Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (obo Brown) v Industrial Relations Secretary on behalf of the Department of Communities and Justice [2021] NSWIRComm 1060 Hearing dates: 19 and 20 July 2021 Date of orders: 2 August 2021 Decision date: 02 August 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan Decision: The proceedings are dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – dispute orders – employee with employment-related injury unable to perform requirements of role – recommendation sought to modify the role to permit continuation of employment – whether employee unable to perform inherent requirements of role – whether role should be modified to remove such requirements – consideration of matters relevant to the Commission's discretion Legislation Cited: Anti-Discrimination Act 1977 (NSW) s 49D Government Sector Employment Act 2013 (NSW) s 56 Industrial Relations Act 1996 (NSW) ss 3, 130 Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 49 Cases Cited: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 Public Service Association and Professional Officers' Association Amalgamated Union of NSW v Industrial Relations Secretary on behalf of the Department of Justice [2019] NSWIRComm 1060 Texts Cited: Nil Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Notifier) Industrial Relations Secretary (Respondent) Representation: A Wright, PSA (Notifier) A Joseph of Counsel (Respondent) File Number(s): 2021/70736 Publication restriction: No decision 1. Ann Brown is employed in the Office of the Sheriff of New South Wales, holding the rank of Inspector. She has been employed in the Office of the Sheriff for approximately 35 years. She is currently based at the Downing Centre in the Sydney CBD. 2. The Office of the Sheriff is an agency within the Department of Communities and Justice ("Department"). 3. In February 2016 Ms Brown suffered a work-related injury to her knee. As a consequence of that injury, she is unable to perform the full range of her pre-injury duties. Indeed, apart from a period between 15 November 2019 and 6 May 2020, Ms Brown has continuously been certified as unable to perform the full range of her pre-injury duties since September 2016. She has since then been rostered to work modified or restricted duties. 4. The Industrial Relations Secretary ("Secretary") adduced a significant amount of documentary evidence as to Ms Brown's medical condition and the attempts made by the Department to secure her return to pre-injury duties, but it is not necessary that it be traversed in detail. It is common ground that Ms Brown's restrictions are permanent in nature. 5. On 3 March 2021 Tracey Hall, the Sheriff of New South Wales, wrote to Ms Brown informing her that "the Department is of the opinion that you are unfit to perform the duties of your full-time role as Inspector, Office of the Sheriff". The letter went on to provide Ms Brown with the following "options": 1. accept a transfer to another role, at a lower grade; 2. provide alternative medical evidence to demonstrate her ability to perform the role of Inspector; or 3. elect for medical retirement pursuant to s 56 of the Government Sector Employment Act 2013 (NSW). 1. On 12 March 2021 the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("PSA") notified the Industrial Registrar of an industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 (NSW). The notification included the following contentions: "5. Ms Brown does not wish to be demoted from her Grade 5-equivalent role to a role at Grade 1-2. She is not in a position to provide medical evidence that she can participate in recertification. She does not wish to retire. 6. The PSA is of a view that the Sheriff is refusing to make a reasonable adjustment to allow Ms Brown to carry out her current role of Inspector." The role of Inspector 1. The Role Description for the position of Inspector describes the "primary purpose" of the role, which includes: "Responsible for smaller centres within the NSW Sheriff's Office and manages a broad range of activities. The role will have the security and operational management responsibility for their location but may also have oversight of nearby satellite sites." 1. The Role Description further states that it is a "key accountability" of the role that the incumbent "be required to perform the duties of a Sheriff's Officer as required, e.g. serving and executing process and security duties". An "essential requirement" of the role is described as: "Willingness and ability to attain relevant skills and knowledge including, but not limited to, specifically designed Sheriff's Office training courses such as the Tactical Training Course and other courses which have been developed relevant to specific work related skills." 1. Daniel De La Paz is a Superintendent based at the Downing Centre and is Ms Brown's direct supervisor. He stated: [1] "26. Typically, in my experience, for an Inspector to be capable of carrying out their core operational and tactical duties includes being capable of a range of functions including the following: - restraining people - provide first aid - escort people out of the building (who may be unwilling to leave); - render assistance to Police and Corrective Services when required such as providing an escort to people in custody - responding quickly to a duress alarm in a court room or judicial chambers - being capable of utilising appointments - dealing with any issues at the scanning process including dealing with people who try to enter the precinct with a prohibited item[.]" 1. When performing their duties, Sheriff's Officers are required to carry handcuffs, an extendable baton and an aerosol canister of oleoresin capsaicinoid (or capsicum) spray ("Appointments"). [2] To be permitted to carry and, if necessary, use their Appointments, Sheriff's Officers must undertake periodic assessments through a process known as "recertification", which comprises theoretical and practical components. An Officer must be certified as "capable" to be allowed to continue to carry Appointments. 2. For convenience, I will refer to the responsibilities and requirements described at [8]-[10] above as "operational duties". 3. Ms Hall deposed: [3] "8. There is only one Inspector role in the Metro Region. That role is based in the Downing Centre however is required to attend any one of the courts in the Metro Region. The Metro Region includes Hornsby, Manly, Burwood, Waverley, Newtown, Lidcombe Coroners Court, the Downing Centre, John Maddison Tower (JMT), Surry Hills Children's Court (SHCC), Hospital Road, Land and Environment Court (LEC), Law Courts, Darlinghurst and King Street. 9. The Inspector role in the Metro Region is a very important role because it supports the Superintendent in managing security operations within some of our busiest courts in the state and manages staff and stakeholders. The Inspector role is required to work at any one of the court locations in the region depending on operational requirements. It is simply practical to have the role based at the Downing Centre because of the number of courts in that vicinity. 10. As Ms Brown has been unable to fulfil the inherent functions of the Inspector role (based at the Downing Centre) for a considerable period, her role was backfilled to maintain operational capability. …" 1. Ms Hall stated that the effect of the role being backfilled is that two people are being paid for the one role. This cost is not provided for in the budget allocation of the Office of the Sheriff. Outline of the PSA's case 1. The PSA contended that a significant portion of the work performed by Ms Brown as an Inspector was managerial or administrative in nature. Ms Brown described her "actual duties" in these terms: [4] "Security • Issue information and instructions on security matters such as high security trials • Check CCTV in case of incidents and direct responses • Incidents – ensure reports submitted and secure CCTV Complaints • Deals with Registrars about customer service issues Administration • Organise and run staff meetings and sergeants' meetings • Building management • Attend meetings with the Super • Perform administrative support to Officer in Charge and Region Commander Personnel • Sick leave management • Ensure training of all staff up to date Rosters • Be responsible for the main roster • Supervise Sergeant team leaders regarding team rosters." 1. In a second statement in these proceedings, Ms Brown listed 14 tasks that she had performed whilst "on restricted duties". I will not reproduce that list. Ms Brown described those tasks as "generally tasks which would normally be carried out by the Inspector". [5] 2. Having regard to the duties Ms Brown described herself as performing, the PSA contended that it was not necessary that she perform the operational duties of a Sheriff's Officer to fulfil the requirements of her position as an Inspector. The PSA led evidence from David Ghazeleh, the Officer in Charge of the Sheriff's Office at Sutherland, who previously worked at the Downing Centre; Stephen Hancock, a Sergeant in the Sheriff's Office based at the Downing Centre; and, Marko Petrovic, a Sheriff's Officer at the Downing Centre. Their evidence was largely to the same effect: that based on their observations, and in their opinion, it was not necessary that an Inspector at the Downing Centre be able to perform operational duties. This was due primarily to the existence of adequate alternative support being available at the Downing Centre, if required. 3. The PSA also tendered evidence demonstrating that in the period from 1 April 2019 until 18 March 2021 there had been only nine instances in which an Inspector at the Downing Centre had been required to become physically involved in an incident, including by physically restraining a person. 4. Relying on the evidence outlined above, by way of relief the PSA sought a recommendation ("Proposed Recommendation") and a dispute order ("Proposed Order") in the following terms: "1. A recommendation that Ann Brown be allowed to continue to perform the duties of Inspector at the Downing Centre by means of a reasonable adjustment modifying her role to remove the requirement to perform the duties of a Sheriff's Officer as required. 2. A Dispute Order that Ann Brown not be dismissed by way of medical discharge." 1. In support of its claim for the Proposed Recommendation, the PSA drew my attention to legislation which it said mandated modifications to Ms Brown's role, given the nature of her incapacity. The PSA relied in particular on s 49 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), which provides: 49 Employer must provide suitable work (1) If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker. Maximum penalty—50 penalty units. (2) The employment that the employer must provide is employment that is both suitable employment (as defined in section 32A of the 1987 Act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury. (3) This section does not apply if— (a) it is not reasonably practicable to provide employment in accordance with this section, or (b) the worker voluntarily left the employment of that employer after the injury happened (whether before or after the commencement of the incapacity for work), or (c) the employer terminated the worker's employment after the injury happened, other than for the reason that the worker was not fit for employment as a result of the injury. 1. The PSA contended that this provision obliges the Secretary to provide Ms Brown with suitable employment. Such employment would include a role fashioned in accordance with the Proposed Recommendation. 2. The PSA further relied on s 49D of the Anti-Discrimination Act 1977 (NSW), which relevantly provides: 49D Discrimination against applicants and employees … (2) It is unlawful for an employer to discriminate against an employee on the ground of disability— (a) in the terms or conditions of employment which the employer affords the employee, or (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee, or (d) by subjecting the employee to any other detriment. … (4) Nothing in subsection (1) (b) or (2) (c) renders unlawful discrimination by an employer against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability— (a) would be unable to carry out the inherent requirements of the particular employment, or (b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer. … 1. The PSA submitted that the ability to perform operational duties was not an inherent requirement of the position of Inspector. It would follow that to dismiss Ms Brown in the present circumstances would be contrary to s 49D(2) of the Anti-Discrimination Act. 2. I digress to observe that it is not for the Commission to enforce either the Workplace Injury Management and Workers Compensation Act or the Anti-Discrimination Act. To the extent that the PSA relied on that legislation, I understood it to be in the nature of informing the exercise of the Commission's discretion in these proceedings. 3. The PSA further relied on the Department's Workplace Adjustment Policy. That document defines "workplace adjustment" to mean "an adjustment to the role or work environment that is necessary and achievable to support an employee to perform the inherent requirements of their role effectively". The term "inherent requirements" is defined as the "essential requirements for the performance of the role that cannot be altered through role redesign". 4. Relying on the legislation referred to above and the Workplace Adjustment Policy, the PSA asserted, in short, that the Secretary is under an obligation to make "reasonable adjustments" to accommodate Ms Brown's physical restrictions. The modifications which the PSA sought be made to her position to remove the requirement to perform operational duties would constitute such adjustments. For that reason, it was argued, the Commission should exercise its discretion to make the Proposed Recommendation. 5. The PSA's submissions in support of the Proposed Order were captured in the following paragraphs of its written submissions: "Unfair dismissal 23. The Applicant's evidence shows that Ms Brown, if she could not provide medical evidence that she could be recertified as a Sheriff's Officer, was required to either accept a demotion to a non-Sheriff role as a Clerk Class 1/2 or she would be medically discharged. 24. An employer-initiated medical discharge in these circumstances would meet all the requirements for an unfair dismissal. It would be harsh in its financial effects, it would be unreasonable as based on a flawed decision-making process and it would be unjust as contrary to law." Consideration The Inherent Requirements of the Position 1. Under cross-examination Ms Brown accepted that the requirements of the Role Description set out at [8] above and the list of responsibilities described by Mr De La Paz reproduced at [9] above were essential requirements of her position. Mr Ghazeleh gave evidence to the same effect. 2. Ms Brown also accepted that the ability to successfully undertake recertification, to be permitted to carry Appointments, and to undertake tactical training were essential requirements of her position. Ms Brown attempted recertification twice, in November 2019 and December 2019. On each occasion she was found to be "not capable", largely as a result of her physical restrictions. It was for this reason that she was not able to return to operational duties between 15 November 2019 and 6 May 2020, even though she had been certified as fit for pre-injury duties. Ms Brown accepted under cross-examination that she is unlikely to ever satisfy the requirements of recertification and so be able to carry Appointments. 3. In connection with her rehabilitation following her work-related injury, Ms Brown was placed on a plan aimed at securing her return to operational pre-injury duties as a Sheriff's Officer. This plan was recorded in a series of documents each titled "Recover at Work Health Plan", versions of which Ms Brown signed on 8 March 2021 and 29 April 2021. In each case the document contained the following description of "duties to be avoided": "In keeping with safe practices, limited or no response (operational duties) equates to not wearing the Sheriff Officer's appointments. Operational duties not to be undertaken include: • Field duties • First response • Duress alarm response • Involvement with any situation/altercation • Security duties — Not to work in front of house security/operational duties — No wand scanning" 1. Ms Brown accepted that each of these "duties to be avoided" were inherent requirements of the position of Inspector, and further, that these restrictions are likely to be permanent. 2. On the evidence, the only available conclusion is that operational duties are an inherent requirement of the position of Inspector. I find accordingly. The Proposed Recommendation 1. This finding creates largely insurmountable difficulties for the PSA. As the Secretary submitted, the notion of "reasonable adjustments" is directed towards enabling an employee to perform the inherent requirements of their role. Section 49D(4) of the Anti-Discrimination Act makes that clear, as does the definition of "workplace adjustment" in the Workplace Adjustment Policy. 2. I observe further that to the extent the PSA submitted that I should have regard to the Workplace Injury Management and Workers Compensation Act, the question arises whether Ms Brown's inability to perform the inherent requirements of her role would render it "not reasonably practicable" to provide her with the modified duties sought by the PSA, within the meaning of s 49(3)(a) of that Act. 3. Rather than enabling the performance by Ms Brown of the inherent requirements of her role, the Proposed Recommendation would result in the removal of these requirements altogether. It follows that the effect of the Proposed Recommendation would be to require the creation, on a bespoke basis for Ms Brown, of a new "Inspector" role. 4. The PSA contended that the managerial and administrative duties currently being performed by Ms Brown formed the majority of an Inspector's duties, and so Ms Brown was essentially fulfilling the primary responsibilities of the role even if she is unable to perform operational duties. However, of the duties described by Ms Brown in her second statement, referred to at [15] above, a large number have been devolved to other officers or were tasks which once set up did not need extensive work to maintain. Ms Hall estimated that the duties described at [14] above would occupy approximately 20% of Ms Brown's work time. Mr De La Paz stated that "for the last couple of years Ms Brown has been given administrative tasks" [6] but that this work "has slowly dwindled". [7] 5. The upshot is that it is very difficult to see precisely what tasks Ms Brown would perform if her role were modified in the manner anticipated by the Proposed Recommendation. There is force to the Secretary's submission that "it would amount to simply allowing Ms Brown to remain in the position whilst not actually performing the role". [8] 6. In relation to the largely opinion evidence from Messrs Ghazaleh, Hancock and Petrovic that there is adequate support at the Downing Centre to dispense with the requirement for Ms Brown to be able to perform operational duties, there are four points to note. First, as I have found, it is an inherent requirement of the role of Inspector that the incumbent be able to perform those duties. The opinions of the witnesses that this ought not to be the case does not greatly advance the matter. 7. Second, the views expressed by Messrs Ghazaleh, Hancock and Petrovic do not recognise that the Inspector in the Metro Region may be required to work at various court complexes. Their position necessarily anticipates Ms Brown working exclusively at the Downing Centre but fails to consider the work an Inspector may be required to perform at other courts, further calling into question the extent of the duties that she would in fact perform in any modified role. 8. Third, relieving Ms Brown of operational duties requires that responsibilities that would otherwise rest with her must be devolved to other Sheriff's Officers or security staff at the relevant court complexes. This places a greater burden on Ms Brown's co-workers. It is relevant in this regard that all of the PSA's witnesses, including Ms Brown, accepted that the Sheriff has a duty of care to ensure that operations are appropriately resourced with suitably capable officers to minimise the risks of harm to staff and members of the public. 9. Finally, the Department would be required to maintain in perpetuity the current arrangements in which two officers are employed in the role of Inspector, where only one is provided for in the budget of the Office of the Sheriff. That is, the Sheriff would be required to "carry" extra resources to make up for Ms Brown's lack of capability. 10. I have considered the PSA's submissions as to the relative infrequency of Inspectors at the Downing Centre being required to physically intercede in incidents. Frankly, these submissions misapprehend proper risk analysis and management. The fact that a particular scenario has not played out in the past, or might only rarely arise, does not mean that less vigilance should be exercised to ensure that if it does arise it can be properly dealt with. 11. For all of these reasons, I am not persuaded to make the Proposed Recommendation. The Proposed Order 1. The effect of the Proposed Order is to act as an injunction against the Secretary dismissing Ms Brown "by way of medical discharge". In the context of this case, and in particular the terms of the letter of 3 March 2021 referred to at [5] above, the PSA must be regarded as seeking to prevent the Secretary effecting Ms Brown's retirement on medical grounds pursuant to s 56 of the Government Sector Employment Act. 2. Section 56 is in these terms: 56 Retirement on medical grounds The person who exercises employer functions in relation to a Public Service employee may retire the employee if— (a) the employee is found to be unfit to perform or incapable of performing the duties of his or her employment, and (b) the employee's unfitness or incapacity— (i) appears likely to be of a permanent nature, and (ii) has not arisen from actual misconduct on the part of the employee, or from causes within the employee's control. 1. Given the evidence and findings set out above, the conditions for the exercise of the Secretary's powers under this provision appear to have been met. The question is whether the PSA has made out a case for the Commission to intervene to prevent the Secretary invoking those powers. 2. It is well established that the Commission has the power to make an order preventing the dismissal of an employee. The principles to apply when determining whether to grant such relief were set out in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales on behalf of Pearcey, Barnett and Woelfl v Department of Attorney General and Justice - Corrective Services NSW [2012] NSWIRComm 33 at [32]-[34]. It is not necessary to reproduce those passages. 3. Put simply, there are two questions to be answered in deciding whether to make the Proposed Order. First, whether the PSA has shown that there is a serious question to be tried as to whether a decision to medically retire Ms Brown would amount to an unfair dismissal. Second, whether the inconvenience or injury which Ms Brown would be likely to suffer if the Proposed Order is not made outweighs or is outweighed by the inconvenience or injury which the Secretary would suffer if the relief were granted. That is, whether the balance of convenience favours the granting of an injunction. 4. The PSA did not directly address either of these questions. Little was offered beyond the submissions reproduced at [26] above. In respect of the contentions made in those submissions I make three observations. 5. First, no evidence was led by the PSA as to the financial effects that a medical retirement would have on Ms Brown. It is therefore not possible to determine whether any dismissal "would be harsh in its financial effects". 6. Second, I do not accept that a medical retirement would be based on a "flawed decision-making process". It is beyond question that Ms Brown has been unable to perform her pre-injury duties since September 2016. Since then the Department has worked to secure her return to full duties, without success. Other than the PSA taking exception to the Department's unwillingness to modify Ms Brown's role, no real criticism was, or indeed could be, levelled at the Department's efforts in this regard. 7. Third, the PSA did not explore its contention that any medical retirement would be "unjust as contrary to law". To the extent that this submission reflects the PSA's reliance on the Workplace Injury Management and Workers Compensation Act or the Anti-Discrimination Act, it is answered by my findings regarding the inherent requirements of the position of Inspector and Ms Brown's permanent incapacity to perform them. 8. I am not persuaded that the PSA has demonstrated that there is a serious question to be tried as to whether a medical retirement of Ms Brown would constitute an unfair dismissal. 9. On the balance of convenience, I acknowledge that if Ms Brown were to be medically retired she would suffer a detriment. She is 68 years old with a permanent injury to her knee. It can readily be assumed that her prospects of finding alternative employment are limited. 10. There are, however, several countervailing factors. First, s 56 of the Government Sector Employment Act confers a power on the Secretary to effect the medical retirement of an employee who appears likely to be permanently unfit to perform or incapable of performing the duties of his or her employment. There is, in effect, legislative recognition that a dismissal in such circumstances may be warranted. As stated, the conditions in s 56 appear to be met in Ms Brown's case. The PSA would need to articulate why the Secretary should be restrained from exercising his legislative discretion, and it failed to do so. 11. Second, some efforts were made by the Department to find Ms Brown alternative duties. She rejected the role offered in the letter of 3 March 2021 referred to at [5] above on the basis that it would have been tantamount to a demotion from a Grade 5 position to a Grade 1-2 role. Her position at the time was perhaps understandable. 12. Subsequently, a number of positions were put forward as potential alternative roles. These were not in the Office of the Sheriff, but in other agencies within the Department. Admittedly, Ms Brown would have had to apply for the jobs; they were not offered to her for acceptance. Ultimately, Ms Brown rejected the roles as not being suitable. Her primary objection was that the roles were not necessarily at a fixed location but might require her to travel at short notice throughout New South Wales. 13. During her oral testimony in these proceedings, though, it became clear that Ms Brown was not interested in any role outside the Office of the Sheriff. I can understand her position, given she has worked in that office for 35 years. Equally, the objects of the Industrial Relations Act require me to seek an outcome that is fair and just: s 3(a). The Department's efforts to secure alternative employment for Ms Brown, and her apparent unwillingness to engage in that process, are relevant to determining whether the Commission should intervene. 14. Third, and as already noted, the position advanced by the PSA would require the Department to effectively create a bespoke position for Ms Brown, in which she retained the title and remuneration of "Inspector" but did not perform all, or indeed a majority, of the requirements of the role. In addition, the Office of the Sheriff would need to perpetuate the current arrangements in which a second person has had to be engaged to perform the duties otherwise required of the Inspector role, despite the budgetary constraints noted above. 15. I find that the balance of convenience weighs against the making of the Proposed Order. Conclusions 1. I have a great deal of sympathy for Ms Brown. She is 68 years old and, as a result of a work-related injury, finds herself facing the possibility of losing employment with an agency to which she has devoted 35 years of her working life. 2. However, for all of the reasons set out in this decision I do not consider that the PSA has made out a case for intervention by the Commission. Order 1. The proceedings are dismissed. Damian Sloan Commissioner ********** Endnotes 1. Statement of Daniel De La Paz, 6 July 2021 2. Public Service Association and Professional Officers' Association Amalgamated Union of NSW v Industrial Relations Secretary on behalf of the Department of Justice [2019] NSWIRComm 1060 at [12] 3. Statement of Tracey Hall, 30 June 2021 4. Statement of Ann Brown, 3 June 2021 5. Statement of Ann Brown, 13 July 2021 at par 21 6. Statement of Daniel De La Paz, 6 July 2021 at par 22 7. ibid. at par 23 8. Outline of Submissions for the Respondent at par 67 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 August 2021