[2015] FWCFB 1523


Fair Work Act 2009

s.604 - Appeal of decisions

Giuseppina (Josie) Cartisano
Sportsmed SA Hospitals Pty Ltd
Sportsmed SA Hospitals Pty Ltd
Giuseppina (Josie) Cartisano



Appeal against decision [2014] FWC 4928 of Senior Deputy President O'Callaghan at Adelaide on 29 July 2014 in matter number U2013/16124.


[1] Ms Giuseppina Cartisano has appealed against a decision issued by Senior Deputy President O’Callaghan on 29 July 2014 1 (Decision) and an accompanying order of the same date2 (Order). The Decision and the Order were made in respect of Ms Cartisano’s application under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy against Sportsmed SA Hospitals Pty Ltd (Sportsmed). Ms Cartisano was successful in obtaining an order for her reinstatement together with payment of lost remuneration and the maintenance of continuity of employment, but contends that the Senior Deputy President erred, and exceeded his jurisdiction, by attaching to the order of reinstatement an impermissible condition. That part of the Order which concerned Ms Cartisano’s reinstatement provided that Sportsmed “reinstate Ms Guiseppina (Josie) Cartisano [sic] to the position she held immediately before the termination of her employment, subject to a risk assessment to be conducted by Sportsmed” (underlining added). The underlined condition is the subject of Ms Cartisano’s appeal.

[2] Sportsmed has also lodged a notice of cross-appeal against the Decision and Order. Paragraph 1.2 of Sportsmed’s notice of appeal states:

[3] The notice of cross-appeal does not elsewhere allege any appellable error in the Decision or Order. The Commission’s appeal powers under s.607(3) of the Act are only exercisable if there has been error on the part of the primary decision-maker. 3 We do not consider that Sportsmed’s notice of cross-appeal, in substance, constitutes an appeal at all, but is more in the nature of a submission as to what course we should take if we determine to grant Ms Cartisano permission to appeal, uphold her appeal, and then proceed to re-hear the matter. Accordingly we will formally refuse Sportsmed permission to appeal, but we will take into account the matters raised in its notice of cross-appeal in relation to any re-hearing of the matter. That leaves only Ms Cartisano’s appeal to be considered.

Factual background

[4] Ms Cartisano was dismissed from her position as Manager, Central Sterile Supply Department (CSSD) with Sportsmed effective from 7 November 2013. The dismissal was effected on medical incapacity grounds arising from a shoulder injury which Ms Cartisano had suffered in a motor vehicle accident in September 2012 and which was subsequently the subject of surgery. In a first decision issued on 8 May 2014 4, the Senior Deputy President found that there was not a valid reason for Ms Cartisano’s dismissal and that her dismissal was harsh and unjust, and then deferred making a decision as to the appropriate remedy to be granted to Ms Cartisano until there was further medical evidence forthcoming concerning Ms Cartisano’s capacity to perform her duties if reinstated.

[5] The Decision was issued after a further determinative conference about the matter on 17 July 2014. In the Decision, the Senior Deputy President set out the medical evidence concerning Ms Cartisano’s shoulder condition as follows:

[6] The Senior Deputy President then set out the evidence concerning the extent to which Ms Cartisano was required to perform manual handling duties in her role that might be affected by her shoulder injury:

[7] After referring to some case authorities concerning the “inherent requirements” of a particular employment and the issue of physical incapacity in connection with the grant of the remedy of reinstatement, the Senior Deputy President identified the issue before him in the following way:

[8] The Senior Deputy President then referred in some detail to the competing evidence of Ms Cartisano and Ms Hill concerning the manual handling aspects of the role, and then made the following findings:

[9] After concluding that he should make orders for maintenance of continuity under s.391(2) and for restoration of lost pay under s.391(3), the Senior Deputy President stated the following conclusion:

Events since the Decision

[10] At the hearing of the appeal, the parties each adduced evidence (comprising an affidavit sworn by Ms Cartisano on 29 September 2014 and an affidavit sworn by Claire Marie Victory on 29 September 2014) concerning events which had occurred since the Decision and Order were issued on 29 July 2014. That evidence demonstrated that on or about 14 August 2014, Sportsmed paid Ms Cartisano the back-pay owing to her under the Order. However, Sportsmed did not permit Ms Cartisano to return to work. Instead, in an email sent on 5 August 2014, Sportsmed informed Ms Cartisano that it would be “undertaking a risk assessment as directed by O’Callaghan SDP”. It directed her to participate in the assessment, which would be conducted by Dr Geoffrey Graham, an occupational physician, and to attend the workplace for that purpose the following day.

[11] Ms Cartisano attended the workplace in accordance with this direction. According to her evidence, there was then a discussion between Ms Cartisano and Dr Graham about various aspects of her position. This included a private discussion in which Dr Graham inquired, among other things, as to Ms Cartisano’s feelings about returning to work and how she would get on with other staff. After this, Dr Graham, Ms Cartisano and some other staff conducted a “walk-through” of the CSSD. In the course of this, Dr Graham raised the issue of Ms Cartisano’s ability to lift and place items on shelves above shoulder height. Ms Cartisano said in her affidavit that she pointed out to Dr Graham that Sportsmed had acquired a set of mobile steps in order to remove any need for items stored at heights to be lifted overhead.

[12] Dr Graham subsequently prepared a report dated 8 August 2014. In his report, Dr Graham identified the materials which he had available to him at the time that he prepared his report, including medical reports and certificates from Dr Lin, Dr Jezukaitis and Dr Sales, part of Ms Cartisano’s evidence before the Senior Deputy President, and a copy of the Decision. He described her current treatment and current status, and concluded based upon his examination of her as follows:

[13] Dr Graham went on in his report to describe his workplace visit, and in doing so said that he had been informed that:

[14] Dr Graham also recorded that he had questioned Ms Cartisano concerning her relationship with management and co-workers, and that she had said that “She did not feel that there was any breakdown in the relationship with management”. However he said that he “understood that management was of the opinion that Ms Cartisano had not been totally honest in a number of statements made”, which led him to assume that “this left them with some doubts in relation to her commitment to the organisation”. He concluded by recording the following “Opinion”:

[15] Ms Cartisano said in her affidavit that Dr Graham had in his report misdescribed what she had told him about her symptoms, and that in relation to reaching for items above head height, Dr Graham “did not include in his report my undisputed advice at the assessment that for occupational health and safety reasons, Sportsmed had supplied a set of four steps on wheels, and that staff were directed to use the steps loading items on higher shelves”. She also said, contrary to Dr Graham’s final conclusion, that during her employment she had “an extremely good and cordial relationship with the staff working with me”, that she had kept in touch with members of her team since her dismissal, and that during the proceedings before the Senior Deputy President “there was never any allegation of ill will by me towards Sportsmed”.

[16] On 12 August 2014 the solicitors for Sportsmed sent an email to the Associate to the Senior Deputy President which advised that a risk assessment had been carried out and requested, given the result of that risk assessment, for the proceedings to be called back on. In a reply sent the same day, the Associate to the Senior Deputy President gave the following advice:

[17] On 13 August 2014, on advice from her solicitors, Ms Cartisano attempted to give effect to her reinstatement by attending for work. She was advised that she would not be permitted to return to work because there was no medical clearance for her. On 14 August 2014 Sportsmed sent Ms Cartisano a letter in which it confirmed that she had been reinstated in accordance with the Order, that she would be paid her wages for the period 4 June 2014 to 13 August 2014, and that her continuity of service was maintained for the period 24 October 2013 to 13 August 2014. The letter went on to state that on the basis of Dr Graham’s report, which was enclosed, Sportsmed did not believe Ms Cartisano could fulfil her contract of her employment. Her wages were to be paid for the next two weeks but she was not to attend the workplace during that time, and she was extended the opportunity during that period to consider Dr Graham’s report and provide any written submissions about it.

[18] On 29 August 2014 Sportsmed sent Ms Cartisano a letter in which it noted that she had provided no submissions in response to Dr Graham’s report, and offered her a further seven days in which to do so, which would be treated as unpaid sick leave. The letter concluded by stating:

[19] At the time of the hearing of the appeal, the matter had progressed no further. Ms Cartisano had not returned to work, and was being treated by Sportsmed as being on unpaid leave.

[20] Arising out of argument presented by the parties at the hearing of the appeal on 11 December 2014, we determined that we should issue an order pursuant to s.590(2)(c) of the Act requiring Ms Cartisano to produce “Any medical report or medical certificate relating to the appellant’s shoulder condition created or produced on or after 29 July 2014 and provided to the appellant or her solicitor”. That order was issued on 19 December 2014. In response to that order, Ms Cartisano produced a report prepared by Mr Keith Elsner, a Consultant Orthopaedic Surgeon, at the request of Allianz Australia Insurance Limited and dated on 23 September 2014. That report was prepared on the basis of an assessment conducted by Mr Elsner on 19 September 2014.

[21] In his report, Mr Elsner reviewed the history of Ms Cartisano’s injury and subsequent treatment, and then described her current status in relation to her right shoulder, neck and upper extremities. In relation to her right shoulder, Mr Elsner said:

[22] Mr Elsner described her “Current Work Status” and “Present Activities” in the following terms:

[23] Under the heading “Present Treatment”, the report referred to Ms Cartisano’s current medication as follows:

[24] Mr Elsner’s report concluded with him addressing a number of specific issues as requested by Allianz. In relation to the request “Please provide your finding on clinical examination, the conditions diagnosed and your opinion as to which conditions were clearly attributable to the accident”, Mr Elsner said:

[25] Mr Elsner was requested to “Please list details of the nature and effectiveness of treatment so far provided and whether further treatment is required. If yes, outline the treatment required”. He responded:

[26] In response to the question “What has been the effect of injuries on the claimant’s perceived capacity to undertake activities of daily living and what is your view of their capacity?”, Mr Elsner said:

Ms Cartisano’s appeal - submissions

[27] Ms Cartisano submitted that her appeal raised a question of law which was both novel and had general application, namely whether there was power under Pt 3-2 of the Act to make a reinstatement order which was subject to a proviso, term or condition, and on that basis the grant of permission to appeal would be in the public interest.

[28] In the Decision, Ms Cartisano submitted, the Senior Deputy President made findings which effectively amounted to a conclusion that she was able to perform her pre-dismissal work, thus justifying the making of a reinstatement order. However the Order, which was expressed to be “subject to a risk assessment to be conducted by Sportsmed”, was not permitted by the Act. Division 4, “Remedies”, of Pt 3-2 only provides for two remedies, reinstatement and compensation. The legislative scheme confirms the primacy of reinstatement as the appropriate remedy, and s.391 provides that an order for reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person. The use of the obligatory word “must” means that there is no power to make an order other than in accordance with s.391 of the Act. The condition attached to the Order made by the Senior Deputy President effectively abdicated the power of the Commission to the employer and its medical advisors, and rendered illusory and theoretical the reinstatement of Ms Cartisano contrary to the High Court decision in Blackadder v Ramsey Butchering Services Pty Ltd. 5 It was not therefore permitted by s.391, and was additionally uncertain, ambiguous, vague and illusory.

[29] Sportsmed submitted that the condition attached to the Order was consistent with s.391, and built into the Order the obvious statement that if Ms Cartisano was unfit to perform the job, then it cannot be compelled to create an unsafe workplace for her and others. Section 391 is to be construed in a way which ensures the Commission has some flexibility in the orders that it makes, so that it can impart justice fairly and in a way which accommodates competing considerations such as those arising from health and safety laws. The use of “must” is concerned with ensuring that a person is reappointed to the person’s former position or another position no less favourable – that is, to ensure that the employee is not appointed to a lesser position. It does not otherwise limit the type of order that may be made. The Full Bench decision in Ambulance Victoria v V 6 confirmed that a reinstatement order could be the subject of a further risk or clinical assessment by the employer, that it could result in the employee not being placed back into employment if the employee was unable to safely perform the role, and that the final decision as to whether the employee ought to return to work was vested in and left to the discretion of the employer.

Ms Cartisano’s appeal - consideration

[30] Ms Cartisano’s appeal raises an important question of interpretation of s.391(1) of the Act which has not, at least in direct terms, been the subject of Full Bench consideration before and which has general application. For that reason, and consistent with the principles stated in GlaxoSmithKline Australia Pty Ltd v Colin Makin 7, we consider that the grant of permission to appeal would be in the public interest. Therefore we grant permission to appeal.

[31] Part 3-2 of the Act provides for two categories of remedy in respect of a dismissal which has been found to be harsh, unjust or unreasonable: reinstatement, and compensation. Two provisions in Part 3-2 make it clear that there is a hierarchy of remedies in which reinstatement has primacy over compensation. The first is s.381(1), which sets out the object of Pt 3-2. Insofar as it deals with the question of remedy, s.381(1) provides as follows (underlining added):

[32] Section 390, which concerns the circumstances in which the Commission may grant any remedy in respect of an unfair dismissal, provides:

[33] It can be seen that s.390(3) does not permit the Commission to give consideration to the remedy of compensation in relation to a dismissal which has been found to have been unfair unless and until it has found that the grant of the remedy of reinstatement to the person unfairly dismissed is inappropriate. As a result, reinstatement must be given first consideration as a remedy for any unfair dismissal. 8

[34] Section 391(1) prescribes the type of reinstatement orders which may be made by the Commission:

[35] Section 391(1) uses the word “must” in describing the types of reinstatement orders which may be made. As a matter of ordinary language, the use of “must” - which is synonymous with “shall” - in s.391(1) means that the Commission, if it determines that it is appropriate to grant the remedy of reinstatement, is obliged to make an order of the type in either paragraph (a) or (b). This is subject to one condition which is not presently relevant, namely that where the unfairly dismissed employee’s former position is now a position with an associated entity of the employer, then s.391(1A) authorises orders of the type identified in paragraphs (a) and (b) of s.391(1) to be made against that associated entity.

[36] In Blackadder v Ramsey Butchering Services Pty Ltd 9 the High Court gave consideration to the nature of the power to make a reinstatement order under the then s.170CH(3) of the Workplace Relations Act 1996, which provided:

[37] The context in which this consideration arose was that an employer, in response to a reinstatement order made by the Australian Industrial Relations Commission, paid the reinstated employee the remuneration payable to him under his contract of employment but did not restore him to the workplace or give him any work to do. The employee sought to enforce the reinstatement order on the basis that an actual return to work was required. McHugh J described the nature of the reinstatement power in s 170CH(3) in the following terms:

[38] Similarly, Kirby J said that reinstatement under s.170CH(3) “was meant to be real and practical, not illusory and theoretical” 10 and went on to say:

[39] Hayne J characterised the nature of the reinstatement power in similar terms, and of relevance to this appeal, described the course to be taken where it was not practicable for the unfairly dismissed employee to be provided with his or her former work under a reinstatement order:

[40] In their joint judgment, Callinan and Heydon JJ said:

[41] Having regard to the similarity between the former s.170CH(3) of the Workplace Relations Act 1996 and s.391(1) of the Act, but noting the change from the use of the discretionary “may” to the obligatory “must”, we consider that Blackadder dictates an interpretation of s.391(1) under which any reinstatement order made under the subsection must be one which effects a real and practical return to work and the performance of work duties. In the case of an order made under s.391(1)(a), the order must be one which achieves an actual return to work in the employee’s pre-dismissal position; in the case of an order made under s.391(1)(b), the order must achieve an actual return to work in the alternative position identified in the order. There is no power to make any other type of reinstatement order.

[42] The attachment to a purported reinstatement order of a condition, term or proviso which has the effect that the order does not achieve, or does not necessarily achieve, the actual reinstatement of the employee in the sense discussed in Blackadder, is not authorised by s.391(1). It is not a reinstatement order of the type either in paragraph (a) or (b).

[43] The Full Bench decision in Ambulance Victoria v V 13, relied upon by Sportsmed, does not stand for any contrary proposition. The reinstatement order affirmed by the Full Bench in that case was one that was unconditional in nature. The first instance decision under appeal contained an observation to the effect that the reinstatement of the relevant employee would be “subject to her satisfactorily undertaking any gap analysis, training and supervision”14, but this was not stated as a condition of the reinstatement order. The Full Bench characterised this observation as referring to “the usual processes applied by the appellant to the return to work of an employee returning from a long-term absence from work, which are normal incidents of the position”, but did not regard it as altering the effect of the reinstatement order, which it described as follows15:

[44] We consider that the Order the subject of Ms Cartisano’s appeal was not an order authorised by s.391(1). The condition in the Order that it was “subject to a risk assessment to be conducted by Sportsmed” contemplated, in express terms, that compliance with the Order did not necessarily require Ms Cartisano to be actually returned to the workplace to perform the duties of her former position. The words “subject to” clearly conditioned the requirement to reinstate Ms Cartisano upon a satisfactory outcome of the risk assessment referred to. That this was the result intended by the Senior Deputy President is made clear in paragraph [40] of the Decision, in which he stated that “I acknowledge that she may not actually return to work”. And, as Ms Cartisano’s 29 September 2014 affidavit makes clear, compliance with the Order has not resulted in Ms Cartisano actually returning to work in her former position. The Order was therefore not one which reinstated Ms Cartisano and was beyond power.

[45] To be clear, what has earlier been said does not mean that a reinstatement order may not contain ancillary provisions additional to the bare statement of the requirement that the employee be reinstated to the identified position. A statutory conferral of power is, subject to any contrary express provision, taken to carry with it powers that are necessary for, incidental to or consequential upon the exercise of the power granted. 16 A reinstatement order made under s.391(1) may therefore contain ancillary provisions intended to ensure that the order is made effective. For example, a reinstatement order will usually identify a date by which the order is to be complied with; and other necessary ancillary provisions may be included provided that the order is one which retains the essential character of effecting the reinstatement of the subject employee.

[46] Sportsmed has rightly identified that the capacity of the relevant employee to perform the duties of his or her former position or any alternative position that is no less favourable, and associated questions of health and safety, will be critical issues for consideration in any determination to exercise the power available under s.391(1). However, these are not issues which the Commission is empowered to deal with by making an order under which the reinstatement of the employee is conditional upon a medical, risk or health and safety assessment to be made by a third person after the order has been issued. It is ultimately the Commission’s task to make any required assessment of that nature, assisted by the evidence which the parties place before the Commission and such further evidence as the Commission may require to be produced. If the Commission cannot be satisfied that the relevant employee is fit to perform the inherent duties of his or her former position, or those of an alternative position that is no less favourable, then the proper course will be to find that reinstatement is not the appropriate remedy and to turn to the alternative remedy of compensation.

[47] We will uphold the appeal and set aside the Decision and the Order.

Re-hearing as to remedy

[48] In light of the conclusion we have reached, it is necessary for the question of what, if any, remedy is to be granted to Ms Cartisano in relation to her unfair dismissal to be re-determined (noting that Sportsmed’s appeal did not challenge the Senior Deputy President’s finding that Ms Cartisano’s dismissal was unfair). However, the parties were at odds as to how this should be done. Ms Cartisano submitted that this Full Bench should proceed to re-determine this aspect of the matter itself on the basis of the evidence that was before the Senior Deputy President, the further evidence adduced at the hearing of the appeal and the report of Mr Elsner produced in response to the order for production of documents earlier referred to. Additionally, Ms Cartisano sought to rely on a further affidavit sworn by her on 19 January 2015 which was filed without leave together with supplementary written submissions concerning the reports of Dr Graham and Mr Elsner. However Sportsmed’s primary submission was that the matter should be remitted to a single member of the Commission to hear further evidence and submissions and decide the issue based on what it described as “new issues” arising from the reports of Dr Graham and Mr Elsner. It opposed the Full Bench admitting into evidence or having regard to the new affidavit of Ms Cartisano if the matter was not remitted.

[49] We have decided that we should re-determine the issue of remedy ourselves. We consider the evidence and submissions before us are sufficient for the issue to be determined without the need for a further hearing before a single member of the Commission. In undertaking the re-hearing, we will place significant weight upon the findings made by the Senior Deputy President concerning Ms Cartisano’s capacity to perform her former duties, noting that it was not contended either in Ms Cartisano’s appeal or Sportsmed’s cross-appeal that any of these findings were in error. We will also take into account the evidence before the Senior Deputy President, the further medical evidence adduced before us, namely the report of Dr Graham of 8 August 2014 and the report of Dr Elsner of 23 September 2014, and the affidavit of Ms Cartisano of 29 September 2014 and the affidavit sworn by Claire Marie Victory on 29 September 2014. We will not admit into evidence or take into account the further affidavit of Ms Cartisano sworn on 19 January 2015.

[50] Under s.390(3) of the Act, we may not consider the remedy of compensation unless we are satisfied that reinstatement would be inappropriate. The effect of this provision is to confer priority status on the remedy of reinstatement. The only consideration in this case relevant to whether it is appropriate to reinstate Ms Cartisano to her former position as CSSD Manager is whether she is medically fit to perform the inherent requirements of that role. Sportsmed did not suggest that there were any other reasons why, in the exercise of our discretion, we would not grant the remedy of reinstatement.

[51] It is not in dispute that the large majority of the duties of Ms Cartisano’s former position as CSSD Manager are clerical and sedentary in nature. None of the medical practitioners (Dr Lin, Dr Jezukaitis, Dr Graham or Mr Elsner) suggested that Ms Cartisano would be unfit to perform these duties. The critical question was whether Ms Cartisano was fit to perform the minority portion of the duties of the CSSD Manager position which involved some physical activity, having regard to the restrictions imposed on her (by Dr Lin and Dr Jezukaitis) that she should not on a repetitive basis lift more than 10kgs or perform tasks above mid-chest height.

[52] We would summarise the conclusions of the Senior Deputy President concerning the physical portion of the duties of the CSSD Manager position as follows:

[53] None of those findings represents any impediment to Ms Cartisano’s capacity to perform the duties of the position of CSSD Manager within the scope of the restrictions identified by Dr Lin and Dr Jezukaitis. We consider that those findings were correctly made by the Senior Deputy President on the evidence before him, and we do not consider that the additional evidence before us would cause us to make any contrary findings.

[54] Sportsmed relied upon the reports of Dr Graham and Mr Elsner to demonstrate that there were restrictions upon Ms Cartisano’s capacity to perform the duties of the CSSD Manager position additional to those identified by Dr Lin and Dr Jezukaitis. In relation to Dr Graham’s report, Sportsmed submitted that Dr Graham had described any lifting above mid-chest height as problematic, and that he did not qualify this “restriction” by reference to any weight limit.

[55] We do not agree that Dr Graham identified any new restriction in this connection; it is the same restriction identified by Dr Jezukaitis, as was made clear in the penultimate paragraph of Dr Graham’s report. There was no evidence that the role required this work to be done on a repetitive basis. Moreover, as Ms Cartisano deposed in her affidavit of 29 September 2014, as far as lifting from heights was concerned, Sportsmed “had supplied a set of four steps on wheels, and the staff were directed to use the steps loading items onto higher shelves”. This was not contradicted by Sportsmed. The availability of this facility, we consider, is sufficient to remove any risk to Ms Cartisano’s health or safety which might be constituted to lift items to and from heights. This was not taken into account in Dr Graham’s report despite the fact that he appears to have been informed about it.

[56] We do not put any weight on the conclusion of Dr Graham that “the likely relationship between Ms Cartisano and her employer should she return to work at Sportsmed” was a relevant risk factor. There was no evidence concerning this likely relationship, and the factual basis of this was unclear beyond Dr Graham’s understanding (for which there was no evidentiary support) that Sportsmed had some concerns about Ms Cartisano’s honesty and some other “impression” which he had “gained from my discussions earlier”. In any event, the relationship between this concern and Ms Cartisano’s shoulder injury was not explained by Dr Graham and is not otherwise apparent. To the extent that it represented an expression of an opinion about a risk to Ms Cartisano’s psychological health and safety, there was nothing to suggest that Dr Graham was qualified to express such an opinion. This flawed conclusion was an important element of Dr Graham’s overall opinion that there was a “significant risk” of aggravation of Ms Cartisano’s shoulder problem should she return to work, and together with Dr Graham’s failure to take into account the fact that Sportsmed’s provision of mobile steps removed any risk associated with lifting at heights, served to vitiate that overall opinion.

[57] In relation to Mr Elsner’s report, Sportsmed submitted that his report demonstrated that Ms Cartisano’s right shoulder has not fully recovered, is causing her pain and is impeding her ability to perform certain tasks. In the last respect, Sportsmed pointed to the references in the report to Ms Cartisano’s inability to perform “any significant physical activity” including painting, tiling, vacuuming or gardening. Sportsmed also pointed to the fact that the report identified Ms Cartisano as taking medication not previously identified to Dr Graham, namely Mobic (an anti-inflammatory medication) and Mersyndol Forte. It made the following submission in relation to these medications:

[58] We do not consider that anything identified in Mr Elsner’s report represents an impediment to Ms Cartisano returning to work. The question is not whether Ms Cartisano has fully recovered from her shoulder injury. Clearly she has not, although Mr Elsner has noted a significant improvement in her condition. The question is, as earlier stated, whether she is fit to perform the duties which are primarily clerical and sedentary in nature but involve a minor proportion of physical activity. In that respect, Mr Elsner did not identify any restriction on activity which would prevent her from performing those duties. He concluded that “she has regained an overall good range of movements in the right shoulder, with a good result from the surgical procedure”. The difficulties he identified are essentially the same as those identified by Dr Lin and Dr Jezukaitis, namely “some difficulty still with overhead activities with the right arm, and prolonged overhead activity with the right arm, and heavier lifting activities”. Those are matters which we consider to be properly accommodated by the 10kg lifting restriction (with the capacity for any lifting of that nature to be done by someone else), and the use of the mobile steps provided by Sportsmed to avoid any overhead lifting which cannot be done by someone else. Ms Cartisano’s professed inability to perform private activities such as painting, tiling, vacuuming or gardening is consistent with the general identified restrictions on her capacity for physical activity and says nothing additional of relevance to her capacity to perform her duties as CSSD Manager.

[59] In relation to Ms Cartisano’s medication, we consider that Sportsmed’s submission is speculative in nature and not based on any medical evidence before us. Mr Elsner did not express any concern about her medication interfering with her capacity for work, and indeed concluded that “it is reasonable for her to continue with some mild analgesic and possibly some anti-inflammatory medication for another two to three months”. We reject this submission.

[60] We conclude that Ms Cartisano is fit to perform the duties of CSSD Manager, and therefore that it is appropriate to make an order for reinstatement to that position. That reinstatement order, which will be issued in conjunction with this decision, will require Ms Cartisano to be reinstated within 14 days of this decision. We will make orders for the payment of lost remuneration and the maintenance of continuity of employment in the same terms as made by the Senior Deputy President.

Conclusion and orders

[61] In respect of Ms Cartisano’s appeal, we order as follows:

[62] In relation to Sportsmed’s cross-appeal, permission to appeal is refused.

al of the Fair Work Commission with the memeber's signature.



J. Radbone of counsel for G. Cartisano.

A. Manos of counsel with C. Victory solicitor for Sportsmed SA Hospitals Pty Ltd.

Hearing details:



11 December.

Final Submissions

G. Cartisano - 19 January 2015.

Sportsmed SA Hospitals Pty Ltd - 12 January 2015.

 1   [2014] FWC 4928

 2   PR553423

 3   Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [17]

 4   [2014] FWC 3005

 5   (2005) 221 CLR 539

 6   [2012] FWAFB 1616

 7   [2010] FWAFB 5343 at [27]

 8   Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [10]

 9   (2005) 221 CLR 539

 10   Ibid at [33]

 11   Ibid at [34]

 12   Ibid at [44]

 13   [2012] FWAFB 1616

 14   Ibid at [12]

 15   Ibid at [66]

 16   Transport Workers' Union of New South Wales v Australian Industrial Relations Commission (2008) 171 IR 84 at [37]-[38] per Gray and North JJ

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