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. Applicant's Evidence 12The applicant's written evidence contained 16 pages and 28 attachments which set out, in some detail, her medical and injury management history together with various organisational related grievances regarding a number of shift, roster and position description issues. 13The applicant's evidence also comprised a Statement in Reply to Statements filed by Mr D Croese & Mr D Matthews on behalf of the respondent. Mr Croese is the Operations Manager for Pathology North. Mr Matthews is responsible for Human Resources at Pathology North. The Health Professional Medical Salary (State) Award also formed part of the materials filed by the applicant. 14In cross-examination the applicant confirmed she provided the respondent with a medical certificate on 19 November 2011 stating her injuries occurred as a result of "gradual repetitive motions in the workplace" and that she was unfit to work from 19 November to 17 December 2011. The certificate stated her diagnosis was "widespread musculoskeletal pain" and the relevant management plan was "rest, review with specialist". 15The applicant was subsequently shown various items of correspondence attached to statements filed by both Mr Croese and Mr Matthews as set out below. Correspondence attached to Statement of Mr D Matthews 16Mr Daniel Matthews is the Workforce Services Consultant for the Hunter New England Area Health District and as such is also responsible for operational human resources support for Pathology North. 17On 10 May 2010 the respondent wrote to Dr Haddad, the applicant's treating doctor, proposing the provision of light duties for the applicant in order to assist her recovery process. The correspondence proposed a graded return to work plan commencing with four hours per day, three times a week and subsequently increasing on a fortnightly basis. In that regard, the applicant understood the respondent had sought to bring her back to work on suitable duties. In addition the applicant confirmed the respondent had asked Dr Haddad to discuss the proposed return to work plan with her. She further confirmed she never proposed to return to work under this arrangement. 18The applicant confirmed that she met with Mr Matthews and the respondent's rehabilitation coordinator, Ms Patricia Tims, at Gosford Hospital on 25 November 2010. She further confirmed the purpose of that meeting was to discuss her rehabilitation and potential return to suitable duties. She also confirmed that she was told the respondent would contact her to further discuss the matter of suitable duties prior to the expiry of her then current medical certificate in January 2011. 19The applicant recalled that in February 2011 she was asked to attend a medical examination with Dr J Scott at Royal North Shore Hospital. She further confirmed that she understood part of the reason for attending the medical examination with Dr Scott was to assess her capacity to return to suitable duties. In that regard she confirmed that on 25 November 2010 she left Mr Matthews a voice mail message stating her refusal to attend the appointment with Dr Scott. She further refused an invitation from Mr Matthews to attend the "Clinic" at the Royal North Shore Hospital. Her reason for refusal was grounded in the fact that she sought an independent medical assessment as she did not trust medical staff employed by the Royal North Shore Hospital, or indeed, New South Wales Health. 20In correspondence dated 28 February 2011, the respondent confirmed the applicant's intention not to attend a medical appointment with Dr Scott on 2 March 2011. The respondent's correspondence also confirmed receipt of the applicant's WorkCover NSW medical certificate dated 14 January 2011, which declared her unfit for work for the period 15 February to 15 March 2011. That correspondence also sought the co-operation of the applicant to consult with her treating medical practitioner and have him provide the following information required by the respondent: * The prognosis of your current medical condition. * Whether your current health condition precludes you returning to your substantive position as a Scientific Officer in PaLMS Pathology at Gosford Hospital. * The likelihood of a potential return on a suitable duties program prior to resuming full duties. * The potential timeframes of a return to duty, either on a suitable duties basis or permanently. * The applicant subsequently confirmed she was aware of what was being asked of her in the respondent's correspondence. She also understood that in consulting her medical practitioner she was to ensure he provided a response to the respondent by 22 March 2011. 21The applicant was referred to Mr Matthews' file note dated 16 March 2011 made following receipt of a further WorkCover NSW medical certificate, stating the applicant was unfit from 15 March to 15 June 2011. In that regard she confirmed Mr Matthews had contacted her on 16 March 2011. She subsequently informed him that she had consulted her specialist who would respond to the respondent's request set out in the correspondence dated 28 February 2011. 22The applicant confirmed receiving correspondence dated 30 March 2011 from Mr Matthews referring to the 28 February 2011 correspondence and a subsequent telephone conversation on 16 March 2011 where he informed the applicant no response had been received from her treating medical practitioner or specialist in relation to the information sought. Mr Matthews' correspondence set out a further request for the information to be provided as soon as possible and also asking when the information might be forth-coming. With respect to the respondent's requests for information sought, the applicant acknowledged once more that she understood what was being asked of her and her treating medical practitioner or specialist. 23The applicant confirmed that on 30 May 2011 she received further correspondence from the respondent stating it had not received the information sought from her treating medical practitioner or specialist and requesting the information be received as soon as possible. In that regard the applicant was also asked to advise the respondent when the relevant information sought would be made available. The correspondence further stated that if the required information was not provided by 15 June 2011, the respondent "will need to determine whether employment contract is frustrated and what further action will need to occur". With regard to the 30 May 2011 correspondence, the applicant stated she was not aware at the time that the respondent was contemplating dismissal. 24On 14 June 2011, the applicant sent Mr Matthews an email stating her "doctor" was temporarily unavailable and if further information in relation to the specialist report was required, he should ring her solicitor, Mr Peter Moore. A WorkCover NSW medical certificate certifying the applicant unfit for the period 14 June to 14 July 2011 was attached to that email. The applicant later confirmed she was referring to Dr Haddad in her email. The applicant subsequently confirmed that the WorkCover NSW medical certificate issued on or around 14 June 2011 stated "pain all over body, unable to function". That prognosis was certified by Dr K Ahluwalia. Correspondence attached to Statement of Mr D Croese 25Mr Croese is the Operations Manager of Pathology North and is responsible for 22 individual sites managed by Pathology North. 26On 20 October 2011, Mr Croese wrote to the applicant concerning the respondent's request for her to provide information from her treating medical practitioner concerning her prognosis and ability to return to work. He confirmed the relevant information was initially required by 15 June 2011. 27Mr Croese also advised the applicant that in the absence of receiving further information, or correspondence previously sought, the respondent was considering terminating her employment on the grounds of frustration. He subsequently invited her to provide a "show cause" in writing, stating why her employment should not be terminated, by the close of business on Friday, 28 October 2011. He also reminded her that in the event she was a member of an industrial organisation, she might wish to seek the assistance of that body. The respondent's employee assistance program was available to assist her. 28On 24 October 2011, the applicant sent an email to Mr Croese attaching a copy of a WorkCover NSW medical certificate from Dr Haddad that stated the information sought by the respondent "will be better done by a specialist". The applicant confirmed that upon receipt of the correspondence dated 20 October 2011 she understood her employment was now at risk. On 24 October 2011 the applicant sent an email to Mr Croese which attached a copy of Dr Haddad's earlier medical certificate dated 15 March 2011 where the doctor also stated the information sought by the respondent would be best provided by a specialist. 29Mr Saunders referred the applicant to Mr Croese's email dated 27 October 2011 and her email in response dated 24 October 2011. In that regard, the applicant was directed to the following paragraph of Mr Croese's email: In my letter I asked you to show cause why your employment contract has not been frustrated but this has not been addressed. In the absence of any additional information and your continued unfitness for work I will proceed to a decision based on information available to me. The applicant stated she had read and understood Mr Croese's email message. 30On 28 October 2011, the applicant forwarded a further email to Mr Croese where she stated the following: It is incorrect that my GP continues to certify me unfit for work. Please find two medical certificates attached that was (sic) sent to HR. The first WorkCover NSW medical certificate issued by Dr Ahluwalia was dated 14 June 2011 and stated the applicant had "pain all over body, unable to function" and was totally unfit for work from 14 June to 14 July 2011. The second medical certificate also provided by Dr Ahluwalia was dated 14 July 2011 and stated the applicant had "bilateral shoulder pain" and certified the applicant was fit for suitable duties for the period 14 July to 14 August 2011. The applicant agreed Dr Ahluwalia had stated she was fit for suitable duties 8 hours per day, 5 days per week. Notwithstanding the previous medical certificate from Dr Ahluwalia had stated "pain all over body, unable to function" and unfit to work from 16 June to 14 July 2011, the applicant subsequently disagreed with her treating medical practitioner's comments concerning her body pain. In the alternative, she stated her medical practitioner, Dr Ahluwalia, should have stated that she had joint pain rather than pain all over her body. 31With respect to the WorkCover NSW medical certificate saying she was fit for suitable duties from 14 August to 20 November 2011, the applicant agreed that at no time did she contact the respondent to advise she was ready to return to work. 32The applicant confirmed receipt of correspondence dated 31 October 2011 forwarded to her by registered mail where Mr Croese stated the applicant's email dated 24 October 2011 and two subsequent emails dated 28 October 2011 had not addressed his request that she show cause as to why her employment should not be terminated. Mr Croese also advised the applicant it was his intention to recommend that her employment be terminated on the following grounds: * You have been absent from the workplace since 8 February 2010, the date of your alleged injury. * Liability for your worker's compensation claim was denied by the GIO, effective 28 September 2010. * Information you have provided confirms you remain unfit to perform your normal duties. 33The applicant was given five working days to respond to the respondent's intention to terminate her employment. The applicant subsequently agreed that Mr Croese proposed to recommend her employment be terminated on the grounds that she had not provided any information on which he could make a different decision. On 4 November 2011, the applicant acknowledged receipt of Mr Croese's letter of correspondence dated 31 October 2011. The applicant advised Mr Croese that Dr Maniam would be better able to clarify her fitness for suitable duties. In that regard, she advised Mr Croese that Dr Maniam was currently overseas and was expected to return on 7 November 2011. Accordingly she asked him to delay making any decision until 21 November 2011. Mr Croese subsequently agreed to the applicant's request. 34On or about 19 November 2011, the applicant submitted a further WorkCover NSW medical certificate from Dr Siripurapu which stated her diagnosis was "widespread musculoskeletal pain" and she was unfit for any work from 19 November to 17 December 2011. 35On 21 November 2011, the applicant sent a further email to Mr Croese which attached a copy of a medical report prepared by Dr Maniam, forwarded to her solicitors on 22 December 2010. When questioned about the delay in forwarding this report to the respondent the applicant stated she only received the document from her solicitors on 21 November 2011. Dr Maniam's December 2010 report stated the following concerning her fitness for work: This lady will need to be given a sedentary position where there will be no requirement for prolonged standing and walking and lifting. She is a Scientific Officer and as to whether she could be accommodated in this role is in question... Scientific Officers... move around the laboratory. If this is the case then Pushpa Gounder will have to be re-deployed into (an) academic role. In relation to this report, the applicant subsequently confirmed she had picked up a copy from her solicitors on 21 November 2011. Position Description and Shift Work 36The applicant confirmed that prior to working for the respondent at Gosford Hospital she was employed as a Scientific Officer at the Royal Prince Alfred Hospital in Sydney where she worked shift work. She denied that when interviewed for the position at Gosford Hospital she was advised the job required the working of shift work. The applicant agreed she had received correspondence from the respondent dated 23 March 2007 which confirmed her appointment with the respondent. That correspondence also noted that the applicant might be required to work elsewhere within the Northern Sydney and Central Coast Area Health Service. 37Mr Saunders subsequently referred the applicant to her position description which stated that the respondent's laboratories were located at Gosford, Wyong, Royal North Shore and Hornsby Hospitals which provided on-site laboratory testing services 24 hours per day, seven days per week. In that regard, the applicant further disputed there was any suggestion that she would be required to work shift work. She contended that she had raised some concerns about the working of shift work with the respondent prior to October 2008. She also contended that working outside of day work required multi-tasking and fewer staff worked those shifts. 38It was the applicant's evidence that shift work might increase her incapacity because of the resultant pain to her joints. The applicant also agreed that multi-tasking included reception work and answering telephones. The applicant claimed that the injuries to her shoulder and neck prevented her from undertaking reception work but did not prevent her from undertaking her substantive duties as a Scientific Officer. 39With respect to her previous position at the Royal Prince Alfred Hospital, the applicant confirmed that Dr Haddad had issued a medical certificate on 9 August 2006 which stated the following: This lady has been complaining to me of shoulder and back pain since 8 June 2005. She associates this pain with increased workload during night shift on Friday's. The applicant confirmed that as a result of that certificate she ceased working night shift at the time. 40The applicant suggested that she could not work any shift other than day work for the following reasons: * An increased workload was associated with afternoon shift. * Afternoon shift required multi-tasking which included undertaking both reception work as well as the work of a Scientific Officer. * It was difficult to take breaks during afternoon shift due to workload issues. 41Mr Saunders referred the applicant to a further medical certificate from Dr Haddad dated 25 September 2009 where he stated the following: Mrs Gounder is my patient. She has neck pathology with pain in neck, shoulders and upper limbs, she's only fit to work her normal hours on permanent day shift. Shift work greatly interferes with her ability to rest and sleep and as such causes exacerbation of her symptoms, affecting her ability to work. With respect to Dr Haddad's comments concerning her ability to rest and sleep, the applicant subsequently agreed there was no issue of working an afternoon shift for the respondent and then having to turn up the next morning for day work because she had never been rostered to work an afternoon shift to be followed by a day work shift. 42The applicant agreed that she had refused to work a number of shifts at Wyong Hospital and in that regard had received a written warning in relation to her failure to attend for work rostered at Wyong Hospital on 30 November 2009. The applicant subsequently agreed that occasional driving from say Gosford Hospital to Wyong Hospital formed part of her job description. 43The applicant acknowledged she was familiar with a medical report prepared by Dr Scott, Occupational Health Physician in November 2009. That report stated Dr Scott had contacted Dr Haddad to make enquiries about the concerns he had raised with the applicant working night shifts. Dr Scott wrote that Dr Haddad stated the applicant had more work to undertake on night shifts as she had no clerical support. In addition, she slept poorly following the working of night shift "so had more time in upright position the next day". It appeared from the report that Dr Scott informed Dr Haddad the work of night shift was lighter than day work and in that regard clerical support was provided until 9.00pm each shift. The applicant was not rostered on day work immediately following a night shift so, in her opinion, she had plenty of time to rest. Dr Scott also confirmed in her report that the applicant did not raise any concerns with her concerning poor sleep. 44A conclusion of Dr Scott's report was that the applicant was fully fit for work without any restrictions. In support of that proposition, Dr Scott stated the following: * 1.The applicant shows no ongoing physical evidence of neck or shoulder problems. * 2.The applicant is very preoccupied with her perception that when she took this job there was no expectation that she would be required to work any evening (night) shifts. * 3.There are no medical reasons to preclude her from working at Wyong Hospital. In that regard, the applicant's concerns are that she may have a busy shift and then find it tiring to drive back to Gosford. * 4.The applicant believes her job description does not include working at Wyong Hospital. * 5.Diagnosis/underlying constitutional degenerative changes in cervical spine. No evidence of clinical problems relating to this. * 6.There is evidence that evening (night) shifts are less physically demanding than day shifts (work). * 7.The applicant stated to her that if she was required to work night shifts then she "will have to go off workers' comp". Respondent's Evidence Mr D Croese 45Much of Mr Croese's evidence in chief, particularly related to various correspondence sent to the applicant during the course of her employment, was raised in cross-examination of the applicant by Mr Saunders. In his Statement, Mr Croese referred to Dr Maniam's fitness for work assessment set out in the following terms: This lady will need to be given a sedentary position where there will be no requirement for prolonged standing and walking and lifting... Customary [sic], Scientific Officers require to move around the laboratory. If this is the case then Pushpa [sic] Gounder will have to be re-deployed into academic role. 46Mr Croese deposed that a review of the information provided by the applicant, specifically Dr Maniam's report and the medical certificate provided by Dr Siripurapu, reflected that the applicant was continuing to suffer widespread pain and remained unfit to work. Further, her specialist Dr Maniam, had recommended re-deployment into an academic role which was not available. Moreover, the information ultimately provided by the applicant did not show cause as to why her employment should not be terminated. Accordingly, the applicant was informed in correspondence dated 24 November 2011 that the respondent had decided to terminate her employment effective 25 November 2011. 47In cross-examination Mr Croese confirmed he was the Operations Manager for the respondent and responsible for the overall operations of 22 laboratories. Mr Croese agreed that Ms Gounder's duties with the respondent involved repetitive work but denied that the position involved heavy lifting. Mr Croese also confirmed there were no academic, research, training, or teaching positions available for the applicant at Gosford Hospital. Moreover, no position could be created to assist the applicant, particularly given her limitations and medical restrictions. 48Mr Moore pressed the applicant could work day work only. In response, Mr Croese suggested the respondent would have to assess what impact would occur on both the laboratory and staff if the applicant was to simply work from 8:30 a.m. to 4.00 p.m. However, in that regard, Mr Croese stated that the applicant was currently unfit for work and in any event, there was no medical evidence at hand to support that proposition. With reference to the applicant's suggestion that work on afternoon shift was perhaps more repetitive than day work, Mr Croese contended night shift work is both different and more varied. 49In relation to the applicant's employment with the respondent, it was Mr Croese's evidence that her letter of appointment required her to undertake shift work. Mr D Matthews 50Much of Mr Matthews evidence in-chief related to correspondence sent to the applicant on a number of occasions seeking particulars concerning her prognosis and fitness to return to work. That correspondence was raised extensively in the applicant's cross examination. 51Mr Matthews deposed the applicant had not attended for work to carry out pre-injury or suitable duties since 9 February 2010. A WorkCover NSW medical certificate dated 8 February 2010 certified her as unfit for duty for the period 9 February to 9 April 2010. The medical certificate stated soft tissue injury shoulders and spine-exacerbation. The management plan nominated "mobic; paracetamol; physiotherapy: day shift work only". The certificate further states that during afternoon shift work, the applicant did not have a break and the work was more continuous. The certificate implied that the nature of her afternoon shift work had caused "exacerbation of her pain". 52Mr Matthews deposed that since the WorkCover NSW medical certificate dated 8 February 2010, the applicant submitted the following certificates to the respondent. Relevant copies were attached to his statement: * 1.Certificate dated 19 March 2010 from Dr Haddad certifying her as unfit for duty for the period 19 March to 21 April 2010. * 2.Certificate dated 19 April 2010 from Dr Haddad certifying her as unfit for duty for the period 19 April to 19 May 2010. * 3.Certificate dated 19 May 2010 from Dr Haddad certifying her as unfit for duty for the period 19 May to 19 July 2010. * 4.Certificate dated 19 July 2010 from Dr Haddad certifying her as unfit for duty for the period 19 July to 19 September 2010. * 5.Certificate dated 19 September 2010 from Dr Haddad certifying her as unfit for duty for the period 19 September to 19 November 2010. * 6.Certificate dated 17 September 2010 from Dr Haddad certifying her as unfit for duty for the period 17 September to 17 November 2010. * 7.Certificate dated 17 November 2010 from Dr Haddad certifying her as unfit for duty for the period 18 November 2010 to 18 January 2011. * 8.Certificate dated 15 January 2011 from Dr Haddad certifying her as unfit for duty for the period 15 January to 15 February 2011. * 9.Certificate dated 14 February 2011 from Dr Haddad certifying her as unfit for duty for the period 15 February to 15 March 2011. * 10.Certificate dated 15 March 2011 from Dr Haddad certifying her as unfit for duty for the period 15 March to 15 June 2011. * 11.Certificate dated 14 June 2011 from Dr Ahluwalia certifying her as unfit for duty for the period 14 June to 14 July 2011. * 12.Certificate dated 14 July 2011 from Dr Ahluwalia certifying her as fit for suitable duties for the period 14 July to 14 August 2011. * 13.Certificate dated 14 August 2011 from Dr Ahluwalia certifying her as fit for suitable duties for the period 14 July to 14 August 2011. * 14.Certificate dated 19 November 2011 from Dr Siripurapu certifying her as unfit for duty for the period 19 November to 17 December 2011. 53Mr Matthews contended medical certificates repeatedly referred to the applicant experiencing symptoms of pervasive pain. For example, in the medical certificates dated 8 February,18 March, 19 April, 19 May, 19 July, 17 September, 17 November 2010, 15 January, 14 February and 15 March 2011 Dr Haddad described the applicant's diagnosis in the following terms: She is complaining of pain in feet, ankles, knees, hip (with hip pain going into groin and thigh); burning ear pain and buzzing; facial numbness; shoulders and spine pain; chest pain and tightness; elbow and wrist pain; hand pain and numbness. The patient associates these symptoms with work and there development has been gradual since 2005. These symptoms were reported by patient on 17-02-10. 54On 10 May 2010, Ms Patricia Tims, Rehabilitation Co-ordinator, wrote to Dr Haddad to inform him that light duties could be provided for the applicant to assist in her recovery process. In that letter, Ms Tims proposed a graded return to work plan commencing with four hours, three days per week and increasing on a fortnightly basis. 55On 17 June 2010, the applicant was referred for a workplace assessment by Hills Street Group for an overview assessment of her symptoms and treatment and assessment for pre-injury duties. 56On 27 August 2010, at the request of the insurer GIO, the applicant attended an independent medical examination conducted by Professor Frederick Ehrlich. 57GIO subsequently wrote to the applicant on 14 September 2010 to inform her of its decision to decline liability for workers' compensation, with workers' compensation payments to cease effective 28 September 2010. 58On 25 November 2010, following the insurer's decision to decline workers' compensation liability, a meeting was held with the applicant to discuss the next stage of her rehabilitation including her capacity to perform suitable duties. 59Mr Matthews further deposed that following the meeting on 25 November 2010 the applicant continued to submit WorkCover NSW medical certificates certifying her as unfit for duty. 60Following advice from Ms Tims in January 2011, the applicant remained hesitant about returning to shift work at Gosford Hospital. Mr Matthews deposed he wrote to the applicant on 22 February 2011 requesting her to attend a medical examination with Dr Scott for the purposes of updating her health condition and to determine whether suitable duties were an option for a potential return to work. Shortly thereafter on 25 February 2011, Mr Matthews received a voice mail message from the applicant to the effect that she would not be attending the appointment with Dr Scott. 61On 28 February 2011, Mr Matthews telephoned the applicant concerning her voice mail message. During the course of that conversation, the applicant stated she would not attend the appointment with Dr Scott and her solicitor had arranged an appointment with a specialist in order to satisfy certain WorkCover NSW requirements. In response, Mr Matthews stated he offered the applicant a referral to the Royal North Shore Hospital Clinic. However, that offer was subsequently rejected. 62On 28 February 2011, the applicant was asked to arrange for her treating medical practitioner to provide information on the prognosis of her current medical condition and whether that condition precluded her from returning to her substantive position. That request also sought an indication concerning the likelihood of any potential return on a suitable duties program prior to her resuming full duties and or a return either on suitable duties or permanent duties basis. 63Following a discussion with the applicant on 16 March 2011 concerning what progress she had made with respect to the information sought concerning her prognosis and the other matters requiring her attention set out in correspondence dated 28 February 2011, the applicant stated she had seen her specialist and the specialist would provide a response, in the first instance to her solicitor. 64Mr Mathews sent a further letter to the applicant on 30 March 2011 following up the correspondence on 28 February 2011 and Mr Matthews conversation with her on 16 March 2011 concerning the specialist's response. He again urged the applicant to liaise with her treating medical practitioner concerning the information sought by the respondent. Further correspondence was sent to the applicant on 30 May 2011 requesting her to liaise with her treating medical practitioner and advise when the information sought by the respondent would be made available. She was further advised that in the event this was not provided by 15 June 2011 the respondent would consider what further action may occur with respect to her employment. 65The applicant forwarded an email to Mr Matthews on 14 June 2011 attaching a copy of a WorkCover NSW medical certificate certifying that she was unfit for the period 14 June to 14 July 2011. Later that month Mr Matthews deposed he decided to recommend that the applicant's employment be terminated, noting she had been absent from the workplace for more than 26 weeks since the alleged date of injury. He also deposed that in or around October 2011 he become aware that Mr Croese, the Operations Manager for Pathology North, was dealing with the issues concerning the applicant's absence from work. 66With reference to the number of WorkCover NSW medical certificates submitted by the applicant, it was Mr Matthews evidence in cross-examination that there was some controversy concerning her injuries. He based that view on the fact that the applicant's treating practitioner was saying one thing about her condition whereas Dr Scott was saying something completely different. 67Mr Moore explained to Mr Matthews that it was the applicant's view that she could undertake the inherent requirements of her position if she was able to work day work. In response, Mr Matthews agreed that she could undertake that work provided she was certified fit to do so. He observed that the WorkCover NSW medical certificates submitted to date stated she is totally unfit to return to normal duties. In Mr Matthews assessment, the work involved in both day shift and night shift is similar. He had no knowledge whether afternoon shift work involved work that was "heavier" than day work. 68In response to a number of questions concerning his knowledge whether Ms Angela Bates, Ms Cindy Knight and Ms Jill Tipper were required to work day shift only, Mr Matthews responded that he did not know Ms Bates or Ms Knight. He was aware of Ms Tipper but was not familiar with her particular circumstances. He also stated in the event these employees commenced prior to 1986 when the then Central Coast Area Health Service was formed, certain employment conditions may have been preserved. With respect to the work of a Ms Megan Healy, Mr Matthews stated she left in November 2010. However, prior to leaving she worked day shift, afternoon shift and weekend work. In response to questions concerning a Ms Fran Cooper, Mr Matthews stated it was his understanding that she worked alternate Sundays on day shift. submissions Applicant 69Mr Moore submitted the respondent had an obligation to accommodate the applicant and provide light or suitable duties and day work as recommended by Dr Haddad. Mr Moore contended the respondent could have done more to assist the applicant's return to work. 70Mr Moore conceded the applicant may have "created some angst" with the respondent because of her refusal to work afternoon or night shifts at Gosford or Wyong hospitals. In that regard, Mr Moore argued the applicant's conduct was not unreasonable when viewed against the medical reports provided from Dr Haddad and Dr Maniam. 71Mr Moore questioned why Mr D Forbes, Biochemistry Manager PaLMS at Gosford Hospital was not called by the respondent to give evidence. Mr Moore contended Mr Forbes was aware of the applicant's medical conditions and could have provided answers concerning how the applicant's medical condition could be accommodated or whether there were any research or training positions available for her to return to work. He urged the Commission to "draw inferences as to why he isn't here". Respondent 72Mr Saunders submitted an employer is not obliged to continue indefinitely the employment of an employee who is unable to perform the inherent requirements of the position. The medical evidence in this matter is that the applicant was absent from work due to injury for almost two years. 73The applicant's most recent WorkCover NSW medical certificate provided on or about 19 November 2011 determined the applicant was suffering widespread musculoskeletal pain and was unfit for any work from 19 November to 17 December 2011. The medical certificate did not state she was fit for any suitable duties nor did it state she had reached maximum medical improvement or was fit for modified duties. Accordingly, the question of suitable duties or alternative employment does not arise because the medical evidence suggests the applicant was not fit for any work at all. 74Mr Saunders submitted there was also no evidence that the applicant was likely to be able to undertake any work in the future. Accordingly, the dismissal was not harsh, unjust or unreasonable. 75In response to Mr Moore's submissions that inferences should be drawn because Mr Forbes was not called to give evidence, Mr Saunders submitted there was no Jones v Dunkel [1959] 101 CLR 298 inference available because there was no unexplained failure to call Mr Forbes. Mr Croese was the decision maker and the authorised officer. Mr Croese gave direct evidence about the availability of academic, training and research roles. Consideration 76The applicant seeks re-employment to another position or monetary compensation. It is clear on the material before the Commission that the applicant was dismissed as a result of her long term inability to undertake any work. This was evidenced by the various WorkCover NSW medical certificates given to the respondent, particularly between February 2010 and November 2011 and the prevailing medical opinion at the time of the dismissal that there was little likelihood that she would return to work. 77It is also clear on the evidence that no alternative work or position was available to her. The respondent wrote to the applicant in February 2011 regarding her prognosis and her treating medical practitioner's opinion concerning a return to work in her substantive position of Hospital Scientist or a return to work program requiring the provision of suitable duties. 78Nine months later, the applicant simply provided her specialist's report dated 22 December 2010 where Dr Maniam stated the following with respect to her fitness for work: This lady will need to be given a sedentary position where there will be no requirement for prolonged standing and walking and lifting. She is a scientific officer and as to whether she could be accommodated in this role is in question if the above restrictions are put into place. Customary scientific officers require to move around the laboratory. If this is the case then Pushpa Gounder will have to redeployed into academic role. 79The evidence in this matter with respect to alternate duties was that there were no academic, research, training or teaching positions in any capacity available. 80The relevant medical certificate provided to the respondent on 19 November 2011 stated the applicant was unfit to work from 19 November to 17 December 2011. Her medical condition was described as "widespread musculoskeletal pain". The certificate did not state the applicant was fit for any "suitable duties" nor did it state she had reached maximum medical improvement and was therefore fit to undertake modified duties. The applicant has remained unfit to undertake any work since her first WorkCover NSW medical certificate dated 8 February 2010. 81I have given consideration to all the extensive materials filed or tendered in this matter and the examination of witnesses. Against that backdrop, I have formed the view that the respondent has taken reasonable steps to accommodate the applicant's limitations given she is unable to fulfil the inherent requirements of her substantive position as Hospital Scientist: PSA (on behalf of Peter Riley) v WorkCover Authority of New South Wales (2006) 151IR 396 at [80] and [93]. 82It was the respondent's case that given the applicant's medical restrictions, there was no suitable alternative position available to accommodate her. It therefore follows that the respondent had a valid reason to terminate the applicant in circumstances where she could not perform the inherent requirements of the position of Hospital Scientist and no alternative position was available given that she was unfit for any work at the time of her dismissal. The application is dismissed. JD Stanton COMMISSIONER 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: 09 August 2012