Colefax v Secretary, Department of Education

Background

1. The applicant commenced permanent employment as an ESL teacher in 1989. However, the applicant has not worked in a school since October 2011.
2. In or about August 2008, the applicant lodged a workers compensation claim alleging that she had suffered psychological injuries as a result of bullying and harassment she experienced at John Purchase Public School at Cherrybrook. Between 2008 and 2010, the applicant was appointed to a number of temporary placements for ESL positions until a suitable substantive position became available. These included short term placements at Epping West Public School and Asquith Public School. On 10 December 2010 the respondent advised the applicant that a substantive full time ESL position had become available at Willoughby Public School and that, pursuant to section 87 of the Public Sector Employment and Management Act 2002, the respondent was proposing to transfer the applicant to that position. The applicant did not accept this transfer and has not worked in a public school since that time.
3. The applicant is an experienced litigant. According to a document prepared by the respondent, the applicant has engaged in the following proceedings against the applicant over the past ten years: 1. Margaritte Colefax v Department of Education and Communities commenced on and 29 August 2008 in the Workers Compensation Commission ("WCC") in which the applicant complained that she was the target of workplace bullying at John Purchase Public School . Liability was admitted and the applicant was awarded costs. 2. Colefax v NSW Department of Education and Communities commenced on 29 April 2010 in the Industrial Court. The applicant sought damages for underpayment of wages pursuant to section 369 of the Act. The claim was amended on two occasions and later included claim under section 106 of the Act. The applicant ultimately filed a Notice of Discontinuance and the respondent consented to not seek costs. 3. Margaritte Colefax v Department of Education and Communities commenced on 23 March 2011 before the Australian Human Rights Commission ("AHRC") in which the applicant alleged that the respondent had discriminated against her on the grounds of disability. The AHRC terminated the complaint. 4. Review of Independent Medical Capacity Assessment - Review No. 5091939 commenced in early November 2011. The applicant sought a review of the findings made by Professor Mellick in an Independent Medical Examination. The appeal was unsuccessful. 5. Margaritte Colefax v Department of Education and Communities commenced on 30 January 2012 in the WCC. The applicant lodged an Application to Resolve a Dispute claiming that the respondent had not placed her in suitable employment within 30 minutes of travel from her home. The WCC made a recommendation by consent of the parties which included that the respondent pay the applicant's costs. 6. Margaritte Colefax v Department of Education and Communities commenced on 30 January 2012 in the AHRC in which the applicant again complained that she had been discriminated against by the respondent on the grounds of her disabilities by not complying with the Workers Compensation obligations and not placing her at Epping West Public School. The AHRC terminated the complaint. 7. Colefax v NSW Department of Education and Communities commenced on 3 February 2012 in the Federal Magistrates Court of Australia in which the applicant sought an extension of time to commence proceedings in respect of the AHRC complaint referred to at (3) above. The proceedings were discontinued by the applicant. 8. Margaritte Colefax v Department of Education and Communities commenced on 2 April 2012 in the WCC. The applicant lodged an Application to Resolve a Dispute claiming that no suitable duties had been provided as the respondent had not complied with the 30 minute restriction. The WCC recommended that the respondent provide suitable duties at a school no more than 30 minutes' drive from the applicant's residence and ordered that the respondent pay the applicant's costs. 9. Margaritte Colefax v Department of Education and Communities commenced on 10 April 2012 in the AHRC in which the applicant alleged that she had a physical disability of not being able to travel for longer than 30 minutes and that she had a mental disability of reactive anxiety and depression. She claimed that she had been discriminated against by the respondent on the grounds of her disabilities by not complying with the Workers Compensation obligations and not placing her at Turramurra, Epping West or Asquith Public Schools. The AHRC terminated this complaint. 10. Margaritte Colefax v Department of Education and Communities commenced on 7 May 2012 in which the respondent, pursuant to section 308 of the Workplace Injury Management and Workers Compensation Act 1998, disputed the Recommendation and Reasons of the WCC referred to at (8) above. The WCC made a determination that the respondent provide the applicant with suitable duties at a school no more than 30 minutes' drive to and from the applicant's residence and that the suitable duties should take account of the condition of transverse myelitis suffered by the applicant. The applicant was awarded costs. 11. NSW Department of Education and Communities v Colefax commenced on 30 August 2012 in which the respondent appealed the decision of the WCC referred to at (10) above. The appeal was unsuccessful in the applicant was awarded costs. 12. Margaritte Joanne Colefax v Director General, Department of Education and Communities commenced on 2 October 2012 in the Industrial Court in which the applicant sought an order for payment of expenses incurred by her in the amount of $1,321.04. The applicant discontinued the proceedings. 13. Colefax v Department of Education and Communities commenced on 28 March 2013 in the Federal Circuit Court in which applicant claimed disability discrimination on the basis of her complaints in the AHRC referred to at (6) and (9) above. On 21 May 2014, the proceedings were struck out for want of prosecution. On 28 January 2015, the order striking out the proceedings was set aside and the proceedings were restored on the basis that the applicant's solicitors pay the respondent's costs. The proceedings were settled on the basis that the respondent pay the applicant $8,000 plus costs. 14. Margaritte Colefax v Department of Education and Communities commenced in December 2012 and by way of an amended application filed on 25 May 2014 in the WCC. The WCC made an award for weekly payments of compensation up to 31 December 2012 and ordered the respondent to pay the applicant's costs. 15. Colefax v Secretary, Department of Education and Communities commenced on 9 April 2015 in the WCC in which the applicant challenged the findings referred to at (14) above. On appeal those findings were confirmed. 16. Margaritte Joanne Colefax v Secretary, Department of Education commenced on 19 April 2017 in this Commission in which the applicant made an Application for Reinstatement of an Injured Worker pursuant to section 242 of the Workers Compensation Act 1987. The Commission terminated the proceedings and noted that the applicant had withdrawn the claim.
4. In the Federal Circuit Court proceedings referred to at paragraph 7(13) above the applicant swore an affidavit in which she described the symptoms she suffered from as a result of being diagnosed with the condition of acute idiopathic transverse myelitis which is a rare autoimmune illness that causes inflammation of the spinal cord which causes damage to and destroys nerves. On the applicant's case, this condition resulted in incomplete paraplegia. The applicant's affidavit sworn on 12 March 2015 contained the following: 34. As a consequence of the Condition, I have suffered and continue to suffer from: (a) Constant and extreme pain from the waist down (b) Constant spasticity from the waist down; (c) Lack of normal feeling from the waist down; (d) Balance, proprioception and sensory issues from the waist down; (e) Weakness in the pelvis and legs; (f) Increasing spasticity, pain and lack of function brought on by over exertion, undue anxiety and fatigue. 35. I provide an example and set out some of my experiences with respect to each category below: (a) Constant and extreme pain from the waist down. This is characterised by a complex layering of sensations of immense pressure, twisting, stabbing, grinding, cutting, tingling, heaviness and freezing - most affected is the pelvic area, my lower legs, ankles and feet. My pain is increased by moving, fatigue and stress and can be overwhelming and exhausting. To help manage this, I utilize various pain management strategies including pain management programs, physiotherapy, exercise, hydrotherapy, electrical stimulation, massage, heat packs, and heated devices including heated car seat, meditation, medication and distraction. The distraction provided by meaningful work is in my experience a potent pain control mechanism, as I have found when teaching at Epping West Public School, Asquith Public School, tutoring, participating in ongoing learning and voluntary work at St Lucy's school. (b) Spasticity My spasticity manifests as a constant, 24/7, increase in muscle tone, extreme tightness, stiffness and restrictive, resistant rigidity in the pelvic area, legs and feet. After sitting without moving for 30 minutes or more my spasticity is particularly severe, with cramping (particularly in my left leg and foot), a feeling of extreme resistance to movement and intense pain being the norm. Unless I take measures to inhibit cramping, its impact makes standing up and walking afterwards require increased effort, much more painful, awkward, and jerky. Such measures include constantly moving, stretching, pushing my feet up and down, lying back, applying heat, swinging my pelvis from side to side, transferring weight from one foot to the other, and getting up and walking. Apart from the increased pain and effort required, I am also often aware of a decrease in the ability to control my movement, such as the involuntary straightening of my knees and pointing of the toes when I try to walk after an extended time sitting still. I continue to use exercise, physiotherapy, meditation and medication to assist in managing my spasticity. I also keep myself up to date with current thinking and research so I am informed and can actively be involved in helping myself. (c) The lack of normal feeling from the waist down This impacts on my balance and mobility and manifests in proprioceptive and sensory difficulties. (d) Balance Early in my rehabilitation, and now, if I am tired, I feel as if I am going to "fall off my feet" while walking, for me, is like negotiating a razor sharp tight rope, with tennis balls glued under the arches of my feet. I have constant numbness, weakness in my hips and feel weird sensations in my pelvic area, legs and feet. This makes standing, balancing and walking difficult and requires immense effort and vigilance at all times, especially when having to negotiate moving objects (such as an escalator) or unfamiliar or crowded places. My use of various therapies, exercise and mechanical aids such as a cane, have continued to assist me in managing this disability ensuring that I can move around safely, but it continues to be difficult. (e) Proprioception issues My proprioceptive impairment, which is worsened by fatigue and stress, affects my ability to sense the position, location, orientation and movement of my body from the waist down. It produces sensations that require constant and demanding vigilance. Strategies such as feeling the seat I am sitting on with my hands, help to inhibit the nauseating, vertigo like illusion that I'm not actually sitting on the seat and am about to fall, or looking at my legs or feet, help to reassure me of their actual condition and location. I utilise and continue to seek out various strategies and physiotherapy, to assist me in managing this disability, so as to ensure I pose no risk to myself or others. (f) Sensory issues Altered sensory function from the waist down, such as an extreme sensitivity to different materials, surfaces and temperatures is fatiguing, impacts on my mobility and makes walking a struggle. It can feel like walking through concrete. I have an impaired ability to feel pain, hot and cold sensation and touch in varying degrees in my buttocks, legs, ankles and feet. I often experience a discomforting nausea like sensation when I walk across new and unfamiliar surfaces, which makes me feel that I will fall. I have learned and continue to learn strategies that assist me and refine my ability to help evaluate and manage my surroundings, so I can deal with these difficulties, but they are all ongoing. Weakness in the pelvis and legs Continuing physiotherapy and exercise, along with alternative ways of doing things, such as carrying a heavy load in a bag on wheels, using a cane and a handrail, assist me with this weakness. Increasing spasticity, pain and lack of function bought on by over exertion, undue anxiety and fatigue As described above, physical and psychological stressors increase symptoms such as my spasticity, my pain and my ability to move. 36. These symptoms, my Disability, mean that it is extremely difficult for me to travel for periods greater than 20 - 30 minutes. 37. Sitting for longer periods than this can cause me to go into a slow spasm, which causes severe pain and lower limb dysfunction. The amount of time the pain takes to settle back to its normal state is unpredictable and ranges from one to several hours, depending on the type of sitting it is. For example, sitting at a desk is less impactful than sitting in a car because I can swing my legs and pelvis around whilst sitting at a desk. This impacts adversely on both the management of my Disability generally, and but in particular on my capacity to safety drive a motor vehicle for anything more than 20-30 minutes. 38. I have great difficulty in taking public transport. It is very difficult for me to negotiate stairs, escalators, crowds and people who jostle or bump into me. I am often knocked off balance by these things and feel like I will fall. I have fallen twice in public. I get nauseous from negotiating the different surfaces, slopes and gradients involved and have to work very hard to balance and stay upright. Carrying things or wheeling a bag is also very difficult. I need access to handrails on stairs and this is not always possible. If it is raining all these issues are made even worse. All of these factors are exhausting and cause me a lot of pain.
5. These passages from the applicant's affidavit in the Federal Circuit Court proceedings caused Ms Simmons to be deeply concerned and she formed the view that the applicant's symptoms may render her unable to safely perform her duties as a teacher in a public school. In addition, Ms Simmons was aware of a number of medical reports on the applicant's condition which contained conflicting medical opinions as to the applicant's capacity at that time.
6. Ms Simmons determined that a fitness for work assessment should take place, not from the perspective of a medical assessment of the applicant's capacity but rather from a workplace health and safety standpoint. Ms Simmons accepted the symptomatology described by the applicant and her doctors and wanted to know whether or not there were unacceptable risks to the health and safety of the applicant, the children who are pupils at the schools at which the applicant might teach and to other staff members with whom she might teach.
7. Ms Smith was retained by the respondent to conduct the assessment. On the basis of Ms Smith's report and the medical reports, on 11 August 2016 Ms Simmons wrote to the applicant and notified her of proposed action under section 76 of the Teaching Service Act. Following several exchanges of correspondence between the applicant and Ms Simmons and an independent investigation by Thomson Geer, Solicitors, as a result of a complaint by the applicant to the respondent seeking a review of Ms Simmons' decision making in relation to the workplace assessment, Ms Simmons, on 29 March 2017, determined that the applicant should be medically retired. As a consequence of that determination, the applicant filed her unfair dismissal application seeking re-employment to another position.

Case for the applicant

1. On the first day of the hearing of this matter, 29 September 2017, I granted leave, over the objection of senior counsel for the respondent, for the applicant to be represented by her partner, William Blunt. I also granted leave to the applicant to issue a summons to Ms Smith to appear as a witness in the proceedings and to be cross-examined by Mr Blunt.
2. The applicant relied upon two witness statements from herself and two witness statements from Mr Blunt. These witness statements were contained in four folders of documents which were tendered into evidence by the applicant and separately marked as exhibits. These folders contained 1,452 pages of documents which included a 32 page written submission and an eight page written submission in reply. In addition, the applicant tendered as an exhibit a further ten folders containing 4,342 pages of documents. The applicant also provided the Commission with a folder entitled "Legislation and Authorities" containing a further 376 pages of documents. The applicant's final written submissions and submissions in reply occupied three folders and totalled 555 pages. In addition, the applicant tendered into evidence a 37 page document which took issue with the respondent's evidence relating to the previous proceedings between the parties.
3. Neither the applicant nor Mr Blunt was required for cross-examination by senior counsel for the respondent. Mr Blunt spent most of the first day of the substantive hearing cross-examining Christopher Miles, Principal Legal Officer of the Department of Education. Mr Blunt also cross-examined Ms Simmons for in excess of a full hearing day and Ms Smith for in excess of a full hearing day.
4. The applicant complained that the respondent had failed to comply with the determination of the WCC referred to at paragraph 6(10) above. The applicant also disputed the opinion of Ms Smith that the applicant was unable to meet the inherent requirements of her position.
5. The applicant tendered into evidence a large numbers of medical certificates and reports, some of which are referred to below: 1. A report from Professor J D G Watson dated 27 January 2010 in which the professor stated that it was time for the applicant to consider going back to work. 2. A Workplace Assessment Report dated 23 September 2010 by Hilda Makhoul, Rehabilitation Consultant with Rehabilitation Injury Management ("RIM"). Ms Makhoul assessed the applicant as being capable from a psychological point of view for full time pre-injury ESL teaching duties at an alternative school to John Purchase Public School. 3. Multiple reports from Dr Tien Phan covering the period 5 October 2010 through to 2 August 2012 which stated, inter alia, that the applicant should not drive more than 30 minutes each way (to and from work) and that she should avoid stressful/confrontation situations. 4. A further report from Professor Watson dated 21 December 2010 stating that the applicant should be looking for work on a time rather than distance based radius from home, of 25 to 30 minutes' drive on an average occasion. 5. A report from Dr Alan Lam dated 20 January 2011 in which Dr Lam stated that he supported the applicant to seek paid employment which did not require her to travel more than 30 minutes at a time by car. He did not believe that the applicant's residual disability would stop her being employed as a teacher within the education system. 6. Medical certificates from Dr Phan for the period from 24 January 2011 through to 3 July 2017, the majority of which stated, inter alia, that the applicant should be provided with work within 30 minutes' travel time from her home. 7. Further reports from Professor Watson dated 18 April and 13 July 2011. 8. A Workplace Assessment Report of Anita Collins, Consultant Occupational Therapist with RIM, dated 28 April 2011 in which Ms Collins made certain conclusions and recommendations in relation to the manner in which the applicant performed her teaching duties. 9. From 2 May 2011 there were a series of Return to Work Plans put in place with the overall goal of returning the applicant to her substantive position at Willoughby Public School. 10. Responses from Professor Watson dated 12 May 2011 to a number of questions asked by Ms Makhoul about the applicant's inability to drive for longer than 30 minutes. 11. A series of reports from Dr Grace Leong spanning 11 August 2011 through to 29 May 2015 concerning the pain being experienced by the applicant. 12. A further report from Dr Leong dated 9 September 2011 in which the doctor recommended that the applicant limit her driving to 30 minutes. 13. A report from, Joanne Taylor, Psychologist, dated 19 September 2011, together with two other undated reports from Ms Taylor, which stated that the applicant's levels of depression and anxiety have been exacerbated by the failure of the respondent to appoint her to a position within 30 minutes' drive from home. 14. From 23 September 2011onwards there were multiple Progress Reports by RIM where the objective was stated to return the applicant to pre-injury ESL teaching duties on her normal hours and days, 15. A report from Dr Ross Mellick, dated 28 September 2011, where Dr Mellick stated that he would regard the applicant to be currently fit to undertake full duties as a teacher. In a further report dated 8 March 2012, Dr Mellick clarified that his earlier opinion as to the applicant's fitness for work did not reverse or negate his previous comment to the effect that the applicant was not absolutely confident that cramps may not occur when she drives for intervals longer than 20 minutes. 16. A report from Caroline Brown, Rehabilitation Consultant with Advanced Personnel Management, dated 10 April 2012 which noted that, psychologically in relation to her workers compensation claim for anxiety and depression, the applicant would be able to perform the pre-injury duties of an ESL teacher at Willoughby Public School. 17. A report of Dr Adam Martin dated 19 September 2013 wherein Dr Martin expressed the opinion that the applicant, in terms of the alleged psychological injury alone, was not incapacitated for work as a part time ESL teacher. 18. A report of Dr Phillip Brown dated 2 December 2013 in which the doctor stated that, in his opinion, the applicant was psychologically fit for full time employment at a school with supportive local management within thirty minutes' drive, other than John Purchase Public School. 19. A report from Jan Smead, Occupational Therapist, Mt Wilga Private Hospital, to Dr Leong dated 28 January 2014 concerning the applicant's ability to drive a car safely. 20. A Day Program Rehabilitation Team Discharge Report dated 7 May 2014 from Mt Wilga Private Hospital reporting on the applicant's progress during physiotherapy sessions. 21. A report from Dr Grant Walker dated 23 March 2015 in which the doctor expressed the opinion that the symptoms described by the applicant (whatever their aetiology) in relationship to the duties of an ESL teacher, he could not believe that the applicant would fulfil the requirements. Dr Walker stated that the duties could be a danger to herself, her colleagues and the children under her care. He suspected that "reasonable adjustments" could not have been made in the workplace to allow the applicant to carry out her role. 22. A report of Dr Alan Home dated 11 May 2015 in which Dr Home expressed his opinion that the applicant could safely perform the inherent requirements of her job as an ESL primary school teacher, notwithstanding her physical medical condition. In a follow-up report dated 2 June 2015, Dr Home agreed that it was feasible for the applicant to break up her driving journey to drive 20 minutes, undertake some stretching exercises and then complete the journey. 23. A Report of Dr Doron Samuell dated 21 May 2015 in which the doctor expressed the opinion that the applicant did not, at that time, suffer from any psychiatric condition. Her mental state findings were completely normal. She was not taking any psychiatric or psychotropic medications. There were no significant symptoms at that time.
6. The following is a "synopsis" prepared by the applicant of her 402 page final written submission: The Applicant in this matter has worked for the Department of Education (Respondent) as a specialist ESL teacher since 1985 with an unblemished record. As a trained ESL teacher, she has enjoyed working across a range of roles supporting the teaching and learning of students and teachers in her school, and mentored teachers in other schools in NSW. In August 2008 she suffered a workplace psychological injury due to bullying. Over the following four years, she suffered four additional psychological work place injuries - injuries that were predictable and the Respondent could have prevented. In October 2009, the Applicant suffered a rare illness of transverse myelitis, that has left her with incomplete paraplegia. Since the onset of the condition, the Applicant has continued to learn various strategies to help her deal with the symptoms of her physical disabilities. The incomplete paraplegia has not prevented the Applicant from working, but limits her driving to and from schools to 30 minutes each way. The Respondent has accepted the incomplete paraplegia as a disability as defined by the Disability Discrimination Act. The Applicant worked successfully without incident at Epping West Public School (EWPS) for approx. three terms in 2010 and then Asquith Public School (APS) for approx. two terms in 2011. On Christmas Eve 2010, Ms Simmons, the decision maker in this termination, transferred the Applicant to Willoughby Public School (WPS), despite medical advice that she could not travel to that school due to her incomplete paraplegia. Willoughby Public School was in excess of 30 minutes driving time from her home. In May and August 2012, the Workers Compensation Commission issued a Determination that required the Respondent to provide work for the Applicant, within the 30 minutes driving time from her home. The order was a "decision" of the Commission and is final and binding on the parties. Despite the "decision", Ms Simmons allowed other senior staff in the Respondent, to direct the Applicant to attend WPS - a direction contrary to the Workers Compensation Commission's "decision", and imposed disciplinary action because the Applicant did not attend WPS. From early 2013 after the fifth work place injury, the Applicant's Nominated Treating Doctor (NTD) certified the Applicant fit for work and has continued certifying her fitness for work. The Respondent and their insurer (Allianz) have never challenge the NTD's medical and work capacity certificates. The Applicant has requested work and has continued to request work. Other doctors - including those engaged by the Respondent and Allianz, found the Applicant can work and do so safely, and carry out the inherent requirements of an ESL teacher. Notwithstanding, the Respondent conducted a Workplace Assessment in June 2016 and subsequently terminated the Applicant's employment on 29 March 2017 - because they said, she could not undertake the inherent requirements of her position and do so safely - despite the opinions of the registered medical practitioners and her demonstrated experience at EWPS and APS. It is that termination, the Applicant says was harsh, unreasonable and unjust. The Applicant has requested re-instatement, to enable a return to work in accordance with the "decision" of the WCC.

Case for the respondent

1. The respondent relied upon a witness statement by Mr Miles in which he traversed the history of litigation between the applicant and the respondent over the past ten years. The respondent also relied upon an affidavit sworn by Ms Simmons on 10 June 2015 in the Federal Circuit Court proceedings referred to at paragraph 7(13) above. In that affidavit, Ms Simmons detailed the various duties of a teacher and expressed her firm view that the applicant could not have undertaken the inherent requirements of the position of an ESL teacher at Willoughby Public School or at any of the 35 primary schools which had been nominated by the applicant as schools where she was willing to work.
2. In addition, Ms Simmons also made a witness statement which was tendered in these proceedings. In that witness statement, Ms Simmons referred to her previous affidavit and confirmed her view that the applicant's symptoms may render her unable to safely perform her duties as a teacher in a public school. Ms Simmons also referred to the expert reports of Dr Samuell, Dr Walker and Dr Home procured by the respondent for the purpose of the Federal Circuit Court proceedings (see subparagraphs 16(21), 16(22) and 16(23) above). Ms Simmons noted the conflicting medical opinions as to the applicant's capacity to safely perform the inherent requirements of her position. Ms Simmons also referred to the expert affidavit of Dr Leong filed by the applicant in those proceedings and concluded that Dr Leong's opinion as to the applicant's capacity was heavily qualified and that significant adjustments would have to be made to allow the applicant to return to work.
3. Ms Simmons stated as follows: 11. As stated above, in addition to the medical reports gathered for the Federal Circuit Court proceedings, there had been quite a number of pre-existing medical reports that had been gathered for various workers' compensation claims and other earlier court proceedings. Those reports also varied with conflicting information as to the Applicant's symptoms and how it affected her functioning. 12. I therefore took the view that I would not be assisted by any further medical assessments. Rather, I noted that there was common ground amongst the doctors as to the symptomatology described by the Applicant and in particular her own treating doctor, Dr Leong, describing the propensity for falls, the Applicant's lack of proprioception and her difficulties with balance. 13. For this reason, I determined that a fitness for work assessment should take place, not from the perspective of a medical assessment of the Applicant's capacity but rather from a workplace health and safety standpoint. That is, I accepted the symptomatology described by the Applicant and her doctors and I wanted to know whether or not there were unacceptable risks to the health and safety of the Applicant, the children who are pupils at the schools at which she might teach and to other staff members with whom she might teach.
4. The respondent retained Ms Smith to conduct the workplace assessment which occurred at Epping West Public School on 1 June 2016. On or about 3 August 2016, Ms Simmons received the report prepared by Ms Smith following which Ms Simmons sent correspondence to the applicant in which she made a Notification of Proposed Action under section 76 of the Teaching Service Act.
5. Following further correspondence between Ms Simmons and the applicant, Ms Simmons made the determination that the applicant should be medically retired. In her witness statement, Ms Simmons set out the reasons for this determination and her opinion as to the impracticability of the applicant being reinstated or re-employed. Ms Simmons was cross-examined at length but did not waver from the evidence that she had given in chief. Ms Simmons also rejected the assertion that she had exhibited bias against the applicant.
6. Ms Smith was also cross-examined at length but she did not waver from the conclusions she had reached following the workplace assessment which were set out in her report (see paragraph 3 above).
7. In the respondent's final written submission, the following was stated: 2. The Respondent says: 2.1. The Applicant's contention that medical retirement was not permissible because it was inconsistent with a Determination made by the Workers Compensation Commission on 9 August 2012 (Determination) is wrong at law. 2.2. This Commission has no jurisdiction to entertain the Applicant's arguments nor make factual or legal findings about whether the Respondent breached the Workers Compensation Act 1987 (NSW) (WC Act) and the Workplace Injury and Management Workers Compensation Act 1998 (NSW) (WIM Act), the Disability Discrimination Act, 1992 (Cth) (DDA) and the Work Health and Safety Act 2011 (NSW) (WHS Act). 2.3. Whilst the Commission is bound to take into account the principles contained in the Anti-Discrimination Act, 1977 (NSW) (AD Act), that Act contains no requirement for an employer to make 'reasonable adjustments' in disability discrimination. 2.4. The Commission ought not make any findings in relation to matters which have been the subject of prior litigation which has concluded by way of agreement or court order. 2.5. The Respondent properly exercised the statutory power granted to it under s. 76 of the Teaching Service Act, 1980 (NSW) (TS Act). This was done by reference to the elements contained in the statutory provision and exercised properly by the delegate of the Secretary of the Department, Ms Simmons. 2.6. The Applicant called Ms Smith and is bound by that forensic decision, such that the views of Ms Smith are evidence in the Applicant's case. 2.7. Further, and fatally to her case, the Applicant failed to call any evidence from any expert or treating medical practitioner, rehabilitation provider, vocational expert, OT consultant or WHS risk assessment expert to contradict the findings made by Ms Smith. 2.8. It is the duties of the substantive position against which the Applicant's capacity to work is measured, not, as suggested by the Applicant, any modified or suitable duties. 2.9. The Applicant was accorded procedural fairness. There was no unfairness by the Respondent adopting the procedure it did, particularly in light of the history of the Applicant's work capacity issues, the implementation of the Thomson Geer Review and the acceptance of that Review by the Secretary of the Department. 2.10. There was no evidence of any actual bias exhibited by Ms Simmons and the Commission would reject the contention of apprehended bias because, notwithstanding the view she expressed in the Second Federal Circuit Court Proceedings, Ms Simmons' decision-making took place 2 years later, it was informed by independent advice from Ms Smith, it was independently reviewed by Thomson Geer and it was endorsed by the Secretary of the Department before the medical retirement decision was implemented. 2.11. There are no other aspects of the process that rendered the retirement harsh, unjust, or unreasonable within the meaning of s. 84(1) of the Industrial Relations Act, 1996 (IR Act). The Application ought be dismissed. 2.12. If not dismissed, the Applicant has only sought re-instatement but there is no basis on which it would be reasonably practicable to do so. The Applicant does not seek compensation, and none should be awarded. 2.13. The Respondent wishes to be heard on the question of costs.
8. The respondent's final written submission then set out a detailed rebuttal of the final written submission of the applicant.

Applicant's submission in reply

1. The applicant's 79 page written submission in reply to the respondent's submission was preceded by the following "synopsis": This Reply Submission responds to the Respondent's Final Written Submission (Respondent's FWS) including the new claims not previously disclosed, including (but not limited to); That an assessment of "inherent requirements" is not synonymous with the required assessment of the "much wider range of activities" of the "duties" to meet the requirements of s.76(1)(a) of the Teaching Service Act (TS Act); The Respondent has not made an assessment or determination with regard to s.5A of the TS Act regarding the Protection of Children, which was a "paramount consideration" before taking any action "with respect to an officer", and as a consequence, was unable to proceed to terminate the Applicant's employment; and The Respondent had no medical evidence to determine the Applicant's alleged incapacity would be of a "permanent character" to satisfy the requirements of s.76(1){b). Given the above (and the Applicant's other submissions), the Respondent did not have a "valid reason" to terminate the Applicant's employment. This Reply Submission takes issue with the Respondent's submission that it could rely on the Smith Report in lieu of a report from a registered medical practitioner. The Applicant relies on the numerous cases cited in this proceeding, which all relied on opinions from medical practitioners to determine if an employee had an incapacity and consequent inability to undertake the "inherent requirements" of the employee's position. The Applicant was "medically retired" (not disputed), and as a consequence, it was a requirement that any determination of her capacity had to be made by a medical practitioner. The Applicant relies on the opinions of the Respondent's own registered medical practitioners who found the Applicant did not suffer from a psychiatric condition, had normal cognitive functions and was able to safely perform the inherent requirements of her position. The Applicant further relies on the work capacity assessments (not disputed) of the Nominated Treating Doctor issued under the workers compensation legislative scheme. The Applicant again draws to the attention of the Commission, the following passage from the Respondent's own Medical Retirement Guideline; All personnel from the Department should be mindful that any decisions made regarding the employment status of an employee must be in line with the relevant legislation and all procedures must be strictly adhered to. The Applicant submits; In a case where the reason for dismissal relates to capacity, the Commission should have regard to the medical opinions at the time of the decision to dismiss; The absence of a clear finding by an appropriate medical practitioner that the employee cannot perform the inherent requirements of the job will suggest that there is not a valid reason for termination based on capacity. The Respondent, has again, failed to identify the inherent requirements (or the now alleged wider range of activities of the duties) that the Respondent says the Applicant cannot perform, what control measures and/or reasonable adjustments were considered, why the Respondent determined it was not reasonably practicable to implement those measures, and if the implementation would create an unjustifiable hardship for the Respondent. In addition, the Applicant opposes the Respondent's submission that it did not have to comply with; the legislative/regulatory schemes relating to work health and safety (s.18 WHS Act); discrimination with regard to the provision of reasonable adjustments (s.5 and s.6 Disability Discrimination Act); or the workers compensation scheme for the management of injured workers, (including the Applicant who has been injured on five occasions by the Respondent). The Respondent has made determinations that, there were no reasonably practicable control measures to eliminate or control safety risks, and that there were no reasonable adjustments that could be implemented to enable the Applicant to perform the inherent requirements of her position. The Respondent relied on those determinations for the termination of the Applicant's employment. But despite making those determinations and using those for the termination, the Respondent now says to this Commission and the Applicant, that it does not have to answer how it formed those determinations - because this Commission according to the Respondent, has no jurisdiction for such matters. That is despite the position set out in the Respondent's own cited case of Lion Drinks and Dairy v Norman - "It is appropriate to have regard to whether reasonable adjustments may be made to a person's role in order to accommodate any current or future incapacity". The Applicant opposes that incorrect submission and says this Commission must have regard to the respondent's conduct to determine if the termination was unjust and/or unreasonable and/or unjust. The Applicant also opposes the Respondent's imposed higher duty of care and safety obligations which seek to "ensure" and "without risk'', and sets out the recognised and adopted concept of "reasonableness" that provides the correct test. The Applicant sets out the reasons why the Respondent was always bound to comply with the Procedure, PSC Procedure, IMCA and MRG (see Parts 3 and 4 of the Applicant's Final Submission) and further identifies the obligations held by the Secretary and Ms Simmons within their own contracts of employment to "act in accordance with any applicable employment policies". The Applicant relies on it submissions that natural justice (procedural fairness) had not been afforded to the Applicant - given decisions relating to s.76(1), s.76(1)(b) and s.76(1)(c) had already been made before the Applicant was even given a copy of the Smith Report. The Applicant submits she had been denied the opportunity to have the Smith Report reviewed by an independent medical review panel prior to decisions being made by the Respondent - that she was unable to perform the inherent requirements of her position, and the alleged incapacity was of a "permanent character". The Applicant opposes the Respondent's submissions that the report by Thomson Geer, somehow resulted in "oversight" for those decisions - how could it, when those decisions were made over 6 months before the Thomson Geer report was released. The Applicant confirms its submissions of apprehended bias. The Respondent has failed to submit any evidence of the actions taken and consideration given by the decision maker - Ms Simmons, to ensure she would bring an impartial, unfettered, fair and open mind free from prejudgement to the making of her decisions regarding the Applicant's employment. These are some of the matters that would be considered by the required fair minded and informed observer. The Applicant opposes the Respondent's submission that this Commission cannot take into consideration the Determinations of the Workers Compensation Commission (WCC). The Respondent has failed to provide any reason in support of its submissions. The Applicant maintains this Commission should and must consider the Determinations, and take no action that effectively challenges, appeals against, reviews, quashes or calls into question those determinations. The 9 August 2012 Determination of the WCC included the order requiring the Respondent to provide "suitable duties" at a school within a 30 minute drive from the Applicant's home at Normanhurst. The Applicant maintains its submission, that by their actions to terminate the Applicant's employment, the Respondent has done what this Commission and any other Court is prohibited from doing. The Respondent's action, must form part of the s.88(f) Industrial Relations Act 1996, consideration of "other matters" in this proceeding. (See paragraph 421 and 427 in this submission) The Applicant opposes the Respondent's res judicata and Anshun estoppel submissions. The Applicant relies on all of the submissions made in the Applicant's Final Submission including Part 1 to Part 30, and this Applicant's Reply Submission.

Was the applicant unfairly dismissed?

1. The termination of the applicant's employment was effected by way of medical retirement pursuant to section 76 of the Teaching Service Act rather than by way of dismissal. It is clear that a person whose employment has been terminated in such a fashion may nevertheless be entitled to seek relief under section 89 of the Act if it can be demonstrated that the medical retirement was effected in a manner which rendered the termination of employment harsh, unreasonable or unjust. No contention to the contrary of this proposition was put by the respondent.
2. The applicant asserts that the respondent acted unfairly by failing to comply with a determination of the WCC made pursuant to the provisions of the Workplace Injury Management and Workers Compensation Act, on 7 August 2012 and amended on 9 August 2012 (see paragraph 7(10) above). The respondent asserts that it did not fail to comply with that determination and that, in any event, by the time the applicant was medically retired, the determination of the WCC had lapsed.
3. I agree with the submission of the respondent to the effect that this Commission has no jurisdiction to deal with an alleged contravention of, or failure to comply with, such a determination (see section 105 of the Workplace Injury Management and Workers Compensation Act). Any finding by this Commission that the respondent acted unfairly in medically retiring the applicant on 29 March 2017, in part, because it failed to comply with the determination made by the WCC in August 2012, would necessarily require an impermissible trespass by this Commission into the exclusive jurisdiction of the WCC.
4. There is no evidence before this Commission that the applicant has, since 2012, taken any steps in the appropriate jurisdiction to enforce the determination of the WCC or to have contempt proceedings instituted as a result of the alleged failure by the respondent to comply with the determination of the WCC.
5. The task before this Commission in these proceedings is to examine the events which led up to the medical retirement of the applicant on 29 March 2017 and to determine whether or not the termination of the applicant's employment by way of medical retirement was harsh, unreasonable or unjust.
6. I have a great deal of sympathy for the applicant who has endured significant health problems over the past ten years and who has now lost the career in which she has worked for a considerable part of her life. However, the respondent has a duty under the provisions of the Work Health and Safety Act 2011 to eliminate risks to the health and safety of its employees and the children who attend its schools, so far as is reasonably practicable.
7. Based upon the conflicting medical reports which were made available to Ms Simmons in the 2015 Federal Circuit Court proceedings, and the applicant's own evidence in those proceedings, part of which is extracted at paragraph 8 above, Ms Simmons quite reasonably formed the view that there may be unacceptable risks to the health and safety of the applicant, the children who are pupils at the schools at which she might teach and to other staff members with whom she might teach.
8. The decision by Ms Simmons to engage Ms Smith to conduct a workplace assessment was entirely reasonable and consistent with the respondent's work health and safety obligations.
9. The conclusions reached by Ms Smith, which are extracted at paragraph 3 above, made it virtually inevitable that the applicant would be medically retired. I have carefully examined Ms Smith's report and the vast amount of material upon which it was based. I was also assisted by observing Ms Smith giving evidence under cross-examination. I formed the view that Ms Smith had conducted the workplace assessment in a thoroughly professional manner and I could find no fault in her reasoning, conclusions and recommendations. I reject the submission put on behalf of the applicant to the effect that Ms Smith did not have the requisite skills, experience, qualifications and registration to undertake the workplace assessment and to prepare the report which was relied upon by the respondent to medically retire the applicant.
10. I agree with the following summary of the conclusions reached by Ms Smith, as set out in the respondent's final written submission: 57. Ms Smith reached the following conclusions based upon the medical reports provided to her and her assessment of the Applicant: 57.1. the more fatigued the Applicant becomes, the greater her pain; and the greater her pain, the more tired and fatigued she is likely to become; 57.2. fatigue is likely to increase the risk of the Applicant falling; 57.3. the Applicant's pain is likely to increase as the week progresses and this increase in pain is likely to impede the Applicant's ability to meet the duties of her role, especially as the Applicant utilises pain management strategies of distraction and visualisation; 57.4. the pain management techniques utilised by the Applicant are likely to adversely impact her ability to fully concentrate and attend to the behavioural and educational needs and requirements of students; 57.5. the Applicant's difficulties with pain are likely to significantly affect the Department's ability to satisfy its WHS requirements including those relating to duty of care and providing a safe workplace; 57.6. the Applicant is unable to manage stairs with crowds; 57.7. the Applicant is at risk of falling particularly given her comments about placing a pot plant on her foot without realising it, so that there is a risk of tripping over school bags or even a student in close proximity to her; 57.8. given that an ability to cope with stressful situations is part of the teacher's duties (including dealing with the unpredictable nature of children47) in the context of the various medical opinions as to the Applicant's psychological condition, the consequences and likelihood of any worsening of that condition would place an unacceptable level of risk on return to work with the Respondent; 57.9. a barrier to the Applicant's return to work is the requirement on her employer to take all reasonably practicable steps to provide a safe workplace to prevent aggravation of her condition(s) (both physical and psychological) and/or re-injury; and 57.10. returning the Applicant to work is highly unlikely to deliver a safe return to work.
11. I find that the evidence supports the following extracts from the respondent's final written submission concerning the impracticability of putting in place adjustments or control measures to assist the applicant to return to her role: 85. There are no reasonably practicable combination of "controls" / "adjustments" that could be put in place to address the risk of injury arising from the Applicant: 85.1. falling or tripping on varying ground surfaces on the school campus; 85.2. slipping on such surfaces in wet weather conditions; 85.3. falling on stairs; 85.4. bumping into school furniture; 85.5. tripping over school bags, items of clothing and other objects left lying around by school children; 85.6. falling on or bumping into children lying on the floor or making unpredictable movements; 85.7. being jostled by the hustle and bustle of children in the playground before school, during recess, lunchtime and after school; 85.8. suffering from fatigue and increased pain and stress from the day to day activities of dealing with children including those with disabilities and developmental issues which may require special attention; 85.9. suffering from stress due to interpersonal conflict between children or disobedient children. Dr Samuell stated that it was "virtually impossible for an employer to ensure that all stressful situations are avoided"; and 85.10. suffering from the "overwhelming and exhausting" pain of the combination of travelling, walking, teaching and exercising pain management techniques. 86. Dr Grant Walker, Consultant Neurologist, concluded that carrying out the duties of a teacher would present a danger to the Applicant, her colleagues and to the children. He could not think of any reasonable adjustments that could alleviate that danger. 87. In her Written Submissions, the Applicant has identified a large number of control measures or reasonable adjustments that she says could have been implemented by the Respondent to meet any risk to health and safety. These submissions ought be rejected because they were not put to the Respondent's witnesses, so they could be dealt with during the course of the hearing. 88. In any event, the very nature of the proposed adjustments or control measures indicate that they would not be reasonably practicable (from a logistical or costs perspective) nor would they be consistent with the Applicant carrying out her duties as a teacher. Without setting out the entirety of the proposed measures suggested by the Applicant, they include those set out below (with the response of the Respondent is in italics): 88.1. that the Applicant take neuropathic pain medications; and undertake visualisation strategy (whatever that is) at recess and/or lunch period97 (but the Respondent could not impose those things on the Applicant nor monitor them, particularly when the Applicant says that she has not taken any medication in 4 years, despite that being a condition nominated by Dr Phan); 88.2. lying down on the First Aid bed to avoid perceived (sic) concerns with fatigue or cramps; (but does not say how often this would be required or what to do if a student was in the First Aid bed); 88.3. fill potholes, manage school bags, properly drain water that creates slip hazards and manage student behaviour; (the cost of filling all potholes and installing a drainage system to prevent slip hazards would be high and there is no strategy that would manage student behaviour to prevent jostling, leaving bags, raincoats around); 88.4. arranging for late start or finish times or longer breaks (this could not be managed because the Applicant, as an EALD teacher, would be required to be present during classes run by the substantive teachers who would have specified starting and finishing times); 88.5. avoiding carrying heavy objects (this would interfere with the Applicant carrying resource material to classrooms); 88.6. arranging for the Applicant to stand adjacent to a fixed object whilst undertaking playground duties, such as a handrail, flagpole, tree or seat; and minimise walking by assigning her to playground duties close to the administration work position and teaching rooms; (this means that the Applicant would not thereby be effectively supervising the students nor would she be able to intervene in disputes, or help with injured children); 88.7. minimise use of stairs; (this could not be done when, as an EALD teacher, she is required to be present during classes which are held all over the school campus); 88.8. conduct a workplace stress analysis of the school and use the findings of that analysis to instruct the whole school community (presumably including children, parents, teachers and other members of the community who visit the school) to control and manage stressors to the Applicant; (this could not be done); 88.9. have the Applicant always use a lift to upper level classroom; (many of the schools on the Applicant's List do not have lifts); 88.10. only use stairs once students have finished using them; (this can neither be enforced or monitored by the school and, in any event, would mean that the Applicant would be late to every class); 88.11. Implement an awareness program across all teachers, staff and students as to the Applicant's disability and the need to provide her with adequate space on the left­ hand side of stairwells; (however, this would not control children who may not know their left from their right- and it could not be enforced) 88.12. seek assistance from other staff to carry materials and objects; (the Respondent could not direct other staff to take on those duties); 88.13. in an emergency, provide an identified staff buddy to assist the Applicant; (whilst this might address the Applicant's needs, it does not address her duties to the students in an emergency and the Respondent could not direct other staff to take on those duties); 88.14. in an emergency, provide a separate identified refuge for the Applicant to walk to from where emergency services would retrieve her; (whilst this might address the Applicant's needs, it does not address her duties to the students in an emergency); 88.15. put in place control measures to support the Applicant so she does not create a psychological hazard for colleagues and others; (this does not identify what possible measures could meet that criteria); 88.16. implement of "a buddy system" to support the Applicant during her return to work; (the Respondent would not be able to direct other staff to take on those duties); 88.17. provide an Accredited Rehabilitation Provider for the Applicant's return to work; (but does not specify the nature of the duties of the Provider or how the school would bear that cost); 88.18. adjust the timetable to provide for appropriate rest breaks in order to control the risk of fatigue; (this would mean altering a major part of the school's timetable, because, as an EALD teacher, the Applicant is required to be present during classes held all over the school and in all grades); 88.19. vary the number of days worked and the part-time working schedule so as to provide rest days in between each working day; (this would be dependent on the individual school's needs).
12. I find, on the basis of the evidence before the Commission and, in particular, the workplace assessment report of Ms Smith, that, at the time of her medical retirement, the applicant was not able to perform the inherent requirements of the role of an ESL teacher in a primary school. To allow the applicant to return to that role would not have been consistent with the respondent's work health and safety obligations.
13. The decision to medically retire the applicant was made by Ms Simmons. I also had the benefit of observing Ms Simmons giving her evidence under cross-examination and agree with the submission put on behalf the respondent that the Commission would accept Ms Simmons' evidence as honest and forthright. I reject entirely the submission put on behalf of the applicant that Ms Simmons' decision-making was affected by apprehended or actual bias. I note that, following a complaint by the applicant, Thompson Geer, solicitors, were engaged by the respondent to investigate complaints by the applicant about the actions of Ms Simmons in her capacity as Executive Director, Public Schools NSW. That investigation concluded that none of those complaints was substantiated.
14. It follows that I find that the termination of the applicant's employment by way of medical retirement on 29 March 2017 was neither harsh nor unreasonable nor unjust. The applicant's unfair dismissal application must be dismissed.

Orders

1. I make the following orders: 1. The unfair dismissal application filed by Margaritte Colefax on 19 April 2017 is dismissed. 2. On the application of the respondent, I will hear the parties on the issue of costs. John Murphy Commissioner

Amendments 13 June 2018 - Various Amendments made 10 July 2018 - Paragraph 5 - Sentence 2 amended to add the word "not". 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: 10 July 2018