APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 18 NOVEMBER 2019

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00569

DELIVERED : TUESDAY, 9 NOVEMber 2021

FILE NO. : PSAB 4 OF 2020

Appellant

AND

Director General, Department of Biodiversity, Conservation and Attractions

Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board – Section 78 of the Public Sector Management Act 1994 (WA) – Misconduct findings – Failure to attend medical appointment – Lawful direction to attend medical appointment – Refusal to sign consent form – Whether request to attend was reasonable – Requirement to undergo assessment a lawful direction? – Findings of breach of discipline quashed – Fitness for work – Dismissal decision adjusted – Appeal upheld

Legislation  : Industrial Relations Act 1979 (WA)

Public Sector Management Act 1994 (WA)

Result : Appeal upheld

Representation:

Applicant : Mr G McIntyre, SC

Respondent : Mr D Anderson, of counsel

Case(s) referred to in reasons:

Blackadder v Ramsay Butchering Services Pty Ltd [2002] FCA 603; (2002) 118 FCR 395

Grant v BHP Coal Pty Ltd [2014] FWCFB 3027

Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525

Hudson v RMIT University [2020] FWC 4289

Martin v The Director General of Health in his incorporated capacity under s.7 of the Hospitals and Health Services Act 1927 (WA) [2012] WAIRC 00703; (2012) 92 WAIG 1620

Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2016] WAIRC 00236; (2016) 96 WAIG 408

Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266

State Government Insurance Commission v Johnson (1997) 77 WAIG 2169

Thavarasan v The Water Corporation [2006] WAIRC 04089; (2006) 86 WAIG 1434

Table of Contents

Introduction

Board's jurisdiction and nature of the appeal

The misconduct findings

Grounds of appeal

Factual background

Mr Walley's employment

Mr Walley's Workers' Compensation Claim

Neuropsychological assessment is conducted

Assessment by Dr Terace, Psychiatrist

The Department arranges 4 July 2019 appointment with Dr Grainger

A further appointment with Dr Grainger is arranged

1 August 2019 appointment with Dr Grainger

The Breach of Discipline Process commenced

Decision to dismiss Mr Walley

Ground 1: Was the requirement to undergo assessment by Dr Grainger a lawful direction?

Ground 2: Did the failure to attend the appointment on 4 July 2019 justify the sanction of dismissal?

Ground 3: Was Mr Walley's conduct on 8 August 2018 misconduct?

Ground 4: Was the implicit direction to sign the consent form lawful and reasonable?

Remedy: Should the decision be adjusted?

Reasons for Decision

Introduction

1         These are the unanimous reasons of the Public Service Appeal Board (Board).

2         The appellant, Mr Trevor Walley was a longstanding employee of the respondent, the Director General, Department of Biodiversity, Conservation and Attractions as it is now known (the Department). His career with the Department commenced in 1974. After around 45 years of service, he was dismissed from his employment on 6 January 2020 for breaches of discipline involving his failure to attend an appointment with a medical specialist, and a subsequent failure to sign a consent form which the medical specialist requested he complete.

3         Mr Walley appeals from the decision to terminate his employment pursuant to s 80I(1) of the Industrial Relations Act 1979 (WA) (the Act), disputing both the findings of breach of discipline and the decision to impose the sanction of dismissal which he contends is harsh and unreasonable. The Board must decide whether it should adjust those matters.

Board's jurisdiction and nature of the appeal

4         The appeals are brought under s 78 of the Public Sector Management Act 1994 (WA) (PSMA) and s 80I(1)(b) of the Act.

5         Section 78 of the PSMA provides:

78. Appeals etc. against some decisions under s. 79, 82A, 82, 87, 88 or 92

(1) Subject to subsection (3) and to section 52, an employee or former employee who —

(a) is, or was, a Government officer within the meaning of section 80C of the Industrial Relations Act 1979; and

(b) is aggrieved by —

(i) a decision made in respect of the Government officer under section 79(3)(b) or (c) or (4); or

(ii) a finding made in respect of the Government officer in the exercise of a power under section 87(3)(a)(ii); or

(iii) a decision made under section 82 to suspend the Government officer on partial pay or without pay; or

(iv) a decision to take disciplinary action made in respect of the Government officer under section 82A(3)(b), 88(b) or 92(1),

may appeal against that decision or finding to the Industrial Commission constituted by a Public Service Appeal Board appointed under Division 2 of Part IIA of the Industrial Relations Act 1979, and that Public Service Appeal Board has jurisdiction to hear and determine that appeal under and subject to that Division.

(2) Despite section 29 of the Industrial Relations Act 1979, but subject to subsection (3), an employee or former employee who —

(a) is not a Government officer within the meaning of section 80C of that Act; and

(b) is aggrieved by —

(i) a decision made in respect of the employee under section 79(3)(b) or (c) or (4); or

(ii) a finding made in the exercise of a power under section 87(3)(a)(ii); or

(iii) a decision made under section 82 to suspend the employee on partial pay or without pay; or

(iv) a decision to take disciplinary action made under section 82A(3)(b), 88(b) or 92(1),

may refer the decision or finding mentioned in paragraph (b) to the Industrial Commission as if that decision or finding were an industrial matter mentioned in section 29(b) of that Act, and that Act applies to and in relation to that decision accordingly.

(3) Despite section 29 of the Industrial Relations Act 1979, but subject to section 52, an employee or former employee —

(a) against whom proceedings have been taken under this Part for a suspected breach of discipline arising out of alleged disobedience to, or disregard of, a direction which is by virtue of section 94(4) a lawful order for the purposes of section 80(a); and

(b) who is aggrieved by —

(i) a decision made under section 82 to suspend the employee on partial pay or without pay; or

(ii) a finding made in respect of the person referred to in section 82A(3)(a), 87(3)(a)(i) or 88(a),

may refer the decision or finding referred to in paragraph (b) to the Industrial Commission as if that decision or finding were an industrial matter mentioned in section 29(b) of that Act, and that Act applies to and in relation to that decision or finding accordingly.

(4) In exercising its jurisdiction under subsection (3) in relation to a direction consisting of a lawful order referred to in section 94(4), the Industrial Commission shall confine itself to determining whether or not that direction has been, or is capable of having been, complied with.

(5) If it appears to the Industrial Commission or the Public Service Appeal Board that the employing authority failed to comply with a Commissioner's instruction or the rules of procedural fairness in making the decision or finding the subject of a referral or appealed against, the Industrial Commission or Public Service Appeal Board —

(a) is not required to determine the reference or allow the appeal solely on that basis and may proceed to decide the reference or appeal on its merits; or

(b) may quash the decision or finding and remit the matter back to the employing authority with directions as to the stage at which the disciplinary process in relation to the matter is to be recommenced by the employing authority if the employing authority continues the disciplinary process.

6         The relevant provision of Part IIA – Division 2 of the Act is s 80I which is in the following terms:

80I. Board's jurisdiction

(1) Subject to the Public Sector Management Act 1994 section 52, the Health Services Act 2016 section 118 and subsection (3) of this section, a Board has jurisdiction to hear and determine —

(a) an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers;

(b) an appeal by a government officer under the Public Sector Management Act 1994 section 78 against a decision or finding referred to in subsection (1)(b) of that section;

(c) an appeal by a government officer under the Health Services Act 2016 section 172 against a decision or finding referred to in subsection (1)(b) of that section;

(d) an appeal, other than an appeal under the Public Sector Management Act 1994 section 78(1) or the Health Services Act 2016 section 172(2), by a government officer that the government officer be dismissed,

and to adjust all such matters as are referred to in paragraphs (a), (b), (c) and (d).

[(2) deleted]

(3) A Board does not have jurisdiction to hear and determine an appeal by a government officer from a decision made under regulations referred to in the Public Sector Management Act 1994 section 94 or 95A.

7         The appeal involves the review of the respondent's decisions de novo. As such, the Board is to consider the appeals based on the evidence before it, not merely on the basis of whether the respondent made the right decision available to it at the time. The Board has greater scope to substitute its own view for that of the respondent. In the case of dismissal for misconduct, it is for the employer to establish on the evidence that the misconduct occurred: Raxworthy v The Authority for Intellectually Handicapped Persons (1989) 69 WAIG 2266; Thavarasan v The Water Corporation [2006] WAIRC 04089; (2006) 86 WAIG 1434.

8         The Department's decision is not to be totally disregarded by the Board hearing and determining the matter. That the appeal involves a hearing de novo does not necessarily mean that the Board must re-hear every aspect of the allegations afresh. What precisely the Board must consider in the proceedings ultimately depends upon the nature of the challenge to the decision under review: Harvey v Commissioner for Corrections, Department of Corrective Services [2017] WAIRC 00728; (2017) 97 WAIG 1525 at [26], [29].

9         As will be seen from the misconduct findings and grounds of appeal set out below, many of the facts relevant to the appeal are not really in dispute. A notable exception is whether Mr Walley refused to sign a consent form, and the circumstances that caused the appointment with Dr Keith Grainger, Consultant Neurologist to be terminated. However, in the main, it is the conclusions which the Department drew from mostly uncontroversial facts, namely, that Mr Walley's conduct constituted misconduct, and that the misconduct justified termination of employment, that are in contention. Therefore, in this appeal, the Board is required to decide whether, on the evidence before the Board, Mr Walley's conduct was misconduct. If the answer is yes, the Board can consider what, if any, sanction was warranted. If the answer is no, the Board must consider what, if any, adjustment ought to be made to the decision.

The misconduct findings

10      The relevant misconduct findings against Mr Walley are set out in the Department's letter to him dated 18 November 2019. It states that the investigation found:

• You were directed to attend a medical appointment, as a fitness for work assessment, with Dr Keith Grainger, Consultant Neurologist with Next Health and Mind Sense on 4 July 2019 and failed to attend that appointment.

• You were directed to attend a medical appointment, as a fitness for work assessment, on 8 August 2019, and while you attended that appointment, you did not participate in the medical assessment because you refused to sign the consent form.

11      Based on those findings, the suspected breaches of discipline for disobeying or disregarding a lawful order were sustained.

12      The Director General proposed the sanction of dismissal as a result of the above findings. The reasons for proposing that sanction were:

• After your general practitioner certified you as fit for work on 13 February 2019, due to the Department of Biodiversity, Conservation and Attractions' (the department) reasonable concerns about your fitness for work, and the department's desire to ensure that it provided you with a safe workplace, you were directed to attend, and did attend, a fitness for work assessment with Dr Terace.

• In his report, Dr Terace (i) identified permanent restrictions as to your work location, (ii) recognised the risk of the recurrence of Post-Traumatic Stress Disorder symptoms if you are to be exposed to deceased animals, and (iii) recommended that further medical investigations should be carried out, in particular, those investigations being identified in the report of Dr Mandy Vidovich, Clinical Neuropsychologist, dated 16 November 2017.

• Given Dr Terace's recommendation that those further investigations be carried out, you were directed to attend (on two occasions) an appointment with Dr Grainger.

• That direction was made so that the department could comply with its duty to ensure that it is providing you with a safe work place, by seeking to identify whether you are fit for work, and if so, what modifications could be put in place so as to provide you with a safe working environment.

• Having refused to attend or participate in the appointment with Dr Grainger on two occasions, the department is left in a position where it is unable to determine whether it is safe to return to you the workplace in any capacity. In those circumstances, your conduct has frustrated the ability for the employment relationship to continue.

Grounds of appeal

13      Mr Walley's Grounds of Appeal are set out in his Further Substituted Appellant's Reasons for Disagreeing with the Decision filed on 6 April 2021. He raises four grounds. To summarise them, acknowledging that in doing so, we risk injustice to the clear and carefully articulated grounds of appeal, they were:

(a) That the requirement for Mr Walley to be assessed by the Neurologist, Dr Keith Grainger, was unjustified and unreasonable in light of the available medical evidence, Mr Walley's medical history and cultural background.

(b) Mr Walley's failure to attend the appointment with Dr Grainger on 4 July 2019 was not misconduct because the Department had requested Mr Walley attend, rather than direct that he attend and, in any event, the parties were in dispute as to the reasonableness of the requirement to attend the appointment.

(c) Mr Walley's failure to sign the consent form when he attended the appointment with Dr Grainger on 8 August 2019 was not misconduct because:

(i) Mr Walley's participation in the assessment was the result of the Department's request but not a lawful order or direction;

(ii) No direction or order was made by the Department to provide any particular form of consent, nor could it have given such direction or order;

(iii) The assessment was terminated by Dr Grainger, not Mr Walley; and

(iv) Mr Walley did not decline to, or refuse to, sign the consent form.

(d)             If Mr Walley was directed by the Department to attend the medical appointment, and that direction included an implicit direction to sign the consent form, then such direction was unlawful and unreasonable because of the breadth and generality of the consent form content.

Factual background

14      Prior to the hearing, the parties agreed on a Statement of Facts and the documents to be put before the Board. Mr Walley gave oral evidence at the hearing. He also relied upon the oral evidence of his industrial advocate, Mr Michel Amati. The Department did not lead any oral evidence, but tendered further documents concerning Mr Walley's medical and employment history without any objection by the appellant (Exhibit 6).

15      The following factual background is taken from the Statement of Agreed Facts (Exhibit 1), the tendered documents (Exhibits 2 to 6) and Mr Walley's uncontested oral evidence.

Mr Walley's employment

16      At the relevant times, Mr Walley was employed by the Department as an Aboriginal Education Officer/Eco Education Officer - Aboriginal Cultural Program. He was responsible for providing Aboriginal Education, particularly for developing and delivering the Aboriginal Nearer to Nature cultural programs and excursions to promote understanding of traditional Aboriginal culture, the use of natural resources and traditional conservation techniques. His duties involved developing the program and its associated resources, engaging with Aboriginal cultural and spiritual content and awareness through a curriculum of activities with the public, school children and internally within the Department by delivering special events, excursions, workshops and professional learning.

17      The Department described Mr Walley's role to Dr Lawrence Terace, Consultant Forensic Psychiatrist in these terms:

…

The role of EcoEducation Officer - Aboriginal Cultural Program, involves the development and delivery of Aboriginal EcoEducation cultural programs. The programs are designed to promote understanding of traditional Aboriginal culture, the use of natural and renewable resources and traditional conservation techniques, in the context of the Western Australian environment.

It is an interactive role with school and community groups, requiring the ability to adjust to different group dynamics and answer questions. The role requires the ability to develop and maintain a good rapport with a diverse range of people of all ages and the ability to work effectively as a member of a team.

The role requires field work, including working in native bushland where there is both natural and plantation forests, including pine trees, as well as live and deceased wildlife.

Mr Walley has historically undertaken these tasks within the natural environment within the Perth Hills Discovery Centre (in Beelu National Park) in Mundaring and following a recurrence of his PTSD, trialled working in Yanchep National Park.

A copy of the job description form, detailing the requirements of the position has been included as Attachment 1.

…

18      Following the hearing, the parties provided the Board with the most recent Job Description Form (JDF) for Mr Walley's position dated 4 June 2013. It attributes 70% of the position's responsibilities to the development and delivery of Aboriginal EcoEducation cultural programs and excursions.

Mr Walley's Workers' Compensation Claim

19      Mr Walley had a diagnosis of Post‑Traumatic Stress Disorder (PTSD) which developed in the course of his employment following the traumatic and gruesome discovery by him of a deceased person while he was patrolling crown land in October 2000.

20      Liability for a Workers' Compensation Claim relating to the October 2000 incident was accepted in January 2002.

21      As a result of his illness, Mr Walley had intermittent periods of incapacity and required medical treatment in the period from 2002 to January 2019. Over that period of 16 years of employment, Mr Walley was certified unfit for a total of about 2 1/2 years.

22      Between 22 March 2017 and 22 January 2019, Mr Walley was only fit for and in attendance at work for around three months between 2 June 2018 to September 2018.

Neuropsychological assessment is conducted

23      In late 2017, the Department arranged for Mr Walley to be neuropsychologically assessed by Dr Mandy Vidovich, Clinical Neuropsychologist, who produced a report dated 16 November 2017.

24      Relevant extracts from Dr Vidovich's report are reproduced as follows:

…

It was anticipated that he would produce performances within the Average range for his age. Review of his neuropsychological profile revealed inefficiencies in several domains with results across various measures being below expectation. The most salient, undermining factor, appeared associated with deficits in executive functioning, which impacted on aspects of his communication, the integration of complex visual material, attentional processes, and his capacity to learn novel information. There was no indication of a disorder of mood and he would not expand on past, or any current, psychological symptoms.

In keeping with some of the concerns that had reportedly been raised within the workplace, Mr Walley demonstrated cognitive deficits considered likely to influence aspects of his work performance. The reductions in auditory attention, inefficiency in aspects of his memory, and observed executive dysfunction, are likely to impact on facets of his workplace productivity and interactions. He admitted that it had been some time since he'd had a general medical review and he would be encouraged to attend his GP to address any vascular risk factors and for referrals to screen his eyesight and hearing. Further, it is recommended that he undergo an MRI brain scan. Review neuropsychological assessment in 12 month's time would also be recommended to identify whether there is a progressive component to any of the observed cognitive deficits.

Exploration of return to work options should include addressing any cultural sensitivities related to specific workplace environments and exposure to any salient triggers…

…

With respect to questions three to five, Mr Walley did not disclose any psychological symptoms at the time of the appointments. If he has suffered with PTSD, this was either in remission or he did not wish to elaborate on any aspect of his psychological well-being. Concern is raised regarding his cognitive functioning and he requires medical review and investigations to identify any potential causes and/or reversible contributing factors. He would currently meet diagnostic criteria for a Minor Neurocognitive Disorder (unspecified), for which investigations would be pending, noting also that an MRI brain scan should be performed. Outcomes of these investigations may provide guidance with respect to further treatment.

25      Dr Vidovich declined to comment directly on Mr Walley's fitness for work from a psychiatric point of view, noting that she had no information regarding his previous diagnosis of PTSD.

26      In response to the particular questions the Employer asked Dr Vidovich, she responded:

…

7. What is the likelihood in the short and long term of Mr Walley's ability to return to work with full capacity?

This will depend on the outcome of any medical investigations and whether there are ongoing notations of progressive decline. Currently, he may be capable of restricted duties, with some peer supervision, and in a part-time capacity.

…

10. If there are restrictions, are these restrictions going to be permanent thus affecting his ability to continue work as an Eco Education Officer in a full-time capacity?

At this point in time, and without further investigations, restrictions should be considered temporary. Whilst his profile raises suspicion of an early neurodegenerative process, further medical investigations should be conducted to assist with confirmation regarding his employability in his role as an Eco Education Officer.

27      Mr Walley returned to work in around June 2018.

28      In or about September 2018, a disciplinary process was commenced arising out of allegations that Mr Walley had displayed aggressive behaviour towards colleagues and managers and made unauthorised contact with the media. The disciplinary process was not progressed because Mr Walley commenced another period of long term leave shortly thereafter.

Assessment by Dr Terace, Psychiatrist

29      On 13 February 2019, Mr Walley's GP, Dr Bradley Price, completed a WorkCover WA Progress Certificate of Capacity. He certified Mr Walley as having "full capacity for work from 13/02/19" but requiring further treatment with a restriction on working in Yanchep.

30      After receipt of this certificate, in March 2019, the Department required that Mr Walley attend a fitness for work assessment with a Psychiatrist, Dr Terace, to determine whether Mr Walley was fit to return to work.

31      Mr Walley attended the appointment on 26 March 2019 and the Department received Dr Terace's resultant report dated 14 April 2019 on 16 April 2019, and a supplementary report dated 15 May 2019.

32      The 14 April 2019 report concluded, amongst other things, that Mr Walley had normal cognitive functioning:

The sensorium was clear, and a coherent account of the circumstances was provided at interview to suggest intact general cognition - although I did undertake a formal cognitive assessment or Standardised Mini-Mental State Examination (SMMSE) despite the absence of objective evidence of cognitive deficit at clinical interview and despite the absence of any subjective descriptions - given the reference in your letter of instruction to concerns raised by Neuropsychologist, Ms Mandy Vidovich. Cognition appeared to be within normal limits as was capacity for cognitive persistence and pace.

The Standardised Mini-Mental State Examination (SMMSE) produced a perfect score of 30/30.

33      Dr Terace further reported:

1. In your opinion, do you believe Mr Walley is fit to undertake his duties of an EcoEducation Officer within a work environment where there will be exposure to pine trees/plantations and possible exposure to forest and/or deceased wildlife, which have previously resulted in a recurrence of Mr Walley's PTSD?

1. Mr Walley stated that he does not perceive that he requires restrictions in terms of exposure to pine trees/plantations any more.

2. However, it is possible that exposure to deceased wildlife may trigger a recurrence of his post‑traumatic symptoms - especially given his description of a transient visual flashback of maggots during this interview.

3. In my former report dated 1 August 2017 - I stated in point 10 page 28, that Mr Walley was presently fit for his pre-accident occupation on a full-time unrestricted basis.

4. However, in point 9 page 28, I stated that whilst the prognosis was good, he was at risk of further recurrences, and that Mr Walley is probably a psychologically vulnerable individual who was at risk of a further psychological disorder in the future independent of this claim at that time.

5. I note on page 3 of your letter of instruction dated 25 March 2019, you state that the Department has also tried relocation at the Kensington Head Office site and Yanchep National Park, but that Dr Price has stated that Mr Walley was not able to work at the latter.

6. I did not find sufficient evidence for a recognised psychiatric disorder in the present, such that any former DSM-V psychiatric disorder appears to be close to remission, assuming the veracity of the history - although he described one transient visual flashback of maggots during the interview - which essentially means that he is probably at risk of further post‑traumatic recurrences (emphasis added).

…

2. In your opinion, do you believe Mr Walley is fit to undertake his duties of an EcoEducation Officer within a work environment where there may be additional risk of a PTSD recurrence?

1. Mr Walley is probably at risk of post-traumatic recurrence/symptoms in the environments referred to in the aforementioned body of this report and also in my response to your Question 1 - essentially being Wanneroo Road and Yanchep National Park. However, it is possible that exposure to deceased wildlife may trigger a recurrence of his post-traumatic symptoms- especially given his description of a transient visual flashback of maggots during this interview.

3. If Mr Walley is deemed 'not currently fit':

a. What is the nature and expected duration of his incapacity?

1. As stated, I did not find evidence for a fulminant psychiatric disorder meeting. DSM‑V criteria in the present, despite his description of a transient visual flashback of maggots, and the essential issue is as to risk pertaining to future recurrence and symptoms. This would suggest that it is possible that exposure to deceased animals may or will trigger such post-traumatic symptoms in the future.

2. He is probably not fit for work that requires attendance to Wanneroo Road or the Yanchep National Park.

3. Exposure to Wanneroo Road, and Yanchep National Park may lead to a recurrence of symptoms in the future.

4. Mr Walley no longer describes an aversion to pine tree forests, and if that is correct, then pine forests specifically are not an exclusion - unless he may be exposed to deceased animals.

5. However, I understood that it was in Yanchep that he found the remains of a suicide victim and he perceives that he cannot return to Yanchep National Park and I understood that this led to Worker's Compensation Claims.

…

26. Therefore, on that basis, assuming the veracity of the history Mr Walley provided at interview, then the specifically posed restrictions appear to be Wanneroo Road where the original suicide occurred, and Yanchep National Park.

However, even if pine trees/pine plantations are no longer concerns for him, as Mr Walley stated at interview, I cannot exclude the possibility that exposure to deceased animals may or will cause posttraumatic recurrences also in other environments.

Whilst Mr Walley has suggested Kings Park, Rottnest Island or Perth Zoo in a similar role - I have concerns about his access to medical services if required urgently on the island. Furthermore, I cannot exclude the potential risk of being exposed to a deceased animal in Kings Park and the possibility that this may cause post-traumatic recurrences.

If exposure to deceased animals has the potential risk of a PTSD recurrence, then reconsideration of his role in those contexts may be required.

b. What is the likelihood in the short and the long term of Mr Walley's ability to return to work with full capacity?

1. In the absence of a present fulminant psychiatric condition, Mr Walley probably has full capacity to return to work with full capacity in the present, observing the restrictions specified, but I cannot exclude the possible risk of a PTSD recurrence if he is exposed to deceased animals. I do not know if such restrictions are viable from a pragmatic occupational perspective pertaining to his role, and this is a decision for the Department.

…

7. What actions could the department take to reduce the likelihood of a recurrence for Mr Walley?

1. I do not think it is possible to completely exclude the development of future recurrence or the risk of future recurrence.

2. Restricting him from Wanneroo Road and from the Yanchep National Park may reduce the likelihood of recurrence.

3. Mr Walley has specified particular areas he is willing to work. This may reduce the risk of recurrence, but it may not.

However, if your concerns about Mundaring are correct then the risk of returning him to Mundaring is significant.

Furthermore, I cannot exclude the risk that exposure to deceased animals may will give rise to further post‑traumatic recurrences in any environment.

…

10. Please provide any additional information that would be beneficial in managing Mr Walley.

…

4. I also note the report of Clinical Neuropsychologist, Mandy Vidovich dated 16 November 2017 - and her conclusion in point 10, page 8, that at this point in time, and without further investigations, restrictions should be considered temporary, but whilst his profile raises suspicion of an early neurodegenerative process, further medical investigations should be conducted to assist regarding his employability in his role as an EcoEducation Officer.

5. On page 6, she concluded that Mr Walley demonstrated cognitive deficits likely to influence aspects of his work performance including reductions in auditory attention, and inefficiency in aspects of his memory.

6. She encouraged attendance to his General Practitioner to address any vascular risk factors and referral to screen his eyesight and hearing and recommended that he undergo an MRI brain scan with a recommendation for a Neuropsychological Assessment in 12 months' time to identify whether there was a progressive component to any of the observed cognitive deficits.

7. On the Standardised Mini-Mental State Examination (SMMSE), I did not identify any particular cognitive deficits, but it should be noted that neuropsychological testing is probably more sensitive (emphasis added).

8. I do not know whether Mr Walley revisited Ms Vidovich for a further assessment, or whether he underwent the appropriate attendance to General Practitioner or a further MRI.

9. However, given the concerns raised, I strongly recommend that a copy of this report is provided to Mr Walley's treating General Practitioner as soon as possible.

34      Apparently, the Department misunderstood Dr Terace's report as extracted above, understanding him to have opined that further medical investigations should be conducted. It wrote to Dr Terace seeking a supplementary report. The letter of instruction for the supplementary report was not in evidence, but from the face of the supplementary report dated 15 May 2019 it appears Dr Terace was asked, amongst other things:

…

3. On page 23 you recommend "further medical investigations should be conducted to assist regarding his employability in his role as an EcoEducation Officer". Can you please confirm if this is a formal recommendation from your assessment and if it is, provide details of the medical professional that should be engaged to conduct such assessments?

…

35      The Department also asked Dr Terace to expand upon his opinion concerning the severity of any risk of recurrence, and how that relates to Mr Walley's fitness for work.

36      Dr Terace's 15 May 2019 supplementary report states:

1. Throughout the report there is reference to the 'risk of recurrence'.

Are you able to provide an indication of the severity of this risk? For example based on the likelihood and consequence, is the risk of recurrence minor, moderate or major? This information will assist the department in determining whether the risk is manageable, or if it's too high to place Mr Walley in any environment where there may be deceased fauna.

1. The risk of recurrence and the severity of risk is difficult to quantify in psychiatry, including Post‑Traumatic Stress Disorders and post-traumatic symptoms.

2. Rates of recurrence and the degree of risk vary from patient-to-patient and case-to-case.

3. However, given the totality of the evidence, I concluded that the severity of the risk is moderate, and I could not state that it is minor.

4. Please note this a qualitative analysis, and not a quantitative one.

…

3. For example, in 3.b page 20 of my report 14 April 2019, I stated that in the absence of a present fulminant psychiatric condition, Mr Walley probably has full capacity to return to work with full capacity in the present, observing the restrictions specified, but I cannot exclude the possible risk of a PTSD recurrence if he is exposed to deceased animals. I do not know if such restrictions are viable from a pragmatic occupational perspective pertaining to his role, and this is a decision for the Department.

…

5. In summary, it is possible that he may or will respond adversely to deceased wildlife in the future, and I cannot exclude this from contributing to further post-traumatic symptoms or recurrences.

6. I considered that this risk is moderate.

7. It is not possible to completely exclude the development of future recurrence or the risk of future recurrence.

…

…

…

7. The area of neurodegenerative disease is outside of my area of expertise and is specifically and ultimately the province of a Consultant Neurologist.

I regret that it is not possible to be more specific than this in this case.

The Department arranges 4 July 2019 appointment with Dr Grainger

37      On 29 May 2019 the Department wrote to Mr Walley following its receipt of Dr Terace's reports. In its letter, the Department stated:

You attended a fitness for work assessment with psychiatrist Dr Lawrence Terace on 26 March 2019, and were accompanied by your union representative, Mr Michel Amati, Industrial Officer for the Civil Service Association (CSA).

As advised in emails to Mr Amati dated 29 April and 3 May 2019, the department has received Dr Terace's fitness for work assessment report.

Dr Terace strongly recommends that a copy of the report be provided to your General Practitioner (GP) as soon as possible. As advised in the abovementioned emails, the department requires your written consent to contact and subsequently provide the report to your GP.

In his report, Dr Terace has also stated that should you wish to make an application for the report, it should be read in the presence of, and interpreted by, your GP.

Due to Dr Terace's recommendations, the department is not able to provide the report directly to you or the CSA. Provision of the report outside of Dr Terace's advice could compromise the department's duty of care responsibility to you, as an employee.

Following a review of the report, the department has determined that an additional assessment with a Consultant Neurologist is required. This is derived from Dr Terace's report and his reference to Dr Mandy Vidovich's recommendation for such assessment, in her fitness for work assessment report dated November 2017.

The assessment will provide the department with additional information regarding your health and wellbeing, in relation to your return to work and your ability to undertake your role as an EcoEducation Officer.

A letter has been prepared for Dr Keith Grainger, a Consultant Neurologist with Next Health & Mind Sense, which includes a summary of your work history, including your role, responsibilities and any known medical history. Included in this letter is a list of questions the department requires Dr Grainger to answer, which are relevant to your fitness for work.

An appointment has been made for you to attend an assessment with Dr Grainger at 4.00pm on Thursday 4 July 2019 at Next Health & Mind Sense at 29 Walters Drive, Osborne Park. Please ensure you arrive 15 minutes early to attend to any paperwork. You will be reimbursed for reasonable expenses, including travel costs if required.

Following the appointment, the department will review the report from Dr Grainger to determine your fitness for work and any measures required to ensure your ongoing health and wellbeing in the workplace.

I would encourage you to discuss Dr Terace's initial report with your GP prior to attending the assessment with Dr Grainger; as advised previously, your written authorisation is required prior to the report being released to your GP.

Please confirm receipt of this letter and confirmation of your availability to attend the above appointment to Ms Emma-Lee Thornton, A/Manager Health, Safety and Wellbeing by telephone on 9219 9782 or email via [email address anonymised] by close of business on Friday 21 June 2019.

38      Consistent with Dr Terace's recommendation, Dr Terace's reports were not provided to Mr Walley at the time of, or prior to, the issue of the letter of 29 May 2019. It is of considerable concern then, that the letter represented to Mr Walley that Dr Terace's report implicitly, if not expressly, recommended an additional assessment with a Consultant Neurologist was required. No fair reading of Dr Terace's report would lead to a conclusion that it recommended an assessment by a Consultant Neurologist.

39      Dr Terace did no more than recite and summarise the earlier report of Dr Vidovich, which was by then some 18 months out of date. Dr Terace had himself conducted a Standardised Mini‑Mental State Examination, but found no basis for any concerns of cognitive impairment. His report did nothing to support or adopt Dr Vidovich's recommendation. Yet the letter of 29 May 2019 appears designed to give the impression that it did, in circumstances where Mr Walley could not make his own assessment of Dr Terace's opinions or report.

40      Further, Dr Vidovich did not recommend further neurological assessment either. Dr Vidovich had recommended other forms of medical investigation to determine any underlying causes of deteriorated cognitive functioning, such as MRI brain scan. Dr Vidovich did suggest repeating the neuropsychological assessment to determine whether there was a progressive element (emphasis added).

41      In these circumstances there was really no basis on the medical evidence before the Department for requiring a neurological assessment of fitness for work. For the Department to have suggested that it had reasons based on the medical reports was either misguided or misleading or both.

42      Through his union The Civil Service Association of Western Australia Incorporated (Union), and reasonably in the circumstances outlined, Mr Walley disputed the necessity for the appointment and whether the request to attend it was reasonable.

43      Mr Walley did not attend the appointment scheduled for 4 July 2019.

A further appointment with Dr Grainger is arranged

44      By letter dated 19 July 2019, the Department's Acting Manager of People Services, Mr Stephen Bradfield, wrote to Mr Walley referring, for the first time, to the appointment on 4 July 2019 as a "fitness for work assessment". Again, it is noted that neither Dr Terace nor Dr Vidovich had recommended further assessments of fitness for work.

45      Mr Bradfield informed Mr Walley that a rescheduled appointment had been made for Mr Walley to see Dr Grainger at 4.00 pm on 1 August 2019: see Exhibit 2, Tab 6. Nothing in Mr Bradfield's letter indicated that the failure to have attended the earlier appointment was misconduct, or a failure to follow a lawful direction. Nothing in the letter suggested that a failure to attend, or further failure, would be treated as misconduct or be associated with any sanctions.

46      On 29 July 2019 Mr Walley told the Department that he would attend the appointment and provided a medical certificate from his GP which certified him as unfit for work until 29 September 2019.

1 August 2019 appointment with Dr Grainger

47      Mr Walley attended Dr Grainger's rooms on 1 August 2019. On arrival he was presented with a form (Exhibit 3) which relevantly stated:

I hereby consent to such medical examinations and tests as may be requested by the examining doctor and/or referring party subject to my specific instructions. This may include accessing radiological results and information from other medical practitioners. I also hereby consent to any documents and/or medical tests that I provide to Next Health, if relevant to the matters of the assessment and referred to in the report, being provided to the referring party if requested. I confirm the above details are correct and authorise release of this report and supporting documentation to the person/organisation noted above under Referral Source Details. I am aware that I cannot record my assessment without prior consent by the examining doctor and Next Health. I understand I have the right to request a chaperone and that one will be made available to me if asked for. I hereby consent to the use of a chaperone should one be requested by me or by the doctor conducting the assessment.

48      Ms Emma-Lee Thornton of Department of Parks and Wildlife was listed under "Referral Source Details" on the form.

49      Mr Walley emailed a copy of the consent form to Mr Amati seeking Mr Amati's advice. Mr Walley's evidence was to the effect that he was confused by the content of the consent form and concerned by its breadth. In particular, he was concerned that it apparently allowed Ms Thornton to carry out tests or examinations as he did not believe she was medically qualified.

50      Before Mr Amati responded to Mr Walley, Mr Walley was taken into Dr Grainger's rooms where he commenced a discussion with Dr Grainger. According to Mr Walley, Dr Grainger asked him to go into detail about the incident of October 2000 and then proceeded to explain the tests and assessments which Dr Grainger proposed carrying out on Mr Walley. Those tests included shining a light in Mr Walley's eyes, using a device to scan his brain and attaching electrical wires to pass current through his body.

51      Mr Walley was concerned about his physical and spiritual wellbeing. He said he was concerned that Dr Grainger did not know enough about his medical history to conduct the tests safely and he was concerned for the effect of these procedures on his spiritual totem, and therefore his own spiritual wellbeing.

52      While in Dr Grainger's rooms, Mr Amati called Mr Walley and "discouraged" him from signing the consent form. Mr Amati also spoke directly to Dr Grainger, telling him why he had discouraged Mr Walley from signing, namely that the consent form was too broad.

53      Mr Walley's evidence was that at about that point, or just after Dr Grainger finished his conversation with Mr Amati, Dr Grainger's assistant entered the room with a different form (Exhibit 5) and that the assistant was "screaming", "hysterical" and "begged" him to return the first form. He said she got on her knees and was crying, as she asked for the form back, and gave him an alternative form.

54      The respondent's counsel invited the Board to reject Mr Walley's evidence about this account as being implausible. The Board does have concerns about the veracity of Mr Walley's evidence in relation to this aspect of the appointment. However, ultimately, he did come into possession of the second form, being a form which gave authority for the release of medical records.

55      After the assistant left, Dr Grainger then spoke words into a dictaphone to the effect that the appointment was finished. According to Mr Walley, he did so because he had to attend to and comfort his assistant who was in a state of distress about the confusion over the forms. Again, it should be said that Mr Walley's account in this regard lacks credibility, and the Board is not prepared to find that Dr Grainger terminated the appointment for the reason Mr Walley suggested.

56      Mr Walley also suggested that Dr Grainger had indicated agreement with him that the consent form was not ideally worded, and that he had the impression that he and Dr Grainger would work out what to do about the consent forms. Mr Walley admits that he did not sign any consent form, but disputes the assertion that he refused to sign.

57      Exhibit 6 includes an email from Dr Grainger's rooms in response to the Department's request for an explanation of the events of 1 August 2019. The email, which is dated 16 October 2019, says:

• Mr Walley did attend on 1 August 2019.

• Dr Grainger does not recall if Mr Walley was accompanied by anyone.

• Our usual practice is for the consent form to be signed immediately upon arrival, prior to entering the consult room with the doctor. From time to time the patient may enter the room and sign the consent form with the doctor. Mr Walley was asked to check his personal details and read and sign the consent form immediately upon arrival.

• Mr Walley did meet briefly with Dr Grainger. Mr Walley was taken into the consult room so that the doctor could explain the assessment and examination process to him while Mr Walley waited for a call back from his Union representative. When the Union representative did eventually phone back, it was determined that consent would not be given to go ahead with the assessment. The assessment was terminated.

• The assessment did not commence.

• There were no tests performed

Please let me know if you need any further information.

The Breach of Discipline Process commenced

58      By letter dated 28 August 2019, Mr Bradfield informed Mr Walley that he was suspected of committing two breaches of discipline. The letter set out the allegations of breach of discipline as detailed above, and provided Mr Walley with an opportunity to respond to the allegations: Exhibit 2, Tab 7.

59      By letter dated 11 September 2019, Mr Walley's Union responded to the letter of allegations on Mr Walley's behalf: Exhibit 2, Tab 8.

60      By letter dated 16 September 2019, Mr Bradfield informed Mr Walley that an investigation into the allegations of breach of discipline would take place: Exhibit 2, Tab 9.

61      On 18 November 2019 the Department wrote to Mr Walley regarding the Breach of Discipline - Investigation Outcome. The details of that correspondence are set out under "The misconduct findings" above.

62      Notably, the Department's reasons recited the background to the allegations and findings, rather than being directed to issues that might generally concern the sanction to be imposed, other than the final point which is that:

…[T]he department is left in a position where it is unable to determine whether it is safe to return to you the workplace in any capacity. In those circumstances, your conduct has frustrated the ability for the employment relationship to continue.

63      In the letter dated 18 November 2019, the Department informed Mr Walley that the allegations were substantiated and that the Department proposed to dismiss Mr Walley for his conduct. The letter provided Mr Walley an opportunity to respond to the proposed penalty of dismissal: Exhibit 2, Tab 11.

64      By letter dated 20 December 2019, Mr Walley's Union responded to the proposed dismissal on Mr Walley's behalf: Exhibit 2, Tab 12.

Decision to dismiss Mr Walley

65      The Department terminated Mr Walley's employment by letter dated 6 January 2020 with immediate effect, and paid him five weeks ordinary salary in lieu of notice.

66      Mr Walley has not engaged in paid employment since the termination. He asserts that he is ready, willing and able to return to his previous position. His oral evidence under oath was that he has been fit for work since the dismissal. However, his evidence in this regard was obviously not candid. The following exchange occurred in cross-examination:

Have you been fit for work since the date of your dismissal until now?   Yes, I've been fit.

And before you accessed your superannuation most recently were you accessing the workers' compensation payments?   No.

You weren't?   Um, no.  Oh, again, I - I have to - I have to be, um - I - I can't remember my bank details.  Money would have went in, I don't know.  Um, I really don't know.  Um, but I - I - I, um, I don't know what the situation is, I, um, I probably -I go to my tax accountant.  And to give you a complete answer you'd have to see my tax accountant.

But did you receive workers' compensation payment after you left the department?   Again, I have to ‑ all payment went to my tax.  My tax (indistinct) tax.

67      Following the hearing, the Board was provided with details of the Workers' Compensation payments Mr Walley received after the termination of his employment. This information was provided with the consent of both parties. This information revealed that Mr Walley had been in receipt of weekly incapacity payments totalling $235,971 in respect of the incident of October 2000 and that weekly payments were exhausted and ceased as of 29 June 2021.

Ground 1: Was the requirement to undergo assessment by Dr Grainger a lawful direction?

68      Consideration of this ground of appeal should start with a restatement of the principles espoused by Madgwick J in the Federal Court in Blackadder v Ramsay Butchering Services Pty Ltd [2002] FCA 603; (2002) 118 FCR 395 at [68]-[69] concerning an employer's ability to require employees to undergo medical assessment:

(a) It is essential for an employer's compliance with its occupational safety and health duties that it be able:

…where necessary, to require an employee to furnish particulars and/or medical evidence affirming the employee's continuing fitness to undertake duties. Likewise, an employer should, where there is a genuine indication of a need for it, also be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness. This is likely to be particularly pertinent in dangerous work environments.

(b) The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination.

(c) A sensitive approach is generally required.

(d) Relevant matters will usually include respect for privacy.

(e) The requirement to provide medical evidence of fitness and attend a medical examination on reasonable terms are implied by law into contracts of employment on the basis of the test of "necessity" in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at [450].

69      Further to the requirement for a sensitive approach respecting an employee's privacy, the Board considers it is incumbent on employers when directing an employee to undergo medical examination to ensure the employee can participate in the process in an informed and empowered way.

70      In Grant v BHP Coal Pty Ltd [2014] FWCFB 3027, the Full Bench of the Fair Work Commission noted at [110], that "a direction given to an employee is lawful to the extent that it falls reasonably within the scope of service of the employee". Having concluded that the employer in that case was lawfully able to direct its employee to attend a medical examination for a functional assessment, the Full Bench identified contextual factors relevant to the finding at first instance that the direction was reasonable, namely:

(a) The length of the absence from the workplace;

(b) The medical history and nature of the medical condition suffered;

(c) The degree of detail provided in medical certificates provided by the employee;

(d) Whether the injury was known to be exposed to aggravation;

(e) The nature of the employee's job; and

(f) The qualifications of the medical practitioner undertaking the assessment.

71      The Department submits that the direction that Mr Walley attend a medical assessment with Dr Grainger was reasonable and fair as:

(a) Mr Walley had a long history of recurrences of PTSD from the original workplace injury suffered in 2000 and the recurrences involved significant periods of leave and resulted in a number of restrictions on his ability to work;

(b) the Department had evidence that Mr Walley was not fit for work, there were definite exclusions on where he could work, there was uncertainty about whether he could work at other locations, there was uncertainty as to whether he was a danger to others, there was evidence that he was at risk of relapse and expert opinion was that he should be subject to further assessment; and

(c) Dr Vidovich identified particular further assessment as being by a consultant neurologist and provided the Department with recommended consultants.

72      As is hopefully evident from the above summary of the medical opinions before the Department at the time it arranged for Mr Walley to be assessed by Dr Grainger, we do not consider the referral was justified or that the Department had a reasonable basis for requiring that Mr Walley attend it. We do not agree that Dr Vidovich identified a need for assessment by a consultant neurologist. There was no evidence before the Board that she provided the Department with the names of recommended consultants or that she recommended Dr Grainger.

73      At the time of the referral to Dr Grainger on 29 May 2019 the medical evidence in the Department's possession was, in summary:

(a) Dr Vidovich had determined that, as at October 2017, Mr Walley met the diagnostic criteria for a Minor Neurocognitive Disorder (unspecified) because he displayed cognitive abilities on some measures as "low average". She was not in a position to say what the cause of these results was, nor whether there was a degenerative component, without further investigations. His results indicated a need for peer supervision, restricted duties and part-time work but without further investigations, those restrictions should be considered temporary.

(b) Mr Walley's GP, Dr Price had certified Mr Walley as having full capacity for work from 13 February 2019 but requiring further treatment and with a restriction on working in Yanchep.

(c) Dr Terace considered that, as at 14 April 2019, Mr Walley did not suffer from a recognised psychiatric disorder but was at risk of further post traumatic recurrences. The risk of recurrences arose specifically from exposure to deceased wildlife, or attending at Wanneroo Road/Yanchep National Park. The risk of recurrence was moderate. Mr Walley's cognition appeared to be within normal limits and a Standardised Mini Mental State Examination produced a perfect score of 30/30.

74      While Dr Vidovich suggested medical review and investigations, the purpose of such was "to identify any potential causes and/or reversible contributing factors". The investigations recommended were MRI brain scan and neuropsychological review in 12 months to "identify whether there is a progressive component". Dr Vidovich notes that the outcomes of these investigations "may provide guidance with respect to future treatment".

75      Notably, Dr Vidovich had not recommended further assessment of fitness for work nor had she suggested review by a Neurologist. As for the investigations she did recommend, these were matters for Mr Walley and his GP to have considered pursuing, rather than the Department, as they were matters of diagnosis and treatment, rather than work capacity.

76      From a psychiatric point of view, the medical evidence all pointed to Mr Walley being fit for work "presently". Dr Terace's conclusion was that Mr Walley did not "presently" suffer from any psychiatric illness.

77      In these circumstances, any direction to attend for assessment by a Neurologist was unnecessarily invasive of Mr Walley's person. It would not meet the requirement for sensitivity and respect for privacy identified in Blackadder.

78      The Board accepts, though, that between Dr Price's qualified certification of fitness and Dr Terace's opinions about the risk of recurrence, the Department was left with something of a quandary as to Mr Walley's return to work. The problem is that the dilemma was not going to be answered by a neurological assessment by Dr Grainger. It is clear enough that Dr Price's and Dr Terace's suggested restrictions related to the risk of recurrence of PTSD, not any neurological condition.

79      Mr Walley raises an issue about the reasonableness of the requirement to attend the assessment having regard to cultural considerations. We have said above that we consider it is incumbent upon employers to ensure that employees can participate in medical assessments in an informed and empowered way. To meet this requirement, consideration must be given to employees' cultural and religious practices and beliefs. This is particularly so where the employer is a government agency and the employee is an Aboriginal person, against a history of colonial Government control over Aboriginal people and their bodies. For example, it is not unreasonable to expect that government agencies would ensure that medical practitioners to whom employees are referred have sufficient relevant cultural awareness to perform a medical assessment in an appropriate way.

80      For the above reasons, we consider Ground 1 is made out and find that the requirement for Mr Walley to be assessed by Dr Grainger was unreasonable.

Ground 2: Did the failure to attend the appointment on 4 July 2019 justify the sanction of dismissal?

81      Because the Board finds that Mr Walley had good reasons to dispute the reasonableness of the direction to attend on Dr Grainger for assessment, it follows that his failure to attend the appointment on 4 July 2019 does not constitute misconduct and cannot be grounds for dismissal.

82      The Department did not challenge the evidence to the effect that Mr Walley, through Mr Amati, had disputed the reasonableness of the direction to attend the 4 July 2019 appointment. There was merit to Mr Amati's arguments concerning the reasonableness of the direction. That there was a dispute about the direction, which was the subject of ongoing correspondence between the Department and Mr Amati, is further reason as to why the failure to attend should not warrant a finding of misconduct. To find otherwise is tantamount to prohibiting employees from challenging the reasonableness of an employer's direction, even if the direction is patently unreasonable.

83      The Board also accepts that because the Department rescheduled the appointment with Dr Grainger without alerting Mr Walley either to the fact it considered his previous failure to attend to constitute misconduct or that any further failure to attend would constitute misconduct, means that the Department waived reliance upon the 4 July 2019 failure in any event.

Ground 3: Was Mr Walley's conduct on 8 August 2018 misconduct?

84      The Department relevantly found that Mr Walley "did not participate in the medical assessment because [he] refused to sign the consent form".

85      This ground raises issues as to:

(a) whether the requirement to participate in a medical assessment with Dr Grainger was a lawful direction;

(b) if it was a lawful direction, whether signing a consent form was a requirement for the assessment to proceed; and

(c) whether Mr Walley refused to give whatever consent was required for the assessment.

86      The Department submits that an employee's refusal or failure to sign a consent form which is required by a medical practitioner equates to a failure to attend the assessment. The Department referred the Board to Hudson v RMIT University [2020] FWC 4289 (20 August 2020). In that case, the employee had engaged in correspondence with the employer about the form of consent which a medical practitioner required for the purpose of an assessment arranged by the employer. The employee made her own changes to the consent form, which the medical practitioner was unwilling to accept. Commissioner Bissett said:

[61] In both form and substance Dr Hudson refused to attend the IME as required by RMIT. To suggest that she was willing to attend – but only on her terms – is a refusal to attend an IME as required by RMIT.

[62] To suggest that by arriving at the IME appointment she was required to do no more, such as signing a valid consent form, is disingenuous and is rejected. Dr Hudson presented in a way that she knew was not acceptable to the provider. To stipulate the terms on which she would attend the IME does, in my opinion, amount to a refusal to attend the IME as required by RMIT. Had Dr Hudson refused to sign the consent form this could reasonably be construed as a refusal to attend the IME. By signing a modified consent form that Dr Hudson knew would not be accepted is, in effect, no different.

[63] Even if this was not a refusal to attend it is, in both form and substance, a failure to attend in a manner that the IME could proceed.

87      Mr Walley's case is distinguishable from Hudson. Firstly, for the reasons set out above, the Board does not consider that the requirement to be assessed by Dr Grainger was reasonable or constituted a lawful direction.

88      Second, the evidence does not establish what, if any, form of consent Dr Grainger required be completed, nor that Mr Walley refused to sign or give such consent. While Mr Walley was obviously reticent to, was advised not to, and ultimately did not sign the patient consent in Exhibit 3, any initial refusal appears to have been superseded by later events including Dr Grainger's discussion with Mr Amati and the production of a second, alternative form being Exhibit 5.

89      Dr Grainger's rooms explained the events of 1 August 2019 in the email to Ms Thornton dated 16 October 2019, reproduced at [57].

90      Notably, the explanation does not expressly state who was involved in determining that consent would not be given. Further, the consent referred to in the relevant part of the email is consent to the assessment going ahead, rather than a particular form of written consent.

91      The email does not in any way undermine Mr Walley's evidence that he was awaiting advice from Mr Amati before determining whether to sign the consent form, or that Dr Grainger terminated the appointment immediately after speaking to Mr Amati without any further discussion with him about what written consent was required for the assessment to go ahead. As something of an aside, the Board notes that Mr Walley had previously provided consent to the assessments by Dr Vidovich and Dr Terace and had authorised the release of their reports to his employer.

92      Third, neither of the two forms appear to provide irrevocable consent to the conduct of an assessment. Exhibit 3 is expressed to be "subject to my specific instructions". Exhibit 5 does not provide consent to any assessment at all, but rather to the release of records produced following examination. It is difficult to see, then, how the completion of either form might have had any practical role to play in facilitating Dr Grainger's assessment of Mr Walley.

93      Finally, there is no evidence as to precisely what form of consent Dr Grainger required to proceed with the assessment. The email from Dr Grainger's rooms refers to a "usual practice" for "the consent form to be signed immediately upon arrival". It does not state the content of the consent form or which parts of it are required.

94      In short, we do not consider the Department has discharged its onus of establishing that provision of a particular form of consent was a requirement for the assessment to proceed, nor that Mr Walley refused to give such consent, such that Mr Walley practically refused to attend an assessment with Dr Grainger.

Ground 4: Was the implicit direction to sign the consent form lawful and reasonable?

95      By this ground, Mr Walley says that if, which is not admitted:

(1) the medical procedure proposed to be undertaken by Dr Grainger was directed by the Department to be undertaken by the appellant as a condition of his employment or a precondition to his continuing employment;

(2) the direction to undertake the procedure had implicit in it a direction to the appellant to sign a consent to the procedure; and

(3) the appellant deliberately failed, declined or refused to sign the Patient Information Record the direction or order was not and could not lawfully or reasonably have been given by the Department to the appellant that he sign:

(a) a consent to a medical procedure as a precondition to that medical procedure;

(b) the Patient Information and Attendance Record presented to him for signature on 1 August 2019 when it contained words so lacking in meaning as it did;

(c) a document consenting to unspecified and unquantified medical examinations and tests; and

(d) a document consenting to medical examinations and unspecified and unquantified tests which may be requested at any time by the examining doctor and/or referring party.

96      In view of the Board's conclusions on Grounds 1, 2 and 3, it is unnecessary to consider this ground of appeal.

Remedy: Should the decision be adjusted?

97      Having concluded that Mr Walley did not commit a breach of discipline or engage in misconduct, the Board is required to consider what relief it should grant. Section 80I(1) of the Act enables the Board to "adjust" the decision or finding. The meaning of "adjust" for the purposes of s 80I(1) was described by the Industrial Appeal Court in State Government Insurance Commission v Johnson (1997) 77 WAIG 2169:

…The power to "adjust" a decision for determination can only be a power to reform the decision in some way. In the case of a decision or determination by an employer to dismiss an employee with one month's pay in lieu of notice, the most obvious way to do that would be to reverse it. Whether there may be other ways of adjusting such a decision is perhaps an open question. It may be arguable that the power to adjust a decision of dismissal includes a power to adjust the period of notice. The issue does not arise in this case because no such adjustment was sought by the respondent. He made no claim to reform the decision in that way, that is by altering the period of notice…

98      It is uncontroversial that the power in s 80I does not allow for the award of compensation for unfair dismissal, as may be ordered under s 23A of the Act. However, s 80I(1) does enable the Board to order the re-employment of an appellant with consequential orders for the payment of past lost benefits: Martin v The Director General of Health in his incorporated capacity under s.7 of the Hospitals and Health Services Act 1927 (WA) [2012] WAIRC 00703; (2012) 92 WAIG 1620. That is the relief that Mr Walley seeks.

99      The Board has significant reservations about making an order for reinstatement. Mr Walley's evidence and the manner in which he gave it raised concerns about whether he had cooperated in good faith and with honesty with his employer in the management of his PTSD illness, his fitness for work and disciplinary processes. As indicated above, his explanation of the events at Dr Grainger's rooms on 1 August 2020 was implausible. It is open to infer that this account was contrived to suit Mr Walley's defence of the disciplinary process and deflect responsibility for his part in the termination of the assessment. Additionally, Mr Walley's response to questions put to him in cross-examination was frequently to simply deny having any recall of events. This included denying any recollection of being informed of disciplinary action taken against him, of the circumstances triggering extended periods of incapacity and absence from work and of his receipt of Workers' Compensation benefits. Those are not trivial matters, or matters of minute detail which one would expect the fading of memory over time to lead to uncertainty. They concern significant events in Mr Walley's career such that his denial of any recollection of them reflects on his credibility.

100   That Mr Walley was evasive in his answers to these questions has two consequences. First, it leads the Board to treat Mr Walley's assertion that he is ready, willing, and able to return to his pre-dismissal occupation and that he has been fit to do so since the date of dismissal with caution. Second, it either reflects or creates precarious ground for the re-establishment of the trust and confidence required for a continued employment relationship.

101   The issue regarding Mr Walley's capacity for work was not fully addressed by either party at hearing. The Board invited the parties to provide further written submissions following hearing as to what conclusions the Board could draw on the evidence before it about the inherent requirements of Mr Walley's position and the practicability of reinstatement.

102   The evidence before the Board does not enable the Board to reach a sound conclusion either as to what are the inherent requirements of Mr Walley's position nor as to whether Mr Walley is, or has been, fit to perform those requirements since the dismissal or at the date of the hearing.

103   Mr Walley's counsel submits that the medical evidence clearly indicated that Mr Walley was fit to perform his position. This may be overstating the effect of the medical evidence. At best, that might describe the recent medical evidence as at 29 May 2019, however it does not reflect the totality of the medical evidence.

104   Mr Walley's counsel also submits that, given Mr Walley's position was primarily an educative one, it is possible for reasonable adjustments to be made so as to avoid the triggering factors. He points out that the JDF does not specify the division between developing educative programs and delivering them. It is implicit in this submission that Mr Walley accepts that he is restricted in his ability to deliver programs. More to the point, even if delivering the program is a relatively small proportion of the overall duties, thus does not mean it is not an inherent requirement of the position.

105   Mr Walley also submits that it is clear from the evidence that Mr Walley is not always triggered by working around Yanchep National Park or seeing dead animals. Accordingly, while Mr Walley may require some accommodation to perform his position by way of reasonable adjustments, it is not onerous for the Department to provide such accommodation. To date, the Department has not fully explored whether it can make reasonable adjustments or implement Dr Terace's recommendations. Mr Walley was not seeking reinstatement to a different position.

106   The Department bears the onus of establishing reinstatement is impracticable: Harvey at [193]‑[194] citing Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch [2016] WAIRC 00236; (2016) 96 WAIG 408. The Department submits that the report of Dr Terace establishes that Mr Walley is not fit to fulfil the inherent requirements of his position. Accordingly, reinstatement is impracticable, and Mr Walley should not be afforded any relief.

107   The Department also relies upon Mr Walley's history of recurrences of his Workers' Compensation Claim for PTSD. For example, on about 21 March 2017 Mr Walley reported by email "I have found a dead decaying kangaroo near a pine tree & is impacting on my ability as per past workers condition". He then submitted a Recurrence of Disability Form on 23 March 2017 referencing the discovery of the kangaroo carcass. He remained certified totally unfit for work from 22 March 2017 until June 2018.

108   When Mr Walley was questioned about this incident in cross-examination, he skirted around any admission of the effect of the discovery of the kangaroo carcass on his medical condition. He implausibly insisted that he reported the incident only because it would somehow help a forensic scientist, and that he had a duty of care to report it. He stated that he came across dead kangaroos all the time. That is no doubt the case, but he was clearly underplaying the connection between his discovery on 21 March 2017 and his extensive period of unfitness immediately following it.

109   Also, on 8 September 2018, Mr Walley emailed his manager, Ms Julia Coggins, to notify her that he had, on 3 September 2018, seen a vehicle parked in the bush near Yanchep National Park Forest area. In his email he stated that this caused him to have flashbacks of a suicide victim in a car, and further that he had similar flashbacks several times when he saw cars parked at or near his place of work at Yanchep Forest. He stated "At present Iam fine though reporting is necessary and Iam seeking counseling".

110   Mr Walley then lodged medical certificates indicating total incapacity due to recurrence of his PTSD in the period from 21 September 2018 to 22 January 2019. It is not clear what if any event triggered the recurrence, but it occurred within a few weeks of Mr Walley reporting having flashbacks and within a few weeks of him being notified of a disciplinary investigation.

111   Mr Walley's GP Dr Price completed a WorkCover WA Progress Certificate of Capacity on 13 February 2019 in which he certified Mr Walley as having "full capacity for work from 13/02/19" but requiring further treatment and with a restriction on working in Yanchep National Park. He indicated a further review in two months. By 24 June 2019, Dr Price certified, by way of a WorkCover WA Progress Certificate of Capacity, that Mr Walley had full capacity for work from 24 June 2019, but he still stipulated to "Avoid Yanchep national park". Within four weeks of that date, on 29 July 2019, Dr Price's certification had again changed to "no capacity for any work from 29/07/2019 to 29/09/2019". Then on 22 August 2019, he apparently backflipped, issuing a WorkCover WA Progress Certificate of Capacity stating Mr Walley had full capacity for work from 29 July 2019 but requiring further treatment (and to "Avoid Yanchep forest area") with review in two months.

112   We cannot say that it is clear from the medical evidence and Mr Walley's history of recurrences that he is or was fit to perform the inherent requirements of his position.

113   If this had been the only reservation, the Board would have been inclined to order Mr Walley's reinstatement. If, as the Department submitted, Mr Walley's work restrictions could not reasonably have been accommodated, then it would be open to the Department to commence a process with a view to medical retirement.

114   However, because of the Board's reservations about Mr Walley's bona fides or willingness to engage frankly, candidly and cooperatively with the Department, it is foreseeable that such a course will likely lead to further dispute and place a significant and onerous burden on the Department in the management of Mr Walley's return to work. This is particularly so in circumstances where:

(a) Mr Walley had been issued a written reprimand in relation to unrelated allegations of breach of discipline on 20 December 2018; and

(b) a separate disciplinary process concerning further allegations was commenced on 14 September 2018 but was not pursued because Mr Walley then commenced a period of extended leave for recurrence of his PTSD, and was ultimately discontinued upon the employment ending.

115   Having regard to the interests of the persons immediately concerned in this matter, to make an order for reinstatement would not be to exercise the Board's power in accordance with equity, good conscience and the substantial merits of the case: Harvey at [192].

116   In Thavarasan at [73], the Board, chaired by Commissioner Kenner as he was then, expressed the view that it was open to the Board to adjust a dismissal decision by adjusting the period of notice, by way of payment in lieu of notice. In this case, the Board considers the appropriate remedy is to adjust the dismissal decision by quashing the finding of breach of discipline and adjusting the period of notice from 5 weeks to 13 weeks with the effect that Mr Walley should be paid an additional 8 weeks' salary and benefits in lieu of notice. In the Board's view, this period is consistent with the time that it may have taken for any necessary further investigation of return to work options, and a fair medical retirement process to have occurred.

117   The Board will make the following orders:

(a) the findings of breach of discipline are quashed; and

(b) the dismissal decision is adjusted by adjusting the period of notice from 5 weeks to 13 weeks.