Ambulance Service of New South Wales and Health Services Union on behalf of Julie Ayoub [2004] NSWIRComm 299

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President RITCHIE C

AMBULANCE SERVICE OF NEW SOUTH WALES AND HEALTH SERVICES UNION ON BEHALF OF JULIE AYOUB

Application for leave to appeal and appeal against a decision of Commissioner McKenna given on 19 December 2003 in Matter No IRC 5252 of 2003

DECISION OF THE COMMISSION [2004] NSWIRComm 299

1 This matter concerns an application by the Ambulance Service of New South Wales ("the Ambulance Service") for leave to appeal pursuant to s188 of the Industrial Relations Act 1996 ("the Act"), and if granted, an appeal from a decision of McKenna C of 19 December 2003.

2 In the matter below, the Health Services Union ("the Union") on behalf of Ms Julie Ayoub made an application for relief pursuant to s84 of the Act alleging that the threatened dismissal of Ms Ayoub by the Ambulance Service was harsh, unreasonable or unjust. The application was determined by McKenna C in favour of the Union: Health Services Union (on behalf of Julie Ayoub) and Ambulance Service of New South Wales (Unreported, IRC 5252 of 2003, McKenna C, 19 December 2003). The Ambulance Service seeks to appeal that decision.

3 It is necessary to understand the factual circumstances giving rise to the present proceedings. Those circumstances can be summarised as follows: (1) On 30 June 1997, Ms Ayoub commenced employment with the Ambulance Service. (2) On 25 June 2000, whilst working as an ambulance officer, Ms Ayoub sustained an acute back injury. (3) On 24 July 2000, following three weeks off work, Ms Ayoub commenced a return to work program which initially involved clerical duties in the Medical Records Department followed by general clerical and call support duties in the Sydney Operations Centre. The initial rehabilitation goal was a return to pre-injury duties, although later Return to Work Plans specified the rehabilitation goal as "pre-injury duties and/or vocational redirection". (4) On 23 April 2001, Ms Ayoub commenced working in the Ambulance Education Centre on restricted duties as part of her Return to Work Plan. (5) On 30 June 2001, Ms Ayoub was seconded to the Ambulance Education Centre on a full time basis as Technical Educator, albeit still on restricted duties. The medical restrictions included "Not sustained nor repetitive bending, elevating arms and squatting. Lifting 10kgs maximum. Pushing and pulling by weight. Sitting and standing 40 minutes at a time. Avoid climbing". The lifting restrictions were subsequently increased to 20 kilograms. McKenna C observed (at 2) that "although [Ms Ayoub] did not understand the [Technical Educator] placement to have been part of the rehabilitation process at the time, it is reasonably clear on the evidence that was in fact the case". (6) In May 2002, a Vocational Assessment was conducted on behalf of the Ambulance Service. The Vocational Assessment Report identified the skills and experience obtained by Ms Ayoub whilst working as a Technical Educator and stated that "It is recommended that Ms Ayoub could seek work as a Training Officer particularly within the health or medical field". (7) On 29 July 2002, the Ambulance Service advertised five vacancies for the "substantive" position of Ambulance Technical Educator. Ms Ayoub applied and was interviewed for one of the positions. Her appointment to the position of Ambulance Technical Educator was subject to a Functional Capacity Evaluation. (8) On 25 October 2002, Ms Ayoub undertook a Functional Capacity Evaluation. That Evaluation assessed Ms Ayoub's physical and functional limitations as an indicator of her working potential, both generally and specifically in relation to the position of Technical Educator. The Evaluation reported a number of subjective and objective limitations, and included the following conclusion:

In Ms Ayoub's case, for the position of Technical Educator, it is the characteristics of the load, working posture, position when lifting as well as the mass of the load that would be of most concern given her current functional status. These are risks that cannot be modified or eliminated by the employer any further. Despite the fact that Ms Ayoub has applied for the Technical Educator Position which educates Ambulance Officers and Paramedics, the components of these duties can be extremely heavy and awkward in load, placing others at risk if she is unable to take on some or most of the component of the load. (9) On 4 November 2002 Ms Ayoub was notified that she was unsuccessful in her application, stating that "a conduct and service check indicates that you are unfit for the duties of the position". That same day, Ms Ayoub commenced employment as Education Manager for a private organisation known as WorkCare Medical. (10) On 19 December 2002 the Ambulance Service wrote to Ms Ayoub asked her to "show cause as to why your employment with the Ambulance Service should not otherwise be terminated".

4 The Union commenced proceedings under s84 of the Act alleging that the threatened dismissal of Ms Ayoub was harsh, unreasonable or unjust. The application sought "reinstatement" to the position of Technical Educator. McKenna C reached the following conclusion in an ex tempore decision issued on 19 December 2003:

Taking into account the evidence and submissions, I am comfortably satisfied the union has established a case that the applicant's threatened dismissal is harsh, unreasonable and unjust, and that the Commission should order the respondent not to dismiss the applicant . Moreover, the applicant should in my view return to work as an educator, this being a role well-suited to her professional capabilities, and the only role in reemployment with the respondent, on the evidence, which would presently seem suitable in conjunction with the return to work as a corollary of the order not to dismiss. I formally recommend that the applicant now be offered the substantive position at the [Ambulance Education Centre] which she was successful in applying for, bar her disability. Leave is granted to address further on the final form of any orders, should that be necessary. (emphasis added)

5 A formal order was subsequently issued by the Commissioner at the request of the Ambulance Service (ostensibly for the purpose of preparing an Appeal Book, although the order appears to have been back-dated to 19 December 2003) which was in the following terms:

The Commission orders the Ambulance Service of New South Wales not to proceed with its threat to dismiss Julie Ayoub.

6 The Ambulance Service appealed the decision of McKenna C on the following six grounds: (1) The Commissioner erred in that she failed to take account of anti-discrimination principles and the provisions of the Anti-Discrimination Act 1977; (2) The order made by the Commissioner is inconsistent with industrial relations principles in that it requires the [Ambulance Service] to continue to employ Ms Ayoub in a position in relation to which she is unable to carry out the inherent requirements; (3) The Commissioner erred in that she took account of an irrelevant consideration, namely her recommendation that the [Ambulance Service] appoint Ms Ayoub to the position of Ambulance Technical Educator; (4) The Commissioner erred in that she made findings that the [Ambulance Service] could "make arrangements to accommodate" the work restrictions applicable by reason of Ms Ayoub's medical condition but failed to identify such "arrangements"; (5) The Commissioner erred in that she gave no reasons for her findings that Ms Ayoub "is plainly able to perform the bulk of" the duties of an Ambulance Technical Educator; and (6) The Commissioner erred in that her findings that, if Ms Ayoub is appointed as an Ambulance Technical Educator, she should not be required to carry out all of the inherent requirements of that position and to be recertified every two years, are inconsistent with anti-discrimination principles and industrial relations principles.

7 The Ambulance Service contended that leave to appeal should be granted as the matter raises important questions with respect to the interrelationship of anti-discrimination principles and industrial relations principles, and because the proposed appeal concerns matters "relating to the provision of proper training of staff employed in an important emergency service".

8 The Union opposed the grant of leave, contending that: the matter before Commissioner McKenna was relatively uncomplicated; McKenna C made factual findings based on the evidence before her; McKenna C made a clear finding that the Ambulance Service can and should accommodate the medical restrictions affecting Ms Ayoub's ability to lift weights above 20 kilograms; it was common ground between the parties that Ms Ayoub was able to perform the bulk of the duties of a Technical Educator. It was the Union's submission that the appeal does not satisfy the Commission's requirements for the grant of leave to appeal, and specifically, the appeal is not of such importance that, in the public interest, leave should be granted.

9 The Union submitted that, in any event, the Ambulance Service has failed to demonstrate any appealable error, and that the order made by McKenna C that Ms Ayoub "return to work as an Educator" should be enforced.

10 We are satisfied that appellate intervention is warranted in the present matter for two primary reasons, both of which relate to errors that are evident on the face of the decision. First, the order as made is unclear, lacks sufficient precision to be meaningful or effective and has a potential scope which exceeds any order reasonably available to McKenna C in the exercise of her powers. Second, the decision fails to adequately address the matters necessary to properly determine the issue as to whether an order should be made in the case of the dismissal of an injured worker who is unable to perform the full range of his or her pre-injury duties. Leave to appeal is therefore necessary to correct clear errors of law in the decision at first instance, and more broadly, as the matter raises important issues relating to the jurisprudence of the Commission.

11 We turn first to consider the nature of the order made. Whilst it is clear that McKenna C made an order pursuant to s89(7) of the Act "not to dismiss" Ms Ayoub, as well as a recommendation that she be offered a "substantive position at the Ambulance Education Centre", the true effect of the order is far from clear.

12 On its face, the order simply prohibits the Ambulance Service from dismissing Ms Ayoub. The order does not distinguish between the pre-accident position held by Ms Ayoub (being the position of Ambulance Officer), the acting or seconded position she was performing as part of her rehabilitation or return to work program (being the position of Technical Educator), or the position to which she had unsuccessfully applied (being the "substantive" position of Technical Educator). Further, notwithstanding s89(7) of the Act, the order to not dismiss is open ended, and is not relevantly connected to any specific threat of dismissal. Finally, on a literal reading of the decision, the Ambulance Service is precluded from ever dismissing Ms Ayoub and is obliged to retain her services for all time.

13 In oral submissions, Ms T Anderson of counsel, who appeared for the Ambulance Service, argued that the order made by McKenna C was in the nature of a final order rather than an interim order, and that its true effect was that the Ambulance Service was ordered not to dismiss Ms Ayoub from her pre-injury position as an Ambulance Officer. It was common ground that, as a result of her injury, Ms Ayoub was not able, and would never be able, to perform the duties required of an operational Ambulance Officer. Ms Anderson submitted that the Ambulance Service declined to accept McKenna C's recommendation that Ms Ayoub be appointed to the position of Technical Educator. It was the Ambulance Service's submission that there therefore existed a "nonsensical position where the employment is continuing but Ms Ayoub is unable to return to work".

14 Mr J Murphy of counsel appeared on behalf of the Union. He agreed that the order was a final order, but submitted that the true effect of the order was that the Ambulance Service was ordered not to dismiss Ms Ayoub from the position of Technical Educator, a position she held immediately prior to the threatened dismissal, being a restricted duties position. The Union submitted that although the position of Technical Educator being performed by Ms Ayoub was technically an acting or seconded position, "substantively it did not matter". The Union submitted that the order must be considered in the context of the recommendation made by McKenna C that the Ambulance Service offer to Ms Ayoub a permanent (or substantive) position as Technical Educator.

15 The divergence in counsels' submissions reflects the ambiguity that exists on the face of the order. That ambiguity is compounded, in our view, by the fact that the effect of the order depended to a large extent on whether there was compliance with the Commissioner's recommendation.

16 In that regard, we note that the Ambulance Service submitted that:

It is clear that, in making her decision that an order should be made that the [Ambulance Service] not "proceed with its threat to dismiss" [Ms Ayoub], Commissioner McKenna took account of her recommendation that the [Ambulance Service] offer [Ms Ayoub] a position of Ambulance Technical Educator. In this regard, in her decision Commissioner McKenna expressly recognises that the role of an Ambulance Technical Educator is "the only role in employment with the [Ambulance Service], on the evidence, which would presently seem suitable in conjunction with the return to work as a corollary of the order not to dismiss". In assuming that the [Ambulance Service] would act on her recommendation, Commissioner McKenna took account of an irrelevant consideration.

17 We agree with the Ambulance Service's contention that McKenna C made the erroneous assumption that the Ambulance Service would act on her recommendation and appoint Ms Ayoub to a permanent Technical Educator position. We further agree with the Ambulance Service that the order as it presently stands leaves both parties in an unsatisfactory position. We are satisfied that the deficiencies in the order made by Commissioner McKenna are sufficient to require appellate intervention.

18 The second ground on which we consider the appeal should be allowed is that the decision below fails to address the relevant issues surrounding the dismissal of an injured worker in circumstances where the employee is, or appears unlikely, to be able to return to the full range of duties associated with his or her pre-injury position. Those issues were considered in M Moses & IGA Distribution Pty Limited [2001] NSWIRComm 1053. In that case, the dismissed employee was reinstated to the "light duties" position he was performing immediately prior to his dismissal. The employee in Moses & IGA had been performing a modified position for over 12 months prior to his dismissal. In determining the matter, Cambridge C made findings that: (1) it was common ground that the employee was not fully fit to perform the full range of duties comprehended by his "normal" position; (2) the employer undertook little, if any, assessment and consideration of the impact that the employee's incapacity had upon the performance of modified duties, such that the employee was able to sufficiently discharge his employment obligations; (3) it was an unreasonable assumption to conclude that some physical incapacity to perform all of the duties associated with a position must translate into a failure to fulfil employment obligations relevant to the position, and thereby establish a justifiable basis for dismissal; (4) the evidence established that the employer could provide modified duties so as to adapt the work requirements to fit the incapacity of the employee without any demonstrated commercial or economic loss to the employer; (5) given the size and nature of the employer's workforce there existed significant, obvious prospect for identification of various modified duties which could satisfy the needs of rehabilitation programs whilst providing efficient and productive work.

19 The decision of Cambridge C in Moses v IGA was unsuccessfully appealed. On appeal, the matter turned on whether an order of reinstatement was available under s89(1) of the Act, in circumstances where the "former position" to which he was reinstated was the "light duties" position he held immediately prior to his dismissal and not the full duties position in which he was engaged prior to the accident: IGA Distribution Pty Limited and Moses (No 2) [2002] NSWIRComm 96. In the event, the Full Bench in that matter determined the appeal in favour of the respondent employee on the basis that s89(8) of the Act gives the Commission power to reinstate an employee on "such terms and conditions" as it determines. Whilst similar orders may have been available to McKenna C in the present matter, no such order was, in fact, made. Further, the decision of Commissioner McKenna does not demonstrate any analysis of the facts such as that undertaken by Cambridge C in Moses v IGA, or a proper application of the principles discussed by the Full Bench in IGA Distribution v Moses (No 2).

20 In the circumstances, given our conclusion that the appeal should be upheld, it is not necessary to specifically consider and determine all of the grounds of appeal raised by the Ambulance Service.

21 How, then, should the appeal be resolved? It was contended by the Ambulance Service (and the Union agreed) that an industrial dispute existed regarding the Ambulance Service's unwillingness to accept the Commission's recommendation. The Ambulance Service submitted that the appropriate course would be to uphold the appeal and that industrial dispute proceedings should be brought on to deal with the underlying dispute between the industrial parties.

22 Mr Murphy argued that it would be inappropriate to uphold the appeal and resolve the matter as an industrial dispute, as to do so would be to place form over substance, given that the question of Ms Ayoub's fitness to perform the role of Technical Educator has been heard and determined by McKenna C. Mr Murphy further submitted that it was unnecessary for the matter to be sent back to McKenna C to make an order which has the intended effect, as the order as made already has that effect.

23 Mr Murphy further submitted that "if the Commission is concerned about the form of [the] order then the remedy is to correct it, not to set it aside, with respect, because that would have the effect of putting at nought all that has gone before, that is, the hearing of all the evidence, the consideration given to that and the determination the Commissioner came to". Any defect on the face of the order could be remedied by amending the order to read as follows: "The Commission orders the Ambulance Service of New South Wales not to proceed with its threat to dismiss Julie Ayoub from the position she held (the position of Technical Educator in the Ambulance Education Units as she had been performing the duties of that position between April 2001 and August 2002)".

24 Ms Anderson disagreed. She submitted that Commissioner McKenna made a clear distinction between the order and the recommendation that was made, and that the order should not be amended to say something that it does not presently include. Ms Anderson also submitted that it would be inappropriate to send the matter back to McKenna C to hear and determine, together with a related industrial dispute, because the decision is clear on its face. It was further contended by the Ambulance Service that, if the matter were to proceed as an industrial dispute, it should be remitted to a member of the Commission other than McKenna C, on the basis that "a reasonable person would have an apprehension that she may not be able to bring a mind that is impartial or free of predetermination to the determination of [the] industrial dispute".

25 It is not necessary or appropriate that we attempt to determine what may have been the Commissioner's precise intention. In any event, for the reasons we have given, there were matters that required consideration and determination (and which were not considered and determined at first instance) before an order in the terms contended for by the respondent could be made. The appropriate course is to remit this matter for re-hearing by another Member of the Commission together with the related industrial dispute. In doing so we note that the Ambulance Service agreed that the material in evidence before the Full Bench should form part of the record of proceedings before the Member to whom the matter is remitted, together with any supplementary evidence which may be admitted in those proceedings.

26 We make the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The matter is remitted to another Commissioner for re-hearing of the application brought by the Health Services Union under s84 of the Act together with the related proceedings concerning an industrial dispute under s130 of the Industrial Relations Act . (4) It is noted that the above proceedings are to be allocated to Ritchie C.

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