Colefax v Secretary, Department of Education [2018] NSWIRComm 1033

Industrial Relations Commission New South Wales Medium Neutral Citation: Colefax v Secretary, Department of Education [2018] NSWIRComm 1033 Hearing dates: 29 September, 9 and 10 October, 12 and 15 December 2017, 27 March 2018 Date of orders: 11 May 2018 Decision date: 11 May 2018 Jurisdiction: Industrial Relations Commission Before: Murphy C Decision: Application dismissed Catchwords: UNFAIR DISMISSAL – workplace assessment – medical retirement – applicant unable to perform the inherent requirements of the role of an ESL teacher – no reasonably practicable controls or adjustments to address risk of injury – respondent's work health and safety obligations – medical retirement of the applicant not unfair Legislation Cited: Teaching Service Act 1980 Workers Compensation Act 1987 Industrial Relations Act 1996 Workplace Injury Management and Workers Compensation Act 1998 Public Sector Employment and Management Act 2002 Work Health and Safety Act 2011 Category: Principal judgment Parties: Margaritte Joanne Colefax (Applicant)

Secretary, Department of Education (Respondent) Representation: Counsel: Ms K Nomchong SC (Respondent)

Solicitors: Ms J Burton, Crown Solicitors Office (Respondent) File Number(s): 2017/00116629

DECISION 1. The applicant in this matter, Margaritte Colefax, was medically retired from the Teaching Service on 29 March 2017 as a consequence of a determination by Jane Simmons, Executive Director, Public Schools NSW, Department of Education, pursuant to section 76 of the Teaching Service Act 1980. Section 76 is in the following terms: 76 RETIREMENT OR TRANSFER OF OFFICERS THROUGH INVALIDITY OR INCAPACITY (1) Where the Secretary determines: (a) that an officer of the Teaching Service is, because of invalidity or physical or mental incapacity, unable to perform the duties of his or her position, (b) that the invalidity or incapacity is likely to be of a permanent character, and (c) that the invalidity or incapacity has not arisen from actual misconduct on the officer's part or from causes within the officer's control, the Secretary: (d) may cause the officer to be retired from the Teaching Service, or (e) with the consent of the officer, may transfer the officer: (i) to some other position in the Teaching Service, or (ii) to ongoing employment in the Public Service (with the approval of the head of the Public Service agency concerned), with salary and other conditions of the officer's employment appropriate to that position or employment. (2) A decision or determination of the Secretary under subsection (1) is not subject to appeal under Part 7 of Chapter 2 of the Industrial Relations Act 1996 . 1. Ms Simmons was acting in her capacity as the delegate of the respondent, the Secretary of the Department. In correspondence to the applicant dated 29 March 2017, Ms Simmons confirmed her determination that the applicant was unable to carry out the inherent requirements of her position as an ESL primary school teacher due to the impact of her physical incapacities, her psychiatric or mental incapacity or both. Ms Simmons also confirmed her opinion that the applicant's inability to carry out the duties of her position was likely to be of a permanent character and that her incapacity had not arisen from actual misconduct on the applicant's part or from causes within her control. 2. Ms Simmons' determination was, in part, based upon an Occupational Therapy Report prepared by Lucinda Smith, an Occupational Therapist employed by Prudence Consulting, who was instructed by the Crown Solicitor to conduct an assessment of the applicant's physical and psychological condition and her ability to safely perform inherent requirements of an ESL primary school teacher. In her report, Ms Smith concluded as follows: Following the assessment of Ms Colefax I have undertaken extensive review and consideration of the provided information, and her presentation and information provided during the assessment. Ms Colefax's case is complex and key issues have emerged including travel restrictions, onset of fatigue, propensity for falls, pain and pain management, the presence of physical and psychological injury, and the failure so far to have achieved a timely safe and durable return to work. All of these issues are directly related to her medical conditions. Information has been considered especially in the context of Ms Colefax's employer's obligations under the WHS Act 2011 (NSW). The Department is obliged to effectively and appropriately perform risk management, to provide a safe workplace and to prevent harm to its workers and others. These requirements relate to both physical and psychological health, safety and wellbeing and the Department is obliged to consider all risk areas. A key consideration for Ms Colefax is whether she is able to fulfil the inherent requirements of her job, and whether she can be safely accommodated at work in a way which manages all risk areas. In the context of her health the Department is obliged to consider both her physical and psychological health status. For the reasons outlined in this report it is my opinion that Ms Colefax is unable to meet the inherent requirements of her position. The Department would be unable to satisfy its obligations under the WHS Act 2011 (NSW) and under common law by returning Ms Colefax to work within the Department. 1. On 19 April 2017, the applicant filed in the office of the Industrial Registrar an Application for Relief in Relation to Unfair Dismissal pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). Attached to that application was a letter dated 5 April 2017 to the respondent in which she claimed to be able to work and asked to be reinstated. The applicant also claimed that the respondent had failed to make reasonable adjustments, if required, for her disability of incomplete paraplegia.