Carter v Secretary, Department of Education [2025] NSWIRComm 1037

1. On or around 22 July 2016, Rainnie Carter commenced employment with the Government of New South Wales in the service of the Crown as a member of the Teaching Service of New South Wales pursuant to s 44 of the Teaching Service Act 1980 (NSW).
2. On 17 July 2024, Ms Carter was medically retired from the Teaching Service by Catherine Brennan, the delegate of the Respondent, the Secretary, Department of Education ("Dismissal").[1]
3. On 5 August 2024, Ms Carter filed an application for relief in relation to unfair dismissal pursuant to s 84 of the Industrial Relations Act 1996 (NSW) ("IR Act") ("Application"). Ms Carter says that her medical incapacity is not permanent and the Respondent has acted unfairly and in breach of workers compensation legislation and its own Medical Retirement Guidelines ("Guidelines") in medically retiring her, and seeks reinstatement.
4. For the reasons which follow, I have decided to dismiss the Application.

Procedural matters and material relied on by the parties

1. The matter was conciliated unsuccessfully by me on 20 August 2024, and 11 and 19 September 2024, and the arbitration hearing took place before me on 25 and 26 March 2025.
2. At the arbitration, Ms Carter relied on:

(1) the following evidence:

(a) a statement made by her on 24 December 2024 ("Exh A1");

(b) a statement in reply made by her on 20 February 2025 ("Exh A2"); and

(c) a letter from Allianz Insurance Limited to her dated 10 May 2025 ("Exh A3"); and

(2) an outline of submissions filed at the hearing on 26 March 2025 ("AOS").

(1) the following evidence:

(a) a statement of Ms Brennan made 12 February 2025 ("Exh R1");

(b) a statement of Leah Anderson made 10 March 2025 ("Exh R2"); and

(c) a statement of Joanne Frearson made 13 February 2025 ("Exh R3"); and

(2) an outline of submissions filed on 13 February 2025 ("ROS").

1. On 4 September 2017, while working at Cammeraygal High School ("Substantive School") as a full-time Technological and Applied Studies ("TAS") teacher ("Substantive Role"), Ms Carter notified a workplace injury arising out of "workplace bullying". The deemed date of the injury being 17 July 2017, approximately one year after Ms Carter commenced her employment.[2]
2. Ms Carter's evidence is that she was off work due to her workplace injury from 7 November 2017 to 4 December 2017. Ms Carter says she returned to full duties at Cammeraygal High School in the Second Semester of 2018. Ms Carter asserts that the return to work was unsuccessful as the pattern of bullying continued, and since the second semester of 2018, she has been certified as unable to work at her Substantive School due to an injury arising from bullying: Exh A1 at par 4.[3]
3. In the period since the injury, Ms Carter has provided medical certificates to the Respondent containing restrictions on her capacity to work at the Substantive School, the number of days she can work, and the time and distance she can travel. While on leave from the Substantive Role, Ms Carter has worked under various arrangements at schools other than the Substantive School consistent with the medical restrictions applicable at the relevant time.
4. The Respondent says that he determined that medical retirement was appropriate approximately seven years after the deemed date of the injury, because:

(1) at the time of the Dismissal, Ms Carter was unable to perform the inherent requirements of the Substantive Role as evidenced by medical certificates including from Ms Carter's treating doctor, Dr James Sagi, and had been unable to do so since 2018;

(2) the medical evidence available to the Respondent did not suggest that Ms Carter would be able to perform the inherent requirements of the Substantive Role in the future; and

(3) the Respondent had attempted to return Ms Carter to work in different positions by providing suitable duties for her, but those attempts had failed.

1. The Respondent had legal obligations to Ms Carter under the Workers Compensation Act 1987 ("WC Act") and the Workplace Injury Management and Workers Compensation Act 1998 ("WIM Act"). Ms Carter submits that the workers compensation legislation, and the Respondent's obligations under this legislation, take priority over any other legislation such as the Teaching Service Act and the Respondent's asserted failure to comply with the workers compensation legislation makes the Dismissal unfair. In addition, Ms Carter says that the Respondent breached his own policies and otherwise acted unfairly to her.
2. Ms Carter does not dispute that at the time of the Dismissal, she was unable to perform the inherent requirements of the Substantive Role, and has been unable to do so since 2018. However, Ms Carter says that her medical incapacity is not permanent and that she is "in the recovery process and expect[s] to be able to return to full duties and continue with [her] career which [she] love[s]": Exh A1 at par 36. Accordingly, Ms Carter seeks "reinstatement".
3. The Respondent says that the termination of Ms Carter's employment was not unfair because:

(1) there was a sound basis for the decision to dismiss Ms Carter;

(2) the Respondent took reasonable steps to accommodate Ms Carter's limitations and made four offers of what he considered to be suitable roles in accordance with the medical information provided in her certificates of capacity; and

(3) Ms Carter was afforded procedural fairness before the Respondent decided to medically retire her, including by providing her an opportunity to respond to the reasons for her proposed medical retirement.

What must the Commission decide in order to determine if the Dismissal was harsh, unjust or unreasonable?

1. In the AOS, Ms Carter made assertions and submissions that were not pressed, or at least not pressed in full, during oral submissions. I set out below the substance of the submissions in the AOS, and I address the position stated at the hearing under the heading "The case put by Mr Collins on behalf of Ms Carter at the hearing".

Questions and matters put by Ms Carter in the AOS

1. Ms Carter says that she may have been able to perform the inherent requirements at some time in the future and, in essence, the medical retirement was premature.
2. Ms Carter asserts that the workers compensation laws prioritise return-to-work efforts and that the Respondent failed to:

(1) participate in injury management plans;

(2) provide suitable alternative duties or a suitable alternative position; and

(3) establish return-to-work programs in consultation with the worker.

1. Ms Carter says that the relevant provisions of the workers compensation legislation that apply to injured workers and which were not observed by the Respondent include:

(1) s 46 of the WIM Act - an employer must participate and co-operate in the creation of an injury management plan and co-operate in its obligations under that plan;

(2) s 49(1) of the WIM Act - an employer must, at the request of the worker, supply suitable employment or it commits an offence;

(3) s 49(2) of the WIM Act 1998 - the relevant employment must be "suitable employment" as defined by section 32A of the WC Act, and so far, as reasonably practicable the same as, or equivalent to, the worker's employment at the time of injury. Subsection 3 provides limited exceptions; and

(4) s 52 of the WIM Act - an employer must establish a return to work program in consultation with the workers concerned.

1. Ms Carter claims further that the Respondent did not follow his own processes set out in relevant policies, particularly the Guidelines, which are found at 'CB-1' to Exh R1, and which Ms Carter says mirror the statutory obligations, leading to a flawed medical retirement process and entitling her to reinstatement.
2. Ms Carter says that at page 3 of the Guidelines the Respondent sets out the four circumstances where medical retirement of teaching and non-teaching staff can occur:

"Medical retirement can be:

• Initiated and requested by the employee as a result of the difficulties they are experiencing in performing their Substantive Role due to their non-work related medical condition;

• Initiated and requested by the Department as a result of an independent medical capacity assessment;

• Based on the outcome of a review by the independent review panel as a result of the independent medical capacity assessment; or

• Initiated by the Department based on information obtained from the Fund Manager for employees with an open workers compensation claim."

1. Ms Carter says that she did not request medical retirement and the other three circumstances set out in the Guidelines did not apply. Ms Carter says:

(1) to her knowledge no injury management plan was created;

(2) there were no recent medical assessments;

(3) there was no independent review or consultation; and

(4) there was no evidence of suitable alternative positions being considered.

Consequently, medical retirement was not available, or as it was put to Ms Frearson in cross-examination, should have been a last resort: Tcpt 26 March 2025 p 100 at 38-40; hence the Dismissal was unfair.

1. Ms Carter says that the statutory framework requires a collaborative and supportive process which was not provided to her, and the Respondent's approach aggravated and delayed her recovery. In particular, the recovery at work process steps were not taken and there was a lack of support by, and communication with, the Respondent. By way of example, Ms Carter says:

(1) there was no contact from the employer for five years;

(2) she was not offered retraining or support programs;

(3) workplace managers did not assist her in a supportive manner;

(4) suitable duties were not supplied and the policy not followed in relation to consultation; and

(5) transfer policies also were not followed.

1. Ms Carter made no submissions in the AOS addressing whether the Dismissal was unfair for any reason specific to one of the three distinct overlapping terms of harsh, unjust or unreasonable used in the legislation. In particular, Ms Carter did not press any specific elements personal to her that the Commission should consider in order make a finding of harshness in respect of the Dismissal.

The case put by Mr Collins on behalf of Ms Carter at the hearing

1. Despite the content of the AOS, in closing oral submissions, Mr Collins accepted that this Application, is not about the return to work dispute rather it "is about medical retirement, and whether or not the respondent followed its own processes, and whether it did so in a way that was fair and not harsh to the applicant": Tcpt 26 March 2025 p 120 at 34-36.
2. Mr Collins submitted:

"What we're really looking at is, first of all and I took you to, and I asked the witnesses questions about the four categories where medical retirement can even be initiated in the first place. It's common ground, and I'm referring to ... [the] medical retirement guidelines, health and safety directorate. And I'm looking at the introduction, and the four categories where medical retirement can occur. And it's common ground that it wasn't initiated at the request of the employee. It wasn't initiated at the request of the department as a result of an independent medical capacity assessment. It wasn't based on a review of an independent review panel. And we submit that it cannot have been the final category where, the point initiated by the department based on information obtained from the fund manager for employees with an open workers compensation claim. Because the applicant didn't have an open workers compensation claim.

If you're against us on that, then we go to the next step, which is, what's the protocol? If it is initiated from discussions with the fund manager, and then we go to the discussions we had in relation to 6.1, which is my 135, which I think must probably be your 138."

(Tcpt 26 March 2025 p 120 at 47 - p 121 at 15.)

1. At the end of oral submissions in chief, Mr Collins said:

"... . It's a little bit hard to separate them in this case, because [they] have crossed over a bit, but the primary submission of the applicant is the respondent itself had no medical basis to terminate her, and didn't follow its own protocols. Unless anything arises specifically from the respondent, those are the applicant's submissions."

(Tcpt 26 March 2025 p 124 at 16-20)

1. Mr Collins submitted that it is "harsh and unfair" to terminate someone in contravention of obligations to provide suitable duties, particularly when the person is fully fit but made no other oral submissions that the Dismissal was harsh for reasons personal to Ms Carter.

The Respondent's submissions touching on to the questions to be answered

1. In his oral submissions the Respondent's legal representative, Mr Edghill, submitted that there were two relevant questions in this case:

(1) Could Ms Carter perform the inherent requirements of her position at the time of the Dismissal?

(2) If Ms Carter could not perform the inherent requirements of her position at that time, did the Respondent take reasonable and appropriate steps to accommodate her prior to her medical retirement?

The statutory framework and the Commission's powers

1. Consistent with Wattie v Industrial Relations Secretary (No 2) [2018] NSWCA 124 at [146], the Commission must consider the broader regulatory context in which Ms Carter was employed and in which the decision to terminate her employment was made.
2. Ms Carter's employment was terminated pursuant to s 76 of the Teaching Service Act, which empowers the Secretary to medically retire an officer which provides:

76 Retirement or transfer of officers through invalidity or incapacity

(1) Where the Secretary determines -

(a) that an officer of the Teaching Service is, because of invalidity or physical or mental incapacity, unable to perform the duties of his or her position,

(b) that the invalidity or incapacity is likely to be of a permanent character, and

(c) that the invalidity or incapacity has not arisen from actual misconduct on the officer's part or from causes within the officer's control,

the Secretary -

(d) may cause the officer to be retired from the Teaching Service, or

(e) with the consent of the officer, may transfer the officer -

(i) to some other position in the Teaching Service, or

(ii) to ongoing employment in the Public Service (with the approval of the head of the Public Service agency concerned),

(iii) (Repealed)

with salary and other conditions of the officer's employment appropriate to that position or employment.

(2) A decision or determination of the Secretary under subsection (1) is not subject to appeal under Part 7 of Chapter 2 of the Industrial Relations Act 1996.

1. In evaluating Ms Carter's submissions about the Guidelines, the Commission is guided by the principles articulated in Buchanan v. Secretary, NSW Department of Education [2016] NSWIRComm 1045 at [6]. Commissioner Newall stated:

"[6] While it is the case that in a given case breach of an employer's own policies can render dismissal unfair, it is not necessarily so, and Antonakopoulos v State Bank of NSW (1999) 91 IR 385 and similar cases do not say otherwise. ... What the Commission has to address under s 84 of the Act, ... is whether a dismissal was harsh, unreasonable or unjust. Lawfulness of an action taken by a respondent, or observance of its policies, may well be a consideration but they do not detract from the actual consideration the Commission is required to carry out, that is, drawing on Bankstown City Council v Paris [1999] NSWIRComm 585; (1999) 93 IR 209 and the cases following it, whether a dismissal was unfair assessed by the tripartite test to which I have referred. That is the only basis on which s 84 applications can be determined, there is no other."

1. The Full Bench in Colefax v Secretary, Department of Education (No. 3) [2019] NSWIRComm 1000 at [33] clarified that the Guidelines do not limit the statutory authority conferred by s 76 of the Teaching Service Act. Rather, the Guidelines are administrative tools that may inform the exercise of that authority but cannot override it.
2. Nevertheless, a failure to follow the Guidelines may be relevant to the question of procedural fairness. As held in Antonakopoulos v State Bank of NSW (1999) 91 IR 385, a procedurally unfair process may render a dismissal harsh, unjust or unreasonable, but such a finding is not inevitable.
3. In Jenkins v Secretary, Ministry of Health [2022] NSWIRComm 1013, Commissioner Webster applied the principle from J Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022 at [22], that:

"When an employer relies upon an employee's incapacity to perform the inherent requirements of his position or role, it is the Substantive Role or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position."

1. This principle has been consistently applied, including in Colefax (No. 3), where the Commission confirmed that the relevant test is whether the employee can perform the inherent requirements of their pre-injury role, not whether they can perform modified or alternative duties.
2. The Commission must also consider the interaction between the Teaching Service Act, the WIM Act, and the WC Act. These statutes operate concurrently. As noted in Colefax (No. 3) at [92], the obligations under the WIM Act do not displace the authority under the Teaching Service Act to medically retire an employee. While compliance with the workers compensation legislation may be relevant to the determination of whether the dismissal is unfair, there is a separate compliance regime under the workers compensation scheme which was acknowledged by Mr Collins on behalf of Ms Carter.
3. In Riley v WorkCover Authority of NSW [2006] NSWIRComm 108; (2006) 151 IR 396, the Full Bench held that an employer must take reasonable steps to accommodate an injured worker's limitations. However, this does not impose an obligation to provide suitable duties indefinitely and the Commission in Jenkins reaffirmed that s 49 of the WIM Act does not require the creation of permanent alternative roles.
4. The Commission's task is to determine whether the Dismissal was harsh, unjust or unreasonable under the IR Act. Accordingly, the Commission must determine whether, in the circumstances of this case, the Respondent took reasonable steps to accommodate Ms Carter's limitations before proceeding to medical retirement. This includes assessing whether the Respondent's actions were consistent with procedural fairness, with the Guidelines and the workers compensation legislation being relevant but not determinative considerations.

The questions to be answered in order to determine if the Dismissal was unfair within the meaning of section 84 of IR Act

1. Considering the parties' submissions, applying the concessions made in the oral submissions by Mr Collins to the AOS, in the relevant statutory context and applying the relevant authorities, the specific matters that I will assess in order to determine if the Dismissal by way of medical retirement was unfair within the meaning of section 84 of IR Act are:

(1) Whether the Respondent had a valid basis to medically retire Ms Carter, including whether she was incapable of performing the inherent requirements of her Substantive Role at the time of the Dismissal and whether the decision to medically retire Ms Carter was premature? In terms of the IR Act, whether the reason given for the Dismissal "had a basis in fact": ss 88(a) and (b) of the IR Act.

(2) Whether the Respondent followed its own internal Medical Retirement Guidelines, and if not, whether any failure to do so rendered the dismissal harsh, unjust or unreasonable.

(3) Whether procedural fairness was afforded to Ms Carter, including whether she was given a fair opportunity to respond to the proposed medical retirement and whether the process was conducted in a transparent and reasonable manner.

1. Mr Collins acknowledged that the Commission is not being asked to determine specifically in these proceedings whether the Respondent complied with its obligations under the workers compensation legislation, including the WIM Act and the WC Act in relation to return-to-work planning, provision of suitable duties, and consultation, stating:

"... and the employer and the applicant can do whatever they're supposed to do in terms of the return to work options and suitable employment, which are really not for this jurisdiction."

(Tcpt 26 March 2025, p 139 at 14-16)

1. However, ultimately, the Commission must determine whether the Dismissal was harsh, unjust or unreasonable having regard to the totality of the circumstances, including the statutory framework, the Respondent's conduct, and Ms Carter's medical condition and capacity at the time of dismissal.

1. Noting that Ms Carter does not dispute that she could not perform the inherent requirements of the Substantive Role as at the date of the Dismissal, during final submissions, Mr Collins and I had an exchange about Ms Carter's medical capacity which is relevant not only to remedy but the asserted unfairness of the decision to medically retire Ms Carter when she says her condition had not reached maximum improvement. This included the following:

"COLLINS: Probably not, but even her GP says that her condition has not stabilised, and the rehabilitation has come to an end. I think it's pretty clear she can't go back to her old school, but she may be able to we don't know. Her condition is not stable. Dr Singh says she's still in the recovery process. But one thing that is clear, in our submission, is that the medical retirement process is defective and should be set aside, and if they want to engage in the process properly, then the applicant can respond properly and the matter can be dealt with. There's no evidence about what the situation is at her old school. We don't know who's still there. We don't know if the applicant in the future might be able to go back there. These are all unknowns, but these are not matters that were addressed properly, we would say, in the process.

SENIOR COMMISSIONER: But you need to address me on those matters of reinstatement, re employment or otherwise, because I only have certain powers under the Act. I can't effectively injunct the medical retirement.

COLLINS: We'd ask you to set it aside because it's fundamentally defective, because they didn't follow the guidelines. The applicant could then notionally still be employed at her Substantive Role, and the employer and the applicant can do whatever they're supposed to do in terms of the return to work options and suitable employment, which are really not for this jurisdiction.

SENIOR COMMISSIONER: So what you're saying is what is sought from the commission is reinstatement to the position at Cammeraygal, but that she would be unable, based on the material before the commission, to perform that position.

COLLINS: She may or may not be able to go back to her Substantive Role.

SENIOR COMMISSIONER: Sorry, I can't deal with "may or may not". The material before the commission, the latest

COLLINS: Well, we don't know what her future is.

SENIOR COMMISSIONER: Isn't the latest document from Dr Sagi that she can't return to her old role?

COLLINS: It's most unlikely.

SENIOR COMMISSIONER: Is it unlikely or does it say that it can't?

COLLINS: I appreciate that's what he says."

(Tcpt 26 March 2025, p 138 at 45 - p 130 at 37)

(My emphasis)

1. The "latest document" to which I referred in the above exchange is the certificate of capacity dated 16 December 2024, which is Appendix B to Exh A2, in which Dr Sagi opines at p 2 of 4 that Ms Carter is not able to return to her "substantive school currently":

"Rainnie has been medically retired by the Department of Education from her pervious permanent position. She is in the midst or reconcilliation (sic) as Rainnie does not agree with this

Currently she is doing casual work at 5 days per week at various schools

Rainnie is coping acceptably with this however does feel the effect of(sic) increased stress and limited time for self care

Currently all work she has found has been off the back off her own efforts

As she has been medically retired by the DoE, they have made it clear that they will no longer be finding temporary placements for her

Restrictions:

1. Not to return to substantiave (sic) school currently

2. To work within 30min travel time from place of residence"

1. The insurer accepted liability for Ms Carter's injury: see R1, Annexure 'CB-4' and the Respondent has not made any submissions about the original injury or its cause. Therefore, it can be inferred that Ms Carter's allegations of bullying have been accepted by the insurer and the Respondent.
2. Despite this, the cause of the injury, including whether the person or persons responsible for the bullying remain employed at the Substantive School, would, ordinarily be relevant to a determination of whether the Dismissal on the basis of medical retirement, was unfair, and if so, the remedy.
3. The evidence about the injury to which the Commission was directed is limited to the certificates of capacity which state that Ms Carter cannot return to Cammeraygal High School.[4]
4. Ms Carter refers to her "injury arising out of workplace bullying": par 3 of Exh A1, and to "the pattern of bullying continuing": par 4 of Exh A1. However, the Commission was not directed to anything in the material before it that established, or directly asserted, who was responsible for the alleged bullying.
5. In the material before the Commission to which I was directed there was little material about Ms Carter's interactions with staff or with other members of the Cammeraygal High School establishing the particulars of the bullying which was accepted by the insurer and the Respondent.
6. There is some evidence of asserted behaviour which the Commission could infer that Ms Carter found to be bullying, which Ms Carter asserts occurred after the deemed date of the injury. This includes:

(1) a statement about the Principal at Cammeraygal High School not approving leave without pay for Ms Carter which would have allowed her to undertake work at a different school: Exh A1 at par 6, and a statement about "threatening behaviour from advisers who continually pressured [Ms Carter] to upgrade despite medical advice": Exh A1 at par 8 which refers but Ms Carter asserts that this behaviour took place after the deemed date of the injury: eg Tcpt 25 June 2025 p 19 at 36;[5] and

(2) a statement in cross-examination that she would consider returning to Sydney if "the principal was to move schools or become an exec": Tcpt 25 March 2025, p 70 at 19.

1. The Respondent has taken what must be described as an empathic approach to Ms Carter's personal decision to relocate from Sydney to Stockton in its attempts to find suitable employment which are set out below. Nevertheless, in circumstances where the insurer accepted liability for an injury arising from bullying of Ms Carter, where Ms Carter seeks to be reinstated to the Substantive Role, and where it is asserted by Ms Carter that Ms Carter's condition has not reached maximum recovery, the absence of any evidence about the cause or perpetrator of the bullying, and whether that person or persons remain/s at or connected with the school is unusual.
2. Mr Collins's submission on behalf of Ms Carter that it is not known who is working at the Substantive School at the time of the Dismissal, and at the time of the hearing, carries the implication this was a matter that should be addressed in the Respondent's evidence. This submission ignores the fact that the medical evidence set out in some detail below, consistently states that Ms Carter cannot return to the Substantive School and makes no mention of any individuals with whom Ms Carter cannot work.
3. The onus is on Ms Carter to establish that the Dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273. While the absence of evidence about the circumstances which led to the injury and whether those circumstances have changed is, as I have opined above, unusual, I do not consider that this submission can assist the Application in any material way when Ms Carter left Sydney in late 2017 or early 2018,[6] and has indicated no willingness to return to Sydney.
4. There was nothing to suggest a willingness by Ms Carter to return to Sydney, even conditionally, in her reply dated 17 June 2024 to the Respondent's letter notifying his intention to medically retire her: Exh R3, Annexure 'JF-1'. The only evidence that suggests that Ms Carter may be willing to return to Sydney was given by her in response to cross-examination: Tcpt 25 March 2025, p 70 at 15-19. The medical and other evidence summarised below indicates that all discussions and restrictions were predicated on a Newcastle location suggesting that Ms Carter did not give any thought to returning to Sydney. Accordingly, I have given little weight to this statement made by Ms Carter in cross-examination.

Did the Respondent have a valid basis to medically retire Ms Carter and was the decision to medically retire Ms Carter premature?

1. The Respondent says that there was a sound basis for the decision to dismiss Ms Carter because:

(1) at the time of the Dismissal, Ms Carter was unable to perform the inherent requirements of the Substantive Role, and had been unable to do so since 2018;

(2) the medical evidence available to the Respondent did not suggest Ms Carter would be able to perform the inherent requirements of the Substantive Role in the future. Ms Carter says that the medical evidence suggests that her condition is still improving and the medical retirement was premature; and

(3) the Respondent had attempted to return Ms Carter to work in different positions by providing suitable duties for her, but those attempts had failed.

1. The Respondent's representative, Mr Edghill, took me, in submissions, to the medical evidence that the Respondent says is relevant to his decision to medically retire Ms Carter and which, in essence, responds to the assertion that the medical retirement was premature because Ms Carter may be able to perform the inherent requirements at some time in the future. This evidence is provided in roughly chronological order in the statement of Ms Frearson: Exh R3, and includes little evidence before 2022. Given Ms Carter asserts that her condition had not stabilised and the Respondent has acted prematurely, it is useful to set out this evidence in some detail:

(1) 'JF-5' - a certificate of capacity for the period 10 June 2022 to 15 July 2022. It includes a capacity to work three days per work, and the Respondent submits it also includes that Ms Carter can trial four days per week if required at that point in time;

(2) 'JF-7'- a certificate of capacity for the period from 7 October 2022 to 4 November 2022, providing a capacity of three days per week and that Ms Carter cannot return to the same school;

(3) 'JF-8' - contains two reports. A report dated 26 September 2022 and a report of Dr Ian Smith dated 4 November 2022. The 4 November 2022 report begins:

"I refer you to my Stage 2 IMC from 26 September 2022.

An email response from the treating psychologist, Emily Fraser, was provided (30 September 2022).

On receipt of your referral a copy of the email sent to Ms Fraser's practice requesting a callback was sent to her supporting the information in my prior report. We subsequently fully discussed this matter on 4 November 2022.

In relation to the key issues she advised as follows (the situation has changed since this matter was originally referred to me):

Ms Carter and her practitioners had believed that the temporary placement would continue until the end of the year. It has now been withdrawn. It had been hoped that she would progress by one day each term but this will now not be possible.

Because she found the situation overwhelming, there was a need to reduce the certified days of work from four days to three days. She bad only been on the four days for a brief period of time and was struggling."

(4) 'JF-13' - a certificate of capacity for the period 13 April 2023 to 11 May 2023 providing that Ms Carter had capacity for eight hours a day, three days a week. It also includes the following statement:

"1. Rainnie currently has capacity for work for three days a week.

2. Not to return to substantive school

3. not to work outside of the Newcastle region. Sydney is not a viable placement area."

(5) 'JF-15' - a letter dated 27 February 2024 from Dr Sagi refers to a further restriction:

"if we cannot leave Department of Education initiated placements restricted to within the Newcastle metro region, I would then suggest a travel restriction of 30 kilometres or less than 35 minutes from Rainnie's place of residence".

(6) 'JF-16' - a certificate of capacity for the period 29 June 2023 to 27 July 2023. Ms Carter had capacity for regular hours for three days per week but "not to return to substantive school. To work within Newcastle metro region". This certificate of capacity gave effect to what was in Dr Sagi's letter of 27 February 2024.

(7) 'JF-22' - a certificate of capacity for the period from 13 November 2023 to 11 December 2023. The capacity is for three days per week and "the applicant cannot return to the same school";

(8) 'JF-23' - an Allianz "IME Template" report, or a "summary of a report" or a" report of a report" as described by Mr Collins. It is information that has been provided in relation to the applicant's capacity for work which comes from a report of a psychiatrist, Dr Nicholas Cassimatis dated 13 November 2023 and has been summarised by the Allianz case manager under the heading "Supplementary Report" as follows:

"Whole Person Impairment

1. We note in your report dated 05/09/2023 that you do not believe Ms Carter has reached maximum medical improvement. We now attach the neuropsychologist report of Dr Alex Knopman. Does this change your opinion at all? If so, can you please provide your assessment of whole person impairment?

Dr Knopman did not find any cognitive impairment but did find evidence of tearfulness and fatigue. He reports that the Injury Management Consultant Dr I Smith reported on 30.06.2023 that Psychologist Alix Bilton and Ms Carter agreed that Ms Carter no longer required therapy.

I therefore accept that Ms Carter has reached Maximum Medical Improvement (MMI) and have attached a PIRS table.

2. If you have provided an assessment of whole person impairment, please consider whether a deduction pursuant to Section 323 of the 1998 Act would be appropriate given Ms Carter's history of psychological episodes. If applicable, please advise on the deduction, and new whole person impairment assessment.

I have deducted 10% for the pre-existing disorder.

3. Any other comments on Ms Carter's whole person impairment upon review of the neuropsychologist report?

No comment.

Treatment

4. With respect to your response to question 7, can you please specify what the "recommended appropriate treatment" is? Please also provide your opinion on the ongoing duration of this treatment and how frequently it needs to be occurring?

Based on the information in Q1 above, there is no further additional treatment.

5. Is there any additional treatment that Ms Carter should be undergoing? If so, please advise.

I do not recommend any additional treatment.

RTW and restrictions CLAIM DETAILS

6. We refer to your comments: "She said she made mistakes which she put down to having intrusive thoughts, which would disappear should she not have pressure placed upon her. Her insight and judgement were based on confidence that she could return to full time work". Can you please elaborate on what is meant by this? Does this relate to her work-related condition?

Ms Carter still had symptoms of persistent depression that would limit her return to work to three days per week.

7. With respect to the restrictions, you have outlined for Ms Carter: "The work related restrictions are a commencement of returning to work three days per week which includes two days of parental leave starting as a casual and as opportunities arise to move towards full time work over a period of 6 months", what are these initial restrictions related to / what are they specifically in place for? Are these restrictions a matter of convenience for Ms Carter, or do you believe she is truly not fit to return to full time work? Please elaborate.

The return to work three days per week is a reasonable and achievable goal. Based on further information from the report f Dr Knopman, I do not believe that Ms Carter will work 5 days per week.

The parental leave is a convenience for Ms Carter.

8. Realistically, when do you believe Ms Carter would be fit to return to her preinjury duties?

Ms Carter is fit to return to her pre-injury duties today, 3 days per week for the foreseeable future."

(9) 'JF-28' - a certificate of capacity for the period 11 March 2024 to 8 April 2024 which states that Ms Carter has capacity for regular hours, three days per with "restrictions: not to return to substantiave (sic) school. To work within 30 min travel time from place of residence. 3 days per week at regular hours";

(10) 'JF-29' - a further report from Dr Ian Smith, dated 28 February 2024 in which he states:

"I fully discussed this matter with the nominated treating doctor, Dr James Sagi, on 27 February 2024. In relation to the key issues, he advised as follows. The travel restriction is in place because Ms Carter gets stressed by being at work, she gets tired and becomes cognitively challenged, and therefore he sees it as a safety issue."

...

"Therefore, Ms Carter can work at schools within about 30 minutes of travel from her home. The certificate will be amended accordingly",

(11) 'JF-35' - a certificate of capacity for the period 3 June 2024 to 17 June 2024, which provides: "not to return to substantiave school (sic)"; "to work within 30 minutes travel time from place of residence"; and "can work 3 days per week at regular hours". Dr Sagi then states:

"Workcover review

Injury: Depression from workplace bulling (9 mins)

Current capacity: 3 days

Future capacity: 3 days

Rainnie has been doing 2 days casual work (on average) at HSPA

She has had mutual discussions with HSPA about doing a 3rd day (which would then be under the RTW program, not 'casual' as it is currently)

Rainnie relates that the department of education has advised that all placements must be accepted by the directors

We then undertook a 30 min case conference with

Rainnie - patient

Murray - worker's health

Zeba -case manager's team leader Diva - case manager (Allianz)

Daniella and Justine (Department of Educaiton) Angela (Teacher's Union)

Myself

Daniella informed us that after discussions with the Director (Sharon) that a placement with HSPA would not be possible. It had been blocked by her Principal at Cameragyl High School (whom is alleged to be the initial bully no less)

She then informed Rainnie that the department of Education would not be supporting further temporary placements.

(errors in original)

1. Having regard to the evidence set out above, as at the date of the Dismissal, seven years after the deemed date of the injury, Ms Carter remained incapable of performing work exceeding three days per week. Additionally, she was either unable or unwilling to undertake employment requiring travel beyond a 30-minute radius from her residence in Newcastle, a location quite clearly more than 30 minutes from the location of the Substantive Role. The reason for the Dismissal had a basis in fact.
2. Given the weight of the medical evidence before the Respondent I am satisfied that there was no real basis for him to consider that Ms Carter's restrictions would change.
3. Consequently, there was a sound basis for the decision to medically retire Ms Carter at that time and the decision was not premature.

Did the respondent take appropriate, suitable and reasonable steps to try to find an alternative position or alternative work for Ms Carter?

1. Much of the evidence on which the Respondent relied in relation to the steps taken to find suitable alternative employment for Ms Carter is contained in the material annexed to Ms Frearson's statement.
2. The Respondent submits that the reasonable steps taken on his behalf to accommodate Ms Carter's limitations and to increase her work capacity include and/or are evidenced by the following:

(1) by providing suitable duties for her at Newcastle High School ("NHS") from May 2022 until September 2022 ("First Offer"). In respect of the First Offer the Respondent says Ms Frearson's evidence from her review of the file is that:

(a) the Respondent made the First Offer with the expectation that Ms Carter would return to full-time work: par 20(b) of Exh R3. A copy of the file notes of Mr Geoffrey Kelly, Health and Wellbeing Advisor, and emails from Mr Kelly in relation to the First Offer: Exh R3, Annexure 'JF-3'. On 19 May 2022, Ms Carter signed and agreed to a Return to Work Plan ("RTW Plan") which indicated she was to commence working three days per week at NHS, with the goal of increasing her working days to four days per week from 20 June 2022: Exh R3, Annexure 'JF-4';

(b) on or around 9 May 2022, Ms Carter commenced working three days per week at NHS in an above establishment temporary placement as part of the First Offer;

(c) on 10 June 2022, Ms Carter provided a certificate of capacity and agreed a RTW Plan which confirmed she was to trial working four days per week at NHS: Exh R3, Annexure 'JF-5'. On or around 18 June 2022 or 18 July 2022, Ms Carter commenced a trial working four days per week as part of the First Offer;

(d) on 23 September 2022, the placement ended because Ms Carter was unable to sustain working four days per week;

(e) the file notes of Ms Mary Cutugno, Health and Well Being Advisor, in relation to her telephone conversations with Ms Janene Rosser, Principal of NHS, on 8 and 13 September 2022 say:

(i) Ms Carter was unable to 'upgrade further in days as she is very stressed and can't manage it with also being a single mother';

(ii) there were issues outside of work 'regarding court proceedings and dealing with her young kids as a single mother' affecting Ms Carter at that time;

(iii) Ms Carter 'had a run in' with another staff member and Ms Carter 'lost her temper in the staff room and other staff members had advised [that Ms Carter] was very aggressive'; and

(iv) Ms Carter told Ms Rosser on or around 13 September 2022 she was unable to continue working at NHS because Ms Carter wanted to be a "Free agent";

(f) on 7 October 2022, Ms Carter's capacity for work was reduced to three days per week;

(g) Ms Carter was referred to Dr Ian Smith, Injury Management Consultant for review. Dr Smith provided reports dated 26 September 2022 and 4 November 2022: Exh R3, Annexure 'JF-8' and referred to above at [54(3)] which say:

(i) on 26 September 2022, Dr Smith reported the 'suggestion that Ms Carter is not upgrading due to issues which are not related to work' required further information from a psychiatrist;

(ii) on 4 November 2022, Dr Smith reported he had a discussion with Ms Carter's treating psychologist, Ms Emily Fraser, about Ms Carter's capacity for work. Dr Smith reported that Ms Carter was unable to sustain an upgrade to four days per week at NHS because she 'found the situation overwhelming' and she had difficulty upgrading to full-time work due to 'ongoing issues accessing appropriate childcare';

(h) on 11 July 2023, Ms Rosser sent Ms Palmerone an email: Exh R3, Annexure 'JF-9', about the following factors which influenced NHS's decision to discontinue Ms Carter's placement:

(i) Ms Carter's 'unwillingness to work within the agreed school';

(ii) Ms Carter's 'unstable behaviour was becoming of concern for colleagues. These concerns came through allegations of a stolen bird ... [and] conflict with staff as a result of her aggressive manner'; and

(iii) concerns regarding Ms Carter 'not being truthful about her intentions to demonstrate fitness for work'.

(i) on 11 July 2023, Ms Palmerone called Ms Rosser to obtain further information in relation to NHS' concerns about Ms Carter: see Annexure 'JF-9';

(j) on 21 July 2023, Ms Lauren O'Keeffe, Leader, Health and Wellbeing, discussed the concerns raised by NHS with Ms Carter: Exh R3, Annexure 'JF- 10'; and

(k) on 25 July 2023, Ms O'Keeffe emailed Ms Carter about the concerns raised by NHS: Exh R3, Annexure 'JF-11'."

(2) by offering suitable duties to Ms Carter at Willoughby Girls High School on 28 March 2023 ("Second Offer"): Exh R3, Annexure 'JF-12'. The Second Offer was rejected by Ms Carter, and Ms Carter subsequently submitted a certificate of capacity indicating she could not work outside the Newcastle region. in respect of the Second Offer, the Respondent says that Ms Frearson's review of the Respondent's records shows:

(a) on 13 April 2023, Ms Carter provided an updated certificate of capacity is annexed to Exh R3 and marked 'JF-13' which is referred to at [54(4)] and which had the following restrictions:

(i) capacity for three days per week;

(ii) not to return to Cammeraygal HS; and

(iii) not to work outside the Newcastle Region;

(b) a report from Mr Alix Bilton, Ms Carter's treating psychologist, dated 26 May 2023 was provided to the Respondent. Mr Bilton indicated Ms Carter 'can commence suitable duties up to an hour's drive': Exh R3, Annexure 'JF-14'; and

(c) a report of Dr Sagi, dated 27 February 2024, was provided to the Respondent. Dr Sagi indicated 'there were no clear boundary definitions' regarding Ms Carter's ability to travel to work 'until April 2023 when she was offered a placement at Willoughby Girls High School in Sydney': Exh R3, Annexure 'JF-15';

(3) by offering suitable duties to Ms Carter at Toronto High School in June 2023 ("Third Offer"). The Third Offer was rejected by Ms Carter, and Ms Carter subsequently submitted a certificate of capacity on the basis that the distance for her to travel to Toronto High School was too far. In relation to the Third Offer, the Respondent says that Ms Frearson's review of the records showed:

(a) on 29 June 2023, Ms Carter provided an updated certificate of capacity which indicated that the travel time to Toronto High School 'will place significant stress' on her and she was certified unfit for work outside the Newcastle Metro Region. A copy of the certificate of capacity dated 29 June 2023: Exh R3, Annexure 'JF-16' and referred to at [54(6)] above;

(b) Dr Smith provided a further report on 30 June 2023: Exh, R3 Annexure 'JF-17'. This report indicated:

(i) Ms Carter had 'agreed' to the suitable duties at Toronto High School;

(ii) during a case conference attended by Ms Carter and Dr Sagi, the issue in relation to travel time was raised and it was unclear to Dr Smith how the travel time related to the workers compensation claim "as opposed to the domestic situation";

(iii) he discussed the issue regarding travel time with Ms Carter's psychologist, Mr Bilton, on 26 June 2023, and they agreed Ms Carter no longer required psychologist treatment as "her issues were industrial and could not be solved with psychological counselling";

(c) on 6 July 2023, Ms Carter and Dr Sagi signed a RTW Plan for Ms Carter to commence suitable duties at Toronto High School: Exh R3 Annexure 'JF-18'. Ms Carter did not commence her temporary placement at Toronto High School because she was unable to travel for work outside the Newcastle Metro Region;

(d) on 16 October 2023, the Respondent was given a summary of the report of Dr Nicholas Cassimatis, Psychiatrist, obtained as part of the management of Ms Carter's workers compensation claim. On 5 September 2023, Dr Cassimatis indicated Ms Carter was 'able to drive at least 100 km without having any problems'. A copy of the summary of the report of Dr Cassimatis dated 5 September 2023: Exh R3, Annexure 'JF-19'; and

(e) on the basis of a Google maps search: Exh R3, Annexure 'JF-20', the Respondent says that the distance between Stockton, NSW and Toronto High School is approximately 35 kilometres.

(4) Ms Frearson's gives evidence that prior to offering other suitable duties to Ms Carter, the Respondent considered the following medical information regarding Ms Carter:

(a) on 16 October 2023, the workers compensation insurer provided the Respondent with a summary of the report of Dr Alex Knopman, Clinical Neuropsychologist, of 11 September 2023 which indicated the main barrier to Ms Carter working full-time was the 'fatigue she will feel working more than 3 days per week' and being 'overwhelmed by the cognitive demands of fulltime work, which would involve lesson planning'. A copy of the summary of the report of Dr Knopman dated 11 September 2023: Exh R3, Annexure 'JF-21'.

(b) on 13 November 2023, during a medical case conference with Ms Carter, and Dr Sagi, Ms Carter said she had been working as a casual teacher at Francis Greenway High School. Dr Sagi made notes regarding the case conference in an updated certificate of capacity dated 13 November 2023 (which was provided to the Respondent): Exh R3, Annexure 'JF-22' and referred to at [54(7)] above;

(c) a summary of a report of Dr Cassimatis of 13 November 2023 obtained by the workers compensation insurer was given to the Respondent on 27 November 2023. The doctor reported he did "not believe that [Ms Carter] will work 5 days per week" and she had reached maximum medical improvement. A copy of the summary of the report of Dr Cassimatis dated 13 November 2023: Exh R3, Annexure 'JF-23' and substantially portions are extracted above at [54(8)]; and

(d) on 11 December 2023, Mr Bilton reported that Ms Carter reported a 'loss of confidence to manage sexualised, aggressive and challenging behaviours from students'. Mr Bilton recommended further training to assist her 'to increase her confidence at work, manage difficult behaviours and meet teaching expectations'. A copy of the report of Mr Bilton dated 11 December 2023: Exh R3, Annexure 'JF-24';

(5) by offering suitable duties to Ms Carter at Maitland High School on 9 February 2024 ("Fourth Offer"): Exh R3 Annexure 'JF-25'. The Fourth Offer was rejected by Ms Carter on the basis that the distance for her to travel to Maitland High School was too far. In respect of the Fourth Offer, Ms Frearson gives evidence that:

(a) Ms Carter declined this offer because she stated she was unable to travel more than 30 minutes away from her place of residence in Stockton, NSW;

(b) the distance between Stockton and Maitland High School is around 35 minutes' drive. Annexed to Exh R3 and marked 'JF-26' is a screenshot from Google Maps showing Maitland High School is about 14 minutes' drive from Francis Greenway High School;

(c) consultation notes from Dr Sagi provided by the workers compensation insurer to the Respondent regarding the doctor's case conference with Dr Smith on 15 February 2024: Exh R3 Annexure 'JF-27' say:

(i) the doctors discussed Ms Carter's work capacity; and

(ii) no information was recorded regarding Ms Carter's inability to travel more than 30 minutes from her place of residence;

(d) Dr Sagi reported on 27 February 2024 he would 'suggest a travel restriction of 30kms or less than 35 minutes from Ms Carter's residence' : Exh R3, Annexure 'JF-15' which is referred to above at [54(5)] and [(2)(c)]; and

(e) on 11 March 2024, Ms Carter provided the Respondent with an updated certificate of capacity which indicated she was unable to work more than 30 minutes away from her place of residence Exh R3, Annexure 'JF-28' and referred to at [54(9)]. Following the Fourth Offer, there was a report from Dr Smith dated 28 February 2024 which refers to the 30 minute travelling restriction: Exh R3, Annexure 'JF-29' and referred to at [54(10)] above;

(6) at the time of the Dismissal, Ms Carter had medical restrictions that included: (1) she was certified fit to work for three days per week; and (2) she was unable to travel more than 30 minutes from her residence - the Respondent was unable to place Ms Carter in a position that met these conditions.

1. Ms Frearson's statement was admitted without objection. Despite this, the Respondent accepts that the notes attached to Ms Frearson's statement is not direct evidence from people such as Ms Rosser, the principal at NHS, and that there are limitations on the ways that some of this evidence may be used by the Commission.
2. I have given some weight to the hearsay evidence. I have not accepted that each of the matters in Ms Cutagno's file-note that Ms Rosser described which are set out above took place as described in the file-note. However, as the nature of these matters is consistent with the nature of the matters described in the email from Ms Rosser to Ms Palmerone, I have accepted that there were difficulties with Ms Carter during her engagement at NHS which impacted on NHS's decision to discontinue Ms Carter's placement.
3. Ms Carter says that the return to work offers were offers, and were not directions that she refused, for temporary placements. Further, they were not suitable duties, in other words, comparable duties of permanent full time positions. Further, Ms Carter asserts that over that period she was working casually, as she was certified to do, as a teacher in the Newcastle district.[7] Consequently, it was reasonable for Ms Carter not to give up casual work three days a week in Newcastle to travel to Toronto or Maitland for a temporary placement.
4. In cross-examination, the Respondent questioned Ms Carter's genuine engagement with the return-to-work process, particularly whether her childcare responsibilities were affecting her capacity to return.
5. The Respondent does not criticise Ms Carter for taking her childcare commitments into account when planning her return to work. However, it submits that prior to commencing at NHS, Ms Carter had already discussed her concerns with staff at the school, an assertion she admitted.
6. While there is some dispute regarding the content of those discussions, it is not contested that Ms Carter raised concerns about returning to full-time hours, with childcare arrangements being one of the reasons for those concerns.
7. Dr Smith's report ('JF-17'), records that Ms Carter's childcare responsibilities were raised repeatedly. Dr Smith considered this to be a genuine issue that posed a barrier to her securing a position.
8. I accept the Respondent's submission that Ms Carter sought to engage with the return-to-work process on her own terms. She wished to retain autonomy over the number of days she worked, the locations in which she worked, and the conditions under which she returned, based on what best suited her personal circumstances, rather than what would facilitate her return to her Substantive Role.
9. I further accept that Ms Carter did not engage in the process with the objective of returning to full-time work. Her limited capacity was, at least in part, a result of personal choices unrelated to her injury or medical condition.
10. While Ms Carter's focus on her childcare responsibilities is understandable, this does not undermine the Respondent's primary submission: that it made repeated and reasonable efforts to accommodate Ms Carter's medical restrictions. However, those restrictions changed frequently, whether due to genuine medical needs or personal preferences, creating an ongoing barrier to the Respondent's ability to identify and maintain a suitable placement.
11. Taking all of the evidence, including that of Ms Frearson extracted at [61] into consideration, I consider that the Respondent acted reasonably and consistently with its statutory obligations and the relevant certificates of capacity in making the four offers.
12. The RTW Plan for the placement at NHS, the First Offer, included stage 1 during which Ms Carter would work three days per week and stage 2 during which Ms Carter could work four days per week. The plan was signed off by Ms Carter on 19 May 2022.
13. The evidence of Ms Frearson, and the RTW Plan establish that in creating the plan, the Respondent consulted with Ms Carter and with her treating general practitioner. This placement was consistent with the certified capacity of Ms Carter at the time, and came to an end for reasons set out in the email which is 'JF-9'.
14. I accept that the goal was to increase Ms Carter's capacity and to be able to sustain her working at four days per week, but that attempt was not successful.
15. On 28 March 2023, the Respondent made the Second Offer for Ms Carter to work at Willoughby High School. The Respondent says that he does not make any criticism of the applicant for resisting that offer, given the travelling distance from her home in Stockton to Willoughby High School. Nor do I. However, the Respondent makes the point, in defending criticism of him for making this offer at all, that when the offer was made there was no travel restriction in place at the time which would have prevented the offer from being accepted, and it was a school in the same or a similar region as Ms Carter's Substantive School. I accept the Respondent's point.
16. In June 2023, the Third Offer was made for Ms Carter to work at Toronto High School. Stage 1 of the RTW Plan for the placement at Toronto High School was for Ms Carter to work three days per week. Ms Carter was then to increase to four days per week in stage 2. This plan was signed off by Ms Carter and also by her treating doctor, Dr Sagi.
17. I agree with the Respondent, relying on the map at 'JF-20', that a reasonable person looking at that map would say that Toronto is in the Newcastle region. As the Respondent submitted, Ms Carter seemed to suggest that some special meaning was to be given to the phrase, "Newcastle region", in that it may relate to the way school districts are divided or to the boundaries of local councils. The Respondent says, and I agree, that that meaning is not apparent from the certificate of capacity.
18. The Respondent submits that that travel distance in Offer 3 is consistent with the restrictions set out in the certificate at 'JF-13' and with the letter from the psychologist Alex Bilton, ('JF-14'), which states:

"Please advise the restriction

As stated above, Rainnie could travel to areas close to Newcastle up to an hour".

1. I accept that Toronto was consistent with Ms Carter's medical restrictions, and with the view of Dr Kassimatus in his report: Exh R3, Annexure 'JF-19', that Ms Carter was able to drive at least 100 kilometres without having any problems.
2. The Fourth Offer for a placement at Maitland High School was made on 9 February 2024. The driving distance was 35 kilometres and the travel time was 39 minutes.
3. Dr Sagi then, in a letter dated 27 February 2024, suggested a travel restriction of less than 30 kilometres or less than 35 minutes: Annexure 'JF-15'. Ms Carter agreed during cross examination that this was the first time this restriction appeared in terms of a certificate or a letter from the doctor.
4. I agree with the Respondent's submission that Maitland was not outside of Ms Carter's medical restrictions at the time it was offered but shortly after it was offered, those restrictions changed and it became outside of those restrictions.
5. I agree with the Respondent's submission that as he made attempts to place Ms Carter, the restrictions changed, and after each attempt the restrictions become more severe and meant that the last attempt to place the applicant was no longer workable.
6. I accept that the evidence establishes that the Respondent did that on 15 November 2023, 15 March 2024, and 6 May 2024, and the results of those attempts are set out at 'JF-31', 'JF-32' and 'JF-33'.
7. Having considered the parties' submissions and evidence, in particular Ms Frearson's evidence as set out above, I am of the view that the Respondent took reasonable steps to place Ms Carter in a full-time teaching position. It was not required to continue making such efforts indefinitely.

1. There are three deficiencies put against the Respondent in respect of the Guidelines which Ms Carter says as a consequence the Respondent should not have acted to medically retire her and which make the Dismissal unfair. The first of these is that Ms Carter says that medical retirement can only be undertaken in the following circumstances none of which applied to her:

"• Initiated and requested by the employee as a result of the difficulties they are experiencing in performing their Substantive Role due to their non-work related medical condition;

• Initiated and requested by the Department as a result of an independent medical capacity assessment;

• Based on the outcome of a review by the independent review panel as a result of the independent medical capacity assessment; or

• Initiated by the Department based on information obtained from the Fund Manager for employees with an open workers compensation claim."

(p 11)

1. The second complaint is that Ms Carter says that the Guidelines require that the employee's treating doctor and treating medical specialist must agree that the employee cannot return to their substantive position before medically retirement can be actioned.
2. The third deficiency is that the relevant documents were not provided to the Respondent's delegate with the submission to medically retire Ms Carter.

Did one of the four identified circumstances apply?

1. Noting the statutory framework and the Full Bench's finding in Colefax (No. 3) that the Guidelines do not displace the Respondent's powers pursuant to s 76 of the Teaching Service Act, the Respondent submits that, in any event, at the time of the Dismissal, there was an open workers compensation claim.
2. Ms Carter says that there was no open claim and refers to s 38 of the WC Act and says that once the weekly payments cease, the workers compensation claim is no longer open.
3. In advancing their submissions, both parties refer to Exhibit A3, which is a letter from the Senior Case Manager, Diva M, to Ms Carter dated 10 May 2024. It states:

"Hello Rainnie,

I'm writing to let you know that your weekly payments have come to an end. This is because you are no longer eligible for weekly payments from 13 May 2024.

What you need to do

If your circumstances change, please let me know a soon as you can.

We are here to help

If you have any questions, please contact me by email ... or call me on ...."

1. On its face, Exhibit A3 does not communicate that the claim has been closed. Rather, it indicates that Ms Carter may need to contact the insurer again if her circumstances change. It does not suggest that she no longer has any rights under the claim. Instead, it communicates that her entitlement to weekly payments has ceased. Eligibility for such payments is subject to various conditions and may change over time. The cessation of payments does not necessarily equate to the closure of the claim.
2. Further, the Respondent argues that s 38 of the WC Act does not support the proposition that the letter signifies the closure of the claim, or that the claim would be closed after a certain period. Section 38 pertains to entitlements to weekly compensation payments. The Respondent further submits that it would be illogical for the closure of a workers compensation claim, regardless of the reason, to preclude the Respondent from applying its medical retirement guidelines or initiating a process that could lead to medical retirement.
3. Ms Frearson, in response to cross-examination, similarly stated that the cessation of weekly payments does not mean the claim file is closed: Tcpt 26 March 2025 at p 95 at 4 - p 96 at 47. This aligns with the broader context in which a worker may retain reinstatement rights for a period following termination, and potentially appeal rights even after payments have ceased.
4. I agree that the interpretation of the reference in the Guidelines to an "open workers compensation claim" encompasses the circumstances present in this case.
5. I accept that, for the purposes of the Guidelines, there is an open workers compensation claim. Accordingly, there is no impediment to the Respondent exercising the power to medically retire Ms Carter pursuant to s 76 of the Teaching Service Act.

Section 6 - Employer initiated medical retirement based on the medical information obtained from the Claims Manager

1. Ms Carter's second complaint is that, under section 6 of the Guidelines, medical retirement can only be considered "if the employee's treating doctor and treating specialist are of the same opinion that the employee cannot return to their substantive, similar or any alternate position".
2. Ms Carter submits that this provision requires a consensus of medical opinion that the employee is unable to return to their substantive role, or that the treating doctor must agree to the employee's medical retirement.
3. The Respondent submits that the Guidelines do not state, and cannot reasonably be interpreted to mean, that in the absence of such consensus, medical retirement cannot be considered. In that regard, the relevant section of the Guidelines (p. 11) does not include the word "only".
4. The Respondent argues that to impose a requirement for consensus or treating doctor agreement would be inconsistent with the employer's general right to assess an employee's fitness to perform the inherent requirements of their role and to make decisions accordingly.
5. The Respondent points to page 12 of the Guidelines, which states:

"If there are conflicting medical opinions or findings from assessments conducted by the rehabilitation provider, IMA/RTWC should seek advice from their LAM WHS manager respectively".

1. This provision clearly anticipates the possibility of disagreement among medical professionals and provides a process for managing such situations.
2. In light of the above, I find that the Guidelines do not impose a strict requirement for consensus between the treating doctor and specialist as a precondition for considering medical retirement. The language of the Guidelines, particularly when read in conjunction with the provisions addressing conflicting medical opinions, supports a broader and more flexible interpretation. The employer retains the right to assess medical evidence holistically and to make decisions regarding an employee's capacity to perform their duties, even in the absence of unanimous medical opinion. Accordingly, the decision to consider Ms Carter for medical retirement was not procedurally flawed on this basis.

1. Ms Carter refers to section 6.1 of the Guidelines, titled "Documentation required to support the medical retirement submission", which states: "As a minimum, the following documentation is required." She argues that the medical retirement submission did not include a report from her nominated treating doctor dated within three months of the submission.
2. This concern was raised by Ms Carter in her response to the proposal to medically retire her, as outlined in correspondence attached to Exhibit R1 at Annexure 'CB-6'.
3. Mr Collins submits on behalf of Ms Carter that the Guidelines clearly distinguish between the submission for medical retirement and the decision to medically retire. He notes that the submission was prepared on 3 June 2024 ('CB-5' to Exhibit R1), and that the requirement is for reports to be dated within three months prior to the preparation of the submission, not the decision itself. He further submits that the process allows the employee to respond to the submission before a final decision is made.
4. Mr Collins also critiques the medical documentation included in the submission, arguing that:

(1) Dr Smith's additional IME report, dated 30 June 2024, is purely for the purposes of insurance claims management;

(2) the report of Dr Knopman was not provided in full; rather a paraphrased version was provided which does not deal with the question of medical retirement;

(3) the two reports of Dr Kassimatus that are referred to refer to insurance management and whole person impairment assessment which support Ms Carter;

(4) Alex Bilton's report addresses travel restrictions;

(5) Dr Sagi's report is limited to the travel restrictions issue; and

(6) the supplementary report from Dr Smith is only in relation to the travel restrictions issue.

1. Mr Collins contends that none of these reports directly address the issue of medical retirement or the advisability of such a course. Moreover, aside from Dr Smith's February 2024 report, none are dated within three months of the submission. He argues that this amounts to a failure by the Respondent to comply with its own procedural fairness requirements under the Guidelines.
2. Mr Collins highlights that the only report directly addressing medical retirement is that of Dr Sagi, dated 17 June 2024 ('JF-34' to Exhibit R3), in which Dr Sagi states:

"We do not believe Rainnie meets the criteria for medical retirement, as her restrictions are not permanent, and the Department of Education has not exhausted all opportunities for rehabilitation".

1. Ms Brennan, the delegate responsible for considering and approving Ms Carter's medical retirement, says at par 13 of Exh R1:

"13 On 4 July 2024, Ms Kavita Purohit, Manager Health and Wellbeing of the Respondent, wrote to the Applicant telling her the Response had been considered. The available information indicated the Applicant's medical condition remained unchanged, she was permanently unfit to perform her Substantive Role and attempts to support her return to work and redeployment to an alternate position had been exhausted. A copy of the Respondent's letter dated 4 July 2024 is annexed to this statement and marked 'CB-6'."

1. On 4 July 2024, as deposed to by Ms Brennan, Kavita Purohit replied to Ms Carter's concerns on behalf of the Respondent, including Ms Carter's assertion that her treating doctor's and specialist's reports were not dated within the required three-month period. Ms Carter also asserted that, regardless of the currency of the reports, their content does not support medical retirement. The letter states:

"In Response

The consistent medical evidence before the department (including reports from independent doctors, your psychologist, and your general practitioner) is clear that you are permanently unfit to return to Cammeraygal High School.

Updated medical advice you have provided from Dr Sagi dated 17 June 2024, confirms that your condition remains unchanged in that you are permanently unfit to return to Cammeraygal High School where you hold an ongoing role as a TAS Teacher. Dr Sagi also outlines ongoing restrictions on your travel from your residential premises being 30 minutes and hours/days for work being 3 days."

1. The letter of 17 June 2024 of Dr Sagi is annexed to the statement of Ms Frearson at 'JF-34'. The Respondent says that letter of 17 June 2024 meets this requirement if there is such a requirement for there to be evidence from the treating doctor within three months of the medical retirement decision.
2. The Respondent says that if is there is some kind of technical breach of the policy, and Ms Carter has been incorrectly medically retired because when the medical retirement submission was made, there was not a report within three months of the date of that submission being made, such a technical breach does not demonstrate any actual unfairness for Ms Carter.
3. Ms Carter was given the opportunity which she took to put whatever medical evidence she wanted before the Respondent. The Respondent considered that medical evidence, and weighed the medical evidence, and made a decision. The submission that there has been some kind of breach of the Guidelines is rejected by the Respondent.
4. While Ms Carter raises a legitimate concern regarding the currency and relevance of the medical documentation supporting the medical retirement submission, the evidence does not establish that the Respondent failed to comply with the Guidelines in a way that resulted in procedural unfairness. The Respondent considered a range of medical evidence, including a contemporaneous report from Dr Sagi, which directly addressed the issue of medical retirement. Ms Carter was afforded an opportunity to respond and to provide her own medical evidence. In these circumstances, even if there was a technical deviation from the Guidelines, it did not materially affect the fairness of the process or the validity of the decision. Therefore, the submission that the medical retirement was procedurally flawed or otherwise made the Dismissal unfair on this basis is not sustained in these circumstances.

1. Ms Carter was given notice of the proposed medical retirement, an opportunity to respond, and access to the supporting documentation. The Respondent considered her submissions and the medical evidence before making the decision. While Ms Carter argues that the Guidelines were not strictly followed, the Commission accepts that the Guidelines are administrative tools and do not override the statutory authority under s 76 of the Teaching Service Act. The Respondent's actions were consistent with procedural fairness.
2. The matters raised by Ms Carter about purported failures and lack of support during the recovery at work process, including a failure to comply with obligations to participate in injury management plans, to provide suitable duties, and to establish return-to-work programs, were not established by the evidence before the Commission.
3. In any event, if I were satisfied that any such failures occurred the Commission accepts that the workers compensation legislation operates concurrently with the Teaching Service Act and does not override the statutory authority granted to the Respondent under s 76 of that Act. The Respondent took reasonable steps to accommodate Ms Carter's restrictions and engaged with her return-to-work process and Ms Carter has not established any conduct during the recovery at work process which renders the Dismissal unfair for the purposes of s 84 of the IR Act.
4. Accordingly, any procedural or administrative shortcomings in the application of the workers compensation framework do not, in this case, amount to unfairness in the Dismissal.

1. Based on the medical evidence available at the time, including multiple certificates of capacity and reports from Dr Sagi and other treating practitioners, Ms Carter was unable to perform the inherent requirements of her Substantive Role. She had not done so since 2018 and remained restricted to part-time work (three days per week) within a limited travel radius. Accordingly, the Respondent's conclusion that Ms Carter could not return to her Substantive Role had a sound basis in fact.
2. The Respondent made four documented offers of suitable duties, each aligned with Ms Carter's then-current medical restrictions. These included placements at Newcastle, Willoughby, Toronto, and Maitland High Schools. While Ms Carter declined some offers due to evolving restrictions or personal circumstances, the evidence supports that the Respondent made genuine and reasonable efforts to accommodate her. The Respondent also engaged in consultation and reviewed updated medical advice throughout the process.
3. Having regard to the totality of the evidence, I am satisfied that Ms Carter has not established that the Dismissal was harsh, unjust, or unreasonable. The Respondent acted within his statutory powers, took reasonable steps to accommodate Ms Carter, and afforded her procedural fairness.

(1) The Application by Rainie Carter pursuant to s 84 of the Industrial Relations Act 1996 (NSW) is dismissed.

26 June 2025 - Minor amendments in [16] and [87].

26 June 2025 - Minor amendments in [62] and [64].

[1] Pursuant to s 12 of the Teaching Service Act, the Secretary, Department of Education is, for the purposes of any proceedings relating to members of the Teaching Service held before a competent tribunal having jurisdiction to deal with industrial matters, taken to be the employer of that member. Accordingly, the respondent to these proceedings is the Secretary, Department of Education ("Respondent").

[2] Although the original claim number: 770519142812 is referred to multiple times in later certificates of capacity which were in evidence before the Commission, the initial notification of the injury or medical certificates or certificates of capacity were not tendered by either party at the arbitration.

[3] The evidence of the Respondent at 'JF-2' to Exh R3 which purports to be a schedule of the leave taken by Ms Carter commences on 2 November 2018 and could be read to suggest that Ms Carter proceeded on leave on 2 November 2018. However, this date is consistent with Ms Carter's evidence that she returned to her Substantive School and then proceeded on leave again in 2018. It is not material to the matters in contest before me and I accept that the original period of workers compensation leave commenced in 2017, on or around the date deposed by Ms Carter.

[4] By way of example, the most recent medical certificate from Dr Sagi dated 17 June 2024 which is found at JF-34 to Exhibit R3, and the certificate of capacity signed by Dr Sagi on 3 June 2024 which is JF-35, both state that Ms Carter is "not to return to substantive school" being the Cammeraygal High School.

[5] The principal of Cammeraygal High School is referred to as "Kathy Melky": see pars 16 and 17 of Exh A1. Ms Carter's evidence in these paragraphs, as noted in the decision proper, is about not receiving approval from Ms Melky for leave without pay. I was not directed to any other references to Ms Melky by name in the written evidence nor was the Commission referred to any evidence as to whether Ms Melky was connected with the original cause of Ms Carter's workplace injury, whether Ms Melky was the principal at the time of the injury, nor whether Ms Melky remains in the role of principal at Cammeraygal High School at this time.

[6] Ms Carter's evidence in cross-examination is that she relocated in 2017: Tcpt 25 March 2025, p 16 at 45 - p 17 at 8. This appears to conflict with Ms Carter's evidence at par 4 of A1 that she returned to "full duties at Cammeraygal High School 2nd Semester 2018".

[7] The Respondent does not concede her casual work was undertaken consistently over three days.