Alex Pogadaev v Queensland Electricity Transmission Corporation T/A Powerlink Queensland

[2012] FWA 7562

[2012] FWA 7562

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alex Pogadaev
v
Queensland Electricity Transmission Corporation T/A Powerlink Queensland
(U2012/6104)

COMMISSIONER BISSETT MELBOURNE, 5 SEPTEMBER 2012

Application for unfair dismissal remedy.

[1] The following decision, now edited, was delivered ex tempore on 21 August 2012.

[2] In commencing, I should say that whilst I may not mention all of the evidence and submissions here, I have had regard to all of the evidence and the submissions of the parties in reaching my decision.

[3] This is an application by Mr Alex Pogadaev (the Applicant) seeking relief from unfair dismissal pursuant to s. 394 of the Fair Work Act2009 (the Act). He says that he was dismissed from his employment with Queensland Electricity Transmission Corporation T/A Powerlink Queensland (referred to as Powerlink or the Respondent) on 2 March 2012. The Respondent says that it terminated the Applicant’s employment for misconduct in that he failed to follow a reasonable and lawful direction that was consistent with his employment contract on four occasions in that: he failed to attend a medical appointment on four occasions; he breached his fixed term agreement by failing to comply with the Powerlink rehabilitation procedure; and he breached his employment conditions under his employment agreement by failing to comply with the Powerlink Code of Conduct.

[4] Much of the factual background to this matter is not in dispute and can be briefly summarised. The Applicant was employed by the Respondent on a contract - which may or may not be fixed term, but is not at issue in these proceedings - in June 2011. The contract was due to expire, had it operated as a fixed term contract, on 29 June 2012. The contract contains the following two clauses which were subject to some discussion. One clause states:

Your salary and conditions of employment are as prescribed by the “Working at Powerlink 2008” Union Collective Agreement. 1

[5] And the second relevant clause states:

As an employee of Powerlink you will need to be familiar with and comply with Powerlink’s policies, procedures and guidelines. In particular I would like to draw your attention to the Powerlink Code of Conduct and the Human Resources procedures relating to workplace health and safety, confidentiality, intellectual property and indemnity. 2

[6] On 16 December 2011 a Christmas party was held, run by the recreation club. Arising from an incident at the party the Applicant made a complaint on 16 December 2011 to the CEO of Powerlink. On 19 December 2011 another employee made a complaint against the Applicant arising from an incident that occurred at a hotel in the evening following the Christmas party. The complainant in that matter indicated she did not want disciplinary action taken against the Applicant but sought that he be told or asked to stay away from her. On 21 December 2011 Ms Michelle Smith from Human Resources at the Respondent met with the Applicant and two of his managers.

[7] The Applicant was told of the complaint made against him and of his obligations under the Code of Conduct. Later that day the Applicant made a formal complaint in relation to this meeting and claimed that he had been defamed.

[8] On 23 December 2011 Mr Peter Fletcher from Human Resources, who had been appointed to investigate the Applicant’s complaints, met with the Applicant. The Applicant had with him his brother and his mother. Mr Ray Kelly from Human Resources was also present. What occurred in this meeting is subject to some conflicting versions.

[9] Following from advice given by Mr Fletcher to his superiors in Human Resources on the state of the Applicant and statements by the Applicant as to his wellbeing, including that he had been referred by his own doctor to a psychiatrist, it was decided by the Respondent to place the Applicant on special leave with pay. That leave with pay was for the period 23 December 2011 to 16 January 2012. During his period of leave with pay the Applicant received correspondence from the Respondent in which the Respondent stated that, in accordance with the rehabilitation procedure, it had arranged for the Applicant to see a medical practitioner nominated by the Respondent.

[10] The Applicant failed to attend the nominated medical practitioner on four occasions. In correspondence from the Respondent to the Applicant he was advised variously that appointments had been arranged for him to attend the doctor, that the requirement to attend was a lawful and reasonable direction, of the purpose of the medical assessment and the company procedures that applied, and of the requirement that he comply with those procedures. He was also advised that failure to attend the medical examination could result in the Respondent taking disciplinary action against him that could include termination of his employment.

[11] I now turn to the evidence. Evidence was provided by the Applicant, the Applicant’s brother Mr Serge Pogadaev, the Applicant’s mother Ms Irina Prodger, and for the Respondent by Ms Julia Smith, Ms Michelle Smith, Mr Peter Fletcher, Ms Cassandra Bevan and Mr Randall Jones. The statements of the Applicant, Mr Serge Pogadaev and Ms Prodger were accepted without cross-examination by the Respondent. I should at this point interject that the Applicant was not represented during these proceedings. In recognition of this the Respondent indicated that it was prepared to accept statements from the bar table by the Applicant unless specifically objected to. The assistance of the Respondent in this respect is acknowledged.

[12] The evidence of Mr Serge Pogadaev and Ms Irina Prodger is that from the behaviour of the Respondent at the meeting on 23 December 2011 it seemed that the Applicant was being fired. The Applicant says that while he does not say his employment was terminated on 23 December 2011 it appeared very much to him that it was in contemplation. The Applicant says that he did not believe the rehabilitation policy applied to him, but even if it did so by virtue of his contract, he did not believe his circumstances were such that it could be utilised to require him to attend a doctor.

[13] Further, the Applicant says that many of the misunderstandings that have occurred during the process could have been avoided if the Respondent had met with the Applicant. The Applicant says he did not respond to the letter of the Respondent of 21 February 2012 because he considered the decision to dismiss had already been taken, but in any event two days in which to reply was not long enough. He agreed however that he did not seek an extension of time in which to reply to that letter.

[14] I accept the evidence given by Ms Julia Smith in this matter. Her evidence was clear, concise and she did not waiver from that evidence under repetitive cross-examination. I accept that she decided that Mr Pogadaev should be placed on special leave with pay in lieu of sick leave on learning from Mr Fletcher that Mr Pogadaev said he was suffering from an anxiety-related illness. I also accept her evidence that the decision to refer the Applicant to Dr Mulholland was to ensure that when the Applicant returned to work it was safe for him to do so.

[15] In taking this decision the interests of the Respondent were ensuring it met its obligations of a duty of care to the Applicant. In this respect I reject the Applicant’s assertion that the Respondent needed a medical certificate for him to be off work but did not require, and could not require, a medical clearance for him to return to work.

[16] I also accept the evidence of Mr Fletcher, and to the extent that his evidence conflicts with that of the Applicant and the other witnesses who are here for the Applicant, I prefer the evidence of Mr Fletcher.

[17] His evidence was given dispassionately and I find provides a true account of what occurred at the meeting on 23 December 2011. In particular I accept the evidence of Mr Fletcher that the Applicant appeared increasingly agitated at the meeting and that the Applicant said in the meeting he was unwell and had been referred to a psychiatrist by his own doctor, and that his medication had been adjusted.

[18] I accept the evidence of Mr Fletcher and Ms Bevan that they, along with Mr Kelly, agreed that the Applicant should be sent for a medical assessment prior to returning to work, and that leave with pay was organised at that time for the Applicant.

[19] Mr Fletcher’s evidence is that when the Applicant told him he had been referred to a psychiatrist by his own doctor it confirmed his view that the Applicant required some assistance. Mr Fletcher said he was not aware that the Applicant’s IT and building access had been disabled, and I accept this. His evidence is that there was no discussion with other employees nor was it contemplated by himself to terminate the Applicant’s employment on 23 December 2011.

[20] Ms Cassandra Bevan gave evidence that she met with the Applicant on 16 December 2011 with respect to the incident that had occurred earlier that day at the Christmas party. She says that at that meeting at times he appeared agitated and upset. When she was advised by Mr Fletcher on 23 December that the Applicant was agitated and upset she envisaged that he was behaving in a manner not dissimilar to what she had observed herself in her earlier meeting, although she agrees that she didn’t directly observe the Applicant on 23 December.

[21] Whilst the evidence of Ms Bevan as to the state of the Applicant on 23 December is based on a report given to her by Mr Fletcher, I accept her evidence as to the assessment she made of the Applicant’s state.

[22] Ms Bevan’s evidence is that the rehabilitation policy of the Respondent is about ensuring the employees are fit for work. Whilst the policy in the main is about bringing injured employees back into the workplace it also covers injury outside work, and is designed to ensure employees are fit to undertake their duties that might arise. On 23 December 2011, Ms Bevan says it was not clear if the Applicant was ill and was fit to perform his duties.

[23] For this reason he was referred under the rehabilitation procedure to a medical practitioner. Ms Bevan’s evidence is that it was decided not to tell the Applicant that his IT and building access had been suspended because of the state the Applicant was in at the time. I accept Ms Bevan as a witness of truth, and accept the evidence she gave as to the reasons the Applicant was placed on special leave and asked to attend for a medical assessment.

[24] I accept the evidence of Mr Randall Jones that there was no discussion he was aware of on 23 December that the Applicant’s employment was to be terminated, or that termination was being contemplated. Mr Jones observed the Applicant on a couple of occasions during the meeting on 23 December 2011 and said the Applicant appeared not his calm self and appeared confused. He did not hear the Applicant raise his voice.

[25] Mr Jones gave evidence that he attended an interview on 20 December where the Applicant was advised of a complaint against him, and at that meeting the Applicant appeared agitated.

[26] Ms Michelle Smith’s evidence of a meeting she had with the Applicant on 21 December 2012 arose from a complaint of another employee. Her evidence is that during that meeting the Applicant looked confused and angry at times, and I accept her evidence.

[27] I now turn to the submissions.

[28] The Applicant submits that the Respondent’s policies and procedures are not incorporated into his contract of employment. He says that the contract is clear that his salary and conditions are derived from the union collective agreement referred to therein. The contract does not say that his conditions also include those policies, procedures and guidelines of the Respondent.

[29] Alternatively the Applicant says that if the policies, procedures and guidelines do form part of his contract of employment then he was never shown those documents nor provided with access to them. Alternatively he says that the rehabilitation procedure is part of the safety manual and manuals are not specifically referred to in the contract of employment.

[30] Alternatively the Applicant says the rehabilitation procedure only applies where a person is off work with an illness or injury, and that there is no evidence that he had an illness or injury such that he should be subject to that procedure.

[31] Even if he is subject to the rehabilitation procedures, the Applicant submits that the Respondent has not followed each step of that procedure, which must be followed in full. When the procedure is properly viewed as a whole, the Applicant submits, it’s evident that the Respondent has not followed the procedure in its entirety. He therefore says he should not be disadvantaged because he failed to meet some requirements under the procedure when the Respondent itself has not abided by it. The Applicant also submits that if the policies, procedures and guidelines were incorporated into his contract the requirement in the contract that he comply with the procedures does not make compliance mandatory as there’s no definitive command that he should do so.

[32] For these reasons the Applicant says he was not bound by any direction to attend a doctor nominated by the Respondent. The Applicant stated that had he been given a range of doctors to choose from by the Respondent he would still have not attended a doctor as directed by the Respondent.

[33] The Applicant also submits that there is no evidence that he could not perform the duties of his position so there was no basis on which he could have been sent to the doctor. The Applicant also submits that the Respondent has not applied its disciplinary procedures as required by those procedures and hence cannot rely on those procedures.

[34] The Applicant says there was no valid reason for his dismissal, that he was not given an opportunity to respond and that the dismissal was harsh, unjust or unreasonable in that the decision to terminate his employment was disproportionate to the misconduct. The Applicant seeks compensation.

[35] With respect to the submissions of the Respondent, the Respondent submits that the policies, procedures and guidelines of the Respondent are binding on the Respondent by virtue of the clause contained within the contract of employment. The direction of the Respondent that the Applicant attend Dr Mulholland was both a lawful and reasonable direction given in accordance with the rehabilitation policy.

[36] The process adopted by the Respondent in reaching its decision to terminate the Applicant’s employment was in accordance with the dismissal procedure, and the process was conducted in such a way to accord the Applicant procedural fairness. The Respondent submits that I can find that the conduct complained of occurred. That is, that the Applicant failed to follow a lawful and reasonable direction, and that his actions were in breach of the rehabilitation procedure and the code of conduct, and that the conduct provided a valid reason for dismissal and that the Applicant was afforded procedural fairness.

[37] I now turn to some specific findings that I need to make with respect to this matter. As is relevant to the consideration of the application I make the following findings arising from the evidence and submissions of the parties.

[38] I find that, by the terms of the contract, the Applicant was required to comply with the policies, procedures and guidelines of the Respondent including the code of conduct. The statement in the contract that the Applicant must comply with the policies, procedures and guidelines is a clear unambiguous statement. It would be highly unusual for a contract relating to employment to use such language as ‘command’, and the phrase ‘required to comply’ places a clear obligation on the Applicant.

[39] The rehabilitation procedures and the discipline and dismissal procedures are binding on the Applicant, as are other policies and procedures and guidelines of the Respondent.

[40] Clause 5.2 specifically of the rehabilitation procedures sets out a number of actions that may under various circumstances be taken by the Respondent in managing a non work-related condition. On balance I find that each paragraph of section 5.2 need not be applied lockstep in each circumstance of a non work-related condition, although I do note a lack of clarity in this respect in the procedure.

[41] I find however that the Respondent did have the right to refer the Applicant to a medical practitioner in accordance with clause 5.2, and that clause 6 and clause 10 also apply and were available to the Respondent.

[42] I find that the Applicant was in an agitated state and at times spoke loudly in the meeting of 23 December 2011. I find that the Applicant was placed on special leave with pay because he advised the Respondent that he was suffering from an anxiety-related illness. That is, that he was absent from work because of a medical condition. The absence from work commenced on 23 December.

[43] I find that the Respondent acted in the interests of the Applicant in placing him on special paid leave and requesting that he attend Dr Mulholland. I find that the direction given to the Applicant on a number of occasions to attend the doctor nominated by the Respondent was a reasonable direction in that it could be complied with, and a lawful direction in that it was available to the Respondent under the rehabilitation process. I should clarify that the doctor was actually not nominated by the Respondent but nominated by a third party and available to the Respondent.

[44] I find that the Applicant failed to attend medical appointments made for him and advised by the Respondent. Those medical appointments were on 19 January, 31 January, 7 February and 14 February 2012. I find that the letters sent to the Applicant by the Respondent with respect to the requirement that he attend the medical appointments, and his failure to attend those appointments, were clear in that under his contract of employment he was bound by the rehabilitation policy, and that the Respondent was giving him a reasonable and lawful direction.

[45] The letters sent to the Applicant in that respect were dated 5 January, 24 January, 2 February and 9 February. I find that the Respondent did respond to the Applicant’s advice that he was fit to return to work in those letters referred to, advising him of the need to attend Dr Mulholland for the purpose of the Respondent making appropriate decisions with respect to the Applicant’s ability to undertake his work role.

[46] I find that the Respondent’s discipline and dismissal procedure does not require that each of the specified steps set out in that procedure be adhered to lockstep. Rather I find that the procedure provides a framework for managing discipline and dismissal matters such that the utilisation of the procedure as is outlined will ensure procedural fairness. I find though that procedural fairness was afforded to the Applicant in that he was clearly advised that his failure to attend the medical appointments may result in disciplinary procedures, and that he was given an opportunity to respond prior to the Respondent making a decision to terminate his employment.

[47] I find that the failure of the Applicant to attend the doctor as directed was a breach of the rehabilitation policy. It was also a breach of the code of conduct, as the code clearly requires at page 29 that the Applicant comply with all policies, procedures and guidelines of the Respondent. The failure of the Applicant to attend the doctor as required was conduct that amounted to a failure by the Applicant to follow a reasonable and lawful direction.

[48] I find that there was no contemplation of termination of the Applicant’s employment on 23 December 2011.

[49] I now turn to a consideration of those matters under the Act. The application for unfair dismissal was filed within the period of time required under s.394(2) of the Act. The requirements for protection from unfair dismissal are set out in s.382 of the Act. There is no issue between the parties on this matter and I find that the Applicant is protected from unfair dismissal.

[50] Section 385 of the Act sets out those matters on which FWA must be satisfied in determining if a person has been unfairly dismissed. As is relevant, I find that the Applicant was dismissed. I also find that the Small Business Fair Dismissal Code does not apply in these circumstances, and that it is not claimed that the dismissal was a case of genuine redundancy.

[51] I must therefore consider whether the dismissal was harsh, unjust or unreasonable. Section 387 of the Act sets out those matters that I must take into account in determining if the dismissal was harsh, unjust or unreasonable, and I now turn to address each of these matters.

[52] First of all a valid reason: where the reason for dismissal of an employee involves the conduct of the employee there is an obligation on Fair Work Australia to determine first of all if in fact the conduct did occur. I have found already that the Applicant failed to follow a reasonable and lawful direction, that he failed to comply with the requirements of the rehabilitation policy, and he failed to comply with the Code of Conduct. I am therefore satisfied that the conduct complained of occurred.

[53] I am satisfied that the conduct I have found occurred provides a valid reason for the termination of the Applicant’s employment, in that it is sound, defensible and well founded. There is no evidence to support any conclusion that the reason for terminating the Applicant’s employment was capricious in any way.

[54] Whether the Applicant was notified of the reason: I find that the Applicant was notified of the reason for his dismissal in the letter dated 2 March 2012.

[55] An opportunity to respond: the Applicant was given an opportunity to respond to the allegations against him prior to the decision being taken to terminate his employment.

[56] A letter to him on 21 February 2012 set out the allegations against him and asked for his response to those matters. The Applicant says that there was no point playing ‘written ping pong’ with the author of the letter. That the Applicant chose not to respond does not diminish the fact that he was given an opportunity to do so.

[57] A support person: there were no face to face interviews with the Applicant following the meeting on 23 December 2011. At the meeting on 23 December 2011 the Applicant was told by Mr Fletcher that he could have a support person present at that meeting and he did have two support people present at that meeting.

[58] I do not find that there was any unreasonable refusal to allow the Applicant to have a support person in any discussions relating to his dismissal, though noting that ultimately there were none.

[59] The dismissal does not relate to unsatisfactory performance so I do not need to consider that criteria. With respect to the size of the Respondent’s undertaking and access to human resources specialists, the Respondent is a large employer and the procedures it has in place are not open to criticism in the circumstances of the matter before me and the evidence that has been given.

[60] Any other matters: the Respondent says that the Applicant was afforded procedural fairness and I agree with the submissions of the Respondent on this particular point.

[61] As I mentioned earlier I did not find that there is a requirement for the Respondent to follow the procedures in the discipline and dismissal procedure lockstep. But the important overriding feature of that process is that procedural fairness be afforded and that that did occur in these circumstances.

[62] In all of the circumstances I find that the dismissal of the Applicant was not harsh, unjust or unreasonable.

[63] In conclusion I say that the application for relief from unfair dismissal made by Mr Alex Pogadaev is dismissed. An order to this effect will be issued. This decision will be issued in writing. This matter is adjourned.

COMMISSIONER

Appearances:

A Pogadaev on his own behalf.

I Humphries for the Respondent.

Hearing details:

2012.

Brisbane:

August 20, 21.

 1   Exhibit A1.

 2   Exhibit A1.

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