| [2017] FWC 2997 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dorris Maharaj
v
Northern Health
(U2016/12228)
COMMISSIONER BISSETT |
MELBOURNE, 20 JUNE 2017 |
Application for relief from unfair dismissal – dismissal harsh, unjust or unreasonable – applicant unfairly dismissed – remedy – reinstatement sought – satisfied could return to position occupied prior to dismissal – no conditions placed on reinstatement – ancillary matters considered - reinstatement ordered.
[1] Ms Dorris Maharaj has made an application seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Ms Maharaj was employed by Northern Health in the intensive care unit (ICU) from the time she graduated as a nurse. At the time she was dismissed she had been employed for 17 years with Northern Health and held the position of ICU Liaison Nurse/Clinical Specialist – Acute Services (ICU Liaison Nurse).
[2] Ms Maharaj’s employment was terminated on 14 September 2016 following a non-work related injury she sustained in May 2015.
[3] Ms Maharaj seeks reinstatement to the position she was employed in prior to dismissal.
[4] Ms Maharaj was represented with permission by Mr Angel Aleksov and Northern Health was represented with permission by Ms Anna Forsyth.
[5] Witness evidence was heard from Ms Dorris Maharaj, Dr Dominic Yong, Dr Margaret Donahue, Ms Coleen Scully and Ms Meredith Newth.
[6] In November 2014 Ms Maharaj received a needle stick injury at work. This resulted in her being off work for three months arising from a secondary psychiatric injury of anxiety. She made a full recovery from both the needle stick and secondary injury and returned to work, initially through a graduated return to work plan prior to resuming her ordinary hours of work.
[7] On 14 May 2015 Ms Maharaj was involved in a car accident on her way to work. She was admitted to the Austin Emergency Department where it was found she had fractured her C5 vertebrae. Following consultation with Dr Donahue, her general practitioner (GP), about her injuries Ms Maharaj was admitted to the Epworth Emergency Department and subsequently spent two weeks in the Epworth Rehabilitation Unit.
[8] Ms Maharaj suffered some secondary psychiatric symptoms as a result of the car accident and attended her psychologist for treatment. She said she recovered from this in about August 2016.
[9] On 19 April 2016 Ms Maharaj attended an independent medical examination (IME) with Dr David Fish, Consultant Occupational and Environmental Physician, at the request of the Transport Accident Commission (TAC). She attended a further IME with Dr Lester Walton, Consultant Psychiatrist, on 10 May 2016.
[10] From the time of her car accident Ms Maharaj said she was in touch with Ms Scully, her Unit Manager at Northern Health to advise her of her progress. In March 2016 she said she spoke to Ms Scully, advised her that she was recovering and was looking forward to returning to work. Ms Maharaj told Ms Scully that Ms Cath Stent, her return to work co-ordinator at the TAC, would liaise with Ms Rhonda Willingham, Senior Co-ordinator, Safety First at Northern Health.
[11] In early August 2016 Ms Stent attempted to contact Ms Willingham who did not return her call but she did speak to Ms Scully. Ms Scully apparently told Ms Stent that she would talk to Ms Willingham about a return to work plan and they would get back to Ms Stent. On 25 August 2016 Ms Stent told Ms Maharaj that neither Ms Scully nor Ms Willingham had got back to her since her call earlier in the month. 1 Ms Stent also advised Ms Maharaj that she was leaving the TAC and that Mr Paul Keddie from Healthe Work would be taking over as her return to work co-ordinator.
[12] Ms Maharaj said that around late July or early August 2016 she had a discussion with Dr Donahue about her capacity to return to work. They agreed that she was ready to return to work and Dr Donahue completed the August TAC certificate of capacity.
[13] On 7 September 2016 Mr Keddie emailed Ms Willingham seeking a meeting to discuss Ms Maharaj’s return to work. Ms Maharaj sent a copy of this email to Ms Scully. On about 12 September 2016 Mr Keddie advised Ms Maharaj that Ms Willingham had told him that there was no return to work program available for Ms Maharaj. The following day Ms Maharaj spoke to Ms Scully who told Ms Maharaj that she was not aware that there was no return to work plan for her and that she would talk to Ms Willingham and get back to her. On 14 September 2016 Ms Willingham told Ms Maharaj that there was no return to work plan available for her because Northern Health had a new return to work policy. 2
[14] Ms Maharaj gave evidence that, when she spoke to Ms Willingham on 14 September 2016, she told Ms Willingham she was ready to return to her pre-injury duties. Ms Maharaj rejected the proposition that what Ms Willingham had told her was that Northern Health was not able to offer her a return to work in circumstances where she was not fit to return to her pre-injury role.3
[15] Ms Maharaj also gave evidence that in the conversation with Ms Willingham she did not say she was seeing a neurologist “because I don’t have a neurologist.”4
[16] On 19 September 2016 Ms Maharaj received a letter from Ms Meredith Newth, Director of Human Resources for Northern Health, dated 14 September 2016 in which Ms Maharaj was advised that her employment had been terminated “effective immediately.”
[17] Ms Maharaj gave evidence that she believes she can undertake the full duties of her position as an ICU Liaison Nurse (as detailed in the witness statement of Ms Scully). 5 Ms Maharaj believes she can return to her full hours although her doctor recommends a graduated return to work.
[18] Ms Maharaj said that in December 2016 she did report to Dr Donahue some stiffness in her neck but that this resulted from holding her phone in an awkward position and from excessive coughing and a viral infection. She agreed that she has stiffness in her neck sometimes, but not pain 6 and that she has had no pain from about August 20167 although agrees she told Dr Donahue in February 2017 that she was still getting some pain.8
[19] Ms Maharaj agreed that she had suffered from a psychological disorder following her accident. She also said that she suffered from an adjustment disorder following the needle stick injury. She said that while she was referred to a psychologist in July 2016 she was not suffering from any psychological symptoms after August 2016 9 and the referral was just for on-going support.
[20] Ms Maharaj agreed that, at the time of her dismissal by Northern Health, there was no return to work plan in place. She gave evidence that she was not sure why Dr Donahue had indicated that she had no capacity for work on the September certificate of capacity but believes she did so “to ensure that [she] would not be forced back to work sooner than was considered appropriate by the return to work officer.” 10 Ms Maharaj said that:
It is common for TAC certificates of capacity to state that there is no capacity for work, yet the individual concerned may nevertheless undertake work during the certified period. Precisely this occurred when I suffered the needle-stick injury. 11
[21] Ms Maharaj gave evidence that she is confident she could push the crash cart. 12
[22] Dr Donahue is Ms Maharaj’s GP. Ms Maharaj has been attending the clinic at which Dr Donahue practices since 2005 and has been seen by Dr Donahue since 2006.
[23] Dr Donahue has 30 years’ experience as a GP.
[24] Dr Donahue treated Ms Maharaj when she received the needle stick injury and has been treating her in relation to the motor vehicle accident of May 2015. Dr Donahue has completed the TAC Certificates of Capacity for Ms Maharaj.
[25] Of Ms Maharaj’s motor vehicle accident, Dr Donahue said:
Well, the initial injury was quite significant in that she fractured her neck and C5 vertebral body, and that was associated with soft tissue injury as well which led to a lot of swelling in the neck. She also had some pain down her arm suggesting some nerve – nerve injury, so it was quite a significant injury and it caused her to have very limited painful movement of her neck for a very long time. It also caused significant anxiety and stress related symptoms, psychological symptoms because of the accident as well with flashbacks, panicky, obviously not wanting to drive for a very long time – you know, difficulty perhaps with her memory and just feeling quite anxious a lot of the time, wanting to stay at home and be kind of a cocoon because it was really quite a traumatic event. But I will say she’s moved through all of those things very well over time. 13
[26] On 6 September 2016 Dr Donahue completed a TAC certificate of capacity that indicated that Ms Maharaj had no capacity for employment for the period 12 September 2016 to 10 October 2016. The certificate also said, of her treatment plan:
rtw officer from TAC and workplace to liaise re RTW 14
[27] On 18 October 2016 Dr Donahue signed a further TAC certificate of capacity in which she indicated that Ms Maharaj had a capacity for suitable employment for the period 18 October 2016 to 15 November 2016. Of a treatment plan the certificate said:
I suggest the employer liaise with TAC. Patient ready to return to work 15
[28] On 29 November 2016 Dr Donahue was contacted by Adviceline Injury Lawyers. She was asked for her opinion on Ms Maharaj’s status and advised that, in her opinion, Ms Maharaj:
● is likely to suffer on-going stiffness and some pain in her neck on a long-term basis
● Her neck movements remain stiff and restricted particularly in lateral rotation worse on the left
● continues to experience neck pain and stiffness which she tries to push through. She takes low levels of pain medication only. 16
[29] On 27 February 2017 Dr Donahue wrote to Mr O’Meara from Ryan Carlisle Thomas (Ms Maharaj’s lawyers), in response to some specific questions that had been asked of her with respect to Ms Maharaj. In response to a question as to Ms Maharaj’s capacity to perform the inherent requirements of her position, Dr Donahue said that, in her opinion:
… at the time of her dismissal Ms Maharaj did not have the capacity to perform her full pre-injury duties.
In my opinion at the time of dismissal I do believe that she had capacity to perform modified duties. However I was waiting correspondence for the Return to Work consultants from TAC as to what this would entail at Northern Health before allowing Mrs. Maharaj to return to work. There did not appear to be any meaningful dialogue between these parties. I am not able to stipulate what exactly she could do at this time of dismissal because I did not know what Northern Health might offer Mrs. Maharaj for me to consider as appropriate or otherwise. Given that she was an intensive care nurse any return needed to be carefully considered with detail of duties provided by the employer. 17
[30] When asked if she stood by this statement Dr Donahue said:
Yes, I do. Yes. I’ve always thought that in the situation there needed to be a liaison between the parties involved and usually in this sort of situation the return to work officer would send me some kind of - you know, list of duties, and then I would consider that in consultation with the patient as to what might be appropriate. We had asked numerous times that there be some sort of liaison and there didn’t appear to be. I know the TAC were working very hard in this regard and helping Mrs Maharaj. She - it’s important to feel supported, and I as the kind of treating doctor needs to be pretty happy that she can perform whatever duties are put forward and that she’s able and happy to do so, and also I would say that - yes, I think to be fair to me as the person having to sign off on those things I need some sort of liaison between the parties and something put to myself. This is a very complicated thing, and I would point out for instance that Dorris has over the journey had numerous people looking after her exercise, physiologist, occupational therapist, physiotherapist, psychologist, all arranged through Epworth, neurosurgeons, rehabilitation consultants and psychologists, and a lot of these practitioners don’t write to me, yet I’m the person having to sign off on things. 18
[31] Dr Donahue gave evidence that when she saw Ms Maharaj on 6 September 2016 no suitable roles or hours of work for Ms Maharaj had been identified by Northern Health 19 and hence she was not able to stipulate what Ms Maharaj could do. For this reason she stipulated on the TAC certificate in September 2016 that Ms Maharaj had no capacity for employment.20
[32] Dr Donahue’s evidence is that Ms Maharaj should have returned initially as a supernumerary with someone working alongside her on reduced hours. 21 It was her opinion that Ms Maharaj could make the transition to a full return to work if that was done properly.22
[33] Dr Donahue’s evidence is that, at the time of giving evidence, she considered that Ms Maharaj could return to her role as an ICU Liaison Nurse but that it should initially be as a supernumerary and on reduced hours. Dr Donahue said:
I would envisage a graduated return to work with hours and that she returns to work and she is working alongside a fellow qualified worker and they work together so that she can demonstrate that she can do all her duties required. And also to be perhaps brought up to speed on any changes in the workplace. 23
[34] Dr Donahue gave evidence that she considered Ms Maharaj was mentally well. When questioned as to her qualifications to make such a statement Dr Donahue said
I see her every month and know her quite well and I deal with people who have anxiety disorders, and depressive disorders frequently. I was managing her medications and so forth with the needle stick injury and so on and so we discussed her symptoms that she - you know - would have had from the accident. The - you know - horrifying thoughts the flashbacks and so forth and then in light of those symptoms at a general practice level where this is actually being managed because she's not actually under a psychiatrist. 24
[35] Ms Maharaj consulted Dr Yong in December 2016 on referral by her lawyer. Dr Yong is a Specialist Occupational Physician.
[36] Dr Yong said that in assessing capacity a number of factors are considered, pain being one of those. He said that pain is subjective and he would try and understand the location and intensity of any pain.
[37] Dr Yong was provided with:
(a) TAC certificates of capacity from June 2015;
(b) Medical Discharge Summary from Epworth Rehabilitation Unit of 3 June 2015;
(c) Letter from Dr Chan to Dr Donahue of 16 June 2015;
(d) Report of Dr Fisher of 19 April 2016; and
(e) Report of Dr Walton of 30 May 2016.
[38] Arising from the consultation and a review of the documentation Dr Yong provided a report to Ms Maharaj’s lawyers.
[39] Dr Yong concluded that Ms Maharaj’s symptoms from the injury sustained in the car accident “have resolved” and thus “her condition has healed”. 25
[40] He also concluded that she had “ a current capacity to perform her pre-injury duties” but with a graduated return to work starting with five shifts in the first fortnight and increasing to six shifts in the second fortnight and seven shifts (equivalent to her pre-injury hours) in the third fortnight. 26
[41] Dr Yong said that, in examining Ms Maharaj:
(a) He did a physical examination of shoulders and arms; 27
(b) He would have asked her about her role and talked about what was done when a “Code Blue” or Medical Emergency Team (MET) call came in, her role in preparing and giving intravenous drugs, airway management and other clinical aspects of her role. 28
(c) He did not talk to her specifically about some of the specific equipment she is required to work with 29 but is of the opinion that Ms Maharaj could handle a ventilator, IV pump, IV infusion, spirometer and end tidal CO2.30
[42] His evidence is that Ms Maharaj reported to him that the pain she had suffered in her left arm had resolved, she was pain free although there was some stiffness. Dr Yong agreed that this was contrary to a report of Dr Donahue written 11 days beforehand that said that Ms Maharaj “continues to experience neck pain… She takes low levels of pain medication. Only her neck movements remain stiff and restricted particularly in lateral rotation…”. On the basis of his examination of Ms Maharaj Dr Yong said he would disagree with Dr Donahue’s prognosis that “Ms Maharaj is likely to suffer ongoing stiffness and some pain in her neck on a long-term basis.” 31
[43] Dr Yong said that if Ms Maharaj had told him of on-going neck pain, his conclusion “may have been different” and he might have said her condition was “marginally resolved or resolving well”. 32
[44] Dr Yong agreed that he did not do a functional capacity evaluation (which he said would normally be done by a physiotherapist or an occupational therapist) or a worksite assessment with respect to Ms Maharaj.
[45] Dr Yong’s evidence is that, had he been aware of the increased workload of the position previously occupied by Ms Maharaj, it would have benefited his assessment and that he might have slowed down the return to work program so that she built up to her pre-injury hours over a longer period of time. 33
[46] Dr Yong agreed that not having a functional capacity assessment or a worksite assessment “compromises the comprehensive nature” of his report 34 but that, while he would like to have such information, his assessment could be made without it.35 He was satisfied that he had adequate information to form the opinion he did of Ms Maharaj’s capacity to return to work.36
[47] Dr Yong’s assessment of Ms Maharaj was not changed by the written evidence of Ms Scully.
[48] The decision to terminate Ms Maharaj’s employment was taken at a meeting of the “executive team” of Northern Health on 6 September 2016. 37 The executive committee consists of John Snowdon, Chief Legal Officer; Michelle Fenwick, Executive Director, People and Culture, Mary Stojanoski, Employee Relations Advisor, Will Halpin, Associate Director, Safety First, Rhonda Willingham, then Senior Co-ordinator, Safety First and Melissa Houston, Safety First Advisor.38 The purpose of the executive committee is to “manage the employment of long-term injured and absent employees as well as those who had returned to work on modified duties.”39
[49] Ms Maharaj was one of the employee’s being “managed” by the committee at its meeting of 6 September 2016. Whilst no formal agenda as such was circulated for the meeting, Ms Newth said that Ms Willingham circulated a list of staff to be discussed with a brief description of their injury and employment status. This occurred with respect to Ms Maharaj. Those notes read in part, with respect to Ms Maharaj:
Doris has been off work for 16 months, there has been no indication of when she can resume her duties. [Northern Health] have (sic) no obligation on TAC matters. Can we terminate her employment????? 40
[50] This was the only document with respect to Ms Maharaj before the executive committee. Ms Newth’s evidence is that Ms Willingham briefed the committee on Ms Maharaj’s length of absence and that the certificates of capacity for Ms Maharaj indicated that she had no capacity 41 [to return to work]. Ms Willingham spoke of Ms Maharaj’s case for “[m]aybe 10 to 15 minutes”.42
[51] Members of the committee “formed the view” at this meeting that Ms Maharaj’s employment should be terminated 43 although Ms Fenwick was the formal decision maker.44 The decision to terminate Ms Maharaj’s employment was made on 6 September 2016.45
[52] Following the meeting of 6 September 2016 Ms Newth and Ms Willingham had two discussions with respect to Ms Maharaj. The first was in relation to the certificate of capacity for mid-September to mid-October 46 (dated 6 September 2016) and the second was in relation to a discussion Ms Willingham had with Ms Maharaj about when Ms Maharaj might return to work where Ms Maharaj had indicated she could “in time”.47
[53] Ms Newth also received an email from Ms Willingham on 7 September 2016 forwarding the email sent to her by Mr Keddie. In the email to Ms Newth, Ms Willingham said that she had spoken to Paul Keddie and advised him that Northern Health did not have “any suitable opportunities for Doris at this time.” 48
[54] Ms Willingham sent a further email to Ms Newth on 12 September 2016 (in response to a request for comment on the draft termination letter) that read:
I have had recent contact from TAC asking NH to become involved in Dorris’ RTW, this indicates that she is capable of performing ‘work’
Can I please request we change the following to:
Given the significant restrictions on your current ability to perform your pre injury employment, Northern Health has assessed your current medical restrictions, including how it impacts upon your duties and our need.
We have also taken into consideration your likely incapacity into the foreseeable future. 49
[55] Ms Newth was questioned about the email:
Having been given information that Dorris is capable of performing work, what inquiry did you undertake to ascertain what work Dorris could perform? -I didn’t undertake any inquiry. That piece of work would not normally sit with myself, so I didn’t undertake any. 50
[56] A further meeting of the executive committee was held on 13 September 2016. Ms Maharaj’s case was again on the agenda. The letter of termination was issued on 14 September 2016.
[57] Ms Coleen Scully is the Nurse Unit Manager, Intensive Care Unit at Northern Health. In this role she oversees both the operational and clinical functions of the ICU.
[58] Ms Scully said that the ICU Liaison Nurse is a senior position. A “high level of performance is required to ensure that they facilitate an integrated continuum of care for intensive care patients across the hospital, from admission to discharge.” The position has a clinical component which requires the ICU Liaison Nurse to work in the Hospital’s MET in a supervisory and clinical capacity. The ICU Liaison Nurse responds to MET calls and “Code Blues” daily. This involves walking long distances between wards, sometimes up to a kilometre. Attendance on patients requires clinical tasks and may require work at ground level in circumstances where a patient has collapsed. 51
[59] Ms Scully said that, prior to Ms Maharaj’s accident, ICU Liaison Nurses had relied on resuscitation equipment in wards. In the period since Ms Maharaj’s accident “crash carts” had been introduced. A loaded cart weighs up to 25 kilograms and the liaison nurse must now push the cart when attending an emergency. The crash cart must also remain in the possession of the Liaison Nurse at all times because of the presence of prescribed drugs on the cart. Additional strength is required to push the cart over carpeted areas of the hospital compared to vinyl floors. 52
[60] Ms Scully also said that, since Ms Maharaj’s accident, the role of the ICU Liaison Nurse has expanded such that they are now required to attend in the Emergency Department and the Neonatal Unit. This has resulted in an increased number of emergency calls that require response. 53
[61] Ms Scully gave evidence that she has about 13 ICU nurses on each shift. This figure includes one ICU Liaison Nurse on morning and afternoon shifts with no ICU Liaison Nurse on night shift. About 80% of the ICU staff work part-time hours (some fraction of 76 hour per fortnight). Ms Scully said she has six staff who are qualified to be an ICU Liaison Nurse. Some of these work as a general ICU nurse and backfill the ICU Liaison position if required.
[62] Ms Scully said that she is familiar with the concept of “supernumerary practice” and it is a technique used in the ICU. She said that there is no reason why such a practice could not be adopted for an ICU Liaison Nurse. She also agreed that an ICU Liaison Nurse could work as little as one shift per week. 54
[63] Ms Scully was aware of Ms Maharaj’s needle stick injury in 2014 and, as Nurse Unit Manager, had facilitated Ms Maharaj’s return to work plan. She said that the return to work plan would “have been formulated in conjunction with the return to work coordinator of the Northern Hospital. It would have consisted of gradually bringing her back to work according to the information that would have been provided on her certificates of capacity at the time.” If a return to work plan was required to accommodate one shift per week Ms Scully said there would be no difficulty in doing so. 55
[64] Ms Scully did recall the conversation she had with Ms Maharaj on 13 September 2016 but said she did not get back to her because Ms Willingham informed Ms Scully that Ms Maharaj’s employment with Northern Health had been terminated. 56
[65] The legislative framework with respect to determining an application for unfair dismissal relevantly states:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold...
385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy...
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[66] I am satisfied that Ms Maharaj is protected from unfair dismissal.
[67] Further, I am satisfied that Ms Maharaj has been dismissed, that the Small Business Fair Dismissal Code does not apply and that the dismissal was not a redundancy.
[68] In order to decide if Ms Maharaj was unfairly dismissed it is necessary to consider if the dismissal was harsh, unjust or unreasonable. In making this assessment I have considered each of the matters in s.387 of the FW Act.
Section 387(a) – a valid reason for dismissal
[69] For a reason to be valid it must be “sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced cannot be a valid reason”.57
[70] The letter of termination sent by mail to Ms Maharaj by Northern Health dated 14 September 2016 states:
Northern Health has been reviewing your current work capacity now and into the future and the operational needs of Northern Health.
We note that you suffered a non-work related injury on 14 May 2015. Since that time, you have been unable to perform your pre-injury duties and unable to perform your pre-injury hours and your medical evidence also confirms this. You continued to lodge unfit for all work certificates as a result of your TAC injury.
A significant period of time has elapsed since you have been able to perform your pre-injury duties and hours. Given the significant restrictions on your current ability to perform your pre-injury employment, Northern Health has assessed your current medical restrictions, including how it impacts upon your duties and our need.
We have taken into consideration your likely incapacity into the foreseeable future.
Based on all of the above information Northern Health has made the decision to terminate you employment effective immediately.
We do wish you well in terms of your recovery.
Northern Health
[71] Northern Health submitted that it had a valid reason to dismiss Ms Maharaj. It said that, on the basis of the evidence, the reasons for Ms Maharaj’s dismissal are:
(a) She had been absent from the workplace for a significant period of time;
(b) She was at that time unfit to return to her pre-injury job; and
(c) She was unfit to return to her pre-injury job in the foreseeable future.
[72] Northern Health relied on the evidence of Ms Newth that Ms Maharaj “had been absent from work for a significant period of time and that she remained unfit now and for an indefinite period to return to her pre-injury duties and hours.” 58
[73] Northern Health said that, at the time it took the decision to dismiss Ms Maharaj, it:
(a) Had received a TAC Certificate of Capacity that specifically stated Ms Maharaj had “no capacity for employment” from 12 September 2016 to 10 October 2016; and
(b) Had not received any communication or been provided with any information from TAC or its rehabilitation provider that Ms Maharaj was capable of returning to her role as an ICU Liaison Nurse or that there were any adjustments necessary for her to do so.
[74] In the absence of any information to the contrary, Northern Health said it was entitled to conclude that Ms Maharaj was unfit to return to her pre-injury job. The inability of an employee to perform the inherent requirement of their job is a valid reason for dismissal.
[75] Northern Health rejected any suggestion that it was in breach of the Disability Discrimination Act 1992 (DD Act). It said that it is lawful to discriminate against an employee on the grounds of a disability if the person would not be able to carry out the inherent requirements of a job, even if reasonable adjustments were made. Because Ms Maharaj had been assessed as having “no capacity for work” the question of reasonable adjustment did not arise.
[76] It also said that it was not in breach of the Transport Accident Act 1986 (Vic) or any workers’ compensation requirements by terminating Ms Maharaj’s employment on the basis of her inability to perform her pre-injury job. She could not be unfit for work and hence eligible to receive TAC payments and be fit for work at the same time.
[77] Northern Health said that it was not unreasonable that it did not investigate a return to work plan with Ms Maharaj when she had not spoken of one with her return to work co-ordinator.
Ms Maharaj
[78] Ms Maharaj submitted that, at the time her employment was terminated:
(a) Sections 5, 6, 12 and 15 of the DD Act were engaged;
(b) Her condition was a disability under s.4 of the DD Act;
(c) Reasonable accommodations to duties and hours of work were a reasonable adjustment to make.
[79] At the time of her dismissal Ms Maharaj had some capacity to work although some modifications to her job would have been required (although said that she does not need to prove that she had the capacity to return to her pre-injury duties at the time of the dismissal).
[80] Ms Maharaj submitted that the only reasonable construction of the letter terminating her employment is that she would not be able to perform her full pre-injury duties and hours “into the foreseeable future.” If this reason does not stand up she said then there was no valid reason for her dismissal.
[81] Ms Maharaj relied on the evidence of Dr Yong that, two months after her dismissal when he examined her, she was ready to return to work although with a reduction in hours and gradually building up to her pre-injury hours and with no required modification of her duties.
[82] Ms Maharaj said that I should accept the evidence of Dr Yong “as it is the opinion of an appropriately informed and qualified specialist.”
[83] Ms Maharaj said that, given she could have returned to work in December 2016, if Northern Health had undertaken reasonable enquiries in September 2016 it would have learned she was ready to return to work or would have shortly been ready to do so.
[84] In addition or in the alternative, Ms Maharaj submitted that the DD Act places an obligation on Northern Health to make reasonable adjustments which means, she said, that it was required to take steps to identify a return to work plan. This did not occur in circumstances where one would have been available to her. She therefore said that the Commission can be satisfied that Northern Health breached the DD Act. Ms Maharaj submits that where the purported reason for dismissal would involve or lead to or amount to a breach of another law, the Commission should be slow to find that this was, nonetheless, a valid reason for the dismissal. On this basis the Commission should find that there was no valid reason for dismissal.
Consideration of valid reason
[85] The evidence with respect to the decision to terminate Ms Maharaj was given by Ms Newth. No other person involved in that specific decision or in any conversations leading up to or around that decision was called as witnesses. Ms Willingham, in particular, who appears to have been the person to raise the possibility of such action, no longer works for Northern Health.
[86] Northern Health made no inquiries as to Ms Maharaj’s ability to return to work at the time it made the decision to terminate her employment. It failed to make such inquiries in circumstances where Ms Newth, at least, was aware from the email she received from Ms Willingham on 7 September 2016 that there was an indication of Ms Maharaj’s ability to perform work. Northern Health took the final decision to terminate Ms Maharaj’s employment in circumstances where it had been contacted (and Ms Newth at least was aware of this contact) by Ms Maharaj’s return to work co-ordinator (Mr Keddie) who wanted to sit down with Northern Health to discuss a return to work plan for Ms Maharaj.
[87] In these circumstances Northern Health had no basis on which to conclude that Ms Maharaj had “significant restrictions” on her ability to perform her pre-injury job or that she was likely to have “incapacity into the foreseeable future”.
[88] It appears that Northern Health took the decision to terminate Ms Maharaj’s employment at the executive committee on 6 September 2016 on the basis of the certificate of capacity issued on 12 August 2016 and maintained this decision at its meeting on 13 September 2016 (the letter of termination was issued on 14 September 2016) despite:
● the information Ms Newth and Ms Willingham had including the September certificate of capacity which indicated a return to work plan should be developed; and
● the direct contact by Mr Keddie of Healthe Work with Ms Willingham.
[89] It is of some concern that Ms Willingham advised the executive committee that Ms Maharaj could only return to a modified role. To the extent that she may have had a discussion with Mr Keddie there is no evidence to support the proposition that Ms Maharaj could only return to a modified role. Certainly there was no discussion involving Ms Maharaj or any communication with her GP that suggested Ms Maharaj was unable to perform her “pre-injury role”. In fact the modification being considered by her GP was no more than a gradual increase in hours and to work as a supernumerary but certainly working in her previous role.
[90] The evidence of Ms Stent’s contact with Northern Health in August 2016 is not disputed and yet this attempt to start the return to work process does not appear to have been reported to the executive committee either in writing or orally by Ms Willingham, again casting doubt over the basis on which Northern Health decided to terminate Ms Maharaj’s employment.
[91] Ms Newth also relied on a conversation she had with Ms Willingham between 6 and 13 September 2013 in which Ms Willingham told her of a conversation she had with Ms Maharaj. Ms Willingham told Ms Newth that Ms Maharaj told her she would return “in time”. Apart from Ms Newth appearing to accept this as a statement of the indefinite the only direct evidence of the conversations between Ms Maharaj and Ms Willingham was given by Ms Maharaj.
[92] Ms Maharaj, in her evidence under cross examination, responded in relation to the conversations she had with Ms Willingham, as follows:
Ms Forsyth: You’d agree, wouldn’t you, that on 14 September, Mrs Willingham told you that the hospital was unable to offer you a return to work, where you were unfit to perform your pre-injury duties. You’d agree with that? That’s what you were told? Northern Health told you that they weren’t able to offer it because you weren’t fit to return to your pre-injury job?
Ms Maharaj: She said there was no return to work plan for me. Northern didn’t have a return to work plan for me.
Ms Forsyth: ...She stated that they didn’t have capacity to offer you alternative duties. That’s the case, isn’t it?
Ms Maharaj: I always said to Rhonda that I was ready to return to my pre-injury duties and she said there was no return to work plan for me.
Ms Forsyth: When…Mrs Willingham, asked you to explain what you meant by that, you indicated that you had been seeing a neurologist and that you would return in part, and that’s the case isn’t it?
Ms Maharaj: No. It’s not true.
Ms Forsyth: You were unable to provide your employer with any reassurance that you had capacity to return to your pre-injury duties. You’d agree with that?
Ms Maharaj: We didn’t have a return to work plan meeting at all, so we didn’t get an opportunity to talk about it.
Ms Forsyth: No, I appreciate it, but you weren’t able to provide her with any reassurance in that telephone conversation that you were ready to return to work, were you?
Ms Maharaj: That conversation didn’t take place. I didn’t talk about a neurologist at all, because I don’t have a neurologist. 59
[93] I prefer the evidence of Ms Maharaj on this. It is direct evidence of the conversation between Ms Maharaj and Ms Willingham. Ms Newth’s evidence is heresay and, given the absence of Ms Willingham, not reliable.
[94] I am satisfied, on the basis of the evidence of Ms Scully, that a return to work plan could have been developed for Ms Maharaj (as had occurred when she received the needle stick injury). Ms Scully had no issue with the concept of a supernumerary or with reduced hours to as little as a point two time fraction (i.e. one shift per week).
[95] In these circumstances it is difficult to conclude that the reasons for dismissing Ms Maharaj were “sound, defensible or well-founded”. A decision that is sound, defensible or well-founded has some basis in fact, it cannot be based on poor decision making.
[96] The evidence before the Commission is that Ms Maharaj could have returned to her pre-injury duties on a graduated return to work building up, over time, to her normal hours of duty. Dr Donahue had grounds to believe that she would receive some proposals for return to work of Ms Maharaj and from that find a basis for a return to work. After all, this is what had occurred when Ms Maharaj had her needle stick injury.
[97] Northern Health appears to have chosen not to explore in any substantive way if Ms Maharaj could return to work, when that might occur and on what conditions.
[98] For these reasons I am satisfied that there was no valid reason for the dismissal of Ms Maharaj.
[99] It also appears, prime facie, that Northern Health have breached the DD Act. Section 5 of the DD Act states:
5 Direct disability discrimination
(1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
[100] Section 21A of the DD Act provides an exception that it is not unlawful to discriminate on the grounds of a disability of the person if that person could not carry out the inherent requirements of the particular work even if reasonable adjustments were made.
[101] Again, the difficulty for Northern Health is that it made no inquiries as to whether or not Ms Maharaj could perform the inherent requirements of the position with reasonable adjustments. By failing to engage in any discussion with respect to a return to work Northern Health has seemingly abrogated its responsibilities.
[102] I am satisfied that Northern Health cannot rely on actions that breach the DD Act to found a valid reason for the dismissal of Ms Maharaj. Such a reason cannot be well-founded by its very definition.
[103] This would further support my finding that there was no valid reason for the dismissal of Ms Maharaj by Northern Health.
Sections 387(b) & (c) - notified of the reason and given an opportunity to respond
[104] Northern Health does not claim that it notified Ms Maharaj of the reason for her dismissal prior to making the decision to dismiss her nor does it say it gave her an opportunity to respond. I am satisfied that this is an accurate reflection of what did (or did not) occur.
[105] Northern Health makes no submission as to why procedural fairness was not afforded to Ms Maharaj.
[106] I ascribe no motive to Northern Health’s conduct but must express my dismay that an organisation of that size, with its array of specialist human resources staff, did not think that Ms Maharaj should have been advised of what it was considering nor given an opportunity to put anything to it prior to making the decision to send the letter terminating her employment.
[107] This is even more astounding in circumstances where Ms Willingham had been approached, prior to the final executive committee meeting of 13 September 2016 when Ms Maharaj’s case was discussed, by Ms Maharaj’s return to work co-ordinator wanting to commence discussions on a return to work plan.
[108] In the absence of any defence by Northern Health of these matters I am satisfied that Ms Maharaj was denied procedural fairness.
[109] Whilst it is not necessary to make a direct finding on this question – given that I have found no valid reason for her dismissal – even if I had found that there was a valid reason for Mr Maharaj’s dismissal the substantial procedural deficiencies would be a major factor in deciding if the dismissal was harsh, unjust or unreasonable.
Section 387(d) - unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[110] There was no unreasonable refusal to allow Ms Maharaj to have a support person. This is because there was no meeting with Ms Maharaj with respect to the consideration of the decision to dismiss her from her employment.
Section 387(e) - unsatisfactory performance
[111] Ms Maharaj was not dismissed for unsatisfactory performance. This is therefore not a relevant consideration.
Sections 387(f) & (g) - the size of the employer’s business and absence of dedicated human resource management specialists or expertise
[112] Northern Health is a large employer. It has a number of specialist staff in its human resources area. It is reasonable to expect that an organisation of that size with such specialist staff would have robust and sound policies and approach to dealing with matters that might lead to the termination of an employee’s employment.
Section 387(h) - any other matters
[113] No other matters are relevant.
[114] For the reasons set out above I am satisfied that the decision to terminate Ms Maharaj’s employment was unreasonable. Northern Health may well have been able to satisfy itself as to the correctness or otherwise of its position had it undertaken even the most basic of investigation with Ms Maharaj. It did not do so and there is nothing before the Commission that suggests that Ms Maharaj could not have returned to work, to her pre-injury duties on a graduated return to work plan.
[115] I therefore find that Ms Maharaj has been unfairly dismissed.
[116] Section 390 of the FW Act states:
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.
[117] I have found above that Ms Maharaj is protected from unfair dismissal and has been unfairly dismissed.
[118] Ms Maharaj seeks reinstatement.
[119] For the reasons given below I do not consider reinstatement to be inappropriate. I therefore do not need to consider a remedy of compensation.
[120] Ms Maharaj submitted that the relevant position to which she seeks reinstatement is as an ICU Liaison Nurse. The terms of her engagement, at the time of her dismissal, were that she worked a point seven time fraction. She said however that the evidence of Ms Scully is that ICU Liaison Nurses work as little as a point two time fraction such that it is untenable to suggest that she should be required to return immediately to a point seven fraction.
[121] Ms Maharaj said that the details of her return to work plan would be for her and Northern Health to determine, taking into account relevant workplace laws including the provisions of the DD Act.
[122] Ms Maharaj submits that the onus is on Northern Health to satisfy the Commission that:
a. she cannot perform the inherent requirements of the position (cf, immediately return to pre-injury duties and hours);
b. Any reasonable adjustment that may be available under the DD Act, including a graduated return to work plan, would not enable her to be able to perform the inherent requirements of the position. 60
[123] Ms Maharaj submits that the evidence shows that she is presently capable of performing the inherent requirements of the position. In particular:
● She was a competent ICU Liaison Nurse prior to her accident;
● She does not suffer any pain or psychological conditions arising from the accident that would affect her ability to do her job;
● She has the strength to handle the crash cart;
● She was taking anti-depressant medication after her needle stick injury which did not affect her ability to do her job.
[124] Further, Ms Maharaj said that, in analysing Dr Yong’s evidence, Northern Health ignored relevant evidence from him including that:
● He did not consider Ms Maharaj required modification of her duties and she could perform all of the duties set out in the evidence of Ms Scully;
● Upon being informed that Ms Maharaj may experience some mild and/or occasional pain he rejected that the pain per se changed his overall opinion;
● Pain was not a contra indication for returning to work;
● He accepted he had not performed a worksite assessment but rejected that this was necessary;
● He had not specifically discussed with Ms Maharaj the items of equipment she would be required to handle but was familiar with such items and opined that she could handle these;
● Rejected that a functional assessment was necessary before concluding Ms Maharaj could return to work.
[125] Ms Maharaj submitted that, if I am not satisfied that she could perform the inherent requirements of her position, I must also be satisfied that any reasonable adjustments that are available would not enable her to do so. She submits that it is Northern Health’s obligation to show she could not perform the inherent requirements without adjustment and it has failed to do so.
[126] Ms Maharaj said that, where it is claimed by Northern Health that she cannot perform the inherent requirements of her position, the obligation is on Northern Health to provide evidence to this end.
[127] Northern Health submitted that, before considering reinstatement the Commission must be satisfied that Ms Maharaj can fulfil the inherent requirements of her pre-injury job. If it is that Ms Maharaj said she can perform the inherent requirements of the job with reasonable adjustments it said it is her obligation to lead such evidence and she has not done so.
[128] Northern Health conceded that reinstatement may be subject to its usual return to work processes including a graduated return to work but that reinstatement cannot be made conditional on particular provisos.
[129] Northern Health submitted that, on the basis of the evidence of Ms Scully, it is a requirement that an ICU Liaison Nurse push a crash cart when attending MET calls and inpatient Code Blue calls and that the crash cart is required to remain in the possession of the ICU Liaison Nurse for the duration of the shift. Ms Scully also gave evidence that Ms Maharaj, as ICU Liaison Nurse, would be required to attend an increased number of MET calls and operate the crash cart without “compromising patient care…” 61
[130] Northern Health submitted that Dr Yong:
● did not undertake a worksite assessment,
● had not visited Northern Hospital and was not given any worksite or functional capacity assessment of Ms Maharaj by Healthe Work or the TAC,
● was not aware of Dr Watson’s (sic) opinion that Ms Maharaj would need to take antidepressant medication for up to two years;
● had not clinically assessed Ms Maharaj for sitting, standing, walking, bending, squatting, kneeling, pushing, lifting or reaching and did not speak to her of the equipment she was required to work on;
● had not assessed Ms Maharaj’s capacity to walk over distances or for assisting collapsed patients at floor level and had not seen her MRI or CAT scan;
● was unable to indicate if Ms Maharaj could operate the crash cart.
[131] Northern Health said that Dr Donahue was unable to confirm if Ms Maharaj could operate the crash cart, admitting that she had a “good level of confidence” that, in her opinion the pain Ms Maharaj was experiencing on 24 February 2017 could affect her ability to perform her duties. 62
[132] Northern Health submitted that the evidence of Dr Yong and Dr Donahue raises significant questions about the capacity of Ms Maharaj to return to her role as ICU Liaison Nurse.
[133] Northern Health said that Ms Maharaj sought to influence Dr Donahue’s opinion of her capacity by raising, in a consultation “in preparedness for the hearing” the crash cart, her PTSD and her capacity to lift luggage and her grandchild. 63
[134] Northern Health submitted that, given the nature of the job, the Commission requires “comprehensive medical evidence of both [Ms Maharaj’s] physical and psychiatric capacity to support an order for reinstatement.” 64 It said that, on the basis of the evidence, the Commission cannot be satisfied that Ms Maharaj can fulfil the inherent requirements of the position.
[135] Section 391 of the FW Act says, of reinstatement:
Reinstatement
(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.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
[136] An order for reinstatement cannot be subject to any conditions.
[137] In Ms V v Ambulance Victoria 65 Commissioner Smith considered the reinstatement of an employee who had been absent from the workplace for an extended period of time. The Commissioner said:
[46] I do not accept the proposition advanced by Ambulance Victoria that it cannot “give it a go”. Before any ambulance paramedic, who has had an extended period of leave, resumes normal operational duties they must undergo a knowledge gap analysis and receive any relevant training. Further, there can be no doubt that a community aim is to assist people who have been the subject of illness or injury to return to work if that is possible. Ms V wishes to return to work and both independent medical practitioners have not said that this is not possible. Ms V should be given this opportunity. If she is unable to satisfy Ambulance Victoria that she is able to perform the duties expected of her after a suitable return to work strategy has been devised and implemented, then this decision should not be read as requiring Ambulance Victoria to place someone in a role where it is demonstrably unsafe to do so.
[138] He concluded:
[52] I will make an order reinstating Ms V to the position in which she was employed immediately prior to her dismissal from 2 January 2012. Following her reinstatement, her return to normal duties is subject to her satisfactorily undertaking any gap analysis, training and supervision deemed necessary by Ambulance Victoria. I will also make an order maintaining continuity of employment from the time she was terminated. I decline to make any order in relation to lost remuneration. There does not seem to be any quantifiable remuneration lost since the time she was terminated. In addition, the concern expressed by Ambulance Victoria in relation to Ms V’s attention to meetings and returning documents has some relevance in this consideration.
[139] The decision of Commissioner Smith was subject to appeal. In Ambulance Victoria v Ms V 66 the Full Bench dismissed all grounds of appeal and, of the reinstatement order, said:
[66] We are satisfied that it was open to Commissioner Smith to reinstate the respondent to the position she occupied immediately before the dismissal. A finding that it was the position in which she was employed immediately before the dismissal was reasonably open to him on the evidence. It is a reinstatement to the position that the respondent previously occupied, subject to the appellant’s return to work processes. As envisaged by the Commissioner, the return to that position is subject 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, and subject to the return to work process in train at the time the decision was taken to terminate her employment, as set out in the 23 February 2010 letter from the appellant to the respondent and the evidence of Mr Roughton, the next step in which is the completion of a clinical assessment, including a physical assessment (involving the performance of physical operation duties). The application of the return to work processes of the appellant does not alter the nature of the position to which the respondent is reinstated. 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.
[footnotes omitted]
[140] In Cartisano v Sportsmed SA Hospitals Pty Ltd 67 (Cartisano) the Full Bench considered the requirements of s.391(1) of the FW Act. It said:
[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.
[141] After considering the findings in Blackadder v Ramsey Butchering Services Pty Ltd 68 (Blackadder) the Full Bench said, of conditions attached to a 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, 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”, 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 follows:
“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.”
…
[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. 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.
[Footnotes omitted]
The extent of any order the Commission may make on reinstatement
[142] I am satisfied that the only order the Commission may make is that Ms Maharaj be reinstated to the position “in which she was employed immediately before [the dismissal]” 69 (there being no claim for appointment to some other position consistent with s.391(1)(b)).
[143] As the Full Bench observed in Cartisano a reinstatement order may contain “ancillary provisions intended to ensure that the order is made effective” 70. I am not convinced, however, on the basis of the reasoning in both Blackadder and Cartisano that such ancillary provisions can alter the nature of the position to which a person is appointed on reinstatement such that it is no longer the position the person occupied prior to dismissal.
[144] I am satisfied that, on ordering reinstatement, it is reasonable to require the employer to take those steps necessary to ensure the smooth reintegration of the employee into the workplace, as it would be expected to do with any person absent for a period of time from the workplace.
[145] It is apparent, in this case, that Northern Health has, in the past, been considerate of the demands of a return to work, particularly where the absence has been by cause of illness or injury. 71
Inherent requirements of the position
[146] Competing submissions were made by the parties as to who held the obligation to satisfy the Commission that Ms Maharaj could or could not fulfil the inherent requirements of her position.
[147] Ms Maharaj seeks reinstatement. The Commission’s powers are limited in the first instance to reinstatement to the position she was employed in prior to dismissal.
[148] As a matter of approach it seems to me that any party seeking to depart from this basic premise has the obligation to present evidence to the Commission to support such a departure.
[149] If Northern Health is of the view that Ms Maharaj cannot perform the inherent requirements of the position such that it is not possible to return her to the position she was employed in prior to the dismissal then it must present evidence to this effect.
[150] However, if it is Ms Maharaj’s position that she should be returned to her position, but with some reasonable adjustments, then the obligation is on her first to demonstrate this is feasible and for Northern Health to then counter such submissions should it consider it not to be reasonable. It cannot be that Northern Health needs, first, to demonstrate that Ms Maharaj cannot return to the position with some reasonable adjustments without being aware of what these are or how Ms Maharaj might see them operating.
[151] In the circumstances of this case, apart from some sense that Ms Maharaj would seek (with her GP’s support) some gradual building up of hours to her point seven allocation and that there be some support for her on her return, it is not clear that Ms Maharaj says she requires any other adjustments. Whether this amounts to a “reasonable adjustment” under the DD Act is a moot point. Northern Health does not say that a graduated return to work is not possible and it seems to me to make good practice for someone who has been absent from the workplace for some period of time to ensure they are properly reintegrated. For this reason I have considered the reinstatement of Ms Maharaj to the position she occupied prior to her dismissal without any reasonable adjustments. This does not mean I have not considered what the Full Bench referred to as “ancillary provisions” which I consider further below.
The evidence of the doctors
[152] I am satisfied that, taking into account all of the relevant information, Dr Yong remained of the opinion that Ms Maharaj could return to her position at Northern Health. Whilst Dr Yong agreed that he did not have some relevant information in relation to Ms Maharaj he was satisfied that he had adequate information to form the opinion he did of Ms Maharaj’s capacity to return to work. 72
[153] I draw no conclusion from the fact that Dr Yong did not discuss with Ms Maharaj that she continued to take Lexapro. Nothing was put before the Commission that suggests Lexapro has any impact on the ability of a person to carry out any general or specific duties. In particular there was nothing before the Commission to suggest that Lexapro has any effect on Ms Maharaj’s ability to perform the inherent requirements of the position to which she seeks reinstatement.
[154] Dr Lester Walton is a Consultant Psychiatrist. Ms Maharaj saw him on 10 May 2016 on referral by the TAC. Dr Walton (erroneously referred to as “Dr Watson” in some parts of transcript and submissions) expressed the opinion that Ms Maharaj:
● would require on-going anti-depressants for a least the next two years. 73 He noted that, at the time of the car accident, she was being “treated with antidepressant medication” in the aftermath of the needle stick injury but was being weaned off it at the time of the car accident.74
● Was, at the time of the report, fit to return to her pre-accident duties. 75
● Considered a graduated return to work over a period of three to four months “to be sensible”. 76
[155] Cleary Dr Walton did not consider the antidepressant medication would adversely affect Ms Maharaj’s capacity to fulfil the requirements of her job.
[156] Dr Yong agreed that this was not an area of expertise for him. It is reasonable for him to accept the report of Dr Walton.
[157] With respect to any pain still being experienced by Ms Maharaj, there is nothing in the medical reports that suggest that the pain is such to prevent Ms Maharaj from returning to work. Whilst Dr Donahue recorded the pain being experienced by Ms Maharaj she has also recorded that Ms Maharaj considers she is fit to return to work and the hours Ms Maharaj considered she could work. 77
[158] Dr Donahue maintained her opinion that Ms Maharaj was capable of performing the inherent requirements of her position. Whilst she agrees that she had said on the TAC certificate of capacity in September 2016 that Ms Maharaj had no capacity for employment, she maintains that she was expecting contact with Northern Health to work out a return to work for Ms Maharaj. I am also satisfied that, as a long standing GP and having treated Ms Maharaj since 2006, her opinion of Ms Maharaj’s health and ability should be accorded weight.
[159] No contrary medical information was put before the Commission. There are no grounds on which I should reject the opinion of Dr Yong and Dr Donahue as to Ms Maharaj’s ability to return to her pre-injury duties.
[160] That Ms Maharaj’s return to work co-ordinators attempted to make contact with Northern Health from August 2016 in order to develop a return to work plan for her supports my conclusion that Ms Maharaj could fulfil the inherent requirements of her position.
[161] I accept the evidence of Ms Scully as to the duties required to be performed by an ICU Liaison Nurse. There are no grounds to conclude that Ms Maharaj could not perform these duties.
[162] I reject the suggestion that there was any collusion between Ms Maharaj and Dr Donahue with respect to the matter before the Commission. Whilst Northern Health do not put it as clearly as that the clear implication is in its submission that this did occur.
[163] The TAC certificates of capacity indicate that Ms Maharaj attended her GP every month. Ms Maharaj consulted Dr Donahue on 27 March 2017, two days prior to the hearing of her application for unfair dismissal. Ms Maharaj says that the appointment was made sometime between 24 February and 1 March 2017 78 and that the purpose of the consultation was for her TAC certificate of capacity as these needed to be done every four weeks.79 Ms Maharaj denied that she had discussed the matter before the Commission with Dr Donahue,80 that she had sought to influence Dr Donahue’s opinion81 or that they had colluded about the evidence to be given.82
[164] Dr Donahue denied that the reason for Ms Maharaj’s consultation on 27 March 2017 was to influence what Dr Donahue may say in the proceedings. 83
CONCLUSION AS TO REINSTATEMENT
[165] For the reasons given above I am not satisfied that reinstatement is inappropriate. An order 84 for the reinstatement of Ms Maharaj to the position she occupied prior to her dismissal will be issued. The order will take effect within 14 days of the date of its issue.
Ancillary matters
[166] I am satisfied that relevant ancillary matters associated with my decision that Ms Maharaj be reinstated into the position she occupied prior to her dismissal include that Ms Maharaj and Northern Health should consult on an appropriate means by which she return to her pre-dismissal hours including a graduated return to work as needed and any training or support necessary. To be clear, my order for reinstatement is not conditional on these matters. It is my expectation however, consistent with best practice, that such matters will be taken into account in returning Ms Maharaj to the workplace.
[167] No submissions were put to the Commission with respect to other orders which should be made pursuant to s.391(2), (3) and (4) of the FW Act.
[168] I shall therefore order that the parties confer and advise the Commission within two weeks on associated orders. Ms Maharaj is to advise the Commission by 4 July 2017 if agreement has been reached, in which case further orders with respect to s.391 of the FW Act will be issued.
[169] If no agreement is reached the Commission will issue directions for submissions on these matters.
COMMISSIONER
Appearances:
A. Aleksov of counsel for Ms Doris Maharaj.
A. Forsyth of counsel for Northern Health T/A The Northern Hospital.
Hearing details:
2017.
Melbourne:
March 29, 31.
Final written submissions:
Applicant: 21 April 2017 and 22 May 2017.
Respondent: 12 May 2017.
1 Exhibit A2, paragraphs 33-34.
2 Exhibit A2, paragraph 43.
3 Transcript PN802.
4 Transcript PN805-806.
5 Transcript PN567-568.
6 Transcript PN652.
7 Transcript PN 654.
8 Transcript PN656.
9 Transcript PN729.
10 Exhibit A2, paragraph 36.
11 Exhibit A2, paragraph 37.
12 Ms Maharaj submissions, 21 April 2017, paragraph 53(d) and Transcript PN566-569.
13 Transcript PN951.
14 Exhibit A2, annexure DM-5.
15 Exhibit A2, annexure DM-6.
16 Exhibit R8.
17 Exhibit R6.
18 Transcript PN965.
19 Transcript PN1002.
20 Transcript PN1008.
21 Transcript PN1069.
22 Transcript PN1072-1073.
23 Transcript PN1176.
24 Transcript PN1024.
25 Exhibit A1, attachment DY-1, p. 8.
26 Ibid.
27 Transcript PN74.
28 Transcript PN180, PN192-194.
29 Transcript PN182-186.
30 Transcript PN440-447.
31 Transcript PN219 and PN221.
32 Transcript PN238.
33 Transcript PN100, PN369-373.
34 Transcript PN395.
35 Transcript PN394.
36 Transcript PN411-PN412.
37 Exhibit R15, paragraph 13.
38 Ibid , paragraph 10.
39 Ibid, paragraph 8.
40 Exhibit R15, attachment MN-1.
41 Transcript PN2083 and PN2085.
42 Transcript PN2091.
43 Exhibit R15, paragraph 13.
44 Transcript PN2124.
45 Transcript PN2599.
46 Transcript PN2176.
47 Transcript PN2158-2159, PN2175-2176 and PN2205-2206.
48 Exhibit R15, attachment MN-2.
49 Exhibit R15, attachment MN-5.
50 Transcript PN2648.
51 Exhibit R16, paragraphs 10-11.
52 Exhibit R16, paragraphs 14-16, 19-20.
53 Exhibit R16, paragraph 21.
54 Transcript PN2427-2430.
55 TranscriptPN2483-2491.
56 Exhibit R16, paragraph 28.
57 Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371, 373.
58 Exhibit R15, paragraph 13.
59 Transcript PN802-806.
60 Ms Maharaj submissions, 21 April 2017, paragraph 52(a).
61 Northern Health Submissions, 12 May 2017, paragraphs 34-35.
62 Ibid, paragraph 40.
63 Ibid, paragraph 48.
64 Ibid, paragraph 49.
68 (2005) 221 CLR 539.
69 Northern Health Submissions, 12 May 2017, paragraph 32.
70 [2015] FWCFB 1523 at paragraph 45.
71 Exhibit A2, attachment DM-1.
72 Transcript PN411-412.
73 Exhibit A2, attachment DM-4, p. 7.
74 Ibid, p. 3.
75 Ibid, p. 7.
76 Ibid, p. 8.
77 Exhibit R4.
78 Transcript PN1939.
79 Ibid, PN1942-1943.
80 Ibid, PN1945.
81 Ibid, PN1948-1949.
82 Ibid, PN1950.
83 Ibid, PN1336-1337.
Printed by authority of the Commonwealth Government Printer
<Price code G, PR593385>