Federal Court of Australia

Gordon v St Vincent’s Hospital Sydney Limited [2023] FCA 1188

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the costs of the respondent to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant, Ms Rosemary Gordon, is a registered nurse (RN) whose employment was terminated by St Vincent’s Hospital Sydney Limited (St Vincent’s) on 13 July 2021.

2    On 24 June 2021, the applicant made a complaint to the Australian Human Rights Commission alleging unlawful discrimination on the ground of disability in employment, which was terminated on 22 July 2021. On 18 August 2021, the applicant commenced proceedings in this Court.

3    In summary, the applicant alleges that St Vincent’s failed to provide her with reasonable adjustments to carry out the particular work for which she was employed, which led to discrimination in the terms or conditions of her employment and the termination of her employment because of, or for reasons which included, that she had a disability arising from three physical conditions: contact dermatitis, a left knee injury and a right arm/humerus injury. The applicant contends that this conduct contravened ss 15(2)(a) and 15(2)(c) of the Disability Discrimination Act 1992 (Cth) (DD Act).

4    For the reasons below, the application is dismissed.

Legal principles

5    Before addressing the evidence in any detail, it is appropriate to first address the legal principles relevant to the applicant’s claim.

6    Section 15(2) of the DD Act relevantly provides that it is unlawful for an employer to discriminate against an employee on the ground of the employee’s disability, in the terms or conditions of employment that the employer affords the employee: s 15(2)(a); or by dismissing the employee: s 15(2)(c). Under section 5(2) of the DD Act, “discriminates” will include, relevantly, where an employer “does not make, or proposes not to make” reasonable adjustments for an employee: s 5(2)(a); and the failure to make the reasonable adjustments has, or would have, the effect that the employee was treated less favourably than a person without the disability would be treated in circumstances that are not materially different: s 5(2)(b).

7    There is no issue that the applicant suffers from a disability within the meaning of s 4 of the DD Act.

8    Relevantly, in order to succeed in her claim in unlawful direct discrimination, the applicant must establish that St Vincent’s’ failed to make the reasonable adjustments, which has, or would have, the effect that the applicant was, because of her disability, treated less favourably than a person without the disability (the comparator) would be treated in circumstances that are not materially different. This requires identifying and determining:

(1)    the alleged reasonable adjustments that St Vincent’s failed to make and the alleged effect of failing to make the reasonable adjustments;

(2)    the alleged circumstances attributed to an actual comparator or hypothetical comparator in the same or not materially different circumstances and the alleged less favourable treatment of Ms Gordon relative to that comparator; and

(3)    if less favourable treatment is established, whether the less favourable treatment of Ms Gordon relative to the comparator was because of her disability.

9    As addressed below, there is also a preliminary question of whether Ms Gordon has established the term or condition of her employment the basis of her claim under s 15(2)(a) of the DD Act.

Reasonable adjustments

10    It is appropriate to first consider the concept of a reasonable adjustment.

11    That is defined in the DD Act in the following way: “an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person”: s 4(1).

12    Unjustifiable hardship is then defined as having the meaning in s 11 of the DD Act, which is as follows:

11 Unjustifiable hardship

(1)    For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:

(a) the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;

(b) the effect of the disability of any person concerned;

(c) the financial circumstances, and the estimated amount of expenditure required to be made, by the first person;

(d) the availability of financial and other assistance to the first person;

(e) any relevant action plans given to the Commission under section 64.

Example: One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community.

(2)     For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.

13    As to the meaning of reasonable adjustments, in Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 (Watts), Mortimer J, as her Honour then was, observed at [22]-[24]:

[22]    Thus, s 4 has effect as a deeming provision. The word “adjustment” is left undefined by the statute and is to be given its ordinary meaning as “an alteration or modification”: Oxford English Dictionary (online edition). However, unlike other aspects of the DDA (see, for example, s 6) the statute does not leave it to the discriminator in the first instance and the Court in the second instance to determine whether an adjustment is “reasonable”. Although the word “reasonable” is used, it has no qualitative character in its context. It is simply part of a term defined by legislative declaration of what is outside the term. All that Parliament declares to be outside the term is a modification or alteration which imposes unjustifiable hardship on a person, taking into account the considerations applicable to identifying hardship of that nature, which are set out in s 11 of the DDA.

[23]    To what does the adjustment relate? By s 5(2), it is made “for” the person with a disability. It is not made “to” the position the person occupies. It is not made “to” the equipment a person uses. In the context of discrimination at work in Div 1 of Part 2 of the DDA, it is an alteration or modification “for” the person, which operates on the person’s ability to do the work she or he is employed or appointed to do. The adjustment is to be enabling or facultative. There is, in my opinion, no reason in the text, context or purpose of s 5(2), read with s 4 and within the DDA as a whole, to construe the word “adjustment” in a way which might arbitrarily limit the kinds of modifications or alterations required to enable a disabled worker to perform his or her work. Technology changes and advances at an increasing pace and disabled people can be the beneficiaries of such changes and advances. The technological advance which enables Professor Stephen Hawking to compose text and communicate orally through cheek movements detected by an infrared switch mounted on his spectacles is but one well-publicised example of an “adjustment” that, a decade or two ago, may have been little more than a theory.

[24]    Similarly, the range of disabilities covered by the DDA, evident from the definition of “disability” in s 4 (some with clear physical manifestations and some without), means that the range of modifications for a particular person may be very specific to that person. Two individuals may have the same “disability” but how that “disability” manifests itself, and the impact it has on an individual’s capacity to work or access services or education, may vary widely. Breadth and flexibility in the meaning of the word “adjustment” is to be expected in a statute which recognises and seeks to protect (within the legislative choices made by Parliament) the dignity and rights of disabled people as individuals. Where the disability is psychological, “adjustment” must be construed in a way which will ensure the same level of protection under the DDA to those with this kind of disability as to those with any other disability. Ultimately then, so long as it is a modification or alteration “for” a person with a disability, the DDA says nothing about how specific or non-specific the adjustment must be. An adjustment “for” a person may involve only technology, or it may involve only human interactions, or something in between. An adjustment “for” a person may change over time, and may need to be flexible and adaptable. Much will depend on the particular disability and the particular individual, together with the circumstances in which the adjustment must operate. In order for s 5(2) of the DDA to provide, insofar as it is intended to, substantive equality for all individuals with disabilities, where those disabilities have different impacts on different people, it is important that there be no rigid categorisation or stereotyping of a concept such as an “adjustment”.

14    Relevantly for this case, her Honour went on at [25] and [27]:

[25]    There is one relevant qualification to the breadth of what can constitute an “adjustment” for the purposes of the DDA, as Australia Post submitted. Even taking into account the potential need for flexibility and adaptations, the adjustment must be sufficiently identifiable so as to enable the alleged discriminator (and the Court if need be) to determine whether making the adjustment will impose unjustifiable hardship on the discriminator. Otherwise, the exception in s 21B could be frustrated. For the reasons I express below at [45], this issue also arises under s 21A(1) in respect of the inherent requirements exception. The level of specificity required will be a factual question in each case.

….

[27]    The somewhat absolute nature of the definition of reasonable adjustment has tangible consequences for potential discriminators. There is no room in the operation of s 5(2) for a discriminator, or a Court, to assess conduct, or modifications, by reference to notions of reasonableness. The statute removes that capacity. Unless a modification involves unjustifiable hardship, it will by operation of s 4 be a reasonable adjustment and the discriminator must make it “for” the person, to avoid the consequences s 5(2) (read with other provisions in the DDA) might otherwise impose. The legislative choice about what is “unreasonable” for the purposes of this scheme is expressed in the inherent requirements exception, and in the concept of unjustifiable hardship. …One consequence is that what constitutes “hardship” and the circumstances in which it might be “unjustifiable” may be broader than if the statute used reasonableness as a criterion of liability.

15    Based on Watts and subsequent cases, it is clear that an adjustment is an alteration ‘for’ the person, “which operates on the person’s ability to do the work she or he is employed or appointed to do” but does not require an adjustment to the particular work she was required to perform or the position that the person occupies: Watts at [23]-[24]; Munday v Commonwealth of Australia (No 2) [2014] FCA 1123; (2014) 226 FCR 199 (Munday) at [146]-[148]. The adjustments are intended to be enabling or facultative to assist the employee perform the particular work rather than an end in themselves: Watts at [23]; Munday at [147]. More than one adjustment may be necessary, and more than one option may be available: Watts at [26]. It may involve the adjustments being implemented and being effective over a period of time to allow time for an employee to adapt, and gradually return to full capacity: Watts at [57].

16    The adjustment must be sufficiently identifiable as to enable the employer and, if required, the Court to determine whether making the adjustment will impose unjustifiable hardship on it, within the meaning of the DD Act: Watts at [25] and see State of New South Wales (Department of Justice - Corrective Services) v Huntley [2017] FCA 581 at [149]; Winters v Fogarty [2017] FCA 51 at [65]-[67]. The material facts comprising the reasonable adjustments must be pleaded and particularised: Izzo v State of Victoria (Department of Education and Training) [2020] FCA 770 (Izzo) at [51]; Varasdi v State of Victoria [2018] FCA 1655 at [11]-[13], [19].

Comparator

17    Section 5(2)(b) requires that the applicant is treated less favourably compared to an actual or hypothetical comparator without her disability in the same or not materially different circumstances. The applicant has not pleaded an actual comparator, and accordingly, must prove the unlawful discrimination against a hypothetical comparator: Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 (Purvis) at [113]-[114] and [223]-[228]; Forbes v Australian Federal Police [2004] FCAFC 95 (Forbes) at [56]-[57]. It is therefore necessary to construct a hypothetical comparator to determine whether there has been less favourable treatment of the applicant. In making the comparison, the circumstances that are the same or not materially different include all of the objective features which surround the treatment of the disabled person by the discriminator: Purvis at [14], [224]; Forbes at [56]-[57]; Zhang v University of Tasmania [2009] FCAFC 35; (2009) 174 FCR 366 at [66]; see also Chircop v Technical and Further Education Commission [2022] FCA 1015 (Chircop) at [147]; Wilson v Britten-Jones (No 2) [2020] FCA 1290 at [118].

18    I accept the respondent’s submission that the issues to be determined in this application are also to be considered in the context of the other legal obligations imposed on St Vincent’s by, inter alia, the relevant statutory scheme regulating work health and safety: see the Work Health and Safety Act 2011 (NSW). I note in that context that St Vincent’s has a duty to ensure, so far as is reasonably practicable, the health and safety of the applicant and her colleagues, and the applicant has a duty to take reasonable care of her own health and safety and that of others in the workplace.

19    As Gleeson CJ observed in Purvis at [7], it is important to maintain coherence in the law by ensuring that the obligations arising from anti-discrimination legislation are construed having regard to the functions, powers and responsibilities of the alleged discriminator: and see Sievwright v State of Victoria [2012] FCA 118 at [207]; Walker v State of Victoria [2011] FCA 258; (2011) 279 ALR 284 at [55]. The respondent’s conduct can only be evaluated fairly in light of understanding those functions, powers and responsibilities: Purvis at [7].

Causation

20    The applicant must also establish a causal connection between her disabilities and the alleged unlawful discrimination: Munday at [59]; Chircop at [139]. The disability must be a basis or reason for the conduct of the discriminator: Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247 at [23].

The exceptions

21    The respondent pleads both s 21A and s 21B of the DD Act, which provide exceptions to the prohibitions in s 15(2)(a) and (c).

22    Section 21A is as follows:

21A Exception—inherent requirements

Inherent requirements

(1)  This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(a)  the discrimination relates to particular work (including promotion or transfer to particular work); and

(b)  because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.

(2)  For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:

(a)  the aggrieved person’s past training, qualifications and experience relevant to the particular work;

(b)  if the aggrieved person already works for the discriminator—the aggrieved person’s performance in working for the discriminator;

(c)  any other factor that it is reasonable to take into account.

(3)  For the purposes of this section, the aggrieved person works for another person if:

(a)  the other person employs the aggrieved person; or

(b)  the other person engages the aggrieved person as a commission agent; or

(c)  the aggrieved person works for the other person as a contract worker; or

(d)  the other person and the aggrieved person are members of a partnership; or

(e)  both of the following apply:

(i)  the other person is an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation;

(ii)  the aggrieved person is a member of that profession, carrying on that trade or engaged in that occupation.

…

23    Relevantly, the scope of this provision is limited to claims against s 15(2)(a) and (c) of the DD Act, and not s 15(2)(b) and (d), other than discrimination in determining who should be offered promotion or transfer. I return to the topic of “particular work” referred to in s 21A below.

24    Section 21B is as follows:

21B Exception—unjustifiable hardship

This Division does not render it unlawful for a person (the discriminator) to discriminate against another person on the ground of a disability of the other person if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.

25    In Watts, Mortimer J said of these provisions at [50]:

The interaction between the prohibitions against unlawful discrimination (on either of the bases within s 5) and the two exceptions of inherent requirements and unjustifiable hardship can be summarised in the following way. In all circumstances in which Div 1 of Part 2 would otherwise make discrimination at work unlawful, the “discriminator” (usually an employer but not necessarily) will have available the exception of unjustifiable hardship, but will bear the burden of proving the exception applies. In circumstances which do not involve the denial of a benefit, the limiting of access to opportunities for promotion and the like, or the imposition of any other detriment against an incumbent worker, the “discriminator” (usually an employer but not necessarily) will have available the exception of inherent requirements, but will bear the burden of proving its existence. The inherent requirements exception will apply to selections for promotion or transfer more generally. That is the purpose of the words in brackets in s 21A(1)(a), which are intended to cover the same field as the words at the end of s 21A(4). Broadly, in my opinion, the inherent requirements exception is intended to preserve for employers the entitlement to appoint, retain, promote or transfer employees who can fulfil core aspects of their employment contract.

26    That is, in certain circumstances where Div 1 of the DD Act would otherwise make discrimination at work unlawful, the “discriminator” will have available the exceptions of unjustifiable hardship and inherent requirements, but will bear the burden of proving the exception applies: Watts at [50]; and see s 11 in respect to unjustifiable hardship, extracted at [12] above.

27    As referred to above at [12] and [14] (citing Watts), given the onus is on the respondent to establish unjustifiable hardship, the onus is on the applicant to first establish that any adjustment(s) were identified by her with sufficient particularity to enable s 21B to have application. I return to this topic below at [186]-[201].

28    I note that in relation to s 21A, the respondent submitted that the onus was on the applicant to exclude the application of the provision, though it pointed to what it said was divergent opinion on the matter. It was submitted that the observations of Mortimer J in the passage recited above are obiter because the inherent requirements defence was not available in that case. It submitted that in Huntley, Perry J at [177] and [186], proceeded on the basis of the obiter comments in Watts. However, although that may be so, the statements in Huntley are not obiter. Moreover, the respondent submitted that the statement of Charlesworth J in Berry v State of South Australia [2017] FCA 702 (Berry) at [27], that s 21A is not a defence, but a defining provision as to what amounts to discrimination, is to the contrary effect.

29    That submission places too much work on the observation in Berry. The respondent accepted that Charlesworth J did not use the language of onus of proof. In Berry, there appears to have been no discussion or consideration of the issue of who bore the onus in relation to s 21A. Indeed, Charlesworth J also makes reference at [26] to the fact that “circumstances would not constitute unlawful discrimination if the requirements of s 21A of the DD Act are satisfied”. Given the terms of s 21A, that statement could only be referring to a discriminator establishing the requirements. That the DD Act does not refer to onus in s 21A is not decisive. I note also s 21B is in the same terms, yet s 11(2) makes clear the onus is on the respondent. Considering the text of s 21A in context, given its purpose, I am satisfied that the onus is as Mortimer J opined. That said, this only serves to highlight the importance of the obligation on an applicant to identify the reasonable adjustments with sufficient particularity to enable a respondent to determine whether s 21A applies, and if so, to enable it to lead necessary evidence to establish the requirements.

Evidence

30    A significant body of the evidence compromised contemporaneous business records and correspondence. In addition, the documentary evidence included medical records and reports. Those documents were admitted without objection.

31    The applicant read affidavits (subject to objections) of the following witnesses:

(a)    Ms Rosemary Gordon (affidavits affirmed 2 June 2022, 31 October 2022, 24 March 2023);

(b)    Dr Christopher Canaris (affidavit dated 28 October 2022);

(c)    Ms Joanne Purdue (affidavits affirmed 1 June 2022 and 31 October 2022); and

32    Each of those witnesses was cross-examined.

33    The applicant also read the affidavit of Ms Nicola Maher Boyle, affirmed 2 June 2022. A number of documents were also tendered, including a bundle of documents that had been produced by St Vincent’s in response to a subpoena.

34    The respondent read affidavits (subject to objections) of the following witnesses:

(a)    Mr Rio Pun (affidavit affirmed 21 July 2022);

(b)    Dr Andrew Keller (affidavit affirmed 22 August 2022);

(c)    Mr Kenneth Peter Denton Webb (affidavit affirmed 21 June 2022);

(d)    Ms Cassandra Amy Brown (affidavit affirmed 15 July 2022); and

(e)    Ms Ji-Su Paik (affidavit affirmed 25 August 2022).

35    Each of these witnesses was cross-examined. Records of St Vincent’s were exhibited to various of these affidavits.

36    Business records of St Vincent’s formed a significant body of the evidence. The records contain, inter alia, a number of file notes recording discussions between Ms Gordon and various employees of St Vincent’s. I accept the respondent’s submission that there is no reason to doubt the reliability of the contents of the records and that in relation to the file notes of discussions, they are generally supported by contemporaneous emails or letters which followed the conversations.

37    The applicant addressed in her reply affidavit limited aspects of the file notes in respect to conversations she had with Ms Dyer, Mr Yates, Ms Smith and Ms Ode. Although the applicant takes issue with some limited aspects, in large part, that evidence was directed to explanations for why she said what she did, and her understanding of what was occurring.

38    I will return to my assessment of the witnesses below.

39    It assists to first provide a chronology of events, which in large part is taken from the business records and is uncontentious.

Chronology of events

40    St Vincent’s is a primary and tertiary referral hospital and research facility in New South Wales.

41    In or around May 1995, St Vincent’s advertised a vacancy for the position of RN working in the renal/urology unit on night shift. Ms Gordon applied and interviewed for that role, then commenced employment as a RN on the renal/urology unit at St Vincent’s on 22 June 1995.

42    Ms Gordon began caring for vascular surgery patients in or about February 1996. She subsequently transferred to: the haematology unit in 1998; a different physical building in or about 2001; the Xavier 9 South Ward caring for immunology/drug and alcohol patients in 2010 or 2011; and the immunology/drug and alcohol unit in Xavier 8 North Ward (X8N) in 2015.

43    Ms Gordon gave evidence that in or around 2015, she was told during a meeting with Geoff Yates (X8N Nurse Unit Manager, St Vincent’s) and Anneliese Oed (Recovery Coordinator, St Vincent’s) that she could use a product called Spirigel in the staff bathroom. Ms Gordon also gave evidence that sometime later she asked Mr Yates whether she could use Spirigel all the time in lieu of Microshield hand wash and alcoholic hand rub, using plastic dispensers she had purchased. She stated that Mr Yates did not accept this.

44    On 13 March 2015, Ms Gordon lodged a workers’ compensation claim in relation to an aggravation of her bilateral hand dermatitis. The date of injury was reported as 13 March 2015. Ms Gordon saw Dr Edmund Lobel (Occupational Dermatologist) in the week commencing 5 May 2015. Dr Lobel then wrote to Dr Lucinda Berglund on 20 May 2015, confirming that Ms Gordon’s nursing work was a substantial contributing factor of her hand dermatitis (although not the total cause) via cumulative irritant contact dermatitis and allergic contact due to Microshield Moisturiser. Ms Gordon continued her pre-injury duties, and on 26 June 2015 the workers’ compensation claim was closed.

45    Ms Gordon gave evidence that, in 2016, she noticed that the floor surface on X8N “had become dull and had a stickiness to it”. She stated that sometimes when she walked the toe of her shoe became stuck on the floor surface, which caused her to jar her knee and trip slightly.

46    On 30 November 2016, Ms Gordon lodged a workers’ compensation claim in relation to an injury of her left knee. The date of injury was reported as 8 October 2016. Ms Gordon gave evidence that, around this time, she lodged an incident report and discussed the floor surface with various St Vincent’s staff members, including Recovery Coordinators. On 28 April 2017, Professor Warwick Bruce (Clinical Professor) wrote to Dr Shanthini Ilanko (General Practitioner), opining that Ms Gordon had osteoarthritis of the medial compartment of her left knee. He also noted that the floor at work was “slightly sticky” and “catching her foot”. Ms Gordon returned to her pre-injury duties and, according to the file note taken by Patricia Aran De Jesus (Recovery Team, Work Health and Safety, St Vincent’s), on 2 May 2017 Ms Gordon said that she was happy for the claim to be closed. The claim was confirmed to be closed on 5 June 2017.

47    On 17 July 2017, Ms Gordon fell on the street after leaving work and sustained a fracture to her humerus (right upper arm) and commenced a period of paid sick leave. On 3 and 9 November 2017, Mr Yates and Rochelle Smith (Recovery Coordinator, St Vincent’s) emailed Ms Gordon attaching fitness to work documentation and requesting that she arrange a medical review to obtain further information regarding her prognosis and ability to return to her substantive role. Ms Gordon replied to Mr Yates on 6 November 2017 and, inter alia, asked whether an administrative position was available for her. At that time she was certified unfit for work up to and including 24 November 2017.

48    On 12 November 2017, Ms Gordon emailed Ms Smith, stating that she did not think the Physical and Sensory Demands listed on the Job Demands checklist had been rated accurately. She gave the example that pushing/pulling was “a frequent activity i.e. showering/toileting of patients on commodes, bed moves, moving chairs/lockers out of the way, moving patients’ luggage out of the way”.

49    On 22 November 2017, Ms Gordon telephoned Ms Smith. Ms Smith’s file note of that conversation records that Ms Gordon stated that: she was unclear why she could not be provided with administrative type duties; given her role is very physical, she did not want to return to work and worsen her condition; the job demands checklist under-estimated the physical nature of her role; and while she did not want to be injured, the break had been nice. During cross-examination, Ms Gordon gave evidence that she did not recall saying words to that effect.

50    On 25 November 2017, Dr Steven Tongson (General Practitioner) wrote, in a medical certificate, that Ms Gordon was suffering from an injury and would be unfit for work from 25 November 2017 to 25 December 2017 inclusive.

51    On 28 November 2017, the medical certificate of Dr B Jang (Orthopaedic Registrar) was provided to St Vincent’s, advising that Ms Gordon was able to return to light duties as of 3 January 2018 and full duties as of March or April 2018 at the earliest.

52    A medical certificate from Dr Tongson, dated 28 December 2017, stated that Ms Gordon would be unfit for her usual duties from 26 December 2017 to 26 January 2018 inclusive, but was fit for restricted administrative duty.

53    Dr Ilanko provided a medical certificate on 25 January 2018, which stated that Ms Gordon would be fit to work suitable administrative duties between 27 January 2018 and 27 February 2018.

54    On 5 February 2018, Employee Support Plan 1 was finalised for Ms Gordon and she commenced work at St Vincent’s Transport Department, performing administrative duties. The document covered the period 27 January 2018 to 27 February 2018, was signed by Ms Gordon and stated that “[s]uitable duties will be offered for a limited period only, and cannot be offered indefinitely”.

55    On 27 February 2018, Dr Tongson wrote, in a medical certificate, that Ms Gordon would be unfit for usual work from 27 February 2018 to 27 March 2018, but was fit for restricted administrative duties.

56    On 28 February 2018, Employee Support Plan 2, covering 27 February 2018 to 27 March 2018, was finalised for Ms Gordon.

57    On 26 March 2018, Mr Yates emailed Ms Gordon, requesting the following:

…

As you are seeing the fracture clinic tomorrow, regarding your injury and as discussed today on the phone together, we need some documentation from them that can clarify;

1. What actions are currently being taken to help resolve/improve your injury (i.e physio/OT etc).

2. An estimate of how long you may be unable to perform your duty as an RN pre injury.

3. What (if any) restrictions you currently have in terms of lifting/pulling/moving etc. This may require another thorough medical assessment which you will need to organise as soon as possible.

We need to continue to work together to optimise your return to work time frame and if there is anything I can do to assist please don’t hesitate to contact me.

…

58    On 27 March 2018, Dr A Chang wrote a medical certificate, stating that Ms Gordon was fit to return to usual work activities “as tolerated”. On the same date, Employee Support Plan 3 was finalised for Ms Gordon, covering the period 27 March to 4 May 2018.

59    On 5 April 2018, Mr Yates spoke to Ms Gordon over the phone. His file note records that Ms Gordon did not appear motivated to return to work in the ward.

60    On 6 April 2018, Kirsty McLeod (Medical Stream Manager, St Vincent’s), Mr Yates and Ms Smith met with Ms Gordon. The file note recorded by Ms Smith states that Ms Gordon: gave consent to liaise with her doctor to clarify whether she had any specific restrictions on her return to the ward; felt unsure about returning and was hesitant about her ability to lift, push, pull and transfer patients; advised that she may still be recovering for another 12 months; and appeared reluctant to return. In cross-examination, Ms Gordon denied that the file note was an accurate record. She denied saying words to the effect that she felt unsure about returning to the ward. However, she agreed that at the time she had reasons for not wanting to return to X8N. Ms Gordon gave evidence that she was reluctant to go back to the ward if she was expected to perform her full range of duties because she “knew that nothing had been done to fix the floor surface” and “because of the heavy nature of the work”.

61    On 16 April 2018, Ms Oed recorded in her file note of a telephone call with Ms Gordon that Ms Gordon had stated that: her treating practitioner refused to complete the questionnaire provided by St Vincent’s because it related to workers’ compensation; her knee had been “playing up again”, with the injury being due to the sticky floor on the ward; she bought shoes with a rocker sole (MBT shoes) as she could not walk on the sticky floor, but linked two further falls to those shoes; she felt she was “not able to return to working on the ward due to her shoulder, knee and dermatitis”; and she thought St Vincent’s would find another job for her within the hospital. Ms Gordon stated, in cross-examination, that she did not recall this telephone call. The file note also records that Ms Oed and Ms Gordon discussed that Ms Gordon had a responsibility to check the online job board and apply for roles.

62    On 26 April 2018, Ms Gordon spoke to Ms Smith. Ms Smith’s file note of that conversation records that Ms Gordon stated that: she felt that she was not able to return to working on the ward due to her shoulder, knee and dermatitis; she thought that St Vincent’s would find another job for her within the hospital; and she could not ever return to the ward due to her knee and dermatitis. In cross-examination, Ms Gordon did not recall these details of the conversation, but did not dispute them. The file note also records that Ms Gordon was told that St Vincent’s would “need something in writing from her GP” regarding her knee and dermatitis.

63    On 27 April 2018, Ms Gordon met with Ms Oed. Ms Oed’s file note of that meeting records that Ms Gordon stated that: she did not think she could go back to X8N because, inter alia, she was concerned she would not be able to do the frequent hand washing required due to her dermatitis; she was concerned her dermatitis would flare up if she returned to the ward; she had ongoing issues with her knee and was concerned a return to the ward would cause knee issues; she wanted another role; and she would like to work in mental health as it involved less hand washing. The file note also records that Ms Gordon was: advised of the cessation of suitable duties in the Transport Department effective 4 May 2018, on the basis that suitable duties had been supported for three months for a non-work related condition to assist a return to her pre-injury role; and asked to provide further medical advice from her treating doctors.

64    A letter from Ms Oed to Ms Gordon of the same date reiterates this information, stating that: “[t]he current certificate states that you are fit to undertake your pre-injury duties as tolerated and in order to provide you with safe work we need to understand the medical advice in relation to ‘as tolerated’”; and “you have advised myself on 16 April that you did not believe you were going to be able to return to your substantive position. If this is the case we need that confirmed by medical opinion”.

65    During cross-examination, Ms Gordon accepted that she said during the meeting on 27 April 2018 that she: did not think it would be wise of her or a good idea to go back to X8N; had concerns about frequent hand-washing and use of alcohol-based hand rub if she did return; and was concerned that returning to work would aggravate her knee. Ms Gordon also gave affidavit evidence that: she did not think returning to the ward would be a good idea because of problems with the floor and with her arm; and Ms Oed responded with words to the effect that Ms Gordon should take her accumulated leave and apply for positions in some of the outpatient drug and alcohol treatment units where the duties would be less physically demanding. Ms Gordon further detailed in the letter she sent to Ms Thornton on 7 September 2020 (see [117] below) that she did not think returning to X8N was a good idea due to the floor surface and because WHS did not want her to wear the MBT shoes any longer, meaning she would have to continue going to work and damaging her knees.

66    On 29 April 2018, Ms Gordon applied for a position in St Vincent’s casual pool.

67    On 2 May 2018, Dr Ilanko stated in a medical certificate that Ms Gordon was “suffering from chronic dermatitis”.

68    On 4 May 2018, Ms Gordon’s administrative duties in the St Vincent’s Transport Department ceased.

69    On 10 May 2018, Ms Smith telephoned Ms Gordon. Ms Smith’s file note of that conversation records that she told Ms Gordon that St Vincent’s did not have sufficient evidence to make a decision regarding her ability to return to work for the dermatitis, shoulder or knee condition. It also records that she explained in further detail that, in circumstances where Ms Gordon was reporting three conditions preventing her return to work: the medical certificate of 2 May 2018 regarding dermatitis did not comment on fitness for work; the medical certificate regarding her fractured humerus stated that she could return to work “as tolerated” (and no clarification was provided in response to the request made by St Vincent’s); and St Vincent’s did not have anything in relation to her knee. Further, it records that Ms Smith explained to Ms Gordon that there was not currently appropriate work available, and where she was off work because of non-work related conditions, she could request personal leave given she could not fulfil her normal role requirements. Ms Smith followed this conversation up by email, attaching the updated questionnaire requiring completion by her doctor by 18 May 2018. Ms Gordon gave evidence in cross-examination that she did not recall this telephone conversation.

70    On 3 June 2018, Dr Ilanko provided the requested medical information to St Vincent’s. Dr Ilanko’s responses were as follows:

1.    Is Ms. Gordon currently fit to undertake the inherent requirements of her position as a Registered Nurse as outlined in the attached Position Description and Job Demands Checklist.

2.    The latest medical certificate states that Ms. Gordon can return to her pre-injury role “as tolerated”. Are there any specific work restrictions or workplace modifications required on return to the substantive role to assist a graded return to clinical work? E.g. lifting/pulling/pushing, transferring patients etc.

3.    If restrictions / modifications apply on return to the substantive position, please outline the period of time these restrictions will be required?

4.    Please outline the prognosis: When do you anticipate that Ms. Gordon will receive a full medical clearance for a return to her substantive role, including a timeframe for full medical clearance?

5.    Any additional comments or recommendations relevant to ensuring St Vincent’s Hospital are able to meet their obligations in providing a safe environment for our staff and patients.

71    On 4 June 2018, Ms Gordon applied for a RN position at Caritas Mental Health Unit at St Vincent’s (Caritas). On Wednesday 13 June 2018, Ms Gordon interviewed for the role.

72    On 2 July 2018, Ms Gordon applied for a RN position in the methadone dosing clinic, Rankin Court Treatment Centre (RCTC), at St Vincent’s. On 5 July 2018, Ms Gordon was advised by email that she was unsuccessful for the position.

73    On 19 July 2018, Associate Professor Anthony Schembri (CEO, St Vincent’s) signed a Matter for Determination document sponsored by Jacqui Clark (Director, Human Resources, St Vincent’s) approving the show cause process to terminate Ms Gordon’s employment due to her inability to undertake the inherent requirements of her position. On 13 August 2018, Ms Clark wrote to Ms Gordon, providing her an opportunity to indicate in writing why a recommendation should not be made to the CEO that her employment be terminated on the grounds of her inability to meet the inherent requirements of her role (First Show Cause Notice). On 22 August 2018, the Australian Nursing and Midwifery Federation – NSW Branch (ANMF), wrote to Ms Clark, responding to the First Show Cause Notice. That letter stated the ANMF’s view that “the appropriate course of action in such circumstances is for the facility to engage a rehabilitation provider and examine what workplace modifications can be undertaken to enable Ms Gordon to safely return to work in her original position”. It also requested that Ms Gordon be given priority consideration, noting that the “Recruitment and Selection of Staff to the NSW Health Service” and “Injury Management and Return to Work” policy directives did not require that injured workers take part in a competitive recruitment process.

74    On 28 August 2018, Ms Gordon applied for a RN position at Caritas.

75    In September 2018, Ms Smith contacted David Hedger (Alcohol & Drug Service Manager, St Vincent’s) about Ms Gordon meeting with him and Julie Dyer (Nurse Unit Manager, RCTC) about a RN position at RCTC. In a following email, after being informed of Ms Gordon’s medical circumstances, Ms Dyer stated that “[s]uitability is very important given our client group and the specialised nature of the nursing, but it is a great start that Rosemary has already identified Rankin as a place of interest”. On 26 September 2018, Ms Gordon was interviewed for the position by Ms Dyer and Thomas Jennings (Senior RN, RCTC). Ms Dyer’s file note records that Ms Gordon was not considered suitable for a RN position because, inter alia, she: did not have a reason for why she wanted to work at RCTC and generally lacked enthusiasm for the role and working in drug and alcohol; referred to drug and alcohol clients as “them” and “alcoholics” in not a kind and caring manner; stated that she would walk away if there was an incident and try not to be involved, or “just give them something”; and, when given a scenario about a client withdrawing from opiates who became agitated and irritated, said she would “just give them something” and give them a cup of tea.

76    On 29 October 2018, the ANMF wrote to St Vincent’s. Their letter stated that Ms Gordon was an excess staff member who had been given “priority assessment” and accordingly should be assessed for suitability for positions before other applicants, pursuant to a NSW Health policy titled “Managing Excess Staff of the NSW Health Service”.

77    On 6 November 2018, Ms Gordon applied for a RN position at Caritas.

78    On 9 November 2018, Malcolm McClelland (Acting Director, Human Resources, St Vincent’s) wrote to Ms Gordon, setting out the reasons she was found to be unsuitable for the RN role at RCTC: see [75] above.

79    On 13 November 2018, Mr McClelland wrote to the ANMF advising that St Vincent’s had not declared Ms Gordon an excess staff member pursuant to the “Managing Excess Staff of the NSW Health Service” policy, meaning the priority assessment process did not apply. The letter also advised that St Vincent’s had arranged for Ms Gordon to attend an appointment with an Occupational Physician on 5 December 2018, to ascertain her fitness for work.

80    On 5 December 2018, Ms Gordon was examined by Dr Sam Perla (Occupational Physician). On the same day he provided an Independent Medical Examination Report: stating that Ms Gordon was not fit to undertake the inherent requirements of her substantive position as a RN on X8N; noting that the Job Description indicated there was frequent hand-washing, frequent use of gloves, frequent walking, standing and frequent hand and arm movements; suggesting that given her clinical presentation, the position was not appropriate in relation to her dermatitis, the restricted range of movement of her shoulder and her left knee issue; and opining that if she was to return to X8N, it could exacerbate her issues, especially with frequent hand washing and repetitive arm movements.

81    Dr Perla also opined in the report that Ms Gordon was fit for the position of RN at Caritas, working full time with no restrictions. He stated that if Ms Gordon was working on X8N (described as “the usual type of ward work”) she would require the following restrictions: to avoid frequent hand washing; to avoid repetitive above shoulder work and heavy lifting of more than five to ten kilograms; and to avoid kneeling and squatting. However, Dr Perla opined that from what he could see, those restrictions would not be required if Ms Gordon was working as a RN at Caritas.

82    On 6 December 2018, Ms Smith spoke to Dr Perla. Ms Smith’s file note of that conversation records that they discussed concerns regarding the unpredictability of the work environment at Caritas and the requirement that all staff be fit to perform restraints at Caritas. It also records that Dr Perla was not aware of the need to restrain patients at Caritas as it was not obvious from the Job Demands/Physical Demands Description. In an update to the report, Dr Perla stated that he now understood there to be a “requirement on occasions to restrain difficult clients on an occasional basis as per the Job Demands/Physical Demands Description”. He felt that Ms Gordon “should be able to undertake that task” but suggested “that she would need to be able to show the appropriate competency during the training for this activity”.

83    On 13 December 2018, Ms Aran De Jesus emailed Dr Perla to provide further details on the mandatory Violence Prevention & Management (VPM) workshop for staff working at St Vincent’s/Caritas.

84    On 8 January 2019, Ms Gordon applied for a RN position at Caritas.

85    On 12 February 2019, Mr McClelland wrote to the ANMF relaying the findings in Dr Perla’s report. He also advised that as VPM training was a requirement for all RNs working in Caritas, St Vincent’s was making arrangements for Ms Gordon to attend an external VPM workshop. The letter also stated that should Ms Gordon successfully complete VPM training, St Vincent’s would endeavour to place her in Caritas, initially for a trial period of three months.

86    On 18 February 2019, Ms Smith had a telephone conversation with Ms Gordon. Ms Smith’s file note of that conversation recorded that Ms Gordon was keen to attend the VPM training and, upon discussing its physical requirements including squatting and bending, believed she would be fit enough to undertake it. Ms Smith also advised Ms Gordon that a VPM Fitness for Training Questionnaire form (VPM form) had been sent to her, and she agreed that she would return it as soon as possible. Ms Gordon asked if she could work in mental health before undertaking the training, and was advised that she could not as she was required to be deemed fit and competent in the first instance.

87    On 21 February 2019, Ms Gordon sent her completed VPM form to Ms Smith. On that form, in response to the question “[h]ave you sustained any fractures, dislocation or joint injuries in the last 24 months that may affect your ability to undertake the physical activities that are an essential part of this workshop?”, Ms Gordon marked “no”. She also indicated that: she did not currently have any health issues that would be exacerbated by the physical nature of the training; and there was not any other reason that may restrict or prevent her from safely taking part or carrying out physical intervention training.

88    On 1 March 2019, Aaron Barber (Learning and Development Officer, St Vincent’s) emailed Ms Smith, Susan Kjellberg (Work Health and Safety Manager, St Vincent’s) and another St Vincent’s staff member, stating that Ms Gordon had completed the VPM form and identified no issues, “however we know that this is not correct”. He continued that “[i]f we go ahead and book Rosemary in to this training, we would be placing her at risk of further injury due to the nature of the training and the movements”. Ms Kjellberg then emailed Rio Pun (Human Resources Business Partner, St Vincent’s) on 5 March 2019: advising that the VPM trainer “must be made aware of any health issues impacting on safety during the course and must be able to assess fitness to proceed”; stating her view that by Ms Gordon not completing the form accurately, there was a failure to alert the trainers to the possibility of risk; and suggesting that rather than booking Ms Gordon onto a course, an assessment of her ability to participate occur prior.

89    On 28 March 2019, Ms Smith emailed Ms Gordon to advise that she had been scheduled to attend an individual assessment of her ability to participate in VPM training. She wrote that Ms Gordon would be required to “demonstrate the physical requirements of the program” and should wear appropriate footwear (namely, trainers or flat shoes).

90    On 9 April 2019, Ms Gordon attended the VPM Independent Assessment. Prior to the assessment, Ms Smith advised the assessors that: Dr Perla had assessed that Ms Gordon was not fit to resume work at X8N because of the restricted movement of her shoulder and left knee issue; Ms Gordon had previously been found to be unsuitable for a role at Caritas as she did not meet the required skill base; and Ms Gordon had not completed the VPM form accurately. One of the assessors responded stating, “[w]e are both concerned that there is the potential for Ms Gordon to aggravate a pre-existing condition”.

91    The Independent Assessment report of the same date included the following:

Ms Gordon demonstrated forward lunge with back knee to floor (both sides) however had difficulty returning to standing. She denied discomfort in her knees. We explained that in order to be deemed fit she would need to demonstrate the ability to return to standing with ease as in VPM training and during restraint she would be required to perform this manoeuvre while supporting a patient. On her second demonstration of this task, Ms Gordon fell backwards from a low kneel onto her bottom. She denied injury or pain.

At this point we advised Ms Gordon that we would be ending the assessment. Ms Gordon stated that she fell due to her shoes and went to remove her shoes. We advised Ms Gordon that we would not continue the assessment due to the risk of her sustaining an injury. Despite both Assessors asking Ms Gordon to not undertake further lunges she did so. She denied injury or pain.

Ms Gordon was visibly upset by the ending of the assessment. We explained that as VPM Trainers, we could not assess her as physically fit to undertake VPM Team Restraint training or assist with the physical restraint of patients without the risk of serious harm to herself, the patient or other staff.

Her pre-existing right shoulder/humerus injury with decreased ROM would preclude her from attending this training. Her inability to perform lunges to floor without the risk of falling, which could result in serious injury to herself, a patient, and colleagues during a restraint, ended the assessment.

92    Ms Gordon gave evidence that she fell while coming up from a lunge due to a momentary lapse in concentration.

93    On 7 May 2019, the ANMF wrote to Associate Professor Schembri asserting that Ms Gordon was unable to complete the training due to the shoes she was wearing and asking that St Vincent’s schedule another VPM training session for Ms Gordon.

94    On 8 August 2019, Sarah Davis (Industrial Officer, ANMF), Marko Marelic (ER/IR Legal Counsel, St Vincent’s), Ms Kjellber, Mr Pun and Ms Gordon met. Mr Pun’s evidence was that Ms Gordon said “[t]he assessors were unfair, they did not explain the process or advise me that I had to wear certain footwear”, and that an agreement was reached that Ms Gordon would undertake a functional assessment to assess her ability to undertake VPM training.

95    On 16 October 2019, Ms Gordon attended the Functional Assessment, carried out by Karen Camilleri (Occupational Therapist). On 25 October 2019, Ms Camilleri provided a draft report to Lisa Goold (Occupational Therapist, St Vincent’s). On 28 October 2019, Ms Goold asked Ms Camilleri to provide comments on Ms Gordon’s ability to perform the selected activities with the challenge of an aggressive patient, prolonged postures and against resistance and force.

96    In her report dated 25 October 2019, Ms Camilleri stated:

Based on Ms Gordon’s performance on the day of testing, her safe ability to perform the tasks/ positions required for VPMT in a work setting with an aggressive patient, on a repetitive or sustained basis, over prolonged durations and/or whilst applying force or resistance is likely to be compromised. In particular, Ms Gordon's cardiovascular fitness level; dizziness triggered when standing from a supine position; and compromised speed and balance when standing from a kneeling position, as observed during the Functional Assessment is likely to pose increased risk of injury with additional forces involved with handling an aggressive patient.

97    Ms Camilleri recommended, inter alia, that:

Based on Ms Gordon's performance during the functional assessment conducted on 16 October 2019, she is considered fit for full – time light based work which does not require repetitive or prolonged overhead or forward reaching with the right arm, adopting kneeling or squatting positions on a repetitive or prolonged basis and lifting and carrying of loads exceeding her safe assessed limits …

98    On 29 October 2019, Adrian Talbot (VPM Consultant, St Vincent’s) emailed Ms Goold expressing his concerns as follows:

•    Given her stated limitations the VPM 3 Day restraint training has significant potential to exacerbate her current injuries. This alone would be due cause to not accept her enrolment on the course. We would have to get a medical professional to sign off for Ms Gordon to attend.

•    The training course has been designed to cater for those working in our highest risk areas within St Vincent's and other Health facilities. We had a recent case where a worker who wasn't trained in VPM 3 Day restraint was exposed to a high risk situation and received a work place injury due to the lack of training and experience. This has resulted in stricter governance around individuals who are not trained in 3 day restraint not starting in the high risk areas until the training has been completed. The policy states training should be conducted within 3 months of starting employment.

•    On average it takes 3 minutes for security to arrive to a code black. This means that our staff in high risk areas need to be able to conduct the restraint and wait for security to back them up. We have no guarantee which arm you will need to use to conduct the restraint. We can never guarantee that a prone restraint won't be required. And despite the policy stating we do not conduct prone restraint for longer than 2-3mins the entire duration of the restraint may require the person conducting the restraint to be in multiple different positions. Prone/Supine/kneeling/ Standing/Seated. Some restraints have gone on for over 40mins.

•    In the last month on Caritas we have had 9 incidents where restraint was used for aggressive and violent incidents.

99    Mr Pun stated in his affidavit that around this time he and Ms Goold decided the applicant should not progress with VPM training.

100    On 21 November 2019, Ms Goold and Mr Pun met with Ms Gordon and Ms Davis. Mr Pun’s evidence was that during that meeting, Ms Davis: said that Ms Gordon was not suitable for positions as a RN in mental health as she would be unable to complete the required VPM training; and requested that St Vincent’s allow Ms Gordon to apply for vacant positions that were of interest to her until 2020 rather than terminating her employment. Mr Pun also gave evidence that Ms Goold agreed with that request and said that she would complete suitability assessments for the roles Ms Gordon identified. Ms Gordon gave evidence in cross-examination that at this meeting she was in fact informed that she was not suitable to attempt VPM training, but accepted that it was agreed a review of available vacant roles she could apply for would be undertaken.

101    On 27 November 2019, Ms Gordon emailed Mr Pun a list of vacant roles. On the same date, she also applied for a RN position at Parklea Correctional Facility (Parklea).

102    On 13 December 2019, Mr Pun emailed Ms Gordon a review of the four vacant roles she had identified, completed by Ms Goold. Ms Gordon was identified as potentially being appropriate for the identified clerical position, pending assessment by infection control. On the same date, she responded stating that she did not think she would be a suitable candidate as she only possessed “basic computer skills”. The assessment also stated that Ms Gordon may wish to apply for any of the roles referred to, as a specific functional assessment may be undertaken prior to a job offer to confirm fitness.

103    On 18 December 2019, Cathy Macknight (CNC Infection Prevention Management & Staff Health Services, St Vincent’s) emailed Lisa Goold, stating that Ms Gordon had called her. Ms Macknight wrote that “returning to a clinical ward environment, would be difficult [for Ms Gordon] due to the high amount of hand hygiene product used today”. Ms Gordon gave evidence that, during her conversation with Ms Macknight, she explained that her dermatitis was manageable if she used Spirigel instead of alcoholic hand rub, and Ms Macknight responded with words to the effect of “I’m happy for you to use any product that you find non-irritating”.

104    On 19 December 2019, Ms Gordon attended an interview for a RN position at Parklea with Sonia Herrera (Nursing Unit Manager, St Vincent’s) and Kristy Johnson (Clinical Nurse Consultant, St Vincent’s). Ms Gordon was determined not to be suitable for the position based on her answers in the interview. Those answers included, according to the interviewers’ notes: saying that dealing with patients that have committed horrendous crimes would be difficult; and becoming flustered when she could not remember the fifth of five listed rights of medication. Ms Gordon speculated during cross-examination that the interview notes could have been made up, based on “everything that has happened”. In the letter she sent to Ms Thornton on 7 September 2020 (see [117] below), Ms Gordon stated that she did not say that “she would find it difficult to look after patients who had committed horrendous crimes”, but instead, in response to that statement from interviewers, she supposed “it might be difficult at times” as she had never worked in a prison before. On 28 January 2020, Mr Pun emailed Ms Gordon providing feedback regarding this interview.

105    In March 2020, Sandra Clubb (Director of Human Resources, St Vincent’s) was the Executive Sponsor for a Matter for Decision document seeking approval from the CEO to terminate the employment of Ms Gordon on medical grounds.

106    On 23 March 2020, Simon Davies (Employment and Industrial Relations Specialist, St Vincent’s) and Mr Pun met with Ms Gordon and Ms Davis. Ms Gordon was given a letter from Anna Thornton (Director of Nursing, St Vincent’s) which advised that St Vincent’s had been unable to identify a suitable role which could accommodate any adjustments that may be required, and provided an opportunity to make written submissions as to why her employment should not be terminated on the basis of her inability to meet the inherent requirements of her position (Second Show Cause Notice).

107    On 7 April 2020, the ANMF responded to the Second Show Cause Notice stating that, even if St Vincent’s maintained that Ms Gordon’s capacity for work was the result of non-work-related injuries, it was still incumbent on them to provide Ms Gordon reasonable adjustments to her employment to allow her to continue to work. It also stated that Ms Gordon’s injuries were not so severe to prevent her from nursing in an appropriate role and that St Vincent’s had many potentially suitable roles available. After identifying those positions, the ANMF stated that a decision-maker could not be certain that the positions were not suitable until Ms Gordon’s medical capacity was assessed against the specific job demands of each, and suitable consideration was given to what sort of adjustments may be made to the positions to allow Ms Gordon to adequately fulfil their requirements.

108    On 14 April 2020, there was a meeting between Sandra Sweeney (Deputy Director, People and Culture, St Vincent’s), Mr Simon Davies (ER/IR Specialist), Mr Pun and Ms Thornton. Mr Pun gave evidence that during that meeting, Ms Thornton expressed the view that she was not confident St Vincent’s could terminate Ms Gordon’s employment. After the meeting, Ms Thornton called Mr Pun and advised that she had decided to proceed to another independent medical examination. On 28 April 2020, Ms Davis met with Mr Pun and Mr Davies. Mr Pun informed Ms Davis that St Vincent’s would require Ms Gordon to undergo another independent medical examination. On 7 May 2020, Mr Pun wrote to Ms Gordon to confirm that an independent medical examination had been booked with Dr Farhan Shahzad (Consultant Occupational Physician).

109    On 13 May 2020, Ms Gordon attended the independent medical examination with Dr Shahzad. On 28 May 2020, he provided his report to St Vincent’s. Dr Shahzad diagnosed Ms Gordon with: bilateral contact hand dermatitis which could flare up with repetitive use of Microshield; a healed fracture of the right humerus; and left knee advanced osteoarthritis which at some stage would require further surgery and which was at increased risk of further injury.

110    Dr Shahzad opined that “[i]n a physically demanding role requiring manual labour or any intensive contact, there is a risk of injury to her left knee and to her right shoulder, especially with squatting, kneeling and lunges”. He recommended that Ms Gordon was “able to work in a role which involves light-based work, not requiring repetitive or prolonged overhead or forward reaching with the right arm, avoiding kneeling, squatting on a repetitive basis and not lifting and carrying heavy loads”. He also recommended that she was “able to return to work on light duties, working at her own pace and avoiding frequent hand washing, avoiding lifting, pushing and pulling more than 5 kg, and avoiding repetitive squatting and kneeling”.

111    Dr Shahzad assessed that there was “increased risk of safety to self and others, especially to patients working in the wards who require patient care, assistance and support”. The main barriers he identified were “related to [Ms Gordon’s] comorbidities, her underlying left knee and severe arthritis, the permanent nature of her injuries, inability to succeed in the interview process, perception of unsupportive management style, lack of contact with the workplace and prolonged duration of absence”. Ms Gordon was determined unfit to return to her RN position at X8N.

112    Based on Ms Gordon’s limitations in relation to her hand dermatitis and severe left knee arthritis, Dr Shahzad concluded as follows:

Ms Gordon will have the following permanent restrictions:

•    Avoid frequent hand washing to avoid flare-up of hand dermatitis with the use of Microshield antiseptic use. May require appropriate supply of hand sanitiser or gloves suitable to her needs.

•    Avoid repetitive or above shoulder work and lifting of more than 5 kg.

•    Avoid heavy pushing, pulling or carrying more than 5 kg.

•    Avoid repetitive squatting and kneeling activities to avoid a left knee injury.

The following permanent workplace modification is recommended:

•    She requires ongoing support and possibly working in pairs (buddy) rather than working alone while looking after patients.

Ms Gordon would also apply the following self-care recommendations:

•    Follow up with an orthopaedic surgeon.

•    Recommended counselling and specific case management and support by HR and a rehabilitation provider.

The following are additional workplace recommendations:

•    Assessment independently (if this can be accommodated by her employer) for VPM training for Team Restraints prior to consideration of working in the mental health unit.

•    If she is successful with VPM training then she will require a permanent work modification with case-specific policy and risk management policy for her needs prepared by the Health and Safety Unit and HR Department at St Vincent's Hospital.

113    Mr Pun stated in his affidavit that, based on the report, he formed the view that the suggestion Ms Gordon be buddied with a colleague would have resulted in two people effectively doing one job: see [140] and [239] below.

114    On 20 August 2020, Mr Pun emailed Mr Davies a list of nursing positions being advertised and the risks identified in relation to placing Ms Gordon in each of them. The review indicated that the vacant roles required either frequent hand washing, occasional or frequent squatting, kneeling, lifting, pushing and pulling, moving loads or restraining and managing interactions with aggressive and uncooperative patients.

115    In August 2020, Ms Thornton was the Executive Sponsor of a Matter for Discussion document, concluding that given Ms Gordon’s incapacity to fulfil the inherent requirements of her role due to medical grounds, St Vincent’s should advise her that termination of her employment is under consideration and she be invited to make submissions.

116    On 1 September 2020, Ms Thornton wrote to Ms Gordon providing an opportunity to make submissions as to why a recommendation should not be made to the CEO to terminate her employment due to her being medically unfit to fulfil the inherent requirements of her position (Third Show Cause Notice). In that letter, Ms Thornton noted that notwithstanding an assessment against Ms Gordon’s substantive position, assessments were made in regard to her transferrable skills and medical restrictions, but “the trials were unsuccessful, any adjustments required were deemed unreasonable or [Ms Gordon was] otherwise unsuitable for the positions”. Ms Thornton also stated that: St Vincent’s had undertaken an assessment of currently vacant RN positions and their respective job demands checklists with regard to Ms Gordon’s safety and the safety of others at work; the positions available at the time required some capacity with regard to hand hygiene, lifting, pulling, pushing, squatting and kneeling; and any role that required VPM training had been determined as particularly unsuitable as they required squatting and kneeling (particularly in a mental health or correctional setting where the potential for patient restraints is high). Ms Thornton also noted that Ms Gordon had advised that she did not wish to be assessed against any non-nursing positions.

117    On 7 September 2020, Ms Gordon wrote to Ms Thornton in response to the Third Show Cause Notice. She set out her disagreement with a number of assertions made in the letter of 1 September 2020 and detailed a chronology of “disheartening” events. In particular, Ms Gordon stated that she had never been allowed to attend a work trial, and that she had told HR she was happy to undertake any clerical roles available. The letter also included, inter alia, that on 27 April 2018 she explained to Ms Oed that she did not think it was a good idea to return to X8N. Ms Gordon stated that “I definitely do not want to return to that ward and possibly ruin [my] right knee as well”: see [65] above. The letter concludes by stating that she wants to be “given a chance at another position…”.

118    On 17 September 2020, the ANMF wrote to Ms Thornton, responding to the Third Show Cause Notice. They wrote that Ms Gordon’s role is properly conceived of as a RN working for the benefit of St Vincent’s (as her contract of employment does not specify employment to a role on X8N) and identified redeployment as a reasonable adjustment, pointing to the practical adjustments identified by Dr Shahzad. The ANMF also stated that the attempts made by St Vincent’s to explore alternative duties had been inadequate and that St Vincent’s had submitted Ms Gordon to an unnecessarily high standard in relation to other roles, rather than applying the appropriate objective merit test required (namely, simply whether she was or could be qualified to perform the roles). Further, the ANMF wrote that no discussions had been held with Ms Gordon in relation to reasonable adjustments to proposed roles, and any assessment actually conducted by St Vincent’s was a mere desktop exercise without any detailed consideration as to what adjustments could be made. They also reiterated that Ms Gordon had repeatedly expressed an interest in non-nursing roles.

119    On 3 November 2020, Ms Gordon lodged an application with the Fair Work Commission. In the application, Ms Gordon sought that St Vincent’s make reasonable adjustments to her role as necessary to enable her to return to work, provide VPM training via a third party provider and identify suitable alternative positions. On 13 November 2020, Commissioner Johns conducted a conciliation conference and issued a direction that St Vincent’s provide Ms Gordon with a list of nursing and administrative vacancies and a statement explaining the steps taken to identify them. Those directions were complied with by St Vincent’s and a further conference was held on 16 November 2020.

120    From November 2020 to February 2021, Ms Gordon applied for: three RN positions at St Vincent’s; two RN positions at Parklea; a RN position at Kinghorn Cancer Centre; a Mental Health Pathways to Practice Program position at St Vincent’s; a Ward Administration Officer Position at St Vincent’s; a RN position at St Vincent’s Medical Imaging Department; and a RN position at the Gorman Unit at Parklea.

121    On 8 April 2021, Ms Gordon filed a Notice of Discontinuance withdrawing the application referred to above at [119].

122    On the same date, the ANMF filed another application with the Fair Work Commission on behalf of Ms Gordon. On 30 April 2021, St Vincent’s responded to that application, declining to participate in conciliation, and on 12 May 2021 the Fair Work Commission confirmed the matter was closed.

123    In June 2021, Ms Thornton and Todd McEwan (Director, Acute Care Services, St Vincent’s) were the Executive Sponsors of Matter for Discussion document recommending that, although they anticipated further litigation from Ms Gordon if they proceeded with her termination, the matter be brought to a head given St Vincent’s was in a good position to do so and to respond to any subsequent claim. They concluded that, given Ms Gordon’s incapacity to fulfil the inherent requirements of her role due to medical grounds, and the finalisation of the Fair Work Commission matters, a further show cause should be initiated to ensure procedural fairness. The document also stated that Ms Gordon had previously advised that she did not wish to be assessed against any non-nursing positions.

124    On 15 June 2021, Ms Thornton wrote to the ANMF, copying Ms Gordon (Fourth Show Cause Notice). Ms Thornton advised that she was still considering recommending that the CEO terminate Ms Gordon’s employment due to being medically unfit to fulfil the requirements of her substantive position. Ms Gordon was provided the opportunity to make submissions.

125    On 28 June 2021, both Ms Gordon and the ANMF responded to the Fourth Show Cause Notice. The ANMF reiterated that Ms Gordon’s particular work, or substantial position, was not confined to a role on X8N. It also stated that St Vincent’s had “fundamentally misunderstood” its responsibility to provide reasonable adjustments “by placing the responsibility on Ms Gordon to be appointed to a role through a competitive process and determining what if any adjustments are required”. The ANMF indicated eagerness to enter good faith discussions with St Vincent’s, but noted that in light of plans to terminate Ms Gordon’s employment, it had filed an urgent application in the Australian Human Rights Commission. Ms Gordon stated that she was more than willing to work in any department within the St Vincent’s network that could accommodate her.

126    On 7 July 2021, Ms Thornton and Mr McEwan sponsored a Matter for Discussion document recommending termination of Ms Gordon’s employment due to an inability to perform inherent requirements of her role on medical grounds. That recommendation was based on legal advice. It was also noted in that document that St Vincent’s was of the view that Ms Gordon being buddied up with another employee was not a reasonable adjustment and that offering Ms Gordon employment in a COVID vaccination clinic may set a precedent with the NSWNMA [NSW Nursing and Midwifery Association] that St Vincent’s would provide every employee with a non-work related injury permanent alternative employment. On 12 July 2021, Associate Professor Schembri signed the Matter for Discussion document, approving termination of Ms Gordon’s employment.

127    On 13 July 2021, Associate Professor Schembri wrote to Ms Gordon, confirming that her employment was terminated. As to termination on medical grounds, he concluded as follows:

29.    It has now been over 3 years since you were deemed unfit to carry out the inherent requirements of your substantive position. I understand given your restrictions there are no reasonable adjustments that can be made to enable you to carry out your substantive position.

30.    I further understand, and as outlined above, you have not been the successful candidate in available and suitable roles within SVHS. It is on this basis and the reasons above I have decided to terminate your employment with SVHS.

128    In or around 22 November 2021, Ms Gordon commenced casual employment as a RN at an agency, Meditech Staffing, working on average three shifts per week for various aged care facilities.

Assessment of witnesses

Applicant’s case

129    It is only necessary at this time to refer to Ms Gordon and Ms Purdue, as the evidence of Dr Christopher Canaris relates only to damages.

Ms Gordon

130    Although it may be accepted that the applicant generally attempted to give evidence honestly, at times her answers were evasive, argumentative and combative. At times, the applicant did not make obvious concessions in cross-examination that would have been expected. As her cross-examination progressed, she made unfounded allegations about the conduct of other people, including allegations of fabrication of documents (being notes made by two panel members in relation to a job interview). When put on the spot, at times the applicant volunteered evidence non-responsive to the question, justifying her position. If she perceived the content of a document did not assist her, her answer would challenge the correctness of the information in the document (at least initially). It may be that the applicant was frustrated by what she perceives to be the respondent’s treatment of her. Nonetheless, the applicant’s preparedness to respond in the manner she did at times during her cross-examination impinges on her reliability as a witness. The applicant might believe what she said to be correct, but it does not necessarily make it so.

Ms Purdue

131    Ms Purdue is employed as a Senior Professional Officer by the ANMF, the solicitors for the applicant. It appeared at times that Ms Purdue was giving evidence from that perspective, and not what could be described as an independent expert, as she was held out to be.

132    For example, as explained in more detail below at [213], her evidence appeared to suggest that having the required competencies to be an RN means that all RN’s are equally qualified to do any nursing job requiring a RN regardless of the area in which the work is to be done. This was to support a submission that the applicant could be transferred to work at another ward. However, in cross-examination, Ms Purdue did not make fairly obvious and proper concessions. For example, Ms Purdue only reluctantly acknowledged (and only after a number of questions on the topic) that when applying for a position, some RN’s might be more qualified than others, or transition to a new role more effectively based on their ability to adapt. Similarly, she was reluctant to accept that RN’s may perform the work in a new area with different aptitude and speed, or ultimately attain a higher level of proficiency. I had difficulty accepting aspects of her evidence.

The respondent’s case

Dr Keller

133    On 2 August 2022, Dr Andrew Keller (Occupational Physician) conducted an independent medico-legal examination of Ms Gordon. He was called by the respondent. His evidence, as will be apparent below, is not challenged by the applicant. Indeed, in closing submission the applicant relied on it in support of her application for reinstatement. I accept his evidence. He gave evidence carefully, in a considered manner.

134    In his report, dated 5 August 2022, Dr Keller concluded:

1.    In your opinion, would the Applicant be currently fit to safely perform the inherent requirements of the position of an RN on X8N as outlined in the Position Description and Job Demands Checklist?

With careful consideration of the medical complaints commencing from 2015 and her current ongoing conditions including contact dermatitis of the left and right hands, right shoulder restriction of motion with pain due to a humeral neck fracture and left knee pain. It is my opinion that she is not fit to work as a full time registered nurse on the Xavier 8 North ward without restrictions.

2.    In your opinion, and to the best of your ability to make such an assessment based on available evidence, would the Applicant have been fit to undertake the inherent requirements of the position of an RN on X8N as outlined in the Position Description and Job Demands Checklist, as at July 2021?

From the information available to me it appears that Ms Gordon was capable of working as a full time RN on Xavier 8 North until her fall in July 2017. She has never recovered the capacity to work as a registered nurse without restrictions since this fall and remains unfit for these duties currently.

3.    If the answer to either (1.) or (2.) is “No”, then in your opinion, having regard to the Applicant’s disabilities and assessed state of health:

(i)    What reasonable adjustments, if any, would need (and/or have needed) to be made to allow the Applicant to safely perform the inherent requirements of the RN on X8N position; and

In my opinion Ms Gordon is fit to work up to full time hours. She can do the light administrative or supervisory tasks involved in registered nursing and continues to do these currently on a part time basis through a nursing agency. To return to the Xavier 8 North position she would require other staff performing the duties of direct patient care, movements of furniture and movements of bed with patients.

(ii)    what are the risks, and likelihood of those risks, that the Applicant could:

A.    reinjure herself;

It is likely that returning to unrestricted registered nursing work on Xavier 8 North would aggravate or exacerbate her current conditions of left knee arthritis, right shoulder pain and restriction and hand dermatitis.    

B.    be impaired by other disabilities, injury or illness;

She is already impaired with disabilities as detailed above though these do not restrict her doing the administrative parts of registered nursing duties but do restrict her from doing the patient care parts of registered nursing duties.

I cannot predict/guess her risk of developing future disabilities.

C.    aggravate, exacerbate or hasten deterioration of her health conditions; if she were to return to the role of an RN on X8N with or without reasonable adjustments?

It is likely that returning to direct patient care would accelerate or aggravate her ongoing complaints in her right shoulder and left knee. She could only do these tasks without exacerbation if not required to do direct patient care. It is not possible for me to determine whether the employer is able to offer this accommodation.

135    In cross-examination, Dr Keller explained the reference to “direct patient care” in his report was to distinguish between the “administrative, charting, drug management carers, non-direct patient care versus the physical contact, movements and personal care of a patient, the direct, hands-on care”. He said that his way of determining whether a person is fit for their job would include their personal statements. The applicant “made the statement to [Dr Keller] that she felt she was not capable of performing the role with or without assistance”. Dr Keller’s evidence was the determination of a person’s fitness is also based on their treating doctors’ [assessments]. Although the applicant had not been given current certificates stating she was unfit for work, she confirmed that she had never been cleared to return to unrestricted nursing by her doctor. Dr Keller understood, from what the applicant told him, that during the relevant period of work there was a policy of assistance that was available to all nurses, including her, when she felt she could not push and pull heavier loads safely within her capacity. The applicant confirmed to him that she was not able to do the role with the assistance available: “[s]o that was the equipment available and the other staff members who were there for nurses as assistance. So she confirmed to me that she felt incapable of returning to that role”. When asked if he was familiar with the way in which nurses work, and that they may work in pairs, Dr Keller acknowledged he was. He said he also understood that there were non-nursing staff available for assistance and that the applicant was aware of that. He said “[t]hey were working with her for the years before she ceased work there. And I asked her whether she could work with their assistance and she felt she could not perform the role in her current condition, despite the assistance with manual handling provided in the ward”. He said the applicant told him that her right shoulder was not stopping her doing agency nursing but was restricting her from direct patient care and moving patients.

Mr Webb

136    The respondent called Kenneth Webb, the Nurse Manager, Nursing Workforce. His evidence was directed to two topics; first, the employment and role of RNs at St Vincent’s (which included addressing aspects of the evidence of Ms Purdue); and second, his interactions with the applicant.

137    Given Mr Webb’s position at St Vincent’s, he is qualified to describe the matters comprising the first topic. I accept his evidence on that topic. This evidence includes that wards can significantly differ in the range/type of patient illnesses, patient acuity, the volume of work, the speed of work and care requirements. Transferring between wards may, and often does, require further education and training, beyond an orientation to the ward. One of the examples given, was that an RN employed on the Mental Health Unit is to undertake specific Violence Prevention Management Training on how to deal with violent patients and would then be expected to have the skills to de-escalate situations with patients. He explained that when there is a RN vacancy at St Vincent’s, the vacancy will be in a specific ward or unit in a clinical area, and the RN will be employed to fill the vacancy at the specific ward or unit. This typically occurs, apart from the limited circumstances where the RN is employed in the general or casual pool (who are required to work in different wards or units). RNs employed in those pools are highly skilled and versatile. These RNs have advanced skills developed over a long period of time and will often have backgrounds in critical care nursing, including in the emergency department and the intensive care unit.

138    As to the second topic, Mr Webb’s evidence is that he interviewed the applicant in person for a role in the casual pool, and later in January 2021 over the telephone, for a role at Parklea Prison. The applicant disputes she was interviewed in relation to the casual role, and takes issue with what Mr Webb said were some of her responses in relation to the Parklea interview. In respect to that interview there was another interviewer present, and the two sets of interview notes were in evidence. The applicant was not considered appropriate for the Parklea role and Mr Webb did not recommend her hire. The notes were obviously written by different people, but the interviewers’ assessments were to the same effect. During cross-examination in relation to the Parklea interview the applicant suggested inter alia, that Mr Webb had misheard or misinterpreted what was said, which he denied. Regardless, even if that was so, the records reflect that two persons came to the same view that the applicant was not appropriate for the position, and there is no suggestion that was not a genuinely held view. St Vincent’s was entitled to act on the view of the panel for the Parklea interview. It is unnecessary to resolve the dispute as to the first interview.

Mr Pun

139    Mr Pun’s evidence primarily related to the productions of documents and records, and relied solely on documentary records in relation to events up until he commenced as Human Resources Business Partner in January 2019. Much of his cross-examination related to matters in which he was not involved and could not comment. Mr Pun generally set out the steps undertaken by Vincent’s by reference to records.

140    He gave evidence that inter alia, following Dr Shahzad’s report, St Vincent’s considered whether it could implement any of the recommended permanent restrictions and work modifications to assist Ms Gordon to perform the role of RN. It formed the view that providing a work colleague as a ‘buddy’ to Ms Gordon in performing her duties was financially unfeasible as it would have cost between $78,892 and $110,773 per annum and was outside budget. I address the submissions about this evidence below.

141    The evidence of Ms Brown was largely annexing business records. Ms Paik is the Nurse Unit Manager, Community Mental Health, who described the role of a nurse in the mental health discipline. I will refer to her evidence briefly below.

Preliminary observations

142    Given the above chronology, a number of factual observations can be made.

143    First, the application relates to three injuries, being the applicant’s hand dermatitis, left knee injury and arm injury. In relation to each of the first two, the applicant made workers’ compensation claims, and those claims were resolved before the arm injury occurred. Those two injuries did not prevent the applicant working on X8N. On the applicant’s evidence, she only took a couple of weeks off work after the dermatitis injury arose in about March 2015 (see [44] above), and did not take any time off work for the knee injury, which occurred in October 2016 (see [46] above). In respect to the first two injuries, she continued pre-injury duties, and following resolutions of her workers’ compensation claims, made no further notifications or claims about those injuries prior to her arm injury. She remained working until the arm injury from a fall occurred on 17 July 2017. It can be inferred that up until that time, the applicant’s dermatitis and knee injury did not prevent her from fulfilling her duties. The applicant did not make a worker’s compensation claim for her arm injury. The applicant commenced leave having sustained the arm injury, and thereafter did not return to her substantive position at X8N. It can also be inferred that St Vincent’s understood from the time of her arm injury until at least the end of March 2018, that it was the arm injury that was preventing her return to work. The medical certificates presented by Ms Gordon, dated between 25 December 2017 and 27 February 2018 related to that injury. The medical certificate of Dr Chang, dated 27 March 2018, did not specify an injury.

144    Second, in that context, it can also be inferred that when St Vincent’s were initially managing Ms Gordon’s return to work, they were doing so on the understanding that it was in relation to her arm injury: see for example, [48]-[49], [54] and [56]-[57] above. It appears that it was not until 16 April 2018 that Ms Gordon raised that it was the combination of three injuries that was preventing her return to work: see [61] above. This was raised by Ms Gordon without any medical evidence proffered in support at that time.

145    Third, during oral submissions, the applicant ultimately identified the receipt of Dr Ilanko’s report, on 3 June 2018, as being key to the timing of when St Vincent’s was on notice that reasonable adjustments were required. It was said by the applicant that Dr Ilanko proposed reasonable adjustments. In that context, I note that the applicant’s further amended statement of claim (FASOC) does not refer at all to Dr Ilanko’s report or its contents, or any reliance thereon.

146    Also in that context, St Vincent’s’ records indicate that prior to that time there had been a number of communications between persons from St Vincent’s and the applicant, during which it was explained to her, inter alia, that medical advice was needed to inform St Vincent’s of her condition, prognosis and any restrictions on her work. This was to enable St Vincent’s to determine whether she could return to X8N (or available work given any restrictions). The evidence reflects that during that time, St Vincent’s took steps to assess her ability to return to work, including obtaining the medical report from Dr Ilanko, her treating doctor. The applicant remained on sick leave for a period of over six months, followed by administrative duties for a further four months, pursuant to three employee support plans. In that context, it cannot be said that St Vincent’s’ approach, whereby it sought to ascertain the applicant’s medical status before any further action to return her to work, was not an appropriate or reasonable one.

147    I note that during this time, the medical certificate the applicant provided to St Vincent’s referred to in the third employee support plan (that of Dr Chang, dated 27 March 2018), simply stated that she was fit to return to work on 27 March 2018, “as tolerated”. I note also that when the applicant was requested to provide further information, on 2 May 2018 she presented a certificate from Dr Ilanko, dated 2 May 2018, stating simply that she was “suffering from chronic dermatitis”. The applicant wrote to St Vincent’s on 2 May 2018, booking leave stating she was unable to return to her role at X8N because of her dermatitis. As addressed above at [69], the applicant was told that certificate was insufficient for St Vincent’s to make a decision regarding her ability to return to work.

148    Fourth, in that context, St Vincent’s’ records also record that prior to June 2018, on a number of occasions, the applicant expressed to St Vincent’s the view that she did not think she could return to X8N, or was reluctant to return to her role, or a sentiment to similar effect: [60]-[63] above. For example, the applicant was of that view on 6 April 2018, at a time when St Vincent’s only had Dr Chang’s medical certificate making reference to a return to work “as tolerated” before them. Consistent with the applicant’s expressed view, before Dr Ilanko’s report was provided in June 2018, the applicant applied for another position in St Vincent’s’ casual pool. The records reflect that the applicant had said she would like to work in mental health, as it involved less handwashing. It can be inferred that was a reason why she subsequently applied for the position of RN at Caritas after Dr Ilanko’s report was received. I note also that St Vincent’s’ records reflect that Ms Gordon also expressed this same view in respect of returning to X8N after Dr Ilanko’s report was produced, as do some of the subsequent medical reports: see for example, [65], [80], and [111] above. It appears to be a consistent position expressed by the applicant. I note also that when requesting a medical opinion from Dr Perla, St Vincent’s referred to this position having been expressed by the applicant.

149    The applicant gave evidence that she made these statements to St Vincent’s because she thought that they would not provide any adjustments for her return to X8N, and therefore, she thought she could not return to that ward. However, it is difficult to see how the applicant could have reasonably formed that view given the timing of the statements relative to other events. Some of these statements were made at a time before Dr Ilanko’s report, and in circumstances where the applicant was informed St Vincent’s was seeking medical evidence in order that it could provide her with safe work. Some statements were made in a context where St Vincent’s were managing her position on the basis of the arm injury, not having been told previous injuries had remerged as issues. This was in the context where the applicant had provided a medical certificate that she was fit to return to work, “as tolerated”. What the applicant considered was St Vincent’s’ position is not evidence of its position. Indeed, St Vincent’s’ contemporaneous records from that time do not support that inference.

150    Taking her statements at face value as they were entitled to, it was properly open to St Vincent’s to understand, on the conversations as recorded (and despite the response to the first show cause letter), that the applicant did not want to return to 8XN. St Vincent’s’ subsequent actions must be viewed in that context. As explained in more detail below, although the ANMF response to the first show cause letter requested St Vincent’s engage a rehabilitation provider, thereafter the focus of the correspondence was on facilitating Ms Gordon to secure, or providing Ms Gordon with, another position: see for example, [73] above, and [252].

151    Fifth, the applicant unsuccessfully applied for a number of other nursing positions. In respect to at least two positions (at RCTC and Caritas), despite being previously unsuccessful, the applicant was nonetheless given further consideration for roles at those locations. In September 2018, Ms Smith from St Vincent’s approached RCTC after the applicant had unsuccessfully applied for a RN position there. She did so on the basis the applicant had shown an interest in a position at RCTC. As reflected above at [75], the email correspondence between Ms Smith and RCTC showed positive exchanges by both sides in an attempt to facilitate Ms Gordon securing a position there. RCTC agreed to set up an interview with the applicant to ascertain if she was suitable for the role, subject to which, Ms Smith indicated the applicant could commence initially on a three month trial. RCTC noted it was necessary to ascertain suitability due to the specialised nature of nursing in that area. The applicant was found to be unsuitable for the position, given her answers in the interview.

152    The other role was at Caritas, where the applicant had previously been unsuccessful as she was considered unsuitable for the role given her answers in her interview. Despite that, steps were taken by St Vincent’s in relation to placing Ms Gordon at Caritas for a three month trial, subject to her undertaking VPM training required to perform the role. In the event, that involved assessing her physical capacity to complete the VPM training.

153    The actions taken, and the communications recorded in St Vincent’s’ records, reflect that in respect to both locations, St Vincent’s took active steps in a constructive manner. Further consideration of the applicant for the position at RCTC was not part of any competitive process, rather her suitability was assessed on her own merits. Despite having been unsuccessful in initial applications, she was nonetheless considered further.

154    Moreover, apart from those two roles, the applicant was unsuccessful on some other occasions on the basis she was unsuitable for a position, and/or the applicant was not the successful candidate based on merit. The interviews for the various positions were conducted by different people, separately coming to similar conclusions. There is no basis in the evidence to suggest that those processes were not undertaken, and the assessments made other than, on a proper basis. St Vincent’s was entitled to act on those assessments.

155    Sixth, the applicant is critical of St Vincent’s, contending they intervened to make the reports from Dr Perla and Ms Camilleri adverse to Ms Gordon’s capacity to return to work.

156    In respect to Dr Perla, this relates St Vincent’s informing him about the requirement for RNs at Caritas to restrain difficult clients on occasions. This resulted in Dr Perla adding the “PS” to his report, suggesting that the applicant “would need to be able to show the appropriate competency during the training for this activity”: see [82] above. The applicant places a sinister motive on the conversation that St Vincent’s had with Dr Perla. I do not accept that submission. St Vincent’s’ record of the conversation reflects that Dr Perla was not aware of the need to use restraints at Caritas, that he had some concerns upon that requirement being explained, and that he was asked to specifically outline any concern: see [82] above.

157    The evidence is that VPM training was a requirement for all RN’s at Caritas. St Vincent’s required the applicant to undertake it before she could begin a three month trial.

158    Relatedly, the applicant submitted that she should have been able to commence at Caritas before she had VPM training and that such training could have been completed once she had commenced. However, the applicant had been and remained off work because of disabilities that rendered her unable to fulfil the inherent requirements of a RN at X8N, and on her case, required adjustments to return to X8N. St Vincent’s had information giving rise to concerns about her ability to perform the physical inherent requirements of a position at Caritas. In that context, I am not persuaded that there is anything untoward or unusual about St Vincent’s requiring her to demonstrate competence in the training before commencing. Indeed, given Dr Perla’s assessment, St Vincent’s’ occupational health and safety obligations toward the applicant and her work colleagues, and its responsibilities towards the care of its patients, it may be said to have been irresponsible (and perhaps even a breach of those responsibilities) to have done otherwise. St Vincent’s has a duty of care to its staff and patients.

159    As to Ms Camilleri’s report, her assessment occurred in a particular context: see [86]-[89] above. As evident from the chronology above, St Vincent’s determined that a functional assessment of the applicant’s fitness to undertake the VPM training ought to be conducted in light of how she had completed the pre-training questionnaire. That assessment was commenced, however the assessors deemed it unsafe for her to continue. After a complaint was made about this, a further functional assessment was arranged by St Vincent’s and was undertaken by Ms Gordon. This further assessment was with Ms Camilleri. Ms Camilleri’s draft report was sent to St Vincent’s, whereby St Vincent’s requested any comments in relation to “the applicant’s ability to perform the activities with the challenge of an aggressive patient, prolonged postures, and against resistance and force”. A paragraph was added to Ms Camilleri’s report, addressing the question posed. That is said to be the only relevant difference between the draft and final report. Ms Camilleri had already noted in her report that the tasks performed by the applicant were performed “once only and without the presence of a patient and associated risks and forces”. There is no suggestion that the opinion expressed by Ms Camilleri in relation to the request is not one genuinely held. Moreover, the recommendations did not alter, which included that she is fit for “full-time light based work which does not require repetitive or prolonged overhead or forward reaching with the right arm, adopting kneeling or squatting positions on a repetitive or prolonged basis and lifting and carrying of loads exceeding her safe assessed limits”. Light-based work is defined to mean, relevantly, exerting up to 9kg of force occasionally, or a negligible amount of force constantly where walking or standing to a significant degree. As is evident from the chronology at [99] above, St Vincent’s held concerns as a result of the opinion. Those concerns are reasonable in light of the evidence regarding the rationale for, and nature of restraints required at Caritas: see for example, [98] above.

160    Seventh, the applicant’s contention considered immediately above, was in the broader context of the applicant’s submission that after the first show cause letter, St Vincent’s had predetermined to terminate her employment. The evidence, properly considered, does not support that submission.

161    That the applicant may disagree with the actions undertaken and the assessments of her in that process, does not reflect to the contrary.

162    The applicant provided a number of reasons to St Vincent’s, and to the Court, as to why there were various adverse outcomes of the interview and assessment processes. The applicant submitted in oral closing submissions she did not perform well in interviews because, inter alia, St Vincent’s did not tell her what she could say about her injuries and therefore it was difficult to explain why she wanted various jobs. To take some further examples the applicant gave in evidence: she did not succeed in getting a job because the panel took her statements out of context; the notes of one panel who interviewed her were fabricated; the task the applicant was unable to perform in the first VPM assessment (which resulted in it being stopped) was because she was wearing the wrong shoes (which is contrary to the conclusion in the report), in circumstances where she claimed she was not told in advance what the VPM assessment would involve and was given no warm-up before being asked to do the move. I note that there is evidence that the applicant was told the nature of the shoes and clothing to wear, and that she would be required to demonstrate the physical requirements of the program before the assessment occurred. These observations rather provide some explanation for her perception of broader events.

163    Also in that context, is the applicant’s submission that she should have been entitled to undertake the VPM training and that St Vincent’s irrationally stopped her from doing so. It is to be recalled that St Vincent’s organised a functional assessment to ascertain whether the applicant was able to undertake the VPM training. As referred to above at [158], this was in the context where the applicant had completed the VPM form in a manner which St Vincent’s considered was inaccurate. I note this form was completed by the applicant after a discussion with St Vincent’s in which Ms Smith described the physical nature of the training: see [86] above. The applicant did not disclose her injuries, including in relation to direct questions about fractures in the last 24 months. The applicant gave evidence that she answered the questions honestly, and that the questions were premised on the basis of whether the injuries may affect the person’s ability to undertake the training. This is in circumstances where the applicant had experienced injuries (including in the last 24 months), and on her case, was unable to perform her work as a RN without adjustments being made in respect to, inter alia, the physical aspects of her work. In the circumstances, it is difficult to understand how it could be reasonable to think that the injuries could not impact on the training, or were not necessary to disclose to the VPM trainers in light of the information requested. At the very least, the answers reflect a lack of insight by the applicant. St Vincent’s’ concern that simply permitting Ms Gordon to undertake the training would place the applicant and trainers at risk was reasonable in light of St Vincent’s’ duties.

164    Eighth, St Vincent’s has relevant policies entitled “Fitness for Work, Managing Non Work Related Injuries and Illness and Heath Declarations Policy” and “Recruitment, Selection and Employment Screening of Workers at St Vincent’s Health Network Sydney Policy”. Under these policies, there is no preference or priority given to injured employees for vacant roles but the selection of candidates is based on merit (including knowledge, qualifications, experience, skills, and past professional conduct and performance, as supported by references) and the preferred candidate then being assessed as being capable of carrying out the inherent requirements of the position subject to reasonable adjustments. Although the applicant no longer maintains a claim that St Vincent’s acted under an incorrect policy, she submitted that this policy was inconsistent with the DD Act. It was submitted that the NSW Health Service policies entitled “Recruitment and Selection of Staff of the NSW Health Service Policy Directive” and the “Injury Management and Return to Work Policy Directive”, did not require a person to obtain another position through a merit based process. The ANMF also claimed that the applicant was an excess staff member who should be given ‘priority assessment’ before other applicants for vacant roles pursuant to a NSW Health policy entitled “Managing Excess Staff of the NSW Health Service”. As to the latter, St Vincent’s took issue with that characterisation, and there is no suggestion in the evidence that the applicant was an excess staff member. The applicant relied on the NSW Health policies as part of her submission that if a person with a disability is performing particular work such that they can be transferred to another role, (which she contends she was), they are not required to compete for any vacant position on merit (that is, she should have been given priority). That submission is dependent on the meaning of “particular work”, which is addressed below at [208]-[223].

165    The significance of this issue to the hearing appears to have been elevated to a position it does not have. Policies may provide some guidance to employers, but an employer must comply with the DD Act. The ultimate questions are factual, as to what the employer did, or did not do. That applies to all the policies relied on in this hearing, including those relied on by the applicant. That a policy document suggests that a person ought to be given priority does not address the factual issues that arise under the DD Act in a particular case.

166    Finally, a significant number of the applicant’s submissions were directed to topics not addressing the ultimate questions to be determined in this application. The question is not whether the applicant was treated fairly, or could she have been treated in a different manner. Nor is the question whether, per the applicant’s case, St Vincent’s had determined to terminate her employment after the first show cause letter. Rather, the question is whether the applicant has established the elements of the claim of direct discrimination in respect of St Vincent’s’ failure to provide reasonable adjustments.

167    Whether a matter is a reasonable adjustment, and whether there would be unjustifiable hardship implementing an adjustment, are fact specific. That assessment is necessarily impacted by the nature of the work involved, and the work environment. In this regard, the applicant’s submissions tended not to recognise the legal responsibilities on St Vincent’s in respect to the safety and welfare of its staff and patients.

168    It assists to provide two illustrations. First, is the applicant’s submission regarding St Vincent’s, in particular Mr Pun, requiring she do the VPM training before she would be allowed to commence at Caritas on the basis of Dr Perla’s report: see [85] above. Mr Pun gave evidence that he had safety concerns and concluded there was a “very real possibility of injury to herself and to potentially others” when considering a real life setting. Leaving aside whether a transfer to Caritas is a reasonable adjustment, which is addressed below, that Dr Perla did not mention any safety concerns in his report, as highlighted by the applicant, does not render St Vincent’s concerns not genuine. Any submission that because Dr Perla did not mention safety concerns, St Vincent’s should have permitted the applicant to start work at Caritas without the training, cannot be accepted. The relevant factual circumstances are outlined above at [158]. Consistent with the nature of St Vincent’s’ concerns, the applicant was not being stopped from working at Caritas merely because those concerns were held, but rather, the VPM training was to occur to ensure she was properly equipped to undertake and meet the inherent risks of the role. Moreover, the issue of the applicant being stopped from undertaking the VPM training only arose because of the outcomes of the prior functional assessments.

169    The second and related example, was the submission that the “Job Demands Checklist for X8N and Caritas Mental Health Unit have the same requirements for restraint of patients. Neither Ms Gordon, Mr Yates nor any other person had raised concerns about Ms Gordon’s capacity to perform restrain[t]s”. That was put as a reason why the applicant should have been permitted to commence the position at Caritas without the VPM training. However, the submission is misconceived, because whatever happened at X8N was before Ms Gordon’s arm injury (and one supposes before the deterioration of the knee injury which, noting the chronology above, apparently occurred after the applicant was on leave for the arm injury). The submission takes no account of the arm injury which, inter alia, was the basis that she could not perform the role at X8N. The submission also pays no regard to the evidence that establishes the VPM training was a requirement for RNs at Caritas because of the specific risks: see for example, [98] above. The applicant simply relying on the Job Demands Checklist takes far too narrow a view of the roles. In so far as the applicant submitted there was no difference in the roles in terms of the need to conduct restraints, I do not accept that submission.

170    The applicant’s submissions are advanced solely from her perspective and motivations, and suffer from a failure to recognise the broader obligations placed on St Vincent’s.

Claims

Applicant’s submissions

171    As explained above, the applicant’s case is based on the failure of St Vincent’s to provide reasonable adjustments, in circumstances contravening both s 15(2)(a) and (c) of the DD Act. In relation to s 15(2)(a), in her written reply the applicant submitted that the conduct said to constitute discrimination was the requirement Ms Gordon return to X8N without reasonable adjustments because she could not perform the role because of her disabilities. The effect of St Vincent’s failing to make reasonable adjustments for Ms Gordon was that she had to remain away from work, did not earn remuneration and used up her leave. She also submitted that St Vincent’s admitted it’s conduct as pleaded by Ms Gordon (that it failed to provide Ms Gordon with ‘particular work in a ward, unit or institution within her clinical experiences as a RN’) fell within 15(2)(a) of the DD Act. In relation to s 15(2)(c), the applicant submitted the only reason for her termination was her disabilities. Ms Gordon submitted that “the only reason [she] was not able to carry out the inherent requirements of the role at X8N [was] because she was not provided with reasonable adjustments that she required because of the disabilities”.

172    In her written closing, the applicant submitted that St Vincent’s incorrectly determined that the applicant’s disabilities were not work related and that as such it was not under a legal obligation to provide her reasonable adjustments. She submitted that workplace adjustments were proposed: in Dr Ilanko’s report dated 3 June 2018; in a letter from the ANMF on 13 August 2018; by the applicant in 2015 when she proposed that she use a hand wash called Spirigel which did not aggravate the dermatitis condition like the alcoholic hand wash on the ward ‘Microshield’, and in 2017 when she made numerous complaints about the surface of the floor at X8N; by Dr Shahzad on 28 May 2020 when he proposed workplace adjustments of ‘ongoing support and possibly working in pairs (buddy)’ and recommended ‘counselling and specific case management and support by RH and a rehabilitation provider’; and Dr Keller on 5 August 2022, when he recommended that for the applicant to return to X8N she would require ‘other staff performing the duties of direct patient care, movement of furniture and movements of beds with patients.’ The applicant submitted that “all of the proposals made by Ms Gordon, Dr Ilanko, ANMF, Dr Shahzad and Dr Keller are reasonable adjustments that St Vincent’s could have made”, and therefore St Vincent’s did not make reasonable adjustments for the applicant.

173    The applicant submitted that her treatment was less favourable than a comparator would have received. That comparator was a person, inter alia, without the physical conditions suffered by Ms Gordon, that had provided medical evidence that she was unable to perform the inherent requirements of the role without adjustments, had sustained her injuries at work, had a long and good performance record with St Vincent’s and was ready and willing to return to work.

174    The applicant submitted that:

St Vincent’s conduct from April 2018 onwards was to require Ms Gordon to return to X8N without any adjustments or to participate in a competitive merit selection process to find a new role within the organisation. It continued to send her to different medical experts for fitness for purpose assessments and intervened to make the reports from Dr Perla and Ms Camilleri adverse to Ms Gordon’s capacity to return to work. It took steps to stop Ms Gordon attending necessary training and misinterpreted the medical opinions of Dr Ilanko and Dr Shahzad.

175    The applicant’s case is that “at every opportunity, St Vincent’s took active steps to hamper [her] ability to return to work”.

Respondent’s submissions

176    The respondent submitted the alleged term or condition the subject of the claim under s 15(2)(a) was not made out as a matter of law. This was because it was not clear the basis upon which Ms Gordon claimed a term or condition of her employment afforded by St Vincent’s was that St Vincent’s was required to provide her with particular work in a ward, unit or institution within her clinical experience as a RN with reasonable adjustments. In respect of the submission that the failure to make reasonable adjustments in the context of the applicant’s terms or conditions of employment meant that she had to remain away from work, did not earn remuneration and used up her leave, St Vincent’s submitted that position was not pleaded, has never been the case put and opposed any change in position.

177    In respect of the claim under s 15(2)(c), the respondent’s case emphasised the applicant’s failure to identify proposed reasonable adjustments, or adjustments that would not impose an unjustifiable hardship on the respondent. The respondent’s position that the onus is on the applicant to plead and particularise the reasonable adjustments is addressed below at [186]. It submitted that to the extent Ms Gordon’s true grievance is that St Vincent’s did not engage multiple experts to identify what reasonable adjustments may have been available to her to perform her role as a RN at X8N or elsewhere, it involves fundamental misunderstanding of what is a reasonable adjustment. Even assuming that a workplace functional assessment is capable of constituting a reasonable adjustment, it submitted that it does not follow that the failure to conduct such an assessment results in less favourable treatment, as an assessment may recommend that no changes are made. To the extent that using a different soap had been identified as a reasonable adjustment, in fact, that was implemented. The sticky floors would not address the issue of re-aggravating the applicant’s knee injury, as the risk of re-aggravation existed by virtue of performing the duties themselves, not the sticky floors. Ms Gordon’s requests for things to be done were vague and insufficient to place St Vincent’s on clear notice of the reasonable adjustments that it failed to make, for example in respect of adjustments like “less walking”. It submitted that purported adjustments in Dr Ilanko’s report, were in fact changes to the role itself by removing duties. Moreover, the provision of a ‘buddy’ cannot constitute a reasonable adjustment because it is an arrangement by which other employees (and not Ms Gordon as the person with the disability) would be made to perform the particular work: citing Berry at [28]. St Vincent’s submitted that in any event, providing a work colleague as a ‘buddy’ to Ms Gordon in performing her duties was financially unfeasible and outside budget. It thereby amounted to an unjustifiable hardship under s 11 of the DD Act, and therefore would not be a reasonable adjustment within the meaning of s 4 of the DD Act. Similar submissions were made in respect to transferring Ms Gordon to another position.

178    It noted that the applicant did not plead the characteristics of the comparator. It submitted that the correct approach is to identify the relevant comparator by reference to the circumstances at the time of dismissal on 13 July 2021 that were relevant to the decision to dismiss. When this was done, the overwhelming evidence from the contemporaneous documents supporting and recording the decision indicates it was Ms Gordon’s inability to perform the inherent requirements of the position, and not the reasons for that inability, which was the operative factor.

179    By reference to s 21A, the respondent submitted that even if Ms Gordon established that St Vincent’s had engaged in discrimination within the terms of ss 15(2)(a) or (c), St Vincent’s did not commit unlawful discrimination because she was unable to perform the inherent requirements of the particular work even if St Vincent’s had made reasonable adjustments.

Claims under s 15(2)(a)

180    As is plain from the recitation of the submissions, both claims are based on a failure to provide reasonable adjustments. That said, the respondent raised issues as to the basis of the applicant’s claim for a breach of s 15(2)(a) of the DD Act. The pleading in relation to this alternative is recited below at [187]. As referred to above, the applicant contended that St Vincent’s admitted that the allegation it failed to provide Ms Gordon with ‘particular work in a ward, unit or institution within her clinical experiences as a RN’ fell within 15(2)(a) of the DD Act. However, what was pleaded by the respondent was that the allegations concern the terms and conditions of her employment, and therefore the allegations fall within 15(2)(a), and not ss 15(2)(b) or 15(2)(d) (at that time those provisions were also relied on by the applicant, but were amongst those later abandoned). The allegations were denied. The respondent submitted the applicant had not developed that submission in respect of the analysis required under s 5(2).

181    The respondent submitted that aspect of the applicant’s claim under s 15(2)(a) where she alleged she had to remain away from work, did not earn remuneration and used up her leave, was not pleaded, and the position as finally advanced in the written reply submission is a new assertion. There is merit in that criticism.

182    The claim is not particularised, and did vary over time. It suffices to refer to the position as finally articulated by the applicant. In written reply submission in closing, the applicant submitted at [71]-[73]:

The conduct said to constitute discrimination was the requirement to return to X8N without reasonable adjustments. This was discriminatory because Ms Gordon could not perform the role because of her disabilities. …

...The evidence relied on by St Vincent’s is unequivocal that at no stage did it consider making any adjustments for Ms Gordon so that she could return to X8N.

As a result of the discriminatory conduct, Ms Gordon was not paid a salary and was required to seek leave.

183    In oral submissions, the applicant contended that in respect to this alternative claim, when the administrative work at the Transport Department was “unilaterally halted” by St Vincent’s she was asked to return to the ward. She submitted that her terms or conditions were to work as a full-time RN at the ward at that time and she was not afforded those terms and conditions because she could not fulfil the inherent requirements of the role. The discriminatory conduct was the failure to provide the reasonable adjustments. The practical consequence was that from 4 May 2018, the applicant stopped receiving a salary.

184    The case as finally articulated by the applicant is based on the premise that the provision of the reasonable adjustments would have enabled her to return to work at X8N. For the reasons below, that is not established. Further, as apparent from my conclusions above at [146]-[150], I do not accept the applicant’s characterisation of St Vincent’s’ conduct in relation to the issue of her return to X8N from the Transport Department. Moreover, the employment in the Transport Department (which was administrative work) was always time limited, as known to the applicant at the time. As the applicant accepted, that work was not an adjustment.

185    In so far as the applicant suggested at times that there should have been the provision of work elsewhere within her clinical experience, she has not identified the basis for that purported condition of her employment. As the respondent correctly submitted, it is unclear the basis on which Ms Gordon claims a term or condition of her employment afforded by St Vincent’s was that St Vincent’s was required to provide her with particular work in a ward, unit or institution within her clinical experience as a RN with reasonable adjustments. The applicant did not point to any condition in the Nurses Award, the enterprise agreement or her contract of employment (noting no written contract was in evidence), which are the documents referred to in the pleading. The term or condition is not identified. In relation to that, I address the particular work she was engaged in at the time of her injury below.

Pleadings

186    The respondent submitted that the applicant has the onus of pleading and particularising the reasonable adjustments that St Vincent’s is alleged to have failed to make and the effect of such failure, being that she was “treated less favourably than a person without the disability would be treated in circumstances that are not materially different” because of her disability. The respondent took issue with the adequacy of the pleadings from the outset of the proceedings. So much is apparent from the terms of the defence filed. It submitted that despite requests that it do so, the applicant has not pleaded or particularised the alleged reasonable adjustments that St Vincent’s did not make or proposed not to make, at least before the oral closing submissions.

187    In written opening submissions in reply filed very shortly before the commencement of the hearing, the applicant abandoned a number of her claims. This included claims alleging breaches of s 15(2)(b) and (d) of the DD Act, an indirect discrimination claim under s 15(2)(a) based on the requirement that the applicant apply for positions on a competitive basis, and a breach of her employment contract. In the result, the applicant filed a FASOC, reflecting those changes. The claims remaining are as follows:

24.    On or about from 4 May 2018 until 13 July 2021 the Respondent discriminated against the Applicant on the ground of the disability by not making or proposing to make reasonable adjustments for her contrary to s5(2)(a) of the DD Act.

25.     The failure of the Respondent to make reasonable adjustments had the effect that the Applicant, because of the disability was treated less favourably than a person without the disability would have been treated in circumstances that were not materially different.

…

29.     The Respondent contravened s15(2) of the DD Act by:

a.    Failing to provide her with particular work in a ward, unit or institution within her clinical experiences as a RN with reasonable adjustments: s15(2)(a) of the DD Act.

PARTICULARS

As to the meaning of particular work, reference is made to the terms of the Award, the Agreement, the Contract and the circumstances surrounding the employment relationship.

As to the meaning of clinical experiences as a RN, reference is made to the terms of the Award and the Agreement.

……

30.     The Respondent contravened s15(2)(c) by dismissing the Applicant on 13 July 2021.

188    The pleading is scant. On 3 March 2022, the respondent sought particulars from the applicant of what reasonable adjustments she alleged in [24] of the FASOC. The response was as follows:

A reasonable adjustment is any alteration or a modification made for the person (not the position) unless making the adjustment would impose an unjustifiable hardship on the employer.

The Respondent did not make reasonable adjustments for the Applicant in regard to the role at X8NW or to any role for which the Applicant could perform within her clinical experiences as an RN.

The positive obligation is on the Respondent to demonstrate that it made reasonable adjustments for the Applicant pursuant to s 5(2) of the DD Act.

The Respondent was required to consider the making of reasonable adjustments to the role at X8NW prior to determining whether or not the Applicant was able to satisfy the inherent requirements of the role.

The Respondent was required to consider the making of reasonable adjustments to any role for which the Applicant could perform within her clinical experiences as an RN prior to terminating her employment.

189    As can be seen, and as the applicant accepted, that response did not identify what reasonable adjustments the applicant alleged ought to have been made. The applicant merely recited the definition of reasonable adjustment and its position as to the positive obligation being on the respondent. Every case is fact specific as to whether the pleadings (and/or particulars) are sufficient to achieve their purpose. The applicant’s response to the request, in the circumstances, was plainly insufficient. It did not address the substance of the request. Pleadings must disclose a reasonable cause of action against the party against whom the cause of action is brought and must state all material facts necessary to establish that cause of action and the relief sought: Wride v Schulze [2004] FCAFC 216 at [25].

190    The applicant’s submission conflated the concepts of the necessity for a reasonable adjustment to be sufficiently identifiable at the time of the incident as addressed in Watts, with what is sufficient to plead a case. The purpose of the pleading is to put the respondent on notice of what it alleged: Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 (Banque Commerciale) at 286–7; Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 [2021] FCAFC 121; (2021) 287 FCR 388 at [422].

191    It is no answer to say, as the applicant does, that the respondent knew what the reasonable adjustments were. That is particularly so in this case, where the applicant’s position appears to change at times, where the respondent asked for particulars (and its pleadings complain of a lack of particulars), where it took until closing submission (in response to a question) for the applicant to identify what was said to be relied on, and where she did not properly identify the time the respondent was said to be on notice of the adjustments she required. The applicant’s case was also not assisted by her submission that the cases relied upon by the respondent in support of its submission relate to strike out applications. The statements in those authorities, referred to above at [16], reflect the application of uncontroversial principles regarding the purpose of pleadings. As noted above, the purpose of putting the respondent on notice of her case is particularly important in a context where the DD Act contains the exceptions of inherent requirements and unjustifiable hardship, on which the respondent bears the onus. A failure to properly plead or particularise a case may impact on a respondent’s capacity to lead evidence on those topics. There is no proper basis in this case for the applicant failing to properly or sufficiently identify or particularise what she relied upon as the reasonable adjustments that were not provided (at least until closing submissions). The applicant’s pleadings in this case do not state the material facts necessary to establish the causes of action.

192    The applicant’s approach to this case generally failed to appreciate or recognise that she had the onus of establishing the conduct St Vincent’s is alleged to have engaged in: Watts at [257].

193    It may be accepted that Mortimer J said in Watts that the language of s 5(2) suggests a positive obligation on a discriminator, although the “assessment of whether there is discrimination will focus on what was, in fact, done or not done, rather than on any ‘duty’”: Watts at [232]-[233]. However, that does not gainsay that the adjustment(s) must be sufficiently identifiable to enable the alleged discriminator to determine whether making it will impose unjustifiable hardship: Watts at [25]. It does not relieve the applicant of the responsibility for establishing the adjustments with sufficient particularity, or the requirement to plead what is alleged.

194    On this topic of an obligation on the respondent, the applicant primarily relied on [74] of Watts, which recites a submission advanced by the applicant in that case. It is in that part of the reasons that summarises the parties’ submissions (this being under the heading ‘First contention’). Her Honour addresses her conclusion and findings in respect to that contention later in her reasons at [232]-[272]. That contains the principles to be derived from her Honour’s assessment of the first contention. There is no basis to contend, as the applicant does, that as Mortimer J did not expressly dismiss the recited submission that it was accepted. This submission does not assist the applicant’s case.

195    I note also that in a recent decision of Deam v Starlight Children’s Foundation Australia [2023] FCA 259, Mortimer J, as her Honour then was, considered an application for leave to commence proceedings under the DD Act which, in part, relied on a claim based on the absence of reasonable adjustments having been provided by an employer: see the summary at [70]. Her Honour, having adopted her observations in Watt at [15]-[27], concluded at [75] on that aspect that:

There are insufficient material facts pleaded about what adjustments Starlight was required to make, in practice, in the workplace of the Captain Starlight Program, how those adjustments would in reality be implemented in the hospital premises attended by Ms Deam, or for how long it was required to make those adjustments. These kinds of material facts are required to demonstrate how it is said the nominated adjustments were “reasonable” and were required for Ms Deam to perform her work as a Captain Starlight. As I have observed, something more than the rehabilitative and compensatory conduct required by Starlight under the WIRC Act needs to be alleged, and there needs to be a clear connection to Ms Deam’s (in)ability to perform her work as a Captain Starlight without the specified adjustments she contends it was reasonable for Starlight to make.

196    Although each case is fact specific, this passage further illustrates the obligation on the applicant to plead the material facts and to identify and plead the reasonable adjustments relied on: and see Ponraj v Wycombe Services Pty Ltd [2023] FCA 118 at [72].

197    In her closing submission the applicant identified the following matters that she alleged were the reasonable adjustments required: (1) the floor complained of by the applicant should have been made less sticky; (2) alternative hand wash should have been provided; (3) less walking, based on the report of Dr Ilanko; (4) less handwashing, based on the report of Dr Ilanko; (5) assistance with lifting, pushing and pulling, based on the report of Dr Ilanko; (6) the provision of another employee to support or assist the applicant, the “buddy” referred to by Dr Shahzad and Dr Keller; (7) engaging a rehabilitation provider to determine what reasonable adjustments the applicant required; and (8) transfer of the applicant to another suitable role within her skill and experience level, regardless of merit. As apparent from the pleaded claims recited above, these matters are not pleaded, and nor are they referred to anywhere in the FASOC (noting that a failure to provide her with particular work in a ward, unit or institution within her clinical experience as an RN with reasonable adjustments was plead as a breach of s 15(2)(a) and not a reasonable adjustment itself). It is also apparent that the allegation that St Vincent’s failed to provide reasonable adjustments is a necessary part of each of the claims under s 15(2)(a) and (c). For completeness, I also note also that although Dr Shahzad is referred to in the FASOC, it is not in relation to his opinion as to the provision of a “buddy”.

198    Leaving aside whether those matters identified are adjustments or reasonable adjustments, and whether they were identifiable at the time, if that is the applicant’s case, it is difficult to understand the failure to particularise it as such. It has no doubt contributed to her case being presented with a lack of clarity.

199    Tellingly, the applicant’s case put in closing is that she is seeking reinstatement with reasonable adjustments. For that, the applicant submitted:

For reinstatement to be granted, Ms Gordon must satisfy the Court that she can perform the inherent requirements of the role with reasonable adjustments. Ms Gordon relies on Dr Keller’s and Dr Shahzad’s evidence, which is that she can perform the inherent requirements of the role at X8N by working in pairs with another person who can be an Assistant in Nursing or an Enrolled Nurse.

200    That is what the applicant now contends to be the necessary adjustment to enable her to work at X8N. That is consistent with the applicant’s case under s 15(2)(a) and (c), which was premised on her ability to continue performing the inherent requirements of her role had St Vincent’s provided the reasonable adjustments she alleges. Indeed, on the applicant's case, had St Vincent's provided those reasonable adjustments, she would have been able to continue working in another role within her clinical experience as an RN, or return to X8N receiving remuneration and not be the subject of dismissal.

201    The respondent submitted that the applicant should be held to her pleading (or lack thereof). Further, if the applicant were allowed to proceed on the basis now identified, it would cause significant prejudice to St Vincent’s because it had been denied the opportunity to present evidence on whether an adjustment is appropriate and to demonstrate that it would impose unjustifiable hardship to provide such an adjustment. I note that the only item later identified by the applicant as an adjustment on which some evidence was led by the respondent, related to the suggestion that she be paired with another nurse. This was a suggestion addressed by St Vincent’s after Dr Shahzad’s report.

202    As recognised in Watts at [90], a party should be held to the case is has pleaded, unless all parties agree or the interests of the administration of justice require otherwise: Banque Commerciale at 286-287. Taken at its highest, most favourable to the applicant, the FASOC refers at [29(a)] to failure to provide her with particular work in a ward, unit or institution within her clinical experiences as a RN with reasonable adjustments. If that is being transferred to another ward, unit or institution, it provides no material facts. None of the other matters identified in closing, are referred to in the remaining pleading.

203    The applicant submitted in closing that St Vincent’s admitted in its pleading that it had discriminated against the applicant within the meaning of s 5 or s 15 of the DD Act as it had not explicitly denied those allegations in its amended defence. I do not accept that submission. The applicant also submitted that the first she was aware that St Vincent’s denied discriminating against the applicant was after all the evidence had been filed, and it is unfair to permit St Vincent’s to now deny that allegation. The applicant did not articulate the unfairness. Except for the obvious outcome of the respondent’s position being that the applicant had to prove her case, the applicant has not suggested she was prejudiced in the conduct of her proceeding. In any event, I do not accept that was the first time the applicant was aware of the denial. It is plain from the pleadings that there was no such admission. Indeed, the defence states, inter alia, that the respondent “generally denies” the relevant paragraphs of the amended statement of claim, and “does not know and therefore cannot admit that it failed to make reasonable adjustments as the alleged reasonable adjustments have not been sufficiently particularised”. In circumstances where the case for discrimination was based on the allegation that St Vincent’s had not provided reasonable adjustments, this is a denial of the conduct that founds the case. Contrary to the applicant’s contention, St Vincent’s pleading s 21A and s 21B, in the circumstances in which it has, is not an admission. The terms of the defence are clear. In this context, I note Mortimer J’s obiter in Watts at [45], where her Honour opined “[b]y the use of the conditional tense, the statute contemplates that the task required by s 21A(1)(b) can be carried out hypothetically.” In accordance with there being no admission, the proceedings were conducted on the basis that the applicant had the onus of proving her case.

204    As explained above, the applicant did not, until her closing submissions, identify what she submitted were the reasonable adjustments. They were not pleaded, or otherwise particularised in sufficient manner prior to the hearing, as required. This is not a strike out application. That said, the lack of pleading impacts on the applicant’s ability to establish her claim. The applicant has not pleaded the material facts necessary to establish her claims. The applicant has not identified, and therefore not established, the adjustments which she says St Vincent’s failed to provide. That, in itself, is sufficient to dispose of this claim.

205    In any event, and despite that, I address the now identified matters said to be reasonable adjustments that St Vincent’s are alleged to have failed to provide, relevant to the applicant’s claims. For the reasons below, the applicant has not established that St Vincent’s failed to implement reasonable adjustments, based on the matters she identified in closing submissions. That is, even if the eight items now relied on where pleaded by the applicant as adjustments that St Vincent’s had failed to provide, the claims are not established.

Alleged reasonable adjustments

206    Given the basis of the applicant’s claims (and the respondent’s reliance on the exception in s 21A of the DD Act), the first consideration is necessarily the reasonable adjustments she now identifies, and specifically, whether the applicant has established that St Vincent’s did not implement reasonable adjustments.

207    However, before doing so it is convenient to address the topic of the “particular work” the applicant was employed to do.

The work the applicant was employed or appointed to do

208    In the context of s 21A, the concept of a reasonable adjustment explained in Watts, necessarily first directs attention to the “particular work” that the applicant was employed or appointed to do. St Vincent’s submitted that her particular work was as a RN at X8N, the ward to which she was assigned at the time she sustained her arm injury. On the other hand, the applicant submitted that the particular work was not only that work performed at X8N. Rather, it was “work within her skill and experience as an RN at her classification level (8th Year)”, which was within her clinical experience with some short term training, such as the role at Caritas.

209    In Watts, Mortimer J at [45] addressed the phrase “particular work”:

Although the word “work” is chosen so that it is capable of covering all the situations with which Div 1 deals, the use of the adjective “particular” suggests Parliament intended a further level of precision to be applied to identifying the “work” said to carry inherent requirements. In my opinion, s 21A requires a focus on the position, task, services or conduct the aggrieved person performs, or seeks to perform, in the workplace. For example, in s 18(3), which deals with partnerships, the relevant prohibition at paragraph (b) (not excluded by s 21A(4)) relates to expulsion from the partnership. In order to assess the application of s 21A(1), it will be necessary to identify what “particular work” the disabled partner was performing, was asked to perform, or sought to perform. For example, was it to manage the human resources area of a partnership, or marketing, or client relations? That is the “particular work” whose inherent requirements must be identified.

210    In Huntley, having cited the above passage (after further consideration), Perry J concluded at [172]:

….there is no reason to suppose that the Parliament intended to attribute a different meaning to the concept of the “inherent requirements of the particular work” in the context of the successor provision to s 15(4), namely s 21A (quoted at [103] above). In this regard, the reference to the word “work” serves, in my view, to further emphasise the need to focus upon the specific circumstances of the individual’s work as opposed to a generic position or position description.

211    This is a factual inquiry and focuses upon the position, tasks, service or conduct that the applicant performed in her workplace at the time of the injury: Watts at [45]; Huntley at [177].

212    As the respondent submitted, there is no written contract of employment in evidence. Nor was there any evidence of conversations during the recruitment process for the applicant’s role at St Vincent’s to support that in her contract of employment the particular work for which she was engaged, is as she now contends. The applicant applied for a job in 1995. It was in response to an advertisement for a specific position and unit, being the renal/urology unit on night shift. The applicant’s application for the position was directed to showing that she had some experience in that area. As the applicant accepted in cross-examination, during the interview for that position there was no discussion about roles other than the position in the renal/urology unit, and there was no discussion about the possibility of being transferred to other wards. The applicant was employed to work in the renal/urology unit (the ward being Cahill 12). The applicant was not appointed to a general RN role. Over time Ms Gordon did move wards, when the ward in which she worked was closed, physically moved, or amalgamated with others. There is no suggestion in the evidence that this was other than by agreement with Ms Gordon. The evidence is that the applicant was always assigned to a specific ward.

213    The basis for the applicant’s submission that the breadth of her particular work encompasses work within her skill and experience as a RN at her classification level, is unclear. It appears that the applicant relies in large part on the evidence of Ms Purdue that the experience of a RN in one area of practice can be transferred to a different area, as the same Standards of Practice apply to all RNs across all areas. Based on Ms Purdue’s evidence, the applicant submitted that although there are many different specialisations within the hospital, the fundamental tasks that underlie those specialisations are all based on the same competencies, and the specialised skills can be acquired in a short period of time. Leaving aside whether that submission is correct, it does not address the question of the particular work in which the applicant was engaged in, within the meaning of the DD Act.

214    Moreover, as earlier explained, I have difficulty with aspects of Ms Purdue’s evidence. As referred to above, her evidence appeared to suggest that having the required competencies to be an RN means that all RNs are equally qualified to do any nursing job requiring a RN, regardless of the area in which the work is to be done (albeit acknowledging that transferring to a different area of nursing involves a RN having to gain new skills which may take time). Her evidence was at a high level of generality. Ms Purdue maintained that position, not making reasonable concessions to propositions put in cross-examination. Ms Purdue only reluctantly acknowledged that when applying for a position, some RN’s might be more qualified than others, or transition to a new role more effectively based on their ability to adapt. Similarly, she was reluctant to accept that RN’s may perform the work in a new area with different aptitude and speed, or ultimately attain a higher level of proficiency.

215    As referred to above, I accept the evidence of Mr Webb as to the engagement of RNs in St Vincent’s and the transferability of RNs to different wards or units. This evidence is summarised above at [137]. I prefer his evidence where there is any difference between it and Ms Purdue’s evidence on this topic. It should be recalled that Mr Webb’s evidence included that a vacancy at St Vincent’s (apart from those in the general or casual pool) will be in a specific ward or unit in a clinical area, and the RN will be employed to fill the vacancy at the specific ward. It follows that applicants for the position would apply based on being qualified to undertake the specific role. Any application in support would be directed to illustrating and supporting that suitability. I note also, as reflected by the evidence of what occurred in this case, vacancies are advertised, are applied for, and appointments made based on merit. Some applicants may be considered unqualified or unsuitable for a role. It is not simply a question of transferring a RN.

216    It may readily be accepted that even though a RN has basic and foundational skills to provide direct clinical care to patients in a clinical setting, RNs also acquire unique specialist skills relevant to a particular area of nursing practice through experience, training and qualifications. It may also be accepted that each ward/unit must have a balanced mix of RNs with appropriate skills, experience and training to address the range and type of patient illnesses, acuity and complexity of patient conditions, the volume and speed of work and any specific patient care requirements. That is not to suggest that an RN might not, depending on the circumstances, transfer to a different ward.

217    As a RN, the applicant was working in X8N in a role which was commensurate with her skill level, experience and expertise. As the respondent correctly submitted, it does not follow that she necessarily had the skills, experience, expertise or temperament to work in other wards/units.

218    The evidence establishes that RN’s provide direct clinical care to patients in wards or comparable settings. Skills acquired to become a RN include those gained via university study by obtaining a Bachelor of Nursing and ‘on-the-job’ training. The role includes manual handling (such as rolling patients safely out of bed), transferring patients who cannot rely upon their own balance and taking personal care of patients by assisting them getting dressed.

219    As noted above, prior to her arm injury, the applicant was working at X8N. The applicable position description for a RN at X8N includes that the RN provides “nursing care”. In cross-examination, the applicant agreed that phrase meant, amongst other things, “helping patients with their daily tasks and activities as needed” including, if they could not do it themselves, rolling patients out of bed, helping them to stand up steadily when they are getting out of bed to keep their balance, getting dressed and taking showers.

220    The physical and cognitive demands on a RN at X8N are set out in the Jobs Demands Checklist. Critical demands are defined in that document as demands that are frequent or constant or deemed to be essential to the job. Relevantly, the RN role involves frequent interaction with unpredictable people (for example, with dementia, mental illness, and head injuries), standing, walking, repetitive hand and arm movements and grasping/finger manipulation, and frequent handwashing and wearing gloves. In an email sent on 12 November 2017, after having reviewed the Jobs Demand Checklist, the applicant informed St Vincent’s that the document underestimated the frequency of certain physical activities in her experience. The email stated the following demands should be assessed as frequent: bending and leaning forward from the waist, trunk twisting from the waist to perform tasks, forward reaching (noting the positioning of patient call buttons), pushing and pulling (in the showering/toileting of patients on commodes, and moving beds, chairs, lockers and luggage) and overhead reaching. The applicant agreed in cross-examination with that earlier assessment and also noted that the Jobs Demand Checklist does not take into account patient load, which she said may affect the physical nature of the role.

221    The medical evidence as to the applicant’s ability to fulfil the requirements of the position and the opinions expressed therein are based on the Job Demands Checklist, which was provided to the various practitioners. If anything, based on the applicant’s evidence, that document understates the physical requirements of the position. That put the applicant in a more favourable position in any assessment of her ability to perform the inherent requirements of her particular work.

222    I note also that in so far as the applicant submitted if a task is not listed as critical in the Jobs Demand Checklist it is not essential or inherent to the job for the purpose of s 21A, the approach is unduly narrow.

223    In light of the foregoing, I am satisfied that the particular work the applicant was doing at the time of her injury was as a RN in X8N. Noting the applicant’s failure to establish her claims in respect to reasonable adjustments as outlined below, it is not ultimately necessary to have regard to s 21A to resolve the issues in dispute. Nevertheless, the foregoing analysis is also relevant to the work the applicant was employed or appointed to do, for the purposes of assessing whether the changes proposed to her role are properly considered adjustments.

Reasonable adjustments

224    The reasonable adjustments identified in closing by the applicant are recited above at [197], but it is convenient to repeat them here. There are eight, sometimes overlapping items: (1) the floor complained of by the applicant should have been made less sticky; (2) alternative hand wash should have been provided; (3) less walking, based on the report of Dr Ilanko; (4) less handwashing, based on the report of Dr Ilanko; (5) assistance with lifting, pushing and pulling, based on the report of Dr Ilanko; (6) the provision of another employee to support or assist the applicant, the “buddy” referred to by Dr Shahzad and Dr Keller; (7) engaging a rehabilitation provider to determine what reasonable adjustments the applicant required; and (8) transfer of the applicant to another suitable role within her skills and experience level, regardless of merit.

225    That said, as explained above at [199], the applicant’s case for reinstatement is that she can perform the inherent requirements of the role at X8N by working in pairs with another person. From that case it can be inferred that working in pairs is the adjustment the applicant accepts was necessary, without which she could not perform the role. That is relevant to the applicant establishing her pleaded case under s 15(2)(a) and (c), because that case, as ultimately advanced, is based on the premise that the provision of the adjustments identified in closing submissions would have enabled her to return to work at X8N. I note also, that the applicant’s submission is directed to reinstatement at X8N. It can also be inferred that the applicant took that approach, recognising, at least tacitly, that being a RN at X8N is the particular work she was undertaking at the time of her arm injury.

226    I turn to consider each item (albeit not in the order they were listed).

Item 7

227    Underpinning the applicant’s case is the submission that St Vincent’s should have engaged a rehabilitation provider to determine what reasonable adjustments the applicant required (what she ultimately identified as item 7 in closing submissions). Accordingly, it is appropriate to first address that item before turning to the balance of the purported adjustments ultimately identified. On the applicant’s case, although it is now submitted that a rehabilitation provider ought to have been engaged after the Ilanko report on 3 June 2018, it was not suggested to St Vincent’s until the ANMF raised it in response to the first show cause letter. I note that neither engaging a rehabilitation provider, nor Dr Ilanko’s report is referred to in the pleadings.

228    I am not persuaded that this falls within the concept of an adjustment.

229    The nature of a reasonable adjustment is addressed above at [13]-[16]. In Izzo, Moshinsky J concluded that a failure to carry out a functional behavioural assessment does not fall within the description of an adjustment, which is “an alteration or modification”: Izzo at [50], citing Watts at [22]. An assessment is a tool of analysis that may recommend the making of certain adjustments and as such it “does not itself involve an alteration or modification; indeed, it may recommend that no changes be made”: Izzo at [50]. The failure to engage an assessment by a rehabilitation provider is to the same effect. The conduct of an assessment is not, in itself an alteration or modification for the person which operates on the person’s ability to do the work they were employed to do: Watts at [23].

230    To similar effect in Watts, Mortimer J concluded at [231]:

However, I do not accept the applicant’s contention that a return to work plan, of itself, falls within the concept of a reasonable adjustment for the purposes of s 5(2). The respondent is correct to submit it is too removed from the work to be performed. The adjustment must be “for” the person, so the person can perform work. While an adjustment can be generally described (perhaps more so when dealing with a psychological injury), it must in my opinion be a nominated alteration or modification to a matter related to the work the person is employed or contracted to perform.

231    The applicant did not grapple with these authorities, rather, submitting that each case is dependent on its facts. That does not address the issue at hand, as to how the proposed action is properly considered an adjustment.

232    That the applicant’s submissions identify the need to do an assessment to determine what reasonable adjustments the applicant required, bespeaks the vagueness and generality of the other matters the applicant now relies on.

Item 6

233    Turning then to what the applicant now submits is the reasonable adjustment she considers necessary to perform the inherent requirements of her position at X8N, which is item 6 (and see [199] above). The applicant relied on the reports of Dr Shahzad and Dr Keller to submit that she can perform the inherent requirements of the role at X8N by working in pairs with another person who can be an assistant nurse or an enrolled nurse. I note that the applicant did not call any medical evidence, but rather submitted she was relying on the evidence of Dr Keller.

234    Care needs to be exercised when considering this submission. For example, in her written closing, the applicant described Dr Keller’s evidence as follows:

In August 2022, Ms Gordon attended on Dr Keller, an Occupational Physician. Dr Keller reports that Ms Gordon walked unassisted with a minimal limp[.] There were no restrictions with her left knee, even with excessive walking and that the ongoing dermatitis does not restrict her work capacity.

Dr Keller was of the opinion that Ms Gordon would be able to perform the inherent requirements of the role at X8N if she was able to work together with another employee to assist her with the duties of direct patient care which included the movements of furniture and movements of bed with patients [emphasis added].

235    This is not an accurate summary of his evidence: see [133]-[135] above.

236    Attention must be given to the detail of what the assessing doctors concluded, and their opinions must be considered in the context of the totality of their findings. It is unnecessary to repeat the detail of the reports here: in respect of Dr Shahzad’s report, see also [109]-[112]. Reference to the report of Dr Keller and the passage relied on suffice to illustrate. In full, it is as follows:

In my opinion Ms Gordon is fit to work up to full time hours. She can do the light administrative or supervisory tasks involved in registered nursing and continues to do these currently on a part time basis through a nursing agency. To return to the Xavier 8 North position she would require other staff performing the duties of direct patient care, movements of furniture and movements of beds with patients.

[emphasis added]

237    Later he said “she could only do these tasks without exacerbation if not required to do direct patient care”. As explained above at [135], direct patient care distinguishes between the “administrative, charting, drug management carers, non-direct patient care versus the physical contact, movements and personal care of a patient, the direct, hands-on care”. The opinion was also expressed in the context where the applicant had told him she was not able to do the role with the assistance that was available (that is, the equipment available and the other staff members who were there for nurses as assistance).

238    It is unclear how the provision of a “buddy” or a “pair” constitutes a reasonable adjustment (even leaving aside the absence of any detail) as it is premised on an arrangement where another employee(s) performed (at least aspects of) the applicant’s particular work: Berry at [28]. That does not operate on the applicant’s ability to do the particular work they are employed to do: Watts at [23]-[24]. Rather, it alters the role that the applicant is to perform. Direct patient care is an inherent requirement of the RN’s role on X8N. The applicant did not really suggest otherwise. I am not persuaded that this is within the concept of a reasonable adjustment.

239    That said, even if it were an adjustment, I am satisfied that it would impose an unjustifiable hardship on St Vincent’s. It is not to the point for the applicant to submit that it would be for the nurse manager to determine how that position or role would be covered, because the very nature of the concept involves someone doing part of the applicant’s role. Moreover, although the applicant submitted that the additional person could be an assistant nurse or an enrolled nurse, there is no evidence to support that submission. In any event, if the person was someone else already employed, it would take them from their existing tasks. If it required employment of another person (at whatever level), it would impose an unjustifiable hardship to require St Vincent’s to employ two persons to do the one job. This is bearing in mind, as described above at [237], Dr Keller’s opinion the applicant’s return required that she undertake no direct patient care. After receiving Dr Shahzad’s report referring to providing the applicant with a buddy, St Vincent’s assessed the cost and feasibility of providing a work colleague in that position. At that time, St Vincent’s formed the view that providing a work colleague as a ‘buddy’ to Ms Gordon in performing her duties was financially unfeasible. In addition, evidence was led during the hearing as to the cost of employing another RN. Although the applicant criticised the evidence, it can readily be accepted that employing another staff member (at whatever level) would impose a financial burden. The applicant’s submission that there is no evidence of St Vincent’s’ financial position, that the cost of employing another nurse would not be significant to a large employer like St Vincent’s and in effect, it could carry any additional financial impost, does not address the correct question of unjustifiable hardship. Although the financial circumstances of the employer and the expenditure required, is a consideration in s 11(1)(c) of the DD Act, it is not simply a question of whether St Vincent’s could afford to pay for an additional person. Moreover, the applicant also fails to grapple with the fact that on her case, the additional person is required whilever she is working (it is to be assumed until she retires). This is not a situation of an adjustment for a limited period, with the aim of returning her to pre-injury duties without adjustments. Rather, there are permanent restrictions on her ability to work. That person would always need to be available when she worked, for otherwise patient care may suffer. It follows that any financial impact may be ongoing. Taking into account the relevant circumstances in s 11(1) of the DD Act, if this was an adjustment and discriminatory conduct was otherwise established, I am be satisfied it would impose an unjustifiable hardship on St Vincent’s to require them to provide the applicant with a pair who would undertake all those duties of her role that involve direct patient care.

Items 1-5

240    As identified at [224] above, it is apparent that apart from items 7 and 8, which may be considered separately, on the applicant’s case, the remaining items require more than one concurrent adjustment to occur to enable the applicant to return to work as a RN on X8N. For the reasons above, item 7, engaging the rehabilitation provider, is not established. The use of a buddy or pair is identified as item 6, without which none of items 1-5 are sufficient or can be established, having regard to the medical evidence of Dr Keller and Dr Shahzad outlined above. That medical evidence demonstrated that to return to X8N, Ms Gordon would require other staff performing the duties of direct patient care, movements of furniture and movements of beds with patients. This is recalling also that the applicant’s claim is directed to an allegation that if St Vincent's provided the reasonable adjustments, she would have been able to fulfil the inherent requirements of her RN position at X8N. I note also that applicant abandoned claims under s 15(2)(b) and (d). For the reasons above, item 6 is not established. That leaves item 8, being a transfer to another position.

241    Nonetheless, before addressing that item, it is appropriate to refer to matters relevant to items 1-5, even though they are not in themselves sufficient.

242    As a preliminary consideration, the only purported adjustments identified in the list above that the applicant personally raised with St Vincent’s, were raised prior to her arm injury: in 2015 in relation to hand wash; and complaints in 2016/2017 about the sticky floors. However, the applicant continued to work at X8N after those requests were made, until her arm injury prevented her from working. In respect to the knee and dermatitis injuries to which items 1 and 2 relate, the applicant’s workers’ compensation claims had been closed and no further complaint had been made during the period before her arm injury. The dermatitis and the knee injury did not prevent her performing her role, and nor did the sticky floor. The one possible exception is that St Vincent’s’ records from April 2018 record the applicant had an expectation St Vincent’s would find her another job (as she did not think she could return to X8N), which she now identifies as adjustment item 8, to which I will return. I note that the applicant raised this with St Vincent’s at the same time she raised that her dermatitis and arm injury were recurring in addition to her arm injury (at that time without medical evidence): see [144] above.

243    The applicant accepts that she did not request at the relevant time St Vincent’s provide any specific or particular adjustment for assistance performing the role relevant to item 5 (assistance with lifting, pushing and pulling). The applicant’s submission in closing was that it was not reasonable for her to do so, as it requires specialist knowledge. However, when working on the ward, the applicant had no hesitation making other requests (as referred to in the preceding paragraph), or expressing in her affidavit what she was later required to do, and what she says now ought to have been done. It perhaps reflects that, as explained above, and consistent with her repeated express statements, her mindset was not that she wanted to return to X8N, but rather that she should be given some other job in another ward or unit.

244    Addressing each of the items briefly in turn.

245    In relation to the sticky floor (item 1), there is no evidence that the condition of the floor would re-aggravate her knee injury. Rather, on the expert evidence, it was Ms Gordon performing the physical demands of the RN role that risked re-aggravating her knee. It was only the applicant who expressed a concern that the sticky floor might re-aggravate that injury. As mentioned above, the sticky floor had not previously prevented her from performing her role. There is evidence that when the applicant complained the floor had been looked at by a work health and safety advisor from St Vincent’s. There is no evidence that this was raised at the time her return to the ward was being considered before April 2018. Nor is there any evidence of the state of the floor at that time, the applicant having been absent from X8N for some considerable time. The applicant’s complaint that there is a lack of evidence from St Vincent’s on this topic does not assist her, as she did not plead this as a matter material to any issue at this hearing. As a consequence, the issue of whether, and if so what modification was required or able to be undertaken is entirely speculative. This illustrates the importance of proper pleadings. In any event, this suggestion does not address the applicant’s knee issue, as referred to in the medical reports. It does not assist her to perform the particular work she was engaged to do. Nor would this, even on the applicant’s case, be sufficient to enable her to return to her role at 8XN.

246    In relation to alternative hand wash (item 2), after the applicant raised this issue in 2015, she was permitted to use her suggested alternative hand wash in the bathrooms. It follows that suggestion was implemented, although not to the extent she had wanted (this hand wash was not used in the ward itself). That said, it did not prevent her fulfilling her role. In written opening submissions in reply, the applicant appeared to accept at [27] that she does not now need reasonable adjustments in regard to hand dermatitis. In any event, as addressed above, even if this proposal had been fully implemented as a reasonable adjustment, again that would not be sufficient to establish the applicant’s pleaded case, because the other necessary reasonable adjustments have not been established.

247    The matters referred to in Dr Ilanko’s report (items 3-5) are, given the nature of a RN role at X8N, in the most general and vague terms. Moreover, the applicant’s submission that Dr Keller’s evidence said the same as Dr Ilanko’s, is incorrect. There is substantial detail in Dr Keller’s report, including how the restrictions might be addressed, where there is no such detail provided by Dr Ilanko’s. It is also to be recalled that Dr Ilanko’s report is not referred to in the pleading.

248    The activities the subject of the suggestions by Dr Ilanko, in combination, are at the heart of an RN’s role at X8N, as reflected by the Job Demands Checklist.