Fair Work Act 2009
s.604 - Appeal of decisions

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

Introduction

[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:

“Sportsmed SA Hospitals Pty Ltd does not appeal the decision of O’Callaghan SDP but refers to the notice of appeal lodged by Ms Cartisano on 19 August 2014 and says that if the Full Bench grants leave to Ms Cartisano to appeal and upholds the appeal, then the Full Bench should find as follows:

1. Given the findings made by O’Callaghan SDP in his judgments of 8 May 2014 and 29 July 2014 as to Ms Cartisano’s incapacity for the duties involved in the position she held immediately before the termination of her employment, and the evidence before the Commission regarding this issue, along with Sportsmed SA’s entitlement and requirement to undertake a risk assessment associated with Ms Cartisano’s ability to return to her pre-termination position, reinstatement was not an appropriate remedy in the circumstances.”

[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] 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:

‘As such, a functional job analysis was not available for review. However it is my impression that she would be able to perform a majority of activities conducted before the accident and may require a small accommodation with regards to some of the heavier surgical trays. The worker did raise that at time she worked up to 14 hours a day and there may be some sustainability questions around this, should this be consecutively required.’

[8] Additionally, I have been provided with two medical certificates 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:

‘Miss Guiseppina Cartisano is and had been able to perform her normal managerial duties. The restrictions are lifting above 10 kg if repetitive in nature. There are no other restrictions applicable to her.’” 

[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:

“[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:

‘Almost exclusively, the only times or reasons why I performed any physical work on the floor was:-

For training purposes i.e. to instruct new staff on how to perform various tasks and by way of demonstration.

If one of the staff was sick and could not be covered for at short notice.

In the event that someone phoned in sick at short notice, there was always some built in redundancy in relation to the number of staff who were working in the CSSD. Normally I would go and work in the CSSD for perhaps an hour or an hour and a half work to cover until further people came on to the shift.’

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

‘The only time that I would need to fill in to perform manual work on the floor due to an absence of staff was if someone from the afternoon shift called in sick. Then it would be only until someone from an agency arrived.

I estimate that it was only once every six months that I would need to do more than an hour or an hour and a half to fill in for someone who called in sick at short notice.

In summary, the only manual work which I performed as part of my duties was either when training people, and there was no need to lift any heavy weights while doing so because that was the job of the person being trained, or alternatively for short periods when staff phoned in sick at short notice.’

[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. Ms Hill’s evidence was that:

‘In order for Ms Cartisano to return to employment with SPORTSMED SA, or for anyone to fulfil this role, they would need to have a complete clearance for performing all duties associated with the role and functioning safely and effectively in this high risk area.’

[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 to disagree with various of Ms Cartisano’s assertions about manual handling elements of the Manager CSSD role.”

[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:

“[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.”

[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:

“[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.

[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:

“[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 giving effect to this decision will be issued.”

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:

“Clinical examination is suggestive of a problem in each shoulder with limitation of movement and discomfort on the last 20�-30� of abduction. I would suggest that the symptoms described in the right shoulder and the findings on clinical examination are consistent with the history of injury to the shoulder and subsequent surgery.

In relation to fitness for work I note the opinion of Dr Peter Jezukaitis in his report of 4 July 2014 that he considers Ms Cartisano ‘fit to perform duties that are essentially sedentary and/or light in nature’. He recommends ‘a restriction of 10kg for repetitive work in particular for tasks that are performed above mid-chest height and below mid-thigh height or out at extended reach’. I would agree with these suggested restrictions.”

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

• manual work on the floor was an inherent part of the job description;
• the job included lifting of heavy loan sets weighing up to 15kgs;
• an average of one person per week called in sick, and the casual staff which made up 50% of the staff were often not reliable in their attendance;
• it was expected that other staff would cover absences; and
• Ms Cartisano spent about 20% of her time “on the floor”.

[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”:

“Ms Cartisano gives a history of ongoing bilateral shoulder pain, greater on the right and demonstrates an ongoing problem with limitation of movement in both shoulders and pain at the end of range. This was also noted by Dr Jezukaitis. Given the length of time which she has been experiencing symptoms she must have an increased risk aggravating her shoulder problem with a number of activities including heavy lifting, greater than 10kg and use of the arms above mid-chest height. The extent of this risk will be affected by a number of factors and in this regard I have concerns in relation to the likely relationship between Ms Cartisano and her employer should she return to work at Sportsmed SA.

In summary, taking into consideration her ongoing symptoms, aspects of the job which include recurrently reaching above shoulder height to obtain items when wrapping sets, the storage of a number of items above head height and what I perceive to be a less than ideal relationship between Ms Cartisano and her previous employer, I consider she presents a significant risk of aggravation of her existing should problem should she return to work as CSSD Manager at Sportsmed SA.”

[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:

“I have referred your email of today’s date to the Senior Deputy President who has confirmed that he considers his involvement in the matter now to be concluded.

Accordingly the matter will not be relisted.”

[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:

“Can you further please note that if you do not provide any feedback or response to the risk assessment in the further time now made available to you, Sportsmed SA ... will have no alternative but to further consider the effect of the assessment on your ongoing employment pursuant to the order made by the Fair Work Commission without any further consultation with you. You should be aware that, as things presently stand, Sportsmed is of the view that reinstatement cannot be sustained in your case, as the condition to that reinstatement, being the risk assessment, has not been able to be satisfied due to your ongoing unfitness for the inherent requirements as CSSD Manager.

This may well result in the termination of your employment again.”

[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:

“Although she had considerable pain following her shoulder surgery she told me she has been improving and is significantly better than she was prior to the operation. She feels that she still has a constant “burning sensation” over the anterior and posterior aspects of the right shoulder, and this burning sensation has not really improved with the surgery. However her other shoulder pain, and her range of movements in the right shoulder, have improved significantly. She feels the movements are still improving. She is now able to lie on her right side without any problems and can reach behind her back to do up her bra which she could not do before the surgery. She told me that her right shoulder can be painful with overhead activities, for example repetitive or prolonged overhead activities, and it occasionally clicks.”

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

“As indicated above, she has not returned to any work for the last 16 months or so and she told me currently that no-one would employ her because she has been put onto some lifting restrictions by her general practitioner. However she confirmed that she has been working for two to three hours every two to three days on her rental properties, including cleaning the properties, but told me that she cannot do any significant physical activity such as painting or tiling because of her right shoulder.

...

She does do all her house duties except for vacuuming because that seems to make her right shoulder particularly sore with the back and forth movement of the vacuum. She also has not been able to the keep up the maintenance on her garden. She still enjoys quilting, scrapbooking and cooking.”

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

“Medication includes Mobic anti-inflammatory medication 15mg each morning, Lexapro antidepressant 40 mg, Mersyndol Forte about two tablets two or three times a week, and very occasionally Tramadol for pain.”

[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:

“I have outlined the findings on physical examination under the heading “Physical Examination”. She has regained an overall good range of movements in the right shoulder, with a good result from the surgical procedure. She has full range of movements in her neck without pain, similarly the left shoulder, and also a full range of movements was noted in her right wrist and fingers. In my opinion she has sustained soft tissue injury to the right shoulder which has not yet resolved, and perhaps a second soft tissue strain of her left shoulder which in my opinion has also resolved.

[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:

“I have indicated that the treatments she is currently having under the heading of “Present Treatment” and I have outlined her operation on the right shoulder. In my opinion it is reasonable for her to continue with some physiotherapy on a once every six weeks basis to supervise her progress with exercises, and it is reasonable for her to continue with some mild analgesic and possibly some anti-inflammatory medication for another two to three months. I do not believe she requires massage therapy.”

[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:

“She perceives some difficulty still with overhead activities with the right arm, and prolonged overhead activities with the right arm, and heavier lifting activities. I do not believe she has any residual incapacity in relation to her neck, left shoulder or right wrist or hand. Her perception in relation to her right shoulder capacity appears consistent with the current physical findings.”

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):

(1) The object of this Part is:

…

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis
on reinstatement.

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

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

[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:

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

[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:

(3) If the Commission considers it appropriate, the Commission may make an order requiring the employer to reinstate the employee by:

(a) reappointing the employee to the position in which the employee was employed immediately before the termination.

(b) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination.

[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:

“[13] Paragraph (a) of s 170CH(3) empowers the Commission to order that the employee be re-appointed to the position in which the employee was employed immediately before the termination, that is to say, to do the work on which the employee was engaged when the employment was terminated. If that cannot be achieved, para (b) of the sub-section empowers the Commission to order that the employee be appointed to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination. The term "another position" demonstrates that orders made under sub-s (3) are concerned with more than reinstating the contract of employment and its terms and conditions. Whether the terms and conditions are "no less favourable" can be determined only by examining what the employee is employed to do in the new position. Paragraph (b) points irresistibly to the term "position" in s 170CH(3) being concerned with the duties and working conditions of the occupation as well as the contractual rights and duties attached to it.

[14] To construe the power "to reinstate" as confined to restoring contractual or other legal rights fails to give full effect to the term "reinstate". To reinstate means to put back in place. In this context, it means that the employment situation, as it existed immediately before the termination, must be restored. It requires restoration of the terms and conditions of the employment in the broadest sense of those terms. It empowers the Commission to do more than restore the contract of employment. So far as practicable, the employee is to be given back his "job" at the same place and with the same duties, remuneration and working conditions as existed before the termination. The Full Court of the Federal Court erred in the present case by holding that "the emphasis on appointing the employee to a 'position' demonstrates that it is the contractual position which is either to be restored in its earlier terms or in equivalent 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:

“The purpose of a reinstatement order is to ensure that the employee in question is placed in the status quo ante. It is not to anticipate every eventuality that might thereafter arise; nor is it to provide the employee the subject of it with employment for life. What happens in the future, and what follows from what happens, depends on all the circumstances then obtaining.” 11

[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:

“Rather, reinstatement by reappointing to a former position requires the recreation of the circumstances of employment that preceded the termination. The contractual nexus between the parties must be re-established. The terms and conditions of that contract must be the same. The employer must provide work to be done by the employee of the same kind and volume as was being done before termination. In cases where that last element cannot be achieved (as, for example, where the work formerly done is no longer required) the form of reinstatement for which s 170CH(3)(a) provides would not be appropriate and the question would become whether the alternative form of reinstatement (by appointing to another position) should be made.” 12

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

“[75] All of the language of the relevant section must be given meaning. The use in s 170CH(3) of the word "reinstate" is significant. Section 170CH(3)(a) and (b) describe the way in which the reinstatement may be effected. "Reinstate" literally means to put back in place. To pay the appellant but not to put him back in his usual situation in the workplace would not be to reinstate him. The words "reappoint" and "position" should not be read in any restricted way. They are intended to apply to a very wide range of workplaces and certainly not to a particular officer or officers. It was therefore within the power of the Commission to make such an order as would contemplate or require that the employer provide a reappointed or reinstated worker with actual work to do.”

[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:

“The effect of the Commissioner’s order is to return the respondent to the situation which existed immediately prior to the termination of her employment.”

[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:

• Relief work (“on the floor”) was an essential requirement of the position, and was likely to occur with some frequency.

• Lifting weights in excess of 10kgs was an element of the position, but it was not frequent and was not something which could only be done by the CSSD Manager.

• Working extended days was not an inherent requirement of the position.

• The medical evidence did not preclude Ms Cartisano from performing those aspects of the role which might pose risks in terms of heat, weight, infection or sharp instruments.

[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:

“The interaction between the medications is critical. Although there is no direct evidence about this issue because it has not arisen to date, the Respondent understands that some of the medication taken by the Employee is a narcotic while others contain an analgesic. In combination, a narcotic and analgesic can cause drowsiness, vagueness and loss of coordination. These symptoms in a high safety risk workplace are likely to place the Employee’s health and safety, and those around her, at risk.”

[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:

(1) Permission to appeal is granted.

(2) The appeal is upheld.

(3) The Decision and Order are quashed.

(4) By a separate order issued in conjunction with this decision (PR561823), Ms Cartisano is reinstated to her former employment with Sportsmed under s.391(1)(b) of the Act.

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

VICE PRESIDENT

Appearances:

J. Radbone of counsel for G. Cartisano.

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

Hearing details:

2014.

Adelaide:

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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