Pushpa Kanta Gounder and Hunter New England North Coast Northern Sydney Central Coast Area Health Service [2012] NSWIRComm 1018

Industrial Relations Commission New South Wales Medium Neutral Citation: Pushpa Kanta Gounder and Hunter New England North Coast Northern Sydney Central Coast Area Health Service [2012] NSWIRComm 1018 Hearing dates: 26 June 2012 Decision date: 09 August 2012 Before: Stanton C Decision: Principal Judgment Catchwords: Unfair dismissal - whether dismissal was harsh, unjust or unreasonable Legislation Cited: The Industrial Relations Act 1996 Cases Cited: Rawcliffe and the Northern Sydney Central Coast Area Health Service [2007] FMCA 931. Hobbs v Capricorn Coal Management Pty Ltd [2000] AIRC 678. Reilly & WorkCover [2005] NSWIRComm 1025 Jones v Dunkel (1959) 101 CLR 298 Category: Principal judgment Parties: Pushpa Kanta Gounder Hunter New England North Coast Northern Sydney Central Coast Area Health Service Representation: Mr A Saunders (Respondent) Mr P Moore, solicitor of Brazel Moore Solicitors (Applicant) with Ms P Gounder File Number(s): IRC 1853 of 2011 Publication restriction: No

DECISION 1The applicant commenced employment with the Hunter New England Local Health District (Pathology North) (the respondent) as a Hospital Scientist on 2 April 2007. 2The applicant was absent from work due to a pre-existing injury from 17 February 2010 until her dismissal on 25 November 2011. A claim for workers' compensation was declined on 28 September 2010. 3On 28 February 2011, the respondent wrote to the applicant seeking information from her treating medical practitioner concerning: * Her prognosis. * Whether her current medical condition prevented her from returning to her substantive position. * The likelihood of a potential return to work on a suitable duties program prior to a return to full duties. * The likely timeframes associated with her return to work on a permanent or suitable duties basis. 4Despite at least five subsequent requests between March and October 2011 for the information sought on 28 February 2011, no response was received. In correspondence dated 20 October 2011, the respondent invited the applicant to show cause as to why her employment should not be terminated. 5On 27 October 2011, the respondent wrote to the applicant by email and advised her that in the absence of the required medical information previously sought and, given her continued unfitness for work, it would proceed with a recommendation to terminate her employment. 6On 21 November 2011, the applicant forwarded a copy of a medical report prepared by Dr Maniam and dated 22 December 2010, together with a further WorkCover NSW medical certificate stating she was unfit to work from 19 November to 17 December 2011. 7Shortly stated, Dr Maniam's opinion was that the applicant could no longer work as a Scientific Officer and would have to be deployed to an academic role. 8The applicant was advised of her dismissal by letter dated 24 November 2011: I have now considered the information you have provided, including your current fitness for work status. It is apparent that you remain, and are likely to remain, unfit to perform the inherent requirements of your job as a Hospital Scientist. I therefore have decided that the proposed action will be taken. 9The applicant sought re-employment to another position or monetary compensation. The grounds for the applicant's dismissal were that she was "unfit to perform the requirements of (the) position...(of) Hospital Scientist". In her application, the applicant agreed she could not "perform duties" as a Hospital Scientist when shift hours were included. However, the applicant considered she was able to undertake the requirements of other positions including: * Academic roles; * Management/Supervisory roles; and * Scientific Officer - the position she first obtained in April 2007 which she claimed did not require shiftwork. * 10Given the medical evidence available to the respondent at the time of dismissal, the primary question for determination in this matter is whether the dismissal was harsh, unjust or unreasonable in the circumstances where the applicant had been absent from work due to her injury for some 21 months. 11In the event the Commission finds the applicant's dismissal was, in the circumstances of this case harsh, unjust or unreasonable, the Commission must then proceed to assess the opportunity for re-instatement or re-employment against the relevant medical evidence available at the time of hearing.