Applicant v Respondent
[2010] FWA 6739
•1 SEPTEMBER 2010
[2010] FWA 6739
The attached document replaces the document previously issued with the above code on 1 September 2010.
Yota Amanatidis
Associate to Commissioner Gooley
Dated 8 September 2010
[2010] FWA 6739 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Applicant
v
Respondent
(U2010/6297)
COMMISSIONER GOOLEY | MELBOURNE, 1 SEPTEMBER 2010 |
[1] The applicant was employed by the respondent from 10 April 2006 until her employment was terminated on 8 February 2010.
[2] The respondent is a company engaged in the provision of administration and other services. 1 An enterprise agreement applied to the applicant’s employment. The applicant was initially employed to answer telephone queries from fund members.2
[3] The applicant alleges that the termination of her employment was harsh, unjust and unreasonable and seeks reinstatement and compensation.
[4] The matter was heard in Melbourne on the 7th, 8th and 9th June 2010. The applicant represented herself and Mr Harrington of Counsel was granted permission to appear for the respondent.
[5] The applicant sought an adjournment at the commencement of the proceedings as she had not received the respondent’s outline and witness statements on time. She received them on 19 May 2010 when they were due to be filed on 17 May 2010. As the hearing was not conducted until 7 June 2010 I determined that the applicant had sufficient time to review the material and declined the application for an adjournment.
[6] The applicant provided a chronology of events and documents upon which she relied, she gave evidence on her own behalf and was cross examined. Dr C a consultant psychiatrist, Ms M, a Customer Relationship Manager, Ms C, the Human Resources Manager, Ms T, the applicant’s team leader from June 2009 and Ms S, the Human Resources Business Partner gave evidence for the respondent. Dr C, Ms C and Ms S were cross examined by the applicant.
The evidence
[7] The applicant had issues with her employer from the commencement of her employment. It was her evidence that between June 2006 and August 2007 she became dissatisfied with her employment and she commenced looking for alternative employment. 3
[8] On 9 November 2007 the applicant was offered a promotion but was advised that she would be on probation for three months. Ms S gave evidence that around the same time there were issues with the applicant not meeting her targets. 4 A meeting was held on 9 November 2007 to discuss the promotion and the performance issues. Notes of the meeting, made by Mr M, one of the applicant’s managers, recorded that the applicant and he had a heated discussion about the issue of the applicant not meeting the targets, but that he explained to the applicant that “the decision to set a probationary period due to productivity concerns was one made by both Marianne and I, and that if we had any ongoing concerns over her performance we would not have made the offer - we wanted her on the Team and that is why we made the offer.”5 The applicant’s evidence was that the topics covered in this meeting “had an underlining tone of some kind of accusation of a derogatory nature.”6
[9] It was the applicant’s evidence, that on 13 November 2007 she met with Mr D her team leader and advised him that she wished to submit an incident report regarding “current management behaviour (call centre I assumed) with regard to how the QA assessments are misinterpreted causing potential friction between assessors and call centre operators.” The applicant mentioned to Mr D that she was “completely (avoidably) mentally and physically exhausted with the current codes of business conduct & practices and therefore needed to go home sick.” 7
[10] The applicant’s evidence was that on 19 November 2007 she attempted to “return to work again and report bullying and unprofessional conduct and other such matters - under OH&S/workplace incident reporting mechanism in the absence of any genuine management support/process to air “concerns” it seemed.” 8 A meeting was held with Mr M and Mr D. The applicant’s evidence was that she wanted the meeting to “ensure workplace bullying stops.”9 She said that she “detailed to the best of my ability my concerns regarding codes of conduct and practices and the disregard/disrespect shown towards staff and customers.”10 The applicant advised that she informed them that she declined the promotion and wished to return to the call centre. Mr M’s notes of the meeting recorded that the applicant stated that “she was suffering environmental stress and wanted her life back, that things at her work had gotten as bad as things out of work, and that she was going to make a stress claim. She stated that she felt intimidated”. Mr M recorded that she “was not interested in addressing or speaking in detail about, specific issues, declaring that it was all ‘unworkable’ and that she was being subjected to obscene work conditions.”11
[11] Ms S gave evidence that on that day she was called to reception because the applicant was visibly distressed following her meeting with Mr M. The applicant requested a workcover claim form and a copy of the grievance policy. Ms S described the applicant as “very angry” and “resistant or unable to explain what had upset her.” The applicant told Ms S she was suffering “environmental stress” and Ms S suggested that the applicant put her grievance in writing and gave her a workcover claim form and a copy of the respondent’s grievance policy. 12 The applicant’s evidence was that she “was forced to recount the same concerns over and over again to one inexperienced member of staff after another... Given the (abusive) approach - asking a stressed employee to repeat the same (clearly stress account is barbaric.”13
[12] On 22 November 2007 the applicant was in reception with an OH&S representative. Ms S gave evidence that at 4.55pm she was called to reception by the receptionist who was concerned about the applicant’s behaviour and for the OH&S representative. Ms S’s evidence was that the OH&S representative was very distressed. Ms S went to speak with the applicant who was also upset. As a result the applicant made a written complaint to her employer in the form of an accident/injury notification. 14
[13] That complaint described the nature of her injury as follows:
“Environment stress/unsafe- illegal? Ethical behaviour namely
(1) recruitment process/policies
(2) the respondent’s OH&S incident/accident policy & practices
(3) failure to fully disclose/educate me regarding government (Ato) legislation requirements
(4) the respondent’s business practice & police/workforce management/ethics.” 15
[14] The applicant did not attend work again until 17 December 2007. On 17 December 2007 a meeting was held with Ms S, the applicant, and a number of other persons from the respondent. Ms S’s evidence was that the applicant’s behaviour was “aggressive and erratic.” 16 Ms S’s evidence was that by the end of the meeting she “still did not have a clear understanding of what issues were causing her concern.”17 That meeting did not resolve the applicant’s complaint and the applicant did not attend work for the rest of the year.
[15] On the applicant’s evidence November 2007 is “the key date in all of this because from my perspective, the decline in my work environment commenced from that date and the respondent’s approach to due process pretty well is summed up on how that situation was addressed.” 18
[16] On 9 January 2008 the applicant attended the workplace and met with Ms S. In her letter to the applicant sent on 18 January 2008 Ms S wrote that “during the discussion on the 9th January 2008 you demonstrated aggressive and erratic behaviour that has been independently witnessed on previous occasions.” 19 As a result the respondent decided to stand the applicant down on full pay until she was able to undergo a medical examination on 29 January 2008 and was declared fit for work.20
[17] The applicant did not attend the medical appointment and on 11 March 2008 the respondent advised her of a rescheduled appointment for 20 March 2008 and advised her that if she did not attend the respondent may terminate her employment. 21 On 19 March 2008 the applicant provided the respondent with a medical certificate for 19 and 20 March 2008 and advised that she would not be attending the medical appointment.22 On 20 March 2008 the respondent wrote to the applicant and told her that her personal leave had been exhausted and she was now on unpaid leave as she had failed to comply with the directions to attend the medical appointments. The applicant was advised that she was on unpaid leave until she attended the medical appointment and the respondent had received and considered the report. She was advised if she did not do this by 21 June 2008 or provide the respondent with a satisfactory excuse, her employment would be terminated.23 The applicant did not comply with this request but on 19 June 2008 the respondent received a letter from Mr S a lawyer from the PILCH Homeless Persons’ Legal Clinic which challenged the respondent’s right to issue the applicant with a direction to attend the appointments and advising that the applicant had contacted the respondent to no avail to arrange a new appointment. The respondent then arranged another medical appointment for the applicant on 22 July 2008. Dr W’s report was provided to the respondent on 28 August 2008.24
[18] The applicant’s evidence is that the respondent’s conduct in insisting that she attend Dr W was “an exercise to discredit and find reason to terminate my services and thereby not address the outstanding “business operations/ohs issues I raised.” 25
[19] In his report Dr W 26 noted that the applicant had been declared fit for work by her doctor and said it would be prudent to obtain a more up to date certification in that regard. He further stated that “presuming that the declaration of fitness may stand, it would be reasonable to expect the applicant to participate in discussions with a view to constructing a return to work program. If she is non-compliant in that regard then disciplinary proceedings could be initiated, ultimately with a view to dismissal.”27 He made no diagnosis of mental illness but he did find that she was anxious about her work situation and found that she displayed evidence of distrustfulness directed at the employer and anyone associated with her employer. Dr W further stated that “until the applicant can more clearly articulate what the nature of her grievances are, if in fact she is capable of doing so, it is very difficult to see how any meaningful conciliation could occur. At best, she is ambivalent about remaining an employee of the respondent.” 28
[20] On 13 October 2008 the respondent wrote to the applicant and invited her to attend a meeting on 17 October 2008 to discuss her return to work. The applicant did not attend that meeting. On 21 October 2008 the applicant wrote to Ms C making a number of allegations and requested a meeting with the CEO. 29 A meeting with Ms C was scheduled for 5 November 2008. Ms C attended the meeting and Mr P, a clinical psychologist, attended the meeting as a support person for the applicant. While that meeting was intended to discuss the applicant’s return to work it did not result in an agreed return to work plan. At that meeting Ms C advised the applicant that she had two options, to either return to work or resign.30 By letter dated 17 November 2008 the applicant advised the she would not resign. She further alleged that “SP investigation of my workplace incident report turned out to be a vile campaign to discredit/punish me for my honesty & ethical behaviour.” She further alleged that “the vile campaign by the respondent, clearly still in progress, has financially extorted me & further jeopardises my health.”31
[21] The applicant was then directed to attend work on 8 December 2008. The applicant attended a meeting with Ms S that day but again no return to work plan was agreed. The applicant was concerned that she had not been paid from 1 September 2008 which was the date the respondent had received Dr W’s report and she advised that she would not be returning to work until her outstanding issues were resolved. 32 The applicant was subsequently advised that she was not required to attend work until 12 December 2008 and that she would be paid from 1 September 2008 until the time and place of her next scheduled return to work meeting.33 The applicant was also provided with a return to work plan. The applicant attended a meeting on 12 December 2008 along with Mr P but again no return to work plan was agreed. A further meeting was held on 15 December 2008 and a number of options were canvassed. On 16 December 2008 the respondent wrote to the applicant outlining the options. The applicant subsequently advised that she was returning to work on the 22 December 2008 but that she wanted a meeting with the CEO.34
[22] The applicant’s evidence is that in this period she suffered financial destitution, homelessness and physical and psychological abuse by co-tenants. 35 The applicant considered the return to work meetings did not address her outstanding matters and that she was denied a gradual return to work.”36 Ms C’s evidence was that a gradual return to work was not offered because the applicant had a full clearance from a medical practitioner.37 The applicant’s evidence was that at the meeting on 15 December 2010 Ms C told her that she could not guarantee her safety at work.38 Ms C denied this and Ms C’s evidence was that she stated that “the environment is healthy, it’s safe and it’s a reasonable working environment.” She said that she didn’t know what the applicant meant. In cross examination Ms C said “the context in which I responded in that way... is that all of these issues that you raised, there is nothing that I have been able to do or say or the organisation has been able to demonstrate that satisfied the applicant in any way around the environment. She’s been unable to articulate what specifically her concerns have been. There’s a lot of generalisation around ethics, behaviour, tactics, policies, technology, collusion, all of those sorts of things. So my point is I can’t guarantee that things are going to meet your expectations because so far in the last two years we’ve been able to.”39 I assume Ms C meant to say they haven’t been able to.
[23] The applicant returned to work on 22 December 2008 and the respondent placed the applicant with a new supervisor, developed a return to work plan involving retraining the applicant in every aspect of her job, policies and procedures, selected their best team leader to support the applicant and selected the team for the applicant to go into. 40 Despite these efforts the applicant’s return to work was not successful. In the period 29 January 2009 and 10 February 2009 Ms S gave evidence that she received complaints about the applicant’s performance and conduct. The applicant’s performance was not up to standard and Ms S gave evidence that when this was raised with the applicant she became aggressive and paranoid and accused people of bullying her or of talking behind her back. 41
[24] A formal performance management meeting was to be conducted by Ms M on 11 February 2009 but the applicant did not attend work on that day. 42 On 17 February 2009 the applicant was advised that there would be a counselling meeting to discuss her conduct43 when she returned to work which she did on 2 March 2009. The applicant provided two injury notification forms in this period.44 A meeting was scheduled for that day but after the applicant complained of being bullied and abused it was rescheduled for the next day. The applicant did not attend work again until 9 March 2009.
[25] On 6 March 2009 the applicant lodged a workcover claim. 45 Due to that claim, the counselling meeting was cancelled and the applicant was placed with a new team leader.46 Ms S met with the applicant on 12 March 2009 to investigate the applicant’s injury notification reports and sought more details. Ms S explained the process in an email to which she attached copies of the relevant respondent’s policies.47 The applicant continued to attend work.
[26] The applicant was directed by Allianz the workcover insurers to undergo a psychiatric assessment with Dr Wh, a psychiatrist. Dr Wh’s report was not in evidence in this proceeding, but in cross examination, the applicant accepted that Dr Wh told her that he thought she was suffering from schizophrenia. 48 The applicant did not agree with this diagnosis.
[27] On 20 May 2009 Ms S received an email from the workcover insurer which advised her that the applicant’s workcover claim was rejected.
[28] Ms T’s evidence detailed a number of issues with the applicant’s performance and conduct in the period until October 2009. 49 A performance meeting was held on 10 September 2009 and Mr Ma from the Finance Sector Union (FSU) attended as the applicant’s representative. In this meeting Ms S alleges that the applicant advised that she had been assaulted outside of work and that these bashings were organised by the respondent.50 The meeting did not resolve any of the outstanding issues.
[29] On 6 October 2009 the respondent received complaints about the applicant from Mr H, Mr B and Ms E, three co-workers. 51 Ms E complained that she “felt bullied and threatened by her [the applicant] tone and behaviour and truly believed she was going to strike us.”52A meeting was held on 7 October 2009 to discuss the incident on 6 October 2009 but again nothing was resolved. On 8 October 2009 the applicant advised Ms T that she had to leave work because she was about to black out.53
[30] On 8 October 2009 the applicant sent an email to the CEO in which she complained about ongoing abuse. She alleged that as a result of her complaint in November 2007 the respondent was trying to discredit her. She claimed that the behaviour since that date has been “reprehensible.” She referred back to the direction to attend the medical assessment with Dr W under threat of termination and said ‘I will be citing that direction/threat as the basis of my proof of unethical and unprofessional codes of conduct of that time and since - together with breach of my privacy and security and relentless bullying tactics since November 2007.” 54 The applicant sought a meeting with the CEO.
[31] On 9 October 2009 Ms T contacted the applicant and advised that she would need to get a clearance from her doctor before she returned to work. However it appears that the applicant returned to work without any clearance.
[32] On 9 October 2009 Ms T made a formal complaint about the applicant. 55 Ms T gave evidence that “the applicant’s behaviour put me through considerable stress which affected my professional and personal life. In or about October 2009 I took 2 weeks off work due to the stress I felt had arisen owing to my constant dealings with the applicant. I also attended counselling arranged by me by the respondent.”56
[33] The CEO forwarded the emails from the applicant to Ms C and she decided to conduct an investigation into Ms T and Ms E’s complaints as well as the applicant’s complaints of abuse. She determined to stand the applicant down on full pay while she investigated because the complaints against the applicant related to the health and safety of two employees and the complaints from the applicant related to her own health and safety. 57
[34] Ms C met with the applicant on 12 October 2009 and advised her that she would be stood down with pay pending the investigation and that was confirmed by letter dated the same date. 58
[35] On 30 October 2009 a meeting was held with Ms C and the applicant. Mr L from the FSU and Ms Mo from the respondent were also present. At that meeting Ms C advised the applicant that if she wanted to leave the respondent that she would be supported financially and if she accepted the offer she would need to sign a deed of release. Ms C also advised her that if she wanted to stay she would investigate the applicant’s complaints and the complaints against the applicant. 59
[36] The applicant sought until 6 November 2009 to consider her options and the applicant was not required to attend work. The applicant then sought an extension of time to respond by 9 November 2009. On 9 November 2009 the applicant advised that she would not be resigning. 60
[37] Another meeting was arranged for 11 November 2009 and Mr L from the FSU was again in attendance. However there was no resolution. On 17 November 2009 the respondent advised the applicant that she would not be able to return to work until it was established that she was fit for work. She was advised that she was to see Dr C on 20 November 2009. 61
[38] On 20 November 2009 the applicant attended Dr C’s rooms. The applicant’s evidence was that she had asked her employer if Dr C was a psychiatrist and she was told that he wasn’t and that she had been told she was going to see a medical practitioner for an assessment. 62 Ms C’s evidence was that she did not tell the applicant Dr C’s qualifications because she forgot.63 The applicant implied that this was deliberate.64 The applicant, having become aware that Dr C was a psychiatrist, sought to leave but in fact did not leave. In answer to the applicant’s question about whether they discussed what was actually happening at work Dr C said “We really didn’t discuss anything. I think you were upset to find out that I was a psychiatrist and you were threatening to leave at any moment, and I kept my ears open and my mouth shut.”65 Dr C observed the applicant but did not use the Diagnostic and Statistical Manual to ascribe to the applicant’s behaviour a diagnostic category66. He formed the view that the applicant was suffering a mixed bi-polar disorder. 67 He stated in his report that “She seems completely devoid of insight into the fact that her beliefs might not be well based and into the effect that her behaviour might have upon others. Her beliefs have an unmistakeable paranoid quality and are I believe delusional, but even if they have some basis in fact the facts have been interpreted in such a way as to reinforce her beliefs”.68 On 4 December 2009 Dr C forwarded a copy of this report to the respondent but as the applicant had not given consent for the report to be provided to the respondent, Ms C sought the applicant’s consent to the report being provided to them.
[39] The applicant attended the workplace on 18 December 2009 to meet with Ms C. Ms C gave evidence that the applicant was agitated and angry. 69 The applicant sent Ms C text messages that day seeking details of the complaints against her and advising that she would seek police proceedings “relating to the assaults, abuse & collusion via breach of my privacy & security via your now well established bullying inside & outside the workplace history. ... My case will estab an appearance only op that practices targeted abuse for fin gain via profiling & deliberately inducing stress for the purpose of financial gain via w/c prov. .... I will attend your office for the documentation (signed x accusers but ensure they are clearly read their rights re lying & manufacturing stories as I will seek charges under fed laws prov for the torture I have been subjected to”.70
[40] On 22 December 2009 Ms C directed the applicant to sign the medical consent form to enable the respondent to have access to Dr C’s medical report and advised that until it was signed the applicant would be placed on unpaid leave. She was given until 31 March 2010 to comply and advised that her employment would be terminated if she did not comply. 71
[41] On 22 December 2009 the applicant provided the signed consent form and Ms C advised Dr C of the applicant’s consent and asked him to provide a supplementary report specifically asking him to provide his opinion about whether the applicant was able to perform the inherent requirements of her job. 72
[42] On 14 January 2010 Ms C received Dr C’s supplementary report in which he advised that in his opinion the applicant was no longer capable of performing the inherent requirements of her role. In answer to my question about whether he had given any consideration to what accommodation the respondent could have undertaken to enable the applicant to meet the inherent requirements of her position Dr C said “Well the impression I had was that they had already done their best to, you know, slot her in somewhere within the difficulties they faced because of her behaviour and what she’d said.” 73
[43] On 22 January 2010 Ms C wrote to the applicant advising her that the respondent was considering terminating her employment and asking for her to put forward any matters she wished the respondent to consider by 29 January 2010. 74
[44] The applicant provided a detailed response on 5 February 2010. 75
[45] On 6 February 2010 Ms C determined that she would terminate the applicant’s employment because she determined that the applicant was no longer able to perform the inherent requirements of her position. 76
[46] Ms C in answer to a question as to whether the complaints about the applicant’s behaviour were any part of her decision to terminate the applicant’s employment said “not per se”. She said that the decision was based on Dr C’s report and the two and a half years experience between the respondent and the applicant. She said “We had tried and tried again, and I absolutely agree that the applicant tried and tried again. I have never questioned that she truly believes what she believes. The fact is that we do have a safe and healthy working environment, and that we have absolutely bent over backwards to support the applicant, and I’ll be honest in that, you know, certainly I’ve had concerns around her mental health, because there has been no demonstration of sustainable performance or capability to actually work in that environment in a way. It would be okay for a bit, and then it would escalate and escalate and escalate. So, you know, it was really about the health and wellbeing of our staff members, of the applicant, and Dr C’s report, and that fact is I don’t know what else we could have done. We had explored every single option and, you know, in relation to dealing with the applicant in a way that you perhaps would somebody else in that you might - you know, there was performance counselling that I’m sure came up in Ms S’s statement around performance counselling the applicant about her inability to perform her job. It impacts her significantly, and then she’s out of business again because she just can’t quite work and deal with that. Ultimately we relied certainly on Dr C’s report, because we genuinely felt that the applicant was not in a fit and healthy state to be able to work [for the respondent] and do her role, coupled with the fact that the relationship in my opinion and in fact in conversations that I’d had with the applicant way back in 2008 an again on 30 December - sorry, 30 October, whenever it was, with Mr L where I put to her has the trust and confidence actually gone, and she agreed. So based on all of those things, that ultimately was the reason why we got to the termination of her employment.” 77
The submissions
[47] The applicant submitted that as a result of her lodging a formal complaint on 19 November 2007 she had been subjected to “a range of events” 78 that led to the termination of her employment in February 2010. The applicant submitted that her complaints were not investigated and that she thought there would be a “some sort of meeting where I could just put down very calmly point by point what the problems were. That meeting that I requested never occurred.”79These events included being required to attend medical practitioners to establish her fitness to return to work, in particular in November 2009, the applicant complains that she was misled about Dr C’s qualifications and given that Dr W had assessed her in July 2008 as not having any mental health issues that “sending her off to medical practitioners or psychiatrists was just another method in which to terminate me.”80 Further the applicant submitted that she was subjected to harassment at work and outside of work and this was connected. It was her evidence that the “cult like/organised smear and dirty tricks campaign directed toward me at my place of employment using “appearance only” support of due process in relation to reporting of bullying then the subsequent bullying and my place of residence is impossible not to be connected.”81 The applicant alleged that “someone at the respondent - it doesn’t smear the entire organisation, it would smear a representative within that environment- had organised for me to be beaten up.”82 The applicant alleged that the person who harassed her at the boarding house she was living at in 2008 had told her that she was “getting paid for this by your employer.”83 In cross examination the applicant stated that she believed that statement to be true.84 The applicant further submitted that she was subjected to bullying and harassment at work.85 The applicant submitted that the respondent failed to provide her with a safe workplace.86 The applicant submitted that I should find the termination of her employment was harsh, unjust and unreasonable and she seeks reinstatement. When asked why she should be returned to an unsafe workplace the applicant said she should be reinstated “as a message to any company that, for starters, before you actually employ someone be sure the place is safe in the first place.”87
[48] The respondent filed an outline of argument and an outline of closing submissions.
[49] Mr Harrington submitted that the applicant’s employment was terminated because she was not capable of performing the inherent requirements of her position and that by February 2010 the employment relationship had dissolved and each of the parties to the employment relationship had lost trust and confidence in the other to fulfil its/her part of the bargain.
[50] Mr Harrington submitted that having received the report of Dr C and having considered the additional material submitted by the applicant, Ms C decided that the applicant’s employment would be terminated because she was no longer able to perform the inherent requirements of her job due to her medical condition. 88
The Legislation
[51] “385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[52] “386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
[53] “387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
Findings
[54] There is no dispute that the applicant was dismissed from her employment by the respondent. There is no jurisdictional barrier to the applicant’s claim. In determining whether the termination was harsh unjust or unreasonable I have had regard to the criteria set out in section 387.
(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);
[55] In light of the evidence summarised above it is clear that when Ms C made the decision to terminate the applicant’s employment the applicant was not able to perform the inherent requirements of her position. This is not to suggest that the applicant was incapable of performing many of the tasks required of a customer service consultant. However the applicant was incapable of attending the workplace and taking direction from team leaders and more senior staff. The applicant was so preoccupied with her grievances against the respondent that she was incapable of functioning in the workplace. Over the two years since November 2007, the respondent attempted to understand the nature of the applicant’s complaints and failing that, attempted to support her return to work after the applicant’s significant absences from work. Each attempt to assist the applicant’s return to the workplace failed.
[56] The applicant was not able at the hearing to clearly articulate her complaints against the respondent. Even if the applicant’s complaints about the respondent's processes and procedures had some foundation, nothing she put before the Tribunal supported her claim that she had been the subject of a deliberate campaign of bullying and harassment designed to remove her from the workplace. Neither was she able to substantiate her genuinely held belief that someone at the respondent had organised a co-tenant to harass and assault her.
[57] All the medical assessments of the applicant acknowledged the difficulty the applicant was having with her employment. In 2008 the applicant told Dr W that she would need to return to a benign work environment and that she did not consider that working at the respondent fell into that category. Dr C gave evidence that the applicant was too distracted and consumed by her delusional beliefs to be able to perform the role in which she was employed. 89
[58] The evidence in this matter shows that the respondent took positive steps to return the applicant to the workplace and to support the applicant in her employment. Unfortunately this was unsuccessful.
[59] It is clear from the applicant’s own evidence that the employment relationship had irretrievably broken down.
[60] Given the advice of Dr C, the applicant’s conduct when she was present at the workplace as well as the respondent’s experience with the applicant since November 2007 the respondent reached the conclusion that the applicant’s employment must be terminated. In reaching that conclusion the respondent had a valid reason for the termination of the applicant’s employment.
(b) whether the person was notified of that reason;
[61] The applicant was notified by letter dated 22 January 2010 that the respondent may terminate her employment and advised of their reasons. The respondent asked her to forward any additional information that she would like the respondent to take into consideration by 29 January 2010. The applicant provided a detailed response on 5 February 2010 and on 8 February 2010 the respondent advised the applicant that her employment would be terminated and advised her of their reasons.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[62] The applicant was provided with an opportunity to respond to the respondent’s reasons for considering the termination of her employment and she provided a response.
(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;
[63] Not relevant.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
[64] The applicant was advised that her performance was not satisfactory however this was not the reason the applicant’s employment was terminated.
(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;
[65] The respondent is a large enterprise. The procedures and practice adopted by the respondent in this matter were appropriate.
(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;
[66] The respondent has dedicated human resources personnel and as such this criterion is not relevant.
(h) any other matters that FWA considers relevant.
[67] It was clear from the evidence that from November 2007 until February 2010 the respondent did all they could to assist the applicant return to the workplace. Despite the applicant’s evidence that the respondent displayed “unequivocally no compassion at all” and that she “honoured the contract but it was all one way” this was not a case where at the first sign of difficulties the employer terminated the employee’s employment. Here the employer over a period of more than two years tried to keep the applicant in employment. Changes were made to respond to the applicant’s difficulties including changing her teams, selecting experienced team leaders to supervise her and permitting her to take longer breaks than other employees. Further the respondent provided the applicant with almost 46 weeks of paid leave in addition to accrued sick leave and annual leave. 90 In addition the applicant was paid four weeks in lieu of notice and an additional four weeks pay on termination.91 This conduct was not the conduct of an employer trying to find any excuse to terminate an employee’s employment.
Was the applicant unfairly dismissed?
[68] It is clear that the applicant genuinely feels aggrieved by her treatment by the respondent. However I accept the employer’s evidence and submissions that by February 2010 that all their attempts to return the applicant to the workplace had failed, that the applicant was not able to perform the inherent requirements of her position and that the relationship was irretrievably broken. While the applicant maintained her conviction that the respondent did not properly address her grievances, her own evidence in this matter supports the conclusion that the relationship was irretrievably broken. Having regard to the evidence and submission and for the reasons set out above I find that the termination of the applicant’s employment was not harsh unjust or unreasonable and I therefore dismiss her application.
COMMISSIONER
Appearances:
The applicant on her own behalf.
N Harrington for the respondent
Hearing details:
2010.
Melbourne.
June 7, 8, 9.
1 Exhibit SP1 at [3]
2 Ibid at [4]
3 Exhibit JM2 page 4
4 Exhibit SP 1 at [8]
5 Ibid at JS4
6 Exhibit JM 2 at page 5
7 Ibid at page 7
8 Ibid at page 8
9 Ibid at page 9
10 Ibid at page 9
11 Exhibit SP1 at JS4
12 Ibid at JS5
13 Exhibit JM 2 at page 9
14 Exhibit SP 1 at JS 6
15 Ibid at JS 6
16 Ibid at [25]
17 Ibid at JS8
18 Transcript PN 60
19 Exhibit SP 1 at JS 9
20 Ibid at [34]
21 Ibid at JS 10
22 Ibid at JS 11
23 Ibid at JS 12
24 Exhibit JM 1
25 Exhibit JM 2 at page 11
26 Exhibit JM 1
27 Ibid at page 7
28 Ibid
29 Exhibit SP1 at JS 17
30 Exhibit SP 2 at [8]
31 Exhibit SP 1 at JS 18
32 Ibid at [53]
33 Ibid at [54]
34 Ibid at [60]
35 Exhibit JM 2 at page 12
36 Ibid at page 13
37 Transcript PN 1515
38 Exhibit JM 2 at page 12
39 Transcript PN 1556
40 Exhibit SP1 at [47]
41 Ibid at [63] Also see exhibit SP 5 at [21]-[35]
42 Ibid at [64]
43 Ibid at [66]
44 Ibid at [66] and at Exhibit JS 25
45 Ibid at [68]
46 Ibid at [68]
47 Ibid at [69]
48 Transcript PN 550
49 Exhibit SP6
50 Exhibit SP1 at [75]
51 Exhibit SP 6 at LT29, 30 and 31.
52 Exhibit SP1 at tab 28
53 Ibid at [67]
54 Ibid at MC 1
55 Ibid at [75]
56 Exhibit SP6 at [75]
57 Exhibit SP 2 at [11]
58 Ibid at MC 2
59 Ibid at [21]
60 Ibid at MC 5
61 Ibid at [28]
62 Transcript PN 1667
63 Exhibit SP 2 at [30]
64 Transcript PN1667
65 Ibid at PN 1652
66 Exhibit SP4 at [9]
67 Exhibit SP 2 at MC 3 at page 3
68 Exhibit SP 4 at EC 3
69 Exhibit SP 2 at [33]
70 ibid at MC 8
71 Ibid at [35]
72 Ibid at [37]
73 Transcript PN 1673
74 Exhibit SP 2 at [39]
75 Ibid at MC 10
76 Ibid at MC 11.
77 Transcript PN 1548
78 Ibid PN1684
79 Ibid PN 1684-5
80 Ibid PN 704
81 Exhibit JM2 at page 15
82 Transcript PN 83
83 Ibid PN 82
84 Ibid PN 92
85 Exhibit JM2 at page 13
86 Transcript PN 1684
87 Ibid PN 1759
88 Exhibit SP2 at [41]
89 Exhibit SP4 at [13]
90 See submissions in reply of the respondent at [29]
91 Exhibit SP2 at MC 11
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