chell could be accomodated, with her restrictions, back into the workplace that is what the Hospital would like to do." (emphasis added)
The recommendations of the Occupational Therapist, Ms Elaine Wilson as per the minutes of the meeting are as follows,
- That she does not return to regular nursing duties as she was doing formerly.
- That an alternative job be sought for her in an administrative capacity involving her nursing, e.g. medical receptionist, blood bank, community health. She is computer literate and has other administrative qualifications.
- That she is referred for hydrotheraphy at Lourdes Hospital, and continues to maintain her walking routine.
- That she is provided with a suitable office chair when she resumes work, and any other office accessories that will allow her to function and work comfortably e.g sloping board
- That she does not bend or move her trunk beyond the medical restriction of "comfort".
- That she does not pick up objects and weights from the floor in her work, nor carry any weights greater than 4-5 kgs.
7 That she avoid running, squatting , kneeling , work that requires good balance and negotiating high steps.
- That her physical condition is reviewed in two months time.
- That a work site visit be carried out when she has been placed in suitable work.
- That she tries out a TENS machine for use when her back aches.
Mr Cluff then advised the meeting that bearing in mind the restrictions of Mrs Mitchell and the recommendations in the report, Sister Baffis had prepared some options of employment. Option No 1 was Clerk, option 2 was Triage Nurse,
9.30 am - 6.00 pm and option 3 was Triage Nurse Monday, Tuesday, Friday-----Wednesday and Thursday Oncology clinic. Option 3 was accepted by the applicant and she returned to work shortly after the meeting in the position provided.
In an analysis of the minutes of the meeting of the 28 October there appears to be an understanding between the parties that although the accepted position of triage nurse would not become a full time position, the Hospital would fit the applicant into an appropriate position when one arose. The minutes regarding this understanding are set out below,
"In reply to a query from Ms Arnold regarding the expected life of the position, it was advised that it would be up to Sister Baffis, however, should an option be presented with the expectation of getting Mrs Mitchell into a position, then the Hospital would, "stick with it".
After her return to work in the position of Triage nurse the applicant had cause to complain to Sister Baffis that she was not being treated fairly by certain members of the hospital staff. She said that they expected her to undertake hands on work, functions that were not part of the light duties set out in her statement of duties. She said she had been made to feel embarrassed in front of Doctors and patients and their relatives, when Debbie Sloane had snapped at her to get a wheel chair and bring a patient inside, when under her light duties she was not to undertake such work and had requested a wardsman to do it. Although a meeting had been arranged to consider the applicant's complaints she said she felt that there was a lack of understanding concerning her rehabilitation program among the staff and that they resented her having the position.
In March of 1995, the applicant sustained a further back injury when she opened the top desk draw of a filing cabinet and the cabinet overbalanced. As a result of this injury she arranged to take a week off work and her evidence was that she recovered fully within six to eight weeks, returning to work in the same position. Her evidence concerning her treatment by other members of the hospital staff, during the period around February to May 1995 was,
"I was feeling very stressed out.............. I felt that I was being victimised and harassed due to what I saw as the lack of knowledge of the return to
workplace rehabilitation, and the attitude of a minimal number of the staff."
As a result of this stress the applicant said that she was required to go on leave and was referred by her general practitioner to a psychiatrist for specialist treatment. She was subsequently prescribed antidepressant medication and sleeping tablets and is currently still under this treatment .
On the 29 August 1995, a meeting was convened for the purpose of the applicant's return to work following the period of leave due to stress. The minutes of this meeting were marked as exhibit R13 and the introductory paragraph records Ms Whatman, the New South Wales Nurses Association representative as stating ,
"Ms Whatman explained that the aim of this meeting was to undertake getting Sister Mitchell back to work on a rehabilitation program, so that she may regain her self-esteem and confidence, whilst working in the Oncology Unit of Dubbo Base Hospital."
From the minutes of this meeting it appears that Ms Job from the Commonwealth Rehabilitation Service is of the view that the applicant is keen and highly motivated to return to work in the position she held prior to taking leave. However, Mr Ayrton, the Chief Executive Officer advised that a detailed set of guidelines for the Hospital and the applicant would be required before the Hospital could consider the proposed program. The minutes then record Mr Ayrton as saying,
".....that whilst the hospital was totally committed to helping staff in the predicament that Sister Mitchell found herself in, it may be that Sister Mitchell is too sensitive to comments made by other staff and it was very difficult for the hospital to guarantee that somebody would not say something that Sister Mitchell would take offence at."
The minutes record the end of the meeting as follows,
"...... Mr Ayrton advised that he had spoken with Sister Christopherson, the Registered Sister In-Charge of the Oncology Clinic who was happy to have Sister Mitchell work in the unit. It was pointed out that Dubbo Base Hospital does not have funding for an extra position. The Dubbo Base Management was not prepared at this stage of the meeting to say that Sister Mitchell could be accepted back without detailed list of duties. However, the hospital would be prepared to consider a written proposal providing suitable mechanisms were put in place. This proposal must detail very clearly objectives to be achieved by Sister Mitchell, as well as clearly spelling out the process for the hospital or Sister Mitchell to activate should there be a problem.
It was agreed by all that this proposal be given to Dubbo Base Hospital Management by 5/9/95. Dubbo Base Hospital Management would consider the proposal and give a reply by 13/9/95.
It was agreed by all to meet at 11.30 am, on 13 September 1995 at Dubbo Base Hospital in the office of the Chief Executive Officer.
Ms Kim Job subsequently prepared the proposal as requested at the meeting of the 29 August 1995 and hand delivered it on the 6 September to the hospital administration. Ms Job agreed in cross - examination that the duties she had prepared were essentially the same as the duties the applicant had been undertaking as Oncology clerk in her prior position.
On the 13 September the applicant attended the meeting, the purpose for which she said was to organise her return to work and the hospital to approve a plan. The meeting was attended by the applicant, Kim Job, the rehabilitation counsellor, Robyn Whatman, from the Nurses Association, Sister Baffis the Charge Nurse from the Oncology Unit and Mr Cluff, the Personnel Officer. After a brief discussion the applicant was handed an envelope containing a letter dated the 11 September, from the General Manager of the Macquarie Health Service the contents of which are set out hereunder,
"Mrs D. Mitchell,
Dubbo Base Hospital.
Dear Delia,
I am writing in connection with the injury that you sustained at Dubbo Base Hospital on 12 October, 1989 and to your subsequent claims in relation to such injury.
Your position has been discussed with the Personnel Officer, the Hospital's Risk Management Co-Ordinator and our insurers and all medical reports in connection with your accident have been viewed.
It is noted that despite numerous attempts by the hospital to assist you with your rehabilitation all our efforts have been unsuccessful. Given your injuries and the restrictions resulting from same, the hospital is unable to agree to the most recent rehabilitation plan submitted on your behalf by CRS. Therefore, I regretfully advise that your services will be terminated on 13 September, 1995.
May I take this opportunity to thank you for your services to the hospital and I wish you well in the future."
The applicant said on reading this letter she was shocked as she was under the impression that she would be going back to work after the meeting and that prior to this she had had no indication from the hospital to the contrary. Ms Kim Job gave evidence that the hospital had not communicated with her since the meeting of 29 August 1995.
Mr Ayrton, the Chief Executive Officer, gave evidence that,
"...Upon receiving the rehabilitation plan, in actual fact to the best of my recollection Mr Cluff and I met to discuss this rehabilitation plan, and it was obvious to me that Mrs Mitchell was going to be unable to return to work in a nursing position."
This statement by Mr Ayrton can only be described as ridiculous. It was quite clear as far back as the meeting of the 28 October 1994 that the applicant would never return to a position of hands on nursing. This fact was again confirmed at the meeting held on the 29 August 1995 and Mr Ayrton was well aware of it. To now suggest that the reason for termination was that the applicant could not be rehabilitated to the function of a nursing sister by the proposal put forward by Ms Kim Job can only be described as deceitful. The fact is that the applicant had been progressing quite well on the return to work plan implemented after the meeting of the 26 October 1994, Mr Cluff said that he thought things were progressing before the applicant went off on stress leave. When Mr Cluff was asked why it was necessary to implement a new plan after the applicant wanted to return to work, he was unable to offer an explanation, his reply was,
"The idea was to look at what was occurring - the plan - and its relevance to continued - or continuation. That was at the meeting later on that year."
It was very clear from Mr Cluff's evidence and from the contents of the minutes that he wanted to get rid of the applicant. He was less than truthful with regard to his evidence concerning his knowledge of the training and courses that the applicant had undertaken. In his evidence he said he was not aware of the courses the applicant had undertaken, however on page 6 of the minutes of the meeting of the 26 October 1994 this evidence is contradicted.
Mr Cluff was asked by counsel for the applicant,
"Are you seriously suggesting today, or even as at September of last year, that nowhere within the Macquarie Health Service could there be found a position for this lady?
The witness replied,
"No, I'm not suggesting that at all.
Counsel then asked,
"You are not; so the reason she was terminated was because she could not return to work 100 per cent pre-injury fit. Is that right?
The witness replied,
"No, it wasn't.
Counsel then asked,
"Well, what was the reason?"
And the witness replied,
" There was a general inability for Mrs Mitchell to be able to perform the full functions, thats true. There was also an occupational health and safety aspect, as I perceive, in placing an employee into a potentially hazardous work environment with the restrictions."
This is an curious piece of evidence taking into account that the applicant was to return to the duties she had already been undertaking to the satisfaction of Mr Cluff prior to her stress leave. Mr Cluff then went on to agree with the applicant's counsel that there were any number of jobs that the applicant could perform in the Macquarie Health Service taking into account her qualifications and experience and her physical restrictions. He also admitted that he had not considered looking at any alternative employment that the applicant could undertake with the qualifications she had or the possibility of any further training.
Having considered the facts and the circumstances of this matter, the answer to the question, was the termination for a valid reason, connected with the employee's capacity and conduct or based on the operational requirements of the undertaking, establishment or service, must be no. It is certainly clear that there were many positions that the applicant could have carried out within the Macquarie Health Service taking into account her extensive experience and qualifications in the nursing and administrative field, Mr Cluff the Hospital's personnel officer agreed with this in his evidence. In fact, the applicant was already carrying out such tasks at the time she went on stress leave and should have been returned to that position after her leave. While this position was of a supernumerary nature the applicant had been led to believe that as soon as a full time position came available that she was qualified for she would have been offered the appointment. From Mr Cluff's evidence it is apparent that he did not
ever consider that the applicant could undertake any other duties other than full "hands" on nursing and never considered that she might be retrained. He even denied that he was fully aware of her other qualifications despite the applicant producing her resume at the meeting of the 26 October 1994.
With regard to Section 170 DE (2), I am satisfied that if the termination had been for a valid reason then considering all the circumstances of this case that the termination would have been , harsh, unjust and unreasonable.
In considering the law in relation to the question as to whether an employee is able to be reinstated to a position other than the original position held at the time of termination, the Court of Appeal in New South Wales has found that a worker performing light duties may be reinstated to that position State Rail Authority of New South Wales v. The Honourable Justice Bauer & Ors 1994 AILR 377. In his decision Sheller JA, with whom Kirby P and Meagher JA agreed, his honour endorsed Industrial Commissioner Bauer J's proposition with regard to rehabilitation as set out below,
".....The aim of rehabilitation, if such a consideration be relevant to the issues of construction raised, must surely be to intergrate workers into the workforce at a type of work that they can perform and to be useful that intergration requires the continuing provision of suitable employment. There is an obligation on the employers to assist and co-operate in such a purpose, an obligation contained not only in legislation but imposed on the employer by its position as a corporate citizen. If the employer terminated the employment of an employee who after a work related injury has been integrated into the workforce the subversion of the laudable aim of rehabilitation lies in the dismissal not the reinstatement."
In his conclusion Sheller JA was of the opinion,
"Implicit in the finding of Bauer J was a finding that Mr Tyrrell held two positions". This finding has all the hallmarks of a finding of fact. Even if it is in part a finding of law it must be within the jurisdiction of the appropriate tribunal. Further for my part, I regard it as entirely sensible to conclude that where the nature of the work done is substantially different, as it was in this case, the position held is different. As Bauer J pointed out, if a person is employed as a labourer, that person may hold a position, whether it has an express classification or description or not, whereunder heavy labouring work is required. By the same token, whether so classified or described, a person may hold a position whereunder only light labouring work is required. It is open to find that these are different positions. At the time he was injured Mr Tyrrell held a position which required him to do certain work which, since his injury, he has been found unfit to perform. At the time he was dismissed he was dismissed for reason that he was not fit for that employment although at the time of his dismissal he was engaged in different work for which he was fit."
Conclusion
Having considered all the evidence in this matter I am satisfied that the respondent, in dismissing the applicant, Mrs Mitchell, a nurse of some thirty five years service, the last nine with the respondent's Dubbo Base Hospital, contravened Part VI, Div 3 of the Act. I therefore order that,