfume and due to a viral infection, most likely picked up in the workplace, the Respondent’s developed dysphonia (hoarseness or difficulty in speaking) which had a negative impact on her health and her asthma in particular. Any absence related to this illness was supported by medical certificates.

[10] The Respondent made the Applicant aware of the issues she was having with dysphonia and the impact on her asthma through her direct team leader and the WHS representative.

[11] In December 2012 and January 2013 there were meetings between the Respondent and the Applicant regarding ongoing issues with her asthma. The Respondent agreed to obtain further information from her treating physicians and requested that the Applicant provide any questions they wished for her treating doctors to address.

[12] The Respondent provided the Applicant with those reports from her treating doctors.

[13] On 30 July 2013, following further meetings with the Applicant, the Respondent was stood down on pay with a demand from the Applicant that she attend an Occupational Physician of their choosing.

[14] Following communication between the ASU and the Applicant, it was agreed that the Respondent would obtain any further information the Applicant felt necessary for them to have regarding the Respondent’s medical condition from her treating physician.

[15] On 11 September 2013 the Respondent provided the Applicant with further information from her treating physician.

[16] On receipt of this information and following a meeting on 20 September 2013 with the Applicant, the Respondent was allowed to return to work. It was agreed at this meeting that she would advise the Applicant via formal incident reports of any hazards or potential hazards which occurred in the workplace which could impact on her asthma.

[17] Following her return to work on 23 September 2013 there were a number issues which were reported to the Applicant via incident reports by the Respondent in regards to use of perfumes in her work area which triggered an asthmatic response in the Respondent.

[18] As a consequence of this and what the Respondent saw as inaction by the Applicant to address the identified hazard, on 11 October 2013 the ASU contacted the Applicant requesting a meeting to discuss the issue of perfumes in the work area and an alleged reluctance by the Supervisor to address the issue.

[19] A meeting was held on 15 October 2014 where the Respondent’s concerns regarding the use of perfume in the work area was explained.

[20] The Respondent put forward two possible solutions to remove or minimize the identified hazard. The ASU thus proposed the following:

a. That the Applicant instruct Call Centre employees not to wear perfumes/colognes to work as this was a hazard to at least one employee, or

b. Explore the option of the Respondent working from home.

[21] The Applicant’s response was to stand down the Respondent immediately on the understanding that they were going to investigate the practicalities of these proposals to remove or alleviate the known and identified hazard.

[22] On 6 November 2013 the Applicant’s legal representative wrote to the ASU in which they stated:

“a. In order to consider either of the further significant adjustments suggested by Ms Menegola, our client needs to fully understand Ms Menegola’s medical condition, the limitations placed on her as a result, and the adjustments that would need to be made to the particular workplace in order to accommodate her condition and allow her to perform her role safely. Only when our client has this information can it determine whether the adjustments are reasonable and practicable in all the circumstances.” 3

[23] The ASU responded to this letter on 14 November 2013 and reminded the Applicant that they already were aware of the Respondent’s medical condition and relevant information related to that condition. The Respondent again offered to take any further questions the Applicant felt necessary to have answered regarding her medical condition to her treating physician.

[24] Following this the Applicant made this application to the Commission. After two conferences the dispute remains unresolved.

Submissions

The Applicant’s submissions

[25] The Respondent has a significant record of absence from work in relation to her medical condition. In addition, she has lodged safety reports claiming the workplace is seriously affecting her health and safety.

[26] The Applicant is entitled to manage the Respondent’s difficulties with attending regularly for work. The Applicant is also required by safety laws to properly assess and (if practicable) control any risks to the Respondent’s health and safety at work.

[27] For both of these legitimate purposes, the Applicant requires clear guidance from a suitably qualified medical practitioner as to the Respondent’s medical condition, the actual risks to the Respondent’s health and safety arising from the workplace and any reasonable steps that may be taken by the Applicant to manage and control those risks.

[28] Given the circumstances surrounding the Respondent’s medical condition and the effect the condition has had on her ability to safely carry out her role, the Applicant submits the requirement for her to attend a medical assessment is both lawful and reasonable.

[29] An Occupational Physician is generally the preferred medical specialist to carry out an assessment of an employee’s fitness for work, as they are both experienced and qualified to make this assessment. In many cases it will be appropriate and necessary for the Occupational Physician to consult with the employee’s general practitioner and to seek advice from any relevant medical specialist. 4

[30] Whether a particular medical assessment is appropriate or necessary for the employee to have is ‘ultimately for a medical practitioner to determine’. 5

[31] The Applicant had been advised by Dr John Low, Occupational Physician, that he was the appropriate medical specialist to assess the Respondent’s fitness for work, but that he required input from a Respiratory Specialist in relation to the Respondent’s medical condition.

[32] The Applicant confirms Professor Musk, Respiratory Physician, has the appropriate medical specialty to assess the Respondent’s medical condition in order to assist Dr Low with assessing the Respondent’s fitness for work.

[33] The Respondent has been invited to identify what her objection is to attending an assessment with Professor Musk and then that information being shared with Dr Low. The Respondent has not identified any particular reason why she objects to this course of action.

[34] In these circumstances, the Applicant submits it is reasonable for the Respondent, as recommended by Dr Low, to attend a medical assessment with Professor Musk and for information from that assessment, which is relevant to the Respondent’s fitness for work, to be shared with Dr Low. The Applicant submits their direction for the Respondent to attend a medical assessment to determine her fitness for work is both lawful and reasonable.

[35] The Applicant further submits that the course of action recommended by Dr Low is entirely appropriate and reasonable in all of the circumstances, namely that the Respondent attend an assessment by Professor Musk and that the information arising from that assessment that is relevant to her fitness for work be shared with Dr Low.

[36] The Applicant submits it is reasonable for them to direct the Respondent to attend an appointment with a suitable medical practitioner determined on an objective basis.

[37] In response to the submissions made on behalf of the Respondent, the Applicant submits that it agrees that a threshold question when determining whether a medical practitioner is suitable is whether the medical practitioner has the appropriate expertise to conduct the assessment and provide the information sought.

[38] The Applicant submits that whether or not a medical practitioner is suitable will further depend on a number of additional factors including:

(a) Cost;

(b) Knowledge of, and familiarity with, the Applicant’s workplace and the requirements of the Respondent’s role;

(c) Availability; and

(d) Ability to write clear medical reports that give the Applicant adequate guidance as to an appropriate way forward. 6

[39] The Applicant submits that, as the person seeking the health and safety assessment for its workplace, they should be entitled to select a ‘suitable’ medical practitioner.

[40] Any evaluation by the Applicant of a medical practitioner’s ‘suitability’ to conduct an assessment should be carried out on an objective basis.

[41] Similarly, the Applicant submits that any objection by the Respondent to the suitability of Occupational Physician chosen by them should be objective, and should be founded on one of the reasons listed in paragraph 5 of the Applicant’s submissions in reply.

[42] The Respondent refers in her submissions to concerns about attending an appointment with an Occupational Physician ‘on retainer’ or in the ‘indirect employ’ of the Applicant and has given no other reason as to why she does not consider the occupational physicians identified by the Applicant are ‘suitable’.  7

[43] If the Respondent’s concern is that an Occupational Physician selected by the Applicant would be unable to provide an objective assessment, the Applicant submits there is no reasonable basis for this. In any event, if the Respondent disagrees with the chosen Occupational Physician’s assessment, and is entitled to seek a further medical opinion from an Occupational Physician of her choosing.

The Respondent’s submissions

[44] The Respondent does not dispute that the Applicant has strict statutory obligations to provide for the occupational health and safety of employees. What is in dispute is whether a directive to attend a medical practitioner of the employer’s choosing is reasonable in all the circumstances.

[45] The Respondent has already attended a number of medical examinations and provided the Applicant with appropriate medical information and has agreed to undergo a further assessment with an eminent Respiratory Physician, Professor Musk.

[46] The Respondent’s position has been that the current issue is one of an identified and known hazard namely the use of perfumes in the workplace. No further information could be obtained from doctors regarding this trigger. It was spelt out clearly in the letter of 9 September 2013 8 from Dr Maria Zangari that the Applicant should “request other employees not to use perfumes.” This was not acted upon by the Applicant despite subsequent incident reports identifying the continued hazard.

[47] Despite this fact, the Respondent has agreed to attend a consult with Professor Musk, and, if Professor Musk deems it necessary, an Occupational Physician as referred by the Respondent’s treating doctor. This is unacceptable to the Applicant.

[48] The Applicant’s submission states the Respondent has not identified any reason why Dr Low is not acceptable. However, the Applicant has not identified a legitimate reason as to why the Respondent should see an Occupational Physician of the Applicant’s choosing. The Applicant has been advised by the Respondent previously that on receipt of the report from Professor Musk if they still do not believe that they have sufficient information to deal with the already identified hazard, then the Respondent is prepared to attend an Occupational Physician, but one proposed by her treating physician. The Respondent believes she has a legitimate right to choose her own treating doctors.

[49] The Respondent states that there is no legitimate reason for the Applicant to insist that the Respondent attend a doctor of the Applicant’s choosing simply because that is their preferred position.

[50] The Applicant refers to various decisions which they seek to rely on to prove their case. For the most part the decisions they rely on have no bearing on this matter. They are in regards to where there is not sufficient information or where an employee has declined to cooperate with the employer. This is simply not the case in this matter. The Respondent has:

● attended medical assessments at the insistence of the Applicant on several occasions.

● provided the Applicant with any and all information requested by the Applicant in regards to the issue of her asthma.

● cooperated with the Applicant in regards to obtaining relevant information in regards to her medical condition.

[51] In any event, the Respondent relies on the recent case of the NSW Industrial Relations Commission Schoeman v Director-General, Department of Attorney-General and Justice 9 [Schoeman] as authority for the proposition that an employer cannot always insist on an employee attending a medical appointment.

[52] This matter is not about whether or not there is a right for the Applicant to seek the Respondent get medical advice or attend a medical assessment. This matter is simply about the Applicant seeking to force an employee, in this case the Respondent, to attend a physician of their choosing which is in their indirect employ.

[53] There is no legitimate reason for the Applicant to insist on the Respondent attending a doctor of their choosing

[54] The Respondent seeks that the Commissioner finds that the Applicant has no legal basis on which they can choose the assessing medical practitioner, in particular when the Respondent has agreed to attend a medical assessment and has previously attended medical assessments and supplied the Applicant with any information requested by them. 10

Consideration

[55] It is not controversial that the Applicant under the Occupational Safety and Health Act 1984 (WA) and the associated Regulations is obliged to, so far as is practicable, provide and maintain a safe workplace for its employees including the Respondent.

[56] This legislation also requires the Applicant to undertake risk assessments as necessary to identify hazards in the workplace which employees may be exposed to and then consider what can be done to reduce these risks. Certainly the Applicant is required to investigate any reported hazards and determine what action should be taken in the circumstances.

[57] Similarly this legislation imposes duties upon employees of the Applicant including the Respondent to comply with instructions given by the Applicant with regards to health and safety.

[58] I agree with the submissions of the Applicant that it is well settled in the case law that an employer has an implied contractual right to require an employee to provide sufficient medical information and where necessary to attend a medical examination so that the employer is able to then comply with the obligations imposed on it by Occupational Health and Safety legislation. On this point then I accept that the proposed directions of the Applicant that are in dispute in this matter are directions that would be lawful.

[59] The Respondent relies on the Schoeman case as authority for the proposition that an employer cannot always insist on an employee attending a medical appointment.

[60] In my view this proposition is not contrary to what the Applicant has put to the Commission are the applicable principles in this case. As Commissioner Newall in Schoeman said:

“ 127 The common law permits an employer to direct an employee to attend a medical assessment, provided that such a direction is reasonable: Thompson v IGT (Australia) Pty Ltd [2008] FCA 994; 173 IR 395; R v Darling Island Stevedoring and Lighterage Co Ltd; ex parte Halliday [1938] HCA 44; (1938) 60 CLR 601 at 621-22. Indeed, in his opening submission set out above, counsel for Ms Schoeman expressly submitted that the Director-General acted in conformity with the common law in directing Ms Schoeman to a medical assessment, drawing attention to the requirement for reasonableness in such a direction.

128 If the Regulation did not displace the common law, as in my view it demonstrated no intention to do and did not, then there can be little doubt that the Director-General had the power to direct an employee to attend a medical examination, provided that the direction is reasonable: Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22; (2005) 221 CLR 539. In part that power arises from the obligations an employer, here including the Crown, has pursuant to what is now the Work Health and Safety Act 2011: Thompson v IGT (Australia) Pty Ltd loc cit at 408-409.” 11.

[61] The Schoeman case recognises the lawfulness of a direction by an employer to an employee to attend a medical assessment provided that direction is reasonable.

[62] The Applicant’s approach in this matter then is not at odds with the Respondent’s in terms of the relevant principles. The Applicant correctly submits that an employer's right to require an employee to attend a medical examination must be exercised in a reasonable manner in the circumstances. To that extent the Respondent is correct that an employer cannot always insist on an employee attending a medical appointment.

[63] It is not in dispute here that the Respondent has been absent from work due to ill health and that she attributes her ill-health to triggers in the workplace. As a consequence the Applicant has made a number of changes within the workplace. However, these have not resolved the Respondent health problems. Subsequently she has formally reported to her employer hazards or potential hazards in the workplace which she claims are negatively impacting on her health. The Respondent has then specified changes in the workplace she proposes the Applicant should now take to remove these hazards, such as instructing other employees not to wear perfumes or colognes.

[64] There is no doubt the Applicant is entitled to seek information in the way of medical reports as to the Respondent’s condition. In addition given the circumstances of this case the Applicant is also entitled to seek guidance from an appropriate medical practitioner regarding the actual risks to the Respondent’s health arising from the particular workplace and what if any reasonable changes the Applicant can make to that workplace to manage those risks.

[65] The reasonableness of requiring an employee to specifically attend a medical practitioner who is an Occupational Physician was considered by the Commission recently in the case of Mr Darrin Grant v BHP Coal Pty Ltd. 12 Commissioner Spencer made these observations regarding the reasonableness of such a requirement in the circumstances of that matter:

“[117] The question then is, was it reasonable that the Respondent require the Applicant to specifically attend a specialist of their choosing, or could the Applicant insist that he be provided an opportunity to attend his medical specialist. In the circumstances of this matter, where the Respondent had a duty arising from their statutory obligations as Coal Mine Operators to ensure the health and safety of the Applicant, and anyone working with him, to ensure prior to the Applicant being returned into the mine operations, I am satisfied that the Respondent was reasonable in requiring the Applicant to attend upon Dr McCartney. The Respondent relied upon the opinion of Dr McCartney as he was specifically trained as an occupational physician, and possessed the knowledge of the Respondent’s operations. That is, his area of medical expertise being the interaction between medicine and the workplace. The Respondent maintained that he had knowledge of the mining industry. In contrast, the Applicant’s suggestion was that he visit his doctors, who were not (on the evidence before the Commission) specialised in this regard. Alternatively, the Applicant sought to be provided with a copy of his position description to provide to his medical advisors. Had the Applicant attended upon Dr McCartney and the resulting report not been favourable to the Applicant, it would then have become a matter, presumably, for the Applicant to seek his own second opinion. Had this occurred, and the Respondent refused that opportunity, this would have been a relevant consideration in an unfair dismissal application.” 13

[66] I agree with Commissioner Spencer that in some circumstances the opinion of a medical practitioner who is specifically trained as an Occupational Physician and who has knowledge of the employers operations will be preferred over opinions from other medical practitioners.

[67] In the present case the Applicant is attempting to resolve or manage the Respondent’s health problems which may be caused by or exacerbated by the workplace environment. Consequently the employer needs to have a full appreciation of both the Respondent’s medical condition and any consequential limitations this places upon her and what changes it would need to make in her workplace to potentially allow her to return to work safely. In these circumstances it is reasonable that the Applicant gain the opinion of an Occupational Physician, given the nature of this medical speciality, and self evidently it is preferable this be one who is familiar with the Applicant’s operations.

[68] The Applicant has taken advice from such an Occupational Physician who has recommended that the Respondent first be assessed by a Respiratory Physician and this assessment then be provided to and considered by the Occupational Physician. There is no suggestion that this advice from the Occupational Physician is inappropriate or unreasonable and I note in any event the Respondent has previously agreed to undergo an assessment by the particular Respiratory Physician suggested by the Occupational Physician.

[69] The Applicant is undertaking to bear the costs of the medical assessments and reports and seeks to nominate an Occupational Physician who is familiar with the workplace to assess the Respondent and report to the Applicant on the workplace issues. The Respondent objects to the nomination of the particular Occupational Physician by the Applicant submitting there is no legitimate reason for the Applicant insisting on an Occupational Physician of their choosing. Obviously however this argument can be made in reverse with there equally being no reason why the Respondent should have the right to nominate an Occupational Physician of her choosing.

[70] Choosing an Occupational Physician whom is familiar with the workplace will obviously be sensible and in the absence of evidence that impugns the capacity or impartiality of a nominated medical practitioner the Applicant who is bearing the cost of the medical assessment and report is entitled to nominate the particular Occupational Physician.

[71] My decision is that, the Applicant’s requirement for the Respondent to attend a medical assessment, for the purposes of managing the Respondent’s health and safety at work is reasonable and the Applicant’s requirement for her to attend an examination by a Respiratory Specialist, and then for medical information relevant to her fitness for work to be released by the Respiratory Specialist to an Occupational Physician nominated by the Applicant, is also reasonable.

COMMISSIONER

Appearances:

G. Upham appearing for the Applicant on behalf of the Australian Municipal, Administrative, Clerical and Services Union.

K. Reid appearing for the Respondent.

Hearing details:

2013

Perth:

December 12.

2014.

Perth:

February 13.

Final written submissions:

Applicant on 14 March 2014.