DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Ali Azim Zadeh
v
Woolworths Ltd
(U2014/12251)

DEPUTY PRESIDENT SAMS

SYDNEY, 17 MARCH 2015

Termination of employment - application for an unfair dismissal remedy - concern for applicant’s health - psychological assessment recommends second opinion - direction to undertake second assessment and/or treatment - refusal to comply with lawful and reasonable direction - valid reason for dismissal - no mitigating factors - applicant working in new employment - dismissal not ‘harsh, unjust or unreasonable’ - application dismissed.

INTRODUCTION

[1] This decision will determine an application for an unfair dismissal remedy, filed by Mr Ali Azim Zadeh (the ‘applicant’) on 4 September 2014, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). The applicant commenced employment with Woolworths Limited (the ‘respondent’ or ‘Woolworths’) on 7 November 2011 as an Order Selector at the Brisbane Liquor Distribution Centre (BLDC). He later requested and was granted a transfer on 6 September 2013, to the Brisbane Regional Distribution Centre (BRDC).

[2] The applicant was dismissed on 25 August 2014 for the following reasons:

(a) He was not medically fit to perform the inherent requirements of his role (based on a report by a psychologist, Ms Catherine Waight); and

(b) Despite numerous requests by the respondent, the applicant refused to obtain a second opinion or medical treatment (as recommended by Ms Waight) in order to safely return to his role.

[3] In his Form F2 application, the applicant said that he was dismissed because:

‘For a long time I have been bullied, and whenever I talked about it, they told me we could not find any evidence, your witness did not say anything, if you have been bullied transfer yourself to another shift , and I transferred myself to another warehouse but I was black marked everything continued and got worse until I raised some issues, they told me instantly it is not our filed, we are worried for your safety go and see a psychologist ,I went to see the psychologist she wrote for them I am mad, they told me you are not fit for work(poor health) go and see another psychologist, I refused because I gave them enough evidence, psychologist did not know about all issues, she did not know why I have been sent to her and after just less than 1 hour meeting she called me mad, and after a while they sacked me.

In addition, the applicant claimed to be physically and mentally in good health, but believed he was dismissed ‘because of racial things and for that I have a witness’.

[4] Section 385 of the Act defines what constitutes an unfair dismissal. It reads as follows:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWC 1791
Decision Date: 17 MARCH 2015

CaseChat Overview and Summary

In Ali Azim Zadeh v Woolworths Ltd, the applicant, a former employee, sought a remedy for unfair dismissal. The central dispute centred around the applicant's termination from his position at Woolworths, following concerns about his health and a psychological assessment. The matter was heard and determined in the Fair Work Commission.

The primary legal issue was whether the dismissal was unjust and unfair under the Fair Work Act. Specifically, the court had to consider if the employer had a valid reason for dismissing the applicant and whether the dismissal was harsh, unjust, or unreasonable. The applicant argued that he had not been given a fair opportunity to address his health concerns, as he was not provided with a second opinion on his psychological assessment. Conversely, Woolworths argued that the applicant's refusal to comply with a lawful and reasonable direction to undertake a second assessment and/or treatment constituted a valid reason for dismissal.

The Commission concluded that the employer had acted lawfully and reasonably by directing the applicant to seek a second opinion and/or treatment. The refusal to comply with this direction constituted a valid reason for dismissal, and the applicant's working in new employment indicated that there were no mitigating factors. The Commission found that the dismissal was not harsh, unjust, or unreasonable, given the circumstances. Consequently, the applicant's application for unfair dismissal was dismissed.

Orders