Bertus Moers v The Trustee for Williamson Family Trust
[2025] FWC 1344
•14 MAY 2025
| [2025] FWC 1344 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Bertus Moers
v
The Trustee For Williamson Family Trust
(U2024/15797)
| COMMISSIONER SIMPSON | BRISBANE, 14 MAY 2025 |
Application for an unfair dismissal remedy – jurisdictional objection small business fair dismissal code – reasonable and lawful direction not complied with - application dismissed
On 1 January 2025, Mr Bertus Moers (Mr Moers/ the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with The Trustee For Williamson Family Trust (the Respondent). The Respondent objected to the application as it said the Applicant’s dismissal was a case of genuine redundancy.
I listed the matter for a directions hearing on 20 February 2025. The matter was listed for hearing on 9 April 2025.
Mr Daniel Anderzipf, General Manager provided a witness statement on behalf of the Respondent. The Applicant did not provide a witness statement on his own behalf, but did make written submissions which I admitted as his statements.
The Applicant appeared at the hearing on his own behalf. The Respondent was granted permission to be represented by Ms Zaynab Aly of Citation Group. The Applicant gave evidence adopting his submissions of 18 March 2025,[1] and 4 April 2025[2] as his evidence. Mr Anderzipf was not required for cross examination and his witness statement was entered into evidence.[3]
Background
The Applicant was employed by the Respondent from 7 March 2021 to 10 December 2024.
On 2 October 2024, the Applicant met with Mr Anderzipf and Ms Vanessa Holmes, National Sales and Development Manager. The Respondent submitted that he was reactive and aggressive. The Applicant submitted that he was raising concerns with the company’s processes, including:
· that he was being contacted outside of work hours (i.e., in breach of the right to disconnect);
· employer contractual obligations for bonus payment were not being met;
· unrealistic timeframes for project requirements and
· administration that he felt was bullying (e.g., given less than 24-hr notice to prepare and organise a support person for a performance and conduct meeting);
· workplace health in safety (i.e., the mental-health impact of another employee repeatedly disclosing suicidal ideation and their personal health & mental health state);
· unfair reprimands from the business owner; and
· insufficient training for new & additional programs and processes that imposed significant undue additional stress and ability to work in a timely manner, most notably, leading up to and throughout our sales cash cow and incredibly busy lead up to the summer and festive season.
On 7 October 2024, the Applicant notified Mr Anderzipf that he was travelling to New Zealand on 14 and 15 October 2024 and requested to work remotely from New Zealand.
On 8 October 2024, Mr Anderzipf denied the request given the short notice period and the logistical difficulties in accommodating an individual working overseas with work hours of 1pm to 9pm to meet Australian usual hours. Mr Anderzipf submitted that he did not consider it was appropriate and requested that the Applicant instead take annual leave.
On 10 October 2024 at about 2:30pm, the Applicant was invited to attend a disciplinary meeting on 11 October 2024 at 3:00pm regarding a series of issues that had arisen. The Letter stated:
“Invitation to Performance & Conduct Meeting
I am writing to address concerns that have arisen regarding your performance and conduct in the role of Senior Relationship Manager at Firefly Lighting Pty Ltd (‘the Company’).
We have had several conversations on 19 January 2023, 16 February 2023, 29 September 2023, and numerous occasions in 2024, most recently on 2 October 2024 about the expectations and standards required for your role. However, your performance and conduct continue to fall short of these expectations.
Performance
The specific issues of concern relating to your performance are:
1. Client Ownership and Communication
a) On numerous occasions, you frequently claim past contact with clients assigned to other team members, undermining the team dynamic. Specifically, you mention doing tasks for clients 1-2 years ago, despite no documented sales history indicating that you had ownership.
b) A recent international enquiry regarding Fairy Lights/Icicles was directed to be put through our international distributors, however this instruction was dismissed and you continued conversations with the international client, after Daniel’s intervention. You most recently interacted with this customer on 9 October 2024 after Daniel asked you to leave this with our international distributors.
2. Management of workload
a) On or around 23 September 2024, you stated you were feeling overwhelmed in relation to your workload; however, you continue to engage in tasks outside of your responsibilities, leading to unproductive time management and a focus on low value activities. This was reiterated to you again in the meeting held on 2 October 2024.
b) On numerous occasions, you follow up on tasks assigned to other team members, causing frustration among team members as it feels like their autonomy is undermined. Specifically, stepping into the Aanuka Sale, CLC (Landscape component), Alect, CNW Geebung (IMS), all of which are not your clients or responsibility.
c) On or around 30 September 2024 you responded again to the international enquiry that should have been immediately forwarded onto TMB then took away from your primary responsibilities for sales in Australia.
3. Failure to follow procedures and management direction
a) On or around 19 September 2024 during a Bud Light sale, there was a lack of communication and oversight on your end regarding stock management and adherence to company processes. Specifically, you gave a customer additional product that was not sold to them or appropriately accounted for in the system at the time. Approval for this additional product was not sought from a supervisor. This practice undermines our ability for future recourse or remedy with a customer.
Conduct
In addition to the above, we have been made aware of allegations relating to your conduct, specifically:
4. On or around 12 September 2024, during a team meeting, you demonstrated negative and reactive behaviour. This happens on numerous occasions and has had an impact of morale and engagement in discussions during these meetings.
5. On or around 2 October 2024, during a meeting with Daniel Anderzipf and Vanessa Holmes we had a 2-hour meeting brought on by you in relation to various personal and work-related matters. During this meeting, you exhibited reactive and aggressive behaviour, specifically, pointing your pen and raising your voice in a threatening manner.
6. On or around 8 October 2024 you mentioned to the group chat that you would be in the office at approx. 10.30am. No further communication was received. You arrived in the office at approx. 11:45am.
7. Overall conduct around timely attendance at scheduled meetings is also an ongoing issue where you fail to attend meetings on time or choose to take a phone call/compose an email during the commencement of the scheduled meeting. This behaviour is continually exhibited during the weekly team meetings, including the meeting you requested on 2 October 2024.
Based on the above performance and conduct concerns, you are invited to a formal meeting, the details of which are outlined below:
Date: Friday 11 October 2024
Time: 3 pm – 4 pm (1 hour)
…
You are welcome to be accompanied by a suitable support person during this meeting should you wish. Should you wish to invite a support person, please let me know prior to the meeting so that I can make the necessary arrangements.
During this meeting, I will provide you with all further information which is relevant to our concerns regarding your performance, and we will subsequently discuss the introduction of a Performance Improvement Plan to assist the improvement of your performance in your role. To be clear, the purpose of the Performance Improvement Plan is to help you recognise the specific areas of required improvement and identify areas where the organisation can support your development. Please be aware that failure to improve your performance to the standard required may result in further management action, including the termination of employment for poor performance.
Regarding the allegations of misconduct, I take this opportunity to inform you that I have not yet formed a view about whether the allegations have been substantiated. I will determine whether any misconduct has occurred following the consideration of your responses during the proposed meeting. Should the allegations be substantiated, they could constitute a breach of your employment contract and/or company policies and procedures. As a result, it may lead to disciplinary action up to and including termination. You are required to maintain strict confidentiality regarding the allegations. Until a decision has been made, all details and facts must remain confidential and must not be discussed with other staff members with the exception of your support person.
Should you have any questions, please do not hesitate to contact me.”
In his Form F2, the Applicant’s evidence was:
“Approximetly 2 weeks prior I had a long discussion with the GM and TL, about some serious matters which had occured and which I was not please with, as this resulted into contact outside of work days, which disrespected the efforts and considerations afforded to a project from the business owner. (sic)”
…
“On Thursday 10th October, approx 2.30pm, I received an email and the information left me feeling blind sided, on the spot and confused to why this had waited 2+ weeks and that the timing was coincidentally after the recent information was shared of the wonderful news of my partners pregnancy.”
On 11 October 2024 at 5:27am, the Applicant messaged Mr Anderzipf through the company’s chat software that he was unwell and wouldn’t be able to attend the Disciplinary meeting. In his Form F2, the Applicant stated:
“due to matters at home and needing to organise, I felt, as many times in the past, under reasonable expectations and consideration for my situation. I called in sick, to ensure I was organised, calm and ready for my 4 day trip to NZ, departing Saturday 12th October…(sic)”
Mr Anderzipf submitted that he responded on the same day at 8:47am, requesting a medical certificate. The Disciplinary meeting was rescheduled to 16 October 2024 at 3:00pm:
“…
Please provide us with a copy of the medical certificate for today’s absenteeism at your earliest convenience.
…
With your imminent travel to New Zealand this weekend and early next week, please put through a annual leave request through Xero Me as previously discussed…”
On 14 October 2024 at 9:00am, the Applicant emailed Mr Anderzipf asking why he needed to provide evidence of personal leave for a single day, stating:
“…
I am here on urgent family matters. So I will put it through as carers/personal leave. No different if my family was in Northern Territory or up the road.
…
Will sort those matters out.
Why do I require a medical certificate for one day off?
…”
Mr Anderzipf responded to the Applicant’s email at 4:04pm on the same day confirming that the company would require evidence, noting:
“…
As your employer, I must remind you that we have the right to request evidence for leave taken, even for absences of one day or less. If we do not receive this evidence, we may have to categorise your leave as an unauthorised absence, which means it would not be classified as sick leave and as a result, will not be paid.
Please be aware that if absences are deemed unauthorised due to lack of evidence, we would be within our rights to take disciplinary action
Regarding your carer’s leave, we will also need documentation showing the necessity for you to provide care or support to your mother. Without this evidence, it may similarly be categorised as an unauthorised absence, which will be unpaid, potentially leading to disciplinary measures.
While we genuinely empathise with your personal circumstances, we must also adhere to our responsibilities as an employer.
…”
On 15 October 2024 at 3:16pm, the Applicant emailed again, noting that he would require additional time off until 21 October 2024 as personal/carers leave:
“…
Due to additional stress and considerations, I wont return to the office until the earliest Monday next week, 21st October
I will have relevant paperwork when I return to work.
I have extended my stay as support of my family.
I aim to return to the office Monday next week, 21 October, however if matters change, I will update accordingly.
…”
On 16 October 2024 at 9:56am, the Applicant emailed further:
“…
I will have this paperwork to you by Friday. No problem.
Is there an update regarding the missed details regarding my employment contract in relation to bonuses under a previously agreed contract and position?
Also, please could the signed paper work from the previous role change from Sales Manager to Relationships Manager be provided as I want to review them on my return.
I appreciate your consideration with the reasonable timeframe for a doctors note.
Please know that I am in rural New Zealand, where I do not have access to my own GP and wait periods are 2 + weeks with local doctors for new patients.
However, you are aware of my previous medical history with my father and my Mum has been unwell numerous times in the last 6 months.
Sorry that this absence puts additional stress on the business. I choose to provide support and be here for and with my family.”
In his Form F2, the Applicant stated, regarding the request for medical evidence:
“This was difficult to organise as I was in NZ, and I have no GP, and a 3 week wait period due to the system there and the busy overloaded nature of GPs working in Rural NZ.”
…
“I booked into my doctor, explained the situation of my parents and the complications I had as a result of financial considerations, contract and compassion for my rights under employment law, as my bonuses have not been acknowledged and discussed, and pushed aside, time and time again, by management.”
On 16 October 2024 at 12:01pm, Mr Anderzipf responded to the Applicant’s email confirming that the company would require evidence of both the leave periods, noting:
“…
We understand that this may be a challenging period for you, and as such, we will provide you with an extended time-frame to submit the necessary documentation. To ensure we can appropriately manage your leave, we require evidence for your carer’s leave by COB Wednesday 23 October 2024. Acceptable forms of documentation include a medical certificate, hospital discharge notification, or a statutory declaration.
For your absence on Friday 11 October 2024, please submit the required evidence by COB Friday 18 October 2024. We have provided you with an ample and reasonable amount of time to gather this documentation, which can be either a medical certificate or a statutory declaration.
Please let us know if there is anything else we can do to support you. Upon your return, in accordance with the letter you received on 10 October 2024, we will reschedule your formal performance meeting for Monday 21 October at 3pm
…”
On Wednesday, 16 October 2024 at 3:24pm, Mr Anderzipf responded further, stating:
“I want to clarify that we are in no way suggesting that your absence is causing stress for the business, We fully understand and support your need to be with your family during this challenging time.
Regarding the documentation required, this is a compliance requirement that businesses must adhere to. We appreciate your understanding in this matter.
As for your employment agreement, we will look into this and can discuss it in detail upon your return. In the meantime, please take care of yourself and feel free to note any topics you’d like to discuss next week. We will refrain from further email communication to respect your need for family time.”
On 17 October 2024 at 8:48pm, the Applicant provided a medical certificate stating he would be unfit for work until 1 November 2024.
On 18 October 2024 at 10:09am, the Applicant emailed Mr Anderzipf, stating:
“Could you please get back to me and let me know you have received the relevant paperwork.
As you put a time limit on this and did not give me adequate time, I feel under pressure from your request and no reply.
There are 3 people on this chain of emails and as you know have been and spend more of my time in trural NZ and my reception is not always reliable. You often email prior to 7am and after 6pm, so I don’t see why this would be any different.
I assume it has been received yet as you make this so tight on time, even though I managed it at my costs and complications.
Please reply before EOD. A quick courtesy reply would be appreciated. [sic]”
On 18 October 2024 at 5:15pm, Mr Anderzipf responded noting that the Applicant had provided a medical certificate, but not evidence of taking carers leave.
“…Thank you for sharing your certificate with us. I wanted to note that it indicates you are unfit for work rather than being a carer’s certificate. As we have a duty of care as an employer, we kindly ask for a fit-for-work certificate before your return to ensure we can support you appropriately.
If there’s anything you need from us during this time, please don’t hesitate to reach out.
Regarding reimbursement we’re unable to cover the costs for the evidence provided, as requesting documentation is part of our compliance requirements.
With regard to your email communication with clients you are not required to forward or respond to any communication while on leave. If you choose to login and forward any emails, please refrain from sending emails from the shared inbox (sales@) to the shared inbox (sales@) as these emails remain assigned to you and we don’t easily see them. The easiest course of action is to unassign the email, and we can take care of it from there.
With your return being on Monday 4 November, we will reschedule your performance and conduct meeting at 3pm Monday 4 November.
I also note your emails with the subject “Bonus structure – review TBA” received this afternoon. As mentioned in my previous response to that email chain, we will discuss this when you return to work. As this is a separate issue to the Performance and Conduct meeting now being held on Monday 4 November at 3pm, it will not be discussing during or prior to this meeting.
We’ll respect your medical leave and won’t reach out further until after 1 November 2024.
…[sic]”
On 24 October 2024, the Applicant emailed Mr David Kelland, cc’ing in Mr Anderzipf, outlining his situation and noting he would not be able to assist further until after 1 November when clearance may be given for him to return to work.
The Respondent submitted into evidence, screenshots from the Applicant’s Instagram account, with posts between 25 October and 28 October 2024 which appeared to indicate the Applicant was having an enjoyable visit to New Zealand.
On 29 October 2024, Mr Anderzipf emailed the Applicant requesting that he provide a fit to work certificate prior to his expected return on Monday 4 November 2024:
“We acknowledge that you are currently on medical leave, and we respect your need for this time. As such, we will refrain from further communication until your return.
We have received all your previous emails and want to reiterate that we will address your situation in a separate meeting upon your return after the scheduled performance management meeting. This is not up for negotiation as this is a reasonable management direction.
Please note that your contract is available on the online portal, however, we have also attached it to this email. We are also happy to provide you with any other requested documentation upon your return.
As a reminder, your medical certificate indicates you are unwell. Therefore we require a fit-for-work certificate before your return on Monday 4 November 2024. Should you need to extend your leave, please provide the necessary supporting documentation.
This will be the last communication from Firefly Lighting until you return as we want to ensure to respect this period of sick leave.
…”
On 4 November 2024, the Applicant sent another medical certificate stating that he was unfit for work until 19 November 2024. The medical certificate states: “This is to certify that on 1st November 2024 I examined [the Applicant]. Due to medical reasons he is unfit for Work from 1st November 2024 to 19th November 2024 inclusive. He will be fit to return to work on full duties on 20/11/2024.” Mr Anderzipf informed the Applicant that he did not have sufficient personal leave to cover the period, but that the company would extend him use of his annual leave entitlement.
On 5 November 2024, Mr Anderzipf emailed the Applicant noting his further communication, restating when the performance meeting was to take place and providing a date for when the Applicant’s concerns could be discussed. The email concluded:
“While we appreciate that you have additional matters to discuss, your medical certificate indicates that you are unwell and unfit for work until 20 November 2024. As such, we will not engage in any further communication until you are fit and back at work. No further emails will receive a response until your return, unless reasonable.
…”
On 19 November 2024, Mr Anderzipf emailed the Applicant confirming that the Respondent company looked forward to welcoming him back on 20 November 2024.
On 20 November 2024, the Applicant did not attend work. On the same day, Mr Anderzipf emailed the Applicant asking him to confirm whether he was attending work, as he had indicated he would be fit to return.
Later that day, on 20 November 2024, the Applicant sent another medical certificate noting that he was unfit until 31 December 2024. The covering email stated: “See attached Medical Certificate. I have an issue with my ear and I went to see the doctor, due to circumstances outside of my control.” The Medical Certificate stated: “…due to medical reasons he is unfit for Work from 20th November to 31st December 2024 inclusive. During this time if there are matters that he requires to address, if this could be done remotely without him having to physically attend the office.”
On 26 November 2024, Mr Anderzipf submitted because of the conflicting detail about the Applicant’s reasons for absence, and lack of detail in his medical certificates, he wrote to the Applicant and provided a letter which included a lawful and reasonable direction to provide consent to write to his general practitioner to request a capacity review by the following day. The letter included the draft letter that Mr Anderzipf submitted he would have provided the GP if the Applicant gave his consent:
“Thank you for providing the medical certificate. Given your extended time away from work, we have a responsibility to ensure that you are able to perform your role or will have capacity to do so in the future.
To help us assess your ability to return, we require your medical practitioner to complete the attached form. Please review the letter, ensure the required details are provided, and return it to us by 5pm Wednesday 27 November 2024. The company will cover the cost of this detailed assessment to ensure we can properly evaluate your capacity to perform your role.
Additionally, we understand you have mentioned needing parental leave. To help us plan our operations, please confirm the exact dates you intend to take leave.
We appreciate your prompt attention to these matters, take care.”
The attached letter to the Applicant set out:
“…
On 17 October 2024, you provided us with a medical certificate dated 16 October 2024 indicating that you were unfit for work from 11 October 2024 and expected to return on 2 November 2024. Subsequently, on 1 November 2024, you submitted another certificate stating that you were still unwell and unable to perform your role until 20 November 2024. On 20 November 2024, you provided a further certificate noting that while you remained unfit to perform your duties in the workplace, you were able to attend to matters remotely from 20 November 2024 to 31 December 2024.
The purpose of this letter is to outline the process we intend to follow in order to better understand your capacity to work safely, given the extended duration of your leave. To ensure we are fully supportive and able to provide the necessary accommodations, we need to gather further details about the nature of your illness or injury, including how it impacts your ability to work safely, and to determine what steps we can take to support your return to work.
While we will outline this in more detail below, the process we intend to undertake is as follows:
1.You will provide us with authorisation to obtain information from your treating practitioner.
2.You will arrange an appointment with your treating practitioner.
3.We will provide you with correspondence to give to your treating practitioner during your appointment.
4.We will receive and review the information provided by your treating practitioner.
5.We will meet with you to discuss the information provided and its implications for your employment.
1. Authorisation
We have attached an authorisation for you to sign. We require that you sign and return the authorisation by 5.00pm tomorrow, 27 November 2024. You will see from the letter we have attached; the purpose of the authorisation is solely to allow us to understand your capacity to work safely.
2. Appointment with treating practitioner
You are required to make an appointment with your treating practitioner for the purpose of the practitioner conducting an assessment and responding to some questions we have about your capacity. Those questions are set out in the letter to your treating practitioner, which is attached and is explained in more detail below. We anticipate you being able to attend an appointment with your treating practitioner in the next week. You are required to advise us of the time and date of your appointment as soon as you have made the appointment. You are also required to advise us if you are unable to book an appointment within the next week.
3. Correspondence
We have attached correspondence which you will need to take to the appointment with your treating practitioner. As you will see from the correspondence, we have set out for your treating practitioner the common stressors attached to the inherent requirements of your role with the Company and have asked them to identify for us:
1. if there are aspects of your role, having regard to the attached stressors, that it would not be safe for you to carry out;
2. if the answer to the above is yes, what are those aspects and what are your limitations;
3. whether the limitations are permanent or temporary;
4. if the limitations are temporary, how long they are likely to continue for; and
5. what special measures we might be able to introduce that would enable you to safely carry out your duties.
You will need to provide us with the name and contact details of your treating practitioner so that we can add them to the correspondence. We require that you provide this information at the same time as you provide us with the signed authorisation. We will then provide you with a finalised version of the correspondence for you to take to your appointment.
We understand that this can be a lot to take in while you are on medical leave, however we do need to ensure we are complying with our health and safety obligations, and the above process is critical to this.
Please let me know if you have any questions in relation to this letter.”
The Authorisation read as follows:
“AUTHORISATION
I, Bertus Moers give my consent and authorisation as follows:
My treating practitioner can discuss my personal and medical information with Daniel Anderzipf of Firefly Lighting Pty Ltd if contacted by them, in connection with my employment; and
My treating practitioner and Firefly Lighting Pty Ltd can freely exchange information in relation to my employment with Firefly Lighting Pty Ltd and my current and/or future fitness for work.”
The draft letter to the Applicant’s practitioner read as follows:
“Dear [INSERT NAME],
Our employee – Bertus Moers
We write in relation to Bertus Moers, who is employed by Firefly Lighting Pty Ltd, who has advised us is a patient of yours.
Bertus has been submitting medical certificates since 17 October 2024 indicating that he is unfit to perform his duties and will require continued time off work.
Firefly Lighting Pty Ltd has an obligation to ensure we are not placing our employees at risk of injury in performing their duties with us. As such, we are seeking information from you about his health circumstances and how they will impact on his capacity to work safely with us.
Bertus will be working in the role of Senior Relationship Manager. In that role, Bertus can expect to be reasonably frequently required to:
1. Work to firm deadlines.
2. Move swiftly between tasks.
3. High attention to detail.
4. Work to competing deadlines and prioritise different tasks.
5. Deal with challenging clients.
6. Manage conflict.
7. Follow instructions and be held to account for complying with those instructions.
8. Engage calmly and professionally with colleagues and clients.
9. Work in an environment of regular change, including in tasks and priorities.
We ask that you examine Bertus and, having regard to the matters listed above, provide us with answers to the following questions.
1. Is Bertus suffering from any illness that would make it unsafe for them to work in an environment where any of the above stressors is present?
2. If so, which of the above stressors present a risk to their safety such that they would be unable to work in an environment where the stressor was present?
3. If so, is the incapacity permanent or temporary?
4. If the incapacity is temporary, how long will it be until Bertus has full capacity to work in an environment where the stressor/s is present?
5. Are there any special measures that Firefly Lighting Pty Ltd could implement which would enable Bertus to safely carry out his duties?
6. On the medical certificate dated 20 November 2024, it is stated that Bertus can attend to matters remotely, please clarify what remotely means and what matters he is able to attend to.
We understand there is likely to be a cost associated with this and ask that you provide us with an invoice for the assessment.
If you have any questions regarding this, please contact me on [phone] or [email].”
The Applicant responded and stated that the Respondent had not provided enough time for him to complete a medical assessment.
Mr Anderzipf responded at 6:03pm to clarify that the company was only requesting the consent form be returned within 24 hours, not for the assessment to be complete within the time:
“Please take the time to read over the attached documents to my previous email. We are not requesting you to meet your doctor by tomorrow, we are only requiring the details of your treating practitioner so that we can fill out the details in the attached letter, and also for your authorisation to communicate with your treating practitioner.
We have requested for you to make an appointment with your treating practitioner within a week and for you to provide us with the details of this appointment.”
The Applicant responded at 6:45pm, stating that he would review the correspondence when he had time:
“Could we please start to use my personal email?
You note prwviously that you are not wanting me to do work or worry about work.
I certainly am trying to stay off work email as much as possible.
You are aware how difficult it is to sign out of Google Mail.
Yet sometimes it automatically selects Firefly.
Also have plenty on and organised to keep my occupied organising for the arrival of the baby.
I'll have a read over it again tomorrow morning or when I find time.
I've got pre planned and commited appointments tomorrow and the following days.
Busiest weeks with Kathie, baby midwife appointments etc.” (sic)
On 2 December 2024 at 3:10pm, Mr Anderzipf emailed the Applicant to request that he return the consent form by 3 December 2024:
“As we have discussed on multiple occasions, we cannot proceed with any work-related matters until we receive the completed authorisation form from you as well as your General Practitioners details. This is necessary for us to understand your capacity and clarify what "remotely attend matters" means. We sent you the form on 26 November 2024 and expected it to be returned by COB 27 November 2024. However, given the situation you outlined regarding your partner's midwifery appointments, we have provided you with flexibility. Please note that this will be the final extension granted.
We kindly ask that you submit the signed authorisation form by COB Tuesday, 3 December 2024. It is crucial for us to have this information in order to assess your capacity and ensure we are fulfilling our duty of care as an employer. I have attached the letter again for your convenience.
Thank you for providing us with your planned parental leave dates, we are happy to approve this.
We look forward to receiving the authorisation form and General Practitioners details on or before COB Tuesday, 3 December 2024.”
On 2 December 2024 at 10:06pm, the Applicant responded stating that he would not pass on his GP’s details:
“Hi Dan,
Now I am not sure this is a legally binding request, is it?
I do not want anyone speaking with my GP, I don't believe this is normal practise either.
Where is this in a statute or law?
Who requested this? The lawyer?
You have my doctors certificate, and I will go and get a clearance once this is over.
Thanks for granting my parental leave.
Bonus and payment matters,
Now if you can kindly follow up on the bonus information from February, irrespective of your reasons for not currently having this completed.
After I receive the information, then you won't need to worry about it ,anymore. Let's go forward, and get it out of the way?
Also, the paperwork from "official"?* title change bstween that contract, and additional contract which relate to the title change.
Thank you, that would be much appreciated.” (sic)
On 3 December 2024 at 4:18pm, the Applicant followed up Mr Anderzipf by email:
“Hi Dan,
I haven't heard back.
Waiting for the details regarding the requests.
Not going to happen signing that letter, you don't go talking to my medical professional who has ethics and considerations on the table which are not privy for you to discuss.
I would like to know where this idea came from? As I am curious [thinking emoji]
If there is legislation that allows this, then I want to be given the details so we can seek a 3rd opinion.
Is this normal procedure and practice?
I would say, usually if an employee has a contract with clauses and considerations for bonuses and review, then those matters should be followed up promptly?
And this important matter & the others I raised, has dragged out since early this year.”
On 4 December 2024 at 9:58am, Mr Anderzipf emailed the Applicant reminding him of his contractual obligations, and that if he failed to provide the consent form and continued to communicate in a disrespectful manner, it may result in disciplinary action:
“Dear Bertus,
Thank you for your email.
We appreciate and understand your hesitation in signing the document; however, it is essential for us to fully assess your health and capacity, particularly given your absence since 11 October 2024. The lack of detailed information regarding your illness has made it difficult for us to fully evaluate your current capacity, and it is imperative that we consider all relevant factors to ensure you are able to fulfil your role effectively.
We would like to refer you to Clause 3-Employer Warranties, subsection (e) of your signed Employment Contract dated 7 December 2021,which states:
"you have participated in, or will agree to participate in any background check and/or medical examination relevant to your position and/or your employment with the Employer to the standard required of your position and the Employer;"
In light of this, we respectfully request that you sign the attached form, as it constitutes a reasonable and lawful management direction in view of the recent concerns regarding your capacity. Please be advised that if the document is not signed by COB 4 December 2024, we may be required to take further action.
Furthermore, in accordance with our letter provided to you on 26 November 2024, we expect you to schedule an appointment with your treating practitioner by COB 6 December 2024 and notify us as soon as the appointment has been confirmed.
Thank you for your attention to this matter. We look forward to your prompt response.”
On 6 December 2024 at 5:46am, Mr Anderzipf emailed the Applicant again, confirming that the assessment was a lawful and reasonable direction, and in the event that he did not return the consent form by 9 December 2024, the Respondent may proceed to termination of his employment:
“Dear Bertus,
On 26 November 2024 you were directed to provide us with written authorisation to communicate with your doctor in relation to your capacity to safely perform the duties inherent to your job with us.
On 2 December 2024 you communicated your refusal to comply with that direction.
On 3 December 2024, we communicated with you to explain why we were issuing the direction and to let you know we would be extending the time for you to comply with our direction. However, your response via email was disrespectful and mocked the reasoning behind the need for the authorisation.
Bertus, we need you to consider the approach you are taking very carefully. It is lawful and reasonable for us to require you to provide us with the authorisation so that we can communicate with your doctor and obtain an assessment of your capacity to safely carry out your duties. Your refusal amounts to a refusal to comply with a lawful and reasonable direction, which amounts to serious misconduct and allows us to summarily dismiss you.
We trust the above leaves you in no doubt about the position you are in. We will give you one final opportunity to sign and return the authorisation to us. If you fail to do so by 5.00pm on Monday, 9 December 2024, we will conclude that you have continued, and will continue, to refuse to comply with our direction. We will conclude that this amounts to serious misconduct and your employment will be terminated.
We trust this makes things clear for you and we look forward to you providing us with the signed authorisation.
If you would like to discuss this, please contact me.”
The Applicant did not respond.
On 10 December 2024, Mr Anderzipf issued the Applicant a letter stating that the Applicant’s employment was summarily terminated effective the same day.
Relevant legislation
Section 385 of the Act states:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
The first question is whether the dismissal was consistent with the Small Business Fair Dismissal Code (SBFDC). In the event I was to find it was not, I would then be required to go on and consider whether the Applicant’s dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act.
There is no dispute that the Respondent is a small business. The employer submits that the dismissal was a summary dismissal based on serious misconduct. The relevant part of the SBFDC reads as follows:
“It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”
Regulation 1.07 of the Fair Work Regulations 2009 (Cth) defines serious misconduct as conduct including “refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment”.
In the event that I was to find the dismissal was not consistent with the SBFDC it would be necessary to consider each of the matters in s.387 which reads 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 the 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.”
Evidence and Submissions
Privacy
The Applicant submitted that the dismissal was unfair as, per the ‘Privacy Act 1998.’ I believe he intends to refer to the Privacy Act 1988 (Cth) (Privacy Act).
The Applicant submitted that he is not lawfully required to consent to the access requested by the Respondent. He contended that while he understands that documentation is required from the treating general practitioner outlining his health status to support return to work after an extended health-related absence, the Respondent instead requested this, in addition to directing the Applicant to provide consent for direct access for correspondence.
The Applicant believed that directing him to grant the Respondent consent to correspond with his GP so that “personal and medical information” could be accessed is a breach of the Privacy Act, and unfair grounds for dismissal.
After the Applicant had stated that he did not wish to consent to the Respondent corresponding directly with his GP, the Applicant contended that Mr Anderzipf persisted with his request by sending an email that quotes his 2021 employment contract as grounds for gaining access to his personal and medical information.
The Respondent submitted that it is not the case that Mr Anderzipf or the Respondent requested to speak directly to the Applicant’s treating practitioner, nor did it request access to the Applicant’s entire medical history. The information sought was appropriately limited to matters relevant to the Applicant’s capacity to safely carry out his duties.
Employment contract terms
The Respondent contends that it held the belief that the Applicant’s failure to comply with its lawful and reasonable direction to participate in a medical capacity assessment constitutes serious misconduct.
The Respondent contended that the direction was lawful on the basis that:
(a)the Applicant warrants in his employment contract at clause 3.1, that he:
“will agree to participate in any … medical examination relevant to your position and/or your employment with the Employer to the standard required of your position and the Employer”; and
(b)the Applicant acknowledges in his employment contract at clause 3.3, that the Employer:
“has offered to employ you and is willing to continue to employ you in reliance on the warranties and commitments you have made in this Agreement”;
(c)the Applicant agrees in his employment contract at clause 4.2(e) to:
“comply with all lawful and reasonable directions given to you by the Employer”;
(d)the employment contract also sets out that at clause 16.1 and 16.2 respectively that
“You must act in accordance with the work health and safety (WHS) legislation relevant to your State or Territory and the Employer’s WHS policies and procedures”41 and “If you are considered unfit to safely perform your duties, whether due to the effects of drugs and/or alcohol or for any other reason, you may be stood down immediately and the Employer may require you to undertake a medical examination and obtain a fitness clearance before allowing you to undertake any further work.”
The Applicant confirmed during his oral evidence that he read the employment contact before he signed it. He accepted that the contract said that he would agree to participate in any medical examination relevant to his employment. He said he agreed to the terms of the contract because he wanted to get going.
In the course of his cross examination, the Applicant indicated he believed there was another employment contract in addition to the one provided in evidence. The Applicant could not locate another employment contract, and the Respondent maintained there was no other employment contract. Based on the evidence, I am satisfied the only employment contract in existence is the employment contract provided in the evidence.
The Applicant’s primary argument appeared to be that you cannot contract out of rights, and therefore if a contractual term falls outside the law then it is not legally enforceable. He accepted the contract required him to comply with any lawful and reasonable direction from the Respondent.
The Applicant accepted his role was client facing and his role impacted the profitability of the business. He agreed he was directed to attend the meeting on Friday 11 October 2024. He said he chose to take sick leave that day as the situation was overwhelming and he was going to see his parents who needed his support. He accepted he had received the letter and spoke to “Vanessa” before he left for New Zealand. The evidence concerning why he was unfit for work on 11 October 2024 was vague. The message he sent to the Respondent said he “won’t be in today. I will be taking the day off, personal/sick leave.”
The Applicant said the two days sick leave was to cover the two days he took off to be with his parents because the travel time was half a day each way. He agreed he took personal leave and sick leave from 11 October to 19 November and then 21 November to 31 December 2024. The Applicant accepted the medical certificates did not provide any specific detail as to why he was not fit for work.
The Applicant was referred to the medical certificate of 20 November 2024 which said he was unfit for work, and if there were any matters that he requires to address this could be done remotely without him having to attend the office. The Applicant accepted this medical certificate would raise questions for the Respondent about whether the workplace was safe for him.
The Applicant said he had no issues with the GP filing out a questionnaire however it was the request for medical information and direct contact with his doctor that he took issue with. He accepted the letter the Respondent sent to him included the questions that the Respondent proposed to ask his doctor. He went on to say that it could go beyond that. The Applicant accepted that the letter restricted the information solely to medical information related to his employment, and his current and future fitness to work, however went on to say it was his understanding that if he signed the letter it would have given open access to the Respondent for communication with his treating medical practitioner.
Leave taken
The Respondent noted that the Applicant had purported to take carers leave, however, when evidence was requested to support this, the Applicant instead provided medical certificates certifying his own incapacity to work. The Respondent was of the view that the Applicant did not, at any material time in this matter, provide any evidence of the carers leave that would satisfy a reasonable person.
On 16 October 2024, the Respondent emailed the Applicant to confirm that he was required to provide evidence of the requirement to take:
(a) carers leave for the period from 14 – 20 October 2024, by 23 October 2024; and
(b) personal leave for 11 October 2024, by 18 October 2024.
On 17 October 2024 the Applicant provided a medical certificate for himself stating he was unfit for work from 11 October to 1 November 2024. The Respondent considered the medical certificate to be unsatisfactory evidence that the Applicant was required to take personal leave because of a personal illness or injury for the collective reasons that:
(a) the doctor back dated the certificate for 5 days prior to attending on the Applicant;
(b) the doctor provided his opinion on the same day that he attended on the Applicant via Telehealth and the Applicant provided no evidence of any additional tests, examinations or assessments that would have informed the doctors opinion that the Applicant was and would continue to be unfit for a significant period of 3 weeks and 1 day;
(c) the doctor did not provide any details of the Applicant’s medical condition;
(d) the doctor’s opinion did not align with the reasons the Applicant provided, that he was required to provide care to his mother;
(e) the Applicant did not advise the Respondent that he was personally unfit for work at any material time prior to providing the medical certificate;
(f) the Applicant further advised a customer, Mr David Kelland, that he was “in New Zealand supporting family and some friends”; and
(g) the Applicant’s Instagram account indicates that during the period for which the medical certificate covers, the Applicant appears to have capacity to engaged in “fun” and “adventure” activities.
The Respondent submitted that in consideration of the distinct lack of information regarding the Applicant’s purported injury or illness, the lengthy period of leave taken for such reason (from 11 October 2024 until 1 November 2024), and in lieu of satisfactory evidence of the Applicant’s requirement to take personal leave, the Respondent considered that it was appropriate to request that the Applicant provide a fit-for-work certificate to confirm that the Applicant was fit to return to work. The Respondent made this request to the Applicant on 18 October 2024 to ensure that the Applicant was provided with ample notice prior to his return date of 2 November 2024.
The Respondent submitted that when the Applicant provided a further medical certificate for 20 November 2024 to 31 December 2024, the medical certificate did not:
(a) define or describe what the doctor meant by “matters”;
(b) provide any information that may assist the company to determine what, if anything, the Applicant can or cannot do;
(c) provide any information that may assist the company to conduct a risk assessment for Mr Moers and the company’s benefit; and
(d) provide any explanation as to why the Applicant was no longer considered fit to perform full duties as anticipated by the doctor in his previous certificate dated 16 October 2024.
Further, the Applicant’s email (containing the medical certificate dated 20 November 2024) on 20 November 2024 stated that he had “an ear issue”, which did not assist the Respondent in any way to:
(a) conduct a risk assessment for the benefit of the Applicant and the Respondent;
(b) enable the Respondent to comply with its obligations under the Work Health and Safety Act 2011 (Qld); and
(c) enable the Respondent to consider what alternative duties the Applicant could be given.
The Respondent submitted that it considered it needed further information from the Applicant’s medical practitioner in order to assess the Applicant’s capacity.
Reasonable and lawful direction
The Respondent submitted that the reason for dismissal was that the Applicant failed to comply with a lawful and reasonable direction under his employment contract to provide further information, via his general practitioner, of his capacity to return to work. The Respondent submitted that the Applicant was made aware of the exact and limited information that the Respondent was seeking.
The Respondent referred to the case of Grant v BHP Coal Pty Ltd[4], where the Full Bench upheld Commissioner Spencer’s decision that there exists an ability to direct an employee to undertake a medical assessment, and that a failure to attend an assessment as directed constituted a failure to follow a lawful and reasonable direction.
The Respondent also referred to the case of Swanson v Monash Health[5] (Monash), where Jones J found that a direction to undergo an independent medical examination was lawful and reasonable in circumstances where the employee had been on personal leave. The employee had provided one medical certificate which contained detail of her incapacity, after which the certificates did not contain any detail relating to her condition. In Monash, Jones J, considers Goldberg J’s decision in Thompson v IGT (Australia) Pty Ltd[6] (Thompson) and took the view that Thompson ‘stands for the proposition that there are freestanding common law rights of an employer implied as a term of the contract of employment, arising from their obligations under the relevant State occupational health and safety laws, to provide a safe place of work for their employees, which includes a right to require an employee, on a reasonable basis, to attend an [independent medical assessment].’
The Respondent submitted that it gave the Applicant 10 days (from 26 November – 5 December 2024) to sign a form to provide consent to the Respondent to contact the Applicant’s medical practitioner to arrange the medical assessment.
The Respondent then gave the Applicant notice on 6 December 2024 that failure to comply with the direction would be considered serious misconduct and the Applicant’s employment may be terminated (Notice). The Respondent then gave the Applicant a further 3 days (until 9 December 2024) to provide the signed consent form. In total, the Respondent gave the Applicant 14 days to make enquiries with the Respondent and return the signed consent form.
The Respondent submitted that due to the 14 day window that eventuated from the extensions provided, it was open to the Applicant to seek legal advice and make further enquiries and it should have been reasonably evident to the Applicant that the Respondent was willing to extend the deadline for the Applicant to return the authorisation form where the Applicant made enquiries with the Respondent.
The Applicant did not respond to the Respondent’s Notice and did not provide the signed consent form by 9 December 2024 (or at all). The Applicant’s employment was terminated for serious misconduct on 10 December 2024.
The Respondent submitted that it made all reasonable attempts to afford the Applicant an opportunity to make enquiries with the Respondent about the nature of the medical assessment and a reasonable period of time to respond and provide the consent form.
The Respondent submitted that it reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business.
Statutory obligations
The Respondent argued that the Applicant’s conduct unequivocally prevented the Respondent from complying with its legal duties under the Work Health and Safety Act 2011 (Qld) (WHS Act) and the Disability Discrimination Act 1992 (Cth) (DDA).
The Respondent submitted it had a duty of care under s.19 of the WHS Act to ensure, so far as is reasonably practicable, the health and safety of workers while the workers are at work.
The Respondent also noted that under s.28 of the WHS Act, the Applicant has a duty to:
(a) take reasonable care for his or her own health and safety; and
(b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
(c) comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and
(d) co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.
Under s.6 of the DDA, the Respondent is required to consider what work, if any, it could provide to the Applicant, as well as reasonable adjustments that it could reasonably make. The Applicant’s medical certificate implies that the Applicant had capacity to perform “matters…remotely”
Other alleged reasons for dismissal
The Applicant submitted that there were alternative motivations for the Respondent to dismiss him from employment. He submitted that while not included in the termination letter as grounds for dismissal, it was previously raised in an email dated 10 October 2024, that the Applicant had engaged in a number of behaviours that were grounds for a performance and conduct meeting.
The Applicant believed that the performance accusations were made to silence the company misconduct that he was attempting to raise in the long meeting on the 2 October 2024. Specifically, on 2 October 2024, the Applicant submitted that he raised a number of company conduct concerns set out at paragraph [6].
The Applicant alleged that during the meeting on 2 October 2024, he was instructed by management to drink alcohol in order to cope with increased stress. In addition, the Applicant stated he had raised these concerns a number of times previously. The Applicant submitted that the resulting stress following the meeting was a contributing factor to him taking extended leave.
Consideration
The nub of this case is the question of whether the direction of the Respondent was lawful and reasonable. It is apparent the Applicant held a genuine concern that if he signed the letter consenting to his treating medical practitioner discussing his personal and medical information with Mr Anderzipf, that the discussion may not be restricted to information solely related to his employment, and his current and future fitness to work. In my view, the letter does restrict the information that may be shared with the Respondent to information only in connection with his employment and his current and/or future fitness for work. On that basis it is consistent with what he had agreed with the Respondent in his employment contract about his preparedness to participate in any medical examination relevant to his position and/or his employment with the Respondent, to the standard required of his position and the Respondent.
The Applicant accepted he did not propose any alternative method to the Respondent as to how he could provide the information the Respondent was seeking in relation to his fitness for work. The Privacy Act 1988 and the Australian Privacy Principles set strict guidelines concerning the handling of personal information including medical records, and they provide that personal information can only be disclosed with consent. I am satisfied based on the terms of the contract of employment that the Applicant confirmed during his evidence that he had read, signed and agreed to, that it provided the consent of the Applicant to disclose medical information relevant to his fitness for work to the Respondent if required. The extent of information requested was within the scope of what was contemplated by the employment contract and not beyond its scope.
On that basis, the direction of the Respondent for the Applicant to facilitate the provision of the information by the method it proposed was a lawful and reasonable direction, as it was consistent with what had been agreed to between the parties about the provision of medical information. If it were not for the contract of employment, such a direction would not be lawful and reasonable in the absence of the Applicant’s consent.
I also do not accept based on the evidence that the step of the Respondent seeking medical information from the Applicant’s treating medical practitioner concerning his fitness for work was some form of retaliation against the Applicant to silence him because he had raised concerns about the company’s conduct. I also do not accept that the dismissal was because of the Applicant’s illness or injury, or because the Applicant had a disability.
I am satisfied based on the evidence, it was fair for the Respondent to dismiss the Applicant without notice because the Respondent believed on reasonable grounds that the Applicant’s conduct was sufficiently serious to justify immediate dismissal. I am satisfied that the Respondent held the belief that the Applicant’s failure to comply with its lawful and reasonable direction to participate in a medical capacity assessment constituted serious misconduct, and considering the terms of the employment contract, it has a reasonable basis to hold that belief.
As set out above, regulation 1.07 of the Fair Work Regulations 2009 (Cth) defines serious misconduct as conduct including “refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.”
I am satisfied the dismissal was consistent with the SBFDC. For completeness I would add that had I found the dismissal was not consistent with the SBFDC, or that the SBFDC did not apply, I would have found the dismissal was not unfair in accordance with the considerations in s.387 of the Act. Taking into account the totality of the evidence including the safety and operational issues, the Applicant was on notice about the consequences of his refusing to cooperate with the Respondent about its request and his contractual obligations, the Applicant was given the opportunity to respond to the request, and he did not engage with the request. The Applicant was not denied a support person and the Respondent is a small business. The Respondent was attempting to discharge its duty of care and its workplace health and safety obligations.
Conclusion
For the reasons set out above, the Commission does not have jurisdiction to deal with the application as the dismissal was consistent with the SBFDC. An order will be issued separately and concurrently with this decision to that effect.
COMMISSIONER
Appearances:
B Moers, for himself
Z Aly, Solicitor for the Respondent
Hearing details:
2025
Brisbane (by video)
9 April.
[1] Exhibit 1
[2] Exhibit 2
[3] Exhibit 3
[4] [2014] FWCFB 3027.
[5] [2018] FCCA 538.
[6] [2008] FCA 994.
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