Bruce v Kincare Health Services Pty Ltd

[2019] FCCA 2547

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRUCE v KINCARE HEALTH SERVICES PTY LTD [2019] FCCA 2547

Catchwords:
INDUSTRIAL LAW – Fair Work – interlocutory application for injunctive relief.

Cases cited:

Pezzimenti v Rotary International [2019] FCCA 1854

Applicant: JULIE BRUCE

Respondent: KINCARE HEALTH SERVICES PTY LTD ABN 31 095 961 005

File Number: SYG 2285 of 2019

Judgment of: Judge Driver

Hearing date: 6 September 2019

Delivered at: Sydney

Delivered on: 6 September 2019

REPRESENTATION

Solicitors for the Applicant: Mr K Bolwell of WorkLawyers

Counsel for the Respondent: Ms K Edwards

Solicitors for the Respondent: FCB Workplace Law

ORDERS

1. The Court notes that the applicant undertakes to provide a copy of the forthcoming medical report of Dr Bijoy Thomas to the respondent by 13 September 2019.

2. The respondent is restrained from acting upon its letter of 30 August 2019 prior to the end of 13 September 2019.

3. Costs of today’s hearing are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2285 of 2019

JULIE BRUCE

Applicant

And

KINCARE HEALTH SERVICES PTY LTD ABN 31 095 961 005

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an urgent interlocutory application seeking relief against the respondent, KinCare Health Services Pty Ltd (KinCare).  Specifically, the applicant, Ms Bruce, seeks orders that KinCare be required to permit her to return to work on a full time basis, to withdraw any requirement for her to attend a medical examination, to withdraw correspondence dated 30 August 2019 and not to terminate her employment.

2. The only matter that I am dealing with is that application for interlocutory relief.  To that extent, Ms Bruce’s application is supported by her solicitor’s affidavit.  The solicitor has also provided written submissions as well as making oral submissions.  For its part, KinCare relies upon the affidavit of Shradha Bhatia made on 6 September 2019 and counsel for KinCare has provided written submissions and also made oral submissions.

3. The simple facts are that Ms Bruce is a long-serving and valued employee of KinCare.  There have been, as far as I am aware, no difficulties in her employment before this year.  She has, unfortunately, developed osteoarthritis, which has caused her some mobility problems.  In particular, she reported to KinCare difficulties on occasion walking long distances and climbing stairs. 

4. That, logically, called for consideration of whether adjustments were necessary in her employment.  That process seems to have been drawn out.  The intention of KinCare, which appears to have been reasonable, was for KinCare to obtain a report from Ms Bruce’s treating general practitioner in order to consider what adjustments might be required and, more broadly, to consider Ms Bruce’s capacity to perform the duties of her employment.

5. It appears that there has been a breakdown of trust between the parties and that Ms Bruce, while initially agreeing to the process proposed by KinCare, later withdrew her agreement.  That has led to threatened disciplinary action, the subject of the letter dated 30 August 2019.  Ms Bruce took proceedings before the Fair Work Commission, but KinCare declined to participate in conciliation before the Commission.  That has brought on these present proceedings.

6. Having heard the parties, it is, in my view, clear that KinCare should not be required, especially on an interlocutory basis, to permit Ms Bruce to return to full time employment.  There are questions relating to her fitness for work and what reasonable adjustments might be required for her that need to be answered before that occurs.  Neither, at this point, should KinCare be compelled to withdraw its requirement for Ms Bruce to attend a medical examination.  There is, at the present time, considerable uncertainty as to what the impact of her condition is on her employment.  That uncertainty needs to be resolved.

7. KinCare offered to withdraw its correspondence of 30 August 2019 if Ms Bruce agreed to attend a medical examination, but the parties were unable to agree on that issue.  I am not persuaded that, in the circumstances, KinCare should be required to withdraw its correspondence.

8. The final matter in which relief is sought is termination.  That would obviously be a major escalation of the dispute between the parties.  Where court proceedings are commenced and termination follows, there can be difficult questions to answer, as was evident in my very recent decision in Pezzimenti v Rotary International.[1] 

   [1] [2019] FCCA 1854

9. There is no disagreement between the parties as to the principles to apply in considering the application for injunctive relief.  The dispute relates to the application of those principles to the particular fact situation in this case.  The particular circumstances are here that there is a medical issue that requires resolution.  Ms Bruce would like the opportunity to resolve the issue in her own way.  Her employer expects her to cooperate in the resolution of the issue to its satisfaction.  At the present time, those positions cannot be reconciled, which will no doubt necessitate the continuation of these proceedings.

10. For the immediate future Ms Bruce has, through her solicitor, offered an undertaking to show to her treating specialist, Dr Bijoy Thomas, who she will see next Tuesday 10 September 2019, the KinCare request for a report which had originally been directed to her treating general practitioner.  Ms Bruce has undertaken to seek a report from Dr Thomas and to provide it to KinCare by 13 September 2019, if it is available.  As I impressed on her solicitor, it would be important to explain to the treating specialist that an undertaking to the Court has been given, so as to bear on the timing of that report.  I accepted that undertaking.

11. Having accepted the undertaking, I am persuaded that the circumstances of the case call for an injunction of limited scope and duration.  In particular, that injunction will be to restrain KinCare from acting upon its letter of 30 August 2019 prior to the end of 13 September 2019.  That will be the order of the Court. 

12. Costs issues have been raised, and it would be appropriate to reserve the issue of costs of today’s hearing.  I will so order.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:         13 September 2019