Lichfield-Bennett v Queensland[2015] ICQ 5

INDUSTRIAL COURT OF QUEENSLAND

1. [1]
   On 19 December 2012, Ms Lichfield-Bennett was dismissed from her position as a paramedic in the Queensland Ambulance Service. She sought reinstatement to that position. Her application was dismissed by the Commission.

2. [2]
   Her notice of appeal asserts that the Deputy President “erred as a matter of law and fact in deciding” seven matters, which are then set out. Section 341(1) of the Industrial Relations Act 1999 provides that an appeal against a decision of the Commission may only be on the ground of:

“(a) Error of law; or

2. (b)
   Excess, or want, of jurisdiction”

3. [3]
   The matters set out in the notice of appeal relate to findings of fact and do not concern either an error of law or an excess, or want, of jurisdiction. As such, the appeal is incompetent.

4. [4]
   In the written submissions of the appellant a revised statement of issues was set out. The respondent did not object to the appeal proceeding on the ground that those issues constituted the grounds of appeal.

Case for the appellant

5. [5]
   In the written submissions of the appellant the following appears:

“There are two (2) significant issues in respect to the Appeal before the Court.

The first issue is the capacity of an employer to require an employee, freely or by coercion, to attend a medical assessment when that person is an employee generally, and specifically in the absence of any direct knowledge that the employee is likely to suffer or is suffering a medical condition that may affect their employment.

The second issue arising in this case is a misconstruction by the learned Deputy President that the context upon which termination was based was the failure of the employee to undertake such an assessment when directed by the employer when there was no statutory or common law right of the employer to require the employee to undertake such an assessment. All other issues flow from a determination of these 2 matters.”

 Factual background

6. [6]
   The appellant had been employed by Queensland Ambulance Service (QAS) for some six years before termination.

7. [7]
   At some time before November 2011, the appellant made complaints to the Queensland Police Service (QPS) that people were following her to work. She told the police that, while she was driving during working hours, she would take photographs of vehicle number plates because of her concerns.

8. [8]
   A representative of the QPS contacted the respondent’s State Mental Health Intervention Coordinator and expressed concern about the appellant’s welfare. The QPS advised the respondent’s officers that a full investigation of the matter had been undertaken and that the QPS had concerns about the appellant’s mental health.

9. [9]
   On 3 November 2011, the appellant attended a meeting, accompanied by a union representative, and was advised by QAS representatives that until the concerns raised by the QPS had been dealt with, the appellant was to be placed in a non operational role. At that meeting the appellant agreed to attend a mental health assessment. This was, at least, in part to save her from the embarrassment and trauma of being the subject of either a Justice Examination Order (JEO) or an Emergency Examination Order (EEO) under the Mental Health Act 2000.

10. [10]
    After a detailed examination of the evidence the Deputy President made the following findings:

[84]  Having considered all of the evidence in this matter, I find as follows:

• The belief was reasonably held by the Respondent that it would be less embarrassing/humiliating for the Applicant to undertake this process by agreeing to visit a psychiatrist in order to assess whether she could continue working in her normal paramedic duties.
• The Respondent had also taken into consideration the nature of the work performed by a Paramedic and had to ensure that the Applicant was capable of performing her duties appropriately. Given the nature of the job in question the Respondent's view was understandable and appropriate.
• Notwithstanding that there had been no identifiable problems with the Applicant's work for the Respondent, because of the professional arrangements between QPS and the Respondent (and Queensland Health), coupled with the advice from QPS of its intended action, the request made by the Respondent to the Applicant to agree to undertake a psychiatric examination was reasonable in the circumstances. I have accepted Mr Trembath's evidence in this regard as being acceptable in the circumstances.
• While it might be suggested that the Respondent acted impulsively in dealing with this issue, the imminence of the proposed QPS action against the Applicant ensured that quick action was required by the Respondent in addressing this issue and, within that context, it was reasonable in the circumstances.
• At the meeting of 3 November 2011 attended by Mr Wood and Mr Clarke, the Applicant was represented by two Union delegates from United Voice, and her father Mr Lichfield-Bennett. The Applicant faced these issues with appropriate support persons.
• The Applicant agreed to undertake a psychiatric assessment – and advised of her preferred Hospital.
• At the meeting at Redland Hospital with Dr Baruha, the Applicant was supported by her father, who attended the consultation with her agreement.
• Dr Baruha made a tentative diagnosis and had requested collateral material from QAS and QPS before he could be more determinative. Dr Baruha requested that the Applicant have a further meeting with him, but the Applicant ultimately declined to attend.
• The fact that Dr Baruaha had expressed his concern about the Applicant's mental health and requested that she undertake further psychiatric examination, highlighted very early in the process that the Applicant not perform operational duties until a firm diagnosis was made. This, together with the notification from the QPS, was an issue which rightly concerned the Respondent.
• As Dr Baruha had not made a formal diagnosis, he stated that the Applicant should be independently psychiatrically examined. Those arrangements were made, but the Applicant did not attend many appointments, sometimes with a plausible excuse, other times without.
• The Applicant was provided the opportunity of being psychiatrically examined by a Psychiatrist of her own choosing, and when arrangements were made for appointments with that specialist, the Applicant failed to attend.
• During the period of missed appointments, the Applicant had some medical certificates stating that she was unfit to attend appointments. While, in those circumstances, that is understandable, what is not understandable is that over such a protracted period of time, the Applicant would not visit at least one other Psychiatrist for the purpose of an assessment.
• The Applicant had been required to attend a consultation with Dr Steinberg on 20 August 2012. This was the Psychiatrist of her choosing. The Applicant did not attend that appointment on that day but was able to visit a General Practitioner for the purpose of gaining a Medical Certificate. In my view, it was disingenuous for the Applicant to submit that she was well enough to visit the General Practitioner and not the Psychiatrist when all the emphasis over the preceding months was on her attaining a further independent psychiatric assessment.
• The need/urgency for a psychiatric assessment was to ensure that the Respondent could be confident that the Applicant could continue her duties as a Paramedic and that she could be returned to those duties in a reasonable time frame. In my view that requirement from the Respondent was necessary.
• This did not occur, and consequently, the Respondent was left with little else than to implement a disciplinary process against he Applicant.”

 The appellant’s submissions

11. [11]
    So far as I can discern the intent of the submissions made, it is that, in the circumstances of this case, QAS did not have a right to coerce the appellant into taking part in the psychiatric examination. The appellant relied on the decision of the Court of Appeal in Hegarty v Queensland Ambulance Service.^[1]

12. [12]
    I will return to that decision later. I need, first, to consider the authorities relating to the capacity of an employer to require an employee to undertake a medical examination of some type.

13. [13]
    An employee has an obligation to obey orders given by the employer.^[2] That duty is confined in three ways.

14. [14]
    First, an employee need not obey orders to perform unlawful acts.^[3]

15. [15]
    Secondly, the duty to obey is concerned only with lawful commands of an employer that are within the scope of the employment contract.^[4]

16. [16]
    Thirdly, the order given must be reasonable.^[5] It is on this point, it appears, that Mr Shepley rested his case. His argument appeared to be that the request by the employer was unreasonable in the circumstances. Whether a request is unreasonable will, nearly always, be a question of fact.^[6] As such, an appeal against a finding of reasonableness is not available in this court.

17. [17]
    In any event, it has been accepted on a number of occasions that directions to attend a medical examination with respect to an employee’s fitness to work will ordinarily be reasonable. See, for example, Blackadder v Ramsey Butchering Services Pty Ltd,^[7] Thompson v IGT (Australia) Pty Ltd^[8] and Australian and International Pilots Association v QANTAS Airways Limited^[9].

18. [18]
    In circumstances where the Commission had found that a psychiatrist had expressed concern about the appellant’s mental health, the respondent clearly had an obligation to determine whether or not its employee was fit to perform the duties of her employment. These were the steps taken by QAS and they were entirely reasonable in these circumstances.

19. [19]
    The reliance by the appellant upon Hegarty v Queensland Ambulance Service is misplaced. Hegarty was a case in which an ambulance officer sued the QAS claiming that it was responsible for him suffering from post traumatic stress disorder and obsessive compulsive disorder. The case made by the plaintiff at trial, and which was ultimately accepted by the trial judge, was that the plaintiff’s supervisors should have been trained to identify possible signs of stress and invited him to seek professional help. Keane JA described the plaintiff’s case in this way:

“[44]  … The plaintiff's case means that the employer must be concerned, not only with non-performance by the employee as an employee, but also with possible episodes of unhappiness in the employee's private life. It is not self-evidently necessary or desirable that employees' private lives should be subject to an employer's scrutiny. To some extent in this case, the plaintiff's case, as it was developed in the course of evidence and in argument in this Court, depended on an assertion of a culpable failure by the plaintiff's superiors to scrutinise aspects of the plaintiff's private life away from work.”

20. [20]
    It was upon those issues that the case was decided. Hegarty was not concerned with the employer’s capacity to require an employee to demonstrate that the employee is capable of performing the work. It is concerned with different principles and, in any event, the facts in the instant case are distinguishable from the facts in Hegarty.

Conclusion

21. [21]
    The Deputy President applied the law correctly and made findings of fact which it is not open to this court to disturb, except in circumstances where there was no evidence at all to support such a finding. The direction given to attend for a psychiatric assessment was, as found by the Deputy President, reasonable.

22. [22]
    The appellant has not demonstrated that the Deputy President committed any error of law. It follows that the appeal must be dismissed.