Industrial Relations Commission New South Wales Medium Neutral Citation: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and NSW Health [2012] NSWIRComm 146 Hearing dates: 23 November 2012 Decision date: 12 December 2012 Jurisdiction: Industrial Relations Commission Before: Staff J Decision: Pursuant to s 136(1)(a) of the Industrial Relations Act 1996, I direct that Ms Julia George resume duties in the position of Manager (Corporate and Business Services) at the NSW Institute of Psychiatry. This direction is to operate on and from Thursday 13 December 2012 Catchwords: INDUSTRIAL DISPUTE - public servant return to work after illness - medical evidence fit to resume duties of position - refusal by employer to allow employee to resume work in former position - whether employer may direct employee to undergo medical assessment - held - employee entitled to resume duties in position occupied prior to illness - Industrial Relations Act 1996 s 130, s 136(1)(a) Legislation Cited: Industrial Relations Act 1996 Public Finance and Audit Act 1983 Public Sector Employment and Management Act 2002 Cases Cited: Australian Workers Union, NSW (on behalf of Stojanovski) v BlueScope Steel (AIS) Pty Ltd (formerly BHP Steel (AIS) Pty Ltd) [2004] NSWIRComm 304 (2004) 137 IR 211 Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603; [2002] 118 FCR 395 Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 CCH Australia Limited v Bowen (1998) 79 IR 206 Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 Hornsby Shire Council v Hunt [2002] NSWIRComm 158; (2002) 115 IR 461 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Quinn v Overland [2010] FCA 799; (2010) 199 IR 40 Thompson v IGT (Australia) Pty Limited [2008] FCA 994; 173 IR 395 Youssef and Western Sydney Area Health Service [2003] NSWIRComm 284; (2003) 129 IR 338 Category: Principal judgment Parties: Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) NSW Health (Respondent) Representation: Mr M Gibian of counsel (Applicant) Ms J Nand solicitor (Respondent) Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (Applicant) Sparke Helmore solicitors (Respondent) File Number(s): IRC 996 of 2012 DECISION 1This matter arises out of a dispute notified on 19 September 2012 by the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ("the PSA") in respect of the return to work of Ms Julia George to her position of Manager (Corporate and Business Services) at the NSW Institute of Psychiatry ("the Institute"). 2The question, dispute or difficulty notified to the Industrial Registrar pursuant to s 130 of the Industrial Relations Act 1996 ("the IR Act") was: i. Ms Julia George is employed under Chapter 1A of the Public Sector Employment and Management Act 2002 and works at the NSW Institute of Psychiatry ii. After a period of ill health Ms George endeavoured to return to work on 2 July 2012 but was directed to leave the workplace despite Ms George's Psychiatrist previously advising the Ministry Health (the employer) that Ms George would be returning on that day. iii. Since 2 July 2012 Ms George has sought to return to work but has been prevented from doing so despite her Psychiatrist having certified her fit to do so and having separately written to the Ministry of Health to this end. iv. Since 2 July 2012 the Ministry of Health has as part of a return to work plan offered one unsuitable temporary position and until recently has not been in contact with Ms George's Psychiatrist to discuss suitable return to work alternatives. v. Despite being certified as fit to return to work, the Ministry of Health now wishes to send Ms George to a medical assessment once again delaying her return to work. vi. The PSA seeks the assistance of the Commission in resolving this dispute. 3Pursuant to Sch 1 of the Public Sector Employment and Management Act 2002 ("the PSEM Act"), employees of the Institute are employed in the Special Employment Division of the Government Service under the Director-General of the NSW Ministry of Health ("the Ministry"). 4On 21 September 2012, the parties were summoned to a compulsory conference. Following discussions in private conference, no agreement was reached. The Commission recommended that the parties explore, as expeditiously as possible, alternate permanent return to work plan positions for Ms George at locations other than the Institute. 5In the event that no agreement was reached, Ms George was required to attend a medical appointment programmed by the Ministry for her on 22 October 2012. 6The matter was listed for further report and compulsory conference on 17 October 2012. During the compulsory conference, Mr E Cole, who then appeared for the PSA, submitted that it had obtained information from QBE Insurance Australia ("QBE Insurance"), the workers' compensation insurer, which supported the PSA's contention that Ms George's injury was work related and the subject of a settled worker's compensation claim. 7It was submitted that this precluded the Ministry directing Ms George to attend a medical health assessment for a non-work related injury. The dispute was adjourned until 26 October 2012, to allow submissions to be prepared in respect of whether the Commission should make a recommendation that the health assessment not proceed until the matter had been determined by arbitration. It should be noted that the medical assessment programmed for 22 October 2012 was rescheduled to 6 November 2012 for reasons unrelated to the dispute. 8During the proceedings on 1 November 2012, Ms George was provided with what was described as a "health information pack" by the Ministry. This "pack" had been forwarded by post to Ms George, however, it was "returned to sender". In summary, it contained the Ministry's Policy regarding medical assessments and required Ms George to provide her permission to the Ministry to seek medical information from her treating doctors and Medibank Health Solutions. 9It was accepted by the parties that in light of the late provision of the "pack", there was insufficient time for material to be provided in respect of the medical assessment that was programmed for 6 November 2012. In those circumstances, I recommended the medical assessment programmed for 6 November 2012, be cancelled pending arbitration of this dispute. I issued a certificate of failed conciliation. 10At the conclusion of the hearing, I invited the parties to further explore the prospects of settlement. I informed the parties that I would defer consideration of the matter for a further seven days. PSA's evidence 11Mr M Gibian of counsel, who appeared for the PSA, read two statements of Ms George. Her evidence was that she commenced employment with NSW Health in 2001, as the Manager, Business and Information Services, Private Health Care Branch. She held this position until September 2007, when she was seconded to work as a Project Manager for NSW Health, Centre for Health Protection. 12In December 2007, Ms George was appointed to the position of Manager, Corporate and Business Services for NSW Health at the Institute. The position formed part of the Institute's executive as identified in its 2011 Annual Report. In this role, Ms George has overall responsibility for the leadership of the corporate and business services for the Institute, including $100,000 financial delegation under the Public Finance and Audit Act 1983. She also has direct management responsibilities for Finance, Administration and E-learning/IT business units. As part of the business unit structure, these units and librarian, publications and database units report to Ms George. 13Ms George stated that while working for the Institute, she suffered a workplace injury in the period June 2011 to August 2011 and was unfit to perform, being on workers compensation from 31 August 2011 to 1 July 2012. She claimed workers' compensation, which was disputed before being the subject of a settlement on 23 July 2012. Ms George provided medical certificates during the period that she was unfit to perform work. 14On 28 May 2012, Ms George contacted Mr Stefan Knight, the OHS/WorkCover officer at the Institute, to discuss her return to work. Her evidence was that Mr Knight informed her that if she was returning to work on restricted duties, it would be necessary to prepare a rehabilitation plan, but if she was returning on unrestricted duties, she should just obtain a report and medical certificate from her treating doctor. Upon returning to work, Ms George endeavoured to follow this process. 15On 27 June 2012, Ms George attended an appointment with her treating psychiatrist, Dr Julian Short, who informed her that she was responding well to treatment. 16He recommended that she commence pre-injury duties from 2 July 2012. Dr Short prepared a medical certificate and report both dated 27 June 2012, indicating that Ms George was fit to resume pre-injury duties from 2 July 2012, initially three days per week, increasing to four days per week the following week. 17Ms George stated that she was informed by Dr Short that he had forwarded her WorkCover medical certificate and his report dated 27 June 2012 to the Ministry and QBE Insurance on 29 June 2012. Ms George stated that she spoke to Ms Murphy at QBE Insurance, who confirmed that he had received a copy of the WorkCover medical certificate and medical report of Dr Short dated 27 June 2012. 18Upon returning to work on 2 July 2012, Ms George believed that the WorkCover medical certificate together with Dr Short's report indicating she was fit to resume duties, had been received by the Ministry. 19The Ministry accepted that Ms George had obtained a medical certificate and a report from her treating doctor on 27 June 2012. However, it was contended that there was no evidence this was communicated to and received by the Ministry prior to that date. 20Ms George's evidence is that when she returned to work on 2 July 2012, she went to her office and sat at a meeting desk and began to work on her laptop. Shortly thereafter, Dr Montague, the Director of the Institute, came to the door of her office and the following conversation occurred: George: "Good morning, Ros." Montague: "You can't be here under the legislation. George: "I think I can. Everything has been submitted for my return to work by Dr Short." Montague: "Well, I don't have a copy of that." George: "You need the check [sic] with HR because they were sent a copy." Montague: "You can't sit in here. This is no longer your office." George: "Can you please send me an e-mail to tell me where I can sit." 21Dr Montague returned a short time later and insisted that Ms George speak to Mr Robert Spencer from Human Resources. Mr Spencer informed her that he had no documentation concerning her return to work. Ms George asked Mr Spencer to check with Mr Knight. 22At 9.03am on 2 July 2012, Mr Spencer forwarded Ms George an email which read: Hi Julia, as discussed the Ministry has a WorkCover Certificate stating you are unfit for duty until the 27 July 2012. You have stated a more recent WorkCover certificate has been issued advising you are fit to return to duty but the Ministry has not received this. Until this matter is resolved I ask that you cease duty immediately and leave the premises until a risk assessment can be undertaken. 23Ms George responded by email at 9.34am on 2 July 2012 as follows: If you would like to check with QBE or Turks Lawyers the workcover certificate from my GP to cover period up to 27 July 2012 is no longer valid as I understand that Dr Montague threatened my GP's with defamation of character and my GP's under pressure were required to withdraw their comments and all workcover certificates (therefore deeming the certificate up to 27 July 2012 invalid). This evidence has been submitted to the commission by QBE and turks as part of evidence to the Commission so there is nothing to sort out. I have been continuing my treatment with my senior Consultant Psychiatrist who wrote a full report about my health to QBE last week (which you have). My Psychiatrist has provided a full replacement workcover certificate for period 27 September 2011 - 29 June 2012 as the workcover certificate from my GP was no longer valid or correct. Is NSW Health now questioning my Senior Consultant Psychiatrist's credibility in addition to attempts to question my GP's? My Psychiatrist has stated that I should be returned to work with full support from my employer. The reception I have received today is hardly supportive. If the Director-General has a valid reason that I should leave my place of work today and would like to speak to Minister Humphries about a directive for me to leave the building despite my psychiatrist having given a full report and a clearance certificate I am happy to take direction from either the Director General or Minister Humphries. I am quite frankly appauled [sic] about the treatment I have received today upon my return given that I have been off for a long period following intimidation and harrassment [sic]. This behaviour justs [sic] adds to it and shows a lack of support for employees who have been off suffering a psychological illness. Rather ironic that Dr Montague heads the NSW Institute of Psychiatry and that she should treat me in such a callus [sic], uncaring and vicious way upon my return. 24At 9.42am on 2 July 2012, Ms George forwarded an email to Dr Mary Foley, Director-General, Ministry, and to Mr Knight. This email was copied to the Hon Ray Williams, Parliamentary Secretary, and the Hon Kevin Humphries, Minister for Mental Health, advising that she was distressed at how she "had been treated by Dr Montague and Mr Spencer. She noted that she had carried out her return to work as instructed by her psychiatrist and advice she received by telephone from Mr Knight on 28 March [sic] [May] 2012". She sought their input and observed that if she needed a risk assessment she should be able to have that on work time and not be directed to go home. 25At 10.56am, Ms George received the following email from Mr Spencer: Julia, following receipt of your current WorkCover Certificate (of which the Ministry only received this morning), please be advised that HR representatives will soon meet you on site today to discuss and develop a Return to Work plan in line with your current Workcover Certificate requirements. 26Around midday on 2 July 2012, Ms George states that Ms C Butcher, Associate Director, Human Resources of the Ministry, Mr Denis Hogno, from Human Resources, Mr Knight and Dr Montague knocked on her office door. Ms Butcher informed her that she was required to attend a meeting in Dr Montague's office immediately. Her evidence is that Ms Butcher introduced herself, but not Mr Hogno or Mr Knight. 27Ms Butcher's evidence is that she attempted introductions however Ms George cut off the conversation. 28Ms George endeavoured to contact a support person but was unsuccessful. She spoke to a friend who suggested that she have him on the phone when she attends the meeting for assistance. She did not advise those at the meeting that she had a support person on the phone. She explained that she could not attend the meeting without a support person, however, Ms Butcher told her that she had to attend the meeting immediately. Mr Hogno said that she had no right to remain at the Institute and was in breach of the workers' compensation legislation. When asked in what manner she was in breach of the workers' compensation legislation, Ms George said Mr Hogno did not reply at this point. 29Her evidence is that Dr Hogno did not reply. Her evidence is her support person suggested that the meeting was going nowhere and that she should leave the room, which she did. She said that Mr Butcher did not tell her to leave the meeting in Dr Montague's office. 30At 2.25pm on 2 July 2012, Ms George forwarded a further email to Dr Foley, the Hon R Williams and the Hon K Humphries. Ms George repeated the earlier history in respect of her return to work and contended that she was now suffering further harassment and bullying by Dr Montague and the Ministry. She stated: I was never informed of all of these so called rules. ... I have met with all my staff today and had a meeting about my return. This again sends a very poor message to the staff if I am to be walked out of the building like a criminal. 31The email concluded: I am in my office cowering in fear of being attacked by these people. I just want to do my job. I don't want to go home or be forced out of the building tomorrow. This treatment of me is far from what my treating Psychiatrist had envisaged for my return to work. Please intervene. I cannot believe that DG is complicit in this type of behaviour to an employee recovering from a mental health episode caused by a mental health professional working for NSW Health. My situation at the moment in my office [is] akin to waiting for Gestapo in jack boots to burst into my office and physically manhandle me out of the premises. 32At approximately 3.45pm on 2 July 2012, Ms George received a message from Dr Montague that her access to the building and IT system were to be cut off and that she was not to attend the Institute until a return to work plan was developed. She was unable to print the email because her access to the IT system was cut off thereafter. 33Ms George stated that she received a further email from Ms Butcher directing her to leave the premises, which she did at approximately 5.00pm on 2 July 2012. 34On 5 July 2012, a return to work plan was prepared for Ms George which contemplated a return to work performing other duties and not to her position as Manager. 35In a report dated 10 July 2012 (in which Dr Short refers to Ms George as Mrs Cranwell), he noted he was provided with a copy of the Return to Work Plan and stated: I have received an e-mail attachment from Mr Stefan Knight. This is designated as a RETURN TO WORK PLAN, number 1. As best I can interpret this plan, it does not offer the opportunities I believe are necessary for Mrs Cranwell's successful emotional rehabilitation. Again, I would see this as offering a level of responsibility well below that which I understand is that of her normal role in her permanent, substantive position. Even more importantly, in my opinion it is essential that she return to her original workplace, as recommended in my medical report, dated 27th of June 2012. I am a little surprised I was not consulted before these return to work criteria were proposed. Mrs Cranwell tells me there is a position that has been suggested she consider in North Sydney. I am concerned primarily because it appears to be ignoring my not inexpert opinion as to her appropriate treatment. In addition to this, although not quite such concern to me, is that she would be required to travel for an extra four hours in a day and there is no flexibility; an established necessity because of her obligation she be involved in the management of her learning impaired daughter. Given I have no reason to doubt Mrs Cranwell's description of events, it is of particular surprise to me that my recommendations on her return to work on the 2nd July appear to have been ignored. As I understand the situation, she has been actively denied access to her job and her office. In addition, Mrs Cranwell tells me she was initially denied all IT and e-mail access on the 2nd July; the day I had specified for her return to work. She was then informed by human resources that her access would be restored, but then while actually driving to work, received a message from IT that this access would again be denied. It is very hard for me to see the events I have described in this letter, if accurately reported, as clearly representing efforts to return Mrs Cranwell to her duties and thus to full mental health. In summary, I regret I do not feel able to support the RETURN TO WORK PLAN, number 1 offered by Mr Knight. I again strongly recommend the return to work programme outlined in my earlier letter be adopted in the interests of Mrs Cranwell's emotional well-being. It would be ideal if she were to initiate work in in [sic] her substantive position at full pre-injury duties this week. It is very much against her interests to be in a position of unemployment and uncertainty at this stage of her recovery. 36By letter dated 3 September 2012, Dr Short advised that the current situation was inimical to Ms George's mental health and advised she be permitted to return to work. 37By further report dated 15 October 2012, Dr Short indicated that Ms George no longer manifests evidence of a biological and depressive syndrome in the form of major depression and that her condition should not be construed as cause for her not to return to work. 38Mr Gibian read an affidavit of Dr Short. He was required for cross-examination. Dr Short annexed to his affidavit a medical report prepared by him dated 7 November 2012, which was provided to the PSA's solicitors. The report read: Thank you for asking me to provide an opinion on this lady. In offering this report, I am mindful of the Expert Witness Code of Conduct as contained in schedule 7 of the Uniform Civil Procedure Rules 2005. I shall attempt to answer your questions in order. a. My current opinion in relation to your client's condition During the course of our consultations, I had diagnosed Ms Cranwell as suffering two conditions i. Major Depression ii. Adjustment Disorder with Depressed Mood In my opinion, Ms Cranwell's Major Depressive Disorder responded well to treatment with antidepressant medication and has not been evident for some time, although it will be necessary for her to persist with medication for at least six further months. Her Adjustment Disorder persisted for longer and I do not feel able to say this resolved much before June of this year. Owing to the nature of psychiatric disorders, I regret I am unable to offer precise dates of remission, especially as the clinical manifestations of a Major Depression tend to overlap with those of an Adjustment Disorder b. My opinion as to whether or not your client suffers any incapacity to work. It is my belief that Ms Cranwell is perfectly fit to return to work and I suspect I have made this clear in a previous report. c. My opinion as to whether or not your client is fit to perform her pre-injury duties. I believe Ms Cranwell is fit to assume all the burdens and responsibilities of the position she previously occupied. d. My opinion as to whether or not your client suffers any other incapacity to work as result of any other condition. I am aware of no other physical or psychological disorder that should impede Ms Cranwell's capacity to work. 39During cross-examination, Dr Short was taken to the email forwarded by Ms George at 9.34am on 2 July 2012 and in particular, the penultimate paragraph of that email where Ms George said that she was "happy to take direction from either the Director-General or Minister Humphries if the Director-General had a valid reason that she should leave her place of work". Dr Short was asked whether there was anything in this statement that would lead to him change his view and needed to be considered in terms of managing Ms George's return to work. His answer was "no". 40Next Dr Short was taken to the email forwarded at 9.42am on 2 July 2012 by Ms George and was asked if there was anything in that email that changed his view that Ms George could go straight back to the workplace. His opinion was that Ms George was fit to return to work. He was asked to respond to what Ms George had described as "further harassment by Dr Montague upon her return to work". He said: ... If that were indeed a correct description one would see that as being a somewhat toxic situation. But whether it would be inimical to most people's good mental health, especially if it were not a one off event but a repeated event are you saying is it bad for a healthy person to go to that bad place, yes. 41Dr Short was then taken to the email forwarded at 2.25pm on 2 July 2012 and asked if there was anything in the statements made by Ms George in that email that would raise concerns or cause him to change his opinion about Ms George's return to work. Dr Short's evidence was that he thought the statements were somewhat dramatic, but that they were not an indication of an illness. 42In summary, the contents of the emails forwarded by Ms George on 2 July 2012 did not change Dr Short's opinion of Ms George's mental health or fitness to return to fulltime work. 43Mr Gibian tendered the following Policy Directives: (i) Injury Management and Return to Work - NSW Health (ii) Grievance - Effective Workplace Resolution (iii) Bullying - Prevention and Management of Workplace Bullying in NSW Health The Ministry's evidence 44Ms J Nand solicitor, who appeared for the respondent, read a statement of Ms Carolyn Butcher who was required for cross-examination. 45After setting out her employment background and qualifications, she provided a chronology of Ms George's workers' compensation claim and reports received from Dr Short and Dr Roger Bower-Williams, and Dr Mary Bower-Williams, Ms George's general practitioners. It is unnecessary to refer in any detail to this material as I have already summarised the relevant history when dealing with the PSA's evidence. 46Ms Butcher confirmed that as at 2 July 2012, the Ministry had not received a copy of Dr Short's report or the WorkCover certificate dated 27 June 2012. Ms Butcher described the events of 2 July 2012, in similar terms to the evidence given by Ms George, much of which has been set out earlier in this decision, particularly that reflected in the exchange of emails between the various officers of the Institute. 47Ms Butcher confirmed that once Ms George made it clear that she would not leave the Institute, she attended a meeting with Mr Knight and Mr Hogno to manage the situation. 48Ms Butcher stated that a conciliation conference was held at the Workers' Compensation Commission on 23 July 2012 where the parties came to an agreed resolution of the issues in dispute. This was recorded in a certificate of determination issued by the Workers' Compensation Commission. The certificate stated that the agreed terms were entered into "on a voluntary basis and without admission". She observed the certificate did not record any change to the decision to decline the claim. In these circumstances, the Ministry formed the view that as this was no longer a workers' compensation matter, it was appropriate to apply the procedures for managing non-work related injuries or health conditions. 49In accordance with that procedure the view was reached that it was appropriate in the circumstances to refer Ms George for an independent assessment by the nominated medical assessor. Ms Butcher said this was based on the following reasons: (i) concerns arising from Ms George's conduct when she returned to work on 2 July 2012 and her subsequent correspondence, (ii) the concerns raised by other staff at the Institute about Ms George returning to work, (iii) Dr Short's consistent opinion that Ms George must return to her pre-injury duties whilst also stating that 'it is essential she not be placed at risk of further harassment' and that 'she will be potentially vulnerable for some time', (iv) Ms George's email on 2 July 2012 at 8:50am in which she stated 'it would seem that there is a continued intent to harass me on the very day of my return', and (v) the fact that Ms George had been absent due to illness for approximately 10 months. 50Ms Butcher recorded the steps that the Ministry had taken since 2 July 2012. This included the return to work plan to which reference has already been made, steps taken to arrange a meeting with Dr Short to discuss Ms George's return to work and enquiries that Ms Butcher had made with various areas of the Ministry and other health services (10 in total) regarding available positions for Ms George. 51From these enquiries, a suitable position was identified and Ms George was invited to attend an interview for the position, which was discussed with Dr Short. Ms George was unsuccessful. 52The Ministry did not call evidence from Dr Montague, Mr Knight, or Mr Hogno. Consideration 53The question for determination is whether Ms George is entitled to resume duties in the position of Manager (Corporate and Business Services) at the Institute forthwith. 54The Ministry contends that a subsidiary question arises which is how Ms George's return to work is to be managed after an absence from the workplace for over 12 months and whether in light of this fact and her conduct on 2 July 2012, the Ministry can refer Ms George for an independent medical assessment. 55It was common ground that employees of the Institute are employed under Ch 1A of the PSEM Act. The methods by which a position can become vacant are set out in s 26 of the PSEM Act which is in the following terms: 26 Vacation of position (1988 Act, s 37) (1) An officer's position becomes vacant if the officer: (a) dies, or (b) is removed from the position, or retires or is retired from the position, under this or any other Act, or (c) resigns the position in writing addressed and delivered to the appropriate Department Head and that Department Head accepts the resignation, or (d) abandons his or her employment in the Public Service. (2) This section does not affect any other provision by or under which an officer's position becomes vacant. (3) This section does not apply to officers holding chief or senior executive positions. Note: Section 76 makes provision for the vacation of chief or senior executive positions. 56The methods through which an officer may be removed or retired from a position are, retirement by reason of the officer being permanently unfit to discharge the duties of the officer's position (s 25), dismissal or demotion arising from allegations of misconduct (s 46), or unsatisfactory performance (s 48), or transferred to another position whether temporary (s 86 and s 86A) or permanent (s 87). An officer may also be suspended pending investigation of allegations of misconduct or proceedings for a criminal offence (s 49). 57None of these processes have taken place in relation to Ms George and it follows, that she continues to occupy and is entitled to perform the duties of her position. 58The medical evidence confirms Ms George is fit to perform her full pre-injury duties at the Institute. Ms George was certified unfit for a period of time from August 2011 until the end of June 2012. However, Dr Short provided a medical certificate and report both dated 27 June 2012, certifying that Ms George was fit to return to her pre-injury duties. The report of Dr Short relevantly stated: ... As with all people suffering a work-related injury, early return to full pre-injury duties is desirable. In my experience, when light duties are suggested, this more often has a negative effect, reinforcing the sufferer and his co-workers in their belief that the injured person is now of lesser competence. I wish to avoid this outcome for Mrs Cranwell and would recommend that she return to her pre-injury duties but working fewer days per week initially. At this point, I do not believe that Mrs Cranwell is fully recovered and this return to work must be seen as an integral part of her treatment and critical to her final and complete recovery. May I recommend that she return to her pre-injury duties on the week commencing Monday 2nd of July for three days? I would further recommend on the week commencing 9th of July, she return for four days, leaving one day free for her to consult me for review. 59In his report dated 10 July 2012, Dr Short expressed the opinion that it was essential that Ms George return to her original workplace in her "substantive position". 60A WorkCover medical certificate, also dated 10 July 2012, certified that Ms George was "fit to return to full pre-injury duties". 61In a report dated 3 September 2012, Dr Short expressed the opinion that the current situation was "inimical to Ms George's mental health". In a further report dated 15 October 2012, Dr Short expressed the view that Ms George "no longer manifests evidence of a biological depressive syndrome in the form of major depression". 62In a report dated 7 November 2012, prepared for the purposes of these proceedings, Dr Short expressed his opinion as follows: It is my belief that Ms Cranwell is perfectly fit to return to work and I suspect I have made this clear in a previous report. ... I believe Ms Cranwell is fit to assume all the burdens and responsibilities of the position she previously occupied. 63As I have already observed, the Ministry contends that it has the right at common law and under the applicable procedure to require an employee to undertake an independent medical assessment where there are reasonable grounds for believing that there may be issues in the workplace which are relevant to the health and safety of the returning employee and others. 64Reliance was placed on Thompson v IGT (Australia) Pty Limited [2008] FCA 994; (2008) 173 IR 395 at [49] - [54] and Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603; [2002] 118 FCR 395 at [67] - [69]. 65These cases set out the principles in respect of an employer's ability to give an employee a lawful and reasonable direction. The cases observe that it is reasonable to direct an employee to attend a medical examination to determine whether the employee is fit to perform his or her duties and whether he or she can do so safely. However these cases, in my view, are distinguishable from the circumstances under consideration here. 66In Thompson v IGT, the direction was made in circumstances where firstly, the employer was seeking to find an explanation for the employee's continued absences, particularly those which had occurred without reasons being given; secondly, to enable the respondent to comply with its occupational health and safety obligations and duties; and thirdly, to find out about the extent to which the applicant could perform the inherent requirements of his work (Thompson v IGT at [57]). 67Goldberg J in Thompson v IGT, also referred to Madgwick J's decision in Blackadder v Ramsey, where his Honour (at 411) had observed: ... Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. ... 68The fitness of Ms George to resume all her duties has been confirmed by her treating psychiatrist. 69The Ministry relies upon its Procedures for Managing Non-Work Related Injuries or Health Conditions. Putting aside whether Ms George has suffered a work related or non-work related injury, the procedure indicates the circumstances in which an agency may seek medical advice with respect to an employee as follows: INITIATING A MEDICAL ASSESSMENT General basis for referrals An agency may need to seek medical advice on how to safely manage a non-work related injury or health related issue that is affecting an employee's ability to perform the inherent requirements and demands of the position for which they were engaged. Any advice sought must be in accordance with: · the overriding legislative responsibility under the Occupational Health and Safety Act 2000 for agencies to manage risk and ensure the health, safety and welfare at work of employees; and · a Chief Executive Officer's responsibilities and functions for ensuring the effective, efficient and economical management of their agency. 70Under the heading "Employee's Treating Doctor" the following appears: In the first instance the agency must rely on the available medical advice from the employee's treating doctor in relation to the doctor's assessment of their capacity for work. Additional advice may be sought by the agency where it is unclear or there are concerns about the practicality of implementing the doctor's advice. The agency should discuss this with the employee first, and then, request additional information or clarification from the employee's treating doctor. 71The evidence clearly discloses that there is no basis to suggest that any health-related issues are affecting Ms George's capacity to perform the inherent requirements and demands of the position for which she is engaged. 72As I have already observed, Mr George has been repeatedly certified fit to perform her full pre-injury duties at all times since 2 July 2012. There is no medical evidence whatsoever which suggests that she is not fit to work. 73Furthermore, the Ministry has demonstrated by Ms Butcher's evidence, that it clearly accepts that Ms George is fit to work as it has proposed that she perform work in positions at other locations. 74I should also refer to the Policy Directive - Injury Management and Return to Work - NSW Health published 16 August 2011. Clause 4.3 of the Return to Work Plan provides: When an employee is to return to work on suitable duties with restrictions, the agency/Return to Work Co-ordinator or Workplace Rehabilitation Provider (if applicable) must develop and document a Return to Work Plan in consultation with all parties. The parties include: the employee, supervisor, Nominated Treating Doctor, Return to Work Co-ordinator, employee representative (if appropriate), and Workplace Rehabilitation Provider (if applicable). (Emphasis added). 75There are no restrictions upon Ms George's ability to return to work. 76The final reasons relied upon by the Ministry for referring Ms George for a medical assessment are those given by Ms Butcher, which I have earlier set out in this decision (at [49]). Those reasons principally allege concern in relation to Ms George's conduct on 2 July 2012 and alleged concerns by the staff about working with Ms George, although there is no such evidence before the Commission to make good this contention. 77I have already dealt with the reasons set out in [49] (iii) and [49](v). To my mind, the remaining reasons have no relevance to Ms George's fitness to return to work. 78In my view, the behaviour of senior officers towards Ms George upon her return to work at the Institute on 2 July 2012, was unfortunate. Instead of treating Ms George with the understanding that she deserved as a senior officer at the Institute who was returning to work after a long absence caused by ill health, she was dealt with unfairly and unjustly. 79The evidence of Ms George, which I accept, was that she had had discussions in late May 2012 with Mr Knight regarding her return to work. Ms George returned to work on the assumption that Dr Short had provided a medical report and WorkCover certificate advising that she was fit to return to work. It would have been a simple exercise for one of the many officers who became involved in Ms George's return to work on 2 July 2012, to contact Dr Short, or QBE Insurance to obtain a copy of the relevant documentation. The evidence discloses that rather than handle Ms George's return with sensitivity and treat her in the way a senior public servant would normally expect to be treated, the Director, Dr Montague and other senior staff, set upon a course to erect as many impediments as possible to defeat Ms George's return to work. 80If there are concerns in relation to Ms George's conduct on 2 July 2012, they should be dealt with as a disciplinary matter. If there are relationship concerns, those concerns should be dealt with in accordance with the Grievance Policies of the Ministry. 81The suggestion that Ms George should not return to work in her position as Manager (Corporate and Business Services) because of concerns by other staff members about her returning to work, has no evidentiary foundation. 82No direct evidence was placed before the Commission from any employee who is said to be concerned about Ms George resuming her duties at the Institute, or the basis for any such alleged concerns. In these circumstances, I reject such contentions. 83To the extent that there is some evidence indicating difficulties in the relationship between Ms George and the Director of the Institute, in my view, that matter cannot provide a basis for refusing to permit Ms George to resume the duties of her position. 84This Commission and other courts and tribunals have frequently emphasised in the context of reinstatement cases, that it is not appropriate to quickly come to the conclusion that an employment relationship is irrevocably broken down. See Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; CCH Australia Limited v Bowen (1998) 79 IR 206 at 217 - 218; Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at 213 - 214; Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117; (2001) 105 IR 325 at [35]; Hornsby Shire Council v Hunt [2002] NSWIRComm 158; (2002) 115 IR 461; Youssef and Western Sydney Area Health Service [2003] NSWIRComm 284; (2003) 129 IR 338; Australian Workers Union, NSW (on behalf of Stojanovski) v BlueScope Steel (AIS) Pty Ltd (formerly BHP Steel (AIS) Pty Ltd) [2004] NSWIRComm 304; (2004) 137 IR 211. 85Recently, in Quinn v Overland [2010] FCA 799; (2010) 199 IR 40, Bromberg J in the Federal Court of Australia made clear that employment relationships are generally capable of being repaired. His Honour observed at [98]: Of particular significance to the continuing relevance of the original rationale, is that throughout the length and breadth of Australia, Parliaments have enacted unfair dismissal regimes which provide for the reinstatement of a dismissed employee as an available remedy. These regimes have now been in place for over a generation. Dismissed employees are regularly reinstated into their former employments without apparent consequent difficulties. The long-standing nature of this remedy, and its acceptance as part of the industrial furniture, is a testament to the fact that as a matter of practice, a breakdown in confidence is not necessarily irreconcilable. What needs to be achieved by a reconciliation is a sufficient level of cooperation for a proper working relationship to resume; mutual affection and friendship are not essential: Downe at [462]. (Emphasis added) 86The Ministry has in place various Policy Directives, including Grievance - Effective Workplace Resolution and Bullying - Prevention and Management of Workplace Bullying in NSW Health. To the extent that there is any difficulty in the relationship between Ms George, the Director, or other staff at the Institute, those matters should be resolved by the application of the Ministry's applicable Policies. Such difficulties if they exist, should not be addressed by refusing to permit Ms George to return to work in her substantive position, which is the effect of the current position adopted by the Ministry. Conclusion 87For the reasons that I have provided, I find the directive by the Ministry to Ms George to attend a medical assessment is unlawful. There are no reasonable grounds for Ms George to be referred for a medical assessment, as Ms George has been declared fit to resume pre-injury duties in her position as Manager (Corporate and Business Services). All available medical evidence indicates that she is fit to resume full-time duties. 88I also find that there is no basis upon which the Ministry is entitled to refuse to permit Ms George to perform her role and carry out the duties of the position of Manager (Corporate and Business Services) at the Institute. 89Therefore, pursuant to s 136(1)(a) of the Industrial Relations Act 1996, I direct that Ms Julia George resume duties in the position of Manager (Corporate and Business Services) at the NSW Institute of Psychiatry. This direction is to operate on and from Thursday 13 December 2012. ********** 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: 12 December 2012