1
Fair Work Act 2009
s.394—Unfair dismissal
Guiseppina (Josie) Cartisano
v
Sportsmed SA Hospitals Pty Ltd
(U2013/16124)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 29 JULY 2014
Application for relief from unfair dismissal - remedy - reinstatement - inherent requirements
of the position - lost income.
[1] On 8 May 2014 I issued a decision1 in which I determined that the termination of
Ms Cartisano’s employment was harsh and unjust. In that decision I set out my reasons for
concluding that, in the particular circumstances at issue, there was no valid reason for that
termination of employment, that it was implemented without advance warning, and in a
manner which deprived Ms Cartisano of the capacity to fairly challenge it.
[2] In that decision I addressed the issue of remedy in the following terms:
“[83] The primary remedy is that of reinstatement to the position held by Ms
Cartisano prior to her dismissal or to another position, on terms and conditions no less
favourable than those that then applied.
[84] As I have indicated, I have significant reservations, on the medical evidence
before me, about Ms Cartisano’s capacity to undertake the inherent requirements of
the position. There is no evidence before me which identifies possible alternative
positions.
[85] In the event that I considered reinstatement to be inappropriate s.390(3), an
amount of compensation may be considered. The factors which must be taken into
account in considering an order for the payment of compensation are set out in s.392.
In terms of those factors, if I concluded that Ms Cartisano would have been likely to
have remained on unpaid sick leave had she not been dismissed on 24 October 2013,
an award of compensation may become highly problematic.
[86] I am not satisfied that the evidence before me enables a conclusion relative to
the issue of remedy and have decided that the matter should be relisted for further
consideration in this regard. That further consideration may be informed by additional
evidence about Ms Cartisano’s current medical condition. In this respect I would
expect more substantial medical evidence than the backdated medical certificate
obtained by her shortly before the hearing of this matter. To the extent that Sportsmed
[2014] FWC 4928 [Note: Appeals pursuant to s.604 (C2014/5937 and
C2014/6005) were lodged against this decision - refer to Full Bench
decision dated 12 March 2015 [[2015] FWCFB 1523] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB1523.htm
[2014] FWC 4928
2
request a more detailed medical assessment of Ms Cartisano’s health I would expect
Ms Cartisano to attend an appointment arranged for her. The parties may also provide
additional evidence about the extent to which Ms Cartisano is now able to undertake
the inherent requirements of the position. The matter will be listed for a determinative
conference to consider this issue on the basis that some time will be allowed before the
listing to allow for medical assessments.”
[3] The issue of remedy was considered in a further determinative conference convened
on 17 July 2014. Ms Cartisano continued to be represented by Mr Radbone, of counsel and
Sportsmed SA Hospitals Pty Ltd (Sportsmed) by Ms Victory, of counsel.
[4] The position adopted by Ms Cartisano at this conference was that she sought
reinstatement with payment of lost income from 18 November 2013. The Sportsmed position
was that reinstatement was neither possible on medical grounds, nor appropriate and that,
given Ms Cartisano’s medical condition, no amount of compensation in lieu of reinstatement
was appropriate.
[5] Whilst I have taken into account all of the material before me in considering the issue
of remedy, I have summarised the particularly significant evidence in the following terms.
[6] Ms Cartisano suffered a non-work-related motor vehicle injury in September 2012.
She returned to work with restrictions until May 2013. She has not worked since that time. In
August 2013 she had an arthroscopy. The termination of her employment took effect on
7 November 2013. At the time of the termination of her employment Ms Cartisano was the
Manager of the Sportsmed Central Sterilisation Supplier Department (CSSD).
[7] Ms Cartisano was assessed by Dr Jezukaitis, an Occupational Physician on 25 June
2014. His assessment was that Ms Cartisano was fit to perform duties that are essentially
sedentary and/or light in nature. He considered that no medical restriction was required with
respect to office work or to activities that are sedentary or light, recommended a restriction of
10 kg for repetitive work and particularly tasks that are performed above mid-chest height,
below mid-thigh height, or at an extended reach. Dr Jezukaitis continued:
“As such, a functional job analysis was not available for review. However it is my
impression that she would be able to perform a majority of activities conducted before
the accident and may require a small accommodation with regards to some of the
heavier surgical trays. The worker did raise that at time she worked up to 14 hours a
day and there may be some sustainability questions around this, should this be
consecutively required.”2
[8] Additionally, I have been provided with two medical certificates3 made out by Ms
Cartisano’s general practitioner, Dr Lin. The first, dated 25 November 2013 advises that Ms
Cartisano had a medical condition and would be fit for light duties from 18 November 2013.
The second, dated 4 June 2014, states:
“Miss Guiseppina Cartisano is and had been able to perform her normal managerial
duties. The restrictions are lifting above 10 kg if repetitive in nature. There are no other
restrictions applicable to her.”4
[2014] FWC 4928
3
[9] Ms Cartisano’s lawyer has attempted, without success, to obtain a more detailed
updated report into Ms Cartisano’s medical condition from Dr Lin.
[10] Ms Cartisano’s evidence relative to the issue of remedy was consistent with her earlier
evidence. Her position was that her duties involved the allocation of work with minimal
manual handling requirements. She stated:
“Almost exclusively, the only times or reasons why I performed any physical work on
the floor was:-
For training purposes i.e. to instruct new staff on how to perform various tasks
and by way of demonstration.
If one of the staff was sick and could not be covered for at short notice.
In the event that someone phoned in sick at short notice, there was always some built
in redundancy in relation to the number of staff who were working in the CSSD.
Normally I would go and work in the CSSD for perhaps an hour or an hour and a half
work to cover until further people came on to the shift.”5
[11] Ms Cartisano also addressed manual handling issues associated with her work in the
following terms:
“The only time that I would need to fill in to perform manual work on the floor due to
an absence of staff was if someone from the afternoon shift called in sick. Then it
would be only until someone from an agency arrived.
I estimate that it was only once every six months that I would need to do more than an
hour or an hour and a half to fill in for someone who called in sick at short notice.
In summary, the only manual work which I performed as part of my duties was either
when training people, and there was no need to lift any heavy weights while doing so
because that was the job of the person being trained, or alternatively for short periods
when staff phoned in sick at short notice.”6
[12] Ms Cartisano provided copies of her timesheets indicating occasions when she had to
work overtime as a consequence of staff absences. While I have noted this material, I am not
satisfied that these timesheets explain the inherent requirement of her job.
[13] Ms Hill is the Sportsmed Human Resources Manager. Her evidence relative to the
remedy issue was also consistent with her earlier evidence. Ms Hill disagreed with Ms
Cartisano’s assessment of her role and asserted that the position of Manager CSSD required a
person who is physically and mentally fit to carry out all of the functions of the role in a safe
manner.7 Ms Hill’s evidence was that:
“In order for Ms Cartisano to return to employment with SPORTSMED SA, or for
anyone to fulfil this role, they would need to have a complete clearance for performing
all duties associated with the role and functioning safely and effectively in this high
risk area.”8
[2014] FWC 4928
4
[14] Ms Hill asserted that the medical certificates issued by Dr Lin and Dr Jezukaitis’
assessments identified limitations on Ms Cartisano’s fitness for work which meant that she
was not fit to perform the role she was employed to undertake.
[15] Ms Hill’s evidence continued9 to disagree with various of Ms Cartisano’s assertions
about manual handling elements of the Manager CSSD role.
Findings - Reinstatement
[16] Section 390 states:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see
Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under
section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the
circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
[17] The initial issue requiring determination is whether I am satisfied that Ms Cartisano’s
reinstatement is appropriate in these circumstances.
[18] Before setting out the approach I have applied in this respect I note that in my decision
of 8 May 2014 I considered whether there was a valid reason for the termination of her
employment on the approach applied in J Boag & Sons Brewing Pty Ltd v Button (Boag).10 I
concluded that, Sportsmed’s failure to put Ms Cartisano on notice that it was reviewing her
employment and to provide her with the medical report which it then relied upon, impacted on
my conclusion that there was no valid reason for the termination of her employment.11 In
Boag the Full Bench reviewed an employment termination which followed a medical
assessment that an employee could not continue to safely perform his duties.12 The Full
Bench determined that:
“[21] The Senior Deputy President found that there was no valid reason for the
dismissal of Mr Button on the basis of an inability on the part of Mr Button to perform
the inherent requirements of his job. The Senior Deputy President proceeded on the
basis that Mr Button was able to, and had been, performing the inherent requirements
[2014] FWC 4928
5
of the restricted duties in which he had been working since October 2008. This
conclusion involved error.
[22] When an employer relies upon an employee’s incapacity to perform the inherent
requirements of his position or role, it is the substantive position or role of the
employee that must be considered and not some modified, restricted duties or
temporary alternative position that must be considered.”
[19] The Full Bench then considered various authorities with respect to the notion of
inherent requirements of a particular employment. It stated:
“[23] In X v Commonwealth the High Court was concerned with an allegation of
discrimination on the grounds of disability contrary to the Disability Discrimination
Act 1992 (Cth) by a soldier who had been dismissed from the army on account of
being HIV positive. Section 15(4) of that Act contains an exemption from liability if
the person “would be unable to carry out the inherent requirements of the particular
employment”. Gummow and Haynes JJ addressed the notion of “inherent”
requirements:
“[102] The reference to "inherent" requirements invites attention to what are
the characteristic or essential requirements of the employment as opposed to
those requirements that might be described as peripheral. …[T]he requirements
that are to be considered are the requirements of the particular employment, not
the requirements of employment of some identified type or some different
employment modified to meet the needs of a disabled employee or applicant
for work.”
[24] Although the High Court was concerned with the meaning of the expression
“inherent requirements” in a statute, this analysis is equally applicable to a
consideration of what constitutes the “inherent requirements” of a position as a valid
reason for dismissal. Thus, in Hail Creek Coal Pty Ltd v CFMEU a Full Bench noted:
“[124] The phrase "inherent requirements" has been judicially considered to
mean something that is essential to the position. [See generally X v The
Commonwealth (1999) 200 CLR 177] To determine what are the inherent
requirements of a particular position usually requires an examination of the
tasks performed, because it is the capacity to perform those tasks which is an
inherent requirement of the particular position. [Qantas Airways Ltd v Christie
(1998) 193 CLR 280 at 304 per McHugh J] As her Honour Gaudron J said in
Qantas Airways Ltd v Christie:
"A practical method of determining whether or not a requirement is an
inherent requirement, in the ordinary sense of that expression, is to ask
whether the position would be essentially the same if that requirement
were dispensed with." [ibid. at 295]”
[25] In Qantas Airways Ltd v Christie Gaudron J, with whom Brennan CJ agreed,
noted that the expression “inherent requirements”, in its natural and ordinary meaning
“directs attention to the essential features or defining characteristics of the position in
question.” Her Honour noted:
[2014] FWC 4928
6
“[33] There may be many situations in which the inherent requirements of a
particular position are properly identified as the characteristic tasks or skills
required for the work done in that position. But that is not always so. In the
present case, the position in question is that of captain of B747-400 aircraft
flying on Qantas' international routes, a matter as to which there is no real
dispute between the parties. To identify the inherent requirements of that
position as "the characteristic tasks or skills required in being a pilot", as did
Marshall J in the Full Court, is to overlook its international character.
[34] Moreover, the international character of the position occupied by Mr
Christie cannot be treated as irrelevant simply because it derives from his
contract of employment or from the terms and conditions of the industrial
agreements which have, from time to time, governed his employment with
Qantas. It is correct to say, as did Gray J in the Full Court, that an inherent
requirement is something that is essential to the position. And certainly, an
employer cannot create an inherent requirement for the purposes of s 170DF(2)
by stipulating for something that is not essential or, even, by stipulating for
qualifications or skills which are disproportionately high when related to the
work to be done. But if a requirement is, in truth, essential, it is irrelevant that
it derives from the terms of the employment contract or from the conditions
governing the employment relationship.””
(references removed)
[20] I consider that those concepts are also relevant to the question of whether
reinstatement is appropriate.
[21] This notion of inherent requirements was reviewed in the context of reinstatement, by
a Full Bench in Ambulance Victoria v Ms V.13 In that matter the Full Bench dealt with an
appeal made, in part, against a decision that there was no valid reason for the termination of
Ms V’s employment. The Full Bench then considered the question of reinstatement in the
following terms:
“[62] Medical evidence and the special nature of the work were considered by
Commissioner Smith in finding that there was no valid reason for the termination. It
was a finding which we have already decided is not affected by error in the House v
The King sense. For the same reasons, we find that the Commissioner’s decision to
reinstate was not in error. Absent some additional consideration, it would be perverse
if factors which were not found to substantiate a valid reason for termination, in
themselves, compelled a finding that reinstatement was inappropriate. A lack of
confidence of an employer in the employment relationship or the capacity of an
employee to undertake their work is not determinative of the appropriateness of
reinstatement. Such a lack of confidence must be reasonably based, in this case against
the medical evidence, and must, in any case, be balanced against other considerations
where they are relevant.
....
[2014] FWC 4928
7
[66] We are satisfied that it was open to Commissioner Smith to reinstate the
respondent to the position she occupied immediately before the dismissal. A finding
that it was the position in which she was employed immediately before the dismissal
was reasonably open to him on the evidence. It is a reinstatement to the position that
the respondent previously occupied, subject to the appellant’s return to work
processes. As envisaged by the Commissioner, the return to that position is subject to
the usual processes applied by the appellant to the return to work of an employee
returning from a long-term absence from work, which are normal incidents of the
position, and subject to the return to work process in train at the time the decision was
taken to terminate her employment, as set out in the 23 February 2010 letter from the
appellant to the respondent and the evidence of Mr Roughton, the next step in which is
the completion of a clinical assessment, including a physical assessment (involving the
performance of physical operation duties). The application of the return to work
processes of the appellant does not alter the nature of the position to which the
respondent is reinstated. The effect of the Commissioner’s order is to return the
respondent to the situation which existed immediately prior to the termination of her
employment.”
(references removed)
[22] In Smith v Moore Paragon Australia Ltd14 a Full Bench considered the issue of
employee incapacity with respect to reinstatement in the following terms:
“[51] The weight to be accorded to ongoing incapacity on the part of an employee when
considering whether reinstatement pursuant to s.170CH(3) is appropriate will depend
upon all the circumstances of the case. However, when considering whether
reinstatement is appropriate for an employee who has an ongoing incapacity arising
from illness or injury, the guiding principle ought be that generally reinstatement of a
materially incapacitated employee will not be appropriate where:
• further performance of the employee's contractual obligations in the future
would either be impossible or would be a thing radically different from
that undertaken by him or her and accepted by the employer under the
agreed terms of his or her contract of employment;
• reinstatement would involve imposing a material future productivity
burden or some other unreasonable burden on the employer; or
• reinstatement would impose an unreasonable burden on other employees.
Exceptional circumstances would be necessary before reinstatement could properly be
regarded as appropriate in such cases.
....
[54] In summary, subject to the guiding principle referred to in paragraph [51] above,
the following matters are relevant to the weight to be accorded to an employee's
ongoing incapacity arising from injury or illness when considering whether
reinstatement pursuant to s.170CH(3) is appropriate:
[2014] FWC 4928
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• The terms of the contract of employment including, in particular, the
extent to which the contract of employment specifies inherent
requirements for the employee's contractual "position".
• The nature of the employee's incapacity and whether it prevents the
employee from satisfying the inherent requirements of the employee's
contractual position.
• The breadth of the contractual "position" occupied by the employee and
the duties or job actually performed by the employee at the time his or her
employment was terminated. Where a given "position" covers a wide
range of duties and jobs within the employer's business, it is less likely that
an inability to perform some only of those duties or jobs will be
determinative against reinstatement.
• The practicality and reasonableness of providing modified work
arrangements (including, possibly, the provision of special equipment) or
modified duties to an employee so as to enable the employee to make a
fully or substantially fully productive contribution to the employer's
enterprise albeit within the restrictions arising from the employee's injury
or illness. Clearly, it will often be impractical or unreasonable for a small
employer to provide modified work arrangements or modified duties.
• The likelihood, if any, of a substantial recovery by the employee from his
or her illness or injury and the consequent work restrictions.
• Any statutory duties falling upon the employer under workers'
compensation or other legislation and whether such duties have been
complied with.”15
[23] A further Full Bench decision is informative in this respect. In Jetstar Airways Pty
Limited v Neeteson-Lemkes16 a Full Bench stated:
“[78] .... The critical issue in this connection is whether Ms Neeteson-Lemkes is
medically fit to resume her duties as a Jetstar flight attendant, particularly having
regard to the issue of whether she has a personality disorder. In the Decision the
Commissioner accepted the evidence of Mr Cohen, Dr Saunders, Dr Farago and Mr
McKinley that Ms Neeteson-Lemkes “could be reintegrated to work as a flight
attendant” and that “that would be appropriate”, and did not accept the evidence of Dr
Walker to the contrary. ....”17
[24] Finally, in the High Court decision in Blackadder v Ramsey Butchering Services Pty
Ltd18 (Blackadder) McHugh J stated:
“14. To construe the power "to reinstate" as confined to restoring contractual or other
legal rights fails to give full effect to the term "reinstate". To reinstate means to put
back in place. In this context, it means that the employment situation, as it existed
immediately before the termination, must be restored. It requires restoration of the
terms and conditions of the employment in the broadest sense of those terms. It
empowers the Commission to do more than restore the contract of employment. So far
as practicable, the employee is to be given back his "job" at the same place and with
the same duties, remuneration and working conditions as existed before the
termination. The Full Court of the Federal Court erred in the present case by holding
that "the emphasis on appointing the employee to a 'position' demonstrates that it is the
[2014] FWC 4928
9
contractual position which is either to be restored in its earlier terms or in equivalent
terms."”
[25] Kirby J concurred with this approach. He stated:
“33. By the Act, and the order, reinstatement of the appellant was meant to be real and
practical, not illusory and theoretical. In effect, if the respondent's argument were
correct, it would permit the respondent to thumb its nose at the heart and core of the
order made, namely that the appellant be "reinstated", that is, according to the word's
derivation and ordinary meaning, "put back in place" in his former employment. The
Act does not grant the employer the unilateral power to buy its way out of the
obligations imposed on it under a valid law of the Parliament. The employer is bound
to comply with the order and the Act. Its failure to do so produces statutory
consequences to which, by his orders, Madgwick J sought to give effect.”
[26] These authorities establish the approach to be applied in considering whether Ms
Cartisano should be reinstated. In considering Ms Cartisano’s circumstances I have
considered whether she is medically fit to undertake the inherent requirements of her position
as Manager CSSD as this appears to be the only relevant impediment to reinstatement in this
situation. No argument has been put to me to the effect that there are other comparable
positions on terms and conditions no less favourable to those which applied to Ms Cartisano
pursuant to s.391(1)(b).
[27] There is no dispute that Ms Cartisano is able to undertake the clerical and sedentary
managerial aspects of the job. At issue is the extent and the nature of manual handling work
asserted to be an inherent requirement of the position.
[28] The Sportsmed CSSD Manager Position Description19 requires that, in addition to
leadership and management functions, the Manager will "actively participate in the
processing of sterilisation of surgical instruments and equipment". This participation is
further articulated in technical responsibilities and measures.
[29] Ms Cartisano’s explanation of the manual handling functions associated with her work
function deals with manual handling issues in the following manner. She asserts that trolleys
are used to store and transport instruments.20 She asserts that no items are stored above chest
height, unless they are of minimal weight.21 In terms of equipment, she asserts that operating
equipment is mainly light and that equipment trays are generally between 5-9 kilograms,22
and that normal CSSD duties would only require that about three items over 8 kg be lifted
each hour.23 Further, she asserts that staffing numbers allocated to manual handling tasks took
into account workload issues.24 Ms Cartisano asserts that she went into the CSSD area 5-10
times each day to check on functions and to train staff. She stated:
“Almost exclusively, the only times or reasons why I performed any physical work on
the floor was:-
For training purposes i.e. to instruct new staff on how to perform various tasks
and by way of demonstration.
If one of the staff was sick and could not be covered for at short notice.
[2014] FWC 4928
10
In the event that someone phoned in sick at short notice, there was always some built
in redundancy in relation to the number of staff who were working in the CSSD.
Normally I would go and work in the CSSD for perhaps an hour or an hour and a half
work to cover until further people came on to the shift.
If someone phoned in sick for a morning shift I would never have to fill in for them.
The reason for this is that it tended to be much quieter during the morning. There were
always more than enough staff there to do the absent persons work.
If someone phoned in at short notice sick for the afternoon shift, it was the invariable
practice to call in a casual staff from one of two specialist agencies. There was rarely
any need for me to perform any manual floor work when someone called in late for an
afternoon shift as this would be covered by the agencies.
The only time that I would need to fill in to perform manual work on the floor due to
an absence of staff was if someone from the afternoon shift called in sick. Then it
would be only until someone from an agency arrived.
I estimate that it was only once every six months that I would need to do more than an
hour or an hour and a half to fill in for someone who called in sick at short notice.25
[30] Ms Cartisano asserts that when she stopped doing lifting in excess of 10 kg in
February 2013, after her accident, Sportsmed made no adverse comment. Her position was:
“I have no doubt that I could perform my old job at the present time, with the exception
that I would not be able to frequently lift weights of 10 kg or more. I believe that from
time to time I would be able to lift a weight of 10 kg without any adverse effect on my
health or condition.
With the exception of lifting weights of 10 kg - 15 kg, I could definitely do the work
which I was performing prior to the motor vehicle accident.”26
[31] In her evidence in the initial proceedings, Ms Smith, the Perioperative Manager of
Sportsmed to whom Ms Cartisano directly reported, gave evidence that:
“Ms Cartisano’s role was to effectively manage the day to day activities of CSSD. This
included preparing staff rosters, quality data collection, maintenance of machines and
actively participating in ‘on the floor’ duties which involved lifting trays, loading
sterilisers, training new staff, up skilling existing staff and troubleshooting.”27
[32] That evidence did not extensively detail the manual handling characteristics of the
Manager CSSD position.
[33] Ms Hill’s evidence was that Ms Cartisano omitted to refer to the need to handle
multiple boxes containing total joint kits,28 the Wash Area was a high risk area involving
"sharps and bloods".29 Ms Hill asserted that Ms Cartisano had failed to properly identify the
need to unpack trays and that her assessment of the tray weights was not factually based.30 Ms
Hill’s evidence was that all staff needed to be able to undertake the full range of duties.31
Further, that given that almost 50% of the CSSD employees were casual employees, training
and covering for absences was a substantial requirement of the role and that staffing levels did
[2014] FWC 4928
11
not otherwise cover expected vacancies.32 In terms of the time when Ms Cartisano worked
after her accident, Ms Hill asserts that Sportsmed had actively assisted her to undertake the
essential elements of her role.
[34] The conflict in the evidence of Ms Cartisano and Ms Hill is substantial. I have taken
into account that Ms Cartisano has the benefit of daily completion of these tasks, but I have
also concluded that her views are emotionally and somewhat subjectively expressed. I have
also taken into account that Sportsmed had the capacity to provide evidence, relative to
reinstatement, from persons who had direct knowledge and experience of the detail of the
position of Manager CSSD, but instead, chose to rely on Ms Hill’s somewhat more remote
evidence.
[35] I have concluded that the requirement for relief work is an essential requirement of the
Manager’s position. Further, that this is likely to occur with some frequency. While lifting of
weights in excess of 10 kg is an element of the position, I am not satisfied that the evidence
establishes this is frequent or something that can only be done by the Manager herself. I am
not satisfied that extended working days represents an inherent requirement of Ms Cartisano’s
position. I am satisfied that the Manager CSSD position requires work in areas which
represent employee safety risks in terms of heat, weight, infection and sharp instruments, but
the medical evidence does not preclude Ms Cartisano from working in those areas.
[36] Hence, on the approach applied in Smith v Moore Paragon Australia Ltd and
Ambulance Victoria v Ms V, the evidence does not represent an impediment to Ms Cartisano’s
reinstatement. Notwithstanding this, I have considered a number of other issues. Firstly, as Dr
Jezukaitis notes, there was no functional job analysis available to him. Had such an analysis
been available, I have concluded that it was possible that he may have arrived at a different
conclusion. In this respect, there is nothing to indicate that Sportsmed requested that account
be taken of nominated inherent requirements of the job or that it provided input to Dr
Jezukaitis in this respect.
[37] Secondly, I have concluded that Sportsmed is entitled, and is in fact required, to make
an assessment of the risks associated with Ms Cartisano undertaking her work as Manager of
the CSSD. That assessment must necessarily be informed by an appropriately based opinion
of her health.
[38] Thirdly, as I have noted, the evidence before me provides no indication that alternative
positions consistent with s 391(1)(b) are available.
[39] I do not consider that the undisputed advice that another person has been appointed to
that Manager CSSD position is determinative of the reinstatement issue. Additionally, I note
that the parties are in dispute over two weeks pay received by Ms Cartisano. I do not consider
that to be relevant to the reinstatement issue.
[40] I have concluded that, on the evidence before me, Ms Cartisano should be reinstated to
the Manager CSSD position. Any actual return to work may be subject to a risk assessment
conducted by Sportsmed. To the extent that this assessment confirms Sportsmed’s stated
concerns about Ms Cartisano’s capacity to safely undertake the inherent requirement of her
position, I acknowledge that she may not actually return to work. In this respect it is clear that
the position adopted by the High Court in Blackadder may be distinguished if medical
[2014] FWC 4928
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evidence identifies critical or substantial inherent requirements of the job which Ms Cartisano
is unable to safely undertake.
[41] Section 391(2) provides the capacity for the Fair Work Commission to make an order
for continuity of Ms Cartisano’s employment. I consider such an order to be appropriate in
these circumstances in that it is consistent with the findings in my 8 May 2014 decision.
[42] Section 391(3) establishes the discretion for an order to restore lost pay if the Fair
Work Commission considers that appropriate. Again, consistent with my decision of 8 May
2014, I consider such an order to be appropriate. The date from which any such order should
apply is a significant issue given the evidence before me.
[43] Ms Cartisano was not medically cleared to return to work at the time of the
termination of her employment. I am not satisfied that Dr Lin’s certificate33 of 25 November
2013 establishes that she was able to undertake her Manager CSSD duties as at 18 November
2013. Not only was that certificate backdated, but it so lacks particularity in the circumstances
of this matter, that I am unable to conclude that 18 November 2013 should be applied as the
date for commencement of lost income.
[44] Dr Lin’s certificate of 4 June 201434 and Dr Jezukaitis’ assessment of 4 July 2014 are
consistent with respect to Ms Cartisano’s capacity to substantially undertake duties.
Accordingly, I have adopted the position that payments to Ms Cartisano for income lost since
4 June 2014, should apply.
Conclusion
[45] For the reasons set out above, I have concluded that Ms Cartisano should be reinstated
to the position of Manager CSSD. I acknowledge that medical advice specific to the job has
the capacity to impact on the implementation of the order I will make in this respect. I
consider that continuity of Ms Cartisano’s employment should be maintained and that income
lost since 4 June 2014 should be restored. An Order (PR553423) giving effect to this decision
will be issued.
SENIOR DEPUTY PRESIDENT
Appearances:
J Radbone counsel for the applicant.
C Victory counsel for the respondent.
Hearing details (Determinative Conference):
2014.
Adelaide:
July 17.
RALIA
H
[2014] FWC 4928
13
Printed by authority of the Commonwealth Government Printer
Price code C, PR553413
1 [2014] FWC 3005
2 Exhibit C10, page 6, second para
3 Exhibit C11
4 Exhibit C10
5 Exhibit C6, paras 31 and 32
6 Exhibit C6, paras 35, 36 and 37
7 Exhibit S5, para 4
8 Exhibit S5, para 5
9 Exhibit S6
10 [2010] FWAFB 4022
11 [2014] FWC 3005, para 67
12 Boag, para 15
13 [2012] FWAFB 1616
14 PR942856
15 PR942856, paras 51 and 54
16 [2013] FWCFB 9075
17 [2013] FWCFB 9075, para [78], second sentence
18 [2005] HCA 22
19 Exhibit S2
20 Exhibit C6, paras 11, 12, 15, 16 and 18
21 Exhibit C6, para 19
22 Exhibit C6, paras 20 and 21
23 Exhibit C6, para 23
24 Exhibit C6, para 25
25 Exhibit C6, paras 31, 32, 33, 34, 35 and 36
26 Exhibit C6, paras 43 and 44
27 Exhibit S3, para 3
28 Exhibit S6, para 2
29 Exhibit S6, para 4
30 Exhibit S6, paras 5 and 6
31 Exhibit S6, paras 7 and 9
32 Exhibit S6, paras 10, 11 and 12
33 Exhibit C11
34 Exhibit C11
