Bronwen Kerry Koka v Australian Nuclear Science & Technology Organisation
[2010] FWA 2073
•31 MARCH 2010
[2010] FWA 2073 |
|
DECISION |
Workplace Relations Act 1996
s.643—Termination of employment
Bronwen Kerry Koka
v
Australian Nuclear Science & Technology Organisation
(U2009/4707)
COMMISSIONER HARRISON | SYDNEY, 31 MARCH 2010 |
Termination of employment - arbitration.
[1] This decision arises from an application made pursuant to s.643 of the Workplace Relations Act 1996 (the Act) by Bronwen Kerry Koka for relief in respect of the termination of her employment by the Australian Nuclear Science and Technology Organisation (ANSTO).
[2] According to the file, the matter was initially subject to conciliation proceedings in the Australian Human Rights Commission (AHRC). ANSTO applied for the application to be struck out on the basis of “other proceedings”. Subsequently, proceedings in the AHRC were discontinued and Thatcher C attempted to settle the matter by conciliation on 24 September 2009. Following the failure of conciliation, Mrs Koka, through her union, the Australian Manufacturing Workers Union (AMWU), elected to proceed to Arbitration.
[3] Mrs Koka was employed from 15 September 2003 until 3 June 2009, when she was terminated on the grounds of being medically unfit to return to work.
[4] Mrs Koka gave evidence on her own behalf supported by Mr Colin Drane (Industrial Officer, AMWU) and Dr Alex Pilsky (Consultant General and Forensic Psychiatrist and Mrs Koka’s treating psychiatrist). Evidence for ANSTO was given by Mr Paul Di Pietro (Manager, Campus Services, ANSTO), Dr Graham John Hall (Occupational Physician and Site Medical Officer, ANSTO), Dr Kipling Taysom Walker (Consultant Psychiatrist) and Mr Paul Argall (Mrs Koka’s former Manager, currently Leader, Active Maintenance and Response, ANSTO).
[5] Mrs Koka commenced her employment as a Senior Customer Service Officer and had a staff of five reporting to her. In November 2006, she transferred to another position in an administrative capacity without others reporting to her.
[6] It is not contested that in May 2007 Mrs Koka commenced a lengthy period of sick leave during which she was diagnosed as suffering from a severe and recurring depressive disorder. She was hospitalised for two periods of two months and underwent electroconvulsive therapy (ECT).
[7] Mrs Koka applied for workers compensation which was declined by Comcare at both first instance and upon review.
[8] In December 2007, Mrs Koka returned to work on a graduated basis until reaching full-time hours in February 2008. Her return to work plan was managed by the Commonwealth Rehabilitation Service (CRS) who were engaged by ANSTO.
[9] The return to work plan was an agreed strategy involving the services of a rehabilitation provider working in cooperation with Mrs Koka’s treating psychiatrist. Her initial duties were restricted to relatively routine tasks in recognition that she would be affected by residual cognitive functioning impairments.
[10] During 2008 Mrs Koka’s illness continued to impact her and she continued with ECT and drug therapy although she did not have any repeats of bouts of severe depression which had earlier incapacitated her. During this period ANSTO arranged, at its cost, additional psychological counselling, however, according to ANSTO, Mrs Koka continued to have major difficulties in performing a limited range of basic routine tasks.
[11] The trigger for Mrs Koka’s condition was said, by her treating psychiatrist, to be “caused by difficulties at work in March and April” 2007. Mrs Koka described it as sexual harassment by a former supervisor. A formal complaint was never lodged and ANSTO deny the allegation. Mrs Koka also had issues with a staff member who alleged bullying by Mrs Koka. A subsequent investigation by ANSTO was inconclusive.
[12] The matter which gave rise to ANSTO’s loss of confidence in Mrs Koka’s ability to resume normal duties was an incident on 25 November 2008 concerning pictures of voodoo dolls pinned to her workstation. Mrs Koka said she displayed the pictures to lift morale and that it was a joke. ANSTO regarded the pictures as inappropriate and her manager, Mr Argall, was led to believe they were directed at him.
[13] ANSTO’s resident medical officer, Dr Graham Hall, attended a meeting with Mrs Koka regarding this incident. He formed the view that Mrs Koka was upset and in a state of extreme agitation and urged her to go home and take time off and obtain a medical certificate before resuming.
[14] Mrs Koka resented being forced to go home and agreed she was upset about the whole incident being blown out of proportion. Her psychiatrist, Dr Pilsky, cleared her for normal work when he saw her on December 2. ANSTO refused to allow her to resume work until an “independent assessment” was obtained on the basis of their duty of care, to ensure support for Mrs Koka and provide a safe workplace.
[15] Mrs Koka was placed on paid leave and ANSTO referred her to be assessed by Dr Kipling Walker, an independent psychiatrist who provided a report which stated Mrs Koka was “permanently unfit for any duties with ANSTO”. 1
[16] On 16 February 2009, a meeting was held between ANSTO, Mrs Koka, her husband and daughter and her union representative, Mr Drane, which considered Dr Walker’s report. The union requested a further independent examination be conducted because the report was two months old and Mrs Koka felt considerably better. ANSTO accepted the request and in early March, Dr Kathryn Lovric conducted a 90 minute “fitness for duty assessment” of Mrs Koka.
[17] In a report dated 4 March 2009, Dr Lovric, whilst noting she had been unable to speak to Mrs Koka’s treating psychiatrist, Dr Pilsky, stated: “I think it is unlikely that a return to work in her usual duties is going to be successful and agree with Dr Walker that she is most likely permanently incapacitated from returning to her usual duties.”
[18] On the basis of the two independent reports, ANSTO advised it could no longer continue to employ Mrs Koka, however, on 29 April 2009, at the request of the union, ANSTO agreed to defer the termination. On 6 May, Dr Pilsky provided a further report which stated in part:
“With regards to Mrs Koka’s depression, in my opinion, she is currently in remission. She did not report depressive symptoms in the last 3-4 months despite having reduced and ceased her medication and there are no signs of depression on her mental state examination. She remains at risk of relapse and indicated that she is prepared to have regular monitoring and prepared to resume medication in the event of re-emergence of depressive symptoms. With regards to Mrs Koka’s anxiety symptoms, these are understandable to a large degree, given her prior harassment at ANSTO and her subsequent problems there. According to Mrs Koka, her anxiety was improving towards the end of 2008, as she finished exposure therapy with her psychologist, Mr Noel Walker. Furthermore, the neuropsychological report by Dr Kearney concluded that whilst under conditions of anxiety Mrs Koka’s cognitive performance may decline slightly, it would not to be an impaired level of functioning.
With regards to Mrs Koka’s fitness to work with ANSTO, in my opinion she is fit for the duties performed prior to her suspension on 28 November 2008. There is no current evidence of psychosis, cognitive impairment or severe depressive symptoms, nor a history of psychotic illness, which would prevent Mrs Koka from performing her usual duties. In the event of her return to her usual duties with ANSTO, Mrs Koka would require regular psychiatric monitoring to prevent relapse of her depression. She would also require anxiety management by means of regular Cognitive Behavioural Therapy and possibly pharmacotherapy in order to cope with her workplace anxiety. Mrs Koka indicated she was prepared to follow my recommendations on these matters.”
[19] ANSTO, in considering Dr Pilsky’s report. concluded there was no likely prospect of Mrs Koka being able to perform the full range of tasks and duties attached to her role of Administrative Support Officer, she would require substantial continuing support and there was the potential for the exacerbation of her illness. ANSTO’s position is best summarised in its letter of response and termination:
“Re; Medical reports received May 2009
Dear Bronwen
I refer to Dr Pilsky’s letter and accompanying report prepared by Dr Kearney. The reports have been reviewed by ANSTO’s medical staff.
In relation to Dr Pilsky’s report, ANSTO provides the following response:
It is unclear on whose behalf the report was prepared.
The report refers to Mr Argall’s report on your workplace performance, but does not address the problems described, or attempts to show how they might be dealt with on any return to work.
Dr Pilsky has qualified your return to work stating that: ‘In the event of her return to work at ANSTO Mrs Koka would require…(sic) to cope with her workplace anxiety’.
The requirement outlined includes:
• “Regular Psychiatric monitoring to prevent relapse of her depression”
• “She would also require anxiety management by means of regular Cognitive Behavioural Therapy”
• “Possibly pharmacotherapy in order to cope with her workplace anxiety”
It is the view of ANSTO’s Occupational Physician, Dr Hall, these requirements undermine the advisability of any return to ANSTO.
Reference is made to your former manager “sexually harassing Mrs Koka” and the fact that the “ex-boss was asked to leave ANSTO prior to Mrs Koka’s hospitalisation as there were allegations of his sexual impropriety towards other ANSTO employees”.
These statements are untrue. No such events occurred according to ANSTO. The fact that Dr Pilsky chooses to raise these allegations calls into question his report and his reliance on statements allegedly made by you.
ANSTO has serious concerns regarding the statements attributed to you about your former manager.
In summary, ANSTO does not accept that you are fit to return to work. Dr Pilsky’s report does not change the conclusions in the 2 independent medical reports from doctors at Health Services Australia.
Accordingly ANSTO will now resume steps to terminate your employment on the grounds of incapacity as outlined in my letter of 16 April 2009.
You are formally advised that your employment will cease as of close of business, Wednesday 3 June 2009. You will receive 5 weeks pay in lieu of notice in accordance with the provisions of clause 18 Cessation of Employment of the ANSTO Enterprise Agreement 2006.”
The Medical Evidence
[20] It was Dr Pilsky’s evidence that, as Mrs Koka’s treating psychiatrist since June 2007, he had seen her on approximately 50 occasions depending on her wellness. He currently sees her once a month as she is in remission. He stated the basis for his belief that she is in remission was that there were no current features of her condition:
“What is the foundation for that belief, sir?---Well, Mrs Koka has a very well known condition called major depressive disorder with melancholic features, which can be severe at the time – at times. At the moment we have no such features that could be demonstrated on psychiatric examination, and this was also the case when I wrote my report in May 2009, on the basis of which I could state that she’s in remission.” 2
[21] Dr Pilsky further stated that in his opinion Mrs Koka was fit to return to work:
“What is the basis for making that opinion, sir?---Well, in understanding as to her job and her qualifications for the job, she was well qualified for the job when she started the job. Given that she’s currently in remission from her major depressive disorder, there is nothing to stop her from working in her usual capacity. Furthermore, what we have is objective neuropsychological testing, since there have been specific concerns expressed about Mrs Koka’s cognitive functioning, and this objective testing states that her cognitive functioning is quite adequate for the job. We also have other objective testing such as MRI of her brain, which suggests that there are no significant abnormalities which would stop her from doing the job. Also you have my clinical opinion, based on seeing her on about 50 occasions.” 3
[22] Dr Pilsky disagreed with Dr Kipling Walker’s opinion that Mrs Koka’s disorder is recurrent. He stated that for a disorder to be recurrent there needed to be at least three episodesm, yet in Mrs Koka’s case there had been one and the likelihood of another was “…far less likely”, given that she was not suffering any symptoms. He further stated that Mrs Koka had not taken anti-depressant medication since March 2009.
[23] In cross-examination, Dr Pilsky agreed that “remission” lacked a universally accepted definition, as did “most things in psychiatry”. He stated a future deterioration in cognitive functioning would not occur on its own but would be related to other symptoms such as poor sleep and extreme anxiety which could be detected.
[24] Dr Pilsky agreed the prospect of being placed in an environment which reminded someone of old issues of perceived unfairness could trigger obsessive rumination. On this point he added: “yet if they are treated in a dignified manner, this – at the time, this would negate the previous stressful circumstances. It would help them resolve the previous stressful circumstances.” 4
[25] In further cross-examination, Dr Pilsky stated that he and Dr Kipling Walker essentially agreed on their respective diagnoses of Mrs Koka, yet they differed on the prognosis.
“The issues between you were really about future prognosis, weren't they?---About her return – ability to return to work and also the – there was some elaboration of the issue that – because there was a real concern at ANSTO at the time that she was suffering from psychosis, and I elaborated that in fact I believed she wasn't.
And Dr Walker accepted your view in that regard?---Yes he did.
You'll accept that when there is a difference in – I'll withdraw that. As you say I think, the difference was one in prognosis not diagnosis, substantially?---There was a difference in prognosis and her ability to return to work.
Yes, and prognosis always involves making educated and informed guesses about what is likely to happen in future, based on opinion?---Yes.
There may well be scope for reasonable difference in how you weight the percentage likelihood of something occurring?---There may well be some scope to that.
Yes, and you told Dr Kipling Walker that in your opinion at that stage Miss Koka was currently fit to commence a graduated return to work plan?---That's correct.” 5
[26] Dr Graham Hall is an Occupational Physician and officer. He had been involved with Mrs Koka to varying degrees since 2004 but to a greater extent since May 2007.
[27] In his affidavit Dr Hall recalled the meeting on 16 February 2009 referred to above. He conveyed his concerns at the time that a return to work by Mrs Koka could trigger a relapse into further depression.
[28] In late March 2009, he advised ANSTO that in his view Mrs Koka did not have the medical capacity to perform her duties and that a return to work risked an aggravation of her illness. He formed his opinion on the basis of the psychiatric reports of Drs Walker and Lovric:
- “understanding of Mrs Koka’s situation and ongoing treatment, and the manner in which she had presented in the past and;
- my understanding of Mrs Koka’s apparent difficulties in performing various aspects of her work, including quite routine tasks, as articulated by Mr Argall;
- however, while I considered that Mrs Koka’s medical condition meant that she did not have the capacity to perform her role with ANSTO, and that a return to that role would give rise to a substantial risk of aggravation of her illness, it was not my opinion that Mrs Koka’s illness was likely to stop her from working again. Indeed, I thought that she retained the capacity to perform other, more limited work, especially for another employer;
- after considering Dr Kipling Walker’s report and Dr Kathryn Lovric’s report, it seemed that the only sensible decision was to medically discharge Mrs Koka. There were discussions between the Medical Centre, Human Resources and Mrs Koka’s supervisors as to the action that needed to be taken. A joint decision was made that medical discharge was the most appropriate course of action. I concurred with that action.” 6
[29] During May 2009 Dr Hall received reports from Dr Pilsky and a Dr Kearney, yet retained his concerns. He noted Dr Pilsky’s comment that Mrs Koka “remains at risk of relapse”.
[30] Dr Kipling Walker is a Consultant Psychiatrist who conducted a fitness for duty assessment on Mrs Koka at the request of ANSTO. He saw Mrs Koka on 17 December 2008 for an 80 minute consultation following his receipt of background information from ANSTO and copies of reports of Dr Pilsky, Psychologist Mr Noel Walker and her supervisor, Mr Paul Argall.
[31] In a sworn affidavit, Dr Walker noted two factors which mitigated against Mrs Koka returning to work. The first was her continued rumination of the alleged sexual harassment which was likely to heighten her levels of stress returning to the old work environment. Secondly, it “was Mrs Koka’s apparent perception that other ANSTO employees had to ‘accept her’ and ‘know that she did not do what they said she did’ regarding the voodoo doll pictures. While I understood Mrs Koka’s desire for such acceptance, it was a matter outside either my control, or that of Mrs Koka. While ANSTO could, for instance, make various changes in the workplace, it could not force other employees to change any perceptions they might have had. Nor could Mrs Koka, or anyone else, ever be positively satisfied that that such a change had occurred. As a result, there was the real potential for Mrs Koka to suffer from increased levels of stress or anxiety ruminating over whether other employees had, in fact, come to accept her, or accept her explanation in relation to the voodoo doll pictures. In my experience, the imposition, by an individual, of a requirement for others to alter their views as a precondition for a successful return to work is often indicative of likely failure in any return to work and further tension, even if there is goodwill on all sides.” 7
[32] Whilst agreeing with Dr Pilsky’s opinion that Mrs Koka was in a state of remission, he considered that this was due to the fact that she had not been exposed to ANSTO’s work environment for several months. Dr Walker’s opinion was that there was a “very high prospect of her suffering a recurrence of a severe depressive episode” if she returned to ANSTO.
[33] In cross-examination, Dr Walker stated the reasons he came to his conclusions were because of her history of ECT treatment, the strong medication Mrs Koka had been taking and her anxious state when he saw her in December 2008. In further questioning Dr Walker agreed he did not know whether Mrs Koka was currently on medication nor was he aware of the last occasion she underwent ECT treatment.
Submissions
[34] Mr Walkaden on behalf of Mrs Koka submitted that a review of the evidence of Drs Pilsky and Walker showed a large degree of consensus excepting the issues of her capacity at the time of termination and her prognosis, which he described as an educated guess about future likely events. It was said that the Tribunal should prefer the opinion of Dr Pilsky.
[35] It was submitted that during Mrs Koka’s evidence and lengthy cross-examination she showed that her cognitive functions stood up to stress and scrutiny. Her “memory was very good in terms of dates, times (and) people’s names.” 8
[36] Mr Walkaden submitted there was no valid reason for the termination and stated it would be safe for Mrs Koka to return to work on the basis of Dr Pilsky’s opinion that she is in remission and will receive his ongoing support and treatment if required. Other support recommended by Dr Pilsky such as relaxation techniques and pharmacology were measures which imposed no material burden on ANSTO. It was said that this matter goes to the heart of how a large government undertaking treats an employee with a disability.
[37] Given Mrs Koka’s length of service, her age and economic circumstances, the effect of termination was harsh. The appropriate and effective remedy should be reinstatement.
[38] Mr Jauncey, for ANSTO, submitted that the organisation had acted in a very supportive and sympathetic manner to an employee who suffered a debilitating illness for a considerable period of time. ANSTO left Mrs Koka’s job open during her seven month absence whilst liaising with her family and treating doctors and psychiatrist. It also engaged a rehabilitation provider and implemented an agreed return to work plan.
[39] By reference to the evidence of Dr Hall, it was submitted that following receipt of Dr Walker’s report in January 2009 and his letter to Dr Pilsky, ANSTO was very concerned that a return to work by Mrs Koka was not in the best interest of either party.
[40] Mr Jauncey submitted that on the basis of two independent psychiatric reports, supported by Dr Hall, which found that Mrs Koka was unfit to work, combined with the qualified opinion of Dr Pilsky, there was a valid reason for the termination.
Consideration of the issues pursuant to s.652(3)
[41] In determining, for the purposes of arbitration, whether the termination of Mrs Koka was harsh, unjust or unreasonable, the Tribunal must have regard to the following matters set out in s.652(3) of the Act:
“ARBITRATION
(3) In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee—whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) the degree to which the size of the employer’s undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(f) the degree to which the absence of dedicated human resource management specialists or expertise in the undertaking, establishment or service would be likely to impact on the procedures followed in effecting the termination; and
(g) any other matters that the Commission considers relevant.”
Was there a valid reason for the termination?
[42] The meaning of the term “valid reason” was defined by Northrop J in Selvachandran v Peteron Plastics Pty Ltd 9 and remains authoritative. His Honour held that “valid” should be given the meaning of sound, defensible or well founded.
[43] Much of the evidence of Mrs Koka’s managers concerned the chronological background to the termination and the impact that her illness had on her work performance. I have carefully considered all that was put in the proceedings by all witnesses.
[44] There can be no doubt Mrs Koka was incapacitated by her depression which affected her ability to perform the inherent requirements of her position at the time. She had difficulties managing routine tasks and according to the evidence of her Manager, Mr Argall, he and other team members lost confidence in her abilities. Another manager, Mr Di Pietro, attested to her falling asleep on the job and other instances of her being anxious and distressed.
[45] Whilst the degree of Mrs Koka’s incapacity was argued in proceedings, the issue for determination in this matter is whether Mrs Koka was fit to perform her normal range of duties at the time of her termination. In this respect the medical evidence is conflicting. At various stages Mrs Koka was being attended to by Mr Noel Walker, a clinical psychologist, Dr Kipling Walker, consultant psychiatrist, Dr Kathryn Lovric, psychiatrist, (all engaged by ANSTO), Dr Graham Hall, occupational physician and ANSTO site medical officer, Dr Kearney, forensic psychiatrist, in addition to her own treating psychiatrist, Dr Alex Pilsky.
[46] Having regard to the medical opinion of Dr Walker supported by Dr Lovric and its concerns about Mrs Koka’s prognosis, ANSTO believed there was little prospect of Mrs Koka successfully resuming normal duties. It did so against the background of providing considerable support and assistance to her since mid-2007.
[47] In determining the issues in contention it is not simply a question of whose evidence I prefer but also what weight should be placed on the competing medical opinions and evidence.
[48] In this respect I note Dr Lovric was not called as a witness in these proceedings. Dr Hall’s opinion was largely predicated on Dr Lovric’s and Dr Walker’s reports but also aided by his direct contact with Mrs Koka over a period of time.
[49] Both Dr Walker and Dr Pilsky agreed on Mrs Koka’s underlying symptoms and also that she was in a state of remission. They differed as to the reasons why she had reached this stage and also on her prognosis.
[50] In January 2009, Dr Walker found that Mrs Koka was permanently unfit for any work with ANSTO. He reached his opinion after conferring with Dr Pilsky who, at the time, expressed his opinion that she was fit for a graduated return.
[51] On 27 February 2009, Dr Pilsky wrote to Dr Hall confirming that Mrs Koka could be subjected to further stress which would increase her anxiety if she returned to work. However, he added that he had seen Mrs Koka that day and noted her considerable improvement. He referred her to Dr Kearney for a neuropsychological report.
[52] Some three months later, on 6 May 2009, Dr Pilsky provided a further report which is part produced in paragraph 18 above. I regard this report as being more relevant and contemporaneous than Dr Walker’s.
[53] In this respect I have no reason to take any issue with Dr Walker’s or others professional opinions or integrity in this matter.
[54] In my view Dr Pilsky as Mrs Koka’s treating psychiatrist is better placed to state an opinion given his long and more recent professional involvement with her.
[55] His evidence was presented in a candid manner. He readily acknowledged deep concerns that Mrs Koka could relapse but saw her return to work as a positive opportunity to resolve her previous stress related issues subject to being treated in a dignified manner.
[56] In my view, having regard to the evidence of Dr Pilsky, Mrs Koka could have resumed a productive employment relationship with ANSTO given the state of remission from her medical incapacity.
[57] I am fortified in this conclusion by having regard to Mrs Koka’s demeanour and behaviour in the witness box. She had full recall of names, dates and events. She did become tearful at one point but I accept the evidence of Drs Pilsky and Walker that crying is not indicative of a cognitive functioning deficiency.
[58] Taking all of the above into account, I find that there was no valid reason for the termination of employment. I further find that in the circumstances of Mrs Koka being in remission from a major depressive disorder, the effect of the termination was harsh.
[59] It is agreed Mrs Koka was notified of the reason for termination and given the opportunity to respond. The grounds for termination were not related to performance, whilst I note ANSTO is a large undertaking with dedicated human resource expertise.
Any other matters that the Tribunal considers relevant
[60] Mrs Koka’s managers, Mr Argall and Mr Di Pietro, were very supportive of her. Mr Di Pietro’s evidence was that he discussed the issues with Mr Argall and said words to the effect “…we still have to try to make this work. It is not a performance issue, it is a medical issue and we can’t treat it like a performance issue. We have to encourage her and keep trying to build up her confidence, even if there are problems and even if it is frustrating.” 10
[61] This case is one where I am satisfied ANSTO has acted with empathy and taken practical measures to address a difficult personal issue with its employee. My findings in this matter are not in any way a criticism of Mrs Koka’s work colleagues who have been sympathetic and supportive.
Remedy
[62] Section 654 of the Act provides:
1) Subject to this section, the Commission may, on completion of the arbitration, make an order that provides for a remedy of a kind referred to in subsection (3), (4) or (7) if it has determined that the termination was harsh, unjust or unreasonable.
(2) The Commission must not make an order under subsection (1) unless the Commission is satisfied, having regard to all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s undertaking, establishment or service; and
(b) the length of the employee’s service with the employer; and
(c) the remuneration that the employee would have received, or would have been likely to receive, if the employee’s employment had not been terminated; and
(d) the efforts of the employee (if any) to mitigate the loss suffered by the employee as a result of the termination; and
(e) any other matter that the Commission considers relevant;
that the remedy ordered is appropriate.
(3) If the Commission considers it appropriate, the Commission may make an order requiring the employer to reinstate the employee by:
(a) reappointing the employee to the position in which the employee was employed immediately before the termination.
(b) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination.
(4) If the Commission makes an order under subsection (3) and considers it appropriate to do so, the Commission may also make:
(a) any order that the Commission thinks appropriate to maintain the continuity of the employee’s employment; and
(b) subject to subsections (5) and (6)—any order that the Commission thinks appropriate to cause the employer to pay to the employee an amount in respect of the remuneration lost, or likely to have been lost, by the employee because of the termination.
[63] I have considered the effect of any order I may make on the viability of ANSTO. I do not believe the viability of ANSTO would be effected by any order I make.
[64] I have considered the length of Mrs Koka’s employment. This was a neutral consideration regarding remedy.
[65] I have considered the remuneration Mrs Koka would have received from ANSTO if her employment had not been terminated.
[66] I have had regard to Mrs Koka’s efforts in relation to mitigation.
[67] I have had regard to my finding that Mrs Koka was terminated in circumstances which I considered harsh. I have considered the submissions on remedy and on the basis of the material before me I consider it appropriate that Mrs Koka be reinstated.
[68] In summary, I have had regard to all matters I must consider pursuant to s.652(3)(a) and s.654(2) of the Act.
[69] I will make an order requiring Mrs Koka be reinstated to a position on terms and conditions no less favourable than those on which she was employed prior to termination. Continuity of employment is to be maintained for the purposes of accrued entitlements. Mrs Koka shall be compensated for the loss of income from the date of termination less any amount earned. An order giving effect to this decision will issue as PR995637.
COMMISSIONER
Appearances:
A Walkaden with C Drane, Australian Manufacturing Workers Union, for Mrs Bronwen Kerry Koka
S Jauncey with R Lesiw and J Do, Henry Davis York Lawyers, for the Australian Nuclear Science & Technology Organisation
Hearing details:
2010.
Sydney:
19 January, 4 & 18 February.
1 Exhibit J9, PN20.
2 Transcript PN861.
3 Transcript PN865.
4 Transcript PN960.
5 Transcript PN1126-1131.
6 Exhibit J8 – Statement of Dr Graham Hall PN126-128.
7 Exhibit J9 – Statement of Dr Kipling Walker PN19.
8 Transcript PN2247.
9 (1995) 62 IR 371 at 373.
10 Exhibit J3 – Statement of Paul Di Pietro PN 102.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR994958>
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