Cammui Tunks v Commonwealth of Australia (acting through and represented by the Department of Defence)

[2015] FWC 2398

[2015] FWC 2398 [Note: An appeal pursuant to s.604 (C2015/3710) was lodged against this decision - refer to Full Bench decision dated 10 September 2015 [[2015] FWCFB 6246] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cammui Tunks
v
Commonwealth of Australia (acting through and represented by the Department of Defence)
(U2014/7902)

DEPUTY PRESIDENT KOVACIC CANBERRA, 7 APRIL 2015

Application for relief from unfair dismissal - harsh, unjust or unreasonable.

[1] On 16 June 2014 Mrs Cammui Tunks (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Department of Defence (Defence - the Respondent) on 27 May 2014 was harsh, unjust or unreasonable.

[2] The application was heard on 20 October 2014, with directions issued following that hearing for the filing of written closing submissions (with the Applicant’s closing submission in reply to be lodged by close of business on 21 November 2014).

[3] At the hearing, Mr Jason Moffett appeared with permission for Mrs Tunks, while Mr Trent Glover appeared with permission for Defence. Mrs Tunks gave evidence on her own behalf. Mr Kelly Ringering, an Acting Assistant Director in Defence’s Directorate of Conduct, Performance and Probation (CPP), and Ms Jacqueline Stores, also an Acting Assistant Director in the CPP, gave evidence for the Respondent.

[4] For the reasons set out below, I have found that Mrs Tunks’ termination was not harsh, unjust or unreasonable and therefore dismiss the application.

Background

[5] Mrs Tunks commenced working in Defence in March 1998. At the time of her dismissal, Mrs Tunks was an Executive Level 1 employee working in the Cadet Reserve and Employer Support Division (CRESD) of Defence.

[6] Mrs Tunks’ employment was uneventful until December 2012 when there was an incident with her then manager, Mr Patrick Foley. The incident resulted in Mrs Tunks taking a period of stress related leave.

[7] On 8 April 2013 Ms Glynn commenced as Mrs Tunks’ supervisor. Shortly thereafter Mrs Tunks lodged a complaint about Ms Glynn’s behaviour towards her. The complaint was the subject of a ‘quick assessment’ by Ms Colleen Avis who concluded in May 2013 that the complaint was not substantiated and did not warrant further investigation 1.

[8] In late July 2013 Mrs Tunks received performance feedback from Ms Glynn which was to the effect that Mrs Tunks was not performing to the standard expected. This resulted in a further period of stress related leave in August 2013. Also in late July 2013, Mrs Tunks notified Commodore Morrison, the Deputy Head of CRESD, of further concerns regarding Ms Glynn. Again the concerns were investigated with one of the recommendations being that no further investigation was warranted 2.

[9] On 14 August 2013, Mrs Tunks made a workers’ compensation claim which was subsequently rejected by Comcare. At the time of hearing Mrs Tunks’ unfair dismissal application, her workers’ compensation claim was before the Administrative Appeals Tribunal.

[10] In early September 2013 Mrs Tunks met with Commodore Morrison to discuss her performance assessment. In that meeting, the performance assessment was confirmed. This resulted in Mrs Tunks being absent from work on another period of stress related leave.

[11] During this period of absence Defence referred Mrs Tunks to Dr Hundertmark, a consultant psychiatrist, for an independent medical assessment. Dr Hundertmark’s report of 26 September 2013 stated, inter alia, that:

“... There is a short-term history of difficulty with supervisors related to performance management ... It is suggested that she does possess a small amount of work capacity and might gradually begin a graded return to the workplace, although there will need to be both mediation and subsequently mediated performance review sessions with the previous supervisor. From a pragmatic perspective, it may well be appropriate to move her to a new supervisor but it is understood that there are limited opportunities for this to occur within the Department.” 3

[12] Dr Hundertmark’s assessment further stated that:

“It is my opinion that Ms Tunks currently possesses 0.2 FTE capacity for work. It is my opinion that engaging with her department for these hours will assist in breaking down phobic avoidance of the workplace. It is my opinion that or the first four weeks those hours should not involve direct work contact with Ms Glynn.” 4

[13] At about the same time Comcare referred Mrs Tunks to another consultant psychiatrist, Dr Zsadanyi, for assessment in the context of her workers’ compensation claim. Dr Zsadanyi’s report of 15 October 2013 stated among other things that:

“Were Ms Tunks to be found alternate employment in a different branch and/or building, she would probably be able to return to work in a full time capacity without any restrictions.” 5

[14] Mrs Tunks returned to work in mid-October 2013 under a Graduated Return to Work Schedule (GRTWS) which stated that “For the first four weeks there should be no direct contact with the previous supervisor.” 6 Consistent with that GRTWS, Mrs Tunks reported to a different supervisor, Ms Linda Jelfs. The GRTWS was updated in mid-November 20137 with the limitations on contact with Ms Glynn retained.

[15] On 5 December 2013 Mrs Tunks was confronted by Ms Glynn in the absence of Ms Jelfs. Mrs Tunks was shaken by this incident and left work shortly thereafter. The following day, Mrs Tunks was declared unfit for work for the period 5 to 19 December 2013 (inclusive) 8. Mrs Tunks never returned to work in Defence after this incident.

[16] Set out below in dot point form are key events that ensued.

• On 19 December 2013 Mrs Tunks applied for long service leave (LSL) for the period 6 January to 21 March 2014. The application for LSL was rejected by Commodore Morrison on 20 December 2013.



• Mrs Tunks made a second application for LSL for this period on 6 January 2014. The application was accompanied by a medical certificate from her general practitioner, Dr Rososinski, declaring that Mrs Tunks was unfit to work for the period and annotated “Supporting long service leave request.” 9Mrs Tunks was advised later that day that her application had been approved by Commodore Morrison.



• A second appointment with Dr Hundertmark was made by Defence in February 2014 for the purpose of assessing Mrs Tunks’ fitness for duty. In his report of 26 February 2014 Dr Hundertmark, among other things, states:

“It is my opinion that Ms Tunks is fit for a return to the workplace. A return to work program will be outlined below...

It is suggested that she initially return at two days per week and build up to half-time work over a period of eight weeks. Over this time, she should work under another supervisor. During this time, she should have three sessions of mediation with Gemma [Ms Glynn] and with the support of her psychologist. If necessary, there should be another attendee at the mediation meeting. That person would be from Defence, as another supervisor with whom Ms Tunks is happy to work with.” 10

• Defence subsequently sought clarification of aspects of Dr Hundertmark’s 26 February 2014 report, with Dr Hundertmark’s response provided on 7 March 2014 11.



• Around this time, Defence engaged a workplace rehabilitation provider, Advanced Personnel Management (APM), to develop a graduated return to work program for Mrs Tunks.



• On 13 March 2014 Mrs Tunks applied for leave without pay (LWOP) for the period 24 March to 12 September 2014. Attached to the application was a medical certificate from Dr Rososinski declaring that Mrs Tunks “is fit for modified duties, with limitations specified in Section 2, from 13/3/2104 to 12/9/2014.” 12 The certificate was annotated “To support leave without pay. To work in different environment as interim measure ...”13



• Commodore Morrison rejected Mrs Tunks’ application on 17 March 2014 14.



• On 19 March 2014 Ms Collard of APM contacted Mrs Tunks to seek clarification of her intention to return to work at the end of her period of LSL. Mrs Tunks advised Ms Collard that she would not be returning to work based on her current medical certificate which certified her as unfit for work until September 2014 and that she had been directed by her solicitors to comply with that certificate 15.



• On 20 March 2014 Mrs Tunks’ solicitors wrote to Commodore Morrison regarding his decision to reject her recent LWOP application. The letter mentioned that Mrs Tunks had an appointment with a consulting psychiatrist, Dr Knox, on 4 April 2014 and that, when received, a copy of his report would be forwarded to Defence in support of a request that the decision to refuse LWOP be reconsidered 16.



• On 11 April 2014 Commodore Morrison responded to Mrs Tunks’ solicitors advising that, given the impending appointment with Dr Knox, he had approved LWOP for Mrs Tunks for the period 24 March to 30 April 2014 (Mrs Tunks’ LWOP was subsequently extended on a number of occasions, with the last extension being until 22 May 2014). In that letter, Commodore Morrison foreshadowed that Dr Knox’s report, when received, would be provided to Dr Hundertmark who would be asked to provide a supplementary assessment that considered that report and the relevance of Dr Hundertmark’s earlier recommendations. Further, the letter also foreshadowed that in preparation for Mrs Tunks potential return to work it was planned that she would be reporting to Ms Avis 17.



• On 15 April 2014 Mrs Tunks’ solicitors wrote to Commodore Morrison requesting that he reconsider the decision not to grant Mrs Tunks LWOP in the light of Dr Knox’s report (that report had been forwarded to Mr Stephens, the Rehabilitation Case Manager assigned to Mrs Tunks by Defence). Dr Knox’s report stated, inter alia:

“3. ... It is unwise for Dr Hundertmark, in my opinion, to press Mrs Tunks to attempt mediation with Ms Glynn, when practicality indicates that there will not be mediation on account of the power hierarchy within Defence, with your client being expected to be the one to make adjustments, no doubt while other parties feel quite supported and justified in their perspective...

My recommended treatment for your client is to remain in the care of her treating professionals and to avoid any return to the Department of Defence.

4. I believe that Mrs Tunks does likely have a good prognosis providing she is able to separate from the injurious environment with the Department of Defence, and find other employment ...” 18

• On 6 May 2014 Dr Hundertmark’s supplementary assessment was provided to Defence. Among other things it stated:

“... It remains my view that it is in her best interests to make a slow graded return and have mediated support to break down her fears and avoidances.

There is no need for her to work directly to Ms Glynn in the future. If the worker can make a return to Defence as a whole her rehabilitation will be nearly complete. She needs to be able to tolerate the concept of working in the same building as Ms Glynn. However if she does not engage in a return there is the risk of phobic avoidance generalising for her and interfering with her activities in the general community.” 19

• On 8 May 2014 Ms Collard advised Mr Stephens that she had contacted Mrs Tunks regarding a possible return to work the following week and had explained the details of the proposed graduated return to work program, including the proposed supervisor. Ms Collard further advised that Mrs Tunks had indicated that she was unable to consider the offer and was unable to return to that work location. At Mrs Tunks suggestion Ms Collard also contacted Mrs Tunks’ solicitors. Mr Stephens forwarded Ms Collard’s email to Ms Debbie Booth, the Assistant Director, Business and Governance in CRESD, copied to Ms Stores stating:

“It is fairly clear that Cammui will not be returning to work despite Dr Hundertmark’s advice. It would appear that we are left with no other option than to direct her back to work.

Please proceed with the directions letter.” 20

• On 9 May 2014 Commander Morrison wrote to Mrs Tunks directing her to return to work on 15 May 2014. The letter also stated that a failure to comply with the direction may result in the matter being referred to the CPP for possible further action. A copy of Dr Hundertmark’s supplementary assessment of 6 May 2014 was attached to the letter.



• On 13 May 2014 Mr Tunks emailed a medical certificate and application for LWOP for the period 12 May to 13 September 2014. The application was rejected and Mr and Mrs Tunks advised that no further leave applications would be accepted and that Mrs Tunks was expected to return to work on 15 May 2014.



• On 14 May 2014 Mrs Tunks’ solicitors wrote to Commodore Morrison describing his direction of 9 May 2014 as “unreasonable” and stating, among other things, that “Our client will follow the advice of her medical practitioners. She will not return to work with you. She cannot ...” 21



• Mr Ringering responded to that letter on 19 May 2014 22. In that response Mr Ringering invited Mrs Tunks to provide any further material for his consideration by midday on 26 May 2014. No further information was provided.



• Also on that day, Mr Ringering wrote to Mrs Tunks directing her to return to work on 22 May 2014 23. The direction letter also foreshadowed the likelihood of Mrs Tunks’ employment being terminated should she fail to comply with the direction. Mrs Tunks did not comply with the direction.



• On 23 May 2014 Ms Stores wrote to Mrs Tunks stating that she was expected to return to work on 27 May 2014 and reiterating that her employment may be terminated if she failed to do so 24.



• On 27 May 2014 Mr Ringering wrote to Mrs Tunks advising that he was terminating her employment under s.29(c) of the Public Service Act 1999 (PS Act) for non-performance of duties with the termination to take effect at the close of business on that day 25.

Relevant provisions of the Defence Enterprise Collective Agreement 2012-2014

[17] The Defence Enterprise Collective Agreement 2012-2014 26 (DECA) provides at clause I7 - Glossary when defining the term Medical certificates and other supporting material:

“In the circumstance where a medical certificate provided by an employee’s treating medical practitioner or specialist conflicts with that obtained from a Defence-appointed medical practitioner, where there is consultation with the case manager, the latter will prevail.”

Relevant provisions of the Defence Workplace Relations Manual

[18] Chapter 14 Part 4 Section 5 of the Defence Workplace Relations Manual (DWRM) deals with the issue of disputed medical evidence. It states the following at clauses 14.4.5.6, 14.4.5.8 and 14.4.5.10:

“Note: In the circumstance where a medical certificate provided by an employee s [sic] treating medical practitioner or specialist conflicts with that obtained from a Defence-appointed medical practitioner, and where there is consultation with the case manager, the latter will prevail.” 27 [Underlining added]

Clauses 14.4.5.1 and 14.4.5.3 do not include the underlined text and with clause 14.4.5.4 include the word “employee’s” in the first line (as opposed to what appears above).

[19] Further, Chapter 6 Part 3 Section 3 of the DWRM deals with the issue of failure to return to work. It states the following at clause 6.3.3.3:

“Employees who fail to return to work without permission or reasonable excuse are not performing their duties for which they are employed ...

In situations where an employee fails to return to work and following measures appropriate to the circumstances of the absence, action may be taken to terminate employment under s29(1) of the Public Service Act 1999 (PS Act) on grounds of non-performance of duties.” 28

Relevant provisions of the PS Act

[20] Section 29 of the PS Act deals with termination of employment of Australian Public Service employees. The relevant provisions of s.29 are set out below:

“29 Termination of employment

(1) An Agency Head may at any time, by notice in writing, terminate the employment of an APS employee in the Agency...

(3) For an ongoing APS employee, the following are the only grounds for termination:

(a) ...
(c) non-performance, or unsatisfactory performance, of duties; ...”

The Applicant’s submissions

[21] Mrs Tunks submitted that at the time she was dismissed there was a body of medical evidence that supported the proposition that she was unwell and should not return to work. It was also submitted that Mrs Tunks was not physically or psychologically capable of returning to work.

[22] Mrs Tunks further submitted that in all the circumstances, particularly where she was significantly suffering from the effects of a psychological injury, her dismissal was harsh, unjust and unreasonable.

[23] As to remedy, Mrs Tunks sought reinstatement to the position she held immediately before her dismissal together with compensation covering the period from her dismissal to her reinstatement or, in the absence of reinstatement, until she is able to obtain comparable employment.

The Applicant’s evidence

[24] In her witness statement 29 Mrs Tunks provided a chronology of events over the period from December 2012 until her dismissal on 27 May 2014. That chronology is consistent with that outlined above at paragraphs [5] to [16] above. Particularly noteworthy aspects of Mrs Tunks evidence are that:

(i) when she returned to work in October 2013 after a period of stress related leave both her medical certificate and GRWS 30 specified that she not to have contact with her previous supervisor, Ms Glynn, with the medical certificate also stating that Mrs Tunks was to “work for different supervisor and in different location”31;
(ii) despite this Ms Glynn made contact with Mrs Tunks on several occasions, most notably on 5 December 2013 32;
(iii) Mrs Tunks considered Ms Avis, who she had been advised she would be reporting to when she returned to work in late March 2014, to be unsympathetic to her and part of the group which had supported Ms Glynn 33;
(iv) she had no confidence that Ms Glynn “would not continue to persecute me directly” 34;
(v) no explanation was provided to Mrs Tunks as to why she could not continue to work under Ms Jelfs who she worked well with 35;
(vi) she considered Dr Hundertmark’s proposal for mediation with Ms Glynn to be unrealistic 36;
(vii) in April 2014 she still felt unable to attend her workplace and was anxious and depressed about her situation, noting that both Dr Knox and her general practitioner were of the view that she should not return to that workplace 37;
(viii) she disputed that when contacted by Ms Collard on 8 May 2014 she said that she would not return to work, deposing that she said words to the effect “I cannot go back to the same building at this time as I am not well enough” 38; and
(ix) Ms Collard, when contacted by Mrs Tunks’ treating psychologist, Dr Harmer, on 15 May 2014 stated that the graduated return to work schedule she had developed for Mrs Tunks was not for discussion 39.

[25] Mrs Tunks’ viva voce evidence was that:

(i) in January 2013 she raised concerns about being unfairly treated and being targeted by Ms Glynn, with those concerns the subject of a quick assessment which found nothing 40;
(ii) she had a meeting with Ms Glynn on 29 July 2013 where Ms Glynn, who was her manager at the time, expressed the view that Mrs Tunks was not performing up to the standard expected which resulted in Mrs Tunks going on stress related leave and subsequently lodging a workers’ compensation claim 41;
(iii) after that incident she returned to work on a graduated return to work plan which provided that Ms Glynn was to have no contact with Mrs Tunks 42;
(iv) an incident occurred on 5 December 2013 where she was confronted by Ms Glynn in the absence of her then supervisor, Ms Jelfs, resulting in Mrs Tunks leaving the workplace and seeing her doctor who declared her unfit for work 43;
(v) Dr Hundertmark’s opinion was different to that of the other medical assessments in this case 44;

(vi) based on past experience, she had no confidence in Defence not exposing her to precisely the same environment which had caused her psychological injury 45;
(vii) with regard to the first direction to return to work, she could not do so as she did not feel safe, adding that she only discussed her decision not to return to work with her general practitioner who advised that she should not return in the absence of changes to the work environment with those changes being not to work with Ms Glynn again and working in another building or area of Defence 46;
(viii) she could not return to the same workplace as Defence did not make any effort to welcome her back or to ensure that she would be safe when she returned 47;
(ix) under the graduated return to work plan proposed in May 2014 she could easily have run into Ms Glynn in the workplace, e.g. when going to the toilet 48;
(x) since being dismissed she had earned a total of $3600.25 49;
(xi) she could not return to her work location if there was any prospect of Ms Glynn working in the same location 50;
(xii) her requirements for a return to work were that she work in a different location to her substantive position and that she not report to or come into contact with her substantive supervisor, Ms Glynn 51;
(xiii) she did not comply with the second direction to return to work despite the letter addressing both of her requirements regarding a return to work 52; and
(xiv) she did not accept that the statement in the second direction letter that Defence will as far as practicable “ensure that Ms Gemma Glynn will make no contact with you [i.e. Mrs Tunks]” 53 was an undertaking as there was no guarantee or assurance that Ms Glynn would not contravene the return to work plan as she had previously done54.

The Respondent’s submissions

[26] Defence submitted that Mrs Tunks’ application should be dismissed as her employment was terminated for a valid reason in circumstances that were not harsh, unjust nor unreasonable.

[27] In its submission Defence chronicled the events leading up to Mrs Tunks’ dismissal, including Mrs Tunks’ complaint against Ms Glynn, relevant provisions of the DECA and DWRM, the conflicting medical evidence and Mrs Tunks’ failure to return to work. In particular, Defence submitted that:

(i) it had complied with its obligations under the DWRM at all times in assisting Mrs Tunks return to work;
(ii) following the second and third medical reports by Dr Hundertmark, Mrs Tunks had declined to participate in the development of a graduated return to work program and mediation sessions seeking to address the issues between her and Ms Glynn;
(iii) it was reasonable for it to rely on the body of medical evidence that existed to support the proposition that Mrs Tunks could return to work on a graduated return to work plan;
(iv) after the second direction to return to work was issued to Mrs Tunks, she did not provide any additional medical evidence which would explain her absence and/or her inability to return to work on a graduated return to work plan; and
(v) the decision to terminate Mrs Tunks’ employment was a sound and valid decision based on her continued refusal to attend work and participate in a return to work plan.

The Respondent’s evidence

[28] Mr Ringering attested 55 that he first became aware of Mrs Tunks’ case on or around 16 May 2014 when Ms Stores approached him to ask whether he was able to undertake the delegate’s role in respect of an action concerning Mrs Tunks’ failure to return to work. Mr Ringering further attested that he agreed to perform the role and was then briefed by Ms Stores regarding the matter. Mr Ringering attested that in that briefing, Ms Stores alerted him to the conflicting medical evidence in the case. On 19 May 2014, having considered the material on Mrs Tunks’ file, Mr Ringering stated that he responded to a letter of 14 May 2014 from Mrs Tunks’ solicitors and separately wrote to Mrs Tunks directing her to return to work on 22 May 2014.

[29] Mr Ringering attested that when he was informed that Mrs Tunks had failed to present for work as directed he requested that a draft termination notice be prepared. He further attested that in reviewing the draft termination notice he was satisfied that Defence had complied with its policies, drawing on the information provided by Mrs Tunks’ solicitors and, consistent with the DECA and DWRM, relying on the medical assessment of Dr Hundertmark over Dr Knox. Mr Ringering also attested that there was no reason for Mrs Tunks not to return to work given that Defence had agreed to move Mrs Tunks to another location and have her report to another supervisor. Against that background, he decided to terminate Mrs Tunks’ employment for non-performance of duties.

[30] Under cross examination Mr Ringering:

(i) stated that he did not recall reading the medical assessment prepared by Dr Knox 56;
(ii) disagreed that the direction he issued to Mrs Tunks to return to work was highly unreasonable as the supplementary medical statement from Dr Hundertmark not only confirmed that Mrs Tunks was fit for a graduated return to work but also that it would also be in her best interests to return to work as soon as practical 57;
(iii) acknowledged that in Mrs Tunks’ opinion she had a reasonable excuse not to be at work 58;
(iv) recalled that discussions with Mr Stephens, the Rehabilitation Case Manager, were undertaken by Ms Stores 59;
(v) stated that he did not recall any advice from Mr Stephens saying not to proceed down the path he determined 60;
(vi) responded that he did not have any direct conversations with the Mr Stephens, Mrs Tunks or her general practitioner 61;
(vii) accepted the proposition that any direction he issued needed to be consistent with any graduated return to work plan that was currently in effect 62;
(viii) described the DWRM as an internal policy document which expands on the DECA 63;
(ix) indicated that at the time he issued the return to work direction to Mrs Tunks he was aware that her general practitioner did not support her returning to work 64;
(x) stated that he did not recall any comment from anyone regarding the graduated return to work plan 65; and
(xi) attested that he was not aware of any comment coming from Mr Stephens that conflicted with Dr Hundertmark’s supplementary medical assessment 66.

[31] In her witness statement 67, Ms Stores deposed that she first became involved with Mrs Tunks in September 2013 in respect of a Code of Conduct referral regarding Mrs Tunks’ behaviour in the workplace. That matter, she attested, was finalised with Mrs Tunks being issued a warning about her behaviour in January 2014. She next became involved with Mrs Tunks in late March 2014 when she was asked to review a draft directions letter which was to be emailed to Mrs Tunks directing her to return to work.

[32] Ms Stores further attested that on or around 25 March 2014 she met with Mr Stephens and a number of staff from Defence rehabilitation and workplace relations areas. The outcome of that meeting was that the draft directions letter was not issued and that Mrs Tunks’ leave was extended by five weeks. Ms Stores also stated that on 8 May 2014, Ms Collard again contacted Mrs Tunks and her solicitor and was advised by both that Mrs Tunks would not be returning to work on 9 May 2014. Ms Stores then outlined some of the events that followed. Of note, Ms Stores attested that on 22 May 2014 she emailed Mrs Tunks stating, inter alia, that “You are now considered to be on unauthorised leave as approval for leave without pay (LWOP) ceased yesterday.” 68 The email also encouraged Mrs Tunks to provide Mr Ringering with any further material for his consideration by midday on 26 May 2014 and stated “... that if you fail to return to work by Monday, 26 May in accordance with the Graduated Return to Work Plan (GRTW) then your employment may be terminated with effect Tuesday, 27 May 2014 under section 29(3)(c) of the Public Service Act for non-performance of duties.”

[33] Key aspects of Ms Stores’ evidence under cross examination were that:

(i) the DWRM is a policy document which she must follow at all times in the course of her work 69;
(ii) the graduated return to work plan for Mrs Tunks was neither signed by Mrs Tunks nor endorsed by her general practitioner, as required by the DWRM, with Ms Stores unable to explain the reason for this 70;
(iii) she did not ask Mrs Tunks’ general practitioner what he thought should occur in respect of Mrs Tunks returning to work and could not recall who, if anyone, had asked that question 71;
(iv) she did not accept the proposition that had Mrs Tunks returned to work around December 2013 that she could have been compromising her safety 72;
(v) she was unable to indicate whether Defence was in a position to provide an assurance that it would ensure in so far as is practicable that Ms Glynn would not approach Mrs Tunks should the latter return to work 73;
(vi) she did not seek to review all of the medical evidence in this case 74;
(vii) she had a number of discussions with Mr Stephens about issues such as where things were up to and the like 75;
(viii) in circumstances where there are conflicting medical reports, it was the delegate who made the decision to rely on the medical report commissioned by Defence 76;
(ix) she rejected the assertion that Defence could have done more to assist Mrs Tunks in returning to work, stating that she considered that Defence did quite a bit to assist Mrs Tunks’ return to work 77; and
(x) Mr Stephens had preferred Dr Hundertmark’s medical assessment over the others in this case as evidenced by his email 78 of 8 May 201479.

The statutory framework

[34] The Fair Work Commission (the Commission) exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case it was not disputed that Mrs Tunks is a person who is protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss.385 and 387 which read as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if 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.

387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

[35] There is no dispute that Mrs Tunks was dismissed, so s.385(a) of the Act is satisfied. Mrs Tunks contends that her termination was harsh, unjust or unreasonable, so s.385(b) is relevant. Defence is not a small business employer, therefore s.385(c) is not relevant. The termination was not a case of redundancy, so s.385(d) does not apply. Therefore, in determining whether Mrs Tunks was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable as per s.385(b).

Was the dismissal harsh, unjust or unreasonable?

[36] In considering whether a dismissal was harsh, unjust or unreasonable, the Act requires the Commission to have regard to the criteria set out in s.387. With regard to the criteria set out at s.387(c) to (e), it was not disputed that Mrs Tunks was notified of the reason for her dismissal, that she had an opportunity to respond, that she had not been unreasonably refused a support person and that her dismissal did not relate to unsatisfactory performance. As to the criteria at s.387(f) and (g), it was again not disputed that Defence is a large employer and that therefore size of the enterprise and the issue of dedicated human resources staff were not relevant considerations in this case. Accordingly, I find that the criteria at s.387(c) to (g) are neutral considerations and will therefore focus on the criteria at s.387(a) and s.387(h). These two criteria relate to whether there was a valid reason for the dismissal and any other matters which the Commission considers relevant.

(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)

[37] Mrs Tunks submitted that there was no valid reason for her dismissal as:

(i) she had a reasonable excuse pursuant to clause 6.3.3.3 of the DWRM for not performing her duties;
(ii) there was no evidence that any reasonable consultation had occurred with the Rehabilitation Case Manager with respect to preferring the medical report from Dr Hundertmark over the medical certificate from her general practitioner certifying her unfit for duty;
(iii) the DWRM imposes an obligation on Mrs Tunks to take reasonable care for her own safety; and
(iv) the graduated return to work plan which formed a component of the direction issued to Mrs Tunks to return to work was not signed by any of the stakeholders involved in the matter.

[38] Defence submitted that there was a valid reason for Mrs Tunks’ dismissal related to her capacity or conduct. Defence contended that the relevant capacity or conduct considerations were Mrs Tunks’ absence from work since August 2013 for all but two brief periods and her failure to comply with two written directions to return to work. Accordingly, consistent with clause 6.3.3.3 of the DWRM, Defence considered that Mrs Tunks was not performing the duties for which she was employed. Defence further submitted that, in those circumstances, s.29(3)(c) of the PS Act permitted Defence to terminate Mrs Tunks’ employment for non-performance of duties.

[39] In Rode v Burwood Mitsubishi (Rode’s Case) 80a Full Bench of the then Australian Industrial Relations Commission (AIRC) canvassed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996 citing Selvachandran v Peteron Plastics Pty Ltd81 (Selvachandran). The following is an extract from the Full Bench’s decision in Rode’s Case:

“[17] In relation to the meaning of “valid reason” the following remarks of Northrop J in Selvachandran v Peteron Plastics Pty Ltd are relevant:

“Section 170DE(1) refers to a ‘valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective ‘valid’. A reference to dictionaries shows that the word ‘valid’ has a number of different meanings depending on the context in which it is used. In The Shorter Oxford Dictionary, the relevant meaning given is: ‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In The Macquarie Dictionary the relevant meaning is ‘sound, just or wellfounded; a valid reason’.

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or wellfounded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, when considering the construction and application of a s 170DC.”

[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).

[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.”

[40] In this case, it is not disputed that there was conflicting medical evidence. In those circumstances, the DECA provides that “where a medical certificate provided by an employee’s treating medical practitioner or specialist conflicts with that obtained from a Defence-appointed medical practitioner, where there is consultation with the case manager, the latter will prevail.”

[41] Mrs Tunks contended that there was no evidence that any reasonable consultation had occurred with the Rehabilitation Case Manager with respect to preferring the medical report from Dr Hundertmark over Mrs Tunks’ medical certificate certifying her unfit for duty (see paragraph [37](ii) above). However, Mr Stephens’ email of 8 May 2014 where he tells Ms Brooks to proceed with the direction letter in the light of Ms Collard’s advice regarding her discussion with Mrs Tunks earlier that day supports a finding that he as the Rehabilitation Case Manager preferred Dr Hundertmark’s medical assessment. Accordingly, in accordance with the DECA it was open to Defence to rely on Dr Hundertmark’s medical assessment.

[42] Mrs Tunks also submitted that the graduated return to work plan which formed a component of the direction issued to her to return to work was not signed by any of the stakeholders involved in the matter (see paragraph [37](iv) above). However, this is not surprising in circumstances where Ms Collard spoke to Mrs Tunks about the plan on 8 May 2014 and was informed by Mrs Tunks that she was unable to consider the offer and that Ms Collard should discuss the matter with her solicitor (see paragraph [16] above). Also noteworthy is that neither of the GWRS’s 82 which were in place in late 2013 were signed by Dr Rososinski. In those circumstances, the absence of a signed graduated return to work plan is a neutral consideration.

[43] Further, the evidence indicates that Mrs Tunks’ two key requirements for a return to work, as outlined by Mrs Tunks under cross examination (see paragraph [25](xii) above), were reflected in the proposed graduated return to work plan developed by Ms Collard. While what was proposed by Defence did not go far enough for Mrs Tunks, the evidence supports a finding that Defence was alive to Mrs Tunks’ views.

[44] Under cross examination Mrs Tunks emphasised that the undertaking provided by Defence regarding Ms Glynn not having contact with Mrs Tunks was not a guarantee. However, it is doubtful that any employer could give a cast iron guarantee that there will be no contact between two employees. In the circumstances, Defence’s undertaking that it will take all reasonable steps to ensure that as far as practicable Ms Glynn does not have contact with Mrs Tunks was reasonable. Also relevant in this regard is Dr Hundertmark’s comment in his supplementary assessment of 6 May 2014 that Mrs Tunks “needs to be able to tolerate the concept of working in the same building as Ms Glynn” (see paragraph [16] above).

[45] Finally, Mr Ringering’s letter of 19 May 2014 to Mrs Tunks’ solicitors invited Mrs Tunks to provide any further material for his consideration by midday on 26 May 2014. No further information was provided.

[46] Taken together, the above analysis supports a finding that there was a valid reason for Mrs Tunks dismissal and, drawing on the language in Selvachandran, that the reason was not “capricious, fanciful, spiteful or prejudicial.”

(b) Any other matters that FWC considers relevant

[47] Mrs Tunks submitted that one of the most significant factors in the determination of the application was the fact that she was suffering a psychological injury which she contends was caused by Defence. It was further submitted that consideration of her psychological injuries and the extent to which they incapacitated her should be at the forefront of the Commission’s consideration of whether or not she was unfairly dismissed and given a “fair go all round” consistent with the objects of Part 3.2 of the Act.

[48] On the other hand, Defence submitted that the potential impact of any psychological injury being experienced by Mrs Tunks was plainly taken into account by it as evidenced by several factors. Those factors included Defence having had regard to Mrs Tunks’ own medical evidence, the two fitness for duty assessments undertaken by Dr Hundertmark, Mrs Tunks’ requirements regarding her return to work, incorporating those requirement into the proposed return to work plan and the giving of two directions to Mrs Tunks to return to work. This, Defence submitted, plainly demonstrated that it was at all times fair and reasonable.

[49] The evidence in this case indicates that Defence was mindful of any psychological injury experienced by Mrs Tunks. For instance in September 2013 it referred Mrs Tunks to Dr Hundertmark for assessment after several instances where she went on stress related leave. Further, it referred Dr Knox’s report to Dr Hundertmark for consideration, particularly as to the relevance of Dr Hundertmark’s earlier recommendations. Beyond that, as outlined above, Defence did accommodate Mrs Tunks’ two key requirements for a return to work in the proposed graduated return to work program developed in May 2014. Also, Mr Stephens wrote to Dr Rososinski on 11 March 2014 83 providing copies of Dr Hundertmark’s reports of 19 February and 7 March 2014. That letter invited Dr Rososinski to provide comments if he disagreed with any aspects of Dr Hundertmark’s reports or the proposed course of action. It appears that Dr Rososinski did not respond. Taken together, the evidence suggests that Defence wanted to facilitate a return to work by Mrs Tunks.

[50] In Ulla-Maija Dunkerley v Commonwealth of Australia (Department of Industry, Innovation, Science, Research and Tertiary Education) 84 (Dunkerley) a Full Bench of the Commission found that it was open to and correct for the Commissioner to find that there was a valid reason for the dismissal in circumstances where:

“[25] The evidence before the Commissioner demonstrated that the Applicant had refused to participate in a return-to-work process, even though there was no sound medical reason for such refusal. Furthermore, the Applicant failed to return to work despite efforts by the Department to facilitate her return in such a way as to address her concerns, and even though she was aware that dismissal would be the likely consequence.”

[51] While there are some differences in this case from those existing in Dunkerley, the evidence in this case suggests that Mrs Tunks did not engage in any meaningful way in developing a graduated return to work program. While I note Mrs Tunks’ evidence that the proposed graduated return to work program was put as not for discussion (see paragraph [24](ix) above), there is evidence that indicates that Mrs Tunks did not wish to discuss the proposed return to work program. For instance, it is not disputed that when Ms Collard contacted Mrs Tunks on 8 May 2014 to discuss the proposed graduated return to work program she was advised by Mrs Tunks that she was unable to consider the offer (see paragraph [16] above). The evidence further suggests that Mrs Tunks was only prepared to return to work on her terms, albeit that view was reinforced by both Dr Knox and Dr Rososinski. For instance, an email from Mrs Tunks’ solicitors to Ms Booth on 16 May 2014 stated, among other things:

“Please note my client remains willing to participate in any return to work plan carried out in a reasonable manner and in accordance with her medical advice.” 85 [Underlining added]

[52] Also relevant in this regard is clause 14.4.1.11 of the DWRM which deals with rehabilitation and returning to work and states, among other things, that in a return to work process an employee has a responsibility to “actively participate on all aspects of the return to work/rehabilitation process.” 86

[53] Mrs Tunks’ general lack of engagement in the return to work process is in my view a relevant consideration in determining whether or not her dismissal was harsh, unjust or unreasonable and weighs against a finding that the dismissal was harsh, unjust or unreasonable.

[54] One other relevant consideration is Mrs Tunks’ length of service. As previously noted, Mrs Tunks had been an APS employee working in Defence for over 15 years. In this regard, Defence’s efforts to facilitate Mrs Tunks’ return to work, to accommodate her injury and circumstances was entirely appropriate for someone with her lengthy service. As such, I do not consider that Mrs Tunks’ length of service weighs in favour of a finding that the dismissal was harsh, unjust or unreasonable.

Conclusion

[55] Drawing on the above analysis, I find that there was a valid reason for Mrs Tunks’ dismissal and having considered the other criteria set out in s.387 of the Act, I do not consider that Mrs Tunks’ dismissal was harsh, unjust or unreasonable. Accordingly, I dismiss the application. An order to this effect is attached at PR562845.

Appearances:

J Moffett of Counsel for the applicant.

T Glover of Counsel for the respondent.

Hearing details:

2014

Canberra:

October 20.

 1   Respondent’s Outline of Submissions at paragraphs 2.5-2.7

 2   Ibid at paragraphs 2.8-29

 3   Exhibit M1 at Annexure D at page 4

 4   Ibid at page 5

 5   Exhibit M2 at page 10

 6   Exhibit M1 at Annexure K

 7   Ibid at Annexure M

 8   Ibid at Annexure N

 9   Ibid at Annexure Q

 10   Ibid at Annexure D, 26 February 2014 report at pages 4-5

 11   Ibid at Annexure D, 7 March 2014 letter to Defence.

 12   Ibid at Annexure S

 13   Ibid

 14   Ibid at Annexure T at page 3

 15   Exhibit G2 at Annexure JS-2

 16   Exhibit M1 at Annexure U

 17   Ibid at Annexure Y

 18   Ibid at Annexure W

 19   Exhibit G2 at Annexure JS-9

 20   Ibid at Annexure JS-8

 21   Exhibit M1 at Annexure ZB

 22   Ibid at Annexure ZD

 23   Exhibit G1 at Annexure KR-2

 24   Exhibit M1 at Annexure ZG

 25   Ibid at Annexure ZH

 26   AE893129

 27   Exhibit G1 at Annexure KR-4

 28   Exhibit G2 at Annexure JS-1

 29   Exhibit M1

 30   Ibid at Annexure K

 31   Ibid at Annexure J

 32   Ibid at paragraphs 15-16

 33   Ibid at paragraph 31

 34   Ibid at paragraph 32

 35   Ibid at paragraph 33

 36   Ibid at paragraph 36

 37   Ibid at paragraph 40

 38   Ibid at paragraph 41

 39   Ibid at paragraph 46

 40   Transcript at PN117-127

 41   Ibid at PN128-145

 42   Ibid at PN147-148

 43   Ibid at PN150-158

 44   Ibid at PN219-221

 45   Ibid at PN223-226

 46   Ibid at PN295-302

 47   Ibid at PN324-331

 48   Ibid at PN338-343

 49   Ibid at PN365

 50   Ibid at PN375-396

 51   Ibid at PN499-500

 52   Ibid at PN568-569

 53   Exhibit G1 at paragraph 15 of Annexure KR-2

 54   Transcript at PN644-650

 55   Exhibit G1

 56   Transcript at PN761-766

 57   Ibid at PN839-841

 58   Ibid at PN847

 59   Ibid at PN872

 60   Ibid at PN873

 61   Ibid at PN874-879

 62   Ibid at PN905

 63   Ibid at PN913-914

 64   Ibid at PN925

 65   Ibid at PN931

 66   Ibid at PN954

 67   Exhibit G2

 68   Ibid at Annexure JS-18

 69   Transcript at PN999-1003

 70   Ibid at PN1033-1039

 71   Ibid at PN1040-1041

 72   Ibid at PN1094-1095

 73   Ibid at PN1111-1112

 74   Ibid at PN1129

 75   Ibid at PN1134

 76   Ibid at PN1136

 77   Ibid at PN1203

 78   Exhibit G2 at Annexure JS-8

 79   Transcript at PN1237-1249

 80   Print R4471

 81 (1995) 62 IR 371

 82   Exhibit M1 at Annexures K and M

 83   Ibid at Annexure V

 84   [2013] FWCFB 2390

 85   Exhibit M1 at Annexure ZC

 86   Exhibit G2 at Annexure JS-2

Printed by authority of the Commonwealth Government Printer

<Price code C, PR562844>