13

[Extract from Queensland Government Industrial Gazette,

dated 13 February, 2009, Vol. 190, No. 6, pages 110-123]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 - s. 74 - application for reinstatement

United Firefighters' Union of Australia, Union of Employees, Queensland (for David Qualischefski)

AND Queensland Fire and Rescue Service, Beenleigh

(TD/2008/44)

DEPUTY PRESIDENT BLOOMFIELD 5 February 2009

Alleged unfair dismissal - Alleged incapacity for work on medical grounds - Whether the Applicant fit to resume duties - Medical Evidence - Applicant experienced a heart arrhythmia - Whether condition likely to reoccur in course of duties as a firefighter - s. 28 of Fire and Rescue Service Act 1990 - Respondent's obligations under Workplace Health and Safety Act 1995 - Medical Practitioners unable to say Applicant will not suffer a recurrence of arrhythmia in course of performing firefighting duties - Dismissal not harsh unjust or unreasonable - Application dismissed.

DECISION

Introduction

This decision relates to an application for reinstatement made pursuant to s. 74(1) of the Industrial Relations Act 1999 (the Act) by the United Firefighters' Union of Australia, Union of Employees, Queensland (the Union) on behalf of, and with the consent of Mr David Qualischefski (the Applicant). The Applicant was employed by the Queensland Fire and Rescue Service as an Auxiliary Firefighter from 25 January 2000 until his employment was terminated, effective 7 March 2008, by Commissioner Johnson of the Queensland Fire and Rescue Service (the Respondent) pursuant to the provisions of s. 28 of the Fire and Rescue Service Act 1990.

Relevantly, s. 28 of that Act states:

"28 Retirement

(1) A fire service officer -

(a) must retire from employment with the service upon attaining the age of 65 years;

(b) may elect to retire from employment with the service upon or at any time after attaining the age of 55 years.

(2) If the chief executive suspects on reasonable grounds that a fire service officer, by reason of mental or physical infirmity, has not the capacity or is unfit -

(a) to discharge efficiently the duties of office; and

(b) to discharge efficiently any other duties that the chief executive might reasonably direct the officer to discharge;

the chief executive must obtain medical opinion on the officer’s condition.

(3) The chief executive may appoint any medical practitioner or medical practitioners to examine the officer and report upon the officer’s mental or physical condition or both and may direct the officer to submit to the examination.

(4) If the chief executive believes on reasonable grounds that a fire service officer, by reason of mental or physical infirmity, has not the capacity or is unfit as prescribed by subsection (2), the chief executive may call upon the officer to retire within the time specified by the chief executive.

(5) If the officer does not retire within the time specified, the chief executive may dismiss the officer.".

On behalf of the Applicant it is alleged his dismissal from the service of the Respondent was harsh, unjust or unreasonable within the meaning of s. 77 of the Act. The remedy sought is an Order reinstating the Applicant to his former position on conditions at least as favourable as those on which the Applicant was engaged immediately before his dismissal.

Background

The Applicant is a Plumber and Drainer by trade and commenced employment with the Laidley Shire Council as a Leading Hand Plumber and Drainer in September 1994. At the time of the hearing he had progressed to the position of Water Operations Supervisor with the Lockyer Valley Regional Council, that Council having come into existence in March 2008 as a consequence of the amalgamation of a number of Councils, including Laidley Shire Council.

While still employed in a full-time capacity with Laidley Shire Council, the Applicant commenced employment with the Respondent on 25 January 2000 as an Auxiliary Firefighter. By March 2004 he had reached the rank of Auxiliary Lieutenant. Auxiliary Firefighters are engaged by the Respondent on a casual basis and provide coverage and/or supplement the fire and rescue services provided by permanent or urban firefighters. Auxiliary Firefighters are predominantly engaged to provide fire and rescue services to the smaller towns of Queensland.

On 31 January 2006, while performing physical work with an apprentice in his (then) capacity as a working Foreman with the Laidley Shire Council, the Applicant experienced a flutter in his chest and dizziness. After experiencing the symptoms again he contacted some friends who were working as paramedics in Laidley and arranged to be placed on a heart monitor. The paramedics realised he was suffering from a heart arrhythmia and immediately transported him to the Laidley Hospital. He was assessed by a doctor at the hospital who called a retrieval team from the Ipswich Hospital. When that team arrived they "cardioverted" the Applicant (i.e. put his heart beat back into normal rhythm) and transported him by Ambulance to the Ipswich Hospital, where he remained under observation in the intensive care unit for 2 days.

At the time of his release the Applicant was not directed to see a cardiologist. After a short period away from work he returned to his normal role with the Council.

In or about February 2006 the Applicant received a telephone call from Ms Nicky Marr, the Respondent's Organisational Health Advisor. Ms Marr informed the Applicant she had received an anonymous complaint that he had a heart condition and told him that he must stand down from his duties as an auxiliary firefighter until he passed a treadmill stress test. The Applicant made arrangements to undertake the stress test at the Ipswich Hospital. He failed the test because towards the end he experienced a "couple of ectopics", which he described as an extra beat in the heart or the heart skipping a beat.

Shortly after the stress test the Applicant was referred by Dr Burrell, his general practitioner, to a cardiologist, Dr O'Keefe who, in turn, referred him to Dr Paul West, another cardiologist. Dr West recommended the Applicant undertake a number of tests to determine the nature of his heart condition, as follows*:

·  a myocardial perfusion scan - a test where a small amount of radioactivity is used to obtain pictures of a patient's heart with a gamma camera. The pictures show how well the heart muscle is supplied with blood and helps a medical practitioner make a diagnosis;

·  a magnetic resonance imaging ("MRI") scan - the MRI scan uses magnetic and radio waves which make pictures of almost all of the tissue in the body and provide detailed pictures of parts of the body that are surrounded by bone tissue;

·  an electrophysiology ("EP") study - occurs when wire electrodes are placed in the heart to measure electrical activity along the heart's conduction system;

·  a radio frequency ablation - this is undertaken at the same time as the preceding study and involves a procedure where a catheter is inserted with a heated node on the end. The node is placed against the irritable spot in the subject's heart with a view to cauterising the cause of the arrhythmia; and

·  a coronary angiogram - occurs where a catheter is inserted into an artery and up to the heart. Special fluid goes through the catheter. The arteries show up on the X-ray to determine if there is a blockage in the heart.

(*The description of the tests is taken from the written submissions prepared by the Applicant's Counsel, Mr J. Merrell.)

Following these tests Dr West advised the Applicant, in July 2006, he had experienced an episode of ventricular tachycardia. The Applicant said Dr West informed him there was no further treatment he could provide in relation to the arrhythmia as the radio frequency ablation procedure seemed to be unsuccessful. The Applicant also said Dr West informed him that the heart arrhythmia would not inhibit him from returning to his duties with the Laidley Shire Council but was unable to say with certainty that the condition was fixed. For that reason the Doctor also told him that the Respondent may not be prepared for him to resume his role as an Auxiliary Firefighter.

At around the same time as the above consultation Dr West placed the Applicant on the public waiting list for a further radio frequency ablation. This was undertaken in or about February 2007, following which Dr West informed the Applicant that he did not think the procedure had been successful in alleviating the heart arrhythmia.

In April 2007 Dr West undertook an ultrasound of the Applicant's heart in association with a further treadmill stress test. While the Applicant did not suffer any arrhythmias during the full 10 minute stress test he did experience an ectopic episode in the wind-down phase.

On 22 May 2007 Ms Marr received a letter from Dr West, dated 14 May 2007, in which he stated:

"David has asked me to forward an update on his medical condition, and wishes to resume duties with the fire fighting service if possible. To allow him to do this, he has undergone two attempted radiofrequency ablations procedures. Neither of these was completely successful and he has been left with ectopy of right ventricular outflow tract origin. However, there may have been some modification of the focus, and perhaps he is not experiencing as much ventricular ectopy any more. He himself feels that his exercise capacity is back to normal now. Moreover over the last 15 months he has not experienced any further episodes of VT, and his exercise treadmill test did not show any exertional tendency to arrhythmia. He also had a follow up MRI scan which has not shown any structural abnormality of the right ventricle.

In summary, Mr Qualischefski has had two unsuccessful procedures for right ventricular outflow tract ventricular tachycardia, although he has not clinically had any further arrhythmias since his single presentation with it in January 2006. Unfortunately, the crux of the matter is whether one can be reassured that he will not experience any such attacks under adrenaline stress/smoke inhalation etc, and this question cannot be readily answered.".

Attached to the 14 May 2007 letter was a copy of a letter, dated 11 April 2007, sent by Dr West to the Applicant's general practitioner, Dr Burrell, in which Dr West said:

"In conclusion, Mr Qualischefski has completed a high workload demonstrating an excellent exercise capacity. This test did not induce any ventricular arrhythmias, although two ectopic beats of right ventricular outflow tract morphology were seen in the recovery period.".

Another letter to Dr Burrell, dated 15 May 2007, was also attached to Dr West's letter dated 14 May 2007. It read:

"Mr Qualischefski's exercise treadmill test did not induce any ventricular tachycardia, although ectopic beats of right ventricular outflow tract morphology were still seen consistent with the failed previous ablation attempts. The heart was structurally normal on echocardiography. His MRI scan is now also available and reassuringly has shown no features of ARVD and it appears very similar to the MRI of 12 months ago.

Therefore I do not think Mr Qualischefski has arrhythmogenic right ventricular dysplasia. He just has primary ventricular tachycardia arising from the right ventricular outflow tract, and unfortunately he has been in the 10% or so of people who can not be successfully ablated. I am sorry to say that this therefore puts him no further forward than when I initially saw him.

I have advised regular therapy with betablockers, although primary VT does carry a good prognosis and the excess incidence of sudden cardiac death if any is very low (and certainly does not need therapy with a cardiac defibrillator). Nonetheless, like any arrhythmia, it can predispose one to syncope if it recurred. Of course Mr Qualischefski has only had the one episode ever. He may also have a tendency towards atrial fibrillation, which is a more degenerative arrhythmia.

Lastly, he wishes to return to firefighting if possible. As his arrhythmia has not been dealt with I suspect the answer from the fire service will be the same as that of 12 months ago, but I will write to them as he has requested.

I will see him for review in another 12 months time.".

On the same day she received the above letters from Dr West, Ms Marr wrote to the Respondent's Occupational Health Advisor, Dr Keith Adam, seeking his review and advice on the Applicant's capacity to be returned to operational firefighting duties.

On 25 June 2007 Ms Marr received a response from Dr Adam, dated 29 May 2007, as follows:

"I have reviewed the results of the most recent reports from Dr Paul West, including his letter to you dated 14 May 2007, and copies of his letter to Dr Burrell, and reports of MRI, cardiac echo and stress test. You will recall that Mr Qualischefski had previously suffered a blackout, and investigations had revealed a cardiac arrhythmia as a potential cause. Mr Qualischefski has now undertaken to (sic) attempted radiofrequency ablation procedures, but neither of these was completely successful and he has been left with ectopy of right ventricular outflow tract origin. Dr West reports that 'there may have been some modification of the focus, and perhaps he is not experiencing as much ventricular ectopy anymore. He himself feels that his exercise capacities (sic) back to normal now. Moreover over the last 15 months he has not experienced any further episodes of VT and his treadmill test did not show any exertional tendency to arrhythmia'. He concludes 'unfortunately, the crux of the matter is whether one can be reassured that he will not experience any such attacks under adrenaline stress/smoke inhalation etc and this question cannot be readily answered'.