[2012] FWAFB 1616

[2012] FWAFB 1616

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Ambulance Victoria
v
Ms V
(C2011/1174)

SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT HAMILTON
COMMISSIONER BOOTH

MELBOURNE, 15 MARCH 2012

Appeal against decision [[2011] FWA 8576] and order [PR517787] of Commissioner Smith at Melbourne on 12 December 2011 in matter number U2011/9399 - permission to appeal refused - appeal dismissed.

[1] This is an appeal, for which permission is required, under s.604 of the Fair Work Act 2009 (the Act), by Ambulance Victoria (the appellant) against the decision 1 and order2 of Commissioner Smith of 12 December 2011 in which he found that the termination by the appellant of the employment of Ms V (the respondent) was an unfair dismissal and ordered that the appellant reinstate the respondent to the position in which she was employed immediately prior to her dismissal.3 The Commissioner’s decision concerned an application for relief in respect of termination of employment by the respondent under s.394 of Division 5 in Part 3-2 of the Act.

BACKROUND

[2] The background to the employment of the respondent and her termination is set out in the decision of Commissioner Smith. 4 It is sufficient, for the purposes of this decision, to note that the respondent commenced her employment with the appellant in the position of Student Ambulance Paramedic in late 1996. She suffered injuries whilst at work in September 1998, resulting in an absence from work, returning in December 1998. She qualified and graduated as an ambulance paramedic in November 1999. Shortly thereafter, the respondent worked for various periods of time between mid 2001 and early 2005, both part-time and full-time, as an ambulance paramedic and in non-operational duties, with periods of absence from duty because of medical conditions and maternity leave. The respondent has not performed duties with the appellant since 2005, a period of seven years.

[3] After an uninterrupted absence from work from early 2005, resulting from the exacerbation of a pre-existing injury caused by her domestic circumstances, the respondent requested of the appellant a return to work in mid 2009. In the course of a series of communications between the respondent (and her union, Ambulance Employees Australia (Victoria)) and the appellant, the appellant required the respondent to undertake Independent Medical Examinations (IME) by two medical specialists 5 which ultimately took place on 31 August and 15 December 2010. Reports from the specialists were prepared on 1 September and 16 March 2011 respectively and were forwarded to the appellant.

[4] On 9 June 2011, the appellant wrote to the respondent advising, by reference to the reports of the specialists:

“... medical information regarding your condition concludes that we are unable to provide you with duties that you can safely perform given your underlying condition and we cannot see that your condition is likely to improve imminently.

Therefore, we are giving you notice that we intend to terminate your employment on 17 June 2011.” 6

[5] The letter contained an invitation to the respondent to carefully consider the matters stated by the appellant and to advise the appellant of any reason or evidence that contradicts its view that she was unable to perform her duties and that the condition would not immediately resolve itself, in the absence of which the appellant would proceed to terminate the employment on the grounds that the respondent was unable to perform the inherent requirements of her role.

[6] Notwithstanding further communications, the appellant wrote to the respondent on 21 June 2011 advising that:

“... you have not been able to provide us with information that certifies you as fit to perform the inherent requirements of your role or that your ongoing condition is likely to imminently resolve.

Therefore, we are advising you that your employment with Ambulance Victoria has been terminated on the grounds that you are unable to perform the inherent requirements of your role”. 7

NATURE OF THE APPEAL

[7] Section 604(1) of the Act provides for the appeal with the permission of Fair Work Australia. Section 604(2) provides that “Without limiting when FWA may grant permission, FWA must grant permission if FWA is satisfied that it is in the public interest to do so”. Section 400 of the Act, also found in Part 3-2 of the Act, further limits the basis for permissions to appeal, as follows:

“(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by FWA in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”

[8] The first ground of appeal raised by the appellant went to jurisdiction - the appellant argued that Commissioner Smith in stating in the reasons for his finding that there was no valid reason for the termination of employment - “There has not been a clear finding that Ms V cannot perform the inherent requirements of the job by the independent medical practitioners” - misapplied the test to be applied to finding whether there was a valid reason for the termination. The appellant submitted that:

“Requiring a clear finding in the medical reports that she could not perform the inherent requirements of the job puts the test too high: there can be a level of equivocation in medical reports which nevertheless supports a finding that, on balance, the employer had a valid ground to terminate employment.” 8

[9] That ground aside, the appeal grounds involve discretionary decisions. Other than in relation to the jurisdictional ground raised, the appeal is to be considered in accordance with the principles of House v The King, 9 modified by s.400(2) of the Act by limiting any review based on the mistake of fact to a significant error of fact.10

THE DECISION OF COMMISSIONER SMITH

[10] In his decision, Commissioner Smith assessed the medical evidence of the two specialists who conducted IMEs; Dr M McDonough, a specialist in Addiction Medicine and Clinical Toxicology, and Associate Professor G Mendelson, an Adjunct Clinical Associate Professor in the Department of Psychological Medicine at Monash University, before recording the appellant’s conclusions on that evidence, as follows:

“[31] Ambulance Victoria relied upon the position description for an Ambulance Paramedic which requires an employee to possess a ‘tolerance for stress’ and the ability to ‘maintain stable performance whilst under pressure including the ability to relieve stress in a manner that is acceptable to self and the organisation’. It was the evidence of Mr Roughton (Group Manager) that given the first and second independent medical reports, he could not be confident that Ms V could meet the inherent requirements of the position without unacceptable risk to patients, her colleagues and her own health and safety. He also concluded that she could no longer perform her pre-injury duties and that the situation was unlikely to change.”

[11] In relation to whether the termination was unfair, the Commissioner concluded:

“[40] I turn firstly to consider whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees).

[41] The termination of employment related directly to the capacity of Ms V. Ambulance Victoria reached the conclusion that Ms V could not perform the inherent requirements of her role and that her ongoing condition is unlikely to imminently resolve.

[42] This conclusion was said to be based upon the medical evidence. This is not the state of the medical evidence, as it is less certain than that stated by Ambulance Victoria. Whilst Dr McDonough was concerned about a continuing ‘poor mental state’ his conclusion was that a slow, partial return to some duties may be possible. Dr McDonough was of the view that Ms V was not fit to return to full operational duties without restrictions. Those restrictions related to right knee arthritis and the potential for additional stressful workplace situations overwhelming her. The findings of Associate Professor Mendelson are more positive. He concluded that Ms V should resume duties on a gradual basis following an appropriate period of training and under a period of supervision. He further stated that there was no indication of any diagnosable mental disorder. However Associate Professor Mendelson did express some caution as to whether or not she would be particularly sensitive or vulnerable to the usual stressors working as an ambulance paramedic.

[43] This has been a difficult matter for all concerned. I have no doubt that Ambulance Victoria seeks to make the right decision to protect its employees and the public it serves.

[44] However I have not been persuaded that there was a valid reason for the termination of Ms V.

[45] I do so for these reasons:

There has not been a clear finding that Ms V cannot perform the inherent requirements of the job by the independent medical practitioners;

There is no finding by the independent medical practitioners that any concerns they expressed will not imminently resolve;

Ms V has on several occasions, since her accident, returned to operational work without incident; and

The reason she was suspended from duty (the use of methadone) and from which she didn’t immediately seek to return, was not finally found by Dr Gijbers (sic) as an inhibiting factor to the normal performance of her duties.

[46] I do not accept the proposition advanced by Ambulance Victoria that it cannot ‘give it a go’. Before any ambulance paramedic, who has had an extended period of leave, resumes normal operational duties they must undergo a knowledge gap analysis and receive any relevant training. Further, there can be no doubt that a community aim is to assist people who have been the subject of illness or injury to return to work if that is possible. Ms V wishes to return to work and both independent medical practitioners have not said that this is not possible. Ms V should be given this opportunity. If she is unable to satisfy Ambulance Victoria that she is able to perform the duties expected of her after a suitable return to work strategy has been devised and implemented, then this decision should not be read as requiring Ambulance Victoria to place someone in a role where it is demonstrably unsafe to do so.

[47] I am also conscious that Ambulance Victoria would have ongoing strategies to assist and deal with stressors experienced by paramedics who are called upon on a daily basis to deal with what can be the most harrowing of situations. Ambulance Victoria is correct when it states that the work of ambulance paramedics is a difficult one indeed. However it is also uniquely placed to understand and manage those stressors for its staff.

[48] As to the other provisions of the statute to which I must have regard, I find that:

Ms V was notified of the reason for her termination;

Ms V was not given an opportunity to respond to the allegations as she was not provided with the medical reports upon which the conclusions were reached;

There was no unreasonable refusal by the employer to allow Ms V to have a support person;

The termination of employment did not relate to unsatisfactory performance;

There is no impact upon the procedures followed given the size of the employers enterprise; and

There are dedicated human resources management specialists available to the employer.”

[12] In relation to remedy, the Commissioner concluded:

“[52] I will make an order reinstating Ms V to the position in which she was employed immediately prior to her dismissal from 2 January 2012. Following her reinstatement, her return to normal duties is subject to her satisfactorily undertaking any gap analysis, training and supervision deemed necessary by Ambulance Victoria. I will also make an order maintaining continuity of employment from the time she was terminated. I decline to make any order in relation to lost remuneration. There does not seem to be any quantifiable remuneration lost since the time she was terminated. In addition, the concern expressed by Ambulance Victoria in relation to Ms V’s attention to meetings and returning documents has some relevance in this consideration.”

THE APPEAL GROUNDS

Appeal Ground 1: Misdirection on “clear” finding on inability to perform requirements

[13] This appeal ground was advanced as a jurisdictional error arising out of the Commissioner’s first reason for finding that there was no valid reason for the termination: “There has not been a clear finding that Ms V cannot perform the inherent requirements of the job by the independent medical practitioners.” 11

[14] The appellant argued that Commissioner Smith applied the wrong test in considering the medical evidence as to whether the respondent’s medical conditions provided a valid reason for the termination of her employment, with a requirement for a clear finding in the medical reports that she could not perform the inherent requirements of the job putting the test too high, particularly so in the context of her position as an ambulance paramedic providing emergency services.

[15] The respondent submitted that the reason complained of by the appellant was a conclusion by the Commissioner about his assessment of the evidence that led him to the view that there was no valid reason in all of the circumstances and not a test applied in determining whether there was a valid reason for the termination. It submitted that, read as a whole, the reasons of the Commissioner disclosed that he understood that the valid reason for the termination asserted, related directly to the capacity of the respondent and the question of whether she was able to perform the inherent requirements of the job. The Commissioner assessed all the medical evidence and was not persuaded that there was a defensible or justifiable reason for the termination on an objective analysis of the relevant evidence. The statement relied upon by the appellant is the Commissioner’s summary which properly reflects the evidence and his conclusions on the medical evidence recounted in his decision. 12

[16] Having regard to the reasons of Commissioner Smith in relation to the medical evidence, read as a whole, we are not persuaded that his conclusion that “There has not been a clear finding that Ms V cannot perform the inherent requirements of the job by the independent medical practitioners” can be characterised as the application by him of an erroneous test in determining whether there was a valid reason for the termination.

[17] It is evident from the Commissioner’s reasons, read as a whole, that the issue arising out of the medical evidence was whether the evidence supported a finding that the respondent could not perform the inherent requirements of her role. He assessed the medical evidence, noting that one specialist was concerned about a continuing “poor mental state”, whilst the other found that that there was no indication of any diagnosable mental disorder. He noted that whilst one found that the respondent was not fit to return to full operational duties without restrictions but that a slow, partial return to some duties may be possible, the other concluded that the respondent should resume duties on a gradual basis following an appropriate period of training and under a period of supervision. Having assessed the medical evidence, the Commissioner was not persuaded that it supported a finding that there was a valid reason for the termination for a number of reasons stated 13 and having regard to the processes which the appellant implemented for managing the resumption of normal operational duties of an employee returning to work after an extended absence. The finding challenged by the appellant is one of the conclusions drawn from the evidence by the Commissioner which supported his finding that there was no valid reason for the termination, rather than a separate and determinative test.

[18] We are not persuaded that the decision of Commissioner Smith reflects jurisdictional error.

Appeal Ground 2: The evidence supported a finding that the respondent was not fit to return to work

[19] The appellant argued that Commissioner Smith erred in not finding, on the medical evidence, that the respondent was not fit for a return to work. It submitted that the medical evidence, properly construed, should have led to the conclusion that the respondent cannot perform the inherent requirements of the job. It submitted that there were significant doubts expressed by the independent medical specialists on the respondent’s ability to safely return to work. They may not have ruled out any ability to return, but they were sufficiently clear in identifying unacceptable risks to patients, colleagues and the respondent herself, to give rise to a valid reason for the termination of employment.

[20] The appellant contended that the unequivocal evidence of both medical reports was that the respondent was not fit for an unrestricted return to the duties of her position. At best, the medical specialists expressed some cautious optimism for the future, but did not find she could currently perform her role. The possibility that her condition may change in the future was not enough to find that the employer lacked a valid reason for the dismissal.

[21] The appellant further argued that the Commissioner placed particular reliance upon the view of Dr McDonough that “a slow, partial return to some duties may be possible”, and the view of Associate Professor Mendelson that she should “resume duties on a gradual basis following an appropriate period of training and under a period of supervision”. It argued that the Commissioner’s reasoning was essentially that the medical assessments provided optimism that the respondent may be capable of working in a modified position, rather than the actual job which she had previously held.

[22] The respondent submitted that Commissioner Smith set out in detail the medical evidence of Dr McDonough and Associate Professor Mendelson in his decision, 14 assessed that evidence and set out his findings. It submitted that there is no significant error of fact demonstrated in that process.

[23] The respondent submitted that none of the medical evidence assesses the respondent as suffering from a diagnosable “condition”. Further, it submitted, on all the evidence before the Commissioner, that there was not a valid reason for the termination. The Commissioner was not persuaded, on all the evidence, that the respondent was unable to carry out the inherent requirements of her role. Commissioner Smith provided for her reinstatement, in circumstances where the evidence was that a normal process exists for that reinstatement which is consistent with the medical evidence and that process allows for the reinstatement of the respondent. It submitted that the effect of Commissioner Smith’s order is not to return the respondent to a modified position, to restricted duties or to a temporary alternative position. The effect of Commissioner Smith’s order is that the respondent, as is the usual practice of the appellant, will return to her same role after a period of training and supervision.

[24] The major medical evidence considered by Commissioner Smith was that contained in the reports prepared on 1 September 2010 15 and 16 March 201116 by, respectively, Dr McDonough and Associate Professor Mendelson. The IME and report by Associate Professor Mendelson were sought by the appellant “specifically to assess her fitness to return to work psychologically”.17 Further, although Dr McDonough noted in his report, as a current medical condition “it appears she has ongoing mental distress relating to her anxiety”18 and later noted a “concern about her ... mental health”,19 he stated that this condition “may warrant further specialist opinion”.20 Dr McDonough also expressed his view that the respondent’s continuing poor mental state posed some risk to her safe return to operational duties.21 Associate Professor Mendelson, a specialist in psychological medicine, concluded from his examination of the respondent several months later that “(t)here is no indication at present of any other diagnosable mental disorder”,22 “there is no indication that [the respondent] has any loss of work capacity resulting from any psychiatric illness or psychiatric impairment”23 and that her current mental state did not constitute a risk to others including her peers and patients.24

[25] In answer to the question “In your opinion is [the respondent] fit to return to full operational duties without restriction?”, Dr McDonough provided an opinion that, due to current pre-existing conditions he identified and risks associated with them, the respondent was not fit to return to full operational reasons but “a slow, partial return to some work duties may be possible”. 25 Associate Professor Mendelson, having found no pre-existing medical condition posing a risk to others, believed that a resumption of duties on a gradual basis would be appropriate “given that she has not worked as an ambulance officer since February 2005”.26

[26] Dr McDonough noted that the stressors associated with work as an ambulance paramedic created a risk of re-aggravation or escalation of “current mental symptoms”. 27 Associate Professor Mendelson noted that it was possible that emotional problems experienced by the respondent as a result of an accident in September 1998, which had resolved, created an enhanced sensitivity or exposure to significant stressors, creating a possibility that she might re-experience depressive or anxiety symptoms.28 Associate Professor Mendelson would not recommend the resumption of full operational duties on a full-time basis without a period of supervision.29

[27] We do not accept the characterisation of the reasoning of the Commissioner by the appellant that the medical assessments provided optimism that the respondent may be capable of working in a modified position, rather than the actual job which she had previously held. In the context of the evidence before him as to the usual processes for the return to work of an employee after a medical absence within Ambulance Victoria, ,30 the Commissioner was entitled to consider recommendations in the medical reports for a graduated return to work in the context of those processes. His conclusions as to that process31 were available to him on the evidence.

[28] The appellant suggested that the fact that there was some degree of equivocation in the medical evidence should have been resolved in favour of the appellant, given the nature of this industry, as the appellant’s concerns were reasonably based and the appellant was not in a position to be confident in the respondent returning to her job. 32 We do not accept this proposition. The responsibility of the Commissioner was to determine whether the evidence supported a finding that there was a valid reason for the termination of employment in all of the circumstances, including the particular nature of the industry and the respondent’s role. It is clear from the Commissioner’s decision that he was aware of and considered the nature of the industry and the job in reaching his decision.33

[29] In circumstances where there was a difference of view between the medical specialists as to the current mental health of the respondent, with the later assessment by the specialists chosen by the appellant to specifically assess her psychological fitness to return to work finding that the respondent had no current diagnosable mental disorder, with both supporting a graduated return to work but identifying some risk to the respondent’s mental health from the stressors of the work and where the evidence supported a finding that the appellant had in place processes for a return to work of an employee returning to duty after absences caused by illness, the Commissioner was entitled, on the evidence, to find that he was not persuaded that there was a valid reason for the termination.

[30] Alternate findings may have been open on the evidence, but we are satisfied that the Commissioner’s conclusion was reasonably open to him on the evidence. As noted in House v The King, “it is not enough that the judges comprising the appeal court consider that, if they had been in the position of the primary judge, they would have taken a different course”. 34 The Commissioner’s decision, in relation to this ground, does not disclose significant error.

Appeal Ground 3: requiring the employer to establish inability to perform the role

[31] The appellant submitted that implicit in the finding of the Commissioner, dealt with in the first appeal ground, is that the employer was required to establish the respondent’s inability to perform her job. It submitted that given the evidence that the respondent was permanently impaired from work in 2008, the starting point was not whether the appellant could show she could not perform her role, but whether her circumstances had changed such that she could safely return.

[32] The appellant submitted that nothing in the decision demonstrates error in the approach of Commissioner Smith. The appellant submitted that the Commissioner assessed the evidence and determined that he was not satisfied there was a valid reason for the termination. Nothing in the submissions of the appellant points to any significant error of fact on the part of the Commissioner.

[33] This ground of appeal has no basis. The implication drawn by the appellant is not reasonably available for the reasons we have given in respect of the first appeal ground. The issue for determination was whether, on the medical evidence available, there was a valid reason for the termination of employment based on the respondent’s medical circumstances and her ability to undertake her work. This is an issue to be determined on the basis of the respondent’s current medical condition, rather than by reference to whether prior medical circumstances had changed.

Appeal Ground 4: the concerns would not imminently resolve

[34] The appellant submitted that Commissioner Smith erred in finding as one reason for his finding as to valid reason that “(t)here is no finding by the independent medical practitioners that any concerns they expressed will not imminently resolve”. 35 It submitted that the “imminently resolve” issue was not presented as being a specific finding of the medical specialists, but was a phrase used by the appellant in assessing whether or not termination of employment would occur. Whether the medical specialists were also of that view is simply not to the point. It submitted that, in any event, even if the “imminently resolve” phrase had been presented as a finding of the medical specialists, their reports do not support that view. Neither medical practitioner found that the concerns were about to resolve.

[35] The appellant submitted that it relied, for the termination of employment, upon their assessment that the respondent’s condition was unlikely to imminently resolve. The only basis, in the evidence, for the assessment by the appellant that the respondent’s condition was not likely to imminently resolve was the medical evidence of Dr McDonough and Associate Professor Mendelson. That medical evidence was assessed by Commissioner Smith and found to be “less certain than that stated by Ambulance Victoria”. In those circumstances it is correct for the Commissioner to conclude that there was no sound, defensible or well founded basis, on the evidence, for the appellant to conclude that the respondent’s condition was likely to imminently resolve. There is no significant error of fact with respect to this ground.

[36] We are not persuaded by the appellant’s contentions on this point. To the extent that the appellant relied on the proposition that the respondent’s condition is unlikely to imminently resolve, its position could only be substantiated by reference to the medical evidence. The Commissioner’s finding that the appellant’s proposition is not supported by the medical evidence was reasonably available to him. Associate Professor Mendelson found that no psychological condition was current - it had resolved. Dr McDonough made no finding as to whether the ongoing mental distress relating to her anxiety which he observed was likely to imminently resolve. No error is evident in the Commissioner’s decision on this point.

Appeal Ground 5: irrelevant consideration of earlier returns to work

[37] One of the considerations which led Commissioner Smith to find that there was no valid reason for the termination was “Ms V has on several occasions, since her accident, returned to operational work without incident.” 36

[38] The appellant submitted that whether earlier absences had ended with a return to work is of no value in assessing whether on this occasion, after a lengthy absence for an admitted inability to work, the respondent could safely return. In taking into account the irrelevant consideration of the respondent’s earlier returns from work in different circumstances, the Commissioner was in error within the meaning of House v The King and the decision should be set aside.

[39] The respondent submitted that the successful return to work by the respondent as an ambulance paramedic following earlier absences due to a psychological disorder was clearly relevant given that the appellant, in terminating the employment, relied on the inherent requirement of the position that it believed the respondent would not be able to carry out, “coping with the stressors”. 37 In those circumstances it is relevant to consider the way the respondent dealt with the stressors of the position after returning to work on the previous occasions.

[40] Before Commissioner Smith, the appellant relied on the reports of Dr McDonough and Associate Professor Mendelson and the risk that the stressors associated with the work of an ambulance paramedic might, respectively, escalate or re-experience a psychological condition in reaching its decision to terminate the employment of the respondent. The evidence of one of the appellant’s witnesses was that the inherent requirement of the position that he believed the respondent would not be able to carry out was “coping with the stressors”. 38 In these circumstances, evidence of a successful return to ambulance paramedic duties by the respondent following earlier absences due to a psychological condition was clearly a relevant consideration which the Commissioner was entitled to take into account in reaching his finding that there was no valid reason for the termination. There was such evidence in relation to the return to work of the respondent, initially part-time but transitioning to full-time duties in 2001 and 200339 which supported the Commissioner’s finding in paragraph 45 of his decision.

Appeal Grounds 6 and 7: irrelevant consideration concerning methadone use and suspension from duty for methadone use

[41] The appellant submitted that Commissioner Smith erred in relying, for his finding that there was no valid reason for the termination, on the following reason:

“The reason she was suspended from duty (the use of methadone) and from which she didn’t immediately seek to return, was not finally found by Dr Gijsbers as an inhibiting factor to the normal performance of her duties.” 40

[42] The appellant submitted that the fact that Dr Gijsbers had found this issue did not impede the performance of duties was of no relevance to the validity of any reason for termination nor to the fairness of the dismissal more generally. It submitted that the Commissioner erred in being guided by an irrelevant consideration – expressly recorded by the Commissioner as one of the four grounds for deciding there was no valid reason – and the error is of a type contemplated by House v The King. It submitted that the earlier suspension from duties is not relevant to the facts concerning the termination of employment.

[43] The respondent submitted that the reference to her methadone use is something considered by both medical specialists, noted in both medical reports. Those reports are relied upon by the appellant in terminating the employment. Insofar as the medical reports refer to the methadone, Commissioner Smith was not in error to refer to it and conclude that it was not an inhibiting factor to the normal performance of her duties. There is no significant error of fact with respect to this ground.

[44] Whilst the appellant did not rely on the use of methadone by the respondent for pain relief, 41 it was a medical issue considered in the medical reports of the specialists relied on by the appellant. The Commissioner was required to himself determine if there was a valid reason for the termination. Given the common settled position of the parties, following the report of Dr Gijsbers, the methadone usage was not a major consideration but Commissioner Smith was entitled to rely on the evidence that it was not an inhibition to the performance of her duties in finding that there was no valid reason for the termination. The consideration exercising the mind of the Commissioner in the relevant passage of his decision was the absence of an impediment to her work, arising from the methadone usage, rather than the earlier suspension which simply provided context to his reference to Dr Gijsbers. We are not persuaded that the Commissioner erred in having regard to the evidence that the respondent’s methadone usage did not impede her ability to undertake her work.

Appeal Ground 8: community aim of returning employees to work

[45] At paragraph [46] of his decision, Commissioner Smith referred to the “community aim … to assist people who have been the subject of illness or injury to return to work if that is possible”. 42

[46] The appellant did not contend that the Commissioner was in error in so doing but rather that that consideration is “outweighed” by the community aim of having paramedics safely performing their duties.

[47] We see no basis in this appeal ground. The appellant accepts that it is a matter which the Commissioner was entitled to consider, but argues that he erred in the weight he afforded this consideration, relative to the community aim of having paramedics safely performing their duties. It is clear from the decision of Commissioner Smith that he was conscious of and attributed weight to the responsibility of the appellant to avoid unacceptable risk to the respondent’s patients, colleagues and her own health and safety. 43 No error has been demonstrated in the weighing up of these relevant considerations by the Commissioner.

Appeal Ground 9: opportunity to respond

[48] The appellant submitted that the finding of the Commissioner in relation to s.387(c) of the Act that the respondent was not given an opportunity to respond to the allegations as she was not provided with the medical reports upon which the conclusions were reached 44 was made because she was not provided with the medical reports upon which the decision to terminate was based. It submitted that this finding was not reasonably open to the Commissioner because the appellant offered to provide the reports via the respondent’s general practitioner, an offer which was not taken up by her.

[49] It submitted that, in any event, it is commonplace for medical reports to be provided confidentially to employers and not provided to the employee to ensure candour within the report. It submitted that the fact that a copy was not provided to the respondent does not mean that there was no opportunity to respond. The respondent was given an opportunity to put material before the appellant and did in fact respond.

[50] The respondent submitted that she was not provided with an opportunity to respond to the allegations contained within those medical reports, a proposition accepted by the appellant’s witness, Mr Roughton, a Group Manager of the appellant. 45 Despite the respondent’s request to be provided with copies of the medical reports directly she was not provided with the copies. In those circumstances the finding of Commissioner Smith was reasonably open.

[51] There is no dispute that the medical reports relied upon by the appellant in reaching its decision to terminate the respondent’s employment were not provided to her prior to the termination of her employment. On 9 June 2011, the appellant wrote to the respondent advising that:

“In reports provided to us from Dr McDonough and Dr Mendelson, medical information regarding your condition concludes that we are unable to provide you with duties that you can safely perform given your underlying condition and we cannot see that your conditions (sic) is likely to imminently resolve. Therefore, we are giving you notice that we intend to terminate your employment on 17 June 2011.” 46

[52] The appellant also invited the respondent to “advise us of any reason or evidence that contradicts our view that you are unable to perform your duties and the conditions will not imminently resolve.” It is plain that the respondent was advised of the basis of the intention by the appellant to terminate the employment and was provided with an opportunity to respond to that extent. However, the 9 June 2011 letter in itself makes it clear that the decision is based on the medical information in the reports of Dr McDonough and Dr Mendelson. Without those reports, upon which the appellant’s decision was based, the respondent had no informed basis upon which she could have contested the decision.

[53] An offer to provide the reports through the respondent’s general practitioner was made to the respondent in an email of 17 February 2011 47 framed as a “suggested” means of providing them to the respondent. The respondent replied within an hour, indicating that she preferred that the reports be sent directly to her, providing her reasons for doing so.48 There was no further response by the appellant and the reports were not provided. There was evidence before Commissioner Smith that the appellant emailed Mr S McGhie, the Secretary of Ambulance Employees Australia, asking for his support or direction about how to go about disclosing the medical reports to the respondent, that there was no response and that the appellant did not follow up that approach to Mr McGhie.49 Mr McGhie’s evidence was that he never received the email as it was incorrectly addressed.50 In our view, there was no real opportunity provided to the respondent to obtain the evidentiary material upon which the appellant’s decision was made.

[54] Given the evidence before Commissioner Smith, his conclusion that the respondent was not given an opportunity to respond to the allegations as she was not provided with the medical reports upon which the conclusions were reached was reasonably open to him. It reflects no error.

Appeal Ground 10: reinstatement was inappropriate

[55] In determining that reinstatement was the appropriate remedy Commissioner Smith concluded:

“[46] I do not accept the proposition advanced by Ambulance Victoria that it cannot ‘give it a go’. Before any ambulance paramedic, who has had an extended period of leave, resumes normal operational duties they must undergo a knowledge gap analysis and receive any relevant training. Further, there can be no doubt that a community aim is to assist people who have been the subject of illness or injury to return to work if that is possible. Ms V wishes to return to work and both independent medical practitioners have not said that this is not possible. Ms V should be given this opportunity. If she is unable to satisfy Ambulance Victoria that she is able to perform the duties expected of her after a suitable return to work strategy has been devised and implemented, then this decision should not be read as requiring Ambulance Victoria to place someone in a role where it is demonstrably unsafe to do so.

[52] I will make an order reinstating Ms V to the position in which she was employed immediately prior to her dismissal from 2 January 2012. Following her reinstatement, her return to normal duties is subject to her satisfactorily undertaking any gap analysis, training and supervision deemed necessary by Ambulance Victoria. I will also make an order maintaining continuity of employment from the time she was terminated. I decline to make any order in relation to lost remuneration. There does not seem to be any quantifiable remuneration lost since the time she was terminated. In addition, the concern expressed by Ambulance Victoria in relation to Ms V’s attention to meetings and returning documents has some relevance in this consideration.”

[56] The appellant submitted that even if there was some unfairness in the termination of employment, reinstatement remained inappropriate. It submitted that given the risks identified by the medical specialists, and given in particular the special role of paramedics, it was not appropriate to order reinstatement. It submitted that if the appellant, with its duties to the public, did not have confidence in the ability of the respondent to safely return to work, such confidence could not be restored by tribunal fiat.

[57] The appellant also submitted that the Commissioner erred in reinstating the respondent to the position in which she was employed immediately before her dismissal. It submitted that, consistent with the medical reports, it is clear that the respondent is not, at least currently, able to perform that role. She requires gap analysis, training and supervision, and under the medical reports, in all probability a slow graduated return to at least some of the work duties.

[58] The appellant submitted that s.391(1)(a) of the Act assumes an ability to perform the role, and does not require an employer to create a modified or restricted role to accommodate the employee’s abilities, even if there are prospects to an eventual return to the pre-termination position. It submitted that the scheme of the legislation does not support a return to work of the type contemplated by the Commissioner and, in those circumstances; the Commissioner should have decided that reinstatement was inappropriate.

[59] The respondent submitted that the power to order reinstatement is provided for by s.391 of the Act which requires the “restoration of the terms and conditions of the employment in the broadest sense of those terms”. 51 The proper approach to s.391 is to “put back in place” the contractual and legal rights of the respondent.52

[60] The respondent submitted that, contrary to the submissions of the appellant the effect of Commissioner Smith’s order is not to return the respondent to a modified position, to restricted duties or to a temporary alternative position. The effect of Commissioner Smith’s order is that the respondent, as is the usual practice of the appellant, will return to her same role after a period of training and supervision, returning to the respondent all of the proper entitlements that went along with the employment relationship, including the ability to return in the way that all other employees return from an extended period of leave.

[61] We deal first with the general proposition of the appellant that given the risks identified by the medical specialists, and given in particular the special role of paramedics, it was not appropriate to order reinstatement and that the appellant does not have confidence in the ability of the respondent to safely return to work.

[62] Medical evidence and the special nature of the work were considered by Commissioner Smith in finding that there was no valid reason for the termination. It was a finding which we have already decided is not affected by error in the House v The King sense. For the same reasons, we find that the Commissioner’s decision to reinstate was not in error. Absent some additional consideration, it would be perverse if factors which were not found to substantiate a valid reason for termination, in themselves, compelled a finding that reinstatement was inappropriate. A lack of confidence of an employer in the employment relationship or the capacity of an employee to undertake their work is not determinative of the appropriateness of reinstatement. Such a lack of confidence must be reasonably based, in this case against the medical evidence, and must, in any case, be balanced against other considerations where they are relevant.

[63] Having regard to the evidence before Commissioner Smith, we are not satisfied that the Commissioner’s decision is affected by significant error in relation to this basis of the final appeal ground.

[64] We turn now to the second stream of the appellant’s argument: that the Commissioner erred in reinstating the respondent to the position in which she was employed immediately before her dismissal, given the respondent is not, at least currently, able to perform that role, requiring gap analysis, training and supervision and, in all probability, a slow graduated return to at least some of the work duties.

[65] We understand that ground to be based on the proposition that due to the gap analysis, training and supervision and, possibly, a graduated return to work, the effect of the Commissioner’s decision is to reinstate the respondent to a position different from the position she occupied.

[66] We are satisfied that it was open to Commissioner Smith to reinstate the respondent to the position she occupied immediately before the dismissal. A finding that it was the position in which she was employed immediately before the dismissal was reasonably open to him on the evidence. It is a reinstatement to the position that the respondent previously occupied, subject to the appellant’s return to work processes. As envisaged by the Commissioner, 53 the return to that position is subject to the usual processes applied by the appellant to the return to work of an employee returning from a long-term absence from work, which are normal incidents of the position,54 and subject to the return to work process in train at the time the decision was taken to terminate her employment, as set out in the 23 February 2010 letter from the appellant to the respondent and the evidence of Mr Roughton,55 the next step in which is the completion of a clinical assessment, including a physical assessment (involving the performance of physical operation duties). The application of the return to work processes of the appellant does not alter the nature of the position to which the respondent is reinstated. The effect of the Commissioner’s order is to return the respondent to the situation which existed immediately prior to the termination of her employment.

[67] We are not persuaded that Commissioner Smith’s decision to reinstate is affected by a significant error of fact.

CONCLUSION

[68] We are not satisfied that the decision of Commissioner Smith discloses error; either jurisdictional or a significant error of fact.

[69] Nor are we satisfied that permission to appeal in the public interest is supported on any other basis. In this regard, we are not satisfied that the particular nature of the work of the ambulance paramedic, and the public’s interest in the safe conduct of that work, constitutes a separate and distinct basis for permission to appeal in the public interest. We accept that the safety issues have a special significance in this workplace. However, this appeal does not proceed by way of rehearing in the absence of error, and no error has been identified. The issues for determination by Commissioner Smith - whether the termination of the respondent’s employment was an unfair dismissal and, if so, the appropriate remedy, if any - were questions to be answered in the particular circumstances of the case, including the particular context of the work of an ambulance paramedic. In circumstances where Commissioner Smith considered and weighed up the particular nature of the respondent’s work as one of the considerations before him, there is no basis upon which the nature of that work constitutes a separate, distinct basis for permission to appeal in the public interest. No other public interest ground warranting permission to appeal was raised.

[70] Permission to appeal is refused and we dismiss the appeal. The further stay order, 56 dated 9 February 2012, is discharged by its terms.

SENIOR DEPUTY PRESIDENT

Appearances:

R Millar, of counsel, for the appellant.

C Dowling, of counsel, for the respondent.

Hearing details:

2012.
Melbourne:
February 15.

1 [2011] FWA 8576.

2 PR517787.

3 PR517787 and [2011] FWA 8576 at para 52.

4 [2011] FWA 8576 at paras 4-21.

5 Dr McDonough and Associate Professor Mendelson.

6 Exhibit R2 before Smith C, at AR-15.

7 Exhibit R2 before Smith C, at AR-17.

8 Exhibit A1 in the Appeal, at para 5.

9 (1936) 55 CLR 499, at 504-505.

10 Parmalat Food Products Pty Ltd v Wililo, [2011] FWAFB 1166 at para 6.

11 [2011] FWA 8576, at para 45.

12 [2011] FWA 8576, at paras 23-30, 41 and 42.

13 [2011] FWA 8576, at para 45.

14 [2011] FWA 8576, at paras 23-30.

15 Exhibit R2 before Smith C, at AR-11.

16 Exhibit R2 before Smith C, at AR-10.

17 Exhibit R2 before Smith C, at para 17.

18 Exhibit R2 before Smith C, at AR-11 at p. 5.

19 Exhibit R2 before Smith C, at AR-10 at p. 8.

20 Exhibit R2 before Smith C, at AR-10 at p. 8.

21 Exhibit R2 before Smith C, at AR-11 at p. 6.

22 Exhibit R2 before Smith C, at AR-10 at p. 8.

23 Exhibit R2 before Smith C, at AR-10 at p. 8.

24 Exhibit R2 before Smith C, at AR-10 at p. 8.

25 Exhibit R2 before Smith C, at AR-11 at p. 6.

26 Exhibit R2 before Smith C, at AR-10 at p. 8.

27 Exhibit R2 before Smith C, at AR-11 at p. 6.

28 Exhibit R2 before Smith C, at AR-10 at p. 8.

29 Exhibit R2 before Smith C, at AR-10 at p. 8.

30 Transcript before Smith C, at paras 72-73, 80, 84, 87-90, 105 and 130, a process put to the appellant’s witness and broadly confirmed at paras 963-967.

31 [2011] FWA 8576, at paras 46-47.

32 Transcript in the appeal, at para 47.

33 [2011] FWA 8576, at paras 31, 35, 40, 41, 43 and 47.

34 (1936) 55 CLR 499, at 504-505.

35 [2011] FWA 8576, at para 45.

36 [2011] FWA 8576, at para 45

37 Transcript before Smith C, at paras 1031-1032.

38 Transcript before Smith C, at paras 1031-1032.

39 Transcript before Smith C, at paras 200-222.

40 [2011] FWA 8576, at para 45.

41 Transcript before Smith C, at para 1136.

42 [2011] FWA 8576, at para 46.