Industrial Relations Commission of New South Wales CITATION: Warren v Department of Education [2009] NSWIRComm 1032 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT PARTIES: Lesley Rae Warren RESPONDENT NSW Department of Education and Training FILE NUMBER(S): 1783 of 2008 CORAM: Cambridge C CATCHWORDS: Unfair dismissal - termination of employment - medical retirement - alleged incapacity to perform inherent requirements of position - absence of proper substantive basis - procedural errors - absence of evidence from decision maker - denial of natural justice - dismissal harsh, unreasonable and unjust - reinstatement ordered. LEGISLATION CITED: Industrial Relations Act 1996 [NSW] Teaching Service Act 1980 CASES CITED: 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). HEARING DATES: 15, 16, 17, 30 April, 1 May, 15 June 2009 DATE OF JUDGMENT: 1 July 2009 APPLICANT Mr A Slevin, barrister with Ms J Worrad solicitor Solicitors for applicant LEGAL REPRESENTATIVES: Federation Law on behalf of NSW Teachers Federation RESPONDENT Ms E Brus, barrister with Mr C Miles senior legal officer Department of Education and Training DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES COMMISSIONER CAMBRIDGE 1 July 2009 Matter No IRC 1783 of 2008 New South Wales Teachers Federation on behalf of Lesley Warren v NSW Department of Education and Training Application by the New South Wales Teachers Federation on behalf of L Warren re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2009] NSWIRComm 1032 1 This matter involves a claim for unfair dismissal. The claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act). The claim was filed on 19 September 2008, by the New South Wales Teachers Federation (the Federation), on behalf of Lesley Rae Warren (the applicant), and named the respondent employer as Director General of Education and Training, NSW Department of Education and Training (the Department). 2 Following unsuccessful conciliation the matter has proceeded to Arbitration involving Hearing on the following days; 15 and 16 April in Byron Bay, 17 April in Ballina, 30 April, 1 May and 15 June in Sydney. 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. 13 Essentially the applicant had been suspended from duty before she could commence in the position to which she had been promoted a few weeks earlier. The suspension from duty was based upon the second HealthQuest report and the applicant lodged an Appeal against that report with the HealthQuest Appeals Committee. The HealthQuest Appeals Committee wrote to the applicant on 13 February 2008 and advised that her Appeal had, in part, been allowed. 14 The Department wrote to the Chairman of the HealthQuest Appeals Committee seeking further clarification of the Committee's determination to in part, allow the applicant's Appeal. Before the Chairman of HealthQuest Appeals Committee provided the further clarification that was sought, the Department wrote to the applicant and inter alia, stated that "Byron Bay Public School is unable to accommodate your medical restrictions." Exhibit 37 @ page 37. This correspondence further mentioned that if the Appeals Committee held that the applicant was permanently unfit for her substantive position and the Department was unable to provide alternative employment, then "Medical retirement" may follow. 15 The Chairman of the HealthQuest Appeals Committee wrote to the Department on 14 March 2008, and relevantly advised that the applicant "…is permanently unfit for the full range of duties of her substantive position [but]… she is fit for the permanently modified duties as recommended…". Ibid @ page 40. On the same day the Department wrote to the applicant and advised, inter alia, that "…we now refer your details to Staffing Services in order to ascertain whether permanently modified duties are available within the Department." Ibid @ page 42. 16 The applicant briefly returned to Byron Bay Public School on 19 May 2008 to participate in a Functional Capacity Evaluation and Workplace Assessment undertaken by an Occupational Therapist engaged by the Department. The Occupational Therapist reported to the Department in June 2008. 17 On 26 August 2008 the Department's Regional Director, Mr Peter Haigh, wrote to the applicant advising, inter alia, "..that I have approved your medical retirement…" Ibid @ page 51. The basis for this decision involved the conclusion that the applicant was "…unfit to perform the inherent requirements of your substantive position." Supra 18 The applicant has challenged the Department's conclusions about her alleged unfitness to perform the work of a Classroom Teacher and Assistant Principal. The applicant acknowledges that certain workplace accommodations or modifications are needed to meet her particular medical requirements. The applicant rejects the Department's assertion that there is no government school in New South Wales that could reasonably meet her medical restrictions on an ongoing basis. 19 The applicant seeks to be reinstated to her teaching roles because she contends that it would be unreasonable for the Department not to provide the workplace accommodations for her medical requirements. 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. 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. 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. CONSIDERATION The Decision to Dismiss 47 The decision to dismiss the applicant was taken by a Mr Haigh who was not called to give evidence in these proceedings. The absence of evidence from the decision maker is ordinarily problematic in one of these matters. In this instance this difficulty was compounded by evidence that the decision maker had no direct contact with the applicant concerning her medical restrictions, and the subsequent decision to dismiss. 48 It is difficult to accept that it could be reasonable or just for any employee to be dismissed without a fundamental process that included the opportunity to put a case, face to face, with the decision maker. The requirement for such a process is primarily derived from the notions of natural justice. Large organisations usually have structured hierarchies that devolve decision making to particular individuals. These decision makers will logically rely heavily on information and recommendations provided by others. However, if the decision maker determines something as serious as termination of employment without providing opportunity for face to face contact, he or she risks creating the appearance that they do not have the courage of their convictions. In addition, both the legal and ethical basis for the decision is open to manifest challenge. 49 There are exceptional circumstances where a decision to dismiss might be appropriately taken without need to provide the employee with an opportunity to be heard in person. These exceptional circumstances usually involve acts of such gross and wilful misconduct, admitted or undeniably existent, that no further inquiry is warranted because no possible explanation or mitigation could alter the decision. It follows that the nature of the applicant's circumstances must prima facie, be closed to contemplation of any outcome other than dismissal. For if some other outcome could be possible as a matter of logic and natural justice, the decision maker would have to hear from the applicant. 50 The Commission has no evidence as to what weight, if any, the decision maker may have given to factors that might have provided for any alternative to dismissal. For example, what, if any, consideration was made by Mr Haigh about the return of the applicant to the Southern Cross School in Ballina as an alternative to "medical retirement"? Would the applicant have considered relocation to Ballina as an alternative to "medical retirement"? Further, did Mr Haigh give any thought to the recommendations of the Occupational Therapist engaged by the Department, Ms Gale, who suggested that the applicant might be utilised "as an STLA teacher…"? Exhibit 40 annexure "B" @ page 32. 51 Similarly, the Commission has no evidence from Mr Haigh about the weight that he attached to the apparent failure of the applicant to provide "…information specifically related to your allergic condition… Exhibit 37 @ page 51. This apparent failure on the part of the applicant was an issue of such gravity that it was mentioned in the letter of dismissal immediately before the letter advised of "medical retirement". This apparent failure by the applicant to provide information seemed to be something that impeded exploration of employment options for the applicant. However the Commission could only obtain a vague explanation about this important issue from the questioning of Mr Cloak. 52 When questioned by the Commission about the reference in the letter of dismissal to particular information that the applicant had apparently failed to provide, Mr Cloak gave the following evidence: " Q. You think it's that information - A. That is right. Q --that Mr Haig [sic] is referring to in this letter? A. I think, yes I think that Ms Warren had been asked by Mr Fyles [sic] on numerous occasions for details of what this 500 metres was about and it wasn't provided. " Transcript of proceedings (30/04/09) @ pages 51-52. 53 The chemical "safety" zone of 500 metres to which Mr Cloak referred was mentioned as part of a risk management plan initially developed when the applicant was teaching at Southern Cross school, and later included for Byron Bay school. The 500 metres zone was a practical measure at Southern Cross school but became plainly impractical to implement at the smaller Byron Bay school where the campus grounds are within one to two hundred metres of other domestic and commercial buildings. Just what information the applicant was supposed to have provided about the 500 metres zone remains a mystery. The Direction Not to Work 54 The applicant was telephoned in January 2008 and directed not to attend for work at Byron Bay Public School. Unfortunately this important direction was not committed to writing nor was it conveyed to the Principal of the School. On or about 20 January the Principal, Mr Files, and other Executive Teachers were waiting for the applicant to attend school for planning meetings, unaware that the Department had directed her not to work. 55 The direction appeared to have been made on about 14 January 2008, as a consequence of the second HealthQuest report dated 10 January. The Department sent a letter to the applicant dated 24 January 2008 which iter alia, referred to the second HealthQuest report. However this correspondence did not confirm the direction not to attend for work. It appeared from the evidence provided by Mr Cloak that it was his decision to direct the applicant not to attend for work. 56 Mr Cloak's evidence about the reason(s) for this decision was difficult to follow. During cross examination Mr Cloak initially recounted that his decision to direct the applicant not to work was based on recommendations made by Ms Malcolm which had emanated from the second HealthQuest report: "Q. But following this report that seems to simply confirm the 2006 report, she was asked not to teach? A. Mm-hmm. Q. Who made that decision? A. Well, there was a view from the OH&S directorate in particular and the advice that they gave us, which is what I received, that in particular the wording had changed in the recommendations. In recommendation 1 it says "is permanently unfit for the range of duties". So the advice was from the HealthQuest report. Q. So it was the use of the word "permanent"? A. It was capitalised which was different to the previous report and it gave some significance. I believe, to the recommendations. And we asked for the DET OH&S directorate's advice. Q. Now let's go back. "We" asked. Who is 'we"? A. That would be my - after discussing the recommendations with Ms Malcolm, she would have then followed it up with them. Q. So Ms Malcolm came to you with the final recommendations from this report? A. Yes." Transcript of proceedings (30/04/09) @ page 30. 57 Mr Cloak provided further evidence about the reason(s) for the direction to the applicant not to work: "Q. And as a result Ms Warren was directed not to return to the worksite? A. That is correct. Q. Pending processing of the HealthQuest report and recommendation? A. That is right. And so advice was given. Who made the decision to direct Ms Warren not to return to the worksite? A. Well, it was a decision that I made and it was ratified in the letter by Carol Kerrigan [sic] . Q. And so - A. It would be a recommendation that I make to Carol Kerrigan [sic] , yes. Q. So - A. The regional director. Q. Well, why? Why did you make the recommendation that she not return to the worksite? A. Okay. In the meantime, Mr Fyles [sic] had raised with me issues around a number of parents who were complaining and showed me letters and correspondence from parents." Transcript of proceedings (30/04/09) @ page 32. 58 When the totality of the testimony of Mr Cloak is considered, it seemed that his decision to direct the applicant not to work was based upon the definitive recommendations of the second HealthQuest report as conveyed to him by Ms Malcolm. It was highly unlikely that the various issues raised by Mr Files would have provided basis for the direction not to work because these issues had been raised during 2007 (and earlier), and there was no suggestion at those times for a direction not to work. 59 It is important to recognise the gravity of the direction not to work. Mr Cloak acknowledged there would need to be some clear and compelling basis upon which to make such a direction. In answer to questions from the Commission Mr Cloak provided the following evidence: "Q. What authority - can you tell me how there's an authority to direct someone not to return to the work site? A. Well, it was important at that point in time that - Mr Fyles' [sic] situation had got to eh point where he believed that there was potential danger for Ms Warren and for the staff and at any point in time we can direct the staff member not to be at their school. That's usually because of there [sic] own welfare, but it could be to do with the students. Q. So they're then on - A. That doesn't mean they're dismissed or anything else. It just means that we don't want you at school for a particular reason. Q. Yes. And so they continue to be paid, do they, their ordinary wages throughout that period? A. Yes. That frequently happens if a teacher, for example is - Q. So it's a sort of standing down with pay? A. Crisis. yes." Transcript of proceedings (30/04/09) @ pages 52-53. 60 Mr Cloak seemed to suggest that a "crisis" had developed involving potential danger to Ms Warren, staff and students and this had underpinned his direction to the applicant not to attend for work. As already mentioned, this "crisis" could not have been produced by the issues raised by Mr Files because he was expecting the applicant to attend school for the planning meetings circa 20 January. Logically therefore the "crisis" that warranted the very serious step of a direction to not attend for work must have been created by the second HealthQuest report. An analysis of the two reports is therefore necessary. 61 The first HealthQuest report was issued almost exactly one year earlier and the applicant had worked during 2007 (except long service leave during term 2). Consequently one might have expected the second HealthQuest report to differ significantly from the first in order to catalyse the direction not to attend for work. 62 It is interesting to examine the recommendations made in the two HealthQuest reports. The recommendations are set out in full: 63 The first HealthQuest report - "RECOMMENDATIONS 1. Ms Warren is not fit for the full range of duties of the substantive position, and this situation is likely to be permanent. 2. She is fit for Alternative Duties with the present employer, with the following restrictions. > Because of her balance disorder she should not be involved with any PE or sporting activities, nor participate in playground activities. The restrictions associated with her compassionate transfer continue to apply. These are that her job should not require prolonged driving (longer than 15 minutes) and driving after dark or in marginal lighting conditions. > Because of her susceptibility to allergy, she should avoid working in confined areas and should avoid situations when fumes of fresh paint, adhesives or pine dust are likely to be encountered. 3. A Fitness to Work Summary may be issued later if the employer certifies that alternative work is not sustainable. If further health-related concerns arise, the employer is welcome to refer back for review." 64 The second HealthQuest report - "FINAL RECOMMENDATIONS 1. This person is PERMANENTLY UNFIT for the full range of duties of the substantive position of Teacher & Assistant Principal in the present location. 2. This person is capable of permanently modified teaching duties with the following adjustments. She would need exemption from activities involving the following, Prolonged car travel beyond 15-20 minutes Driving at night or in poor lighting conditions PE, Sports lessons and Playground duties, participation in ball games and supervising children in a crowded playground Supervision of students on extended excursions for several days Exposure to colophony, glue, paint fumes, and solvents 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. 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. The Medical Issues 80 The substantive basis for the applicant's dismissal can be conveniently summarised by reference to the words used by Mr Peter Johnson who decided, "… I do not have any substantive positions in schools which would reasonably accommodate the restrictions…" Exhibit 37 @ page 35. [emphasis added]. Consequently the Commission has been required to test this proposition. 81 There was no dispute that the applicant was not fit to perform the full range of duties of a Teacher and Assistant Principal. The applicant's medical problems involved two separate issues. The first issue was a balance disorder which created a number of identified restrictions or adjustments. The second health issue involved a severe allergic reaction to colophony. The restrictions (or adjustments) that the HealthQuest reports established were confirmed as being permanent in the second HealthQuest report. In order to test the proposition as advanced by Mr Johnson each of the restrictions must be analysed as to whether it could be reasonably accommodated by an employer such as the Department. Reasonable Accommodation of the Medical Restrictions 82 There are 5 identifiable restrictions contained in the second HealthQuest report: 1. Prolonged car travel beyond 15-20 minutes 2. Driving at night or in poor lighting conditions 3. PE, Sports lessons and Playground duties, participation in ball games and supervising children in a crowded playground 4. Supervision of students on extended excursions for several days 5. Exposure to colophony, glue, paint fumes, and solvents Restrictions 1 and 2 83 Restrictions 1 and 2 relate to driving of motor vehicles under certain conditions. The Department, to its credit, sought to accommodate these restrictions when it approved the transfer of the applicant to Byron Bay School. It seems somewhat contradictory to later rely on these driving restrictions as being something that could not be reasonably accommodated. Further, as Mr Cloak acknowledged, there are many Teachers who do not hold driver's licences. It would be plainly unfair to suggest that a licence to drive a motor vehicle was an inherent requirement of the position that the applicant held. Restriction 3 84 Restriction 3 relates directly to the applicant's balance disorder. The evidence established that at both Southern Cross and Byron Bay Schools this restriction could be accommodated with the assistance of colleagues. The re-rostering arrangements that were employed at Byron Bay relied upon the preparedness of other Teachers to swap particular lessons and to perform additional playground supervision involving the more active student pursuits. 85 Restriction 3 was to be tested at the start of 2008. Mr Files had met with the applicant on 14 December 2007 and told her that he expected her to undertake the full role including teaching sport and PE and this "..was not negotiable". Exhibit 31 @ page 12. Mr Files intended to bring this matter to a head but the applicant was directed not to work before the ultimatum was reached. 86 Could this particular restriction have been reasonably accommodated at Byron Bay School in term 1 of 2008? The answer to that question will never be known. However what remains as an issue is whether this restriction can be reasonably accommodated more generally. 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. Restriction 4 92 Restriction 4 was the only additional item which had not been mentioned in the first HealthQuest report. It is difficult to understand the basis for this restriction. The second HealthQuest report mentioned that; "She is able to take students on short excursions. There may be problems with longer excursion such as to Canberra over several days. However she is able to go on trips and overnight." Exhibit 37 @ page 19. 93 There were no details provided about the difficulties that this restriction might create. Presumably a restriction of this nature would have a similar potential for a re-rostering solution like restriction 3. 94 In the absence of evidence of an unsuccessful attempt to accommodate this restriction and without more detail, it would seem to be unreasonable to establish that supervision of students on extended excursions represented an inherent requirement of the position. If such an inherent requirement was established it would be likely to severely disadvantage Teachers who were single parents with their own child care responsibilities. Restriction 5 95 The applicant's severe allergic reaction to colophony was treated with starkly different levels of concern. At the time that the applicant was transferred to Byron Bay it was a low order matter that was not even mentioned to Mr Files. Mr Cloak provided the following evidence: "Q. At the time were you aware of Ms Warren's allergy? A. In a minor sense. It wasn't something that was significant in my mind or had been raised with me as a significant issue. Q. In the meeting you had with Mr Baker and Mr Fyles [sic] did Mr Baker raise the allergies? A. No, I'm not aware of that. Basically the issue was around whether the driving issue could be addressed and whether Byron Bay was able to accommodate Ms Warren." Transcript of proceedings (30/04/09) @ page 15. 96 In contrast, Mr Files provided the following evidence about his contemplation of the applicant's allergy: "Q. … By the end of 2006, what are the issues that you understood applied to Ms Warren? A. By the end of 2006, Ms Warren had attempted to - had shared more information with me and attempted to validate that by a couple of different measures. That included things such as the most frightening one to me was the colophony." Transcript of proceedings (17/04/09) @ page 17. 97 Somehow the applicant's allergic reaction to colophony has gone from being an issue that was not even worth mentioning in discussions with the Principal of the School to which she was being transferred, to become the most frightening of all issues. A proper consideration of the colophony allergy places it between these two extremes. 98 Mr Files should have been made aware of the applicant's allergy to colophony as part of the transfer discussions. Mr Files could be understandably aggrieved when he later discovered that the applicant had potentially life threatening reaction to colophony. Further, the 500 metres radius safety zone that had been in operation at Southern Cross was plainly impracticable at Byron Bay. Although Mr Files had understandable justification for concern, the infusion of fear about the colophony allergy elevated the issue beyond any sensible management. 99 A safety risk management plan to address the applicant's anaphylaxis should not be beyond the capabilities of a government agency that has the responsibility for the safety of thousands of school children in New South Wales, many of whom must, statistically, also suffer from some form of anaphylaxis. As a matter of equity and balance, it would be reasonable that a risk management plan might include provisions that in situations where the applicant had to be removed from the School campus and no other productive work could be reasonably arranged, the applicant may be required to take a period of leave or absence without pay. 100 The 5 restrictions when properly examined either singularly or considered in combination, do not represent issues that satisfy the statement made by Mr Johnson that; "We do not have a position in a school which could reasonably accommodate MS[sic] Warren's restrictions." Exhibit 37 @ page 44. If this statement was correct, the Department would be sadly failing not only the applicant and its other employees, but also the public of New South Wales. The Occupational Therapists Reports 101 On 19 May 2008 the applicant returned to Byron Bay School for one day. On this day she undertook a Workplace Assessment and Functional Capacity Evaluation conducted by an Occupational Therapist, Ms Gale, who had been engaged by the Department. 102 It is not clear why the Department engaged the Occupational Therapist at this time. At the end of March 2008 the HealthQuest processes had been completed and Staffing Services had advised that the Department could not reasonably accommodate the restrictions or adjustments that had been finalised in the second HealthQuest report. In addition, the applicant had been directed not to work since January. What would be achieved by the work and report of an Occupational Therapist at this time? If it could be beneficial to the applicant it would have to materially alter or challenge the HealthQuest report, and or overturn the position of Staffing Services, and or contradict the direction not to work. 103 The time at which the Department might have logically engaged an Occupational Therapist would be during the HealthQuest processes and before any determination was made about the reasonable accommodation of the finalised restrictions. Unsurprisingly the reports of the Occupational Therapist engaged by the Department broadly supported the position that had developed by that time. 104 The Occupational Therapist engaged by the Department reconfigured the 5 restrictions from the second HealthQuest report and added other restrictions so that the total then doubled to 10. Notwithstanding the expanded restrictions that were documented by the Occupational Therapist she did not recommend termination of employment but instead suggested that; "Consideration to be given to utilising Ms Warren's teaching skills in a more controlled environment eg: as an STLA teacher in a ground level room where all resources are positioned at waist and Ms Warren is able to work with small groups of children who come to her." Exhibit 40 @ page32. 105 This recommendation appeared to have been overlooked when Mr Haigh included the following paragraph in the letter of dismissal: "In addition we arranged a further independent Functional Capacity Evaluation and Workplace Assessment (both reports are attached) to further inform us on your capacity to undertake your employment with the Department of Education. The results from these assessments supported findings from Healthquest, that you are unfit to perform the inherent requirements of your substantive position." Exhibit 37 @ page 51. [Emphasis added] 106 The last sentence of this part of the letter of dismissal is particularly important because even in the absence of Mr Haigh to provide evidence, the statement was plainly wrong. There was no finding made by HealthQuest or the Occupational Therapist that the applicant was unfit to perform the inherent requirements of her position. On the contrary, the second HealthQuest report stated that the applicant, "..would be capable of teaching with some adjustments." Ibid @ page 20. 107 These are not semantic nuances but important differences in the actual nature and extent of the incapacities of the applicant and the practical accommodation of those incapacities. It is fundamentally erroneous to translate a permanent unfitness to perform the full range of duties into an unfitness to perform the inherent requirements of the position. 108 Although the Commission is disadvantaged because of the absence of evidence from Mr Haigh, in would seem that both the Occupational Therapist, Ms Gale, and Mr Haigh may have likely been led into error because of the impetus for termination created by the direction not to work and the subsequent statements by Mr Johnson and others about there being no reasonable accommodation of the applicant's restrictions. This impetus and the time at which the Department engaged the Occupational Therapist, provides an underlying explanation for the significant differences that were revealed between the reports of Ms Gale and those of another Occupational Therapist, Ms Stevenson. 109 The underlying explanation for the significant differences between the reports of the respective Occupational Therapists is further supported by the reports of two Physiotherapists, Exhibits 26 and 27. Consequently when all of the medical evidence is carefully evaluated and considered in context, on balance and weight of evidence the Commission must adopt a preference for the material provided by the Occupational Therapist, Ms Stephenson, the Physiotherapist/Associate Lecturer, Ms Rahmann and the Physiotherapist, Ms Richards over the evidence of Ms Gale. 110 This preference is adopted notwithstanding that Ms Gale conducted her evaluation of the applicant at the workplace while the other medical evidence was gathered from clinical assessments. The extent to which more accuracy or veracity might be attached to a workplace as opposed to clinical evaluation has been firmly displaced by other factors which impugn the evidence given by Ms Gale. The Overbalance Incidents of 19 May 111 There was direct conflict in evidence about two particular incidents that occurred on 19 May 2008 during the Workplace Assessment conducted by Ms Gale. In addition to the applicant and Ms Gale, an Officer of the Federation, Ms Lynn Takayama was present for most of the Workplace Assessment. Importantly Ms Takayama was present at the time that the two contentious incidents occurred. These incidents occurred during an assembly and involved the applicant allegedly overbalancing and having to lean on two different students in order to regain her balance. 112 The applicant denied that she had overbalanced as was alleged by Ms Gale. Ms Takayama said that she did not see the applicant overbalance at all during the assembly. The applicant gave evidence that she had touched at least three students on the head during the assembly for the purposes of re-directing their attention. Further, she recounted a separate event where she had squatted beside an autistic student and placed her hand on his shoulder as part of an established method of dealing with that particular student's difficulties. 113 The evidence from Ms Gale about the alleged overbalancing incidents was interesting. In the Workplace Assessment report, Ms Gale recorded, " Ms Warren was observed to overbalance on two occasions…On one occasion she placed her hand down onto student's shoulder to right herself and on a second onto a student's head. " Exhibit 40 @ page 15. 114 The Functional Capacity Evaluation report stated, "She was noted to right her balance by placing her hand down on a child's shoulder x 1 and head x 1. When she placed her hand down on the child, Ms Warren was then noted to tap/pat them and speak with them, possibly as a strategy to cover for her own difficulties." Ibid @ page 25. 115 Ms Gale further stated; "I observed Ms Warren place her hand on the head of a student to lean on him to assist her maintain her balance…" Ibid @ paragraph 15. 116 This evidence from Ms Gale recounts two separate over balance incidents, one involving the shoulder (the shoulder incident) and the other the head (the head incident). Both incidents involve the "placing" of a hand to "right herself" and the head incident included the applicant "lean on" the student. Ms Gale's description of these incidents using words, "placed her hand", "right herself" and "lean on" was clearly suggestive of the application of a level of force of some significance. On any estimation it was recorded to be more than slight or light touching. 117 It was therefore surprising to have Ms Gale offer the following description of the head incident in response to questions from the Commission; "Q. The first contact was with the head? A. Just a light touch. It wasn't a lot of pressure, but my concern is if she had stumbled further." Transcript of proceedings (30/04/09) @ page 90. 118 Ms Gale's response was essentially unprompted. She was asked to confirm the point of contact but instead provided evidence about the level of pressure and further elaborated about her concerns. Unfortunately much of Ms Gale's evidence was given in this fashion. In this particular instance it is difficult to reconcile her statement where she said the head incident involved the applicant "lean on" the student with her subsequent testimony that it was "Just a light touch." 119 It is unnecessary to detail all of the other incongruities that emerged from the evidence provided by Ms Gale. However, particularly because of the potential impact regarding reinstatement that the over balance incidents may have, it should also be mentioned that the hand written notes taken by Ms Gale on 19 May 2008, contain no specific record of either the shoulder incident or the head incident. The only relevant record included in Ms Gale's notes from that day is; "- Bend to kids / patted head - slight over balance - walking around - check." Exhibit 41. 120 Following careful analysis and evaluation, the evidence of the Occupational Therapist engaged by the Department, Ms Gale, cannot be adopted. 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. 127 Consequently the Commission is prepared to find in favour of the applicant. Reinstatement or re-employment of the applicant would not be impractical. Therefore the Commission is prepared to provide for Relief by way of the reinstatement of the applicant. The Commission has determined that the dismissal of the applicant was harsh, unreasonable and unjust. The following Orders are now made: ORDER 1 The Commission Orders, pursuant to section 89(1) of the Act, that the Department reinstate the applicant to her former position on terms not less favourable to the applicant than those that would have been applicable if the applicant had not been dismissed. The applicant is to be reinstated as soon as practicable and on or before 27 July 2009. ORDER 2 The Commission Orders, pursuant to section 89(3) of the Act, that the Department pay to the applicant an amount of remuneration in respect to the intervening period between dismissal and reinstatement. This amount is to be paid to the applicant as soon as practicable, and within twenty one days from today, 1 July 2009. ORDER 3 The Commission Orders, pursuant to section 89(4) of the Act, that the period of employment of the applicant with the Department shall be taken not to have been broken by the dismissal. The intervening period between dismissal and reinstatement of the applicant shall be counted for all purposes as a period of employment. oooOOOooo 01/07/2009 - typographical error - Paragraph(s) order 2 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.