Richardson v Ambulance Victoria [2024] FWC 1313 was a case before the Fair Work Commission to resolve a dispute between Mr Richardson and his employer, AV.

Mr Richardson is a MICA paramedic employed by Ambulance Victoria. He was the subject of a complaint and as a result was stood down from on-road duties. This occurred in September 2023.  The Union, on behalf of Mr Richardson filed a notice alleging that AV was not meeting the requirements of the Performance and Disciplinary Procedure set out in the Ambulance Victoria Enterprise Agreement 2020 ([1]-[4]).

The gist of the issue was that Mr Richardson, although employed as a MICA paramedic and MICA paramedic single responder, he was not being given the opportunity to perform the ‘principal duties or skill’ of that position.   The Agreement sets out the duties and skills of a MICA paramedic (eg ‘the principal duties that must be assigned to the employees within the classification –assessment, treatment, care and transport of emergency and non-emergency patients in a pre-hospital setting’ (cl 28.I(k)(b)) and then provides (cl 28.I(k)(d); emphasis added):

the conditions under which a MICA Paramedic may perform alternative duties which do not necessarily involve the employee providing emergency and/or non-emergency patient care in a pre-hospital setting – by agreement where those duties utilise the skills and knowledge of a paramedic.

Mr Richardson has not agreed to the alternative duties that he has been directed to perform.

AV argued that the power to relocate Mr Richards was part of its right to manage its business and to give reasonable directions to staff. They gave evidence that the complainant was a colleague and there was a risk of the two coming into contact if both working as paramedics. Rather than suspend Mr Richardson (noting a recommendation from the Victorian Human Rights Commission to consider ‘the negative impact on an employee’s mental health when suspended from work for the purposes of what are often lengthy investigations’ ([38]) AV had decided to allocate Mr Richardson to alternative duties rather than suspend him ([32]-[38]).  AV submitted ([41]-[42]):

… that the removal of the Applicant from the workplace in this context is unremarkable, and that it is common place when investigations are underway into serious allegations for employees to be suspended from work. Further, that the employer’s Suspension Policy expressly contemplates suspension from the workplace in the course of an investigation and that where an employer takes a bona fide view, that the continued performance of duty is inconsistent with its interests, it is entitled as a matter of contract to direct the employee not to perform work.

On this basis, it is the Respondent’s position that its decision to direct Mr Richardson not to perform duties pursuant to clause 28.1(k) and/or (l) constitute an exercise of reasonable management prerogative to appropriately manage risk in its workplace and is not restricted by the terms of the Agreement, statute or other instrument.

In resolving the dispute, Commissioner Connolly cited (at [52]) the decision in AMWU v Berri Pty Ltd [2017] FWCFB 3005 where the full bench of the Fair Work Commission said, inter alia:

The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties…

If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.

At [57] Commissioner Connolly said. (emphasis added):

… my interpretation of clauses 28.1(k) and (l) does not support the Respondent’s position that, objectively viewed, the plain meaning of these clauses do not prohibit Ambulance Victoria from allocating Mr Richardson to duties alternative to those of a MICA Paramedic or MICA Single Responder, without his agreement.

And at [94]:

I am of the view that the plain meaning of these words “may, by agreement” place a clear condition on the employer that to comply with Clause 28.1(k) and (l), Ambulance Victoria requires the agreement of a MICA Paramedic or MICA Paramedic Single Responder to not allocate them the principal duties set out in this provision but allocate them alternative other duties by virtue of this clause.

There are provisions to deal with disciplinary matters, in particular the suspension policy ‘provides a right to suspend an employee from duty in the event of allegations significantly serious in the employer’s view to warrant suspension. Clause 74 – “DISCIPLINARY PROCESS” also provides a right for the employer to “transfer” an employee in event of serious misconduct…’ but AV did not claim to be relying on these provisions. Rather it was relying on an overarching principle of management responsibility. That principle however had to be read subject to the agreement and the agreement limited the power to AV to allocate alternative duties to those cases where there was agreement between AV and the employee ([109]).

Conclusion

AV did not have the power to require a MICA Paramedic to perform work that did not involve the principal duties of the position without the consent of the paramedic.  If they wanted to take action under the disciplinary/suspension provisions they had to do that expressly.

 This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.