Applicant v Respondent - [2013] FWC 7421

[2013] FWC 7421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Applicant
v
Respondent
(U2013/8626)

COMMISSIONER RYAN

MELBOURNE, 30 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] Given the particular circumstances of this matter, including the discussion as to the Applicant’s mental capacity to work, I have determined that the identity of the Applicant and of the Respondent will not be made public. The names of the medical specialists are revealed as the identity of the Applicant and the Respondent cannot be determined from this information. However, the names of other persons are suppressed as they may permit both the Applicant and the Respondent to be identified. It is sufficient for the purposes of this decision to identify the Respondent as being a public health institution.

Preliminary Matters

[2] Pursuant to s.396 of the Fair Work Act the Commission must decide some preliminary matters before considering the merits of the application.

Whether the application was made within the period required in subsection 394(2)

[3] The application in this matter was filed on 16 April 2013 which was 19 days after the date of dismissal. The application in this matter was made within the 21 days specified in s.394(2) of the Act.

Whether the person was protected from unfair dismissal

[4] The Applicant commenced employment with the Respondent on or about 22 August 2011 in a specific, role although during the period of employment the Applicant was not exclusively performing that specific role. The Applicant was dismissed on 28 March 2013. The Applicant has completed at least the minimum period of employment specified by s.383(a) of the Act.

[5] An enterprise agreement applies to the Applicant in relation to the Applicant’s employment with the Respondent.

[6] The Applicant is a person who was protected from unfair dismissal as at the date of the dismissal.

Whether the dismissal was consistent with the Small Business Fair Dismissal Code

[7] This preliminary matter is not relevant in the present circumstances as the Respondent is not a small business employer within the meaning of s 23 of the Act.

Whether the dismissal was a case of genuine redundancy

[8] I am satisfied and so decide that the dismissal of the Applicant by the Respondent was not a case of a genuine redundancy. Redundancy, genuine or otherwise simply was not a feature of the dismissal of the Applicant.

Was the Applicant dismissed

[9] In addition to the matters raised by s.396 it is also necessary for the Commission to decide another initial matter and that is: Was the Applicant dismissed within the meaning of s.386 of the Act? The Respondent’s case in this matter has been conducted on the basis that the Respondent did initiate the termination of the employment relationship. I find that the Applicant was dismissed within the meaning of s.386 of the Act.

[10] Having decided the requisite preliminary matters, the net issue is to consider whether the dismissal was harsh, unjust or unreasonable. Section 387 of the Act is as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[11] The Commission is required to take into account each relevant criteria in s.387.

Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[12] The Applicant was dismissed at a meeting held on 28 March 2013. On 3 April 2013 the Respondent wrote and delivered a letter to the Applicant which identified the outcome of the meeting on 28 March 2013 as follows:

“In the most recent meeting of the 28th March 2013 and following your visit to the psychiatrist, a copy of the report prepared by the psychiatrist was provided to you. Given the information in the report, and your repeated assertion that key managers were ‘‘lying to you” together with your lack of insight/understanding concerning the damaging nature of your behaviour and communications within the organisation, it was felt that (the Respondent) had no option but to terminate your employment.”

[13] The letter does not clearly identify the reasons for the dismissal but points strongly in the direction of the reasons for dismissal.

[14] In a written Outline of Argument filed on 1 August 2013 the Respondent identified the valid reason for dismissal as:

“There was a valid reason for the Dismissal. The Doherty Report confirmed (the Applicant) had no capacity for work based on the Diagnosis. Moreover, and consistent with the Diagnosis, (the Applicant) had engaged in misconduct in the workplace that caused apprehended or actual harm to work colleagues.”

[15] The Outline of Argument identifies two separate reasons for dismissal. Firstly, the lack of capacity to work based upon a diagnosis in the Doherty Report. Secondly, misconduct in the workplace that caused apprehended or actual harm to work colleagues.

[16] The Doherty Report referred to in the Respondent’s Outline of Argument was a report prepared by Associate Professor Peter J Doherty who, at the request of the Respondent and with the consent of the Applicant, undertook a medical examination of the Applicant and then prepared a report of the examination for the Respondent. The report prepared by Associate Professor Peter J Doherty was put into evidence as Attachment PD-1 to Associate Professor Peter J Doherty’s witness statement, Exhibit R2. Associate Professor Peter J Doherty described himself as follows:

“1. I am a legally qualified medical practitioner, registered in the state of Victoria.

2. I am a specialist psychiatrist, and currently consult out of the Melbourne Clinic consulting suites. I am an elected Fellow of the Royal Australian and New Zealand College of Psychiatrists.”

[17] The Doherty Report identified the purpose of the medical examination as follows:

“In the supplied documentation you sought that I examine your employee and provide a medical report detailing his condition, prognosis and capacity for employment, including details of any restrictions that may apply with regard to his ability to perform his normal duties.”

[18] Associate Professor Peter J Doherty diagnosed the Applicant as follows:

“From a diagnostic point of view, there are only two diagnoses to give consideration to. In my opinion based on the history obtained, findings at mental state examination along with the small amount of supplied documentation your employee is suffering from a schizophrenic illness of the paranoid type. Your employee has discriminatory typical symptomatology of schizophrenia including thought disorder, disorder of the form of thought and mistaken false beliefs held firmly with a persistent persecutory anxiety. The illness he suffers from has also led to impairments in insight and judgement.

I gave consideration as to whether or not your employee has a syndrome called pseudologia fantastica. That is, is he someone who makes up wild and fantastic stories? At times his story with regard to the Port Arthur massacre had that flavour. Overall, however, I do not believe that he has that syndrome. I think there is no other explanation for his expressed words apart from schizophrenia to account for it.

As you would be aware, your employee himself said that he suffers from autism. That belief is based on the diagnosis given to him at the age of nine by his step-mother. In my opinion, he does not meet the usual criteria for autism, and I don’t believe that he suffers from that condition. The worker’s interaction in the interview is untypical of autism.

Responses to Specific Questions

1. Does (the Applicant) have a diagnosable mental health condition or personality disorder and is he receiving appropriate medical treatment?

In my opinion, as noted above, your employee has a disorder of the mind, that is, a mental illness the name of which is paranoid schizophrenia. In my opinion your employee meets the usual diagnostic criteria for that condition.

Your employee is not in treatment, is not attending a psychiatrist and is not taking medication for the condition. He is, thus, not in appropriate treatment.

I recommend that he is further assessed and treated by a consultant psychiatrist.

2. Does (the Applicant) have a current capacity for work?

In my opinion he does not. In my opinion he would be an unreliable and inconsistent worker, more so as he has started to engage co-workers in his mistaken beliefs about himself and he misinterprets the nature of the interaction between himself and his co-workers. He believes that he is well liked, and believes that he is discriminated against. He misjudges situations. Thus, there is a strong potential that your employee will be disruptive in the workplace, and not meet the expectation of good co-worker relationships.

3. Should any conditions be imposed on the worker to facilitate his return to work?

In my opinion, your employee needs to be in psychiatric treatment. Your employee should be referred, via his general practitioner, to a consultant psychiatrist for an opinion and hopefully treatment. In my opinion your employee should provide a certificate by a treating psychiatrist certifying that he is fit to return to work before he so returns to work.

In my opinion, based on the history obtained, the findings of mental state examination and the supplied documentation there is no imminent or foreseeable risk that the worker will be violent of (sic) aggressive in the workplace.”

[19] The second reason for the dismissal related to internal communications made by the Applicant to and about fellow workers and managers. The allegation against the Applicant was put into writing by the Respondent on 28 February 2013 as follows:

“Re: To investigate concerns regarding your distribution of inappropriate emails with false, and misleading information which denigrate your colleagues in the workplace

This letter is confirm our intend (sic) to undertake an investigation regarding the concerns raised in our meeting of the 28th February 2013. (sic) of allegations regarding your emails with which we have serious concerns regarding their appropriateness in the workplace.

You are employed as a full time typist in the Audio Typist in the Health Information Services Department.

You have been previously counselled regard the writing and distribution of inappropriate emails which criticise; defame and/or belittle your work colleges.(sic)

Most recently on the 28th February, following a meeting in the Human Resources Department, you have circulated information which falsely represents the outcomes of that meeting. In addition on the same day you sent an email to a third party in which you make inappropriate statements regarding a (Respondent’s) employee.

These emails have been shared with you in a second meeting of the 28th February 2013 and we also shared with you the reasons for our concerns regarding the content of these emails.

Following the meeting you were provided with special paid leave to consider your position and seek advice and representation should you choice (you) to do so.

You are requested to attend a meeting in the Human Resources Department with your Manager (named suppressed), Ms (name suppressed) from The Human Resources Department and myself.

The meeting has been scheduled for Wednesday 6th March 2013 at 2.00 p.m.to be held in the Human Resources Department located on the (address suppressed).

If you wish, you may bring a support person or representative to this meeting.

You need to be aware that, depending on the outcome, the meeting may result in disciplinary action. I have also attached a copy of (the Respondent’s) disciplinary policy for your information.

If you have any questions in relation to this matter please contact me on (number suppressed).”

[20] Whilst the above outlines the reasons for dismissal the actual process of dismissal was described by the Respondent’s Employee Relations Manager in his witness statement as follows:

“12. Given the repeated complaints I have been receiving from other employees in relation to what they describe as “weird’’ and “disturbing” emails and (the Applicant’s) conduct subsequent to the meeting on 28 February 2013, I again met with him on 16 March 2013 and asked whether or not he would be willing to undertake a psychiatric assessment to determine what, if any, condition he suffered from, what capacity he had for work and what steps, if any, (the Respondent) could take to safely return him to the workplace. (The Applicant) had been on a period of special leave pending the outcome of the investigation. (The Applicant) agreed to undertake a psychiatric assessment and his period of special leave was extended pending the outcome of the psychiatric report.

13. On 26 March 2013 1 received a copy of the independent medical report prepared by Associate Professor Peter J Doherty, consultant psychiatrist at the Melbourne Clinic. Associate Professor Doherty concluded that (the Applicant) had a disorder of the mind, being paranoid schizophrenia and that he is not attending a psychiatrist and is not taking medication for the condition. He further stated that in his opinion he does not have a current capacity for work and that he would be an unreliable and inconsistent worker, engaging co-workers in mistaken beliefs about himself and there is a strong potential that he will be disruptive in the workplace and not meet the expectations of a good co-worker. Now produced and shown to me and marked with the letters “RD-6” is a copy of Associate Professor Doherty’s report dated 26 March 2013.

14. On 28 March 2013 I met with (the Applicant) and advised him that his employment was being terminated on the basis of the psychiatric report and his previous conduct. I advised him that he would receive one month’s payment in lieu of notice. I wrote a letter to the Applicant dated 3 April2013 confirming the termination of his employment. Now produced and shown to me and marked with the letters “RD-7” is a copy of my letter to (the Applicant) dated 3 April 2013.” 1

[21] The Employee Relations Manager identified in his oral evidence that it was the report from Associate Professor Peter J Doherty that triggered the decision of the Respondent to dismiss the Applicant:

“PN977. That report came back with some issues that we felt were so strong that we could no longer keep him employed in the workplace. The report said he was unemployable and he has got some belief structures that we believe we can’t support in the hospital. You know, an environment where he’s close to patients and close to fellow employees.

PN978. Commissioner Ryan: When was the decision made to terminate?---

Employee Relations Manager: The decision - I won’t know the exact date but when we got the report back from the psychiatrist I went and shared the content of that report with his manager and said on the basis of this what do you think we need to do? The conversation was around could we support (the Applicant) back in the workplace. Our history with (the Applicant) is that he’s very difficult to support and doesn’t follow any strategies that we put in place to support him and the other decision was - the other part of the decision was that as a public hospital with patients we probably have to make a conservative decision rather than a risky one and in the circumstances we had with a psychiatrist saying he was unemployable, the decision was made to terminate him and we called him in for a meeting”.

[22] The Respondent contended in Closing Submissions, as follows:

“It is clear that (the Applicant) suffers from paranoid schizophrenia and that he is unfit for work as a consequence.

...

There was, therefore, a valid reason for the dismissal as (the Applicant) had no capacity for work based upon Associate Professor’s diagnosis. Furthermore, (the Applicant’s) employment with (the Respondent) had been frustrated by reason of his incapacity.” 2

[23] For a reason to be a valid reason for the purpose of s.387(a) the reason must be “sound, defensible or well founded” and must not be “capricious, spiteful or prejudiced” 3. The reason “must be defensible or justifiable on an objective analysis of the relevant facts.”4

[24] In the present matter part of the reason for the dismissal has been derived from the report of Associate Professor Peter J Doherty. However, it would appear that the reason for dismissal relating to the Applicant’s mental disorder and capacity to work is not in accord with the opinion of Associate Professor Peter J Doherty.

[25] The Respondent describes the Applicant as being unemployable and that the Applicant’s mental disorder created a situation of frustration of the employment contract.

[26] The way in which the Respondent describes the consequences flowing from Associate Professor Peter J Doherty’s report do not accord with the report.

[27] Associate Professor Peter J Doherty did not say that the Applicant had a permanent incapacity to perform work for the Respondent.

[28] Rather, Associate Professor Peter J Doherty described the Applicant as not having a current capacity to work.

[29] It would appear that the Respondent did not give due regard to the specific answer given by Associate Professor Peter J Doherty to a the following question asked of him by the Respondent:

“3. Should any conditions be imposed on the worker to facilitate his return to work?

[30] As noted earlier, the Respondent’s Employee Relations Manager met with the Applicant on 16 March 2013 and specifically sought the Applicant’s consent to be psychiatrically assessed for three specific reasons, including “what steps, if any, (the Respondent) could take to safely return him to the workplace”. Associate Professor Peter J Doherty included in his report what was needed for the Applicant to return to work.

[31] The Respondent on its own evidence ignored the advice given by Associate Professor Peter J Doherty on the return to work of the Applicant.

[32] The diagnosis by Associate Professor Peter J Doherty that the Applicant “has a disorder of the mind, that is, a mental illness the name of which is paranoid schizophrenia” and that the Applicant does not have a current capacity for work do not provide a sound, defensible or well founded reason for the dismissal of the Applicant. It is not sound because the Respondent has taken comments of Associate Professor Peter J Doherty out of context. It is not defensible because the report of Associate Professor Peter J Doherty pointed to how the ongoing employment relationship could be maintained. It is not well founded because the conclusions drawn by the Respondent were inconsistent with the overall report of Associate Professor Peter J Doherty.

[33] The Respondent identified the second reason for dismissal as relating to the communications that the Applicant had had with and about his co workers and managers.

[34] It appears to me that the existence of “weird” and “disturbing” emails and even emails falsely representing what occurred together with other interpersonal communications initiated by the Applicant does not provide a valid reason for dismissal. This is so because all of this occurred before the Respondent requested that the Applicant be psychiatrically assessed.

[35] The logic of the Respondent’s position is that the very fact of the inappropriate communications and behaviour constitute a valid reason for dismissal notwithstanding that they were undertaken by a paranoid schizophrenic who was not aware that he was so and who had not received any psychiatric treatment or medication to deal with the paranoid schizophrenia.

[36] It would appear to be indefensible to dismiss an employee who has a mental disorder for conduct which occurred when the employee was unaware that he had a mental disorder and for which he had not yet received any treatment.

[37] The worst that Associate Professor Peter J Doherty said of the Applicant’s conduct in the workplace was that “there is a strong potential that your employee will be disruptive in the workplace, and not meet the expectation of good co-worker relationships.” Importantly for this discussion, Associate Professor Doherty said in regard to the Applicant that “there is no imminent or foreseeable risk that the worker will be violent of (sic) aggressive in the workplace.”

[38] Violence and aggression are not the only factors that may have an effect on the safety and welfare of other employees and it is necessary to have regard to the totality of the Applicant’s conduct. However, the evidence in this matter does not suggest that the Applicant’s conduct would have any general deleterious effect on the health and safety of other employees. I note that the Respondent has identified one incident in which the Applicant’s conduct caused some stress to a female employee but it appears that situation was well managed by the Respondent and that the Applicant is not likely to repeat the same conduct.

[39] The Respondent’s contention that the Applicant did not have the capacity to perform his work is supported by the report of Associate Professor Peter J Doherty only in relation to the current capacity of the Applicant. It is clear from the report of Associate Professor Peter J Doherty that the mental disorder of the Applicant was treatable through psychiatric treatment and medication and that the Applicant could return to work once cleared by a treating psychiatrist.

[40] The only issue not made clear by the opinion of Associate Professor Peter J Doherty is the amount of time that would elapse before the Applicant could be cleared by a treating psychiatrist to return to work.

[41] The period of incapacity is a relevant consideration in determining whether the Respondent had a valid reason for dismissal. 5

[42] In the circumstances of the present matter where the Respondent had not explored the length of time that the Applicant may be incapacitated for work the mere existence of a current level of incapacity does not support the contention that there was a valid reason for the dismissal.

[43] Having considered both of the reasons relied upon by the Respondent, I do not consider that the Respondent had a valid reason or valid reasons for the dismissal of the Applicant.

Whether the person was notified of that reason

and

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[44] The evidence of the Respondent is clear that the decision to dismiss the Applicant was made prior to the meeting between the Respondent’s Employee Relations Manager and the Applicant on 28 March 2013. The purpose of that meeting was simply to advise the Applicant that his employment had been terminated.

[45] In considering a similarly worded provision under an early Act a Full Bench of the Australian Industrial Relations Commission in Crozier v Palazzo Corporation P/L t/as Noble Park Storage and Transport said:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 6

[46] In the present matter the Respondent did not notify the Applicant of the reason for dismissal before the dismissal was made and the Respondent did not give the Applicant an opportunity to respond to the reason for dismissal.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[47] This criteria is not relevant given the evidence of the Respondent and the findings made in relation to s.387(b) and (c).

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[48] I approach this criteria in the same way that a Full Bench of the Australian Industrial Relations Commission in Annetta v Ansett Australia Ltd described a similar provision in earlier legislation:

“[16] It is clear that s.170CG(3)(d) will not always be relevant but that in cases where it is it must be treated as a matter of significance in the decision-making process. Is s.170CG(3)(d) relevant in this case? We think not. In approaching the construction of the term “unsatisfactory performance” it may be significant that in describing a valid reason s.170CG(3)(a) distinguishes between capacity and conduct. Although neither term appears in s.170CG(3)(d) we think that performance is more likely to relate to capacity than to conduct. The preliminary question posed by paragraph (d) itself is whether the appellant’s employment was terminated for unsatisfactory performance....... The paragraph is intended to refer to the level at which the employee renders performance including factors such as diligence, quality, care taken and so on. While there might be some overlap between the concept of unsatisfactory performance and the concept of misconduct, for example in relation to neglect of duty or poor timekeeping, misconduct of the kind which occurred in this case is in a different category.” 7

[49] In the present matter this criteria is relevant. The facts of the present matter do not fit neatly within the approach adopted by the Full Bench in Annetta v Ansett Australia Ltd. This is so because in the present matter the conduct of the Applicant about which he had been warned, namely inappropriate communications with and about other employees and managers, was, according to the report of Associate Professor Peter J Doherty, a direct consequence of the Applicant working whilst being an undiagnosed and untreated paranoid schizophrenic. This suggests that the Applicant was warned about unsatisfactory performance in relation to conduct which occurred because of an issue as to the Applicant’s capacity.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[50] This criteria is always relevant. What must be considered is a question of degree. In the present matter the size of the Respondent’s enterprise would have no adverse impact on the procedures followed in effecting the dismissal. However the size of the Respondent’s enterprise strongly suggests that the Respondent should have had procedures in place which ensured that procedural fairness was accorded to the Applicant before he was dismissed.

The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[51] In the present matter this criteria is not relevant as the Respondent had dedicated human resource management specialists or expertise in the enterprise.

Any other matters that the FWC considers relevant.

[52] In the consideration of valid reason under s.387(a) the Commission has approached the decision making by the Respondent on the basis that the Respondent relied upon the report prepared by Associate Professor Peter J Doherty. In considering whether or not the Respondent had a valid reason for the dismissal the Commission proceeded on the basis that it was reasonable for the Respondent to treat the report of Associate Professor Peter J Doherty as being professionally accurate and true.

[53] However much of the Applicant’s case was directed at challenging the diagnosis made by Associate Professor Peter J Doherty that the Applicant suffered from paranoid schizophrenia.

[54] The Applicant contended that he suffered from Autism Spectrum Disorder and not from paranoid schizophrenia.

[55] The Applicant relied upon written reports prepared by Dr Janine Manjiviona, a Clinical Psychologist and Dr Arthur Kokkinias, a Consultant Psychiatrist who each assessed the Applicant at different times after the dismissal. Dr Janine Manjiviona assessed the Applicant as suffering from Autism Spectrum Disorder. Dr Arthur Kokkinias assessed the Applicant as not suffering from schizophrenia.

[56] Associate Professor Peter J Doherty gave the following evidence against the Applicant’s claim that he suffered from autism spectrum disorder:

“PN742. The Applicant: Peter, are you aware that I have a formal diagnosis of autism?---

Associate Professor Peter J Doherty: I am aware of that, yes.

PN743. You are aware of that?---Yes.

PN744. You dispute that diagnosis?---Yes, I do.

PN745. Are you aware that I saw an independent psychiatrist, Dr Arthur Kokkinias, one of your co-workers?---I’m aware of that, yes I am.

PN746. Are you aware that he wrote in his report to say that I was not schizophrenic?

---I’m aware of that.

PN747. He saw me for one hour, which is the same length of time which you saw me and he was the person that I actually agreed to see. I didn’t agree to see you?---If I could explain to the Commission. For the last 30 years there has been issues about reliability of psychiatric diagnosis for the reasons presented to you right now. One person might say something and someone else might say something different. For the last 30 years we’ve been trying to improve reliability by having a set criteria for the making of diagnosis, the most commonly used set of criteria is the Diagnostic and Statistical Manual of the American Psychiatric Association, that is now in its fifth edition. There is also the World Health Authority International Classification of Diseases which is more used in Europe and so on. So to improve reliability we say does it meet the criteria under DSM-4, currently DSM-5 which just came out in May this year, rather than having this dispute about he says and one expert says what and so on and so forth. And very quickly and unequivocally (the Applicant) does not meet criteria - international criteria for the diagnosis of autism, full stop, end of it.

Are you an expert on autism?

PN749. THE COMMISSIONER: Just stop there for a moment.

PN750. (THE APPLICANT): Sorry.

PN751. THE COMMISSIONER: DSM-4 and DSM-5, they’re the two different versions of - - - ?-Associate Professor Peter J Doherty:--Editions of the same manual.

PN752. You know what is different between the most current version and the previous version?---The most current version came out in May and is just starting to circulate, I don’t actually.

PN753. Has there been considerable debate within the psychiatric community, especially in America in relation to some of the characterisations of mental illness, are there things which are in DSM-5 which simply were not in DSM-4?---Yes, yes, that’s correct, Commissioner, the book is getting bigger and bigger as one goes along and so on and so forth, but not autism. Autism is an extremely severe disorder associated with cognitive impairments, speech impairments, learning difficulties and so on. No person with autism could present himself to this Commission and represent himself. That is not - that is autism, now there is - - -

PN754. That is autism under the DSM-4 or 5?---Yes, absolutely and that makes the diagnosis because it narrows down the criteria so that it improves reliability.

PN755. Is autism a disorder that is identified by using psychiatric tools or is it identified by using psychological tools?---It is identified by using psychiatric tools, that is all psychiatric diagnoses are judgements, there are no objective measures. One can’t do a blood test, an MRI, an x-ray to come up with a psychiatric diagnosis, therefore one is left to use one’s judgement and wisdom and experience and the like. Therefore there is an unreliability in that and so on and so therefore we create operational criteria to try and improve the reliability but also narrows down the disorder into its core fundamental aspects. So if a person is diagnosed with say autism and meets the criteria in DSM-4 or DSM-5 they surely have autism and people in America would say they have autism, in London, in Melbourne and so on. So that is the nature of psychiatric diagnosis at the present time. Formal - as (the Applicant) says he’s been formally tested, well he hasn’t. What he has is filled in a check list, a self-reporting check list which is the report that we are told he filled in and its entirely unreliable.

PN756. THE COMMISSIONER: (The Applicant).

PN757. (THE APPLICANT): Sorry?---It’s entirely unreliable. A person who believes he has the condition goes to a psychologist and fills in a check list saying true or false, I have it or I don’t and then comes up with a score that says he has it doesn’t tell us anything except the person is pretty keen to identify himself. One can do it on line if one wishes.

PN758. THE COMMISSIONER: As a lay person in this area I have heard the term used “autism”, I’ve also heard the phrase “autism spectrum disorder”?---Yes.

PN759. One appears to me just as a matter of language to be finite or specific, autism is a single word, single descriptor, but the phrase “autism spectrum disorder” appears because of the use of the word “spectrum” to encompass a number of things, and the concept of a spectrum is you can have a colour spectrum goes across a range of colours?---M’m.

PN760 What is the difference when one uses the term “autism” as against using the term or the phrase “autism spectrum disorder”?---Yes, yes, autism is a specific disorder which in its clinical presentation is stark and obvious. The person has no eye contact, cannot relate to you, does not talk to you and so on and so forth. There are significant language difficulties, there is specific learning difficulties. It is a remarkable disorder, it is a tragic disorder, it is severe and so on. Now, (the Applicant) doesn’t have that, full stop, he doesn’t meet the criteria for it. Now the issue is, does he have what’s called autism spectrum disorder. There is no such condition as autism spectrum disorder, it’s a made up thing to encompass a range of possible behaviours and so on and so forth. In DSM-4 we had Aspergers Syndrome which if you like is a sub-group of autism where the social ineptitude, social interaction is diminished and there is also some stereotypic and obsessional behaviour in that person. So in DSM-4 all we had was autism, the severe disorder, often associated with retardation, epilepsy, neurological abnormalities, you know the person doesn’t go to a normal school if you have autism, they go - that’s why we have autistic schools in Melbourne, and we have Aspergers which is if you like a milder version of it and so on. There is no autism spectrum disorder in DSM, there is no such diagnosis and for the reasons you said there is an attempt to sort of broaden disorders out, to create an explanation by giving a psychiatric type diagnosis to behaviours and so on and so forth and we don’t know what is meant by autism spectrum disorder. There is no operational criteria to say you’re on the spectrum and so on, so that doesn’t really help us to say you’re on the autism spectrum disorder because one doesn’t know what we’re talking about. But if I was to say does (the Applicant) have say Aspergers and so on, I would say that his level of social interaction is much greater than the expected level of social interaction in Aspergers. Aspergers can’t look at you in the face, they don’t have eye to eye contact. The ability to interact with people around them is significantly disturbed. They are shy, introverted, avoidant persons who have some stereotypic obsessional ways of relating and doing things and particular habits in terms of rituals and so on and so forth, you know they stay in their bedroom and they do strange things and so on and so forth, they’re not presenting themselves to this Tribunal, this Commission representing themselves, arguing their case as forcibly as (the Applicant) is doing at the present time. So I wouldn’t make the diagnosis of Aspergers in (the Applicant’s) case either.

PN761 If in the professional area the differences between autism, as you have explained it, and Aspergers as you’ve explained it, then in the professional sense if a person has manifestations which tend one way or the other but don’t actually meet the criteria does the profession have a different way of categorising it or does it simply say you are neither autistic, nor do you suffer from Aspergers Syndrome?

---There is no recognised uniform way of dealing with that, once can say - I’ll see that clinicians will say that they had sub-syndrome diagnoses or bits of or parts of or not the full picture of, whatever.

PN762 So in a strict professional sense there is no middle way, you are either autistic or non-autistic or you have Aspergers Syndrome or you don’t?---In a statistical sense, sir. In a statistical sense you’ve either got autism or Aspergers, from making a diagnosis. In terms of relating, in terms of thinking about oneself one may say one has an autism spectrum disorder and so on, but it doesn’t make a diagnosis.

PN763 What does it make? Is it an expression of an opinion - - - ?---Yes.

PN764 - - - of the person who is trained?---Yes, yes.

PN765 Is the opinion valid?---No, the opinion is unreliable because there is no operational criteria. The opinion is something one believes as the clinician and so on and makes sense - may make sense to the person you’re talking to and so on but it doesn’t mean that the person next door in the office or overseas would also agree with that diagnosis, there is no you know criteria to make the diagnosis.

PN766 Does that suggest that it is a subjective but not an objective assessment?---Yes, yes, precisely.”

[57] Associate Professor Peter J Doherty’s reference to DSM - IV is a reference to the Diagnostic and Statistical Manual of Mental Disorders, 4th edition of the American Psychiatric Association.

[58] Interestingly DSM - IV does not seem to support the contentions of Associate Professor Doherty.

[59] Contrary to Associate Professor Peter J Doherty’s assertion that “In terms of relating, in terms of thinking about oneself one may say one has an autism spectrum disorder and so on, but it doesn’t make a diagnosis” it appears that DSM - IV specifically permits a diagnosis of a mental disorder which is atypical autism.

[60] DSM -IV contains a chapter titled “Use of the Manual” which contains the following:

“Use of Not Otherwise Specified Categories

Because of the diversity of clinical presentations, it is impossible for the diagnostic nomenclature to cover every possible situation. For this reason, every diagnostic class has at least one Not Otherwise Specified (NOS) category and some classes have several NOS categories. There are four situations in which an NOS diagnosis may be appropriate:

The presentation conforms to the general guidelines for a mental disorder in the diagnostic class, but the symptomatic picture does not meet the criteria for any of the specific disorders. This would occur either when the symptoms are below the diagnostic threshold for one of the specific disorders or when there is an atypical or mixed presentation.”

[61] At the end of the section discussing Autistic Disorder and Asperger’s Disorder, DSM - IV contains the following:

“299.80 Pervasive Development Disorder Not Otherwise Specified (including Atypical Autism)

This category should be used when there is a severe and pervasive impairment in the development of reciprocal social interaction associated with impairment in either verbal or nonverbal communication skills or with the presence of stereotyped behaviour, interests, and activities, but the criteria are not met for a specific Pervasive Development Disorder, Schizophrenia, Schizotypal Personality Disorder or Avoidant Personality Disorder. For example, this category includes “atypical autism” - presentations that do not meet the criteria for Autistic Disorder because of late age at onset, atypical symptomatology, or subthreshold symptomatology, or all of these.”

[62] Having regard to what DSM - IV specifically permits, ie a diagnosis of “atypical autism” it would appear the Associate Professor Doherty’s evidence to the Commission is at the very least quite misleading.

[63] DSM - IV was published in 2000. In 2013 a fifth edition of DSM was published and is known as DSM - 5.

[64] Associate Professor Peter J Doherty acknowledged at PN798 that he had seen the report prepared by Dr Janine Manjiviona and he acknowledged that she referred to using DSM-5.

[65] Associate Professor Peter J Doherty acknowledged at PN752 that he did not know of the differences between DSM-IV and DSM-5 but went to say at PN753 that there had been no change between DSM-IV and DSM-5 in relation to autism.

[66] The Introduction to DSM - 5 opens with:

“The creation of the fifth edition of Diagnostic and Statistical Manual for Mental Disorders (DSM-5) was a massive undertaking that involved hundreds of people working toward a common goal over a 12-year process. Much thought and deliberation were involved in evaluating the diagnostic criteria, considering the organization of every aspect of the manual, and creating new features believed to be most useful to clinicians. All of these efforts were directed toward the goal of enhancing the clinical usefulness of DSM-5 as a guide in the diagnosis of mental disorders.”

[67] The Introduction also contains the following:

“the boundaries between many disorder “categories” are more fluid over the life course than DSM-IV recognized, and many symptoms assigned to a single disorder may occur, at varying levels of severity, in many other disorders. These findings mean that DSM, like other medical classifications, should accommodate ways to introduce dimensional approaches to mental disorders, including dimensions that cut across current categories. Such an approach should permit a more accurate description of patient presentations and increase the validity of a diagnosis (i.e., the degree to which diagnostic criteria reflect the comprehensive manifestation of an underlying psychopathological disorder).

[68] The Introduction also says:

“To facilitate a thorough examination of the range of symptoms present, DSM can serve clinicians as a guide to indentify the most prominent symptoms that should be assessed when diagnosing a disorder. Although some mental disorders may have well-defined boundaries around symptom clusters, scientific evidence now places many, if not most, disorders on a spectrum with closely related disorders that have shared symptoms, shared genetic and environmental risk factors, and possibly shared neural substrates (perhaps most strongly established for a subset of anxiety disorders by neuroimaging and animal models). In short , we have come to recognize that the boundaries between disorders are more porous than originally perceived.”

[69] DSM-5’s recognition that “scientific evidence now places many, if not most, disorders on a spectrum with closely related disorders” has led to DSM-5 including a category of mental disorder which makes a mockery of Associate Professor Doherty’s evidence.

[70] DSM-5 under the broad heading of “Neurodevelopment Disorders” contains a section titled “Autism Spectrum Disorder” at pages 50 to 59.

[71] DSM5 recognizes a disorder that Associate Professor Peter J Doherty does not!

[72] Associate Professor Peter J Doherty’s statement that:

“There is no autism spectrum disorder in DSM, there is no such diagnosis”

is simply wrong!!

[73] The importance of the above observations on the content of DSM-IV and DSM-5 and the evidence of Associate Professor Peter J Doherty is that Associate Professor Peter J Doherty was the only one of the three professionals who had assessed the Applicant and who gave evidence in this matter (the other two being Dr Janine Manjiviona, a Clinical Psychologist and Dr Arthur Kokkinias, a Consultant Psychiatrist.).

[74] In a contest between sworn evidence and unsworn evidence more weight should ordinarily be given to the sworn evidence which has been tested under cross examination.

[75] Associate Professor Peter J Doherty’s evidence was diametrically opposed to the evidence of Dr Janine Manjiviona, a Clinical Psychologist who assessed the Applicant on 10 July 2013 for Autism Spectrum Disorder. The report prepared by Dr Janine Manjiviona, which was introduced into evidence by the Applicant as Exhibit A10, contains the following:

“The outcome of the assessment found that (the Applicant’s) developmental history, current profile of abilities and assessment results confirmed that he meets the criteria for having an Autism Spectrum Disorder (ASD), and he was referred to the literature on Asperger’s syndrome in particular. (Under DSM-V diagnostic criteria, Asperger’s syndrome is conceptualised as part of the Autism Spectrum.”.

[76] Dr Janine Manjiviona, as part of her assessment of the Applicant, used an instrument titled “The Ritvo Autism-Asperger’s Diagnostic Scale” (RAADS) which Dr Janine Manjiviona described as “designed to identify the characteristics of Asperger’s syndrome and at the present time is considered best practice in the field of Adult assessment and diagnosis”.

[77] Dr Arthur Kokkinias, a Clinical Psychiatrist, assessed the Applicant on 18 June 2013 and prepared a report on that assessment which was introduced into evidence by the Applicant as Exhibit A8. Dr Arthur Kokkinias concluded that:

“I am of the opinion that this man certainly has an autism spectrum disorder, albeit high functioning. He has almost certainly had learning disabilities. To be definitive about these diagnoses, clearly he would need objective testing for both. He has not had this testing as a child; rather, the diagnosis as a child was made informally. Certainly I would say that he is not suffering from a psychotic illness or any pervasive mood disorder, or a personality disorder, or any attention deficit type disorder.”

[78] On 7 August 2013 Dr Arthur Kokkinias prepared a supplement to his original report. The supplementary report was introduced into evidence by the Applicant as Exhibit A9. In his supplementary report Dr Arthur Kokkinias referred to both the assessments made by both Dr Janine Manjiviona and Associate Professor Peter J Doherty and said:

“Based on my one off assessment, I am not able to categorically diagnose schizophrenia. For this to occur, further collateral history is required from other sources. The diagnosis of schizophrenia would appear highly unlikely, in my view, given (the Applicant’s) long work history and his other diagnosis of an autism spectrum disorder which would explain his difficulties with interpersonal relationships. Certainly, as I described in my initial report, (the Applicant) reported to me no symptoms consistent with a psychotic disorder such as schizophrenia. He denied also ever suffering from any mood symptoms consistent with mood disorders such as major depression or a bipolar affective disorder. There is also no family psychiatric history.

It would appear that (the Applicant) has carried an informal diagnosis of autism from a young age. This has been more recently verified by the above named Psychologist, Dr Janine Manjiviona, on 10th July 2013. (The Applicant) has not had any psychiatric admissions for a psychotic illness as far as I am aware and has never had a diagnosis made of schizophrenia. In usual circumstances I would expect that by his current age that he would have had such a diagnosis made or a presentation to psychiatric services before this time, if he in fact had such a diagnosis. There are no valid tools for diagnosing schizophrenia that I am aware of, by far the most valid assessment tool is that of a clinical psychiatric examination together with obtaining good collateral history from other sources (ie family informants, other informants and previous medical records).

In summary, my opinion is as stated in my initial report, ie that I believe this man has an autism spectrum disorder and almost certainly has had a learning disability. I am unclear and dubious as to whether he has ever had a psychotic illness such as schizophrenia.”

[79] There is a real conflict between the professional views of Associate Professor Peter J Doherty on the one side and Dr Janine Manjiviona and Dr Arthur Kokkinias on the other side.

[80] Associate Professor Peter J Doherty’s professional view is based upon his certainty that autism is a very specific mental disorder and that autism spectrum disorder does not exist as a defined mental disorder. Given that Associate Professor Peter J Doherty is wrong on this it is possible, and I put it no higher than that, that he is wrong on his diagnosis that the Applicant suffers from a mental disorder of paranoid schizophrenia.

[81] I do not have to determine what if any mental disorder the Applicant may suffer from. That is for well informed experts to do.

[82] But at the very least, if the Respondent had accepted and acted upon the advice made by Associate Professor Peter J Doherty that “your employee should provide a certificate by a treating psychiatrist certifying that he is fit to return to work before he so returns to work” then any disagreement with Associate Professor Peter J Doherty’s diagnosis would have become clear and the fitness for work of the Applicant would have been appropriately dealt with.

Conclusion

[83] Each of the criteria under s.387(a), (b), (c) and (h) all support a finding that the dismissal of the Applicant was harsh, unjust or unreasonable. The criteria in s.387(d) and (g) are not relevant to a consideration as to whether the dismissal was harsh, unjust or unreasonable. The criteria in s.387(f) is neutral in relation to a finding that the dismissal was harsh, unjust or unreasonable. The criteria in s.387(e) lends some, albeit limited, support for the contention that the dismissal was not harsh, unjust or unreasonable.

[84] Considering all of the relevant criteria together I am satisfied that the dismissal was harsh, unjust or unreasonable.

Remedy

[85] The Applicant seeks reinstatement with continuity of service and payment of an appropriate sum reflecting lost earnings. (Exhibit A21 - Closing Statement of the Applicant)

[86] The Respondent contended in its Outline of Argument, Exhibit R6 that:

“...no order for reinstatement should issue. (The Applicant) is yet to obtain the treatment he requires. The material filed in this application (exhibit A6) indicates that certain mental health issues are ongoing.”

Remedies for Unfair Dismissal are dealt with in s.390 - s393 of the Act.

[87] The first issue for the Commission to consider is whether a remedy should be granted. S.390 is as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[88] The decision to grant or not grant a remedy is broadly discretionary. The decision of a Full Bench of the former Australian Industrial Relations Commission in Vdoukakis v DJ Cussan Pty Limited t/as Royal Hotel Randwick 8 (Vdoukakis) has been relied on for the proposition that the Commission may exercise its discretion under s.390 and not grant a remedy.

[89] The decision in Vdoukakis concerned the operation of s.170CH of the former Workplace Relations Act which was in very different form to s.390 of the Fair Work Act. Relevantly s.170CH(1) and (2) of the former Act were as follows:

“170CH Remedies on arbitration

(1) Subject to this section, the Commission may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (6) if it has determined that the termination was harsh, unjust or unreasonable.

(2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s undertaking, establishment or service; and

(b) the length of the employee’s service with the employer; and

(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; and

(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and

(e) any other matter that the Commission considers relevant;

that the remedy ordered is appropriate.

[90] In Vdoukakis the Full Bench said of s.170CH:

“[21] There is nothing in this section which obligates the Commission to provide for one of the remedies set out in section 170CH(3), (4) or (6) as a consequence of finding a dismissal to be harsh, unjust or unreasonable.”

[91] There is sufficient similarity in the wording of s.390(1) of the Fair Work Act2009 and s.170CH(1) of the former Act that the same can be said of s.390(1), in which case the discretion to not grant a remedy appears to be at large. However, the discretion is not at large because of the operation of s.381 of the Act.

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[92] In determining whether a remedy should or should not be granted the Commission must ensure that a “fair go all round” is accorded to both the Applicant and the Respondent.

[93] Whilst the concept of a “fair go all round” is readily embraced by industrial practitioners it is easily misunderstood. It pays to go back to the decision in in re Loty and Holloway v Australian Workers’ Union to understand the meaning behind that term. Relevantly Sheldon J said at 99:

“...in order to justify, in its discretion, intervention by the Commission by way of reinstatement, it must be shown in this case that the branch executive exercised its right of dismissal unfairly even though it was perfectly legal and this should be determined by standards neither more strict nor more relaxed than those applicable to any employer. I say “unfairly” because adjectival tyranny should be resisted and I believe that in modern context expressions used in the older cases such as “harsh”, “oppressive” and “unconscionable” as determinants as to whether intervention by an industrial authority is in its discretion permissible are properly interpreted on the basis simply of firstly deciding in all the circumstances, even though in the dismissal (be it summary or on notice) the employer has not exceeded his common law and/or award rights, whether the employee has received less than a fair deal.

Mr Commissioner Manuel in a recent case put it in a nutshell and in language readily understood in the industrial world when he conceived his duty to be to ensure “a fair go all round”. In my view, the use of the old adjectives, with overtones from other jurisdictions, tends to distort this basically simple approach in that they can be strained to mean that an employer can be less than fair in exercising his right to dismiss and yet stand outside the permissible area within which an industrial authority in its discretion may act. It is a question of emphasis rather than substance as these adjectives have frequently been used in conjunction with and as alternatives to such expressions as “unfair”, “unjust” and “unfair dealing”. The last expression was used as an alternative to “injustice” and “oppression” as far back as 1921 in the historic Bank Officers Case, and it is inconceivable that a more rigid test should be applied half a century later. The less fetters there are on the discretion the better (none appear in the Act) but it is all-important that it should be exercised soundly. The objective in these cases is always industrial justice and to this end weight must be given in varying degrees according to the requirements of each case to the importance but not the inviolability of the right of the employer to manage his business, the nature and quality of the work in question, the circumstances surrounding the dismissal and the likely practical outcome if an order of reinstatement is made. There certainly may be cases where the dismissal had many elements of unfairness but an industrial authority if it was convinced of the practical uselessness of trying to re-establish the employer-employee relationship, would not intervene at all. There may be other cases where there are reasonable prospects for the future of the relationship if clarifying conditions are imposed.”

[94] Whilst the requirements imposed by s.381(2) are readily understandable by having regard to the decision of Sheldon J there are other requirements placed upon the Commission in the exercise of the discretion under s.390 of the Act.

[95] The authorities make it clear that the discretion must be exercised subject to reasonable constraints. The constraints are clearly identified in the decision of the High Court in House v R. as follows:

“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” 9

[96] More recently in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission a majority of the High Court has said:

“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process (See Norbis v Norbis (1986) 161 CLR 513 at 518-519). And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King”. 10

[97] If the Commission is to grant a remedy, the Commission is required by s.390(3) to consider firstly the appropriateness or inappropriateness of reinstatement. If, and only if, the Commission considers that reinstatement is inappropriate can the Commission consider whether it is appropriate or inappropriate to grant the remedy of compensation. 11

[98] Where, as is the case in the present matter, the conditions precedent in s.390(1)(a) and (b) and in s.390(2) have been met then the following proposition would appear to accord with the purpose of s.390(1) of the Act. Both the requirement of s.381(2) and the principle enunciated in House v King operate so that the Commission could only exercise its discretion to refuse to grant a remedy where the Commission considers firstly, the appropriateness or inappropriateness of reinstatement and determines that reinstatement is inappropriate, and then the Commission considers whether it is appropriate or inappropriate to grant the remedy of compensation and determines that compensation is inappropriate.

[99] I will follow this approach.

Is reinstatement appropriate or inappropriate?

[100] Both the Applicant and the Respondent agree that the Applicant suffers from a mental disorder but disagree on the nature of that mental disorder. The Applicant contends that he suffers from Autism Spectrum Disorder and the Respondent contends that he suffers from paranoid schizophrenia.

[101] The Respondent relied upon the post dismissal conduct of the Applicant where he denied that he suffered from paranoid schizophrenia and where the Applicant (as alleged by the Respondent) made offensive remarks online about Associate Professor Peter J Doherty.

[102] This post dismissal conduct is not persuasive in relation to a consideration of the appropriateness or inappropriateness of reinstatement. The very fact that the Applicant has produced evidence which questions the veracity of the diagnosis made by Associate Professor Peter J Doherty makes the post dismissal conduct of the Applicant understandable.

[103] Whatever the nature of the mental disorder it is clear that the Applicant engages in communications with or about other employees or managers which could broadly be characterised as being inappropriate.

[104] Dr Janine Manjiviona described the Applicant’s communication difficulties as follows:

“A core feature of ASD and (the Applicant) is verbal and nonverbal communication difficulties, including a tendency to be very literal in the interpretation of language. (The Applicant) does not cope well with the subtleties of language and he has a difficulty in understanding inferences and reading between the lines. As a result he can misinterpret what others say. (The Applicant) can also be quite blunt at times and seems to be rude and unfeeling towards others. This is also part of ASD. In terms of nonverbal communication difficulties, (the Applicant) has difficulty in reading body language including facial expressions and other gestures which compounds the social difficulties.”

[105] Dr Janine Manjiviona does not offer any comment on treatments or interventions that would lessen the impact of these communication difficulties in the workplace.

[106] The existence of the Applicant’s communication difficulties is a matter which has a direct bearing on the appropriateness or inappropriateness of reinstatement. However it must be borne in mind that the Applicant’s communications difficulties are a feature of a mental disorder.

[107] In considering the appropriateness or inappropriateness of reinstatement I have had regard to the general protection provided to all employees through s.351 of the Act. Relevantly s.351 provides as follows:

“351 Discrimination

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or

(b) taken because of the inherent requirements of the particular position concerned; or

(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.”

[108] It would appear that a mental disorder of either or both autism spectrum disorder or paranoid schizophrenia is a mental disability for the purpose of s.351(1). The very fact that Parliament has determined that an employer must not take adverse action against an employee who has a mental disability tends to support the appropriateness of reinstating an employee who has a mental disability and who has been unfairly dismissed.

[109] A fair go all round supports reinstatement as the appropriate remedy. It would be singularly inappropriate in the circumstances of the present matter to deny the Applicant reinstatement.

[110] However, reinstatement restores the employment relationship but does not automatically mean that the Applicant immediately returns to the workplace. As with any employee their right to work is dependent upon the worker having the capacity to work. A question posed by the Respondent to Associate Professor Peter J Doherty when the Respondent sought to have the Applicant psychiatrically assessed was: Does (the Applicant) have a current capacity for work? This question is always relevant and in the circumstances of the present matter needs to be answered affirmatively in order for the Applicant to actually commence work. If the question is answered in the negative then it leads to another of the questions posed by the Respondent to Associate Professor Peter J Doherty: Should any conditions be imposed on the worker to facilitate his return to work?

[111] Whilst these two questions were answered by Associate Professor Peter J Doherty they were not put to nor answered by Dr Janine Manjiviona or Dr Arthur Kokkinias. Yet the questions need to be answered before the Applicant resumes his employment.

[112] I am of the view that whilst reinstatement is the appropriate remedy in this matter the commencement of work should occur on the basis that the Applicant produces to the Respondent a clearance from both a treating psychologist and a treating psychiatrist that the Applicant is fit to return to work in his employment as an audio typist with the Respondent. I note in this context that Associate Professor Peter J Doherty suggested that any treating psychiatrist could issue such a return to work certificate when he said:

“In my opinion your employee should provide a certificate by a treating psychiatrist certifying that he is fit to return to work before he so returns to work.”

I would add that such a certificate from a treating psychiatrist should be issued by a treating psychiatrist who is familiar with DSM - 5 so that it at least reflects the current state of knowledge within the psychiatric profession.

[113] The Applicant has sought an order for continuity of service and for payment of lost remuneration.

[114] Section 391(2) and (3) permit the making of the orders requested by the Applicant. The language of each of those two subsections is that the Commission may make the order if the Commission “considers it appropriate to do so”.

[115] In all of the circumstances of the present matter I do consider it appropriate to make an order under s.391(2) to maintain the continuity of the Applicant’s employment with the Respondent.

[116] In all of the circumstances of the present matter I do consider it appropriate to make an order under s.391(3) to cause the employer to pay to the Applicant an amount for the remuneration lost by the Applicant because of the dismissal. If the parties can agree on the amount of lost remuneration having regard to the requirements of s.391(4) they are to advise my chambers by close of business on 7 October 2013. If however the parties cannot agree on the amount of remuneration lost I will, pursuant to s.391(4), determine the amount of lost remuneration at a telephone hearing conducted on 14 October 2013.

COMMISSIONER

Appearances:

Applicant on his own behalf.

Employee Relations Manager for the Respondent.

Hearing details:

2013.

Melbourne:

August 8, 9

1 Exhibit R3.

2 Exhibit R7 at paras 2 and 4.

3 Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 at 373, 7 July 1995, Northrop J.

4 Rode v Burwood Mitsubishi (Print R0708) [1999] AIRC 23.

5 Shortland v The Smiths Snackfood Co[2011] FWAFB 2303 at pn [19].

6 Crozier v Palazzo Corporation P/L t/as Noble Park Storage and Transport , S5897 at pn 73.

7 Annetta v Ansett Australia Ltd, Print S6824 at pn 16.

8 Vdoukakis v DJ Cussan Pty Limited t/as Royal Hotel Randwick, PR949780.

9 House v R. (1936) 55 CLR 499, at 404 - 405.

10 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 205.

11 Holcim (Australia) P/L v Serafini [2011] FWAFB at pn [24].

Printed by authority of the Commonwealth Government Printer