Guiseppina (Josie) Cartisano v Sportsmed SA Hospitals Pty Ltd [2014] FWC 3005

29 May 2014

Application for Unfair Dismissal Remedy – Absence from Work – Inherent Requirements of the Position – Valid Reason – Dismissal Process – Remedy not Determined

Facts

  • On 22 November 2013 Ms Cartisano lodged an application pursuant to Section 394 of the Fair Work Act 2009 (“the Act), seeking relief for the termination of her employment with Sportsmed SA Hospitals Pty Ltd (“Sportsmed”).

  • Ms Cartisano was employed by Sportsmed in May 2009 as a Manager of the Central Sterilising Supply Department.  As part of her role, Ms Cartisano was involved in floor work and manual handling, which required her to lift objects weighing 5kg to 10kg.

  • In September 2012, Ms Cartisano was involved in a motor vehicle accident (which was unrelated to her work).  Ms Cartisano returned to work but was unable to do so on a full-time basis.  Upon her return to work, Ms Cartisano took various leave over several months because of her injury, this included annual leave from May 2013, as well as paid and unpaid sick leave.

  • In July 2013, Ms Cartisano advised Sportsmed that she was to undergo shoulder surgery as a result of the accident.  Sportsmed then agreed to provide her with extended leave.  The duration of that agreed leave was a matter in dispute. 

  • On 9 September 2013, Ms Cartisano provided a medical certificate signed by her surgeon which stated that she had undergone shoulder surgery and was able to return to work.  Sportsmed and Ms Cartisano subsequently met in October 2013, at which time Sportsmed terminated Ms Cartisano’s employment.  The termination ultimately took effect on 7 November 2013.

    Submissions

    Ms Cartisano’s submissions were that:

  • Following her accident, she ceased performing lifting duties and that while Sportsmed were aware of this, it did not limit her ability to satisfactorily perform the requirements of her position.  For this and other reasons, she argued that Sportsmed did not have a valid reason for the termination of her employment and the termination of her employment was harsh, unjust and unreasonable.

  • Some of the matters she relied on to argue that termination of her employment was harsh, unjust and unreasonable included:

  • Some of the matters she relied on to argue that termination of her employment was harsh, unjust and unreasonable included:

  • her employment and the termination of her employment was harsh, unjust and unreasonable.

  • Some of the matters she relied on to argue that termination of her employment was harsh, unjust and unreasonable included:

(a) Sportsmed had advised her it would allow her to take 12 weeks’ leave following her shoulder surgery, and told her that her job was not under threat because of that surgery.

(b) She was not given fair notice of the purpose of the October 2013 meeting which resulted in the termination of her employment. Further, she was not given a fair opportunity to consider and respond to the medical report relied on by Sportsmed.

(c) The termination of her employment was a decision made prematurely and too soon after her shoulder surgery in order for a fair assessment to be made.

Sportsmed’s submissions were that:

  • Its managers had numerous conversations with Ms Cartisano in respect of her incapacity for work and did not agree to keep her job open indefinitely.

  • The purpose of the October 2013 meeting was to discuss the medical report and Ms Cartisano’s ability to perform the role.

  • Sportsmed and Ms Cartisano agreed that her employment should be terminated, on the basis that she would be unlikely to receive medical clearance from her surgeon and that her job could not be left open indefinitely.

  • Ms Cartisano was given an opportunity to respond to Sportsmed’s concerns, including in the October 2013 meeting and that she made no request for a support person to be present in the discussions.

    Reasoning of the Commission

    Overall, the Commission considered the oral evidence to be quite contradictory, and concluded that the various witnesses had different perspectives on the situation.

    The Commission began by noting that:

  • There was no issue in respect of Ms Cartisano’s work performance, and that Ms Cartisano was well regarded in terms of her work.

  • Ms Cartisano’s work comprised a component of manual handling which was an inherent requirement of the position.

  • It accepted the evidence of one of Sportsmed’s managers, that she had instructed Ms Cartisano not to undertake floor work, and had coordinated departments accordingly to allow for this change.  Although the Commission found Ms Cartisano had undergone some floor work, prior to, and following the accident, it held that Ms Cartisano had not breached the instructions given to her, as the instructions were somewhat unclear.

    Provision of leave post May 2013

    In respect of leave taken by Ms Cartisano, the Commission found that she took annual leave and then paid sick leave.  Further, that after her paid sick leave expired, she continued by taking unpaid leave.

    The Commission then referred to an email from a manager of Sportsmed to another staff member, confirming that Ms Cartisano was waiting on approval for the operation to her shoulder, that she would have a six to eight week recovery phase, and that her leave would be extended by up to twelve weeks.  Further, that they would discuss the matter further following Ms Cartisano’s surgery.  A response to that email confirmed the extension of leave to twelve weeks.

    The Commission therefore concluded that Sportsmed intended a 12 week extension of leave from 1 July 2013, to include an anticipated 6-8 week recovery from shoulder surgery (and not 12 weeks from the surgery itself).

    Section 387 of the Act: Criteria for considering harshness, etc:

  1. Valid reason

    Adopting the approach as set out in Selvechandron v Peterson Plastics Pty Ltd (1995) 62 IR 371, the Commission found that Ms Cartisano was unable to perform all of the inherent requirements of her position, and that a medical certificate left open the possibility that Ms Cartisano’s capacity to undertake light duties was such that, she may have been able to fulfil all, or a substantial proportion of the requirements of her job.

    While Sportsmed was clearly entitled to be concerned about Ms Cartisano’s capacity to work, the Commission said that the termination was inconsistent with the earlier advice provided to her about the duration of her absence.

  2. Failure to provide Ms Cartisano with a company- assigned doctor’s report

    On evidence, the Commission found that Sportsmed’s refusal to allow Ms Cartisano access to her medical report deprived her of the opportunity to consider the report, and was inconsistent with the concept of fairness inherent in the requirement for a valid reason for dismissal.

  3. Notification of the reason

    The Commission was satisfied that Ms Cartisano was advised of the reason for her termination in the course of the October meeting.  It said, however, that the opportunity for Ms Cartisano to respond to the termination proposal was compromised, given that Ms Cartisano was taking significant quantities of medication at the time.  It said that, had Sportsmed scheduled another meeting soon after that for this purpose, Ms Cartisano would have been more fairly placed to respond.  It concluded that this factor was indicative of unfairness directed at Ms Cartisano.

  4. Harsh, unjust or unreasonable

    The Commission was not satisfied that there was a valid reason for termination of Ms Cartisano’s employment.  It said, had the approach of Sportsmed been different, it may have reached a different conclusion.

    The Commission also said that, irrespective of the valid reason consideration, the manner of Ms Cartisano’s termination was such that it was harsh and unjust, as the termination:

  5. The Commission also said that, irrespective of the valid reason consideration, the manner of Ms Cartisano’s termination was such that it was harsh and unjust, as the termination:

    (a) Was implemented without advance warning;

    (b) Was inconsistent with earlier advice provided to her; and

    (c) Was affected in such a way which deprived her of the capacity to fairly challenge the decision.

    Ultimate Decision

    The Commission concluded that the termination of Ms Cartisano’s employment was unfair and relisted the matter for further consideration, in particular, whether reinstatement of Ms Cartisano to another position should have been considered in all the circumstances.

    Lessons for Employers

    Make sure that actions taken to determine whether an employee can carry out the inherent requirements of the job are consistent with earlier representations made to the employee.

    Make sure the employee is given an opportunity to properly respond to any medical evidence.

    Make sure that you consider reasonable adjustments and the time period associated with the same.