Ceniza v Secretary, Ministry of Health in respect of NSW Health Pathology South

Industrial Relations Commission (NSW)|2021-04-16|Before: Ms J

decision

Before the Commission is an application filed on 21 September 2020 by Ms Evangeline Ceniza (the applicant) seeking relief in respect of the dismissal of her employment pursuant to s 84 of the Industrial Relations Act 1996 (NSW) (the Act)(the application).
The applicant claims that she has been unfairly dismissed from her role as Technical Officer at Liverpool Hospital by the Secretary, Ministry of Health in respect of NSW Health Pathology South (the respondent).
The applicant's employment was terminated by way of letter dated 31 August 2020 on medical grounds. The respondent paid the applicant one weeks' pay in lieu of notice.
In her application, the applicant asserted that the dismissal was unfair because: 1. It was unreasonable - there was no valid reason for the dismissal related to capacity or conduct. In particular, at the time of the dismissal the applicant was completing the inherent requirements of her role; 2. It was unjust - particularly as the applicant was awaiting spinal surgery; and 3. It was harsh in all the circumstances, given the applicant's 16 years of unblemished service, the difficulty of a 47 year old woman re-entering the job market, and the limited prospects of re-employment during the social and economic circumstances created by the COVID-19 pandemic.
The respondent says that the termination of the applicant's employment was not unfair for any of the reasons asserted by the applicant. They further submitted that in the event the termination was determined as unfair for any of the reasons relied upon by the applicant, the Commission should find both reinstatement and re-employment of the applicant to be impracticable in the circumstances.
Following an unsuccessful conciliation, a timetable was set for the filing and serving of evidence and submissions. The matter proceeded to arbitration for five days on 17-18 March, 22 March and 15-16 April 2021. After judgement was reserved, the applicant filed a notice of motion, seeking that the matter be re-opened to allow the applicant to tender an advertisement published by the respondent for two Technical Officer positions in Clinical Chemistry based in Westmead and Nepean Laboratories (with a closing date of 11 May 2021), and an email confirmation of applications by the applicant for both roles (the additional evidence). On 29 June 2021, a decision was published in Ceniza v Secretary, Ministry of Health in respect of NSW Health Pathology South [2021] NSWIRComm 1048 dismissing the applicant's notice of motion.

Background

From 30 August 2004 to 3 September 2020 (about 16 years) the applicant was employed by the respondent as a Technical Officer in the Clinical Chemistry Department at Liverpool Hospital.
On 6 June 2019 the applicant suffered a workplace injury to her shoulder and cervical spine. Certificates of Capacity provided by the applicant show that she was unfit for work between 7 August 2019 to 19 February 2020 (just over six months) but that between 20 February to 2 April 2020 she was fit for work, with restrictions, and was able to work on the basis of a gradual increase in hours.
At all relevant times, the applicant was restricted from travelling to Liverpool Hospital due to the driving distance from her home. In addition to her travel limitation, following her return to work on suitable duties, the applicant remained limited in her capacity in that she: 1. was unable to lift more than 2 kg, and was prohibited from engaging in "repetitive lifting"; 2. had no pushing or pulling ability; 3. was only able to engage in "minimal" bending, twisting and squatting; 4. was not able to repetitively turn her neck or make any repetitive neck movements; and 5. was not able to work above shoulder level.
Each of these limitations were included in the Certificates of Capacity provided to the respondent by the applicant's treating General Practitioner, Dr Mary Tan at all relevant times, including at the time of the applicant's dismissal.
The applicant was directed and attended an Independent Medical Examination with Dr Vijay Panjratan - Orthopaedic Surgeon on 4 February 2020: Ex R7 pp 87-88. Dr Panjratan produced a report on 12 February 2020 (the February Report): Ex R7 at p 91. The February Report stated, among other things: 1. The applicant's prognosis was guarded but optimistic. 2. It is difficult to estimate when the applicant would be fit to undertake her substantive position as a Technical Officer at Liverpool Hospital. 3. The restrictions should be overhead use of the right shoulder and repetitive movements of the neck and that, in his view, the timeframes for lifting those restrictions were unpredictable. 4. A return date to pre-injury duties could not be predicted, although it was stated that hopefully she could return to her full pre-injury duties and hours in about 6-12 weeks. 5. The problem, as understood and relayed to Dr Panjratan, was that the applicant was unable to drive to work. 6. The applicant pointed out to Dr Panjratan that the issue with her return to the Technical Officer role was the lifting of "agents" from the floor and from storage.
On 24 February 2020 Ms Imelda Daniel, Recovery at Work Coordinator, wrote to the applicant attaching a copy of the proposed graded Recovery @ Work Plan: Ex R7 at pp 232-237. The plan provided for the applicant to undertake suitable duties in the respondent's Fairfield Laboratory. The terms of the email made clear that the arrangement was temporary and that the purpose of the Plan was to assist the applicant's ongoing rehabilitation back to her substantive role at Liverpool Hospital. It stated: "The plan is for you to participate in a gradual return to work so that you are back to working you full time hours in 12 weeks' time. The proposal is that you commence from week of 2 March 2020 at Fairfield Hospital and suitable duties for 9 hours per week, and remain there as you increase your hours over the 12 week period. Please note that there is not an ongoing position at Fairfield Hospital and the expectation remains that at the end of this process, you will return to your substantive location and position as a full time Technical Officer in Clinical Chemistry Laboratory, Liverpool Hospital. The temporary arrangement has been put in place to assist you through a 12 week period only. Fairfield Hospital does not have a need for this position nor does it have the budget for the funding for this temporary arrangement, however in good faith, the manager has agreed to facilitate your return to work for a fixed period. If you are unable to return to your substantive position at the completion of this process NSW Health Pathology will need to consider your ongoing capacity as per the medical advice with a possibility of medical retirement."
The applicant provided Certificates of Capacity advising she was fit to work with restrictions (with graduated return to working hours) from 20 February 2020 until 2 April 2020.
The applicant was unfit to work due to her requiring spinal treatment from 3 April to 15 April 2020 and then able to work with restrictions (with gradual increase in working hours) from 16 April 2020 to the date of dismissal.
Dr Panjratan provided a further report with respect to the applicant on 1 July 2020: Ex R7 at pp 238-241 (the July Report). The July Report provided as follows (in summary): 1. Taking into consideration that the applicant "has been provided all that she has asked for with the assistance at work and she (sic) there are still work absences, it appears unlikely that she will get back to her pre-injury duties at Liverpool Hospital." 2. Given the applicant had not returned to her pre-injury duties by that time, Dr Panjratan expressed doubt that she will "ever get back and I am unable to provide a time frame in such a situation." 3. There were no further modifications that could be suggested, noting that those requested had been accommodated by the respondent. 4. With respect to alternative roles, within NSW Health Pathology or elsewhere, the applicant could manage a sedentary job fulltime at this point. 5. The applicant is said to be awaiting surgery by Dr Brian Hsu which in relation to which Dr Panjratan states, "I do not know what that is all about. There appears to be an overreaction to the injury."
The restrictions in the applicant's capacity as listed at [10] above remained at all relevant times including when the July Report was completed. Although the applicant's capacities improved slightly, this only occurred following the termination of her employment: see Certificate of Capacity dated 13 October 2020, Ex R7 at p 640.
On 31 July 2020, following receipt of the July Report, the respondent withdrew the suitable duties being performed by the applicant at Fairfield Hospital.
Also, on 31 July 2020, the applicant received a show cause letter from the respondent, requiring her to provide reasons why her employment should not be terminated on medical grounds. In her response provided on 11 August 2020, the applicant noted that she was awaiting spinal surgery and has been endeavouring to increase her working hours and return to ordinary duties, expressing that she genuinely wants to return to work and is dedicated to her role. The applicant expressed that she believed that there was work for her at Fairfield Hospital. She argued that it was premature to terminate her employment and that with more time she will be able to return to her substantive position at Liverpool Hospital. The letter is an authentic response from the applicant conveying her want to maintain her employment, but it was unsupported by any accompanying medical reports or evidence to support her reasoning: Ex R7 at pp 413-414.
On 31 August 2020, the Acting Chief Executive of NSW Health Pathology, Mr Robert Lindeman wrote to the applicant of behalf of the respondent conveying the decision to terminate her employment on medical grounds. The letter acknowledged the applicant's response to the show cause letter and stated the matters considered in deciding to terminate the applicant's employment, concluding: "The medical evidence, which NSWHP has accepted, establishes that you are unable to undertake your duties as a full time Technical Officer at Liverpool Hospital because of your medical condition. After careful consideration of all the available information regarding this matter, I have made a decision to approve the termination of your employment with NSW Health Pathology on the grounds I have explained above."
The letter also notes that the payments to the applicant in respect of her open Workers Compensation Claim will continue to be managed by QBE.
Through this application, the applicant seeks reinstatement or re-employment in an equivalent position within NSW Health, in addition to compensation in accordance with s 89 of the Act.

The applicant's case

The applicant relied upon the following written witness evidence in the proceedings: 1. Statements of the applicant filed 2 November 2020 (Ex A2) and 14 December 2020 (Ex A3). The applicant's statements attached a significant volume of annexures. 2. Statement of Ms Anne Bryant filed on 14 December 2020 (Ex A1). Ms Bryant has been the applicant's treating physiotherapist since 19 August 2019. 3. Statements of Dr Mary Tan filed 14 December 2020 (Ex A4), 15 March 2021 (Ex A5). Dr Tan is a General Practitioner and the applicant's treating Doctor since February 2003. 4. Statement of Mr Luke David Maroney field 2 November 2021 (Ex A6). At the time he made his statement, Mr Maroney was an Industrial Officer for the Health Services Union NSW. Mr Maroney's statement attached search results for advertised positions for Medical Laboratory Assistants and the results of Google Maps searches demonstrating the travel time from the applicant's home to various Hospitals.
The applicant, Ms Bryant and Dr Tan were cross-examined in the proceedings. The respondent did not require Mr Maroney for cross-examination.
In addition to the witness evidence, the applicant relied upon a significant volume of documentary evidence and a videoclip relating to the operation of one of the machines required to be used in the role of Technical Officer (Ex A10).
The applicant relied upon an outline of submissions filed on 2 November 2020 and an outline of submissions in reply filed 14 December 2020. The applicant also made oral submissions to the Commission and relied upon written submissions dated 16 April 2021 (the applicant's closing submissions).
In the applicant's closing submissions, the applicant argued that the Commission should find that the dismissal was unfair for the following reasons (in summary): 1. The respondent acted on incomplete medical evidence. The applicant submitted that the Commission should find that the dismissal was unreasonable because the respondent relied on incomplete and inadequate medical information and could not have reasonably reached a decision to dismiss based on the material before the decision-maker at the time. 2. The applicant had capacity for suitable employment. The applicant submitted that termination was unfair because at the time of her dismissal, she had capacity to perform work as a Technical Officer or in the alternative, had capacity to perform sedentary work. 3. The applicant submitted that the respondent looked for work that was vacant and funded rather than suitable and available. 4. The respondent should have searched for work outside of NSW Health Pathology South. The applicant submitted that the dismissal was unfair because the respondent did no look outside of the grouping of the NSW Health Pathology South in its search for suitable employment. 5. The respondent had "a pre-disposition not to accommodate the applicant's medical restrictions following receipt of the July Report, and as such failed to take reasonable steps to be reasonably satisfied that all options other than dismissal had been exhausted." 6. The decision-maker for the respondent did not exercise an independent mind and the applicant was denied natural justice in that she was not given an opportunity to put her case face to face.

The respondent's case

The respondent relied upon the following written witness evidence in the proceedings: 1. Statement of Ms Imelda Daniel filed 30 November 2020 (Ex R1). Ms Daniel occupies the role of Recovery at Work Coordinator based at Liverpool Hospital and is responsible for managing NSW Health Pathology workers' compensation claims and non-work-related injuries and illnesses. 2. Statement of Ms Maria (Cythia) Tiglao filed 30 November 2020 (Ex R2). Ms Tiglao is employed by the respondent as a Senior Hospital Scientist, Fairfield Laboratory and is the Manager of Pathology, Fairfield Hospital. 3. Statements of Mr Francis (Frank) Damien Alvaro filed 30 November 2020 (Ex R6) and 10 March 2021 (Ex R3). Mr Alvaro is employed by the respondent to work for NSW Health Pathology in the role of Manager for the Clinical Chemistry Department. One of Mr Alvaro's responsibilities is to manage 50 staff in the Clinical Chemistry Department at Liverpool Hospital.
The respondent relied upon a bundle of documents totalling 740 pages referred to by their witnesses in their written statements (Ex R7).
Each of the respondent's witnesses was cross-examined in the proceedings.
In addition, the respondent relied upon two bundles of photographs depicting the respondent's workplace (Ex R4 and R5).
The respondent filed a document titled Respondent's Response on 6 October 2020, and an outline of submissions on 30 November 2020. In addition, the respondent's representative gave oral submissions at the conclusion of the hearing and relied upon written submissions filed on 19 April 2021 (respondent's closing submissions) and assisted the Commission with other document's read as submissions, including the "Respondent's Key Materials List", "Summary of Applicant's Certificates of Capacity" and "Weight of the Applicant's 'Additional Evidence'".
I have carefully considered the applicant and respondent's submissions and evidence and referred to them as appropriate in this decision below.

Relevant legislation and legal principles

Section 84 of the Act allows for applications to be made to the Commission by employees who claim that their threat of dismissal is "harsh, unreasonable or unjust".
Section 88 of the Act relevantly provides: 88 Matters to be considered in determining a claim In determining the applicant's claim, the Commission may, if appropriate, take into account - (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and … (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant.
It is now well accepted that each of the words "harsh", "unreasonable" and "unjust" requires discrete consideration. As stated by the Full Bench in Corrective Services NSW v Danwer [2013] NSWIRComm 61: "21. …It has been said those words constitute a 'tautological trinity' (Davies v General Transport-Development Pty Ltd (1967) AR 371). It may be that a dismissal is harsh and unreasonable and unjust. However, since at least the decision in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, the tribunal is required to consider each of those words and not regard them as a 'tautological trinity'. As it was stated in Byrne: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."
To be entitled to any remedy under the Act, the onus is on the applicant to prove that his or her dismissal was harsh, unreasonable or unjust: Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273.
A person whose employment has been terminated on "medical grounds" is entitled to seek relief under s 89 of the Act if it can be demonstrated that the termination was effected in a manner which rendered it harsh, unreasonable or unjust.
A medical injury that prevents an employee from performing the inherent duties of the position for which he or she is employed may constitute a proper basis for a termination: Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [44]. However, even if an employee is unable to perform the inherent duties of their position, their dismissal may still be unfair. The process adopted by an employer to terminate the employee's employment may be deemed unreasonable, because for example, reasonable steps to accommodate the employee's limitations were insufficient: Riley v WorkCover Authority of New South Wales (2006) 151 IR 396 (Riley) at [80].

Consideration

The task before the Commission in these proceedings is to examine the reasons for the dismissal, their nature and whether they have a basis in fact. Consideration is also given to the process and events which led up to the decision to dismiss in order to determine whether or not the termination of the applicant's employment was harsh, unreasonable or unjust.

The nature of the reason given for the dismissal and whether it had a basis in fact - the applicant's medical assessments and capacity for work

The applicant's employment was terminated on medical grounds, which the respondent asserted had resulted in her inability to meet the inherent requirements of her position, Technical Officer.
The applicant's injury is a compensable workplace injury under the State workers' compensation regime. The applicant's injury causes her pain in her right shoulder and the right side of her neck. It is a significant injury. It caused her to be unable to work for over six months. After this period, the applicant was able to return to work, gradually with restrictions as set out at [10] above.
For the duration of her employment with the respondent, the applicant's substantive position was as a Technical Officer in the respondent's Clinical Chemistry Laboratory at Liverpool Hospital. The field of work practiced in the Clinical Chemistry Laboratory is also commonly referred to as "Biochemistry".
The parties agreed that since the injury, the applicant has been medically unable to drive or take other transport to attend Liverpool Hospital. Although there was some suggestion in the evidence of Dr Tan that the applicant may be able to take public transport with a neck brace, this was qualified with the requirement that it be "subject to review + advice".
The respondent relied upon the July Report in terminating the applicant's employment. Contrary to the submissions of the applicant, the respondent did not act on incomplete or insufficient medical evidence in deciding to terminate the applicant on medical grounds.
There is no dispute in these proceedings as to the applicant's medical condition and the restrictions in place at the time she was dismissed. The restrictions were contained in the Certificates of Capacity produced by the applicant's treating General Practitioner, Dr Tan as set out above at [10]. These were made available to Dr Panjratan in the process of preparing the July Report (Ex R7 at p 239). The applicant was provided with a copy of the July Report on 1 July 2020 (the same day it was received by Ms Daniel), along with information about the process by which she could appeal its contents. Despite this, the applicant did not appeal the findings contained in the July Report, including based on a lack of consultation with Dr Tan about her prognosis.
It was open to the applicant to put forward more or different medical information for the respondent's consideration, for example, from Dr Brian Hsu, who was the relevant medical practitioner recommending the surgery to the applicant, or her own treating General Practitioner, Dr Tan. At the time of the hearing, the applicant still had not undertaken the surgery.
The applicant's argument that the prognosis in the July Report was unreliable because it dismissed the potential benefit of the proposed surgery is unsupported by the evidence. The applicant sought to rely upon the report of Dr Anthony Smith dated 19 August 2020. Dr Smith's report does not assist the applicant's case, in several respects. Specific to the applicant's submission about the prospective surgery, Dr Smith states that if successful the proposed operation would allow the applicant to return to work, after three or four months at the most. However, the report also noted that the outcome "is unpredictable" and that she would be "much better managed non-operatively": Ex R7 at p 420. With respect to the surgery, Dr Smith also stated that the applicant "continues to embellish her situation, which does not lead one to expect a good outcome following surgery." The applicant's reliance upon the report of Dr Smith to support the applicant's case in these proceedings was perplexing given these assessments.
The applicant argued that there was no medical evidence that she could not perform the inherent requirements of the role of Technical Officer, provided it was at a location she was able to travel to. The applicant submitted that the Commission lacked information about the requirements of the role and that there was no medical evidence that directly considered this. The applicant referred the Commission to [49]-[50] of the decision of Commissioner Newall in Vernon v State Transit Authority [2014] NSWIRComm 1014, where it was stated: "[49] Any statutory office holder carrying out a power must exercise it reasonably. I do not suggest Mr Eldridge was behaving in the ordinary anecdotal sense of the word unreasonably. He had material before him, he did his best to make an honest decision about what he had before him. But a 'reasonable' decision in truth in this case necessarily had to have as part of it medical evidence about whether or not this man could carry out the inherent requirements of the job. [50] As nobody asked the doctor that in terms, that evidence, in terms, was not there. And so on the tests in the authorities, for instance, in Minister for Immigration and Citizenship v Li [2013] HCA 18 and Abebe v The Commonwealth [1999] 197 CLR 510, the discretion which Mr Eldridge carried out, whilst bona fide, cannot be said to have been carried out in a way that was reasonable."
In this matter, the evidence demonstrated that apart from her incapacity to attend her usual place of work, the applicant was subject to restrictions that fundamentally impacted upon her capacity to perform the inherent requirement of the role of Technical Officer.
The restrictions in place to facilitate the applicant working at the Fairfield Hospital within her capacities to perform the functions of a Technical Officer is considered in the respondent's witnesses' evidence of Mr Alvaro and Ms Tiglao. Their detailed evidence was that the inherent requirements of the role of Technical Officer could not be performed with the medical limitations placed upon the applicant's capacities at the time of the termination of her employment. Their evidence also addressed her slightly improved condition since the applicant's dismissal: see Ex R6 at [83]-[90] and Ex R2 at [46]-[60]. I have referred to some of this evidence later in this decision.
While it would be unreasonable to conclude that an employee is unable to perform the inherent duties of their role because they are not fit to perform all tasks associated with the position, the applicant's capacities were sufficiently inhibited when considering their practical effect that it is appropriate to draw the conclusion that she could not perform the inherent duties of her role: see [65] of IGA Distribution Pty Limited v Moses (No. 2)(2002) 114 IR 307 (Moses).
The applicant sought to discredit the evidence of the Mr Alvaro and Ms Tiglao, tendering a range of technical information produced by the manufacturers of machinery utilised in the field of Pathology. Under cross-examination, each of the respondent's witnesses presented as honest and truthful and left no impression of embellishment. None had an obvious reason to give untruthful evidence in the proceedings and concessions were made as appropriate. For example, Ms Tiglao accepted under cross examination that it would be unrealistic to require an employee to lift up to 20 kg.
The role of Technical Officer is a physically demanding job that requires physical capacities which the applicant did not have at the time of her dismissal. In evidence was a Position Description for the role Medical Laboratory Technician - Clinical Chemistry Position Description, which included a list of Job Demands: Ex R7 at pp 114 - 117. The following job demands listed as "frequent" were impacted by the applicant's medical restrictions: 1. Bend/Lean Forward from Waist - Forward bending from the waist to perform tasks; 2. Lifting/Carrying - Light lifting & carrying: 0-9 kg; and 3. Trunk twisting - Turning from the waist while sitting or standing to perform tasks.
Similarly, an "Initial and Workplace Assessment Report" undertaken by Pinnaclerehab listed Lifting (<3 kg), Reaching and Bending as frequent requirements of the role: Ex R7 at pp 60-68. Mr Alvaro and Ms Tiglao provided further context to the impact of the applicant's medical restrictions on her capacity to undertake the role of Technical Officer including the physical demands required of the applicant to reload reagents and the maintenance of the machinery involved in the pathology processes (by way of example). Further, while the applicant had some previous experience in a multi-disciplinary laboratory, I accept the evidence of Ms Tiglao that she would have needed to undertake a process of training to be able to work across all disciplines in the Fairfield Hospital. This training would require the applicant to travel to Liverpool Hospital, which she was unable to do because of her medical restrictions.
Although there were productive and essential aspects of the role the applicant was able to perform with and without modification to the relevant practices, equally, there were elements she was unable to perform at the time of her dismissal with the restrictions that were in place either in a uni-disciplinary or multidisciplinary setting. Despite the applicant's evidence that she was completing the "bulk of Technical Officer duties without issue", she conceded under cross-examination that there were a range of tasks she was not able to complete. The evidence of the applicant's witnesses Dr Tan and Ms Bryant did not advance her case in this respect either.
It follows that there was a basis in fact for the respondent to conclude that the applicant was unable to perform the inherent requirements of the position of Technical Officer, not only because she could not attend her usual place of work at Liverpool Hospital (which alone is an inherent requirement), but also because she was subject to medical restrictions that prevented her from performing a number of tasks associated with the role. It is also worth noting that the applicant demonstrated no change in her physical ability which would allow her to perform those tasks described by Ms Tiglao and Mr Alvaro, during the period which the applicant was provided suitable duties at Fairfield Hospital.
However, as stated above, this does not necessarily mean that the termination of the applicant's employment was fair. The process adopted by the respondent to terminate the applicant's employment may be deemed unreasonable, because for example, reasonable steps to accommodate her limitations were not sufficient.

Was the dismissal of the applicant unreasonable because of the applicant's capacity for suitable and available employment or the process undertaken procedurally unfair?

The parties made submissions with respect to the respondent's obligations to provide suitable duties that were available to the applicant pursuant to Workers Compensation Legislation. It was not in dispute that the applicant suffered a workplace injury and that s 49 of the Workplace Injury Management and Workers' Compensation Act 1998 (NSW) (WIMWC Act) applied, relevantly: "49 Employer must provide suitable work (1) If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker. Maximum penalty - 50 penalty units. (2) The employment that the employer must provide is employment that is both suitable employment (as defined in section 32A of the 1987 Act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury. (3) This section does not apply if - (a) it is not reasonably practicable to provide employment in accordance with this section, or …"
Section 32A of the Workers Compensation Act 1987 (NSW) (WC Act) defines suitable employment as follows: "32A Definitions … suitable employment, in relation to a worker, means employment in work for which the worker is currently suited - (a) having regard to - (i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and (ii) the worker's age, education, skills and work experience, and (iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and (iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and (v) such other matters as the Workers Compensation Guidelines may specify, and (b) regardless of - (i) whether the work or the employment is available, and (ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and (iii) the nature of the worker's pre-injury employment, and (iv) the worker's place of residence."
The respondent acknowledged and accepted the existence of this obligation, but denied it had breached these by withdrawing the duties being provided to the applicant at Fairfield Hospital, citing the exception to the requirement in sub-s 49(3) of the WIMWC Act, namely, that it was not reasonably practicable to do so. The Commission is not reposed with jurisdiction to make determinations with respect to the whether the requirements of the WIMWC Act have been complied with by any party. This question is only relevant to the extent that it influences an evaluation of whether the dismissal was unfair within the meaning of the relevant authorities.
The parties agreed that the principles espoused by the Full Bench (Wright J President; Boland J; Connor C) in Riley apply to the proceedings. In that matter, Mr Riley's employment was terminated on the basis that he was unable to comply with the inherent requirement of his position as a result of a medical restriction on his ability to travel beyond four hours on three or more days per week: at [76]. The circumstances of his dismissal arose out of a requirement for Mr Riley's position to be rotated from Gosford to Parramatta which the Full Bench accepted was "logical based on the needs of the respondent". However, the Full Bench found that it did not follow that Mr Riley must transfer to Parramatta and "it was incumbent on the employer to take reasonable steps to accommodate Mr Riley's limitations; otherwise his dismissal would be, prima facie, harsh, unreasonable or unjust": see [79]-[80].
Although the Full Bench found that it would have been impractical for Mr Riley to fulfil his substantive role in view of his medical restrictions, they concluded that this did not finally resolve the matter in the respondent's favour, stating that: "An obligation remained on the employer to consider other options in order to accommodate Mr Riley's limitation if fairness was to prevail": at [88].
The Full Bench determined that the Commissioner at first instance erred in that he did not give adequate consideration to whether there was another position that the employer had available to Mr Riley, stating that (at [93]-[94]): "….there has to be a full and transparent consideration by the Commission at first instance of whether there was a position available that was suitable for the employee, given his or her medical restriction. If such a suitable position was available a finding that the dismissal was not harsh, unreasonable or unjust may not be open. We have deliberately chosen to say that what needs to be considered in relation to an alternative position is that it should be both "suitable" and "available". We have taken these terms from s 89(2).…"
The Full Bench continued at [95]: "Normally, no consideration will be given to a remedy until the Commission has determined that the dismissal was harsh, unreasonable or unjust: Darren James Anderson v Northern Co-operative Meat Company Pty Ltd (NCMC - Butchering Pty Ltd) (2004) 137 IR 404. This has to be the approach in the present case but in determining whether the dismissal was harsh, unreasonable or unjust we consider that an appropriate test in the circumstances, given reinstatement is impracticable, is to inquire whether the employer had another position available that was suitable given the employee's travel restriction. If the answer to that were in the affirmative and the employer failed or refused to offer such alternative employment, it may be open to find the dismissal was harsh, unreasonable or unjust. An appropriate order in those circumstances might be re-employment pursuant to s 89(2). If no suitable position was available it still may be the case that the dismissal was harsh, unreasonable or unjust because, for example, the employer failed to accord the employee procedural fairness."
It is important to note the qualifying words in the Full Bench decision that "in the circumstances of this case" it was considered appropriate to evaluate whether there was work "available" and "suitable" (as those words are understood within the context of sub-s 89(2) of the Act). As stated above, the circumstances of that case were that Mr Riley's only medical restriction was his inability to travel for more than four hours a day, three days a week. He was not only otherwise fit to perform the other inherent duties of his role but had been doing so from the Gosford location for several years. In addition, there was some evidence to suggest that there were positions "available" and "suitable" for Mr Riley in Gosford.
Further, the Full Bench stated in Riley that if there was a position "suitable" and "available" and the respondent failed or refused to offer such alternative employment, it "may" be open to find that the dismissal was harsh, unreasonable or unjust. This finding was made in the context of Mr Riley and the respondent conversing with respect to his desire to remain in the Gosford office. The matter was remitted to the Commissioner at first instance to further hear and determine it in accordance with the findings made, conclusions reached and opinions expressed in the Full Bench decision.
It follows that while the Full Bench's approach to the question of whether the medical retirement in Riley was unfair is instructive, it has not, in my view, created a precedent that a dismissal on medical grounds will be unfair if the there was a position "available" and "suitable" as those words are understood in the context of sub-s 89(2) of the Act. However, I have decided that it is appropriate to consider whether there was work that was "available" and "suitable" in these proceeding in considering whether the decision to terminate the applicant's employment was fair.
In considering what was meant by the words "available" and "suitable" in the context of sub-s 89(2), the Full Bench analysed the decisions in Commonwealth Steel Company Limited v Ward (unreported, Matter No IRC 3144 of 1993 (Commonwealth Steel), Effem Foods Pty Limited t/as Uncle Ben's of Australia v Urban (1998) 81 IR 341 (Effem), Newcastle City Council v Bevan (2001) 120 IR 121 and Moses. The Full Bench accepted as correct the approach taken in Commonwealth Steel and Moses that "available" is not the same as "vacant", concluding that in the context of Mr Riley, the Commissioner was required to consider whether "another position was of avail to, capable of being used by, or at the disposal or within the reach of, the employer - whether or not it was vacant at the time": see [106]-[107].
In this matter, the respondent submits that there is no evidence of any "available" or "suitable" alternatives roles for the applicant within the meaning adopted in Riley, meaning there was no evidence of any position available to, capable of being used by, or at the disposal or within the reach of, the respondent - whether or not it was vacant at the time. I agree that there was no such evidence in these proceedings and to the extent the applicant argued that the position she occupied at Fairfield Hospital was such a position, I reject that proposition. There was convincing evidence that the provision of that work on an ongoing basis was not practicable given the applicant's continuing restrictions.
Ms Tiglao gave detailed evidence with respect to the operations of the Fairfield Hospital Laboratory and the work undertaken by the applicant while she was on suitable duties pursuant to her Return to Work Plan. The Fairfield Hospital Laboratory is a small pathology where the tests the staff are asked to perform by medical professionals have immediate consequences on the lives of patients if there is any delay: Ex R3 at [13]. The team working at Fairfield Hospital Laboratory is small, consisting of Mr Tiglao, as manager, 11 Technical Officers and three Technical assistant positions. Due to the small size of the laboratory, the work undertaken is "multidisciplinary", combining a number of "disciplines" including, Clinical Chemistry (Biochemistry), Haematology, Transfusion Medicine (Blood Bank), Microbiology and Anatomical Pathology. This differs from the operations of the Liverpool Hospital Laboratory where the facility is large enough for work in Biochemistry to operate as its own Department separate from Haematology and Blood Bank with staff are not expected to and do not work across the other disciplines: Ex R6 at [16]-[17].
The applicant's substantive position is in the Biochemistry Department in Fairfield Hospital where there are 50 staff employed. Since the applicant commenced work with the respondent in 2004, her work was predominantly in the Main Laboratory although she was occasionally rostered to perform the Technical Officer role in Specimen Reception. The core duties of the applicant in her substantive role in the Biochemistry Laboratory included the use of machines called COBAS 8000 analysers, Integra 400 analyser, patient result validation, the maintenance of machines and the performance of "point of care" testing: Ex R6 at [37].
Ms Tiglao addressed the impact of the applicant's restrictions in practice on the broader Pathology team while on return to work duties at Fairfield Hospital at [61]-[68] of Ex R2: "The impact of Ms Ceniza's capacity on the broader Pathology team 61. During her time at Fairfield Hospital, Ms Ceniza was a supernumerary. By this I mean, she was a Technical Officer at a time when the Technical Officer roles at Fairfield Pathology were already fully staffed. This reality, in combination with Ms Ceniza's medical restrictions, created practical difficulties for me in staffing and the allocation of work. In particular: a. Ms Ceniza's start time of 9:00 am meant that Biochemistry work performed by the Ashift was already substantially underway for approximately 3 hours by the time she arrived. As a result, Ms Ceniza was not "adding" to the work product of the Biochemistry team so much as she was interrupting an already ongoing workstream; and b. the practical limitations in Ms Ceniza's capacity as described above meant that I needed to roster staff "around" her, as Ms Ceniza could never be left in circumstances where she was required to work alone. In the context of a small, multidisciplinary team where staff are expected to be flexible and able to perform all duties as needs arise, this proves considerably difficult. … 63. I have considered the ongoing limitations on Ms Ceniza's capacity as described in EC-19, in particular the following restrictions: a. Lifting/carrying capacity: "Not to exceed 2 kgm, no repetitive lifting"; b. Pushing/pulling ability: "Not allowed"; and c. Bending/twisting/squatting ability: "Minimal, no repetitive neck turning". 64. I have also considered the ongoing limitations on Ms Ceniza's capacity as described in certificate EC-20, in particular the following restrictions: a. Lifting/carrying capacity: "Not to exceed 3kgm, no repetitive lifting"; b. Pushing/pulling ability: "Not allowed to push or pull heavy trolleys"; c. Bending/twisting/squatting ability: "No repetitive neck turning"; and d. "Not to work above shoulder level". 65. I note that both EC-19 and EC-20 contain the comment: "To work in Fairfield Hospital". 66. I understand EC-19 and EC-20 to indicate that Ms Ceniza has capacity for some type of work, and that this work is to be performed at Fairfield Hospital. … 68. If Ms Ceniza were to return to work at Fairfield Hospital indefinitely, with the ongoing limits on her capacity described above, I have serious concerns about the risk this would pose from both a staffing and, importantly, patient safety perspective. The two issues are ultimately interrelated as follows: a. as indicated above at paragraph 61, Ms Ceniza was a supernumerary during the time I managed her between May-July 2020. This allowed the duties Ms Ceniza was not fit to perform to be undertaken by other staff members. While this arrangement was implemented with a view to facilitating Ms Ceniza's return to her pre-injury duties, it is my view that an indefinite placement at Fairfield Pathology with the limitations described above would add to, rather than reduce the workload of my remaining staff. While Ms Ceniza could perform duties consistent with those which she performed while on suitable duties, it would fall to my remaining staff to permanently bear in mind her limitations and manage workload demands and Ms Ceniza's capacity as they respond to the operational needs of the laboratory, calling on Ms Ceniza to do tasks she is capable of doing and stepping back in to action those tasks which Ms Ceniza is not able to perform; and b. this need to work around Ms Ceniza's limitations creates a serious potential shortfall in the event a maintenance issue arises and coincides with the need for urgent/life threatening designated results. It is not acceptable in a STAT environment that workload be delayed and, potentially patients are exposed to life threatening risks because the Pathology department needs to await the arrival of a staff member capable of performing physically demanding maintenance tasks."
The respondent is not required to create a role fashioned around the applicant's capacities for an indefinite period in circumstances where she is no longer able to perform the inherent requirements of the role she was employed to perform, if this is unreasonable. This would place an inappropriate and disproportionate burden upon the respondent and although in the case of the applicant, the duties she was undertaking during her return to work plan may be described as "suitable" they are not "available" in the sense that the particular role envisaged "is capable of being used by, or at the disposal or within the reach of, the employer - whether or not it was vacant at the time". It would be unreasonable to expect that the respondent would continue to accommodate the applicant in the ways described in Ms Tiglao's evidence as a Technical Officer, whether at the Fairfield Laboratory or elsewhere within the respondent's operations, such as the advertised vacant Westmead and/or Blacktown positions referred to by the applicant which post-dated her dismissal.
However, I agree with the applicant that a fair process in the applicant's case required a consideration of whether there might be other roles "available" and "suitable" for her to occupy, other than those that were vacant and funded. The July Report confirmed the applicant's capacity for sedentary work and the respondent had an obligation to consider whether such work was "available".
Ms Daniel gave the following evidence with respect to the respondent's assessment of alternative roles for the applicant prior to her termination (Ex R1 at [103]): "Assessment of alternative roles and termination of employment 103. The combination of the ongoing limitations in Ms Ceniza's Certificates of Capacity and the opinion of Dr Panjratan precluded the identification of a suitable long-term role for Ms Ceniza in circumstances where she could not return to her substantive position at Liverpool Hospital, given that: a. while part of the NSW Health cluster, the roles staffed with NSWHP are ultimately limited to those functions associated with the operation of pathology laboratories within hospitals. NSWHP had and has no ability to, for example, place Ms Ceniza within a strict administrative role within a hospital with no connection to NSWHP; b. Dr Panjratan indicated in the Supplementary IME Report that he considered Ms Ceniza could manage a "sedentary" full-time job. However, within NSWHP's operations, there are few roles which can be considered "sedentary" in the sense of having no physical demands whatsoever. Laboratory work performed by either Technical Officers (Ms Ceniza's substantive position at Liverpool Hospital) or Technical Assistants involves elements of physically engaging work. The roles which may reasonably be considered "sedentary" in that they involve little to no physically engaging work are limited to the following: i. managerial roles above Ms Ceniza's level as a Technical Officer, e.g. a Manager of Pathology; and ii. revenue/typist administrative type roles, all of which are: 1. below and outside of Ms Ceniza's qualifications as a Technical Officer; and 2. in any event, for NSWHP South, all based at Liverpool Hospital; c. as to a continuing role within a laboratory setting, the Certificates of Capacity provided by Ms Ceniza's NTD created insurmountable difficulty in the identification of a suitable alternative position for Ms Ceniza where she could not perform her substantive Technical Officer role at Liverpool Hospital. In particular: l. Ms Ceniza's Certificates continued to limit her travel time to either "Fairfield Hospital" or otherwise a location within 30 minutes' drive of her home. This eliminated the consideration of any role at Liverpool Hospital (Ms Ceniza's substantive place of work and the largest contingent of roles in NSWHP South) given that the hospital was outside Ms Ceniza's permitted travel time; ii. working at Fairfield Hospital was not a viable long-term option given that Pathology at Fairfield operates on a "multi-disciplinary" basis, where staff are expected to be able to work across Biochemistry, Haematology and Blood banking sub-disciplines. From my discussions with Mr Dhir and Ms Tiglao in setting Ms Ceniza's duties/tasks in her RAW Plans, I understood that Ms Ceniza was qualified to perform Biochemistry duties only and, while this work could be supplied temporarily on a return to work basis, the permanent placement of a staff member who could perform around 1/3 of the duties required of Technical Officers required at Fairfield Hospital would create significant difficulties for Ms Tiglao in rostering and managing her team; iii. Fairfield Hospital was the only hospital within the "South" network that fell within the 30-minute travel limitation required by Ms Ceniza and her NTD. At paragraph 10 of the Maroney Affidavit, I note that Mr Maroney has listed a number of hospitals which fall within Ms Ceniza's driving capacity. This list is predicated on the incorrect assumption that it is open to NSWHP to simply place Ms Ceniza within the Pathology team at any one of these hospitals whether or not any position is actually available. With the exception of Fairfield Hospital, none of these hospitals fall within the "South" network for NSWHP. All networks within NSWHP manage their own budgets and operations and, as such, the viability of placing Ms Ceniza at these alternate locations was not considered at the time of her dismissal. However, even if these locations were considered, NSWHP would still be confronted with: 1. limitations in Ms Ceniza's physical capacity to actually perform work associated with the Technical Officer role; 2. limitations of her training to Biochemistry; and 3. practical budgetary constraints. Staff in NSWHP are placed at locations where they required based on patient demand (e.g. the largest staff contingent in the network is at Liverpool Hospital). Simply placing a staff member at a hospital where their role is not required will have impacts on staffing at other locations by virtue of NSWHP budget being allocated to that role. The most obvious example of this in the present circumstances is at Liverpool Hospital. It is my understanding from discussions with Mr Alvaro that since Ms Ceniza was declared unfit the Pathology team at Liverpool Hospital have been operating short of one Technical Officer whilst they awaited Ms Ceniza's recovery."
I accept the evidence of Ms Daniel that the respondent considered and was confronted with a range of challenges in finding "suitable" and "available" work for the applicant, not least of which were the ongoing limitations set out in her Certificates of Capacity. Although the relative size of the respondent's operations makes the budgetary issues referred to by Ms Daniel less relevant than may be the case in an institution of a smaller size, her evidence, which I accept, demonstrates that there were no positions that were "suitable" and "available" for the redeployment of the applicant in her circumstances. Ideally, Ms Daniel would have assisted the applicant in making inquiries within other parts of the respondent's operations for work outside of NSW Health Pathology South that might be "suitable" and "available", however, I do not think it is practical or reasonable to expect that the respondent would place the applicant in any such role given the necessary structural distinctions between different parts of the respondent's operations.
However, I am concerned that the process of reasoning and analysis related to the decision of the respondent to dismiss that applicant and not redeploy her was ineffectively communicated. Indeed, the letter of termination addressed to the applicant stated that her employment was being terminated because there were "no vacant funded positions identified" that complied with the applicant's medical restrictions. Based on the respondent's own evidence, this did not properly articulate the process undertaken by them in determining that there were no "available" and "suitable" roles for her. However, I am not convinced that this caused a substantive injustice to the applicant, given the lack of any evidence of work that was "available" and "suitable" existing. In this respect, the circumstances of this matter can be contrasted with that in Riley.
Apart from the concerns I have raised with respect to the communications with the applicant regarding the respondent's consideration about "suitable" and "available" work, I have formed the view that the process adopted by the respondent was procedurally fair. The applicant was provided with opportunities to respond to the medical reports procured by the respondent and relied upon prior to the final decision being made. There is no support for the applicant's argument that the decision-maker did not exercise "an independent mind". There was a proper factual basis of the decision-maker to make the decision to terminate the applicant's employment as explored in this decision. Similarly, although ideally the decision-maker would meet with an employee where the termination of employment is contemplated, the fact that this did not occur has not, in my view, made the processes adopted by the respondent unfair given the opportunities afforded to the applicant to contest the July Report and to show cause why her employment should not be terminated.

Was the dismissal of the applicant harsh?

The applicant gave passionate evidence about her desire to continue working and expressed concern about her future employment prospects given her circumstances, including her age (the applicant in in her late 40's). The applicant had been in receipt of workers compensation payments, although in evidence was a letter from the respondent's insurer conveying a decision to reduce the amount of weekly payments from 25 June 2021: Ex A11.
The applicant gave evidence that she had found her dismissal to be overwhelming and stressful and that she feels as though she has been treated unfairly for pursuing a worker's compensation claim. I accept the applicant has been distressed by the respondent's decision to terminate her employment and that ongoing restrictions on her work capacity may impact upon her future employment prospects. I also acknowledge that the applicant had given more than 16 years of service to the respondent and there was no evidence of any work or conduct related issues arising at any time during that period.
It was evident in these proceedings that the applicant is optimistic and hopeful she will become fit to perform her role and because her injury arose out of her employment, she will be able to pursue an application for reinstatement pursuant to s 241 of the WC Act. Whether the applicant could be reinstated pursuant to such an application would, however, be subject to considerations distinct from the matters which the Commission is required to consider in the present proceedings.

Conclusion

Having carefully considered the evidence in these proceedings and the submissions of the parties, I have decided that the applicant has not discharged her onus to demonstrate that the dismissal of her employment was harsh, unjust or unreasonable.
The respondent had a proper evidentiary basis to conclude that the applicant was unable to fulfil the inherent requirement of her role. This manifested in the applicant's inability to work at the Liverpool Hospital, but also through the significant restrictions that applied to her work capacity due to her workplace injury.
The process adopted by the respondent in arriving at the decision was fair and reasonable in the circumstances. Although the respondent could have been clearer in their communication with the applicant about the process of consideration they had taken to decide that there was no "suitable" and "available" work available to her, the evidence I have accepted demonstrates that reasonable attempts were made to assist the applicant in her recovery and appropriate consideration given to whether there was any "suitable" and "available" work available given her capacities. Although the decision to terminate her employment has been difficult for the applicant, given her medical circumstances, I have concluded that the decision was not harsh.
For these reasons, I have decided the dismissal was not harsh, unjust or unreasonable. I dismiss the application.

Order

I make the following order: 1. The application by Evangeline Ceniza pursuant to s 84 of the Industrial Relations Act 1996 filed on 21 September 2020 is dismissed.

Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2022

Workplace Injury Management and Workers' Compensation Act 1998(NSW)s 49

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