Melanie Longbottom (nee Butler) v South Eastern Sydney and Illawarra Area Health Service

Melanie Longbottom (nee Butler) v South Eastern Sydney and Illawarra Area Health Service - [2009] NSWIRComm 1090 - NSWIRComm 2009 case summary — Zoe

[12]

For the Applicant 19 Mr Shoebridge, for the Applicant, raised the following in final submissions: (a) The Applicant sought reinstatement to Shoalhaven Hospital (and not Shellharbour Hospital). (b) The Applicant's general practitioner certified her fit for full duties at Shoalhaven Hospital, in the position of AMIHS Aboriginal Health Education Officer. This medical evidence was not challenged. (c) The Respondent witness, Ms Jones, claimed that the Applicant's general practitioner misunderstood the duties to be performed by the Applicant and hence his assessment of her fitness for the Shoalhaven position was flawed. This claim by Ms Jones is rejected by the Applicant, who asserted that her treating doctor had a full understanding of the job position in question. (d) Ms Jones gave evidence that the competing Shoalhaven position and the Shellharbour position are essentially identical. However, the latter position (according to documentary evidence) has greater psychosocial demands (stressors) than the Shoalhaven position for which the Applicant contends. (e) Ms Jones claimed that the Shellharbour position would have less psychosocial demands because the Applicant would have support staff in the hospital and that should reduce the stress. This claim should be rejected as there was no medical evidence to support it. (f) The Applicant's performance of the Shoalhaven position will be supported by a co-worker (the midwife) and by her general practitioner and psychologist, should she need them. (g) The Applicant seeks reinstatement to the Shoalhaven position and this position is employment of the kind contemplated by section 243(2) of the Workers Compensation Act 1987. (h) The Respondent seeks that the Applicant be reinstated to the position at Shellharbour Hospital but that position is " less advantageous " to the Applicant than Shoalhaven hospital, because of the travelling time required to travel to Shellharbour hospital: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (o/b Peter Riley) v WorkCover Authority of New South Wales [2006] NSWIRComm 108 at para. 110 ("Riley's Case")

[13]

For the Respondent 20 Mr Sullivan, for the Respondent, put the following in final submissions: (a) The Applicant has sought a position which she did not hold at the time of her dismissal. (b) The position she seeks might be described as employment of a kind if the position sought at Shoalhaven Hospital is described as employment in the area of Aboriginal health. (c) The position for which the Respondent says the Applicant is fit to perform at Shellharbour Hospital is in the area of Aboriginal health and hence is employment of a kind. In the alternate, if the Commission is of the view that the Shellharbour position is not employment of a kind, then it is employment of a different kind. (d) If the Commission is of the view that the Shellharbour Hospital role is employment of a kind, then the legislative question as to whether the role is less advantageous to the employee, does not arise. (e) If the Commission views the Shellharbour Hospital role as being not employment of a kind, then the Commission can still reinstate the Applicant to the Shellharbour Hospital, provided it is a role not less advantageous to the employee. (f) The legislative framework of section 243(1) requires that the Commission must be satisfied that the worker (the Applicant) is fit for the role. The medical evidence provided by the Applicant as to her fitness for the Shoalhaven Hospital role is not to be considered in a vacuum. Thus, the Respondent has a common law duty of care to provide a safe working environment for all of its employees: section 8(1) of the Occupational Health and Safety Act 2000. The Respondent will be in breach of its above duty should the Shoalhaven Hospital role not be a safe role for the Applicant. (The Commission was referred to evidence in support of this submission as to medical fitness/safety). (g) In connection with the foregoing submission, the Respondent stated that the level of support to be provided to the Applicant in the Shellharbour Hospital role, makes that role the better one for the Applicant. (h) The Applicant raised the issue of the distance to travel, in order to carry out the Respondent's preferred work role at Shellharbour Hospital. That is, the Applicant said that role would require more travel time than the Shoalhaven Hospital role and she did not have access to the family car. The Respondent submitted that that issue in itself does not make the Shellharbour Hospital role less advantageous. (i) Depending on the type of reinstatement order made, the Commission should also have regard to the amount of lost remuneration ordered.

[28]

That application then raises the second hurdle for consideration - the Applicant's fitness for the role. In considering that issue, the Commission will be re-examining later in this Decision, the Respondent's submission that the Applicant had failed her job interview for that role. 45 The Applicant's application for the unsuccessful AMIHS Aboriginal Health Education Officer role was made by letter of 24 July, 2009 and pursuant to section 241 of the Workers Compensation Act 1987. That application was rejected by the Respondent. The Applicant thence filed her section 242 injured employee application on 6 August, 2009. 46 That injured employee application came on for conciliation. The Applicant deposed that she understood from her legal representative (arising out of conciliation before myself) that she would be reinstated to the role for which she had unsuccessfully been interviewed. She understood this was conditional on her being able to provide a medical certificate from her treating doctor (Dr Morgan), stating that she was medically fit for the role. This medical assessment required the doctor taking into account two documents being the Position Description and the Job Demands Checklist. (Ex 2, paras 37 to 39). 47 The Respondent provided the said two documents to the Applicant. (Ex 2 - Annex ML 10). 48 The Applicant saw Dr Morgan on 9 September, 2009 and he assessed the Applicant fit for the AMIHS Aboriginal Health Education Officer role based on the said two documents. Dr Morgan issued a WorkCover Medical Certificate on 9 September certifying the Applicant as fit for that role. (Ex 2 - Annex ML 11). 49 The Respondent declined to offer the role to the Applicant, despite Dr Morgan's assessment. 50 The role in question was not one carried out entirely in Shoalhaven Hospital. Some 70% of the role is community based work. The worker in this role would be working amongst the Aboriginal community by themself or with the midwife attached to this type of work. 51 The witness statement of Angela Jones describes the role for which the Applicant has applied (Ex 7 - paras 8 to 12). Thus: 8. The AMIHS AHEO will be required to encourage and educate women on the importance of seeing health professionals regularly throughout their pregnancies, good nutrition during their pregnancy and post natal care for themselves and their babies. The position holder will also need to provide support and care to women who have miscarried, have difficult pregnancies, have still births and have difficult births. 9. The Jobs Demand Checklist in the position description provides under "Psychosocial Demands" that the position holder will be required to deal with distressed people, aggressive and uncooperative people and distressing situations including child abuse, viewing dead/mutilated bodies. 10. One of the primary roles of the AMIHS AHEO will be to liaise between the midwife and the Aboriginal community and to educate the community about the services offered by AMIHS. The position holder will be exposed to confronting and emotionally distressing situations. It is highly likely that the position holder will be in regular (i.e. almost daily) contact with: a. consecutive instances of cot deaths; b. still-births; c. underweight/malnourished babies; d. Department of Community Services interventions where children are removed from their families. e. domestic violence; and f. drug and alcohol abuse. 11. In addition, the midwife will ask clients of the AMIHS program psycho social screening questions relating to the physical and mental health of the client. These questions include whether the client has been subject to sexual abuse. The AMIHS AHEO is exposed to this on an almost daily basis when a new client is booked to receive an AMIHS service. In many instances the answers to these questions are challenging and emotionally exhausting. 12. The position is in a very small team with only the midwife assigned. Both positions report to me and I am also responsible for the inpatient maternity services and the outpatient maternity services. 52 Despite Dr Morgan certifying the Applicant fit for the AMIHS Aboriginal Health Education Officer role, Ms Jones was opposed to the Applicant undertaking that role. She deposed that Dr Morgan's assessment (as to the Applicant's fitness for the role), showed that the doctor "misunderstood" the role. She added in the explanation: "For example, the doctor advised that "extreme examples of the incidents [cot deaths, domestic violence, drug and alcohol abuse, Doc cases, aggression] will not be a common occurrence". In my view, that comment is misconceived. As stated in paragraphs 8 to 11 of my affidavit, the role of AMIHS AHEO would encounter many challenging and confronting situations on a day-to-day basis" (Ex 7 - para 37) 53 The paragraphs 8 to 11 from Ms Jones' affidavit have been duplicated above at paragraph 51 of this Decision.

[29]

Within those extracted paragraphs, Ms Jones said that the holder of that AMIHS AHEO role (being the role sought by the Applicant), will be exposed to confronting and emotionally distressing situations. Ms Jones' affidavit then lists those situations, such as cot deaths, still births etc. Further, those situations will highly likely occur on an almost daily basis and hence have to be met by the holder of that position on an almost daily basis and hence have to be met by the holder of that position on an almost daily basis. 54 It was the Respondent's case that the Applicant was not suited to those confronting situations, on an almost daily basis, because of the reason for the Applicant's workplace injury. 55 Thus, the Applicant had been frequently exposed to highly stressful situations as the Hospital Aboriginal Liaison Officer working in the wards of Shoalhaven Hospital. For example, she cared for Aboriginal patients who had been severely beaten up and were in Intensive Care fighting for their lives, she supported Aboriginal patients struggling with a serious illness; she managed an aggressive and abusive person, whilst a security guard stood outside; and provided support to families of the deceased. She was on call 24 hours a day, seven days a week. The foregoing situations caused her a great deal of personal stress and anxiety and led to her being certified unfit for work by Dr Morgan. (Ex 2 - paras 6 to 9) 56 Having considered the evidence and submissions of the parties on this issue of the Applicant's fitness for the AMIHS Aboriginal Health Education Officer role, the Commission concludes that Dr Morgan's assessment as to the Applicant's fitness for that role has not been successfully challenged by the Respondent's case. The reasoning of the Commission for this conclusion is set out below. 57 Firstly: The starting point for the Commission's deliberation is the fitness assessment made by a doctor (Dr Morgan). His fitness assessment is his opinion but it was the only medical opinion provided to the Commission. Neither Ms Hill (Deputy HR Manager) and Ms Jones, a nurse (Manager, Maternity Department of the Shoalhaven Hospital) could challenge that medical opinion of Dr Morgan. (Ms Hill: Tr 18/11/09, p32, line 41 to 46 and Ms Jones: p47, line 28 to p48, line1) 58 Secondly: Ms Jones asserted in her affidavit, that Dr Morgan "misunderstood" the AMIHS AHEO role, which he approved the Applicant medically fit to carry out - and therefore, the Applicant would not be fit for the role.

[32]

The frequency key is as follows: Job Demands Frequency Key I - Infrequent - Intermittent activity exists for a short time on a very infrequent basis O - Occasional - activity exists up to 1/3 of the time when performing the job F - Frequent - activity exists between 1/3 and 2/3 of the time when performing the job C - Constant - activity exists for more than 2/3 of the time when performing the job R - Repetitive - activity involved repetitive movements N - Not Applicable - activity is not required to perform the job 61 These five psychosocial demands for the AMIHS AHEO role, have a frequency rating of either Infrequent or Occasional. The meaning of the frequency was given by Ms Jones in respect of the psychosocial demand: Distressed People which had an Occasional frequency. Thus, she agreed that this information meant the occupier of the role would come into contact with distressed people occasionally - that is, contact of up to a third. Put another way, Ms Jones agreed that contact, by the occupier of the role, with distressed people would occur somewhere between infrequent and up to a third when performing the job. (Tr 18/11/09 - p43, line 44 to p44, line 29) 62 The cross-examination then focussed on the last itemised psychosocial demand and its examples of viewing dead/mutilated bodies. Ms Jones agreed that these were examples and that it was not being said in this Jobs Demands Checklist that the occupier of the role will be exposed specifically to child abuse or viewing dead or mutilated bodies. (Tr 18/11/09 - p44, line 41 to 44) 63 Ms Jones later in cross-examination, confirmed that she was not saying that an occupier of the role, would be exposed to dead people up to a third of the time on the job. (Tr 18/11/09 - p45, line 44 to p46, line 4) 64 She then confirmed that infant mortality in the Shoalhaven or the Illawarra region was relatively low, and that instances of cot deaths was relatively uncommon. (Tr 18/11/09 - p46, line 46 to p47, line12) 65 The next lot of questions to Ms Jones, then addressed her claim, in her affidavit, that the challenging and confronting psychosocial demands of the AMIHS AHEO role, would highly likely occur on an almost daily basis. It was put to Ms Jones that it would not be accurate to state that the psychosocial demand example of cot deaths, would occur on an almost daily basis. This was indeed the statement/claim made in her affidavit and Ms Jones now agreed (to her credit), that it was not accurate to make that claim. In later cross-examination, Ms Jones explained that her affidavit was not intended to read that cot deaths would occur every day and nor was her affidavit intended to read that each of the psychosocial demands would occur every single day. And she agreed that there could be varying levels/grades of domestic violence or drug and alcohol abuse to be faced by the Applicant and midwife acting as a team. Further, she agreed that the frequency of still births would be relatively rare. (Tr p51, line 21 to p54, line 21) 66 Thirdly: There was evidence from Dr Morgan that the Applicant would have "sufficient emotional strength" to deal with any psychosocial demands of any extreme nature, until such time that she could seek the assistance of her general practitioner or a psychologist. (Ex 2 - Annex ML 11: Letter of Sassu to the Applicant, dated 18/8/09) 67 Fourthly: The doctor's report of the Applicant's fitness, was further bolstered by his comment that the Applicant would have the assistance of a co-worker (a midwife) on the job. 68 Ms Jones concurred, under cross-examination that she had no reason to challenge Dr Morgan's opinion on the Applicant's mental wherewithal to comfortably carry out the role. (Tr 18/11/09 - p49, line 10 to 42) She also agreed that the midwife would have the skills to provide both physical and emotional support to the Applicant if any difficulties arise on the job (and vice versa as in a team effort). (Tr p50, line 3 to 31) 69 In summary of this psychosocial demands issue, the Commission finds that the evidence shows that the examples given against each of the five psychosocial demands are just examples. 70 It is not correct to assert that all those examples shall occur in a given time frame. Some of the examples can arise on the job and the frequency of their occurrence on the job, for the AMIHS -AHEO role, is infrequent or occasional. 71 The description, "occasional", means that the occupier of the role could come into contact with one of those examples, up to one third of the time on the job. It does not mean the contact will be one third of the time; nor does it mean contact for one third of the time for all examples. 72 Importantly, the Commission finds that the assertion by Dr Morgan that these psychosocial demands "will not be a common occurrence" (and hence not a common occurrence for the Applicant), was a statement factually consistent with the evidence surrounding the issue of psychosocial demands and their frequency.

[36]

The Respondent's alternate reinstatement order 79 The Respondent's case that the Applicant would be better suited working in Shellharbour Hospital, necessitates a consideration of that work (employment of a kind) and a comparison with the work (employment of a kind) sought by the Applicant (Shoalhaven Hospital). 80 The Shellharbour Hospital role is identified as: Aboriginal Health Education Officer, New Directions - Mothers and Babies. 81 The Respondent, per Ms Cathryn Hellams (Manager, Workforce Services), wrote to the Applicant on 28/10/09, in response to the Applicant's request for reinstatement to the Shoalhaven Hospital. The letter stated that it did not accept that the Applicant was fit to be employed in the Shoalhaven Hospital role and gave supporting commentary. The letter proposed the Shellharbour Hospital, as a more suitable role. A Position Description and Jobs Demands Checklist for the Shellharbour Hospital role was attached to the letter. (Ex 7 - Annex AJ 2) 82 As to these two competing roles, the evidence showed that the two job descriptions are identical, as advised by Ms Jones. (Tr p46, line 24 to 36) 83 In the key important area of psychosocial demands, listed in the Jobs Demands Checklist, the two roles are the same - except for one frequency rating. Thus, the two roles shared the same frequency rating (Indifferent and Occasional) for four of five psychosocial demands. The difference is against the psychosocial demand of: Unpredictable People. For the Shoalhaven Hospital role, this factor had an Indifferent frequency rating. But for the Shellharbour Hospital role the frequency is one level higher in frequency, that is, Occasional. 84 Given that the two roles are virtually identical, then this factor is not a reason for the Commission to decide, in the exercise of its discretion, that the Applicant would be better suited to the Shellharbour Hospital role. 85 There is a difference in the two roles in terms of the working environment and this difference was relied upon by the Respondent to support its preferred option for the Applicant's work location. This difference goes to the issue of the size of the team work support for the Applicant. 86 For the Shoalhaven Hospital role, the Applicant will only have one support person, a midwife. This makes for a team of two persons.

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Judgment (52 paragraphs)

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Cases Cited (6)

Cited By (1)