Belinda Kelso v The Benevolent Society
[2024] FWC 1283
•16 MAY 2024
| [2024] FWC 1283 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Belinda Kelso
v
The Benevolent Society
(U2023/10299)
| COMMISSIONER CRAWFORD | SYDNEY, 16 MAY 2024 |
Application for relief from unfair dismissal – fitness for work – unfortunate circumstances - dismissal not unfair – application dismissed
Background
Belinda Kelso (Ms Kelso) commenced employment with The Benevolent Society (TBS) on 21 July 2020 as a Child & Family Practitioner. TBS provides support services to elderly people, people with disabilities, children, and families. Ms Kelso worked in a Family Connect & Support Program Team within the Hunter & Central Coast Region of New South Wales. Ms Kelso was allocated a case load of vulnerable clients to support as required.
Ms Kelso was a passenger in a TBS vehicle that was involved in a multi-vehicle accident on 6 May 2022. The accident triggered mental health issues for Ms Kelso, and she was subsequently diagnosed with Adjustment Disorder with Anxiety and Stress and PTSD. The illness has prevented Ms Kelso from performing her pre-injury duties since at least 26 September 2022.
After initially issuing a show cause letter on 20 September 2023, TBS dismissed Ms Kelso on 28 September 2023 on that basis of her continued incapacity for work and inability to perform the inherent requirements of her role.
Ms Kelso filed an unfair dismissal application on 19 October 2023. TBS filed an employer response form on 8 November 2023. No jurisdictional objections were raised by TBS.
Ms Kelso’s application was not resolved during conciliation. Directions were issued for the filing of material and the application was listed for hearing via video on 26 March 2024. The hearing of the evidence concluded on 26 March 2024. I then agreed to Ms Kelso’s request to schedule a further hearing to hear final submissions. That further hearing occurred on 6 May 2024. A copy of the transcript of the hearing on 26 March 2024 was provided to the parties on 4 April 2024.
Ms Kelso represented herself at both hearings with support from her partner, Mr Truszewski. TBS was granted permission to be represented by Felicity Edwards from Sparke Helmore Lawyers at both hearings, on the basis that this would enable the matter to be dealt with more efficiently, particularly given the significance of medical evidence to the case.
Material relied upon
Ms Kelso
Ms Kelso relied on the following evidence and submissions in support of her unfair dismissal application:
· An unfair dismissal application form dated 19 October 2023. Given the application contains evidence about the dismissal, I marked the application form Exhibit A1.
· A submission filed on 5 February 2024. Given the submission contains evidence about the dismissal, I marked the submission Exhibit A2.
· Ms Kelso’s termination letter dated 28 September 2023. I marked the termination letter Exhibit A3.
· A show cause letter issued to Ms Kelso by TBS on 20 September 2023. I marked the letter Exhibit A4.
· Ms Kelso’s response to the show cause letter dated 26 September 2023. I marked the response Exhibit A5.
· A certificate of capacity dated 3 August 2023. I marked the certificate Exhibit A6.
· A certificate of capacity dated 6 April 2023. I marked the certificate Exhibit A7.
· Email correspondence between Ms Kelso and Aya Sukkarieh (Senior Child and Family Practitioner) from 15 to 17 August 2023. I marked the emails Exhibit A8.
· An email from Ms Kelso to Melissa Brennan (former Team Leader) dated 30 August 2023. I marked the email Exhibit A9.
· A further copy of emails between Ms Kelso and Ms Sukkarieh from 15 to 17 August 2023. I marked the emails Exhibit A10.
· An email from Ms Kelso to Ms Sukkarieh dated 26 October 2021, which was forwarding an earlier email from Karen Verrier to Ms Kelso. I marked the email Exhibit A11.
· A reply submission filed on 11 March 2024. Given the submission contains evidence, I marked the submission Exhibit A12.
On 15 March 2024, I issued a production order to TBS following an application by Ms Kelso. TBS produced documents in accordance with that order on 22 March 2024. I marked the bundle of documents produced by TBS as Exhibit A13.
Ms Kelso was cross-examined on her evidence during the hearing on 26 March 2024.
Ms Kelso and Mr Truszewski made oral closing submissions during the hearing on 6 May 2024.
TBS
TBS relied on the following evidence in opposition to Ms Kelso’s unfair dismissal application:
· Witness statement from Emma Mears (Human Resources Business Partner) dated 26 February 2024. Ms Mears’ statement had 34 annexures which included extensive medical evidence concerning Ms Kelso’s condition, various emails relating to Ms Kelso’s return to work, and various emails and other documents associated with Ms Kelso’s dismissal. I marked Ms Mears’ statement, and its annexures, Exhibit R1. Ms Mears was cross-examined by Ms Kelso and Mr Truszewski.
· Witness statement from Ms Sukkarieh dated 26 February 2024. Ms Sukkarieh’s statement had 42 annexures. The annexures included Ms Kelso’s position description, an accident report for the crash on 6 May 2022, various emails relating to Ms Kelso’s employment, various notes from meetings relating to Ms Kelso’s return to work, various file notes regarding Ms Kelso, and various return to work plans and certificates. I marked Ms Sukkarieh’s statement, and its annexures, Exhibit R2. Ms Sukkarieh was cross-examined by Ms Kelso and Mr Truszewski.
TBS relied upon an outline of submissions dated 26 February 2024. Ms Edwards made oral closing submissions at the end of the hearing.
Statutory provisions – jurisdictional matters
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) Ms Kelso was protected from unfair dismissal at the time of being dismissed; and
(b) Ms Kelso has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether Ms Kelso was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Ms Kelso was so protected, whether Ms Kelso has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a)the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii)an enterprise agreement applies to the person in relation to the employment;
(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
When has a person been unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed;
(b) the dismissal was harsh, unjust or unreasonable;
(c)the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFDC); and
(d) the dismissal was not a case of genuine redundancy.
Consideration – jurisdictional matters
There was no dispute and I find that Ms Kelso’s employment with TBS terminated at the initiative of TBS effective 28 September 2023. I am therefore satisfied that Ms Kelso has been dismissed within the meaning of s.385 of the FW Act.
Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a)whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c)whether the dismissal was consistent with the SBFDC;
(d) whether the dismissal was a case of genuine redundancy.
It is not disputed and I find that Ms Kelso’s application was filed within the relevant 21-day period.
It is not in dispute and I find that Ms Kelso was protected from unfair dismissal. Ms Kelso had completed the minimum employment period and the Benevolent Society Enterprise Agreement 2021 applied in relation to the employment. Ms Kelso’s earnings were well below the high-income threshold.
TBS’ employer response form states it has 1,318 employees. That means it is not a small business and the SBFDC is not relevant.
TBS has not argued Ms Kelso’s dismissal was a case of genuine redundancy and it clearly was not.
Given my findings in relation to these initial matters, I am required to determine whether Ms Kelso was unfairly dismissed.
Statutory provisions - unfair dismissal
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
I am required to consider each of these factors, to the extent they are relevant to the factual circumstances before me.[1]
Consideration
A substantial amount of material was filed by both parties in this matter, including as a result of the production order I issued to TBS on 15 March 2024. I have had regard to all the evidence. Ultimately, given Ms Kelso was dismissed because of her alleged incapacity for work, it is the medical evidence that is most significant. The medical evidence clearly establishes Ms Kelso has been suffering from Adjustment Disorder with Anxiety and Stress and PTSD since around July 2022 and that this condition has consistently prevented her from performing her pre-injury duties since at least 26 September 2022.[2] I accept Ms Edwards’ submission that Ms Kelso’s recovery had not been “linear”.
Ms Kelso’s situation
I have a substantial amount of sympathy for Ms Kelso. It is clear Ms Kelso is an extremely competent Child & Family Practitioner. TBS acknowledged during the hearing that Ms Kelso was a highly valued team member and that she was often assigned complex and high-risk clients. The type of work Ms Kelso performed would undoubtedly be challenging and difficult. It is extremely important work that provides a substantial benefit for the community.
Unfortunately, and through no fault of her own, Ms Kelso was involved in a car accident while travelling home from a work conference on 6 May 2022. Ms Sukkarieh was driving a TBS vehicle when it was involved in a multi-vehicle crash while travelling east on the New England Highway, between Singleton and Belford. As a result of the crash, Ms Kelso suffers from Adjustment Disorder with Anxiety and Stress and PTSD. Ms Kelso has not been fully fit for her pre-injury duties since at least 26 September 2022.
It was apparent throughout the hearings that Ms Kelso feels aggrieved about how she was treated by TBS, and particularly, Ms Sukkarieh. Ms Kelso appears to blame Ms Sukkarieh to some degree for the accident that triggered her illness. In addition, Ms Kelso has come to the realisation as a result of her dismissal and these proceedings that Ms Sukkarieh was writing extensive notes about Ms Kelso’s behaviour at work and that these observations have contributed to the end of her employment.
I consider there is merit to some of Ms Kelso’s complaints. It is regrettable that TBS did not do more to ensure Ms Kelso’s workers’ compensation claim was submitted earlier. I also consider TBS could have done more to assist with Ms Kelso’s recovery, including by allowing Ms Kelso to work away from Ms Sukkarieh. It is also unfortunate that some TBS employees were apparently not prepared to enter a vehicle driven by Ms Kelso, even when she had been medically cleared to drive.
However, my role in this case is not to make a wholistic assessment of TBS’ management of Ms Kelso illness and return to work, or to determine whether TBS has complied with workplace safety laws. My role is limited to considering whether Ms Kelso has been unfairly dismissed taking into account the factors in s.387 of the FW Act.
Was there a valid reason for the dismissal related to Ms Kelso’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced.”[4] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[5]
TBS dismissed Ms Kelso because of her continued incapacity for work and inability to perform the inherent requirements of her role.[6]
A reason will be “related to capacity” where the reason is associated or connected with the ability of the employee to do his or her job.[7] It is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position.[8] The reference to “inherent” requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral.[9]
A Full Bench has previously found, “[w]hen an employee is absent because of an incapacity to perform duties, a question of timing arises. The FW Act precludes a termination for a temporary absence of up to 3 months. If an absence extends beyond that period, it becomes a question of whether there is likely to be a return to duties in the short or medium term. Usually updated medical advice will be important to that consideration. Indeed that medical information could have a bearing on the adequacy of the reason for termination.”[10]
There is no dispute that Ms Kelso had not been fit to perform her pre-injury duties for more than 12 months when she was dismissed by TBS on 28 September 2023.[11] Ms Kelso was initially expected to be able to resume her pre-injury duties by around May 2023. That did not eventuate. Prior to her dismissal on 28 September 2023, Ms Kelso had been increasingly struggling with the performance of her modified duties.[12] Given these struggles with the less demanding modified duties, I accept TBS could not have been confident in September 2023 that Ms Kelso would be able to return to her pre-injury duties in the short or medium term. Ms Kelso’s substantive role involves providing direct support to vulnerable clients, it is a very demanding role that would be extremely difficult to perform for a person struggling with their own mental health.
Ms Kelso was critical of some of the treatment she has received for her illness and indicated she did not commence undertaking EMDR, which Ms Kelso considers to be the most helpful treatment, until April 2023. However, as submitted by TBS, Ms Kelso had been receiving this treatment for around five months when she was dismissed in September 2023. Ms Kelso admitted during cross-examination she was still experiencing significant difficulties in regulating her emotions leading up to her dismissal.[13]
I am satisfied TBS has established that when TBS dismissed Ms Kelso on 28 September 2023, Ms Kelso had a continuing incapacity for work, and she was unable to perform the inherent requirements of her position. I find that there was a valid reason for Ms Kelso’s dismissal related to her capacity.
Was Ms Kelso notified of the reason for dismissal?
Proper consideration of s.387(b) requires a finding to be made as to whether Ms Kelso “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[14]
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[15] and in explicit[16] and plain and clear terms.[17]
I find that Ms Kelso was notified of the reason for dismissal via the show cause letter that was issued to her on 20 September 2023. The evidence does not indicate a final decision to terminate Ms Kelso’s employment had been made at that time.
Was Ms Kelso given an opportunity to respond to the valid reason?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[18]
The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[19] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[20]
I find Ms Kelso was provided with an opportunity to respond in relation to the reason for her dismissal. Ms Kelso provided a detailed written response on 26 September 2023. Ms Kelso also attended a meeting with her union representative prior to her dismissal on 28 September 2023.
Did TBS unreasonably refuse to allow Ms Kelso to have a support person present to assist at discussions relating to the dismissal?
TBS did not unreasonably refuse to allow Ms Kelso to have a support person at any meetings. Ms Kelso was assisted by a union official in the lead up to her dismissal and TBS actively communicated with that union representative. A union representative attended the meeting where Ms Kelso was informed of her dismissal.[21]
Was Ms Kelso warned about unsatisfactory performance before the dismissal?
The dismissal related to Ms Kelso’s capacity and not her performance. This factor is not relevant.
To what degree would the size of TBS’ enterprise be likely to impact on the procedures followed in effecting the dismissal?
TBS is a large business and I consider it followed appropriate procedures in effecting the dismissal.
To what degree would the absence of dedicated human resource management specialists or expertise in TBS’ enterprise be likely to impact on the procedures followed in effecting the dismissal?
TBS has dedicated human resources staff and appropriate procedures were followed in effecting the dismissal.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
I consider it is relevant that Ms Kelso was injured at work through no fault of her own. Ms Kelso has attempted to return to pre-injury duties in good faith, but her condition has not allowed this to happen. It is also relevant that Ms Kelso may find it difficult to find alternative work given her ongoing illness.
Is the Commission satisfied that the dismissal of Ms Kelso was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in s.387. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[22]
Having considered each of the matters specified in s.387 of the FW Act, I am not satisfied that the dismissal of Ms Kelso was harsh, unjust or unreasonable.
I do not consider the dismissal was unjust or unreasonable given Ms Kelso had been unable to perform her pre-injury duties for a lengthy period and it was not clear that she would be able to return to her pre-injury duties in the short to medium term.
It is certainly arguable that Ms Kelso’s dismissal was harsh, and I was close to arriving at that conclusion. Ms Kelso clearly feels aggrieved at how she was treated, particularly by Ms Sukkarieh. However, I am not sure all of Ms Kelso’s criticism is warranted. Ms Sukkarieh did not intend to injure Ms Kelso when she was involved in the car accident on 6 May 2022. Although Ms Kelso highlighted that the car accident was not entered into TBS’ internal system until 13 May 2022, I do not consider much turns on this when considering the fairness of Ms Kelso’s dismissal in September 2023. Ms Kelso also complained about Ms Sukkarieh making her own workers’ compensation claim shortly after the car accident. However, Ms Sukkarieh was perfectly entitled to do this. The evidence regarding why Ms Kelso initially contacted the EAP service rather than pursuing a workers’ compensation claim was not entirely clear.
I can understand why Ms Kelso now feels that Ms Sukkarieh was more focused on writing notes about her, rather than assisting in her recovery. However, as an acting Team Leader, it was not unreasonable for Ms Sukkarieh to be making notes about concerns with staff under her supervision. TBS has legal obligations regarding the safety of its employees and clients and it is not surprising that these types of records would be made. However, I suspect more could have been done in terms of communicating with Ms Kelso directly about the issues at the relevant times.
Ms Kelso suggested that TBS should not have allowed Ms Sukkarieh to be involved in her return to work given she was driving the vehicle that crashed on 6 May 2022 and this led to Ms Kelso’s injury. Part of this argument was that Ms Sukkarieh was at fault for the accident because her vehicle crashed into a car in front of it. I do not have sufficient evidence to determine whether Ms Sukkarieh was at fault in relation to the accident, given she denied this. In any event, I do not consider it was inherently inappropriate for Ms Sukkarieh to perform acting Team Leader duties, including those associated with Ms Kelso’s return to work, merely because Ms Sukkarieh was driving when the car accident occurred on 6 May 2022.
Ms Kelso also complained about being contacted with phone calls while she was unfit for work and about her personal medical information being inappropriately shared within TBS. The evidence is not entirely clear in relation to these matters. In any event, I do not consider these matters would provide a basis to conclude Ms Kelso’s dismissal was harsh.
I accept the continuing provision of modified duties to Ms Kelso was causing some operational issues for TBS,[23] and it was far from certain that Ms Kelso would be able to return to pre-injury duties in the near future. The evidence suggests TBS did genuinely explore redeployment options and determined nothing suitable could be accommodated.[24] I am also mindful that Ms Kelso has ongoing workers’ compensation entitlements that will provide her with a degree of financial relief. In addition, Ms Kelso has a right to seek reinstatement to employment with TBS under Part 8 of the Workers Compensation Act 1987 if she can provide medical evidence establishing her fitness.
Weighing all these matters, I am not satisfied that Ms Kelso’s dismissal was harsh.
Conclusion
I am not satisfied that Ms Kelso was unfairly dismissed within the meaning of s.385 of the FW Act.
The application is dismissed.
COMMISSIONER
Appearances:
Ms Kelso representing herself.
Ms Edwards from Sparke Helmore Lawyers on behalf of TBS.
Hearing:
26 March and 6 May.
Via video.
2024.
[1] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[2] Exhibit R1, Annexure EM07.
[3] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[4] Ibid.
[5] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[6] Exhibit A3.
[7] Crozier v Australian Industrial Relations Commission [2001] FCA 1031, [14].
[8] J Boag & Son Brewing Pty Ltd v Button[2010] FWAFB 4022, [22].
[9] X v Commonwealth [1999] HCA 63, [102].
[10] Shortland v Smiths Snackfood Co[2011] FWAFB 2303, [19].
[11] Exhibit R1, Annexure EM06.
[12] Exhibit R1 at [57] and [58], Transcript at PN453 to PN477.
[13] Transcript PN477.
[14] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[15] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[16] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[17] Ibid.
[18] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[19] RMIT v Asher (2010) 194 IR 1, 14-15.
[20] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[21] Exhibit R1 at [67].
[22] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[23] Exhibit R1 at [57].
[24] Exhibit R1 at [66] and Transcript at PN266.
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