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  4. Soni v State of Queensland (Queensland Health) - [2024] QIRC 51

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Soni v State of Queensland (Queensland Health)[2024] QIRC 51

Soni v State of Queensland (Queensland Health)[2024] QIRC 51

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Soni v State of Queensland (Queensland Health) [2024] QIRC 51

PARTIES:

Soni, Heena

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2023/93

PROCEEDING:

Public Sector Appeal

DELIVERED ON:

28 February 2024

MEMBER:

Power IC

HEARD AT:

On the papers

ORDERS:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SECTOR APPEAL – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appellant directed to attend independent medical examination – whether the decision complied with the Public Sector Act 2022 (Qld) – whether decision to substantiate allegations fair and reasonable – decision fair and reasonable

LEGISLATION:

Industrial Relations Act 2016 (Qld), ch 11, pt 6, div 4, ss 562B and 562C

Public Sector Act 2022 (Qld), ch 3 pt 8 div 5, ss 101, 103, 104, and 131

Work Health and Safety Act 2011 (Qld)

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Reasons for Decision

Introduction

  1. [1]
    Ms Heena Soni ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a full-time dental officer within the Gold Coast Hospital and Health Service ('GCHHS').
  1. [2]
    The Respondent sent correspondence to the Appellant directing the Appellant to attend an Independent Medical Examination ('IME') on 25 May 2023 with Dr Ronald Christian, Occupational Physician ('the Direction').
  1. [3]
    On 17 April 2023, the Respondent provided correspondence to Dr Christian regarding the appointment to conduct the Appellant's IME  ('the Referral Letter').
  1. [4]
    The Appellant did not attend the IME appointment in response to the Direction and filed an appeal pursuant to s 104 of the Public Sector Act 2022 (Qld) ('the PS Act').

Appeal principles

  1. [5]
    The appeal must be decided by reviewing the decision appealed against.[1] As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [6]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [7]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. confirm the decision appealed against; or
  1. set the decision aside and substitute another decision; or
  1. set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.[5]

Reasons for appeal

  1. [8]
    The Appellant raised a number of issues in her appeal notice, including the progress of a grievance, and allegations of a lack of meaningful progress by the Respondent to resolve her return to work. The Appellant states the following –

I am appealing the IME, as I had attended an assessment that was already directed to me to attend, but within the IME letter to the physician itself, the portrayal that GCHHS has outright rejected any proposed solutions, misrepresenting that I am unable to perform safely with adequate infection control (when ill – or rather nil-researched), questionably skews against any supportive return to work.

Submissions

  1. [9]
    Directions Orders were issued calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

Appellant's submissions

  1. [10]
    The Appellant submits that the decision is unfair and unreasonable, submitting that:
  • The Appellant is being discriminated against and is being intentionally prevented from returning back to work as a result of the following –
  1. –avoiding communication;
  1. –intentional avoiding /not answering questions;
  1. –not providing documents when requested;
  1. –not following policies;
  1. –avoiding providing policies that the Appellant requires;
  1. –demonstrating bias via injury management assessments;
  1. –communicating inaccurate information to Work Cover;
  1. –disregarding information that the Appellant has provided in her statements;
  1. –showing clear bias by avoiding identifying facts related to the injury; and
  1. –delaying any type of return to work.
  1. [11]
    The Appellant made the following submissions, in summary –
  • The Appellant attended work for a few days in January 2022 and was not paid for this work;
  • The treating doctor had cleared the Appellant for normal duties with reduced hours as a graduated return to work plan;
  • Policy requirements with respect to return to work were not observed;
  • The Appellant's grievance relates to miscommunication and the lack of communication and no meaningful progress to resolve her return to work;
  • The Appellant has already attended an OT worksite assessment upon the direction of the GCHHS;
  • The Appellant has worked at other organisations which have not had issues with her capability to work at her own capacity;
  • As no suitable duties, modified duties, return to work attempts were made by GCHHS, the 'absence' was beyond the Appellant's control; and
  • The Appellant's ongoing absence relates to employer inflexibility rather than ill-health.

Respondent's submissions

Background

  1. [12]
    The Respondent submitted the following background summary –
  • On or around 28 May 2020, the Appellant reported experiencing an onset of left wrist and shoulder symptoms following a change of practice and increased administration duties due to the COVID-19 pandemic.
  • On 3 June 2020, the Appellant commenced leave and has remained absent from the workplace since this date. Between 3 June 2020 and 24 November 2021, the Respondent received a number of Medical Certificates issued by Dr Sushma Naik (the Medical Certificates) on behalf of the Appellant stating that the Appellant was suffering from the following conditions:

"TFC injury + fracture of ulna styloid process, left shoulder + upper limb pains + neck pains" (sic), and outlining that the Appellant had no capability for any type of work."

  • The Respondent provided copies of the Medical Certificates dated 9 June 2020, 12 June 2020, 30 June 2020, 8 July 2020, 2 September 2020, 8 December 2020, 21 December 2020, 26 February 2021, 30 April 2021, 4 June 2021, 12 July 2021, 27 July 2021, 27 August 2021, 22 October 2021, and 24 November 2021.
  • Between January 2022 and October 2022, email correspondence was exchanged between the Respondent and the Appellant regarding the Appellant's injury(s), and requirements to facilitate the Appellant's return to work. The Respondent requested that the Appellant provide further information from the Appellant's treating doctor, Dr Naik, including undertaking an assessment and completing Physical Capability Assessment Form (PCAF). Specifically, the Appellant provided PCAFs dated 11 February 2022, 22 April 2022 and 24 May 2022, which identified that:
  • the Appellant could not complete any tasks above shoulder height or bend her neck and/or back (without use of loupes, shields, and with light);
  • the Appellant could only occasionally twist, squat, push/pull, reach or carry/hold; and
  • the Appellant could only occasionally lift with her left arm or perform grasp activities on her left hand, including with pressure/weight.
  • On 5 August 2022, the Respondent received a Medical Report completed by Dr Naik, General Practitioner (the GP Medical Report). The GP Medical Report relevantly outlined that:
  • the Appellant returning to her full-time role would pose "a risk to her doing her role in a manner that is unsafe to her";
  • the Appellant's injury/s were likely to be "life-long";
  • the Appellant bending her back was likely to exacerbate her back condition; and
  • an ergonomic and workstation assessment be undertaken to assess the Appellant's capacity with regards to the related position duties of a Dental Officer.
  • On 19 October 2022, the Respondent engaged Ms Anna Webby, Occupational Therapist, of Strive Occupational Rehabilitation, to undertake a worksite assessment with the Appellant, and provide recommendations regarding the potential and implementation of reasonable adjustments to support the Appellant's rehabilitation and return to work.
  • On 4 November 2022, the Respondent received the Worksite Assessment Report from Ms Webby, which relevantly included a number of 'barriers' to the Appellant's return to work, namely that:
  1. the Appellant was (at this time) experiencing occasional stiffness during neck rotations and "tenderness" to touch the lateral portion of the left wrist, resulting in difficulty maintaining ulnar deviation for extended periods;
  1. the Appellant anticipated that maintaining prolonged neck flexion, forward head posture, or sustained or repetitive trunk flexion as "likely to aggravate her symptoms";
  1. the Appellant declined to demonstrate or evaluate her functional tolerances relating to forward head posture and forward reach at waist height during the assessment, resulting in nil observations gained in relation to the Appellant's functional capacity relating to same; and
  1. Ms Webby recommended that the Respondent gain "further medical advice " regarding the Appellant's ability to complete neck flexion and forward reach at waist height noting scenarios in which the implementation of any adaptive strategy is not possible.
  1. [13]
    The Respondent submits that the decision to direct the Appellant to attend the IME was fair and reasonable. The Respondent submits, in summary, that:
  • The Direction was fair and reasonable in the circumstances, and more specifically, was issued in accordance with sections 103 and 104 of the PS Act. The Respondent submits that the onus is on the Appellant to establish otherwise and submits that the Appellant has not adequately discharged that onus based on the material available.
  • Whether the Appellant does or does not agree with the decision to issue a Direction is irrelevant, with the Directive relevantly providing that where the conditions of the PS Act are satisfied, the Direction constitutes a lawful direction that does not require the employee's consent, and that failure to comply may be grounds for disciplinary action.
  • In determining whether an employee's chief executive may appoint a doctor to examine the employee and give the chief executive a written report on the examination and require the employee to submit to the medical examination, the conditions that must be satisfied are those outlined in s 103 of the PS Act.
  • The Respondent submits that "absence" is a matter of fact, and with reference to both the Respondent's chronology and the relevant medical evidence available (including the Medical Certificates, the PCAFs, the GP Medical Report, and the Worksite Assessment Report (collectively, the Relevant Medical Evidence), it is apparent that the Appellant's absence is related only to ongoing medical restrictions, as outlined under 'Grounds for direction' in the Direction. Accordingly, the Respondent submits that the Direction was issued to the Appellant in satisfaction of the relevant pre-requisite conditions pursuant to s 103 of the PS Act.
  • Further to the above, the Respondent submits that they are not permitted to use any medical reports from QSuper without the Appellant's consent, which they have not received in this matter. Therefore, the decision to issue the Direction was based only on the relevant medical evidence, the Worksite Assessment Report having relevantly provided that "as the latest medical advice was received in April 2022, a review of these medical restrictions may be of benefit."
  • Further, the Respondent submits that the Direction complies with clause 5.5 of the Directive for the following reasons:
  1. it provided the Appellant with at least 28 days of the IME, having issued the Direction on 17 April 2023 to attend an IME on 25 May 2023;
  1. it sets out the basis and reasons for the direction, including the information provided to the IME doctor (please refer to 'Grounds for direction', 'Information sought from the independent doctor', and Attachment — Letter to Dr Donald (Blair) Christian, Occupational Physician, including attachments); and
  1. it explains the Appellant's right to seek and internal review or appeal the decision and the timeframes.
  • With regards to the fairness and reasonability of the Direction, the Respondent submits that under the Work Health and Safety Act 2011 (Qld) ('the WHS Act'), the Respondent must ensure, so far as is reasonably practicable, the health and safety of all workers. Employees of the Respondent also have obligations under the WHS Act to take reasonable care for their own health and safety, and that their acts or omissions do not adversely affect the health and safety of other persons in the workplace.
  • To enable the Respondent to discharge its safety obligations, the Respondent has repeatedly sought necessary information and medical evidence from the Appellant in relation to her functional capabilities to perform the inherent requirements of her role as a Dental Officer, with the intention of facilitating her return to work. Following review of the relevant medical evidence, the Respondent concluded that the Appellant's ability to perform the inherent requirements of her role remains subject to a number of ongoing restrictions.
  • The Job Task Analysis and Role Description of the position of 'Dental Officer' relevantly includes the following requirements of the role:
  1. reaching various tools into persons mouth, completing drilling, handling various dental instruments and scaling tools throughout sustained periods of up/down/lateral motions through wrist and hand;
  1. twisting, bending, reaching, standing, and walking are frequent physical demands of the role; and
  1. gripping and very specific motor skills are constant requirements for extensive periods during strenuous variable tasks such as extractions.
  • The Appellant's repeated suggestion to use dental loupes to assist her limited ability to bend her head backwards or look down was reviewed by the Respondent and determined to be an inadequate measure. The Respondent noted that loupes minimise, but do not prevent, the risk of aggravating the Appellant's injury. The Respondent submits that relying on the Appellant's assertion that she knows "how to conduct examinations safely without requiring the need to bend" her neck to see into a patient's mouth, is not a reasonable control measure on the part of the Respondent (in contravention of their abovementioned safety obligations). Furthermore, it is contended that such adjustment may also create an infection control issue.
  • Notwithstanding, the Respondent submits that the medical evidence provided to the Respondent to date is mostly limited to the assessments performed by the Appellant's General Practitioner, Dr Naik, and an Occupational Therapist, Ms Webby. While it is arguable that an Occupational Therapist is sufficiently qualified to speak to workplace adjustments, the Respondent submits that an Occupational Physician, as a specialist doctor, is able to provide a more conclusive medical opinion in relation to the extent of the Appellant's injury and her ability to perform the inherent requirements of her role.

Consideration

  1. [14]
    Consideration of an appeal of this kind requires a determination of whether the decision to direct the Appellant to attend an IME was fair and reasonable.
  1. [15]
    The Appellant outlined in the Notice of Appeal that she is 'appealing against a directive decision, for an IME'. The Appellant then outlined extensive details related to a grievance regarding actions to assist the Appellant's return to work.
  1. [16]
    The broader grievance is not relevant to this appeal. The decision to direct an employee to attend an IME may not be appealed as a fair treatment appeal pursuant to s 132(4)(a) of the PS Act, which specifically prohibits an appeal of this type.[6]
  1. [17]
    The decision to direct the Appellant to attend an IME may be appealed pursuant to s 131(1)(b) of the PS Act as a decision under a directive.[7] The appeal is limited only to whether the decision to direct the employee was fair and reasonable.
  1. [18]
    The decision to direct the Appellant to attend an IME was contained in a letter from Mr Grant Brown, Executive Director, People and Operations, GCHHS. This letter outlined the following consideration -

…

In summary :

  • You have been absent from the workplace since 1 June 2020.
  • You consider your medical condition arose over a period of time, from a change of practice brought on by COVID-19 and within an incident report indicated that you first noticed pain whilst undertaking administrative duties. GCHHS advised that Oral Health Services sharply declined patient services at the peak of the pandemic, in accordance with Queensland Health recommendations. As such, you were undertaking greater administrative duties and continued to be gainfully employed by GCHHS during this time.
  • You have not been able to return to the full and inherent requirements of your role due to ongoing medical restrictions.
  • In order to undertake the role of a Dentist, you would need to be able to undertake the inherent requirements of the above without restrictions. You have determined that the use of dental loupes would enable you to not bend your back or require you to look down. GCHHS has evaluated the restrictions and your cited solution, however, has concluded that the proposed solution will be inadequate and will not remove the need to bend, look down, twist and certainly will not assist with grip requirements of a dentist. Furthermore, the proposed solution poses and infection control issue.
  • The Health Service is in receipt of medical information from Dr Sushma Naik, General Practitioner, dated 5 August 2022, which cites in part:
  1. –"Dr Soni's condition is likely to be life-long, and conservative options related    to physiotherapy would need to be assessed ..."
  • The report further indicated that the GP would support an ergonomic assessment. As such, GCHHS arranged a worksite assessment with an Occupational Therapist and received a report dated 4 November 2022 (attached). This report cites in part:
  1. –Tenderness in the lateral portion of the left wrist – despite not working since June 2020
  1. –You anticipate neck flexion or forward head posture and maintaining sustained or repetitive trunk flexion is likely to aggravate your symptoms
  1. –You declined to demonstrate or evaluate your functional tolerances for forward head posture and forward reach at waist height during the assessment
  • After considering the information available to me I am reasonably satisfied you are absent from duty, and I reasonably suspect your absence from duty is caused by a mental or physical illness or disability.
  • The purpose of the IME is to obtain medical advice to better understand the nature and extent of your medical condition(s), your ability to perform the duties of your substantive position of a Dentist, Oral Health Services (including with any reasonable adjustments), and if not, to consider what other positions you may be able to perform as well as your fitness for continuing employment.
  1. [19]
    The power to direct an employee to attend an IME is contained in s 103 and s 104 of the PS Act. Section 103 of the PS Act is outlined as follows -

103 Application of division

This division applies to a public sector employee if—

  1. the employee is absent from duty or the employee's chief executive is reasonably satisfied the employee is not performing the employee's duties satisfactorily; and
  1. the chief executive reasonably suspects that the employee's absence or unsatisfactory performance is caused by mental or physical illness or disability.[8]
  1. [20]
    Section 104 of the PS Act is outlined as follows -

104 Chief Executive may require medical examination

The employee's chief executive may—

  1. appoint a doctor to examine the employee and give the chief executive a written report on the examination; and
  1. require the employee to submit to the medical examination.[9]
  1. [21]
    There is no dispute that the Appellant had been absent from duty prior to receiving the direction to attend the IME. The only contention appears to be whether s 103(b) is satisfied.
  1. [22]
    The decision provides that, pursuant to section 103(b), the chief executive reasonably suspects that the employee's absence was caused by physical illness or disability. The Appellant submits that her absence from work was due to the employer's inflexibility, and not because of her injury. The Appellant submits that she attempted to modify parts of her employment to allow her to return to work, including reduced hours and ergonomic adjustments. The Respondent submits that the suggested modifications were inadequate and did not prevent the risk of the injury being aggravated.
  1. [23]
    The job task analysis outlines the physical demands of the role which include reaching tools into patient's mouths, drilling, handling dental instruments and scaling throughout sustained periods of various motions through the wrist and hand. The job tasks also include twisting, bending, teaching, standing, and walking along with gripping and very specific motor skills for extensive periods during tasks such as extractions. The Respondent determined that the Appellant's assertion that she knows how to conduct examinations safely without bending her neck to see into a patient's mouth was not a reasonable control measure.
  1. [24]
    The medical evidence relied upon by the Respondent comprised of medical certificates issued by Dr Naik, Physical Capability Assessment Forms, a medical report completed by Dr Naik, and the Worksite Assessment Report completed by Strive Occupational Rehabilitation. This evidence supports the conclusion that the Appellant's absence from work is related to ongoing medical restrictions relating to her injury or disability. I note the Worksite Assessment Reported states "As the latest medical advice was received in April 2022, a review of these medical restrictions may be of benefit".
  1. [25]
    Based on the medical evidence before the decision maker, I am satisfied that the conditions outlined in s 103 of the PS Act have been satisfied in that the Appellant was absent from work and the chief executive had a reasonably basis to suspect that the Appellant's absence was caused by a physical disability
  1. [26]
    The Appellant submits that her absence from work is beyond her control as the Respondent has not arranged for modified duties as part of her return to work. It may well be the case that the Appellant's absence is beyond her control, however, the question to be addressed is whether the absence was caused by an illness or disability. If it were not for the Appellant's injury, the Appellant would not require modified conditions and would not be absent from work. Accordingly, it was open to the decision maker to determine that the absence from work was caused by the Appellant's physical injury based upon the medical evidence.
  1. [27]
    The letter directing the Appellant to attend the IME is compliant with clause 5.5 of the Directive in that it provided at least 28 days notice of the IME appointment and set out the reasons for the direction and the information provided to the IME doctor.
  1. [28]
    The Appellant's submission that the IME correspondence is not consistent with cl 4.4. of the Directive is unpersuasive. Clause 4.4 provides the following –

The chief executive is to ensure that processes are fair and without bias, provide for impartiality and inform and involve the employee. When making a decision about an IME for an employee, it is expected that the chief executive will also comply with the IME guideline, privacy obligations and any other relevant legislation.

  1. [29]
    There is no evidence before the Commission that the direction to attend the IME was inconsistent with cl 4.4. The fact that the decision maker did not accept the Appellant's proposed adjustments does not make the decision unfair or unreasonable in circumstances where the statutory requirements have been fulfilled.
  1. [30]
    The submissions made by the Appellant regarding the difficulties she is having returning to work appear to have been raised as a grievance and should be addressed by that process. Whilst those matters appear to have caused the Appellant considerable frustration, they have not been addressed in this decision as to do so would be to go beyond the parameters of the appeal.
  1. [31]
    After considering all the information before the Commission, I am satisfied that the decision was fair and reasonable in the circumstances.

Order

  1. [32]
    I make the following order:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Qld & Anor [2018] QSC 319, 5 as to the former, equivalent provisions in s 201 of the PS Act. 

[4] IR Act s 562B(3).

[5] Industrial Relations Act 2016 (Qld) s 562C.

[6] Public Sector Act 2022 (Qld), s 132(4)(a).

[7] Public Sector Act 2022 (Qld), s 131(1)(b).

[8] Public Sector Act 2022 (Qld) s 103.

[9] Public Sector Act 2022 (Qld) s 104.

Close

Editorial Notes

  • Published Case Name:

    Soni v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Soni v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 51

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    28 Feb 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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