COMMISSIONER
| [2022] FWC 194 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Ms Deanna Kelly
v
Moreton Bay Boys' College
(C2021/7022)
COMMISSIONER SIMPSON |
BRISBANE, 31 JANUARY 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)] - Moreton Bay Boys - College Enterprise Agreement 2019 AE502415 - whether it is reasonable for the employer to direct an employee to attend an Independent Medical Examination - whether the Applicant is entitled to wages after providing medical evidence certifying her fit to work on restriction
[1] On 19 October 2021, Ms Deanna Kelly (Ms Kelly / the Applicant) made an application to the Fair Work Commission (the Commission) under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with clause 2.3 of the Moreton Bay Boys’ College Enterprise Agreement 2019 (the Agreement). Moreton Bay Boys’ College is the Respondent to this application (MBBC / the Respondent).
[2] I listed the matter for a private conference on 27 October 2021. At the conference, the Respondent objected to the application arguing that the Commission did not have jurisdiction to deal with the dispute. This objection was subsequently discontinued before the following mention/directions conference held on 8 November 2021. The matter did not resolve at conference and was ultimately referred for arbitration.
[3] Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing on Monday, 20 December 2021 in Brisbane with the parties to attend in person. The Respondent was represented by Mr Lepahe of HWL Ebsworth Lawyers (HWL), and the Applicant was represented by Mr Spriggs of the Independent Education Union of Australia (IEU).
[4] The Applicant called two witnesses, being herself and Dr Jocelyn Keogh of Capalaba General Practice (Dr Keogh), a witness statement was filed for Dr Keogh 1 and the Applicant filed an initial statement2 and a statement in reply3. The Respondent also called two witnesses, being Ms Naomi Williams, the Acting Head of Secondary – Teaching and Learning (Ms Williams) who provided a witness statement,4 and Mr Andrew Holmes, the Principal of MBBC (Mr Holmes), who also provided a witness statement.5
[5] The Applicant commenced employment with the Respondent as a part time Teacher on 15 July 2019. She stated she had been a teacher since 2005, where she had taught high school for 11 years. Japanese has been her main area of teaching for the Respondent.
[6] The Respondent advised that the Applicant had raised several concerns regarding her timetable, allocation for planning and preparation time, mandatory attendance at school events and ability to complete work during contracted hours. Various emails and discussions were exchanged between the parties from January 2021 to May 2021 regarding these issues.
[7] On 28 May 2021, however, the Applicant was involved in an incident at the MBBC after refusing to attend a Foundation Day Assembly during the first period, on the basis that she had lost her planning lesson. The Applicant had set out the particulars of this incident in her Accident/Incident Report which she had submitted to the Respondent. The Applicant reported as follows:
“On Friday 28 May, I attended the MBBC ceremony. I became upset when required to stay as I had work pending and not been allocated 20% of PAC as required by the EBA. I started to cry and left the ceremony. I went for a walk. I returned to my desk. I started to complete work. I started to feel better. I was called back to the ceremony. I was told to calm down. I did. I was lectured which made me stressed and anxious. I tried to leave. I was blocked. I was told I had to return to the ceremony. I tried to explain I couldn’t return as it would cause me anxiety. I tried to leave. I was blocked. I was again told I had to return to the ceremony as that was the expectation of all teachers. I left.” [sic]
[8] After the incident, the Applicant returned her keys to the Respondent and left the school premises. The Applicant has subsequently been on a period of leave following this date where she also lodged an application for workers’ compensation. It is noted that the Applicant had also previously filed an application with the Commission regarding the amount of work she was required to perform and whether or not the Agreement was being complied with in relation to hours of work. This matter was resolved with an outcome being reached to reduce the Applicant’s workload.
[9] On 23 June 2021 and again on 3 July 2021, the Applicant provided a medical certificate which stipulated that she would be fit to return to full duties on and from 13 July 2021. This would have been about 45 days after she had commenced leave.
[10] On 12 July 2021, the Applicant was advised that the work capacity certificate dated 18 June 2021 did not reflect some of the limitations the Applicant was subject to and required this information. There have been numerous emails back and forth between the parties regarding the work capacity of the Applicant, which have been set out in further detail below. Ultimately, the Respondent had directed the Applicant, through a letter from HWL, to attend an Independent Medical Examination (IME) with Dr Wasim Shaikh (Dr Shaikh) on 24 November 2021. The Applicant did not attend.
[11] The Applicant submitted that the direction to attend an IME was not a reasonable direction. She further submitted that she had provided the Respondent with an elaborated medical certificate, which was not accepted by the Respondent, with no reasons provided. The Applicant submitted she was willing and able to perform duties from 13 July 2021, and therefore is of the view that she is entitled to wages for the period of 13 July to 13 September, and further wages after 24 November 2021.
[12] The Respondent refuted the Applicant’s submissions, arguing that the Respondent could not, in good faith, facilitate the Applicant’s return to work as it had minimal knowledge of her condition or what had instigated it. Given the environmental factors in the workplace were largely unchanged during the Applicant’s absence, it had formed a reasonable belief that the workplace would pose a risk to the Applicant’s health and safety. In those circumstances, the Respondent submitted they had proceeded to issue a reasonable direction for the Applicant to attend an IME. As such, the Respondent is of the view that they are not required to pay the Applicant for the wages as argued by the Applicant.
[13] The parties provided the following Agreed Statement of Facts.
“AGREED STATEMENT OF FACTS
1. At all material times, the Applicant was employed by the Respondent, to work at the Moreton Bay Boys' College as a part-time Teacher.
2. Jurisdiction
2.1 The Fair Work Commission has jurisdiction to deal with the dispute, pursuant to the Moreton Bay Boys' College Enterprise Agreement 2019 (MBBC Agreement).
3. Applicant's Departure on 28 May 2021
3.1 On 28 May 2021, the Applicant returned her keys and departed the school grounds.
4. Worker's Compensation claim
4.1 The Applicant lodged an application for worker's compensation claiming that she was suffering a psychological injury caused by work-related factors.
4.2 The Applicant's claim for worker's compensation was declined.
4.3 WorkCover closed the claim and issued the written reasons for decision to the Applicant on 23 September 2021.
5. Previous Fair Work Commission Dispute
5.1 The Applicant filed a dispute with the Fair Work Commission (FWC) regarding the amount of work she was required to perform and the interpretation of the MBBC Agreement with respect to allocated preparation and correction time.
5.2 The parties reached an in-principle agreement regarding the issues in dispute, however, the Applicant did not sign the Deed reflecting this agreement following the FWC conference.
5.3 The Applicant notified the Respondent on 24 June 2021 that she was discontinuing the FWC dispute and would file a form F50 - Notice of Discontinuance with the FWC.
6. Medical Certificates
6.1 The Applicant supplied several 'work capacity certificates' to the Respondent during her period of absence, dated as follows:
(a) 29 May 2021;
(b) 4 June 2021;
(c) 18 June 2021;
(d) An updated certificate dated 18 June 2021;
(e) 12 July 2021;
(f) 12 August 2021;
(g) 27 August 2021; and
(h) 10 September 2021.
Copies of these certificates are included in the Respondent's submissions at Annexure NW-6.
7. Payment of wages
7.1 The Applicant has not been paid wages by the Respondent for the period of 28 May 2021 to 13 September 2021 (inclusive).
7.2 The Respondent has paid the Applicant her wages, and entitlements, for the period of 14 September 2021 to 24 November 2021 (inclusive), in accordance with her contracted hours.
7.3 The Respondent ceased paying the Applicant's wages on and from 24 November 2021.
8. Direction to attend medical examination
8.1 On 10 September 2021, the Respondent's solicitors wrote to the Applicant, advising her of the requirement to attend a medical examination with Dr Wasim Shaikh, via Zoom, on 24 November 2021. The Applicant was also asked to sign an Authority providing consent for her General Practitioner to provide information regarding her injury and her full medical records to the Respondent, so this information could be provided to Dr Shaikh.
8.2 On 13 September 2021, the Respondent's solicitors wrote to the Applicant, confirming the requirement for her to attend an independent medical examination.
8.3 On 5 November 2021, the Respondent wrote to the Applicant with respect to:
(a) payment of the Applicant's wages between September and November 2021;
(b) re-confirming the direction for the Applicant to attend the appointment with Dr Shaikh and requesting for the Applicant to confirm her attendance;
(c) enclosing a refined 'Authority to Release Records' form to the Applicant and directing her to provide a signed copy to the Respondent's solicitors; and
(d) outlining potential consequences for failing to attend the appointment with Dr Shaikh, including disciplinary action and termination of employment.
8.4 The Applicant did not agree to attend an assessment to be conducted by Dr Shaikh.
8.5 The Applicant did not attend the appointment with Dr Shaikh on 24 November 2021.
9. The Application
9.1 On 19 October 2021, the Applicant filed a Form F10 - Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure, with respect to her employment with the Respondent (Application).
9.2 The Application alleged that the Respondent refused to allow the Applicant to perform work or be paid wages since 13 July 2021 and unreasonably directed the Applicant to undergo a medical examination.
9.3 On 27 October 2021, the Applicant and Respondent attended a conciliation conference before the FWC. The matter was not resolved during the conference.
9.4 The Respondent has since paid the Applicant wages and entitlements for the period 14 September to 24 November 2021.”
[14] The parties agreed that the questions for consideration before the Commission involve the following:
• Does the Respondent’s direction for the Applicant to attend an Independent Medical Examination with Dr Wasim Shaikh on 24 November 2021 constitute a reasonable direction?
• Is the Respondent liable to pay the Applicant her wages for the period 13 July 2021 to 13 September 2021, or for any part of that period?
• Is the Respondent liable to pay the Applicant her wages after 24 November 2021?
[15] The Applicant filed her application under s.739 of the Act and identified the Agreement as the relevant instrument. This was accepted by the Respondent as the appropriate instrument covering Ms Kelly.
[16] The Agreement is a single enterprise agreement. It was approved in accordance with s.185 of the Act and came into force from 20 March 2019. The Agreement also covers the IEU in accordance with s.201(2) of the Act.
[17] Clause 2.3 of the Agreement sets out the dispute resolution procedure for disputes under the Agreement. The clause stipulates:
“2.3 Dispute Resolution Procedure
2.3.1 If a dispute relates to:
(a) a matter arising under the agreement; or
(b) the National Employment Standards; or
(c) any industrial matter;
this clause sets out procedures to settle the dispute.
2.3.2 An employee who is a party to the dispute may appoint a representative for the purposes of the procedures in this clause.
2.3.3 In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level, by discussions between the employee or employees and relevant supervisors and/or management.
3.2.4 If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the matter to the FWC.
3.2.5 The FWC may deal with the dispute in two (2) stages:
(a) The FWC will first attempt to resolve the dispute as it considers appropriate, including by mediation, conciliation, expressing an opinion or making a recommendation; and
(b) If the FWC is unable to resolve the dispute at the first stage, the FWC may then:
(i) arbitrate the dispute; and
(ii) make a determination that is binding on the parties.
[Note: If the FWC arbitrates the dispute, it may also use the powers that are available to it under the Act. A decision that the FWC makes when arbitrating a dispute is a decision for the purpose of Div. 3 of Part 5.1 of the Act. Therefore, an appeal may be made against the decision.]
…
2.3.7 The parties to the dispute agree to be bound by a decision made by the FWC in accordance with this clause.
…”
[18] The application of this dispute appears to have stemmed from various incidents and interactions between the parties. Whilst the main issues of concern are in relation to the Applicant’s leave and the Respondent’s direction to attend an IME, the discussions between the parties prior to and after her period of leave to accommodate the Applicant in the workplace, and the incident on 28 May 2021, are relevant in answering the questions for arbitration.
[19] Ms Williams provided evidence that in January 2021, the Applicant contacted her via email requesting several changes to her timetable for the following term to accommodate her personal commitments and leisure activities. In response, Ms Williams advised she had made two changes to her timetable and decreased the Applicant’s contact time by three hours per week.
[20] On 26 March 2021, the Applicant notified Ms Williams that she was meeting with the Business and Design teachers during her lunch breaks to discuss planning. As a result of this concern and with the Applicant’s agreement, Ms Williams advised she had changed the Applicant’s contractual hours from 0.6 to 0.66 full-time equivalent, to incorporate time for a weekly meeting with the Design and Business teachers during the fifth period on Thursday.
[21] Two days later, Ms Williams noted that the Applicant requested that the weekly meeting with the Design and Business teachers be scheduled outside of her working hours, rather than increasing her hours on a Thursday to ensure there was no opportunity created for her to be allocated to internal covers. Ms Williams advised she declined this request and explained to the Applicant that it would be unreasonable to expect the Applicant to attend work meetings outside of her contractual hours.
[22] Ms Williams advised that the Applicant was provided with approximately 104 minutes of additional preparation and correction time each week over and above the required allocation provided for in the Agreement.
[23] Ms Williams was cross examined about the Applicant’s hours being 0.72 of a FTE load. It was put to Ms Williams that it was a fallacy that the Applicant’s hours were reduced from 0.72 to 0.6. Ms Williams said the hours were reduced to 0.6 and it was organised for meetings the Applicant was having during her lunch hour to be had on Thursday afternoons and her hours were increased from 0.6 to 0.66 FTE load. Ms Williams said a letter setting out the reduction from 0.72 to 0.6 was not sent, but the hours were removed so that the Applicant could have her hours back.
[24] The Applicant commenced a period of leave following an incident at approximately 9:00am on Friday, 28 May 2021 outside the MBBC Administration Office. According to the Incident Report, the Applicant became upset when she refused to stay at the MBBC Foundation Day Assembly as she had work pending and had not been allocated 20% of PAC as required under the Agreement. The Applicant said she had started crying and left the ceremony to continue work. The Applicant was called to return to the ceremony causing her to feel stressed and anxious. She said she attempted to leave but was blocked.
[25] According to Ms Williams, the Applicant had approached Ms Williams during the Assembly and asked whether she had to attend the Assembly and lose her spares. Ms Williams confirmed she had to attend, in which the Applicant became upset and left the hall. Mr Holmes provided evidence confirming that it was compulsory for all teachers to attend this Assembly. After the Applicant left the hall, Ms Williams learnt that the Applicant had interacted with several Administration and teaching staff, in the course of which she exhibited several concerning behaviours, such as:
• yelling about how she did not have time for the Assembly and wanted to do her work;
• swore at other staff members and made rude hand gestures;
• became visibly angry and upset outside the hall, in the view of students; and
• threw her keys and name badge on the reception desk and stated, words to the effect of, “I’m not coming back, can you let Coby know as she will need to cover my classes. My laptop is on my desk”.
[26] Ms Williams and Mr Holmes accepted that the Applicant did not return to work following her departure on 28 May 2021. Following the incident, on the same day, the Applicant sent an email to Mr Holmes explaining that she was not coping with the required workload and requested support from MBBC. An extract of the email is reproduced below:
“I left work today feeling frustrated, angry, upset and with too many emotions I can’t explain.
I attended the ceremony and became upset when I was required to stay for the entire time as I have work pending and had been given a cover, leaving me with 1 planning lesson instead of 3 planning lessons. I started to cry and left the ceremony. I went for a walk then returned to my desk to complete my work, which made me feel better. I was called back to the ceremony and told I had to remain for the entire time. It was obvious I was not coping, as I was in tears and saying I couldn’t cope. I was told to calm down and when I did, I was lectured about how I was in the same boat as everyone else, having the same amount of work to complete and that I was expected to return to the ceremony. I tried to explain I couldn’t return as it would cause me anxiety to sit there when I had so much work to complete, knowing I could be doing my work at my desk feeling better. I was told I had to return to the ceremony as that was the expectation of all teachers, so I left.
I understand the importance of attending ceremonies, celebrations, sporting achievements, etc. However, when they come at the expense of teaching and learning and wellbeing, I believe considerations need to be made. I was not trying to get out of work, I was trying to relieve my stress by accomplishing what the school needs me to accomplish.
I am overwhelmed with the amount of work I need to complete and have asked for support and trialled solution; however, the situation has not changed.
The solution to increase my hours for planning time and meeting times (to allow me to have my breaks) was intended to support me. I did not want to increase my hours, as I had used the additional time (my non-working time) for planning, following up with parents/students etc. However, I agreed as I was told that the additional time would not increase the number of covers, taking away from my planning time. Unfortunately, this was not the case. The first meeting did not happen due to swapped classes, subsequent meeting times were not blocked out leading to a cover during the meeting time, and increased covers meant less planning time. Of the 6 meeting I should have had, I have only had 3. This means I have spent more time doing other work and completed less of what I am required to do for my subject areas. I asked to have my hours decreased so I can complete more work and the request was denied as I had agreed to trial the solution of the term. As meeting times are now Tuesday afternoons, I am required to attend two sets of meetings…” [sic]
[27] Mr Holmes confirmed to have received this email, particularly noting the concerns raised by the Applicant and her request that four of her planning and correction lessons each week be blocked out so she could be allocated internal covers and to decrease her hours to 0.6 full time equivalent. This was so the Applicant may work her part time hours and complete her work outside of her work hours as required.
[28] The parties agreed that the Applicant lodged a workers’ compensation claim, reporting that she was suffering from a psychological injury caused by work-related factors. It is noted that this claim was later declined, with the reasons of the decision by WorkCover Queensland (WorkCover) issued to the Applicant on 23 September 2021. However, the Applicant is currently pursuing her rights to have the decision reviewed.
[29] During cross examination Ms Kelly explained she understood what Foundation Day was about. Ms Kelly said her objection to attending was on the basis of a lot of work she had to do. It was put to Ms Kelly she was not at school the day before. She accepted she attended an excursion the day before in connection with Physics. It was put to her that was not related to her subject area. Ms Kelly said she asked to attend, and it appears that it was her husband who was the Physics teacher that she attended the excursion with. It was put to her that her attendance was a frolic. She disputed that saying she had previously studied physics and also the excursion was planned before she was aware of the buddy class she had to prepare for Japan. Ms Kelly said two hours at an assembly was not as productive as ensuring her students received the education they needed.
[30] It was put to Ms Kelly that she could have done preparation work on 27 May and not complained on 28 May and reacted as she did. Ms Kelly said she could not have done all of the work she was required to do. Ms Kelly accepted all teachers are expected to attend Foundation Day and that parents and the Board were also in attendance.
[31] Ms Kelly repeated her claim that she was physically blocked from leaving, and said to the member of staff she was not coping, and was crying. It was put to Ms Kelly that she verbally abused the member of staff and used bad language and a rude hand gesture. Ms Kelly said when she was being blocked she said to the member of staff she quit and she swore at the member of staff and quickly ran past her. Ms Kelly maintained she was blocked from leaving three times and it was traumatic.
[32] Ms Williams rejected the claim that the staff member would have attempted to block Ms Kelly. Ms Williams suggested the staff member may have tried to settle her or put her arm of her shoulder. Ms Williams accepted she had no first-hand knowledge of the incident however had worked with the staff member in question for 13 years and did not believe she would have blocked the Applicant. Ms Williams said the staff member told her the Applicant yelled.
[33] Ms Williams said despite the additional support provided to the Applicant, she was significantly behind with her marking and planning when she commenced leave on 28 May 2021. As a result of this:
(a) the year 11 and 12 students the Applicant taught for Japanese were unable to complete their June assessments on the scheduled dates;
(b) the year 12 Japanese student was particularly disappointed that his exam was rescheduled in circumstances where he had studied hard, the assessment would contribute towards his ATAR results and the spoken exam was ultimately completed with a teacher from Moreton Bay College who was not familiar to him;
(c) the students in years 7 to 10 were impacted because their:
(i) Semester Reports for Semester 1 2021 were incomplete because assessments had not been marked; and
(ii) learning for Semester 2 was hampered because the Applicant had not submitted any planning and therefore the Supply Teachers could not adequately substitute the Applicant during her unplanned absence; and
(d) the Design and Business teachers were required to take on additional workload to complete the Applicant's outstanding marking in these subjects.
[34] After the 28 May incident the Applicant filed a dispute with the Commission separate, and before, this current application in relation to the amount of work she was required to perform and the interpretation of the Agreement with respect to allocated preparation and correction time. The parties confirmed that an in-principal agreement was reached regarding these issues, however, the Applicant did not sign the Deed reflecting this agreement following the conference. Irrespective of this, the Applicant notified the Respondent on 24 June 2021 that she was discontinuing the dispute and would file a Form F50 – Notice of Discontinuance.
[35] Ms Williams advised that despite the Applicant not signing the Deed, the Respondent agreed that the Applicant could still be removed from teaching Business classes. According to the Applicant, the dispute notification resulted in an outcome being reached which reduced her workload.
[36] Ms Williams said the outcome of the conference was that contact time was removed from her so she could have two planning and correction lessons.
[37] The Applicant was asked why she did not sign the Deed reflecting the settlement reached at the FWC conference. The Applicant said she felt it did not reflect what was discussed at the conference and she did not want to sign something she did not fully understand. The Applicant said rather than speaking to a lawyer about it, she just wanted to get back to work. It was put to the Applicant that even though she did not sign the Deed, the school committed to fulfil what it had agreed to at the conference and the Applicant accepted the school would reduce her work and add planning and correction time as they said they would. It was put to the Applicant that her refusal to sign the Deed might be seen as an expression of bad faith. The Applicant said it depended on whether they understood what was agreed on, and she did not want to delay her return to work by getting legal advice.
[38] The Applicant supplied several Work Capacity Certificates to the Respondent during her period of absence, dated 29 May 2021, 4 June 2021, 18 June 2021, an updated certificate dated 18 June 2021, 12 July 2021, 12 August 2021, 27 August 2021, and 10 September 2021. Ms Williams noted that the Work Capacity Certificates indicated that her doctor had assessed her as suffering from “anxiety relating to expectations of School to complete more work than is possible during hours agreed to”.
[39] In particular, the Applicant provided the Respondent on 23 June 2021 a medical certificate dated 18 June 2021 which stipulated that the Applicant required treatment from 20 June to 12 July 2021, which was to be reviewed again on 12 July 2021 and that, in her doctor’s opinion, estimated to return to work on 13 July 2021. Ms Williams noted that several key sections of the certificate had been left blank, including “Part D – Capacity for work”, “Part E – Functional ability” and “Part F – Rehabilitation at work – Return to work plan”.
[40] On the following day, the Applicant emailed Mr Holmes and Ms Williams requesting details of her timetable for Term 4 urging the Respondent to consider the workload she undertakes on a 0.66 load and that the Japanese Unit Plans for Year 7 to Year 10 had not been written yet. The Applicant further confirmed here that she had discontinued her application with the Commission. Mr Holmes replied to the Applicant’s email acknowledging that it was agreed at conciliation that the Applicant is no longer required to teach Year 10 Business Studies, and further enquired as to why the Applicant did not sign the deed. The Applicant replied on the same day stating she did not sign the Deed as it was “too stressful to consider the possibilities of what it all means” and requested her timetable for Term 3 again, expressing her desire to recommence work at the beginning of Term 3. The following day on 25 June 2021, Mr Holmes replied to the Applicant stating he will ask Ms Williams and Ms Coby Acton, Personal Assistant to the Head of Primary and Secondary (Ms Acton) to email the Applicant a copy of her timetable when she returns from Annual Leave.
[41] The parties did not interact until the Applicant’s next email sent on 3 July 2021 where she provided another medical certificate dated 18 June 2021, which stated that the estimate time to return to “some form of work duties” was 13 July 2021 and included a list of restrictions under “Part E – Functional Ability”. The Applicant noted that the medical certificate simply marked “other” as tasks that are affected by the injury/condition. Mr Holmes confirmed to have received this email on 5 July 2021.
[42] The Applicant received her timetable and duty roster from Ms Acton. The Applicant contended that this further confirmed that she would be returning to work as requested. The Applicant’s evidence is that she called the Respondent on 12 July 2021 to confirm her return to work on the following day. She also said this was to have a discussion with a MBBC representative in relation to a “return to work catch up”, the calculation of her hours and whether she was to undertake any duty outside of her contracted hours, as appeared to be indicated by the duties roster. The Applicant sent an email to Ms Carissa Liddle, Human Resources Advisor (Ms Liddle) following this confirmation to confirm her queries regarding the timetable. An extract of the email is reproduced below:
“Hi Carissa
Thank you for talking to me today.
As mentioned, I am wondering about my contracted hours. I have attached my T3 Timetable. Below are the hours I work; I have not included the class I have on Monday in my hours.
Mon: Not at Work
Tues: 8:30 to 4:30 (8 hours – 6 hours and 40 minutes ordinary hours and 1 hour 20 minute meeting)
Wed: 1:20 to 3:10 (1 hour 50 min – ordinary hours) (additional duty added to my T3 timetable 12:40 to 1:00 – 40 minutes)
Thur: 8:00 to 3:10 (7 hours 10 min – ordinary hours)
Fri: 7:45 to 3:10 (7 hours 25 min – 7 ordinary hours and 25 minute meeting)
I would appreciate my hours being calculated.”
[43] Ms William confirmed this email was sent to Ms Liddle, noting it regarded additional planning and correction time for Term 3, notwithstanding her refusal to sign the Deed. Ms Williams stated that Ms Liddle contacted her following the phone call with the Applicant, in which she advised the concerns raised by the Applicant. Ms Williams assisted Ms Liddle in formulating an email back to the Applicant in addressing her concerns. The Applicant received a reply to her email confirming her rostered hours and duties. The email stated as follows:
“… Thanks for your email. Below is clarification of your timetable and hours:
Monday – Not at work
Tuesday – Full day (6hrs)
Wednesday – Period 5 and 6 (no duty) (2hrs)
Thursday – Full day (6hrs)
Friday – Full day (6hrs)
On Tuesday and Thursday Period 2 – you will have scheduled planning and correction time as per the FWC discussion.
Your other three planning and correction lessons can be made up from the remaining 6 in your timetable. The other three of those 6 lessons can be used for supervisions.
You will have 3 duties they will be indicated in the updated duty roster. These duties also form part of the balance of the total 20 averaged hours made up of other programmed directed duties (EBA 4.13)
Coby will be in contact to book an appointment to catch up tomorrow.
Please provide a clearance certificate today prior to commencement tomorrow.”
[44] Following Ms Liddle’s reply email to the Applicant as outlined above, Ms Williams stated that she received an email from Ms Liddle advising that she had spoken to the Applicant again, who had advised she was not satisfied with the contents of the email she received and advised that she would call her doctor because the work capacity certificate, being the initial work capacity certificate dated 18 June 2021, did not reflect some of the limitations she was subject to. A copy of the email from Ms Liddle to Ms Williams was provided to the Commission and the relevant extracts of the email is reproduced below:
“…Deanna has also confirmed she had been to the doctor and has clearance to start work tomorrow.
In the afternoon I called Deanna to advise her that I have sent an email answering her concerns mentioned above and if she could send through her clearance from the doctor prior to coming on site tomorrow.
Deanna had read our email and was still not happy with the hours she is doing in comparison to her FTE. She also mentioned that she needs to talk to Sonya in regards to her Design and Technology class as she feels she is not being trained enough to do the class and doesn’t know where the equipment is in the classroom. In reply I advised Deanna once again to send through the clearance from the doctor and we can discuss her concerns in the meeting. She mentioned she will call the doctor as the current workplace certificate doesn’t reflect some of the limitations she is under.
HR still haven’t received a clearance form, so Natalie (HR) has called and left a message for Deanna to advise not to come on site until we have received her clearance form, we will advise when we can book in a meeting time to discuss her concerns with her…” [sic]
[45] The Applicant was later provided a copy of the internal email from Ms Liddle to Ms Williams from WorkCover on 20 August 2021. The Applicant’s view is that the email misrepresented the situation with regard to her request for confirmation of rostered hours and duties. Further, the Applicant contended that it erroneously stated that she had not provided a medical certificate clearing her return to work. The Applicant maintained that she did not receive any messages not to attend MBBC on 13 July 2021.
[46] Ms Williams stated that on the evening of 12 July 2021, she was copied into an email from the Applicant to Ms Liddle where the Applicant advised that she had contacted her doctor in relation to another work capacity certificate to return to work however her doctor was unable to get back to her. The Applicant referred to her previous certificate dated 18 June 2021 and sent on 3 July 2021, where Part D – Capacity of Work is completed and indicated she was estimated to return to work on 13 July 2021. The Applicant queried whether the Respondent required a different certificate from her doctor and whether she was to attend work the following day as planned.
[47] Ms Williams evidence was that she understood from the Applicant’s email that the Applicant would not be attending work the following day, due to her inability to produce a medical certificate from her doctor that she felt accurately reflected her capacity to work. Consequently, arrangements were made to cover the Applicant’s classes.
[48] It was put to Ms Williams that the email the Applicant sent to the school at 6.21pm on 12 July indicated the Applicant intended to return to work the following day. Ms Williams evidence was to the effect that the medical certificate did not allow the school to be confident it was safe for the Applicant to do so. Ms Williams also said she understood the Applicant was intending to see her doctor the following day.
[49] On 13 July 2021, the Applicant checked the Staff Absences list which confirmed that her classes were being covered by another teacher. The Applicant stated that because she was under the assumption that she would be attending a meeting that day she completed work for MBBC and advised the supply teacher of such. On the same day the supply teacher sent the Applicant an email confirming that students had undertaken work that the Applicant had prepared.
[50] At 9:41 am on 13 July 2021, the Applicant emailed Ms Liddle advising that WorkCover said they would be in touch to find out what certification she was required to provide to return to work, attaching the latest WorkCover certificate dated 12 July 2021 in the meantime.
[51] At 2:46pm on 13 July 2021, the Applicant received an email from the HR Department of the Respondent referring to her email sent the previous evening and advising that the certificate dated 18 June 2021 had expired. The Applicant was requested to provide an updated certificate following her next doctor’s review on whether she was cleared to return to work undertaking her pre-injury duties. Without such medical clearance, the Applicant was advised that the Respondent was unable to facilitate a safe return to work. The email read as follows:
“Good afternoon,
Thank you for your email late last night. Just confirming that the certificate attached to your email below is the certificate that expired yesterday.
Can you please provide an updated certificate following your next Doctors review appointment with details on whether you have been cleared to return to work undertaking your pre-injury duties or whether there are specific suitable duties that the Doctor has cleared you to complete?
At this stage, without this medical clearance we are unable to facilitate a safe return to work.
Regards
Carissa Liddle HR Advisor”
[52] The Applicant replied on the same day, directing the Respondent to her latest email which included the certificate that she received from her doctor on 12 July 2021. The certificate dated 12 July 2021 by Dr Keogh noted 13 July 2021 has the estimated date to return to part-time hours/duties. The Applicant further advised, in the same email, that the WorkCover certificate outlines the Applicant’s functional ability, specifically that:
“…Part B Injury details:
Date of Examination 12/07/2021
Date of injury 28/05/2021
First seen doctor 29/05/2021
Part C Treatment Plan:
Requires treatment 13/07/21 to 9/08/21
To be reviewed 9/08/21
Part D Capacity for Work:
Estimated time to return to full duties: part-time hours/duties from 13/07/21 (this has not changed from the Certificate e-mailed on 3/7/21)
Part E Functional Ability
A list of abilities provided.
Part F Rehabilitation at work – return to work plan
As per the functional ability. (e.g. check with WHS officer regarding stress levels)…”
[53] Ms Williams believed the Work Capacity Certificate provided no practical guidance as to how the Applicant could be safely accommodated in the workplace, nor confirm what may have triggered her reported condition. Ms Williams stated that this was a significant consideration for the Respondent in the circumstances where the Applicant’s report of what had contributed to her injury differed, namely that:
• the Applicant’s application for workers’ compensation stated that the events of 28 May 2021 were the cause of her injury; and
• the Applicant’s work capacity certificates gave several reasons for her injury, including:
• “continued pressure to perform unrealistic quantity of work in time allocated”;
• “stressors present whole year – often reduced to tears when unable to take any breaks for up to 8 hours”;
• “anxiety relating to expectations of school to complete more work than is possible during the work hours agreed to”; and
• “stressors present whole year – often reduced to tears when unable to take any breaks for up to 5 hours. Is now having abdominal pain, diarrhoea, insomnia”.
[54] During cross examination the Applicant was asked what changed that made her feel she could return to work on 13 July. The Applicant said after the dispute conference at the FWC there was discussion of a reduced workload and preparation and correction time and that was what she had been seeking. It was put to the Applicant that as at 10 September she was still suffering anxiety and still on a return to work plan and she was asked again what had changed. The Applicant replied that she had a reduced workload and had preparation and correction time.
[55] On 14 July 2021, the Applicant advised she sent a further email asking what additional information she would be required to send so that she may return to work. The Applicant received a response shortly after, advising that they were seeking clarification regarding the details of her Work Capacity Certificate and would be in touch. On 20 July 2021, the Applicant advised she believed she would be returning to work and wanted to ensure her students were kept up to date with their studies. As such, the Applicant stated she emailed the Respondent advising them that the students should be completing work as per the unit overviews. She received an acknowledgement email the following day.
[56] Also, on 20 July 2021, the Applicant advised she emailed Mr Holmes again asking when she can return to work and why she had not yet been allowed to return. She further noted that she had provided a WorkCover certificate to HR on 3 July 2021 which stipulated that she may return to work on 13 July 2021. It is Mr Holmes’ evidence that the Respondent was not comfortable facilitating the Applicant’s return to work in circumstances where she had provided two significantly different work capacity certificates based on the same medical appointment, neither of which confirmed that she had full capacity to return to work. Mr Holmes responded to the Applicant’s email on the same day, advising that the Respondent was liaising with WorkCover to obtain further detail from the Applicant’s treating Medical Practitioner and awaiting advice from WorkCover.
[57] The Applicant advised she offered to facilitate the exchange of information from her doctor to MBBC in an email sent on 9 August 2021. It is the Applicant’s evidence that at this stage, she denied having, implicitly or explicitly, obstructed any flow of information between her doctor and MBBC. She said she made several offers to facilitate the sharing of information, however, none of her offers were accepted. On 11 August 2021, the Applicant said she was contacted by MBBC asking whether she had provided WorkCover with an authority for an MBBC representative to contact her General Practitioner. The Applicant found this to be a curious request given her offer to facilitate the flow of information two days previously. She thought this was an unnecessary step. The Applicant noted that the email further expressed its opinion that the Medical Certificate was unclear in relation to duties that the Applicant could perform.
[58] Ms Williams was asked about the Applicant’s email of 9 August to the school. Ms Williams referred to the email of 11 August from Ms Watson emailed to the Applicant asking for an Injured Worker Authorisation to be signed and that the Applicant did not sign it and still has not signed it. The email Ms Watson sent to the Applicant on 11 August read as follows:
“Dear Deanna,
Following on from my previous email, can you please advise if you have provided WorkCover with an independent medical authority for me to make contact with your treating GP to discuss your fitness to return to work?
As mentioned, the Work Capacity Certificate (dated 12th July 2021) which covers the period 13th July 2021 to 9th August 2021 refers to the standard duties that you were completing prior to your injury. These stated functional abilities are incompatible with those constraints and accommodations that the College would put into place to facilitate the development of a Suitable Duties Plan required to return you to the workplace.
If you haven't previously provided an independent medical authority to WorkCover, can you please complete the attached "Injured Worker Authorisation" form and return this to me so that I can make contact with your treating GP?
Regards, Sonya
Sonya Watson
Risk and Compliance Officer”
[59] It was put to Ms Williams that Ms Watson was being pedantic by not accepting the Applicant’s offer to facilitate communication with her doctor. Ms Williams rejected that saying Ms Watson was making sure processes were followed properly. Ms Williams said she understood the signing of the document would allow the school legally to speak to the Applicant’s doctor.
[60] The Applicant emailed another medical certificate to the Respondent on 12 August 2021. The Applicant believed the provision of this Medical Certificate should have resolved all outstanding matters. Irrespective, the Applicant requested that the Respondent let her know if the certificate did not offer enough information and asked that they indicate the specific terms that requires further clarification. In this email, the Applicant did not provide consent in signing a release so that the Respondent may directly speak to her medical practitioner or access her medical records. The email from the Applicant to Ms Watson read as follows:
“Dear Sonya,
Please find attached the WorkCover Certificate I received today from my doctor.
My doctor has expanded on the dot-points from the previous WorkCover Certificates for clarification.
Can you please let me know if the additional information clarifies the return-to-work functional ability?
If the WorkCover Certificate does not offer enough clarity, can you please indicate in specific terms exactly what is needed for clarification.
Due to my privacy, I do not feel comfortable signing a release for the College to access my medical records and speak to my medical practitioner. I will continue to work with the College to get clarification on the particular specifics required.
Considering I was cleared for work on the 13 of July, I would appreciate the Work Capacity Certificate Functional Ability information to be clarified immediately to ensure a safe return to work as soon as possible.
Regards, Deanna Kelly”
[61] The Applicant was asked about the document attached to the medical certificate of 12 August setting out the basis that the Applicant could return to work. The Applicant said she attempted to work with the school to ascertain what was required for her to return to work and had been told the school had been in consultation with WorkCover to clarify the information on her certificate, and this was put together to clarify the dot points in Part E Functional Ability on the previous certificate of 12 July. The Applicant accepted the school had sent her an email seeking to clarify the information in the earlier medical certificate. The Applicant agreed she drafted the document attached to the 12 August certificate and took it to Dr Keogh to discuss with her.
[62] In relation to the suitable duties document attached to the certificate of 27 August, the Applicant said she had received an email from the school telling her she needed a suitable duties plan and what was required, and the Applicant said she spoke to WorkCover and put some ideas down and then went to Dr Keogh and this is what emerged.
[63] The Applicant was asked why she did not authorise the school to talk to her doctor about a suitable duties plan. The Applicant said she offered a three-way consultation between herself, Ms Watson and her doctor. Ms Williams was asked why this document was not acceptable to the school as a suitable duties plan and she said her understanding was that a suitable duties plan should be constructed by consultation between the Applicant, her doctor and the school and this plan did not involve the school at all.
[64] Ms Williams gave evidence that without the Applicant signing the consent form, a conference could not happen between the Applicant, her doctor and the school. Ms Williams said she assumed Ms Watson did not want to put someone in a situation there was verbal but not written consent. Mr Holmes said the return to work plan provided by the Applicant at this time had not involved consultation with the school Rehabilitation Officer, Ms Watson.
[65] Ms Williams was asked about the email the Applicant sent to Mr Richard Henry on 13 August 2021, where she said she was still waiting for the functional ability to be clarified. Ms Williams said that the functional abilities was not filled in on the certificates, and the school did not know what functional ability she had.
[66] Near the conclusion of correspondence from Ms Watson to the Applicant on 18 August Ms Watson said as follows:
“At this stage, as it appears that you are uncomfortable with me acting in the role of rehabilitation manager, what I would like to propose is that an independent Rehabilitation Provider is contacted to see if they can assist in developing a SDP in consultation with your GP.”
[67] Ms Williams said she believed this was because of the numerous emails where they were unable to get an outcome. Ms Williams agreed it would be inappropriate to seek to contact the Applicant’s doctor without consent.
[68] The Applicant was asked about the suitable duties document attached to the 10 September certificate and she said previous certificates had not been accepted by the school and one of the people at WorkCover told her state schools had a return to work plan and she found it, used it to give to her doctor and discussed it with her. The doctor then completed the information. The Applicant said she was still unsure what the school required but felt this would suffice.
[69] Mr Holmes advised that the Applicant’s certificate provided that due to her non-work related injury, she had limited capacity to perform her duties, with a specific list of restrictions enclosed. In or around early August 2021, Mr Holmes stated that a case manager from WorkCover notified the Respondent that the Applicant’s claim would be declined and was subject to an internal review process. Despite that, the Respondent was not obliged to provide suitable duties to an employee suffering from a non-work related injury, Mr Holmes advised that MBBC considered the proposed suitable duties, as outlined in the medical certificate, however they could not be accommodated as the constraints on her capacity meant that:
• The students in the Applicant’s classes may be disadvantaged by being allocated a teacher who was unable to adequately plan their classes, mark their assessments or attend the requisite number of face-to-face classes; and
• Created additional workload for her colleagues who would necessarily have had to spend additional time training the Applicant again, in circumstances where she claimed the previously provided on-the-job and competency-based training did not adequately equip her to teach Design, and assumed some of the duties the Applicant was unable to perform.
[70] It was put to Mr Holmes that by this stage in mid-August the only subject that the Applicant would have been required to teach was Japanese and he accepted that. It was put to Mr Holmes that as Design Technology and Business had been taken off the Applicant, why would he maintain those issues would exist. Mr Holmes said if the classes had to be split as the Applicant wanted, the school would have to hire another Japanese teacher. It was put to Mr Holmes that the Applicant did not identify any restriction on teaching Japanese. Mr Holmes said the school would have had to have had another Japanese teacher to plan the lessons. Mr Holmes said the certificate from the doctor had limited information and the school was not confident the Applicant could teach those lessons.
[71] It was also put to Mr Holmes that his second dot point referred to work the Applicant was not required to perform as at August. Mr Holmes said that was not correct and Business was taken off the Applicant at the FWC conference, but not Design and Technology. Mr Holmes was referred to Attachment B of the Applicant’s reply statement being a timetable as at 20 July 2021, that she was not timetabled to teach Design and Technology and he accepted that. He clarified that it was taken away from the Applicant because the school did not know when she would be returning. It was noted that the August return to work plan included reference this teaching.
[72] On 13 August 2021, the Applicant sent another email out of frustration as nothing was happening in relation to her desire to work. She received a “holding reply” email on 16 August 2021. The Applicant sent another email on 17 August 2021 where she raised concerns about the “unreasonable treatment” she was receiving from MBBC. The Applicant expressed that it appeared to her that MBBC had been responding to communications only initiated by her. MBBC had not initiated contact with her in relation to her return to work, and no resolution had been achieved.
[73] On 18 August 2021, the Applicant received an email from MBBC. The Applicant’s view was that the email contained internal inconsistencies, however it appeared to set out the process used by MBBC for an employee, who has suffered an injury, to resume duties. The Applicant was of the opinion that this was unreasonable on the part of MBBC to only provide this information months after she had first advised her intention to return to work. She found the unreasonableness of MBBC’s position is reinforced by the fact that she had sent multiple emails asking what had to occur.
[74] The Applicant responded to MBBC’s email on the following day. In this email, she questioned why the explanation had not been provided earlier and reiterated her willingness to fully participate in whatever process was necessary for her to work again.
[75] Ms Williams was asked why the information contained in an email from Ms Watson to the Applicant on 18 August concerning the schools process for rehabilitation and return to work was not provided to the Applicant earlier, given the Applicant had been attempting to return to work for 5 weeks at that stage. Ms Williams said she was not privy to this information however the email of 11 August also said she needed to complete a form.
[76] On 25 August 2021, the Applicant again emailed MBBC offering to arrange a meeting with her doctor where a representative of MBBC could seek whatever clarification was deemed necessary. On 27 August 2021, the Applicant emailed the Respondent again. In the absence of a timely response from MBBC, she had recorded her ideas on what a reasonable return to work plan would be, and she discussed these ideas with her doctor. As a result of those discussions, what she and her doctor saw as a Suitable Duties Plan emerged.
[77] On 31 August 2021, Mr Holmes advised he had approved for the Respondent’s Risk and Compliance Officer, Ms Watson, to email the Applicant advising that the work capacity certificate dated 27 August 2021 was not suitable and again requested that she sign a medical release for the particular circumstances. The Applicant described this email of MBBC as making a number of spurious assertions. Whilst accepting that MBBC claimed the document compiled by herself and her doctor was inadequate, she noted that the only reason this document was constructed was because MBBC had failed to engage with her to identify what would be adequate. The email Ms Watson sent to the Applicant read as follows:
“Dear Deanna,
Thank you for your email. I understand from your email that you’ve spent time developing a Suitable Duties Plan with your GP on Friday last week.
As described in my previous email, a SDP is a document that is developed jointly with the injured worker, the supervisor and the rehabilitation manager (RRTWC) guided by advice from the treating medical practitioners. The information from your GP is used to guide: your readiness and capacity to return to work; your functional ability; and if there are temporary changes required to duties or restrictions that are imposed to assist recovery.
This information is then put within the context of what is operationally practicable within the particular workplace, combined with what is reasonable from the employers perspective, and then temporary modifications are made to the staff members duties.
The document provided by you on Friday 27th August however does not
• identify the functional capacity/abilities of the injured worker make reference to valid activities for yourself or the workplace (including operational considerations), or provide meaningful work within this return to work phase
• provide practicable, achievable duties with measurable outcomes.
At this stage, without a signed medical release from yourself regarding this particular incident I am unable to discuss this matter with your Doctor. In order to move this matter forwards, can you please reconsider signing this document to enable me to describe the process the College engages in with your Doctor and work with her to develop an achievable SDP that will result in a durable return to work?
Regards
Sonya”
[78] The Applicant responded to MBBC’s email on 1 September 2021 addressing a number of components raised, specifically drawing attention to her offer of a joint meeting to occur to resolve any issues. The letter included the following offer:
“As advised, in order to move this matter forward, I would be open to having a three-way consultation with you as the RRTWC and my doctor as the treating medical practitioner. I will sign a medical release form for a dated scheduled meeting with myself and my medical practitioner regarding this particular incident to allow you and the supervisor to discuss this matter in consultation with myself and my doctor at the same time. Or e-mail my medical practitioner with a list of questions you would like her to respond to help guide the development of the SDP…”
[79] It was put to Mr Holmes that this was an offer to sign a medical release. Mr Holmes said he understood Ms Watson wanted the Applicant to sign the medical release form provided and this did not happen.
[80] The Applicant said she received an email on 3 September 2021 from MBBC which asserted that, notwithstanding the passage of two days, MBBC was not in a position to respond to the points the Applicant identified. The Applicant responded on the same day requesting a copy of the relevant policies and procedures, and another email asking a number of specific and relevant questions. The Applicant described her approach to be constructive by asking why the existing document was inadequate and invited MBBC to provide an alternate document for consideration.
[81] It was put to the Applicant that the school had significant dialogue with her over a significant period to try and accommodation her issues. The Applicant said she engaged in these discussions and at no point was she provided adequate support. The Applicant said in the meeting on 21 July she was told she could work from home on Thursday periods 4 and 5 however, this did not provide additional support and it meant she had the same workload and she wasn’t given preparation and correction time.
[82] It was put to Ms Williams that there were three school terms weeks in the period from when the Applicant took leave and when she sought to return to work on the first day of term three. Ms Williams was unsure. Ms Williams said the school was concerned about the Applicant returning to work and being reinjured. Ms Williams said on 31 August Ms Watson asked for a signed medical release in order to talk to the Applicant’s doctor so the school could facilitate a safe return to work. Ms Williams said the school was unsure about how to keep the Applicant safe, and the school could never be sure that the Applicant would be safe. Mr Holmes also accepted the holiday period was three weeks and the Applicant’s period of absence during school time up until the beginning of term three was about three weeks.
[83] Ms Williams accepted that there had been a reduction in the Applicant’s workload resulting from the June FWC conference however, she said the stresses were not removed because she still had the problems with regard to the composite classes which could not be reduced and that was largely the Applicant’s argument going into the FWC conference.
[84] Mr Holmes said the information provided by the Applicant’s doctor was insufficient for her to return to work and it would have been necessary to have a return-to-work plan in place in order for the Applicant to return.
Refusal of Workcover application
[85] It was put to the Applicant she was informed her WorkCover application was refused on 8 September. The Applicant said it was not 8 September, but she could not remember which date.
[86] Mr Holmes provided evidence that on 10 September 2021, the Respondent liaised with its lawyers, HWL, to discuss how to facilitate the Applicant’s return to work. A decision was made to seek further specialised advice regarding the Applicant’s ability to work and ensure that it did not pose any further risk of harm to the Applicant, her colleagues and the students under her care. At 5:06pm on the same day, HWL wrote to the Applicant advising her of the requirement to attend an IME with Dr Shaikh, via Zoom, on 24 November 2021. The Applicant was also asked to assign an Authority providing consent for her General Practitioner to provide information regarding her injury and her full medical records to the Respondent, so this information could be provided to Dr Shaikh.
[87] The Applicant described this correspondence as purporting to direct her to attend an IME. She observed that the content of the email was inconsistent with the process MBBC said they were following in their emailed dated 18 August 2021. She further noted that attached to HWL’s letter was a document described as a “College Policy”, and that the Policy disclosed that it was the outcome of a review which occurred on 31 August 2021. This was only days prior to its receipt.
[88] Mr Holmes however explained that the Respondent’s decision to direct the Applicant to attend an IME was made in consideration of a number of factors. These factors are as follows:
• The Applicant had been absent for approximately three and a half months and had provided little information regarding her condition to the Respondent;
• The Respondent was not aware of specifically what caused or contributed to the Applicant’s condition, in circumstances where she had represented several different casual events and/or factors, and therefore did not know how the Respondent may mitigate the risk of re-occurrence;
• despite the Applicant’s prior email confirming she would not sign anything authorising the Respondent to communicate with her doctor, the Respondent had unsuccessfully requested permission to communicate with the Applicant’s doctor on several occasions.
• The Respondent has a duty of care under the Work Health and Safety Act 2011 (Qld) to:
• the Applicant and wants to ensure she is safe when she returns to the workplace;
• its students and could not allow the Applicant to return to work in lieu of further details regarding her condition and capacity, in circumstances where during her last day on campus she was acting irrationally, unpredictably and inappropriate for a member of teaching stuff; and
• its staff and therefore could not reasonably return the Applicant to work without feeling satisfied that her colleagues would not be exposed to risk of psychological harm by way of supporting the Applicant to be in the workplace; and
• the Respondent chose a suitably qualified psychiatrist with the earliest available appointment, in circumstances where it is in the process of planning the class timetables of 2022. Of particular note, the Applicant’s main teaching area was Japanese and, due to lack of student demand and operational considerations including the results of a curriculum audit that surveyed parents, staff and students, the Respondent had removed Japanese from the curriculum in 2022 and so needed to understand where else the Applicant may fit into the Respondent’s teaching staff.
[89] On the same day, the Applicant attended a doctor’s appointment where, following advice from WorkCover, her doctor completed another certificate outlining the duties which, in her doctor’s opinion, the Applicant would be fit to perform for the Respondent. The Applicant emailed this certificate that day advising of her intention to return to work. Subsequent to this, the Applicant said she received further communication from MBBC’s solicitors which directed her to not attend work. The Applicant found the direction to be both contradictory from previous communication from MBBC, and the College Policy. At 6:21pm that day, Mr Holmes advised he was carbon copied into an email from the Applicant which stated that she was capable to return to her pre-injury duties, confirming her intention to return to work on Tuesday, 14 September 2021 and enclosed a work capacity certificate dated 10 September.
[90] Mr Holmes stated that the Respondent considered the work capacity certificate and identified several concerns with the same. Specifically, the work capacity certificate did not elaborate on the Applicant’s condition, whether it had resolved, or detail what triggers may exist in the workplace that may require management.
13 September confirmation of direction to attend IME
[91] The parties agreed that on 13 September 2021, HWL wrote to the Applicant again confirming the requirement of her to attend an IME.
[92] The Applicant said she understood the school wanted to send her to a Psychiatrist to assess her fitness for work and form a suitable duties plan.
[93] On 16 September 2021, the MBBC directed the Applicant not to access information on the MBBC’s system. On 23 September 2021, the Applicant advised she sent an email to HWL requesting information relating to the ‘appointment’ referred to in their correspondence on 10 September. The Applicant said she did not receive any response to her list of questions. On the same day, the Applicant requested access to her emails and personal information on the MBBC internet system. On 28 September 2021, the HWL granted limited access to emails and stated they would provide her with copies of her payslips and timetable. On the same day, the Applicant asked why she was not being paid.
1 October response to query regarding payment
[94] On 1 October 2021, the HWL replied to the Applicant’s query regarding payment by way of correspondence. The Applicant advised that this reply misrepresented the situation. She was not, as from 13 July 2021, accessing (or seeking to access) any form of leave. Rather, she was, as provided in the medical certificate, fit to perform “full duties” (albeit part time in accordance with her contract from 13 July 2021). She sent an email on 3 October 2021 to the solicitors further querying the issue of the pay.
[95] The Applicant advised that while her email may not have been drafted as clearly as it could have been, in that it referred to her absence on WorkCover, the intent was clear. She does not believe that there was any basis for the employer not to pay her. On 7 October 2021, the Respondent’s solicitors informed her that she was on unpaid leave. The Applicant advised that she was not, as from 13 July 2021, accessing (or seeking to access) any form of leave. Mr Holmes advised he received a Notice of Listing from the Commission on 20 October 2021 relating to the Applicant’s application for a dispute to be dealt with by the Commission. On the following day, the Respondent received a copy of the Form F10.
5 November correspondence regarding Payment
[96] On 5 November 2021, the common evidence of the parties was that the Respondent wrote to the Applicant with respect to the payment of the Applicant’s wages between September and November 2021, reconfirming the direction of the Applicant to attend the IME and that she confirm her attendance. Enclosed was a refined “Authority to Release Records” from the Applicant and she was directed to provide a signed copy to HWL. The correspondence also outlined the potential consequence for failing to attend the IME, which included disciplinary action and termination of employment.
[97] Mr Holmes confirmed that the Respondent paid to the Applicant, on 16 November 2021, her wages for the period between 14 September and 19 November 2021. The common evidence of the parties is that the Applicant did not agree to attend the IME, nor did she attend the IME on 24 November 2021 as directed by the Respondent. The Respondent had ceased paying the Applicant’s wages as of 24 November 2021 due to her failure to attend the IME appointment. On 30 November 2021, the Respondent paid to the Applicant her wages for the period 22 to 24 November 2021.
[98] The Applicant was asked during cross examination why she did not attend the IME appointment on 24 November and she said that the felt she did not need to attend the appointment as she had asked the school on numerous occasions to communicate with her doctor. Further, she expressed that she felt like it was a way of postponing her return to work as 24 November was at the end of the academic year.
[99] It was put to the Applicant that all of her medical certificates said she was suffering from anxiety. The Applicant said that anxiety was resolved at the FWC conference or reduced to the extent that she could do her job. The Applicant accepted the school has a statutory responsibility to ensure its employees are safe. The Applicant said the school failed in its duty to her.
[100] It was put to the Applicant that given the lack of clarity in her medical certificates that the school had no choice but to send her to an Independent Medical Examination in order to clarify the nature of her illness and make sure it was safe for her to return to work. The Applicant said the school could have spoken to her general practitioner and if the GP deemed it necessary then that would have been reasonable. It was put to the Applicant that there were numerous occasions where she refused the school accessing her doctor. The Applicant said she offered consultation, to speak or email her doctor. It was put to the Applicant that she was trying to restrict the dialogue between the school and the doctor, and she refused to give her consent.
[101] The Applicant was asked what her issue was with seeing Dr Shaikh. The Applicant said she looked at reviews online and she didn’t feel comfortable seeing him. Further, she said she looked at other psychiatrists and she would have preferred to see a female psychiatrist.
[102] Dr Keogh confirmed she is the Medical Practitioner of Ms Kelly, who had been a patient of hers since August 2020 at Capalaba and prior to this, for at least four years at Cardinale Medical Clinic. Dr Keogh advised that the Applicant attended the Capalaba General Practice on 28 May 2021, and from consultation, she formed the opinion that the Applicant was suffering from anxiety resulting from the expectation of her employer that she complete more work than was reasonably practicably in her paid time.
[103] Dr Keogh was advised by the Applicant that as a result of the Commission conference, an outcome was agreed that her workload would lessen. Dr Keogh felt that after the conference, the Applicant would be better able to plan even though the outcome was not exactly what she wanted. Further, Dr Keogh felt that the outcome reduced her anxiety, but this was not completely removed.
[104] Whilst Dr Keogh noted the description of the Commission outcome provided by the Applicant, her assessment of the Applicant’s health was not necessarily swayed by that outcome. Dr Keogh’s opinion, recorded in the medical certificates, was that her assessment was based on the totality of the information available to her. She was first contacted by WorkCover regarding the Applicant on 13 August 2021 where Dr Keogh advised WorkCover that, she saw the Applicant regarding the injury she suffered at work on 28 May 2021, and the main overarching contributing factor to the injury was anxiety related to unrealistic expectations of what she should complete in the time allocated to her.
[105] Dr Keogh confirmed she had never been contacted by the Respondent regarding the Applicant. Any communication from the MBBC was through the Applicant. For example, she was provided with copies of email communications from Ms Watson from the MBBC. The Applicant added this material to the Applicant’s medical notes.
[106] Dr Keogh also noted that the Applicant created a draft for the first return to work plan, which Dr Keogh then approved. Dr Keogh advised she completed the Suitable Duties Plan in consultation with the Applicant. Her recollection is that the second document was created because MBBC, as she was advised, did not accept the first plan and required a Suitable Duties Plan for the Applicant to return to work.
[107] Dr Keogh confirmed she saw the Applicant, in 2021, on the following dates: 29 May, 4 June, 18 June, 2 July, 12 July, 21 July, 2 July, 12 August, 13 August, 28 August, 3 September, 10 September, 13 September, 17 September, 1 October and 15 October. Dr Keogh advised that she was, and still is, of the opinion that the Applicant can perform her duties for the MBBC consistent with the medical certificates she provided.
[108] During cross examination Dr Keogh accepted that she wrote a certificate on 29 May determining the date of injury as 28 May and also wrote that the Applicant was experiencing anxiety relating to expectations of the school that she complete more hours of work than is possible during the hours agreed to. Dr Keogh accepted this was the only medical information on the plan, and there was no treatment plan at that time as Dr Keogh did not feel that she needed to be referred to another allied health professional at that time and she would review the Applicant on 6 June.
[109] In addition to stating that the Applicant was continuing to experience anxiety relating to expectations of the school that she complete more hours of work than is possible, the 6 June certificate also said the mechanism of injury was continued pressure to perform unrealistic quantity of work in time allocated, and the details of that mechanism were that the stressors were present for the whole year, and the Applicant was often reduced to tears when unable to take any breaks for up to 5 hours and is now having abdominal pain, diarrhoea and insomnia.
Dr Keogh accepted that the Part C treatment plan on the form was blank and there no prognosis notes or referral to another medical professional. Dr Keogh said her treatment was to remove the Applicant from the environment. Dr Keogh accepted she had no interaction with the school and accepted that the information in the certificate summarises what the patient tells her.
[110] Dr Keogh accepted she saw the Applicant on 18 June and that the medical certificate and the injury references contained similar information to the 4 June certificate including the reference to abdominal pain, diarrhoea and insomnia, and included further information that the Applicant was now receiving counselling.
[111] It was put to Dr Keogh that there were two medical certificates for 18 June, the first reflecting the certificate of 4 June, and the second certificate containing an addition in Part E functional ability and a commentary from Dr Keogh about workloads and restrictions. Dr Keogh was asked how she formed a view about the Applicant’s functional restrictions and Dr Keogh said through consultation with the Applicant herself. Dr Keogh was asked whether she suggested to the Applicant that she should speak to the school about these issues. Dr Keogh said she would have but couldn’t recall the exact nature of what was discussed.
[112] Dr Keogh was asked whether she spoke to the Applicant about giving her permission to speak to the school about return to work issues and Dr Keogh said she did not specifically asked the Applicant that question.
[113] Dr Keogh accepted she saw the Applicant on 12 July and the injury details had changed to general feelings of anxiety and ability to sleep and there was no functional ability section completed on the form. Dr Keogh said she adopted the functional ability section on 12 July as contained in the earlier certificate.
[114] Dr Keogh was asked about an attachment to this certificate which looked like a return to work plan of some kind. Dr Keogh said the Applicant had brought in the return to work plan. Dr Keogh appeared to be uncertain as to who authored this document, but the effect of her evidence appears to be that it more likely than not that the document was authored by the Applicant herself.
[115] Dr Keogh was asked about a further certificate issued on 27 August, that reflected the certificate issued on 12 August. The 27 August certificate attached a suitable duties plan with dot points with return to work duties. Dr Keogh said she could not remember the document.
[116] Dr Keogh was then asked about a certificate issued on 10 September that certified her as being able to return to work. Dr Keogh was also asked about a matrix of teaching activities and non teaching activities on Dr Keogh’s letter head that were suitable for her return to work. Dr Keogh did not have a clear recollection of the documents.
[117] Dr Keogh was asked about what changed from 10 September that caused Dr Keogh to certify the Applicant was fit to return to work. Dr Keogh said the Applicant was always keen to return to work even when she was very distressed with physical symptoms however she would have made an assessment based on her evaluation of her and her discussion with the Applicant.
[118] Dr Keogh was asked about her evidence that the Fair Work Commission outcome would have reduced her anxiety but she would not have been free of it. Dr Keogh repeated that her evaluation would have been based on a discussion with the Applicant.
SUBMISSIONS
[119] It is submitted for the Applicant that as of 13 July she had recovered from her injury relying on medical certificates provided before 13 July, and that the Applicant made continual enquires about what was required of her in order to return to work up until 18 August and did not receive a sensible answer. It is submitted that on three occasions in emails on 9 August, 25 August, and 1 September 2021 respectively the Applicant offered to facilitate the sharing of information from and by her General Practitioner.
[120] The Applicant referred to the decision in Mr Daniel Cole v PQ Australia Pty Ltd T/A PQ Australia. 6 In Cole, Commissioner Roe distilled the matters for consideration in relation to a purported direction to attend a medical examination as follows:
a. Was there a genuine indication of the need for the examination such as prolonged absences from work or absences without explanation or evidence of an illness which related to the capacity to perform the inherent requirements of the job?
b. Had Mr Cole provided adequate medical information which explained absences and demonstrated fitness to perform duties?
c. Is the industry or workplace particularly dangerous or risky?
d. Were there legitimate concerns that Mr Cole’s illness would impact on others in the workplace?
e. Did Mr Cole agree to the assessment by the practitioner selected by the employer?
f. Was Mr Cole advised of the details of the conduct which led to the concerns that he was not fit for duty?
g. Was the medical practitioner advised of the issues of concern and were those matters focused on the inherent requirements of the job? What information was proposed to be given to the medical practitioner about the actual job requirement?
h. Was Mr Cole advised of the matters to be put before the medical practitioner for his assessment?
i. Was the medical assessment truly aimed at determining, independently, whether Mr Cole was fit for work?
[121] The Applicant submitted that in the current case there is no “genuine indication of the need for the examination”. The absence from work was only in the order of one month (three weeks of which were a school vacation period). There was more than adequate material to explain the reason for the employee’s absence, including multiple medical certificates identifying capacity to perform the inherent requirements of the position.
[122] Further, it was submitted by the Applicant that the workplace is not particularly dangerous or risky, and there are no legitimate concerns that the Applicant’s illness would impact on others. The Applicant submitted that that she did not agree to the assessment by the practitioner selected by the employer, however, was agreeable to, and made a number of offers to facilitate, participation in an assessment with the College and her general practitioner.
[123] It was submitted that the Applicant had not been advised of the details of the conduct which led to the concerns that she was not fit for duty, and the highest the position of MBBC comes is a statement about “how your health and safety can be assured”. Further there was nothing provided to even attempt to justify any perceived risks to her health and safety.
[124] The Applicant also submitted she has not been provided with any material in relation to what the medical practitioner was advised and have no way of knowing whether the advice to the practitioner related to the inherent requirements of the job. The Applicant contended that in this regard MBBC has been totally deficient in providing information to either her or her Union. MBBC has not claimed that the assessment is to determine whether the Applicant is fit for work, but rather how the health and safety can be assured.
[125] The Applicant referred to the decision in Transport Workers' Union of Australia v Cement Australia Pty Ltd, 7 where Commissioner Spencer quoted from Thompson v IGT (Australia) Pty Ltd,8 where Justice Goldberg stated:
“51. As I have already noted, an employer has an obligation under the Occupational Health and Safety Act 2004 (Vic) to provide a safe place of work. In carrying out and discharging that obligation, an employer may, from time to time, need to assess and determine whether an employee suffers from a disability that might affect his work. The employer might need to have regard to the nature and consequences of the employee’
52. As I noted earlier, s15(4)(a) of the Disability and Discrimination Act does not render a dismissal unlawful where the disability prevents the employee from carrying out inherent requirements of his or her work. It is because of those matters that it is appropriate that an employer be able to obtain medical information about an employee that might be relevant to the performance of his or her work. It follows, in my view, that there are circumstances in which a requirement to provide medical information to one’s employer, provided it is made on reasonable terms and is shown to be reasonably necessary, does not constitute a detriment in employment but is, as Madgwick J observed, a necessary part of an incident of the employment.”
[126] Furthermore, the Applicant’s submission was that in the present case the purported requirement by the employer was not “made on reasonable terms”, and in determining the reasonableness of the ‘requirement’ regard must be had to the totality of the situation.
[127] The Applicant submitted that the ‘requirement’ was not put to the employee until over two months after she initially attempted to return to work, and the purported ‘requirement’ is not consistent with MBBC’s own policy and procedures.
[128] It was submitted by the Applicant that the employer had not exhausted any other avenue to ascertain information about the employee’s health and the employee had been persistent in asking what the employer required, and the employer gave no sensible answer. Further, the Applicant contended that she offered to facilitate a two-way flow of information with her General Practitioner and the employer ignored that offer.
[129] The Applicant submitted that a direction to attend, under threat of dismissal, a medical examination should be a ‘last resort’ measure, however, in this case the employer had conspicuously failed to participate in intermediate steps, which if followed, would have made the ‘last resort’ direction unnecessary.
[130] The Applicant also referred to the decision in Blackadder v Ramsey Butchering Services Pty Ltd. 9 The Applicant submitted the key findings from Blackadder, so far as the current application is concerned, are as follows:
“68. It is, in my opinion, essential for compliance with the above duties, that an employer be able, where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee’s continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments. Abattoirs entail obvious risks, among other things, of injuries from the repetitive use of knives at speed, and to the spinal column from the necessity to twist, bend and/or lift.
69. The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination. The matters will generally require a sensitive approach including, as far as possible, respect for privacy. Nevertheless, I assume that there now should be implied by law into contracts of employment terms such as those set out in the first two sentences of the preceding paragraph, on the basis that such terms pass the test of “necessity” accepted by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450.”
[131] The Applicant submits the MBBC has not met the first step identified in Blackadder of gaining medical evidence from the Applicant because MBBC either (at best) failed to engage with the issue of the supply of medical information, or (at worst) ignored the employee’s proactive offers to facilitate the provision of information. Further, the Applicant submitted that MBBC has also failed to establish a genuine need for medical examination associated with a direction to attend a medical examination.
[132] In closing oral submissions, the Applicant argued the outcome from the June FWC conference resulting in changes to timetabling cannot be ignored in the context of whether the Applicant was capable of returning to work. The Applicant has also argued that whether or not the injury is a WorkCover injury, the basic requirement to consider reasonable adjustment still rests on the employer.
[133] The Applicant submitted that the medical certificates must be considered in their totality. The Applicant further submitted that the Applicant had made an offer in early September to sign a medical release which was not responded to and was a genuine desire to work with the Respondent to find a resolution.
[134] The Applicant also distinguished the decision in Watts v Australia Post Corporation, 10 in that it said the employee in that case had a much longer period of absence and also that there had been delay and prevarication on both sides however the disinclination of the employee to not attend a medical examination after two years was held to be unreasonable, compared to in the order of three weeks in this case.
[135] The Applicant also submitted the position the Applicant would be returning to is not the position that caused the injury and anxiety. The Applicant said contrary to what the Respondent claims that there has been a sudden change in the Applicant’s capacity, the medical certificates have been consistent, and the medical certificates have indicated there will be a capacity to return to full duties. The Applicant argued the Respondent has had multiple opportunities to avail itself of further information from the Applicant.
[136] The Respondent submitted it held concerns regarding the Applicant's capacity to safely perform her contractual duties and, on 10 September 2021, the Respondent, via its solicitors, directed the Applicant to attend a medical examination with a psychiatrist, Dr Shaikh, on 24 November 2021, for the purposes of facilitating the Applicant's return to work.
[137] The Respondent submitted that it is well established that employers have the right to issue a direction for an employee to provide further medical information or attend a medical assessment, provided that such direction is reasonable and lawful.
[138] The Respondent noted that the Applicant did not challenge the lawfulness of the direction but rather challenged that it was reasonable. The Respondent submitted for completeness that the Direction is lawful having regard to the Work Health and Safety Act 2011 (Qld) (WHS Act) that it said provides a lawful basis for the issuing of the Direction in the following sections:
Section 28: "while at work, a worker must - [... ]
(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act. "
Section 20(2): "the person with management or control of a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace are without risks to the health and safety of any person. "
[139] The Respondent also relied to paragraph 68 of the decision of Madgwick J in Blackadder submitting it follows that the direction is lawfully given, pursuant to section 28 of the WHS Act, because the giving of the Direction was for the purpose of enabling the Respondent's fulfilment of its obligation under section 20(2).
[140] The Respondent submitted that the Direction was reasonable on the basis the Applicant had provided only limited information about her condition and capabilities following her extended absence from the workplace.
[141] The Respondent relied on the decision of Commissioner Spencer in Grant v BHP Coal Pty Ltd, 11 where it was found that it was reasonable for BHP Coal to direct Mr Grant to attend a medical appointment in circumstances where Mr Grant had been absent for a lengthy period and had only provided generalised medical certificates with limited information about his medical condition.
[142] The Respondent also relied on the decision in Ingall v Virgin Australia Airlines Pty Ltd T/A Virgin Australia, 12 where Deputy President Lake found that it was reasonable for Virgin Australia to direct Mr Ingall to attend a medical appointment because he had been absent for an extended period and had provided several medical certificates confirming incapacity to work but with little detail regarding the condition.
[143] The Respondent submitted that at the time the Respondent issued the Direction, the Applicant had been absent from the workplace for approximately three and a half months, during which time she had provided several work capacity certificates with only limited information as to her medical condition and capabilities, and on that basis the direction was reasonable and a proportionate response to the circumstances.
[144] The Respondent submitted that Blackadder confirmed that an employer must be able to require an employee to supply particulars and/or medical evidence confirming their ongoing fitness to perform their duties and, where genuinely required and reasonable, to attend a medical examination to confirm the employee's fitness. The Respondent further contended that the Applicant would be returning to her substantive position with materially similar working conditions that she alleges contributed to her injury and the Applicant's treating practitioner had not provided any practical guidance to assist with the Applicant's return to work.
[145] The Respondent submitted that accordingly, the Respondent considered its obligations under the WHS Act required it to seek further specialist advice as to how the Applicant's return to work could be safely facilitated, particularly in circumstances where the Respondent had previously made concerted efforts over an extended period to accommodate the Applicant and minimise any risks the workplace may pose to her.
[146] Furthermore, the Respondent contended that it initially requested the Applicant to sign an authority allowing the Respondent to communicate with the Applicant's treating medical practitioner about her condition and return to work, however, despite numerous requests the Applicant refused to sign the authority. In circumstances where the Applicant denied the Respondent's access to her treating medical practitioner to obtain information about her ability to return to work, the Respondent considered an appropriate next step was to direct the Applicant to attend a medical examination.
[147] The Respondent submitted the requirement to attend the Appointment was on reasonable terms, with the information requested by the Respondent confined to the information necessary to assist it to understand the Applicant's condition and how to safely accommodate her return to work.
[148] The Respondent submitted it had no ulterior motive for requiring the Applicant's attendance at the appointment and selected an appropriate practitioner to conduct the assessment.
[149] Furthermore, it was submitted by the Respondent that in the decision of Commissioner Spencer in Grant, the Commissioner held that there was no evidence BHP held a predetermined view of Mr Grant's state of health or had ulterior motives in directing him to the appointment and that the appointment had been scheduled with an appropriate medical practitioner.
[150] The Respondent submitted it has made it clear to the Applicant that she was required to attend the appointment for the purpose of facilitating her safe return to the workplace and relevantly, had begun facilitating her return to work prior to learning that she was lacking capacity to do so.
[151] The Respondent submitted that the appointment had been scheduled with an appropriate medical practitioner in circumstances where Dr Shaikh is a suitably qualified and experienced psychiatrist and, to the Respondent's knowledge, has not previously had any dealings with either party that may impact his independence. Further, at this stage, Dr Shaikh has not been provided with any information or instructions with respect to the Applicant outside of the fact that she was scheduled for an independent medical assessment. The Respondent submitted it selected Dr Shaikh to schedule an appointment with because he had the earliest available appointment at the time of booking and the Respondent was eager to facilitate the Applicant's return to work as soon as possible and in time to be contemplated in planning for the new school year.
[152] The Respondent submitted that the Applicant’s preference for a specific practitioner need not be accommodated relying on the decision of Deputy President Lake in Ingall, where Mr Ingall's argument that the direction to attend a medical examination was unreasonable because the practitioner's location did not align with his preferences for an appointment was rejected. The Respondent submits that the Applicant has not disclosed a valid reason for her refusal to attend the appointment with Dr Shaikh and, in any event the Applicant's preference for the appointment time or treating doctor is insufficient on its own to render the direction unreasonable. Further, the Respondent submitted that attending the Appointment does not pose any great inconvenience to the Applicant in circumstances where she has had significant time off work, was notified that she would be paid her wages up to and including the time of the appointment, does not have to cover the cost of the appointment and her attendance at the appointment will occur via Zoom.
[153] The Respondent also submitted that it had not received an explanation for the sudden change in the Applicant's capacity.
[154] The Respondent referred to the decision of Commissioner Bissett in Columbine v the GEO Group Australia Pty Ltd, 13 where the Commissioner found that GEO Group Australia Pty Ltd's request to communicate directly with Ms Columbine's medical practitioner and the direction for her to attend a medical examination were reasonable. This decision was on the basis that it would allow GEO to understand the reason for the change in Ms Columbine’s capacity, in circumstances where she had been unable to perform her substantive role for two years following an injury and, after being advised that suitable duties would cease to be available to her and her employment would be terminated, Ms Columbine provided a medical certificate stating she was fit to perform her substantive role.
[155] The Respondent submitted that the Applicant was unfit for pre-injury duties for approximately three and a half months, and the Applicant learned that her worker’s compensation claim had been declined on or about 8 September 2021, after which her capacity inexplicably changed and she produced a work capacity certificate, dated 10 September 2021, purporting to clear her for pre-injury duties.
[156] The Respondent submitted that the nature of the Respondent's business and operational requirements means they require an update on the Applicant's capacity and expected return to work date as soon as possible.
[157] The Respondent also referred to the decision in Australian and International Pilots Association v Qantas Airways Ltd, 14 where Rares J held that Qantas Airways Ltd was acting reasonably in requesting a report from the employee's doctor on his diagnosis, prognosis and capacity to return to his pre-injury duties. It was submitted that in finding that the request was reasonable, Rares J considered Qantas’ operational requirements, including the need to cover the employee's absence and the making of rosters up to ten weeks in advance.
[158] The Respondent submitted that its requirement for an update on the Applicant’s capacity as soon as practicable is necessitated by its operational requirements. Specifically, the nature of the Respondent’s business means they are currently planning the allocation of teachers and class timetables for the 2022 school year and require confirmation as to whether the Applicant can be included in such planning, particularly in circumstances where the Respondent will not be offering Japanese classes in 2022, due to insufficient demand and operational changes, namely a change to the teaching and learning framework as a result of a curriculum audit, which required the removal of Japanese from the subjects of offer. In those circumstances, the Respondent must discuss with the Applicant what other subjects she may be able to teach.
[159] The Respondent submitted that accordingly, based on the information provided, the Respondent could not in good faith facilitate the Applicant’s return to work because it had minimal knowledge of her condition or what had instigated it and, with the environmental factors in the workplace largely unchanged during the Applicant’s absence, formed a reasonable belief that the workplace would pose a risk to the Applicant’s health and safety. In those circumstances, the Respondent proceeded to issue a reasonable direction for the Applicant to attend the earliest available appointment.
Payment of wages
[160] The Applicant submits that the question of non-payment of wages at a time that the Applicant had a medical certificate indicating that she was fit to perform her work must be addressed.
[161] The Applicant was not paid for the period 13 July to 14 September 2021. MBBC ceased paying the Applicant from 24 November 2021 based on her non-attendance at the medical examination.
[162] The Applicant submitted it is curious as to why MBBC had chosen 14 September 2021 as the date from which they will provide payment.
[163] The Applicant submitted that on 12 August 2021 she provided MBBC with an elaborated medical certificate and no explanation was provided as to why this elaborated statement was not accepted.
[164] Further on 27 August 2021, the Applicant provided an elaborated medical certificate, yet again, no explanation was provided as to why this elaborated certificate was not accepted, even though a request was made to that effect.
[165] The Applicant submitted that on 13 July she was ready, willing and able to perform her duties and the only thing which prevented her from performing her duties, and being paid for such, was the direction by MBBC that she does not attend for work. The Applicant submits it was MBBC which instructed the Applicant not to attend for work, and it was MBBC which decided not to pay the Applicant for that period.
[166] The Respondent submitted it has not paid the Applicant wages for the period 13 July 2021 to 13 September 2021 because the Applicant had no remaining leave entitlements and did not have capacity to perform work for the Respondent until at least 10 September 2021, pursuant to a series of work capacity certificates she supplied to the Respondent including:
• A certificate dated 12 July 2021, confirming that for the period 13 July to 9 August 2021, the Applicant had capacity to perform "part-time hours/duties";
• A certificate dated 12 August 2021, confirming that for the period 12 August to 17 September 2021, the Applicant had capacity to perform "part-time hours/duties", with further particulars of her capacity detailed;
• A certificate dated 27 August 2021, confirming that for the period 27 August to 17 September 2021, the Applicant had capacity to perform "suitable duties", with an eight (8) week return to work plan particularised; and
• A certificate dated 10 September 2021, stating that the Applicant is/was suffering from "anxiety relating to expectations of School to complete more work than is possible during work hours agreed to" and that the Applicant has full capacity to return to her pre-injury role.
[167] The Applicant submitted a worker’s compensation claim with respect to her period of absence. The claim provided that her injury was triggered by "the Head of Department refusing to allow me to go to my work on 28 May 2021 ".
[168] WorkCover Queensland determined that the conduct complained of amounted to reasonable management action by the Respondent and the parties were notified by in or around early September 2021 that the claim was to be declined due to being a non-work related injury.
[169] The Respondent submits that in circumstances where the Applicant’s incapacity was due to a non-work related injury, the Respondent was not obliged to accommodate her restricted capacity to facilitate her return to work prior to receiving a clearance for pre-injury duties. Particularly in circumstances where returning the Applicant to the workplace subject to her restricted capacity would have caused unreasonable disruptions to the business, including:
(i) the Applicant’s colleagues who would have been required to assume additional duties to support the Applicant and ensure the tasks the Applicant was not capable of performing were being completed; and
(ii) the students in the Applicant’s classes, who would likely benefit from consistency in their teaching and may therefore have been disadvantaged as a result of the Applicant only being able to partially or intermittently perform her duties.
[170] The Respondent submitted that because the Applicant was not fully fit to perform the work she is employed to do for the period 13 July to 9 September 2021, she was not entitled to receive work or remuneration from the Respondent during this period of her absence.
[171] The Respondent relied on the decision in BHP Coal Pty Ltd v CFMMEU, 15 to submit that it is accepted that the work-wages bargain is a fundamental concept implied into the employment relationship and that employers are not obliged to offer work to, or pay remuneration to, employees where they are not ready, willing, and able to perform the service required by their contract. The Respondent emphasised that the Applicant was not able to perform the services required.
[172] The Respondent submitted the earliest date the Applicant produced a certificate that indicated she had capacity to return to her substantive role as a teacher was on 10 September 2021, when the Applicant emailed the Respondent enclosing her certificate and confirming that she intended to return to work on 14 September 2021, being her next day of work in accordance with her roster.
[173] The Respondent submitted that it held concerns with respect to the Applicant’s work capacity certificate of 10 September 2021, on the basis that it did not indicate whether the stated condition had resolved, nor did it provide any further details as to how the triggers for that condition could be managed in her return to work plan. Accordingly, the Respondent did not permit the Applicant to resume the performance of her contractual duties at this point in time, pending her attendance at a medical appointment to determine her capacity to perform her duties.
[174] The Respondent submitted that it paid the Applicant her wages for the period 14 September 2021 to 24 November 2021, notwithstanding that the Applicant did not perform work for the Respondent during this time and so was not entitled to payment under the terms of her employment contract; and refused to cooperate with the Respondent’s return to work process or make any attempts to mitigate her losses, namely by refusing to provide consent for the Respondent to communicate with her doctor.
[175] The Respondent submitted that it ceased paying the Applicant's wages on 24 November 2021 because the Applicant refused to attend the scheduled medical appointment, as directed.
[176] The Respondent relied on the decision of Watts, where it was held that the period following the employee’s refusal to attend a scheduled medical appointment was deemed to be a period out of the workplace due to the employee's lack of cooperation, or alternatively, due to the employee's failure to mitigate her losses by not cooperating with the employer's direction to attend the medial examination. The Federal Court of Australia found that the employee was not entitled to be compensated from the point of her refusal because any economic loss suffered after this time was due to the employee’s unreasonable and inexplicable lack of cooperation in attending for a medical examination when requested.
[177] The difficulty for the Respondent in this case is that the Applicant has not agreed to provide a written consent for its rehabilitation officer to consult with her doctor except on the very limited basis as dictated by the Applicant.
[178] In relation to the direction for the Applicant to attend an IME as is set out above it is well established that employers have the right to issue a direction for an employee to provide further medical information or attend a medical assessment, provided that such direction is reasonable and lawful.
[179] There are risks for employers in managing health and safety. An employer cannot return an employee to work without a medical clearance. I accept the Respondent’s submission that the Applicant never gave medical consent for the Respondent to speak to her doctor.
[180] The Applicant gave written advice to the employer that she was not comfortable signing a medical release on the basis of her privacy. Whilst I have taken into account the Applicant’s submission that this case is distinguishable from other cases where it has been found that an employer’s direction to attend an IME was lawful and reasonable because the length of time that the Applicant has been off work is a considerably shorter period, the evidence overall does not support a conclusion that the Applicant ever intended to cooperate with the Respondent’s attempts to be able to properly consult with her doctor for the purpose of developing a return to work plan on the basis of her privacy concerns.
[181] When an employer is required to make a decision about whether it is safe for an employee to return to work, it is entitled to base that decision on the relevant medical information. I am satisfied on the basis of the evidence that the Applicant herself drafted a number of return to work documents and then consulted with her doctor about those proposals. These plans were developed without the Respondent’s input despite the Respondent bearing the liability if the Applicant should be injured at work.
[182] I am satisfied that it was appropriate for Ms Watson to seek to have the medical release signed by the Applicant as a precondition to the Respondent engaging in discussions with her doctor. Given the nature of the restrictions described in the medical certificates provided by the Applicant to the school, and some inconsistency in the certificates as to the cause of injury, the school was entitled to resist the Applicant’s return to work until it had a better understanding of the medical situation. Ms Watson offered the Applicant as a way ahead through the engagement of an Independent Rehabilitation Officer through Workcover when it appears the parties were at an impasse on the Respondent request for the medical release. This offer was not taken up by the Applicant.
[183] I also accept the Respondent’s submission that it needed clarification regarding the medical condition of the Applicant for the purposes of making preparations for the 2022 school year and this was a relevant consideration.
[184] Ultimately the school decided to seek legal advice which was to direct the Applicant to attend an IME. The Applicant decided not to attend the IME.
[185] The actions of the Applicant placed the school in a situation where it had to decide whether to accept the risk of allowing the Applicant to return to work in circumstances where the medical evidence was unclear as to whether it was safe and the Applicant was not prepared to sign a medical release form, or to adopt the alternative course of directing the Applicant to attend an IME as its lawyers had advised. I am satisfied that MBBC’s decision was a reasonable course in the circumstances of this case.
[186] I am not satisfied as has been argued by the Applicant that the outcome of the FWC conference should have made it sufficiently clear to the Respondent that it was safe for the Applicant to return to work. The medical certificates did not provide a clear prognosis for the Applicant, and this gives rise to a legitimate concern for the Respondent that allowing the Applicant to return without more medical information presented a potential health and safety risk that the Respondent is legally required to manage.
[187] I am inclined to agree with the Respondent’s submission that had it adopted the Applicant’s approach of allowing her to return to work without further investigation of her medical condition and the Applicant did suffer a further injury, the Respondent would have been open to a claim that it had failed to meet its workplace health and safety obligations.
[188] The evidence also supported a conclusion that prior to the Applicant taking leave in May, the Respondent had made attempts to provide support to the Applicant to manage her concerns. I am also not satisfied there is any evidence to suggest Dr Shaikh is not an appropriate medical specialist to undertake the IME.
[189] The Applicant referred to various tests set out in the decision in Cole. Whilst cases of this nature turn on their own facts, I am satisfied the evidence supports a conclusion that a question did exist as to the Applicant’s capacity to perform the inherent requirements of the job at the relevant time and the medical certificates were not clear in demonstrating fitness to perform duties. A school environment would not be considered dangerous in comparison to many other industries, however there was evidence that the Applicant’s condition could impact on others in the workplace.
[190] The Applicant did not agree to attend Dr Shaikh however the reason given for not agreeing was not compelling, and the Applicant was aware of why the Respondent was not content to rely on the medical certificates provided. Dr Shaikh appears to have been aware the intention of the appointment was for the purpose of facilitating the Applicant’s return to work assessment however there was limited evidence as to the particulars Dr Shaikh had been made aware of. I am satisfied that the proposed IME was aimed at determining, independently, whether the Applicant was fit for work.
[191] On the basis of the evidence, the Applicant had no remaining leave entitlements and did not have a medical clearance to perform her pre-injury duties until at least 10 September 2021. WorkCover advised in early September that it did not accept the injury was work related.
[192] The Respondent ceased paying the Applicant’s wages on 24 November 2021 when the Applicant refused to attend the scheduled medical appointment, as directed. If the review of the WorkCover application is successful than presumably payments will be made if there is a finding in the future that there is a compensable injury.
[193] In the circumstances, I am satisfied that the Respondent is not liable for payment of wages for the period from 13 July to 13 September 2021, or from 24 September 2021.
CONCLUSION
[194] In conclusion, the answer to the agreed questions for arbitration are as follows:
• Does the Respondent’s direction for the Applicant to attend an Independent Medical Examination with Dr Wasim Shaikh on 24 November 2021 constitute a reasonable direction?
Yes.
• Is the Respondent liable to pay the Applicant her wages for the period 13 July 2021 to 13 September 2021, or for any part of that period?
No.
• Is the Respondent liable to pay the Applicant her wages after 24 November 2021?
No.
COMMISSIONER
Appearances:
Mr J. Spriggs of the IEU appearing for the Applicant.
Mr H. Lepahe of HWL Ebsworth Lawyers appearing for the Respondent.
Hearing details:
2021,
Brisbane:
December 20
Printed by authority of the Commonwealth Government Printer
<PR737900>
1 Exhibit 1
2 Exhibit 2
3 Exhibit 3
4 Exhibit 4
5 Exhibit 6
8 (2008) 173 IR 395 at [51] - [52].
9 [2002] FCA 603 at [68] - [69].
10 (2014) 311 ALR 680.
14 [2014] FCA 32.