[2014] FWC 4928 [Note: Appeals pursuant to s.604 (C2014/5937 and C2014/6005) were lodged against this decision - refer to Full Bench decision dated 12 March 2015 [[2015] FWCFB 1523] for result of appeal.]


Fair Work Act 2009

s.394—Unfair dismissal

Guiseppina (Josie) Cartisano
Sportsmed SA Hospitals Pty Ltd



Application for relief from unfair dismissal - remedy - reinstatement - inherent requirements of the position - lost income.

[1] On 8 May 2014 I issued a decision 1 in which I determined that the termination of Ms Cartisano’s employment was harsh and unjust. In that decision I set out my reasons for concluding that, in the particular circumstances at issue, there was no valid reason for that termination of employment, that it was implemented without advance warning, and in a manner which deprived Ms Cartisano of the capacity to fairly challenge it.

[2] In that decision I addressed the issue of remedy in the following terms:

[3] The issue of remedy was considered in a further determinative conference convened on 17 July 2014. Ms Cartisano continued to be represented by Mr Radbone, of counsel and Sportsmed SA Hospitals Pty Ltd (Sportsmed) by Ms Victory, of counsel.

[4] The position adopted by Ms Cartisano at this conference was that she sought reinstatement with payment of lost income from 18 November 2013. The Sportsmed position was that reinstatement was neither possible on medical grounds, nor appropriate and that, given Ms Cartisano’s medical condition, no amount of compensation in lieu of reinstatement was appropriate.

[5] Whilst I have taken into account all of the material before me in considering the issue of remedy, I have summarised the particularly significant evidence in the following terms.

[6] Ms Cartisano suffered a non-work-related motor vehicle injury in September 2012. She returned to work with restrictions until May 2013. She has not worked since that time. In August 2013 she had an arthroscopy. The termination of her employment took effect on 7 November 2013. At the time of the termination of her employment Ms Cartisano was the Manager of the Sportsmed Central Sterilisation Supplier Department (CSSD).

[7] Ms Cartisano was assessed by Dr Jezukaitis, an Occupational Physician on 25 June 2014. His assessment was that Ms Cartisano was fit to perform duties that are essentially sedentary and/or light in nature. He considered that no medical restriction was required with respect to office work or to activities that are sedentary or light, recommended a restriction of 10 kg for repetitive work and particularly tasks that are performed above mid-chest height, below mid-thigh height, or at an extended reach. Dr Jezukaitis continued:

[8] Additionally, I have been provided with two medical certificates 3 made out by Ms Cartisano’s general practitioner, Dr Lin. The first, dated 25 November 2013 advises that Ms Cartisano had a medical condition and would be fit for light duties from 18 November 2013. The second, dated 4 June 2014, states:

[9] Ms Cartisano’s lawyer has attempted, without success, to obtain a more detailed updated report into Ms Cartisano’s medical condition from Dr Lin.

[10] Ms Cartisano’s evidence relative to the issue of remedy was consistent with her earlier evidence. Her position was that her duties involved the allocation of work with minimal manual handling requirements. She stated:

[11] Ms Cartisano also addressed manual handling issues associated with her work in the following terms:

[12] Ms Cartisano provided copies of her timesheets indicating occasions when she had to work overtime as a consequence of staff absences. While I have noted this material, I am not satisfied that these timesheets explain the inherent requirement of her job.

[13] Ms Hill is the Sportsmed Human Resources Manager. Her evidence relative to the remedy issue was also consistent with her earlier evidence. Ms Hill disagreed with Ms Cartisano’s assessment of her role and asserted that the position of Manager CSSD required a person who is physically and mentally fit to carry out all of the functions of the role in a safe manner. 7 Ms Hill’s evidence was that:

[14] Ms Hill asserted that the medical certificates issued by Dr Lin and Dr Jezukaitis’ assessments identified limitations on Ms Cartisano’s fitness for work which meant that she was not fit to perform the role she was employed to undertake.

[15] Ms Hill’s evidence continued 9 to disagree with various of Ms Cartisano’s assertions about manual handling elements of the Manager CSSD role.

Findings - Reinstatement

[16] Section 390 states:

[17] The initial issue requiring determination is whether I am satisfied that Ms Cartisano’s reinstatement is appropriate in these circumstances.

[18] Before setting out the approach I have applied in this respect I note that in my decision of 8 May 2014 I considered whether there was a valid reason for the termination of her employment on the approach applied in J Boag & Sons Brewing Pty Ltd v Button (Boag). 10 I concluded that, Sportsmed’s failure to put Ms Cartisano on notice that it was reviewing her employment and to provide her with the medical report which it then relied upon, impacted on my conclusion that there was no valid reason for the termination of her employment.11 In Boag the Full Bench reviewed an employment termination which followed a medical assessment that an employee could not continue to safely perform his duties.12 The Full Bench determined that:

[19] The Full Bench then considered various authorities with respect to the notion of inherent requirements of a particular employment. It stated:

[20] I consider that those concepts are also relevant to the question of whether reinstatement is appropriate.

[21] This notion of inherent requirements was reviewed in the context of reinstatement, by a Full Bench in Ambulance Victoria v Ms V13 In that matter the Full Bench dealt with an appeal made, in part, against a decision that there was no valid reason for the termination of Ms V’s employment. The Full Bench then considered the question of reinstatement in the following terms:

[22] In Smith v Moore Paragon Australia Ltd 14 a Full Bench considered the issue of employee incapacity with respect to reinstatement in the following terms:

[23] A further Full Bench decision is informative in this respect. In Jetstar Airways Pty Limited v Neeteson-Lemkes 16 a Full Bench stated:

[24] Finally, in the High Court decision in Blackadder v Ramsey Butchering Services Pty Ltd 18 (Blackadder) McHugh J stated:

[25] Kirby J concurred with this approach. He stated:

[26] These authorities establish the approach to be applied in considering whether Ms Cartisano should be reinstated. In considering Ms Cartisano’s circumstances I have considered whether she is medically fit to undertake the inherent requirements of her position as Manager CSSD as this appears to be the only relevant impediment to reinstatement in this situation. No argument has been put to me to the effect that there are other comparable positions on terms and conditions no less favourable to those which applied to Ms Cartisano pursuant to s.391(1)(b).

[27] There is no dispute that Ms Cartisano is able to undertake the clerical and sedentary managerial aspects of the job. At issue is the extent and the nature of manual handling work asserted to be an inherent requirement of the position.

[28] The Sportsmed CSSD Manager Position Description 19 requires that, in addition to leadership and management functions, the Manager will "actively participate in the processing of sterilisation of surgical instruments and equipment". This participation is further articulated in technical responsibilities and measures.

[29] Ms Cartisano’s explanation of the manual handling functions associated with her work function deals with manual handling issues in the following manner. She asserts that trolleys are used to store and transport instruments. 20 She asserts that no items are stored above chest height, unless they are of minimal weight.21 In terms of equipment, she asserts that operating equipment is mainly light and that equipment trays are generally between 5-9 kilograms,22 and that normal CSSD duties would only require that about three items over 8 kg be lifted each hour.23 Further, she asserts that staffing numbers allocated to manual handling tasks took into account workload issues.24 Ms Cartisano asserts that she went into the CSSD area 5-10 times each day to check on functions and to train staff. She stated:

[30] Ms Cartisano asserts that when she stopped doing lifting in excess of 10 kg in February 2013, after her accident, Sportsmed made no adverse comment. Her position was:

[31] In her evidence in the initial proceedings, Ms Smith, the Perioperative Manager of Sportsmed to whom Ms Cartisano directly reported, gave evidence that:

[32] That evidence did not extensively detail the manual handling characteristics of the Manager CSSD position.

[33] Ms Hill’s evidence was that Ms Cartisano omitted to refer to the need to handle multiple boxes containing total joint kits, 28 the Wash Area was a high risk area involving "sharps and bloods".29 Ms Hill asserted that Ms Cartisano had failed to properly identify the need to unpack trays and that her assessment of the tray weights was not factually based.30 Ms Hill’s evidence was that all staff needed to be able to undertake the full range of duties.31 Further, that given that almost 50% of the CSSD employees were casual employees, training and covering for absences was a substantial requirement of the role and that staffing levels did not otherwise cover expected vacancies.32 In terms of the time when Ms Cartisano worked after her accident, Ms Hill asserts that Sportsmed had actively assisted her to undertake the essential elements of her role.

[34] The conflict in the evidence of Ms Cartisano and Ms Hill is substantial. I have taken into account that Ms Cartisano has the benefit of daily completion of these tasks, but I have also concluded that her views are emotionally and somewhat subjectively expressed. I have also taken into account that Sportsmed had the capacity to provide evidence, relative to reinstatement, from persons who had direct knowledge and experience of the detail of the position of Manager CSSD, but instead, chose to rely on Ms Hill’s somewhat more remote evidence.

[35] I have concluded that the requirement for relief work is an essential requirement of the Manager’s position. Further, that this is likely to occur with some frequency. While lifting of weights in excess of 10 kg is an element of the position, I am not satisfied that the evidence establishes this is frequent or something that can only be done by the Manager herself. I am not satisfied that extended working days represents an inherent requirement of Ms Cartisano’s position. I am satisfied that the Manager CSSD position requires work in areas which represent employee safety risks in terms of heat, weight, infection and sharp instruments, but the medical evidence does not preclude Ms Cartisano from working in those areas.

[36] Hence, on the approach applied in Smith v Moore Paragon Australia Ltd and Ambulance Victoria v Ms V, the evidence does not represent an impediment to Ms Cartisano’s reinstatement. Notwithstanding this, I have considered a number of other issues. Firstly, as Dr Jezukaitis notes, there was no functional job analysis available to him. Had such an analysis been available, I have concluded that it was possible that he may have arrived at a different conclusion. In this respect, there is nothing to indicate that Sportsmed requested that account be taken of nominated inherent requirements of the job or that it provided input to Dr Jezukaitis in this respect.

[37] Secondly, I have concluded that Sportsmed is entitled, and is in fact required, to make an assessment of the risks associated with Ms Cartisano undertaking her work as Manager of the CSSD. That assessment must necessarily be informed by an appropriately based opinion of her health.

[38] Thirdly, as I have noted, the evidence before me provides no indication that alternative positions consistent with s 391(1)(b) are available.

[39] I do not consider that the undisputed advice that another person has been appointed to that Manager CSSD position is determinative of the reinstatement issue. Additionally, I note that the parties are in dispute over two weeks pay received by Ms Cartisano. I do not consider that to be relevant to the reinstatement issue.

[40] I have concluded that, on the evidence before me, Ms Cartisano should be reinstated to the Manager CSSD position. Any actual return to work may be subject to a risk assessment conducted by Sportsmed. To the extent that this assessment confirms Sportsmed’s stated concerns about Ms Cartisano’s capacity to safely undertake the inherent requirement of her position, I acknowledge that she may not actually return to work. In this respect it is clear that the position adopted by the High Court in Blackadder may be distinguished if medical evidence identifies critical or substantial inherent requirements of the job which Ms Cartisano is unable to safely undertake.

[41] Section 391(2) provides the capacity for the Fair Work Commission to make an order for continuity of Ms Cartisano’s employment. I consider such an order to be appropriate in these circumstances in that it is consistent with the findings in my 8 May 2014 decision.

[42] Section 391(3) establishes the discretion for an order to restore lost pay if the Fair Work Commission considers that appropriate. Again, consistent with my decision of 8 May 2014, I consider such an order to be appropriate. The date from which any such order should apply is a significant issue given the evidence before me.

[43] Ms Cartisano was not medically cleared to return to work at the time of the termination of her employment. I am not satisfied that Dr Lin’s certificate 33 of 25 November 2013 establishes that she was able to undertake her Manager CSSD duties as at 18 November 2013. Not only was that certificate backdated, but it so lacks particularity in the circumstances of this matter, that I am unable to conclude that 18 November 2013 should be applied as the date for commencement of lost income.

[44] Dr Lin’s certificate of 4 June 2014 34 and Dr Jezukaitis’ assessment of 4 July 2014 are consistent with respect to Ms Cartisano’s capacity to substantially undertake duties. Accordingly, I have adopted the position that payments to Ms Cartisano for income lost since 4 June 2014, should apply.


[45] For the reasons set out above, I have concluded that Ms Cartisano should be reinstated to the position of Manager CSSD. I acknowledge that medical advice specific to the job has the capacity to impact on the implementation of the order I will make in this respect. I consider that continuity of Ms Cartisano’s employment should be maintained and that income lost since 4 June 2014 should be restored. An Order (PR553423) giving effect to this decision will be issued.



J Radbone counsel for the applicant.

C Victory counsel for the respondent.

Hearing details (Determinative Conference):



July 17.

 1   [2014] FWC 3005

 2   Exhibit C10, page 6, second para

 3   Exhibit C11

 4   Exhibit C10

 5   Exhibit C6, paras 31 and 32

 6   Exhibit C6, paras 35, 36 and 37

 7   Exhibit S5, para 4

 8   Exhibit S5, para 5

 9   Exhibit S6

 10   [2010] FWAFB 4022

 11   [2014] FWC 3005, para 67

 12   Boag, para 15

 13   [2012] FWAFB 1616

 14   PR942856

 15   PR942856, paras 51 and 54

 16   [2013] FWCFB 9075

 17   [2013] FWCFB 9075, para [78], second sentence

 18   [2005] HCA 22

 19   Exhibit S2

 20   Exhibit C6, paras 11, 12, 15, 16 and 18

 21   Exhibit C6, para 19

 22   Exhibit C6, paras 20 and 21

 23   Exhibit C6, para 23

 24   Exhibit C6, para 25

 25   Exhibit C6, paras 31, 32, 33, 34, 35 and 36

 26   Exhibit C6, paras 43 and 44

 27   Exhibit S3, para 3

 28   Exhibit S6, para 2

 29   Exhibit S6, para 4

 30   Exhibit S6, paras 5 and 6

 31   Exhibit S6, paras 7 and 9

 32   Exhibit S6, paras 10, 11 and 12

 33   Exhibit C11

 34   Exhibit C11

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<Price code C, PR553413>