1
Fair Work Act 2009
s.604 - Appeal of decisions
Giuseppina (Josie) Cartisano
v
Sportsmed SA Hospitals Pty Ltd
(C2014/5937)
Sportsmed SA Hospitals Pty Ltd
v
Giuseppina (Josie) Cartisano
(C2014/6005)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT SMITH
COMMISSIONER ROE SYDNEY, 12 MARCH 2015
Appeal against decision [2014] FWC 4928 of Senior Deputy President O'Callaghan at
Adelaide on 29 July 2014 in matter number U2013/16124.
Introduction
[1] Ms Giuseppina Cartisano has appealed against a decision issued by Senior Deputy
President O’Callaghan on 29 July 20141 (Decision) and an accompanying order of the same
date2 (Order). The Decision and the Order were made in respect of Ms Cartisano’s application
under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy against
Sportsmed SA Hospitals Pty Ltd (Sportsmed). Ms Cartisano was successful in obtaining an
order for her reinstatement together with payment of lost remuneration and the maintenance
of continuity of employment, but contends that the Senior Deputy President erred, and
exceeded his jurisdiction, by attaching to the order of reinstatement an impermissible
condition. That part of the Order which concerned Ms Cartisano’s reinstatement provided that
Sportsmed “reinstate Ms Guiseppina (Josie) Cartisano [sic] to the position she held
immediately before the termination of her employment, subject to a risk assessment to be
conducted by Sportsmed” (underlining added). The underlined condition is the subject of Ms
Cartisano’s appeal.
[2] Sportsmed has also lodged a notice of cross-appeal against the Decision and Order.
Paragraph 1.2 of Sportsmed’s notice of appeal states:
1 [2014] FWC 4928
2 PR553423
[2015] FWCFB 1523
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 1523
2
“Sportsmed SA Hospitals Pty Ltd does not appeal the decision of O’Callaghan SDP but
refers to the notice of appeal lodged by Ms Cartisano on 19 August 2014 and says that
if the Full Bench grants leave to Ms Cartisano to appeal and upholds the appeal, then
the Full Bench should find as follows:
1. Given the findings made by O’Callaghan SDP in his judgments of 8 May
2014 and 29 July 2014 as to Ms Cartisano’s incapacity for the duties involved
in the position she held immediately before the termination of her employment,
and the evidence before the Commission regarding this issue, along with
Sportsmed SA’s entitlement and requirement to undertake a risk assessment
associated with Ms Cartisano’s ability to return to her pre-termination position,
reinstatement was not an appropriate remedy in the circumstances.”
[3] The notice of cross-appeal does not elsewhere allege any appellable error in the
Decision or Order. The Commission’s appeal powers under s.607(3) of the Act are only
exercisable if there has been error on the part of the primary decision-maker.3 We do not
consider that Sportsmed’s notice of cross-appeal, in substance, constitutes an appeal at all, but
is more in the nature of a submission as to what course we should take if we determine to
grant Ms Cartisano permission to appeal, uphold her appeal, and then proceed to re-hear the
matter. Accordingly we will formally refuse Sportsmed permission to appeal, but we will take
into account the matters raised in its notice of cross-appeal in relation to any re-hearing of the
matter. That leaves only Ms Cartisano’s appeal to be considered.
Factual background
[4] Ms Cartisano was dismissed from her position as Manager, Central Sterile Supply
Department (CSSD) with Sportsmed effective from 7 November 2013. The dismissal was
effected on medical incapacity grounds arising from a shoulder injury which Ms Cartisano
had suffered in a motor vehicle accident in September 2012 and which was subsequently the
subject of surgery. In a first decision issued on 8 May 20144, the Senior Deputy President
found that there was not a valid reason for Ms Cartisano’s dismissal and that her dismissal
was harsh and unjust, and then deferred making a decision as to the appropriate remedy to be
granted to Ms Cartisano until there was further medical evidence forthcoming concerning Ms
Cartisano’s capacity to perform her duties if reinstated.
[5] The Decision was issued after a further determinative conference about the matter on
17 July 2014. In the Decision, the Senior Deputy President set out the medical evidence
concerning Ms Cartisano’s shoulder condition as follows:
“[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).
3 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [17]
4 [2014] FWC 3005
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[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.’
[8] Additionally, I have been provided with two medical certificates 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.’”
[6] The Senior Deputy President then set out the evidence concerning the extent to which
Ms Cartisano was required to perform manual handling duties in her role that might be
affected by her shoulder injury:
“[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.’
[11] Ms Cartisano also addressed manual handling issues associated with her work in
the following terms:
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‘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.’
[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. 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.’
[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 continued to disagree with various of Ms Cartisano’s
assertions about manual handling elements of the Manager CSSD role.”
[7] After referring to some case authorities concerning the “inherent requirements” of a
particular employment and the issue of physical incapacity in connection with the grant of the
remedy of reinstatement, the Senior Deputy President identified the issue before him in the
following way:
“[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).
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[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.”
[8] The Senior Deputy President then referred in some detail to the competing evidence of
Ms Cartisano and Ms Hill concerning the manual handling aspects of the role, and then made
the following findings:
“[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 evidence identifies critical or substantial
inherent requirements of the job which Ms Cartisano is unable to safely undertake.
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[9] After concluding that he should make orders for maintenance of continuity under
s.391(2) and for restoration of lost pay under s.391(3), the Senior Deputy President stated the
following 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
giving effect to this decision will be issued.”
Events since the Decision
[10] At the hearing of the appeal, the parties each adduced evidence (comprising an
affidavit sworn by Ms Cartisano on 29 September 2014 and an affidavit sworn by Claire
Marie Victory on 29 September 2014) concerning events which had occurred since the
Decision and Order were issued on 29 July 2014. That evidence demonstrated that on or about
14 August 2014, Sportsmed paid Ms Cartisano the back-pay owing to her under the Order.
However, Sportsmed did not permit Ms Cartisano to return to work. Instead, in an email sent
on 5 August 2014, Sportsmed informed Ms Cartisano that it would be “undertaking a risk
assessment as directed by O’Callaghan SDP”. It directed her to participate in the assessment,
which would be conducted by Dr Geoffrey Graham, an occupational physician, and to attend
the workplace for that purpose the following day.
[11] Ms Cartisano attended the workplace in accordance with this direction. According to
her evidence, there was then a discussion between Ms Cartisano and Dr Graham about various
aspects of her position. This included a private discussion in which Dr Graham inquired,
among other things, as to Ms Cartisano’s feelings about returning to work and how she would
get on with other staff. After this, Dr Graham, Ms Cartisano and some other staff conducted a
“walk-through” of the CSSD. In the course of this, Dr Graham raised the issue of Ms
Cartisano’s ability to lift and place items on shelves above shoulder height. Ms Cartisano said
in her affidavit that she pointed out to Dr Graham that Sportsmed had acquired a set of mobile
steps in order to remove any need for items stored at heights to be lifted overhead.
[12] Dr Graham subsequently prepared a report dated 8 August 2014. In his report, Dr
Graham identified the materials which he had available to him at the time that he prepared his
report, including medical reports and certificates from Dr Lin, Dr Jezukaitis and Dr Sales, part
of Ms Cartisano’s evidence before the Senior Deputy President, and a copy of the Decision.
He described her current treatment and current status, and concluded based upon his
examination of her as follows:
“Clinical examination is suggestive of a problem in each shoulder with limitation of
movement and discomfort on the last 20°-30° of abduction. I would suggest that the
symptoms described in the right shoulder and the findings on clinical examination are
consistent with the history of injury to the shoulder and subsequent surgery.
In relation to fitness for work I note the opinion of Dr Peter Jezukaitis in his report of
4 July 2014 that he considers Ms Cartisano ‘fit to perform duties that are essentially
sedentary and/or light in nature’. He recommends ‘a restriction of 10kg for repetitive
work in particular for tasks that are performed above mid-chest height and below mid-
[2015] FWCFB 1523
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thigh height or out at extended reach’. I would agree with these suggested
restrictions.”
[13] Dr Graham went on in his report to describe his workplace visit, and in doing so said
that he had been informed that:
manual work on the floor was an inherent part of the job description;
the job included lifting of heavy loan sets weighing up to 15kgs;
an average of one person per week called in sick, and the casual staff which made
up 50% of the staff were often not reliable in their attendance;
it was expected that other staff would cover absences; and
Ms Cartisano spent about 20% of her time “on the floor”.
[14] Dr Graham also recorded that he had questioned Ms Cartisano concerning her
relationship with management and co-workers, and that she had said that “She did not feel
that there was any breakdown in the relationship with management”. However he said that he
“understood that management was of the opinion that Ms Cartisano had not been totally
honest in a number of statements made”, which led him to assume that “this left them with
some doubts in relation to her commitment to the organisation”. He concluded by recording
the following “Opinion”:
“Ms Cartisano gives a history of ongoing bilateral shoulder pain, greater on the right
and demonstrates an ongoing problem with limitation of movement in both shoulders
and pain at the end of range. This was also noted by Dr Jezukaitis. Given the length of
time which she has been experiencing symptoms she must have an increased risk
aggravating her shoulder problem with a number of activities including heavy lifting,
greater than 10kg and use of the arms above mid-chest height. The extent of this risk
will be affected by a number of factors and in this regard I have concerns in relation to
the likely relationship between Ms Cartisano and her employer should she return to
work at Sportsmed SA.
In summary, taking into consideration her ongoing symptoms, aspects of the job which
include recurrently reaching above shoulder height to obtain items when wrapping
sets, the storage of a number of items above head height and what I perceive to be a
less than ideal relationship between Ms Cartisano and her previous employer, I
consider she presents a significant risk of aggravation of her existing should problem
should she return to work as CSSD Manager at Sportsmed SA.”
[15] Ms Cartisano said in her affidavit that Dr Graham had in his report misdescribed what
she had told him about her symptoms, and that in relation to reaching for items above head
height, Dr Graham “did not include in his report my undisputed advice at the assessment that
for occupational health and safety reasons, Sportsmed had supplied a set of four steps on
wheels, and that staff were directed to use the steps loading items on higher shelves”. She also
said, contrary to Dr Graham’s final conclusion, that during her employment she had “an
extremely good and cordial relationship with the staff working with me”, that she had kept in
touch with members of her team since her dismissal, and that during the proceedings before
the Senior Deputy President “there was never any allegation of ill will by me towards
Sportsmed”.
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[16] On 12 August 2014 the solicitors for Sportsmed sent an email to the Associate to the
Senior Deputy President which advised that a risk assessment had been carried out and
requested, given the result of that risk assessment, for the proceedings to be called back on. In
a reply sent the same day, the Associate to the Senior Deputy President gave the following
advice:
“I have referred your email of today’s date to the Senior Deputy President who has
confirmed that he considers his involvement in the matter now to be concluded.
Accordingly the matter will not be relisted.”
[17] On 13 August 2014, on advice from her solicitors, Ms Cartisano attempted to give
effect to her reinstatement by attending for work. She was advised that she would not be
permitted to return to work because there was no medical clearance for her. On 14 August
2014 Sportsmed sent Ms Cartisano a letter in which it confirmed that she had been reinstated
in accordance with the Order, that she would be paid her wages for the period 4 June 2014 to
13 August 2014, and that her continuity of service was maintained for the period 24 October
2013 to 13 August 2014. The letter went on to state that on the basis of Dr Graham’s report,
which was enclosed, Sportsmed did not believe Ms Cartisano could fulfil her contract of her
employment. Her wages were to be paid for the next two weeks but she was not to attend the
workplace during that time, and she was extended the opportunity during that period to
consider Dr Graham’s report and provide any written submissions about it.
[18] On 29 August 2014 Sportsmed sent Ms Cartisano a letter in which it noted that she
had provided no submissions in response to Dr Graham’s report, and offered her a further
seven days in which to do so, which would be treated as unpaid sick leave. The letter
concluded by stating:
“Can you further please note that if you do not provide any feedback or response to the
risk assessment in the further time now made available to you, Sportsmed SA ... will
have no alternative but to further consider the effect of the assessment on your ongoing
employment pursuant to the order made by the Fair Work Commission without any
further consultation with you. You should be aware that, as things presently stand,
Sportsmed is of the view that reinstatement cannot be sustained in your case, as the
condition to that reinstatement, being the risk assessment, has not been able to be
satisfied due to your ongoing unfitness for the inherent requirements as CSSD
Manager.
This may well result in the termination of your employment again.”
[19] At the time of the hearing of the appeal, the matter had progressed no further. Ms
Cartisano had not returned to work, and was being treated by Sportsmed as being on unpaid
leave.
[20] Arising out of argument presented by the parties at the hearing of the appeal on 11
December 2014, we determined that we should issue an order pursuant to s.590(2)(c) of the
Act requiring Ms Cartisano to produce “Any medical report or medical certificate relating to
the appellant’s shoulder condition created or produced on or after 29 July 2014 and provided
to the appellant or her solicitor”. That order was issued on 19 December 2014. In response to
that order, Ms Cartisano produced a report prepared by Mr Keith Elsner, a Consultant
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Orthopaedic Surgeon, at the request of Allianz Australia Insurance Limited and dated on 23
September 2014. That report was prepared on the basis of an assessment conducted by Mr
Elsner on 19 September 2014.
[21] In his report, Mr Elsner reviewed the history of Ms Cartisano’s injury and subsequent
treatment, and then described her current status in relation to her right shoulder, neck and
upper extremities. In relation to her right shoulder, Mr Elsner said:
“Although she had considerable pain following her shoulder surgery she told me she has
been improving and is significantly better than she was prior to the operation. She feels
that she still has a constant “burning sensation” over the anterior and posterior aspects
of the right shoulder, and this burning sensation has not really improved with the
surgery. However her other shoulder pain, and her range of movements in the right
shoulder, have improved significantly. She feels the movements are still improving.
She is now able to lie on her right side without any problems and can reach behind her
back to do up her bra which she could not do before the surgery. She told me that her
right shoulder can be painful with overhead activities, for example repetitive or
prolonged overhead activities, and it occasionally clicks.”
[22] Mr Elsner described her “Current Work Status” and “Present Activities” in the
following terms:
“As indicated above, she has not returned to any work for the last 16 months or so and
she told me currently that no-one would employ her because she has been put onto
some lifting restrictions by her general practitioner. However she confirmed that she
has been working for two to three hours every two to three days on her rental
properties, including cleaning the properties, but told me that she cannot do any
significant physical activity such as painting or tiling because of her right shoulder.
...
She does do all her house duties except for vacuuming because that seems to make her
right shoulder particularly sore with the back and forth movement of the vacuum. She
also has not been able to the keep up the maintenance on her garden. She still enjoys
quilting, scrapbooking and cooking.”
[23] Under the heading “Present Treatment”, the report referred to Ms Cartisano’s current
medication as follows:
“Medication includes Mobic anti-inflammatory medication 15mg each morning,
Lexapro antidepressant 40 mg, Mersyndol Forte about two tablets two or three times a
week, and very occasionally Tramadol for pain.”
[24] Mr Elsner’s report concluded with him addressing a number of specific issues as
requested by Allianz. In relation to the request “Please provide your finding on clinical
examination, the conditions diagnosed and your opinion as to which conditions were clearly
attributable to the accident”, Mr Elsner said:
“I have outlined the findings on physical examination under the heading “Physical
Examination”. She has regained an overall good range of movements in the right
shoulder, with a good result from the surgical procedure. She has full range of
movements in her neck without pain, similarly the left shoulder, and also a full range
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of movements was noted in her right wrist and fingers. In my opinion she has
sustained soft tissue injury to the right shoulder which has not yet resolved, and
perhaps a second soft tissue strain of her left shoulder which in my opinion has also
resolved.
[25] Mr Elsner was requested to “Please list details of the nature and effectiveness of
treatment so far provided and whether further treatment is required. If yes, outline the
treatment required”. He responded:
“I have indicated that the treatments she is currently having under the heading of
“Present Treatment” and I have outlined her operation on the right shoulder. In my
opinion it is reasonable for her to continue with some physiotherapy on a once every
six weeks basis to supervise her progress with exercises, and it is reasonable for her to
continue with some mild analgesic and possibly some anti-inflammatory medication
for another two to three months. I do not believe she requires massage therapy.”
[26] In response to the question “What has been the effect of injuries on the claimant’s
perceived capacity to undertake activities of daily living and what is your view of their
capacity?”, Mr Elsner said:
“She perceives some difficulty still with overhead activities with the right arm, and
prolonged overhead activities with the right arm, and heavier lifting activities. I do not
believe she has any residual incapacity in relation to her neck, left shoulder or right
wrist or hand. Her perception in relation to her right shoulder capacity appears
consistent with the current physical findings.”
Ms Cartisano’s appeal - submissions
[27] Ms Cartisano submitted that her appeal raised a question of law which was both novel
and had general application, namely whether there was power under Pt 3-2 of the Act to make
a reinstatement order which was subject to a proviso, term or condition, and on that basis the
grant of permission to appeal would be in the public interest.
[28] In the Decision, Ms Cartisano submitted, the Senior Deputy President made findings
which effectively amounted to a conclusion that she was able to perform her pre-dismissal
work, thus justifying the making of a reinstatement order. However the Order, which was
expressed to be “subject to a risk assessment to be conducted by Sportsmed”, was not
permitted by the Act. Division 4, “Remedies”, of Pt 3-2 only provides for two remedies,
reinstatement and compensation. The legislative scheme confirms the primacy of
reinstatement as the appropriate remedy, and s.391 provides that an order for reinstatement
must be an order that the person’s employer at the time of the dismissal reinstate the person.
The use of the obligatory word “must” means that there is no power to make an order other
than in accordance with s.391 of the Act. The condition attached to the Order made by the
Senior Deputy President effectively abdicated the power of the Commission to the employer
and its medical advisors, and rendered illusory and theoretical the reinstatement of Ms
Cartisano contrary to the High Court decision in Blackadder v Ramsey Butchering Services
Pty Ltd.5 It was not therefore permitted by s.391, and was additionally uncertain, ambiguous,
vague and illusory.
5 (2005) 221 CLR 539
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[29] Sportsmed submitted that the condition attached to the Order was consistent with
s.391, and built into the Order the obvious statement that if Ms Cartisano was unfit to perform
the job, then it cannot be compelled to create an unsafe workplace for her and others. Section
391 is to be construed in a way which ensures the Commission has some flexibility in the
orders that it makes, so that it can impart justice fairly and in a way which accommodates
competing considerations such as those arising from health and safety laws. The use of “must”
is concerned with ensuring that a person is reappointed to the person’s former position or
another position no less favourable – that is, to ensure that the employee is not appointed to a
lesser position. It does not otherwise limit the type of order that may be made. The Full Bench
decision in Ambulance Victoria v V6 confirmed that a reinstatement order could be the subject
of a further risk or clinical assessment by the employer, that it could result in the employee
not being placed back into employment if the employee was unable to safely perform the role,
and that the final decision as to whether the employee ought to return to work was vested in
and left to the discretion of the employer.
Ms Cartisano’s appeal - consideration
[30] Ms Cartisano’s appeal raises an important question of interpretation of s.391(1) of the
Act which has not, at least in direct terms, been the subject of Full Bench consideration before
and which has general application. For that reason, and consistent with the principles stated in
GlaxoSmithKline Australia Pty Ltd v Colin Makin7, we consider that the grant of permission
to appeal would be in the public interest. Therefore we grant permission to appeal.
[31] Part 3-2 of the Act provides for two categories of remedy in respect of a dismissal
which has been found to be harsh, unjust or unreasonable: reinstatement, and compensation.
Two provisions in Part 3-2 make it clear that there is a hierarchy of remedies in which
reinstatement has primacy over compensation. The first is s.381(1), which sets out the object
of Pt 3-2. Insofar as it deals with the question of remedy, s.381(1) provides as follows
(underlining added):
(1) The object of this Part is:
…
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis
on reinstatement.
[32] Section 390, which concerns the circumstances in which the Commission may grant
any remedy in respect of an unfair dismissal, provides:
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
6 [2012] FWAFB 1616
7 [2010] FWAFB 5343 at [27]
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(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.
[33] It can be seen that s.390(3) does not permit the Commission to give consideration to
the remedy of compensation in relation to a dismissal which has been found to have been
unfair unless and until it has found that the grant of the remedy of reinstatement to the person
unfairly dismissed is inappropriate. As a result, reinstatement must be given first
consideration as a remedy for any unfair dismissal.8
[34] Section 391(1) prescribes the type of reinstatement orders which may be made by the
Commission:
(1) An order for a person’s reinstatement must be an order that the person’s employer
at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed
immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately before
the dismissal.
[35] Section 391(1) uses the word “must” in describing the types of reinstatement orders
which may be made. As a matter of ordinary language, the use of “must” - which is
synonymous with “shall” - in s.391(1) means that the Commission, if it determines that it is
appropriate to grant the remedy of reinstatement, is obliged to make an order of the type in
either paragraph (a) or (b). This is subject to one condition which is not presently relevant,
namely that where the unfairly dismissed employee’s former position is now a position with
an associated entity of the employer, then s.391(1A) authorises orders of the type identified in
paragraphs (a) and (b) of s.391(1) to be made against that associated entity.
[36] In Blackadder v Ramsey Butchering Services Pty Ltd9 the High Court gave
consideration to the nature of the power to make a reinstatement order under the then
s.170CH(3) of the Workplace Relations Act 1996, which provided:
8 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014]
FWCFB 7198 at [10]
9 (2005) 221 CLR 539
[2015] FWCFB 1523
13
(3) If the Commission considers it appropriate, the Commission may make an order
requiring the employer to reinstate the employee by:
(a) reappointing the employee to the position in which the employee was
employed immediately before the termination.
(b) appointing the employee to another position on terms and conditions no less
favourable than those on which the employee was employed immediately
before the termination.
[37] The context in which this consideration arose was that an employer, in response to a
reinstatement order made by the Australian Industrial Relations Commission, paid the
reinstated employee the remuneration payable to him under his contract of employment but
did not restore him to the workplace or give him any work to do. The employee sought to
enforce the reinstatement order on the basis that an actual return to work was required.
McHugh J described the nature of the reinstatement power in s 170CH(3) in the following
terms:
“[13] Paragraph (a) of s 170CH(3) empowers the Commission to order that the
employee be re-appointed to the position in which the employee was employed
immediately before the termination, that is to say, to do the work on which the
employee was engaged when the employment was terminated. If that cannot be
achieved, para (b) of the sub-section empowers the Commission to order that the
employee be appointed to another position on terms and conditions no less favourable
than those on which the employee was employed immediately before the termination.
The term "another position" demonstrates that orders made under sub-s (3) are
concerned with more than reinstating the contract of employment and its terms and
conditions. Whether the terms and conditions are "no less favourable" can be
determined only by examining what the employee is employed to do in the new
position. Paragraph (b) points irresistibly to the term "position" in s 170CH(3) being
concerned with the duties and working conditions of the occupation as well as the
contractual rights and duties attached to it.
[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
contractual position which is either to be restored in its earlier terms or in equivalent
terms."”
[38] Similarly, Kirby J said that reinstatement under s.170CH(3) “was meant to be real and
practical, not illusory and theoretical”10 and went on to say:
10 Ibid at [33]
[2015] FWCFB 1523
14
“The purpose of a reinstatement order is to ensure that the employee in question is
placed in the status quo ante. It is not to anticipate every eventuality that might
thereafter arise; nor is it to provide the employee the subject of it with employment for
life. What happens in the future, and what follows from what happens, depends on all
the circumstances then obtaining.”11
[39] Hayne J characterised the nature of the reinstatement power in similar terms, and of
relevance to this appeal, described the course to be taken where it was not practicable for the
unfairly dismissed employee to be provided with his or her former work under a reinstatement
order:
“Rather, reinstatement by reappointing to a former position requires the recreation of
the circumstances of employment that preceded the termination. The contractual nexus
between the parties must be re-established. The terms and conditions of that contract
must be the same. The employer must provide work to be done by the employee of the
same kind and volume as was being done before termination. In cases where that last
element cannot be achieved (as, for example, where the work formerly done is no
longer required) the form of reinstatement for which s 170CH(3)(a) provides would
not be appropriate and the question would become whether the alternative form of
reinstatement (by appointing to another position) should be made.”12
[40] In their joint judgment, Callinan and Heydon JJ said:
“[75] All of the language of the relevant section must be given meaning. The use in s
170CH(3) of the word "reinstate" is significant. Section 170CH(3)(a) and (b) describe
the way in which the reinstatement may be effected. "Reinstate" literally means to put
back in place. To pay the appellant but not to put him back in his usual situation in the
workplace would not be to reinstate him. The words "reappoint" and "position" should
not be read in any restricted way. They are intended to apply to a very wide range of
workplaces and certainly not to a particular officer or officers. It was therefore within
the power of the Commission to make such an order as would contemplate or require
that the employer provide a reappointed or reinstated worker with actual work to do.”
[41] Having regard to the similarity between the former s.170CH(3) of the Workplace
Relations Act 1996 and s.391(1) of the Act, but noting the change from the use of the
discretionary “may” to the obligatory “must”, we consider that Blackadder dictates an
interpretation of s.391(1) under which any reinstatement order made under the subsection
must be one which effects a real and practical return to work and the performance of work
duties. In the case of an order made under s.391(1)(a), the order must be one which achieves
an actual return to work in the employee’s pre-dismissal position; in the case of an order made
under s.391(1)(b), the order must achieve an actual return to work in the alternative position
identified in the order. There is no power to make any other type of reinstatement order.
[42] The attachment to a purported reinstatement order of a condition, term or proviso
which has the effect that the order does not achieve, or does not necessarily achieve, the
11 Ibid at [34]
12 Ibid at [44]
[2015] FWCFB 1523
15
actual reinstatement of the employee in the sense discussed in Blackadder, is not authorised
by s.391(1). It is not a reinstatement order of the type either in paragraph (a) or (b).
[43] The Full Bench decision in Ambulance Victoria v V13, relied upon by Sportsmed, does
not stand for any contrary proposition. The reinstatement order affirmed by the Full Bench in
that case was one that was unconditional in nature. The first instance decision under appeal
contained an observation to the effect that the reinstatement of the relevant employee would
be “subject to her satisfactorily undertaking any gap analysis, training and supervision”14, but
this was not stated as a condition of the reinstatement order. The Full Bench characterised this
observation as referring 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”, but did not regard it as altering the effect of the reinstatement order, which it
described as follows15:
“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.”
[44] We consider that the Order the subject of Ms Cartisano’s appeal was not an order
authorised by s.391(1). The condition in the Order that it was “subject to a risk assessment to
be conducted by Sportsmed” contemplated, in express terms, that compliance with the Order
did not necessarily require Ms Cartisano to be actually returned to the workplace to perform
the duties of her former position. The words “subject to” clearly conditioned the requirement
to reinstate Ms Cartisano upon a satisfactory outcome of the risk assessment referred to. That
this was the result intended by the Senior Deputy President is made clear in paragraph [40] of
the Decision, in which he stated that “I acknowledge that she may not actually return to
work”. And, as Ms Cartisano’s 29 September 2014 affidavit makes clear, compliance with the
Order has not resulted in Ms Cartisano actually returning to work in her former position. The
Order was therefore not one which reinstated Ms Cartisano and was beyond power.
[45] To be clear, what has earlier been said does not mean that a reinstatement order may
not contain ancillary provisions additional to the bare statement of the requirement that the
employee be reinstated to the identified position. A statutory conferral of power is, subject to
any contrary express provision, taken to carry with it powers that are necessary for, incidental
to or consequential upon the exercise of the power granted.16 A reinstatement order made
under s.391(1) may therefore contain ancillary provisions intended to ensure that the order is
made effective. For example, a reinstatement order will usually identify a date by which the
order is to be complied with; and other necessary ancillary provisions may be included
provided that the order is one which retains the essential character of effecting the
reinstatement of the subject employee.
[46] Sportsmed has rightly identified that the capacity of the relevant employee to perform
the duties of his or her former position or any alternative position that is no less favourable,
and associated questions of health and safety, will be critical issues for consideration in any
determination to exercise the power available under s.391(1). However, these are not issues
13 [2012] FWAFB 1616
14 Ibid at [12]
15 Ibid at [66]
16 Transport Workers' Union of New South Wales v Australian Industrial Relations Commission (2008) 171 IR 84 at [37]-
[38] per Gray and North JJ
[2015] FWCFB 1523
16
which the Commission is empowered to deal with by making an order under which the
reinstatement of the employee is conditional upon a medical, risk or health and safety
assessment to be made by a third person after the order has been issued. It is ultimately the
Commission’s task to make any required assessment of that nature, assisted by the evidence
which the parties place before the Commission and such further evidence as the Commission
may require to be produced. If the Commission cannot be satisfied that the relevant employee
is fit to perform the inherent duties of his or her former position, or those of an alternative
position that is no less favourable, then the proper course will be to find that reinstatement is
not the appropriate remedy and to turn to the alternative remedy of compensation.
[47] We will uphold the appeal and set aside the Decision and the Order.
Re-hearing as to remedy
[48] In light of the conclusion we have reached, it is necessary for the question of what, if
any, remedy is to be granted to Ms Cartisano in relation to her unfair dismissal to be re-
determined (noting that Sportsmed’s appeal did not challenge the Senior Deputy President’s
finding that Ms Cartisano’s dismissal was unfair). However, the parties were at odds as to
how this should be done. Ms Cartisano submitted that this Full Bench should proceed to re-
determine this aspect of the matter itself on the basis of the evidence that was before the
Senior Deputy President, the further evidence adduced at the hearing of the appeal and the
report of Mr Elsner produced in response to the order for production of documents earlier
referred to. Additionally, Ms Cartisano sought to rely on a further affidavit sworn by her on
19 January 2015 which was filed without leave together with supplementary written
submissions concerning the reports of Dr Graham and Mr Elsner. However Sportsmed’s
primary submission was that the matter should be remitted to a single member of the
Commission to hear further evidence and submissions and decide the issue based on what it
described as “new issues” arising from the reports of Dr Graham and Mr Elsner. It opposed
the Full Bench admitting into evidence or having regard to the new affidavit of Ms Cartisano
if the matter was not remitted.
[49] We have decided that we should re-determine the issue of remedy ourselves. We
consider the evidence and submissions before us are sufficient for the issue to be determined
without the need for a further hearing before a single member of the Commission. In
undertaking the re-hearing, we will place significant weight upon the findings made by the
Senior Deputy President concerning Ms Cartisano’s capacity to perform her former duties,
noting that it was not contended either in Ms Cartisano’s appeal or Sportsmed’s cross-appeal
that any of these findings were in error. We will also take into account the evidence before the
Senior Deputy President, the further medical evidence adduced before us, namely the report
of Dr Graham of 8 August 2014 and the report of Dr Elsner of 23 September 2014, and the
affidavit of Ms Cartisano of 29 September 2014 and the affidavit sworn by Claire Marie
Victory on 29 September 2014. We will not admit into evidence or take into account the
further affidavit of Ms Cartisano sworn on 19 January 2015.
[50] Under s.390(3) of the Act, we may not consider the remedy of compensation unless
we are satisfied that reinstatement would be inappropriate. The effect of this provision is to
confer priority status on the remedy of reinstatement. The only consideration in this case
relevant to whether it is appropriate to reinstate Ms Cartisano to her former position as CSSD
Manager is whether she is medically fit to perform the inherent requirements of that role.
[2015] FWCFB 1523
17
Sportsmed did not suggest that there were any other reasons why, in the exercise of our
discretion, we would not grant the remedy of reinstatement.
[51] It is not in dispute that the large majority of the duties of Ms Cartisano’s former
position as CSSD Manager are clerical and sedentary in nature. None of the medical
practitioners (Dr Lin, Dr Jezukaitis, Dr Graham or Mr Elsner) suggested that Ms Cartisano
would be unfit to perform these duties. The critical question was whether Ms Cartisano was
fit to perform the minority portion of the duties of the CSSD Manager position which
involved some physical activity, having regard to the restrictions imposed on her (by Dr Lin
and Dr Jezukaitis) that she should not on a repetitive basis lift more than 10kgs or perform
tasks above mid-chest height.
[52] We would summarise the conclusions of the Senior Deputy President concerning the
physical portion of the duties of the CSSD Manager position as follows:
Relief work (“on the floor”) was an essential requirement of the position, and
was likely to occur with some frequency.
Lifting weights in excess of 10kgs was an element of the position, but it was not
frequent and was not something which could only be done by the CSSD
Manager.
Working extended days was not an inherent requirement of the position.
The medical evidence did not preclude Ms Cartisano from performing those
aspects of the role which might pose risks in terms of heat, weight, infection or
sharp instruments.
[53] None of those findings represents any impediment to Ms Cartisano’s capacity to
perform the duties of the position of CSSD Manager within the scope of the restrictions
identified by Dr Lin and Dr Jezukaitis. We consider that those findings were correctly made
by the Senior Deputy President on the evidence before him, and we do not consider that the
additional evidence before us would cause us to make any contrary findings.
[54] Sportsmed relied upon the reports of Dr Graham and Mr Elsner to demonstrate that
there were restrictions upon Ms Cartisano’s capacity to perform the duties of the CSSD
Manager position additional to those identified by Dr Lin and Dr Jezukaitis. In relation to Dr
Graham’s report, Sportsmed submitted that Dr Graham had described any lifting above mid-
chest height as problematic, and that he did not qualify this “restriction” by reference to any
weight limit.
[55] We do not agree that Dr Graham identified any new restriction in this connection; it is
the same restriction identified by Dr Jezukaitis, as was made clear in the penultimate
paragraph of Dr Graham’s report. There was no evidence that the role required this work to be
done on a repetitive basis. Moreover, as Ms Cartisano deposed in her affidavit of 29
September 2014, as far as lifting from heights was concerned, Sportsmed “had supplied a set
of four steps on wheels, and the staff were directed to use the steps loading items onto higher
shelves”. This was not contradicted by Sportsmed. The availability of this facility, we
consider, is sufficient to remove any risk to Ms Cartisano’s health or safety which might be
[2015] FWCFB 1523
18
constituted to lift items to and from heights. This was not taken into account in Dr Graham’s
report despite the fact that he appears to have been informed about it.
[56] We do not put any weight on the conclusion of Dr Graham that “the likely relationship
between Ms Cartisano and her employer should she return to work at Sportsmed” was a
relevant risk factor. There was no evidence concerning this likely relationship, and the factual
basis of this was unclear beyond Dr Graham’s understanding (for which there was no
evidentiary support) that Sportsmed had some concerns about Ms Cartisano’s honesty and
some other “impression” which he had “gained from my discussions earlier”. In any event,
the relationship between this concern and Ms Cartisano’s shoulder injury was not explained
by Dr Graham and is not otherwise apparent. To the extent that it represented an expression of
an opinion about a risk to Ms Cartisano’s psychological health and safety, there was nothing
to suggest that Dr Graham was qualified to express such an opinion. This flawed conclusion
was an important element of Dr Graham’s overall opinion that there was a “significant risk”
of aggravation of Ms Cartisano’s shoulder problem should she return to work, and together
with Dr Graham’s failure to take into account the fact that Sportsmed’s provision of mobile
steps removed any risk associated with lifting at heights, served to vitiate that overall opinion.
[57] In relation to Mr Elsner’s report, Sportsmed submitted that his report demonstrated
that Ms Cartisano’s right shoulder has not fully recovered, is causing her pain and is impeding
her ability to perform certain tasks. In the last respect, Sportsmed pointed to the references in
the report to Ms Cartisano’s inability to perform “any significant physical activity” including
painting, tiling, vacuuming or gardening. Sportsmed also pointed to the fact that the report
identified Ms Cartisano as taking medication not previously identified to Dr Graham, namely
Mobic (an anti-inflammatory medication) and Mersyndol Forte. It made the following
submission in relation to these medications:
“The interaction between the medications is critical. Although there is no direct
evidence about this issue because it has not arisen to date, the Respondent understands
that some of the medication taken by the Employee is a narcotic while others contain
an analgesic. In combination, a narcotic and analgesic can cause drowsiness,
vagueness and loss of coordination. These symptoms in a high safety risk workplace
are likely to place the Employee’s health and safety, and those around her, at risk.”
[58] We do not consider that anything identified in Mr Elsner’s report represents an
impediment to Ms Cartisano returning to work. The question is not whether Ms Cartisano has
fully recovered from her shoulder injury. Clearly she has not, although Mr Elsner has noted a
significant improvement in her condition. The question is, as earlier stated, whether she is fit
to perform the duties which are primarily clerical and sedentary in nature but involve a minor
proportion of physical activity. In that respect, Mr Elsner did not identify any restriction on
activity which would prevent her from performing those duties. He concluded that “she has
regained an overall good range of movements in the right shoulder, with a good result from
the surgical procedure”. The difficulties he identified are essentially the same as those
identified by Dr Lin and Dr Jezukaitis, namely “some difficulty still with overhead activities
with the right arm, and prolonged overhead activity with the right arm, and heavier lifting
activities”. Those are matters which we consider to be properly accommodated by the 10kg
lifting restriction (with the capacity for any lifting of that nature to be done by someone else),
and the use of the mobile steps provided by Sportsmed to avoid any overhead lifting which
cannot be done by someone else. Ms Cartisano’s professed inability to perform private
activities such as painting, tiling, vacuuming or gardening is consistent with the general
[2015] FWCFB 1523
19
identified restrictions on her capacity for physical activity and says nothing additional of
relevance to her capacity to perform her duties as CSSD Manager.
[59] In relation to Ms Cartisano’s medication, we consider that Sportsmed’s submission is
speculative in nature and not based on any medical evidence before us. Mr Elsner did not
express any concern about her medication interfering with her capacity for work, and indeed
concluded that “it is reasonable for her to continue with some mild analgesic and possibly
some anti-inflammatory medication for another two to three months”. We reject this
submission.
[60] We conclude that Ms Cartisano is fit to perform the duties of CSSD Manager, and
therefore that it is appropriate to make an order for reinstatement to that position. That
reinstatement order, which will be issued in conjunction with this decision, will require Ms
Cartisano to be reinstated within 14 days of this decision. We will make orders for the
payment of lost remuneration and the maintenance of continuity of employment in the same
terms as made by the Senior Deputy President.
Conclusion and orders
[61] In respect of Ms Cartisano’s appeal, we order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The Decision and Order are quashed.
(4) By a separate order issued in conjunction with this decision (PR561823), Ms
Cartisano is reinstated to her former employment with Sportsmed under
s.391(1)(b) of the Act.
[62] In relation to Sportsmed’s cross-appeal, permission to appeal is refused.
VICE PRESIDENT
Appearances:
J. Radbone of counsel for G. Cartisano.
A. Manos of counsel with C. Victory solicitor for Sportsmed SA Hospitals Pty Ltd.
Hearing details:
2014.
Adelaide:
11 December.
Final Submissions
G. Cartisano - 19 January 2015.
OF THE FAIR WORK MISSION THE
[2015] FWCFB 1523
20
Sportsmed SA Hospitals Pty Ltd - 12 January 2015.
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Price code C, PR561657
