Warren v Department of Education

Warren v Department of Education - [2009] NSWIRComm 1032 - NSWIRComm 2006 case summary — Zoe

[14]

BACKGROUND 3 The applicant is a woman who was 53 years of age when, on 15 September 2008, she received a letter of dismissal dated 26 August 2008. The applicant worked as a Teacher and in December 2007 she had been promoted to a position of Teacher and Assistant Principal at the Byron Bay Public School. 4 The applicant commenced employment with the Department in 1977. She resigned in about 1984 and returned to teaching work with the Department in about 1987. The applicant had an outstanding employment history. She received a number of awards in recognition for her high standards of teaching and her commitment and contribution to public education generally. Her letter of dismissal recorded "…your highly valued service to students, staff and the community over your 25 years of loyal service to public education." Exhibit 37 @ page51. 5 The applicant's dismissal was described as "medical retirement". The Department relied upon reports provided by HealthQuest and a further Functional Capacity Evaluation and Workplace Assessment so as to conclude that the applicant was "…unfit to perform the inherent requirements of your substantive position." Supra 6 The more recent events that led to the applicant's "medical retirement" commenced in 2005 when she requested to be transferred from Southern Cross School in Ballina to Byron Bay School. The transfer was granted on compassionate grounds because she had difficulties with driving a motor vehicle for periods of longer than about 15 minutes (travel sickness), or in low light conditions and at night. These motor vehicle driving difficulties were avoided or reduced by the transfer because the applicant lives at Suffolk Park which could be described as a "suburb" of Byron Bay. 7 At the time of the applicant's transfer from Ballina to Byron Bay, the Principal at Byron Bay School, Mr Dean Files, was made aware that the applicant was unable to perform some playground duties or teach sport. Initially these limitations did not present as significant problems and during term 4 of 2005 and in 2006, various other staff members swapped playground duties and sport classes were allocated to a RFF (relief from face to face) teacher. 8 In about September 2006 the applicant told the Principal, Mr Files, that she was allergic to certain paints, glues and other substances that might be used by building contractors or other persons performing maintenance and or construction work at the School premises. Mr Files treated this advice as providing further restrictions upon the work that the applicant could perform and he was alarmed at the potentially life threatening allergic reaction that the applicant could suffer. Consequently he wrote to the School Education Director expressing his concerns. 9 As a result of the concerns raised by Mr Files the applicant was referred to HealthQuest for a medical assessment. HealthQuest issued a report dated 9 January 2007 ("the first HealthQuest report"), which relevantly concluded that, "…Ms Warren should be fit for the inherent job requirements with some adjustments." Exhibit 37 @ page 12.3. The applicant continued to work during 2007 with her playground duties and sport teaching being accommodated by other staff members. She took long service leave during term 2 of 2007. 10 The applicant returned from leave in term 3 of 2007 and the accommodations for her playground duties and sport teaching were continued. However Mr Files remained concerned about the applicant's capacity to undertake her duties and he expressed greatest concern about the applicant's allergy. In July and August of 2007 he wrote again to the School Education Director seeking to have an urgent reconsideration of the conditions pertaining to the applicant's appointment at Byron Bay School. 11 In August 2007 the applicant was referred to HealthQuest for a second time. The applicant's second medical examination by HealthQuest occurred on 26 October 2007. The second HealthQuest report was issued in a document dated 10 January 2008. In the meantime the applicant received a letter from the Department dated 17 December 2007 Exhibit 3.. This letter congratulated the applicant on her promotion to appointment as an Assistant Principal at the Byron Bay Public School. The letter further requested that the applicant commence duty on 29 January 2008. 12 Although the second HealthQuest report concluded that the applicant "… would be capable of teaching with some adjustments", Exhibit 37 @ page 20. the Department telephoned the applicant and directed her not to return to work. Regrettably this information was not conveyed to Mr Files and he and other Executive Staff at Byron Bay School were awaiting the attendance of the applicant for planning meetings prior to the commencement of the 2008 school year. In due course Mr Files made contact with the applicant and clarified the reason for her apparent non-attendance at school in the position to which she had recently been promoted.

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THE EVIDENCE 20 This matter has included a significant amount of detailed medical evidence about the applicant. In the interests of privacy, only a summary of this material is necessary. There was also a considerable amount of evidence provided by former work colleagues of the applicant. Much of this material related to the means by which the applicant's medical requirements had been accommodated in the past. The witness evidence from many of these individuals was highly supportive of the applicant and could be described as very strong personal and professional endorsement of the applicant. 21 There was evidence of startling contradiction with expert medical opinion. The applicant has two separate medical issues that required workplace accommodation. Firstly, the applicant suffers extreme allergic reaction (anaphylaxis) to a substance named colophony. Colophony is a resin obtained by distilling turpentine with water and is found in adhesivies, sealants, lacquers, paints, some pine products, and a variety of other cleaning and industrial products. Secondly the applicant has a balance disorder arising from neurosurgery that she underwent in 2003. The balance disorder means that the applicant cannot run, participate in ball games, or supervise children in playground or sporting activies which involve quick movement. It was the balance disorder that produced significant differences in medical assesments. 22 The divergent medical evidence regarding the applicant's balance disorder has become an important issue, the resolution of which has been one important factor in the determination of this case. Essentially, evidence from one Occupational Therapist, Ms Leanne Gale, who provided the Department with a Functional Capacity Evaluation and Workplace Assessment Report, recommended that the applicant not return to mainstream (classroom) teaching. However evidence from another Occupational Therapist, Ms Lesley Stephenson stated that the applicant's "…impairment in balance could be accommodated with minimal changes in her workplace." Exhibit25 @ page 11. The nature and extent of the widely divergent opinions provided by these two medical professionals is encapsulated by the evidence that Ms Stephenson observed the applicant to balance on either leg for 30 seconds while Ms Gale reported that the applicant was not able to balance for more than 2 seconds on either leg. 23 A most surprising aspect of the evidentiary case advanced on behalf of the Department involved the absence of any evidence from the person who made the decision to dismiss the applicant. The decision to dismiss the applicant was taken by a Mr Peter Haigh who at no stage during the investigation into the applicant's medical problems, or at any time before the dismissal, had contact with the applicant.

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THE CASE FOR THE APPLICANT 24 At the Hearing the applicant was represented by Mr A Slevin, barrister. Mr Slevin provided both written and oral submissions. 25 Mr Slevin commenced his submissions by outlining the three primary aspects upon which the applicant challenged her dismissal. The first aspect for challenge to the dismissal involved a finding that HealthQuest did not conclude that the applicant was unfit to perform the duties of a classroom Teacher and Assistant Principal. Secondly, Mr Slevin submitted that the procedure followed by the Department to determine the applicant's fitness for duty was unfair and contrary to relevant Departmental guidelines. The third aspect of challenge to the dismissal involved Mr Slevin's assertion that the Department had failed to consider suitable alternative duties before dismissing the applicant. 26 The submissions made by Mr Slevin analysed the contents of the letter of dismissal of 26 August 2008. Mr Slevin noted that the author of the letter of dismissal Mr Haigh did not give evidence in the proceedings. Mr Slevin made submissions which involved a detailed examination of the Premier's Memorandum M2001-11 Revised Fitness to Continue Procedures (the Premier's Memorandum) Exhibit 39.. 27 Mr Slevin said that the Department did not follow the guidelines that were set out in the Premier's Memorandum. In particular Mr Slevin submitted that there had been no identification of any unjustifiable hardship that would said to be visited upon the Department if it was required to make adjustments in order to accommodate the medical condition of the applicant. Consequently according to the submissions made by Mr Slevin, the Department had failed to follow the established procedure as required by the Premier's Memorandum and therefore the dismissal should be held to be harsh, unjust or unreasonable. 28 The submissions made by Mr Slevin also examined the particular medical condition of the applicant, firstly, considering the allergic condition of the applicant and then secondly, examining the applicant's balance disorder. Mr Slevin submitted that the Commission should find that the applicant's allergic condition did not prevent her from performing her duties and was not a proper basis for the decision of the Department to medically retire the applicant. As support for this proposition Mr Slevin referred to the arrangements that had been in place at the Southern Cross School which accommodated the applicant's allergic condition. 29 Further, Mr Slevin submitted that the first HealthQuest report suggested that the applicant be referred for further Specialist consultation in respect of her allergic condition and as this had not occurred the Department had proceeded without properly concluding the nature and extent of the applicant's allergic condition. Mr Slevin said that the Commission should find that the applicant's allergic condition was not a disability that made her unable to perform the essential duties and responsibilities of her position. 30 Similarly Mr Slevin submitted that the Commission should find that the applicant's balance disorder did not prevent her from performing the essential duties and responsibilities of her position. Mr Slevin said that the applicant conceded that she had a balance disorder and slight right side hearing loss. Mr Slevin said that the balance disorder was a matter that could and had been, reasonably accommodated for a number of years. 31 Mr Slevin submitted that the conclusion and recommendations that had been made by the second HealthQuest report, established that the balance disorder could be accommodated primarily with rearrangement of the teaching and playground rosters such that the applicant would be replaced for sport teaching and perform other playground roster duties that did not involve the supervision of children who were involved in active pursuits. 32 Mr Slevin said that the evidence provided by eleven colleagues who had worked with the applicant at Byron Bay Public School, established that there was little inconvenience or resentment attached to the re-rostering arrangements that would be made in order to accommodate the applicant's balance disorder. Mr Slevin submitted that the Commission should find that there was no finding by HealthQuest that the applicant's allergic condition nor her balance disorder, prevented her from performing the inherent requirements of her job. Mr Slevin said that the decision to medically retire the applicant was contrary to the Act, Regulations and the Premier's Memorandum. Mr Slevin said that in the circumstances the dismissal of the applicant was harsh, unreasonable and unjust. 33 Mr Slevin made further submissions which were critical of the report provided by the Occupational Therapist engaged by the Department, Ms Gale. Mr Slevin said that the report provided by Ms Gale set out medical restrictions in similar fashion to the HealthQuest report, and included an additional five duties that the applicant was alleged to be unable to perform. Mr Slevin said that Ms Gale had extended her consideration of the applicant's medical condition beyond that which had been the subject of the analysis contained within the two earlier HealthQuest reports. 34 Mr Slevin said that the Commission should be prepared to adopt a preference for the HealthQuest report over the material provided in the report of Ms Gale. In this respect, Mr Slevin said that the observations and recommendations in Ms Gale's report were contradicted by the observations of the other Medical Practitioners. According to Mr Slevin, the Commission should find that Ms Gale's conclusions and recommendations went beyond the function of an Occupational Therapist and went beyond her expertise and were in fact wrong and in direct contradiction with a number of the other more qualified Medical Practitioners. 35 Mr Slevin made further submissions which criticised the Department for failing to properly consider any suitable alternative duties that may have been available for the applicant. Mr Slevin sought to rely upon Authority established in the case of PSA (on behalf of Peter Reilly) v WorkCover Authority of New South Wales. Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Peter Riley) v Workcover Authority of New South Wales ) Full Commission of Industrial Relations Commission of NSW, [Wright P, Boland J, Connor C], [2006] NSWIRComm 108 (26 June 2006). Mr Slevin submitted that there was no evidence that the Department considered suitable alternative duties for the applicant at all. Consequently, according to Mr Slevin, the failure to take reasonable steps to accommodate the applicant represented a further reason to find that the dismissal was harsh, unreasonable or unjust. 36 In summary Mr Slevin said that the applicant's dismissal was both substantively and procedurally unfair. Mr Slevin urged that the Commission find that the dismissal of the applicant was harsh, unreasonable and unjust. Mr Slevin said that there was no impediment to reinstatement as an appropriate remedy for the applicant's unfair dismissal. Mr Slevin urged the Commission to provide for Orders that reinstated the applicant to her former position.

[21]

THE CASE FOR THE DEPARTMENT 37 The Department was represented at the Hearing by Ms E Brus, a barrister. Ms Brus provided written submissions and she elaborated upon this documentary material with verbal submissions. 38 Ms Brus acknowledged that the applicant was a competent and valued teaching professional. Ms Brus said that the applicant's health unfortunately precluded her from continuing in the role of a Teacher. Ms Brus stressed that the applicant had not been dismissed because of misconduct. 39 Ms Brus made criticism of the submissions that had been made on behalf of the applicant. Ms Brus submitted that the Department had not been advised that the applicant would seek to rely upon the purported procedural flaws that had been detailed in the written submissions made on behalf of the applicant. Ms Brus submitted that it was simply unfair for the Department to now have to deal with these assertions as they had not formed part of the applicant's case. Consequently Ms Brus urged the Commission to disregard the paragraphs and other submissions made by the applicant that related to the alleged procedural flaws, particularly those relating to the detail of the Premier's Memorandum. 40 The submissions made by Ms Brus recounted the more recent history that had established the permanent medical incapacities that the applicant possessed. In particular, Ms Brus submitted that the Department had engaged in a careful and lengthy process before it took the step to medically retire the applicant. Ms Brus submitted that there should be no criticism of the procedure adopted by the Department. 41 Ms Brus made further submissions which stressed that the second HealthQuest report had established that the modifications or accommodations that had been made for the applicant became something that had to be considered as requiring permanent alteration. In such circumstances Ms Brus submitted that the Department was faced with a dilemma. In simple terms the Department had to consider whether the arrangements and accommodations that had been made to facilitate the applicant could be applied on a permanent basis. 42 Ms Brus submitted that the Department had given careful consideration to the issue as to whether the applicant's condition could be the subject of permanently imposed accommodations at Byron Bay. Ms Brus stressed that the further assessment made by the Occupational Therapist Ms Gale, was undertaken for the particular purpose of examining the circumstances as they applied at Byron Bay Public School. Ms Brus submitted that the findings made by Ms Gale confirmed the findings of HealthQuest. 43 Ms Brus submitted that alternative employment as a Teacher and Assistant Principal was simply not available at Byron Bay. Further, according to the submissions made by Ms Brus, the accommodation involving a fifteen to twenty minute driving limitation reduced the options available in terms of alternative employment to zero. 44 Ms Brus submitted that the evidence before the Commission demonstrated that it was not possible to permanently modify the workplace at Byron Bay Public School in accordance with the HealthQuest reports of 2007 and 2008. Ms Brus indicated that the support provided by colleagues of the applicant at Byron Bay Public School, although perhaps commendable, did not provide for arrangements that could be established permanently and as such did not represent a practical solution for the Department. 45 Ms Brus made further submissions which particularly urged the Commission to find that reinstatement of the applicant would be impractical. Ms Brus stressed that the fifteen to twenty minute driving condition meant that the only practical location for reinstatement would be Byron Bay Public School. According to Ms Brus, any reinstatement to Byron Bay Public School presented compelling impracticalities. Firstly the School had no staff vacancy and secondly, the location of the School could not accommodate the 500 metres exclusion zone that was part of the arrangements for dealing with the applicant's allergic condition. Consequently Ms Brus submitted that there was manifest impracticality for reinstatement of the applicant as it would necessarily involve reinstatement at the Byron Bay Public School. 46 In summary, Ms Brus submitted that the Commission should find that the dismissal of the applicant, although unfortunate, was a medical retirement that was essentially unavoidable because of the applicant's permanent medical incapacities. Consequently Ms Brus submitted that the dismissal was not harsh, unreasonable or unjust and that the application should be dismissed accordingly.

[40]

65 The first point of difference between the two reports involved the use of the word "FINAL" in terms of the recommendations made. It is apparent from the third paragraph of the first HealthQuest report that the prospect for review was open. However no further review is contemplated by the second HealthQuest report. 66 Secondly, any doubt about the permanency of the applicant's medical condition was removed by the second HealthQuest report. The words "…likely to be permanent" in the first report were replaced with "…PERMANENTLY UNFIT…" in the second report. The capitalisation of these words was considered to be of some importance and Mr Cloak made mention of the emphasis that Ms Malcolm had conveyed about the use of these words. 67 Would the confirmation that the applicant's medical condition was permanent be a discovery that could create a crisis sufficient to justify a direction not to attend work? Unless the second HealthQuest report revealed some aspect of the applicant's medical condition absent from the first HealthQuest report, it would simply represent confirmation of the permanency of the condition under which the applicant had been working during 2007. The confirmation of the permanency of the condition under which the applicant had been working could not of itself, provide justification for a direction not to work. Essentially it would represent no more than a continuation of the existing circumstances albeit now confirmed to be permanent. There would need to be some other issue arising from the second HealthQuest report to provide justification for the direction not to attend for work. 68 Thirdly, a comparison of the first paragraphs of the respective recommendations reveals that the second HealthQuest report specifies the position as "Teacher & Assistant Principal" and further qualifies with "in the present location." Importantly, from this additional specificity it may logically be inferred that the applicant may not be permanently unfit for the full range of duties in either a different position or a different location. 69 Fourthly, paragraph numbered 2 of the recommendations from both reports respectively set out the "restrictions" (first report) or "adjustments" (second report) that would need to be made to accommodate the applicant's medical condition. Upon analysis, the only additional restriction provided in the second HealthQuest report is "Supervision of students on extended excursions for several days". The other restrictions regarding; prolonged car travel; driving at night; PE/sport/playground; and colophony allergy, were all identified in the first HealthQuest report. Further, with the possible exception of a satisfactory risk management plan for colophony allergy, all of these restrictions (aka "adjustments"), had been accommodated so as to permit the applicant to work during 2007. 70 The direction for the applicant not to attend for work at the commencement of the 2008 school year would seem to be founded upon the only additional restriction contained in the second HealthQuest report, namely, "Supervision of students on extended excursions for several days". Although the ongoing difficulties associated with the other restrictions remained a concern, particularly for the Principal Mr Files, he was expecting the applicant to attend for work. Consequently the Department's decision to direct the applicant not to work would seems to have arisen from some manifest inability to accommodate the applicant's incapacity to supervise students on extended excursions for several days. 71 It is very difficult to accept that, before the school year had commenced, the Department was able to firstly determine that the applicant was going to be required to supervise students on extended excursions for several days, and secondly that her incapacity to perform this overnight supervision was a matter of such significance that she be directed not to attend for work. In any event, this additional "adjustment" found in the second HealthQuest report, could not on any reasonable and balanced assessment, represent a crisis involving potential danger to staff and or students such that a direction not to return to work was warranted. 72 There was no proper or reasonable basis for the direction to the applicant not to attend for work at start of school year 2008. The second HealthQuest report did not introduce any issue which materially differed from the position that existed throughout 2007. The confirmation of permanency of the applicant's condition and the one additional adjustment regarding overnight school excursions did not provide justification for the direction not to attend for work. 73 The significance of the direction not to work should be properly recognised. As Mr Cloak suggested, a direction not to work would usually be associated with potential danger to the welfare of staff and or students. Consequently a direction not to work would create a natural impetus towards termination of employment. All subsequent considerations and actions need to be evaluated in the context that the applicant would appear to represent such a danger to welfare that she has been prohibited from attending the worksite. 74 It is therefore important to have cognisance of the impetus created by the direction not to work when examining the events that unfolded during 2008. One particularly curious aspect of the Department's procedure during this period is exampled in the letter to the applicant of 13 March 2008.

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Predisposition Not to Accommodate 75 At this point in time, 13 March, the applicant had been "in part" successful with her Appeal against the second HealthQuest report of 10 January 2008. The Department had written to the Chairman of the HealthQuest Appeals Committee on 21 February 2008, seeking "…further clarification regarding the decision." Exhibit37 @ page 29. However before that clarification was provided and without other change to the applicant's circumstances, the Department's letter of 13 March 2008 advised inter alia, that "Byron Bay Public School is unable to continue to accommodate your medical restrictions." Ibid @ page 37. Just how the Regional Director (Carol Carrigan), could arrive at such a conclusion before the medical Appeals clarification had been provided, is very troubling. 76 The HealthQuest Appeals Committee clarification letter made no alteration to the restrictions or adjustments as identified in the second HealthQuest report. The applicant's condition was essentially unchanged since the first HealthQuest report albeit now confirmed to be permanent. The Department had already determined that Byron Bay School was unable to continue to accommodate the applicant's medical restrictions and by way of correspondence dated 14 March 2008 the Department referred the matter to, "Staffing Services in order to ascertain whether permanently modified duties are available within the Department." Ibid @ page 42. However the answer to this question had already been made and conveyed. 77 On 22 February 2008, the Director, Staffing Services, a Peter Johnson, had decided that "… I do not have any substantive positions in schools which would reasonably accommodate the restrictions… I would support separation and believe that it should proceed." Ibid @ page 35. 78 These comments, made at a time when the applicant's Health Quest Appeal had been "in part" allowed, and before further clarification had been obtained, demonstrate the impetus that the direction not to work had created. Essentially the applicant's fate had been pre-determined and the processes that followed the direction not to work were unlikely to change the outcome and absent of a requisite objectivity. 79 The criticisms that are made about the Department's procedure involving the direction to the applicant not to work and the subsequent processes must, in fairness, be balanced against the Department's earlier compassionate transfer. The Department acted commendably by permitting the applicant to transfer from Ballina to Byron Bay. Unfortunately the transfer did not include full disclosure of the applicant's medical condition and the subsequent discovery by the Principal, Mr Files of the colophony allergy ignited a chain of events that culminated in the applicant's dismissal.

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87 The approach adopted by Mr Files was suggestive of anything other than being reasonable. Mr Files seemed to suggest that even if some negotiated re-rostering arrangements had been achieved in the past and could have been possible for 2008, he was ruling out any negotiation about rearrangements for 2008. This approach would mean that the applicant's restriction could not be accommodated. However an accommodation may have been possible, perhaps likely, if a negotiation had been permitted. Consequently it would seem that to not permit the negotiation would not allow for a potential for the reasonable accommodation of the restriction. Without first having the negotiation there could be no determination as to whether the restriction could or could not be reasonably accommodated. 88 The corollary of this analysis is that restriction 3 may be reasonably accommodated and thus can not be construed as a restriction that necessarily causes an unreasonable requirement for the Department. In some circumstances the re-rostering of sports lessons and playground duties may suit the School and its staff, in other circumstances it may not. In a practical sense restriction 3 is an issue that may require determination on at least an annual basis and perhaps even term by term as staff changes occur. Importantly it would be entirely unreasonable if this restriction was applied generally on a non-negotiable basis as Mr Files attempted. 89 Restriction 3 should also be considered in a broader context. If as an inherent requirement of the position, all Teachers must have the physical capacity to teach sport, there would likely be a significant number of particularly older Teachers who would be unable to satisfy that requirement. Should there be no accommodation or even attempted accommodation, for Teachers who, because of age or other factors, are unable to undertake the more physically demanding aspects of the position? 90 Further, what impression would be made on young minds that witness an approach which does not contemplate the accommodation of a person with a disability? Conversely, what impression is conveyed when role models are seen to cooperatively assist one another and make some sacrifice to help a less able bodied person? 91 In practical terms it must be recognised that there are limits to an accommodation such as that described by restriction 3. Circumstances may arise where no reasonable re-rostering of sport and playground duties could be achieved. However, a government agency such as the Department of Education has an important public responsibility to ensure that at very least, genuine attempts are made to accommodate the restriction. There should be no suggestion of the non negotiable approach that the applicant suffered.

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CONCLUSIONS 121 There are various elements which have established the unfairness of the applicant's dismissal. 122 The decision to dismiss was taken without providing the applicant with an opportunity to put her case before the decision maker. The absence of that opportunity was a denial of natural justice. 123 Similarly, the absence of any evidence from the decision maker has meant that important issues which were included in the letter of dismissal have been able to be tested. It is unreasonable and unjust for the accuracy, veracity and level of significance of these potentially crucial issues to be undeterminable, either at the time that the decision to dismiss was made, because of the denial of natural justice, or later, upon review in these proceedings because of the absence of evidence from the decision maker. 124 In addition, the decision to dismiss, as obtained from the letter of dismissal, contains at least one crucial factual error. At no time did HealthQuest make a finding that the applicant was unfit to perform the inherent requirements of her substantive position. It was unreasonable and unjust for the decision to dismiss to be based, to whatever extent, upon this erroneous assertion. 125 The procedure of the Department whereby the applicant was directed not to attend for work, in circumstances where that direction was without proper justification, operated to severely prejudice the applicant such that no objective consideration of a reasonable accommodation of her medical restrictions was made. An objective review has revealed that it would not be an unreasonable burden upon the Department to accommodate the medical restrictions, subject to the cooperation from colleagues to permit some re-rostering. 126 The prejudice created by the unnecessary direction to the applicant not to attend for work extended to include unfortunate aspects of medical reports provided by an Occupational Therapist engaged by the Department. The rejection of this material has established that there is no impediment to reinstatement of the applicant.

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