Clare McElhinney v Catholic Education Western Australia Limited

Case •

[2022] FWC 341

•

24 May 2022
[2022] FWC 341

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Clare McElhinney
v

Catholic Education Western Australia Limited

(U2021/6487)

DEPUTY PRESIDENT BINET

PERTH, 24 May 2022

Application for an unfair dismissal remedy

  1. On 23 July 2021, Ms Clare Roisin McElhinney (Ms McElhinney) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed from her employment by Catholic Education Western Australia Limited (CEWA).

  1. Ms McElhinney was dismissed from her employment as a teacher at Nagle Catholic College (College) in Geraldton after her recovery from a psychological injury she incurred during a playground incident in which she was hit with an acorn and a ball extended beyond a year.

  1. On 8 September 2021, CEWA filed a Form F3 - Employer’s response to unfair dismissal application stating that it had no jurisdictional objections to the Application.

  1. On 11 October 2021, the parties participated in a conciliation but the matters in dispute could not be resolved.

  1. Taking into account the parties wishes and circumstances, a hearing, rather than a Determinative Conference, was determined to be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Hearing in Perth via video conference to Geraldton on Thursday, 24 February 2022 (Hearing).

  1. Directions for the filing of materials in advance of the Hearing were issued to the parties on 18 October 2021 (Directions).

Permission to be represented

  1. The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.[1]

  1. CEWA sought permission to be represented at the Hearing.

  1. Having considered the submissions of the parties, leave was granted to CEWA to be represented, pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

  2. At the Hearing, Ms McElhinney represented herself and CEWA was represented by Mr Robert French of Counsel.

Evidence

  1. The Directions required the parties to file their witness evidence in chief prior to the Hearing.

  1. In accordance with the Directions, Ms McElhinney filed witness statements setting out the evidence in chief of herself and the following witnesses:

a.Dr Susan Douglas (Dr Douglas) – Dr Douglas is one of Ms McEllhinney’s treating General Practitioners.[2]

b.Ms Kim Weatherston (Ms Weatherston) – Ms Weatherston is Ms McEllhinney’s treating psychologist and a former employee of the College.[3]

c.Ms Stephanie Jane Cremin (Ms Cremin) – Ms Cremin is a teacher at the College and a personal friend of Ms McElhinney.[4]

  1. At the Hearing, Ms McElhinney and Ms Cremin gave further oral evidence and were cross examined by Mr French.  Neither Dr Douglas or Ms Weatherston attended the Hearing and neither were available for cross examination.  This has impacted on the weight which I can attach to their evidence.

  1. In accordance with the Directions, CEWA filed witness statements setting out the evidence in chief its witness Mr Michael Williams (Mr Williams).[5]  Mr Williams also filed a Supplementary Witness Statement which was marked Exhibit R1.  Mr Williams is the Principal of the College.  Mr Williams gave further oral evidence at the Hearing and was cross examined by Ms McElhinney.

  1. The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties prior to the Hearing (DCB). The DCB was admitted at the Hearing as an exhibit and marked Exhibit DCB1. 

  1. A further nine documents were admitted into evidence by consent after the Hearing and marked Exhibit R2:

a.email dated 8 March 2021 from Mrs Robyn Gummery (Ms Gummery), Vice Principal of the College to Ms McElhinney;

b.email dated 10 May 2021 from Ms Gummery to Ms McElhinney;

c.email dated 17 May 2021 from Ms Gummery to Ms McElhinney;

d.email dated 17 May 2021 from Ms Gummery to Ms McElhinney;

e.email dated 28 June 2021 from Ms Gummery to Ms McElhinney;

f.email dated 28 June 2021 from Ms Gummery to Ms McElhinney;

g.email dated 29 January 2021 from Ms Gummery to Ms McElhinney;

h.letter dated 11 November 2019 from Mr Rob Crothers, then Principal of the College to Ms McElhinney; and

  1. document entitled ‘Probationary Teacher Status to Permanent Teacher Status’.

  1. Final written submissions were filed on behalf of Ms McElhinney on 16 March 2022. Final written submissions were filed by CEWA on 9 March 2022.

  1. In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

Background

  1. CEWA oversees the delivery of Catholic education across the Dioceses of Broome, Bunbury and Geraldton and the Archdiocese of Perth.

  1. Ms McElhinney commenced employment with CEWA at the College on 1 January 2018 in a full-time capacity of 38 hours per week in the role of Home Economics Teacher.[6]  Her employment was covered by the Roman Catholic Archbishop of Perth Teachers Enterprise Bargaining Agreement 2015 (Agreement).

  1. On 14 May 2020, while Ms McElhinney was performing playground duty a student (Student A) threw a small stick or acorn which hit Ms McElhinney on the back of the head.  When Ms McElhinney told the student that the incident would be escalated, she says Student A provided a ‘cheeky’ response.  Another student, whom Ms McElhinney believed to be (Student B), then kicked a football which hit her in the back with some force leaving her winded.[7]

  1. Ms McElhinney reported the incidents (May Incident) by email to three staff members Mr Williams, Ms Susan Seward (Ms Seward) and Ms Jacky Patience (Ms Patience) at 12:17pm on 14 May 2020.  In her email, Ms McElhinney stated that she would no longer perform duty in that area.[8] Two replied to her by email.  Ms McElhinney says she was disappointed that none of the staff members spoke to her in person.  Ms McElhinney then reported the incident to her Head of Learning Area, Mr Oliver Murray.  She says she attempted to make an appointment with Mr Williams but was told by his secretary that he had no availability for the next ten days.[9]

  1. I note that Mr Williams replied to Ms McElhinney by email at 1:40pm.  In his email, he expressed that he was sorry that she had an unpleasant experience, that he had discussed the matter with senior staff members and that Ms Seaward would come to see her and deal with the matter.[10]  Ms Seaward went to see Ms McElhinney sometime prior to 1:47pm but could not locate her.  Instead, Ms Seaward sent Ms McElhinney an email at 1:47pm letting her know that Mr Ben Ebsary (Mr Ebsary) had already commenced speaking to the students involved. In the same email, Ms Seaward offered to perform duty alongside Ms McElhinney for several weeks until she regained her confidence.[11] 

“Hi Clare,

I just came down to see you but you weren’t there so I’m emailing so that you know that the incident is being looked at as serious one.

I have an Executive meeting now but Ben is meeting with the students in the group and is speaking with them about the incident. He will then put a sanction in place. He has already spoken with REDACTED and REDACTED. I do just need to check with you that you are 100% sure that it was the 2 boys mentioned who deliberately threw the items at you as we need to convey this to the parents.

With regard to the duty, Ben will move the boys from that area and I will make sure that I am there alongside you the next couple of Thursdays to support you.

I will try and catch up with you first thing tomorrow.”

  1. Ms McElhinney concedes that Mr Ebsary came to speak to her in person before imposing disciplinary action on the students involved.[12]

  1. Ms McElhinney took Monday 17 May 2020 off work.  When she returned to work, the College arranged for a process of ‘restorative justice’ to occur during which one of the boys apologised for kicking the ball and the other insisted that he had not thrown anything.[13]  Both Mr Williams and Mr Ebsary held meetings with Ms McElhinney in relation to the May Incident.[14]

  1. On 19 May 2020, Mr Ebsary followed up with an email providing Ms McElhinney with more information about the disciplinary action taken against the students and encouraging her to contact him if she wanted to discuss anything.[15]

  1. The May Incident was not deemed critical to warrant an external suspension. However, the children involved were given a dentition.  When Ms McElhinney complained that the punishment was not severe enough, Student B was given an internal suspension. [16]

  1. Ms McElhinney continued to teach Student B.  On 8 June 2020, she asked Student B to leave a report he was working on in the classroom to avoid him needing to regularly go to his locker in class time to retrieve it. Ms McElhinney says that the student laughed at her and said:[17]

“I don't know why you argue with me, you will never win”. 

  1. Ms McElhinney says that she felt “empty, frightened and hopeless” as the student had over 200 complaints submitted against him by teachers regarding his behaviour.  Four of these complaints were classified as “critical incidents”.  Of the critical incidents, three involved acts of violence and one was disrespecting a teacher by swearing at her.[18]

  1. Later that day Ms McElhinney went to her general practitioner and was issued a First Certificate of Capacity.  The certificate issued by Dr Fatima Himy (Dr Himy) indicated that Ms McElhinney was unfit for work from 8 June 2020 until 15 June 2020 as she was suffering work-related anxiety resulting from the May Incident.[19]

  1. From 10 June 2020 until 11 June 2021, Ms McElhinney was never certified fit to perform work in excess of 18.5 hours per week.[20]

  1. On 12 June 2020, she asked that the College not contact her until Term 3.[21]

  1. On 3 July 2020, the College hired another teacher on a short-term contract from 20 July 2020 until 28 August 2020 to perform Ms McElhinney’ s duties.[22]

  1. Catholic Church Insurance (CCI), CEWA’s insurer, contacted Ms McElhinney on 22 June 2020 indicating that liability had been accepted for her injuries including liability for weekly payments and allowances.[23]

  1. Ms McElhinney was unhappy with the College’s response to the May Incident and reported the May Incident to Worksafe WA.  On 6 August 2020, Worksafe WA informed the College that it was investigating the May Incident.[24]

  1. On 12 August 2020, the College hired a teacher on a short term contract from 31 August 2020 until 25 September 2020 to perform Ms McElhinney’s duties in her absence.[25]

  1. On 17 August 2020, Dr Himy issued a medical certificate stating that Ms McElhinney had no capacity for work from 17 August 2020 to 14 September 2020.[26]

  1. In late August 2020, Ms McElhinney began paid employment as a children’s swimming teacher.  Mr Williams became aware of this and notified CCI.  Mr Williams says that he had no issue with Ms McElhinney performing this work and was supportive of it. However, Mr Williams had been instructed to advise CCI if he became aware that Ms McElhinney was engaging in paid employment.[27]  CCI determined that the work should be formalised as part of the return to work program.  Ms McElhinney felt this was an intrusion.

  1. On 28 August 2020, Ms Weatherston called Ms McElhinney’s rehabilitation provider Ms Lisa Edington (Ms Edington) and accused the College and CCI of having a bullying culture.[28]  In an email sent the same day, Ms Edington described Ms Weatherston’s tone as aggressive and recalled that during the conversation that Ms Weatherston:[29]

“In essence she accused the school and CCI of continually bullying Clare and treating her like a "recalcitrant child", she went on to described both organisations as conniving, nasty, mean, having total lack of concern, that Catholic organisations have a terrible bullying culture, having taken away Clare feeling safe in the community, big brother dobbing mentality, sending a message they don't want her back.”

  1. On 3 September 2020, Dr Himy issued a medical certificate stating that Ms McElhinney had some capacity for work (6 hours a week) from 21 September 2020 to 25 September 2020.[30]

  1. On 3 September 2020, WorkSafe issued improvement notices 90014958 and 90014959 to the College in relation to breaches of the Occupational Safety and Health Act 1984 (WA).[31] 

  1. In relation to Improvement Notice 90014958 the Worksafe Investigator found that:[32]

“I have formed the opinion that in circumstances that make it likely that the contravention will continue or be repeated, you have contravened section 23K(2) of the Occupational Safety and Health Act 1984 and the grounds for my opinion are: My enquiries with the Principal identified you as the employer of employees who work at this workplace. I was told by the Principal that on 26/05/2020 you received a report of a (perceived) hazard from an employee. The hazard report was in relation to being struck with an acorn and football and was a report of a kind from an employee as described in s20(2)(d). Discussions with the Principal identified that you have not adequately investigated the matter within a reasonable time, determined action, if any, that you intend to take in respect of the matter; and notified the employee of the determination so made.”

  1. Improvement Notice 90014958 required that CEWA:[33]

“Investigate, within a reasonable time after receiving a report of a kind described in s20(2)(d), the matter and determine action, if any, that you tend to take in respect of the matter; and notify the employee of the outcome of the investigation.”

  1. In relation to Improvement Notice 90014958 the Worksafe Investigator found that:[34]

“I have formed the opinion that in circumstances that make it likely that the contravention will continue or be repeated, you have contravened section 19(1) of the Occupational Safety and Health Act 1984 and the grounds for my opinion are: My enquiries with the Principal identified you as the employer of employees at this workplace . I was told by the Principal that employees are sometimes exposed to psychological hazards such as distressing student behaviour. 1 was told by the Principal that staff have not received training on investigating and risk assessing psychological hazards. The lack of adequate investigation and risk assessment training in relation to psychological hazards increases the risk of psychological injury, as employees may continue to be exposed to psychological stress. Based on my experience I have formed the opinion that it is practicable to provide psychological investigation and risk assessment training.”

  1. Improvement Notice 90014958 required that CEWA:[35]

“You are directed to take the following measures: So far as is practicable, provide adequate psychological investigation and risk assessment training to your employees performing psychological investigations and risk assessments. For further guidance, you may refer to the DMIRS' Code of Practice Mentally Healthy Workplaces for Fly-in Fly-out work in Resources and Construction Sectors, WorkSafe WA's Psychologically Safe and Healthy Risk Management Approach Toolkit, Work Health and Safety QLD's Mentally Healthy Workplaces Toolkit and Risk Assessment Tool.”

  1. On 11 September 2020, Ms McElhinney’s rehabilitation provider issued Return to Work and Life Plan 1 (2 to 6 hours a week for swimming lessons) and the Return to Work and Life Plan 2 (6 hours a week teaching at the College from 21 September 2020).[36]

  1. On 13 September 2020, Ms McElhinney’s rehabilitation provider issued a progress report noting that Ms McElhinney was continuing to experience ongoing psychological symptoms. [37]

  1. Mr Williams became aware that Ms Weatherston was treating Ms McElhinney and that Ms Weatherston was previously employed by the College but had her employment terminated abruptly.  He notified CCI in case it posed a conflict of interest.  On 1 October 2021, Ms Weatherston wrote to Mr William’s stating among other things:[38]

“I'm writing to give notice of concern regarding interference and slander in a workers compensation case about me, to your staff member and the Injury Management worker, Lisa, by both CCI and you is unacceptable. I have contacted my lawyer.”

  1. On 18 September 2020, a meeting was held between Ms McElhinney, her rehabilitation provider and Mr Williams. It was agreed that Ms McElhinney would return to work from Week 10 of Term 3.  Mr Williams explained in accordance with the Worksafe Improvement Notices that a new flow chart for the reporting of injuries had been added to the College’s Handbook, that the ‘Staff/Visitor –  Personal Accident/Incident Report Form’ had been updated specifically in relation to adding an option for ‘Nature of Injury – Psychological, a new smartphone app had been made available and the College had developed a ‘Psychological Hazard Investigation Report’ to be used by staff.[39]

  1. In October 2020, Ms McElhinney commenced a graduated return to work at the College whilst continuing to undergo psychological treatment.[40]

  1. Ms McElhinney requested two days of professional development training in Term 4 of 2020.  CCI denied the request. One of the training sessions was in Geraldton, whilst the other was in Perth requiring 3 days away from work. Ms McElhinney lodged a complaint and appealed the decision with CCI. CCI reviewed her complaint but upheld the decision on 24 November 2020.  Mr Williams says that the College had no issues with Ms McElhinney attending this training, as long as it was supported by CCI in line with her return to work program.[41]  Ms McElhinney felt that the training would have improved her confidence in returning to work.

  1. On 2 November 2020, Dr Himy issued a medical certificate stating that Ms McElhinney had some capacity for work (11 periods a week) from 2 November 2020 to 14 December 2020.[42]

  1. On 3 November 2020, Ms McElhinney’s rehabilitation provider issued Return to Work and Life Plan 4 (Proposing 11 hours teaching at the College from 3 November 2020 until 14 December 2020).[43]

  1. On 17 November 2020 Ms McElhinney was reviewed by the CCI’s doctor - Dr Amir Tavasoli (Dr Tavasoli).[44] In his report dated 30 November 2020, Dr Tavasoli, diagnosed Ms McElhinney as having major depressive episode as per Diagnostic and Statistical Manual of Mental Disorders 5th Edition (DSM-5) characterised by low mood, low energy, poor concentration, reduced appetite, feelings of worthlessness and insomnia and trauma related symptoms. He reported that she was not fit to return to full-time employment and that she may still have another six months to fully recover from her depressive episode and her hours may gradually increase over this period to return to full-time employment.[45]

  1. On 23 November 2020, Ms McElhinney’s rehabilitation provider issued a progress report. Ms McElhinney was certified as having some capacity for work from 2 November 2020 to 14 December 2020, working modified hours of 11 periods per week.[46]  The report noted that Ms McElhinney continued to experience psychological symptoms.[47]

  1. On 25 November 2020, Ms McElhinney’s rehabilitation provider issued an amended progress report.[48]

  1. On 14 December 2020, Dr Sarah Hasnain issued a medical certificate stating that Ms McElhinney had some capacity for work (16 hours a week) from 14 December 2020 to 10 January 2021[49]

  1. On the same date, Ms McElhinney’s rehabilitation provider issued an amended progress report proposing that Ms McElhinney work 16 hours a week (11 hours teaching 5 hours DOT time) commencing 3 November 2020. [50]

  2. On 15 December 2020, Ms McElhinney lodged a complaint with CEWA (Complaint) asserting inter alia that:[51]

  1. She was offered insufficient support by the College after the incident.
  1. Mr Williams discussed her return to work program with her colleague rather than directly with her.
  2. Her colleagues reported to the College that she was teaching swimming while certified unfit work.
  3. She was encouraged to see a psychotherapist however the funding for this was removed by the insurer when the insurer became aware that the psychotherapist had a conflict of interest.  Ms McElhinney asserts that the insurer became aware of the conflict when Ms McElhinney’s confidential information was disclosed in breach of CEWA policy.
  4. She was denied access to professional development while certified unfit for work.
  5. Other staff were told to have no contact with her.
  6. The seriousness of the incident was downplayed.

  1. On 11 January 2021, Dr Himy issued a medical certificate stating that Ms McElhinney had some capacity for work (18 hours a week) from 11 January 2021 to 11 February 2021.[52]

  1. On 19 January 2021, Ms McElhinney’s rehabilitation provider issued Return to Work and Life Plan 5 proposing that Ms McElhinney work 18 hours per week (13 hours teaching and 5 hours DOT time).[53]

  1. On 5 February 2021:[54]

a.Dr Hiny issued a medical certificate stating that Ms McElhinney had some capacity for work (18 hours a week) from 5 February 2021 to 5 March 2021; and

b.Ms McElhinney’s rehabilitation provider issued Return to Work and Life Plan 6 (18 hours capacity a week, with 11 teaching hours per week and 7 hours of duties other than teaching).

  1. In February 2021, Ms McElhinney started taking an antidepressant called Sertraline.  She says that she began experiencing nausea, heart palpitations, anxiety and insomnia.[55]

  1. On 9 February 2021, Mr Williams met with Ms McElhinney, her support person (Nicola Dufour, a staff member of the school and a union representative) and CEWA’s new Geraldton Regional Officer, Mr Allen McMahon, regarding the Complaint.[56]  At the meeting, Ms McElhinney raised concerns that Mr Williams had not communicated with her directly in relation to her teaching swimming classes and the potential conflict of interest involving Ms Weatherston.  Mr Williams explained that he was obliged to report certain information to CCI, such as her commencing paid work.  Ms McElhinney insisted that a data breach had occurred when CCI were informed that a potential conflict of interest existed in relation to Ms Weatherston.

  1. On 11 February 2021, Ms McElhinney demanded that her rehabilitation provider be changed as she was not happy with the provider.[57]

  1. The College investigated her allegation of a data breach and on 22 February 2021, reported to her that the CEWA Data Team had looked at what was passed on and concluded that there was no data breach and that the information was passed on appropriately.[58]

  1. On 1 March 2021, Ms McElhinney taught a class but her symptoms worsened during the day, she left the College during school hours and went to the hospital emergency department.  She was taken off the medication and prescribed a different antidepressant.  This drug caused sleepiness.  She was absent from work for two weeks until she was eventually prescribed another drug without side effects.[59]

  1. On Friday 5 March 2021, Ms McElhinney asked to meet with Mr Williams because she unhappy with an email she had received from the Deputy Principal.  Mr Williams met with her that day.[60]

  1. On various occasions, Ms McElhinney complained that she was not receiving emails from the College because of poor Wi-Fi performance in the room in which she was teaching.  On 8 March 2021, the College’s IT department conducted a detailed investigated her concerns and were unable to identify any issues with the College IT or Wi-Fi performance.[61]  On 16 March 2021, the College’s IT staff conducted further investigations into Ms McElhinney complaints and again were unable to substantiate them.[62]

  1. On 9 March 2021, Ms McElhinney’s new general practitioner Dr Douglas issued a medical certificate stating that Ms McElhinney had no capacity for work from 9 March 2021 to 26 March 2021. The Report noted that:[63]

“Has experienced significant increase in her sx of anxiety and insomnia after being started on Sertraline Recent presentation to ER for urgent mental health review Experiencing severe insomnia, hypervigilance and severe levels of anxiety.. Antidepressant switched to Mirtazipine.

…

Patient has had a significant decline in her mental health over the last few weeks which is exacerbated by her current work circumstances. She has just started a new medication for depression and post traumatic stress symptoms which will take a few weeks to take effect”

  1. On 17 March 2021, Ms McElhinney’s new rehabilitation provider issued Return to Work Programme 1, which noted that she had 12.16 hours capacity for work with 2.45 hours reserved for duties other than teaching.[64]

  1. On 18 March 2021, Ms McElhinney’s new rehabilitation provider reported that Ms McElhinney’s current symptoms included her being tearful, anxious, stressed, having poor sleep and being reticent to turn her back to students.[65]

  1. On 19 March 2021, Dr Douglas issued a medical certificate stating that Ms McElhinney had no capacity for work from 9 March 2021 to 21 March 2021 and some (not specified) capacity for work from 22 March 2021 to 6 April 2021.The certificate noted that:[66]

“Patient has had a significant decline in her mental health over the last few weeks which is exacerbated by her current work circumstances. She has just started a new medication for depression and post traumatic stress symptoms which will take a few weeks to take effect.”

  1. On 27 April 2021, the College hired a teacher on a short-term contract from 1 January 2021 until 2 July 2021 to perform the balance of Ms McElhinney’s duties.[67]

  1. On 28 April 2021, Dr Douglas issued a medical certificate stating that Ms McElhinney had some capacity for work (18.5 hours a week) and that Ms McElhinney would explore non medicated treatments for her condition.[68]

  1. On 4 May 2021, Ms McElhinney’s rehabilitation provider issued Work Programme 2 (12.16 hours capacity for work) with 2.45 hours reserved for duties other than teaching.[69]

  1. On 10 May 2021, Ms Gummery emailed Ms McElhinney in relation to her teaching programs.[70] Ms McElhinney subsequently complained to Mr Williams that she felt harassed by Ms Gummery.  Mr Williams explained to Ms McElhinney that Ms Gummery was going through the program of each teacher and notifying staff of corrections that were necessary.  Ms Gummery offered to meet with Ms McElhinney to help her resolve any issues with her programs. They met on at least three occasions to discuss Ms McElhinney’s teaching program.[71] 

  1. On 18 May 2021, Dr Tavasoli reviewed Ms McElhinney again.  In a report dated 31 May 2021, he noted that: [72]

“Ms McElliney continues to experience depressive symptoms quite similar to what she reported in November 2020 and that there did not seem to be a significant shift in the Ms McElhinny’s symptoms.

…
The treatments provided so far do not appear to have had much benefit in terms of her depressive symptoms.

…Ms McElhinney currently qualifies for a diagnosis of major depressive disorder characterised by low mood, reduced energy, lack of motivation, anhedonia, feelings of worthlessness, sleep disturbance and reduced concentration.
…
Ms McElliney’s treatment to date does not appear to have led to a significant improvement in her depressive symptoms.
…
I believe Ms McElhinney is still unfit to return to work on a full-time basis.  I recommend continuing with a part-time employment at 20 hours per week with plans to increase her hours once there is evidence of improvement in her depressive symptoms.”

  1. While Dr Tavosli was optimistic that Ms McElhinney could make a full recovery, he determined that she was still unfit to return to work on a full-time basis and did not indicate when she might be fit to do so.[73]

  1. On 25 May 2021, Dr Douglas issued a medical certificate stating that Ms McElhinney had some capacity for work (18.5 hours a week) from 25 May 2021 to 8 June 2021.[74]

  1. On 31 May 2021, the College hired a teacher on a short-term contract from 5 July 2021 until 24 September 2021 to perform the balance of Ms McElhinney’s duties.[75]

  1. On 10 June 2021, 12 months had passed since Ms McElhinney first lodged her workers compensation claim.

  1. On 11 June 2021, Dr Douglas issued a medical certificate with an unchanged capacity for work (18.5 hours a week) noting that this would be reviewed again on 25 June 2021.  The certificate noted that Ms McElhinney was still experiencing stress which was affecting her mood, sleep and performance.[76]

  1. On the 13 June 2021 Ms McElhinney received an email from the College inviting her to a meeting with Mr. Williams on 21 June 2021 (Show Cause Meeting). No reason was given for the meeting therefore Ms McElhinney says that she replied to ask if she was being dismissed but was reassured, she was not. [77]

  1. The Show Cause Meeting was attended by Mr Williams, Ms Gummery, Mr Luxton and Ms McElhinney’s union representative Ms Dufour as her support person.  At the meeting Mr Williams gave Ms McElhinney a letter dated 18 June (Show Cause Letter) saying that: [78]

a.her treating psychiatrist Dr Tavasoli had provided a report on her condition and progress which indicated that she was still unfit to return to full-time duties and had not significantly improved since November 2020;

b.it was evident that she would not return to full time duties within a reasonable period of time;

c.for these reasons the College was considering terminating her employment; and

d.she was invited to provide a written response by 25 June 2021.

  1. Ms Gummery’s notes of the meeting record that the rehabilitation provider indicated that Ms McElhinney was hoping to be able to be fit to return to full time work by the start of 2022.[79]

  1. On 22 June 2021, Ms McElhinney wrote to CCI asserting that Dr Tavasoli’s report contained inaccuracies.[80]

  1. On 24 June 2021 at 9:38am, Ms McElhinney provided a written response to the Show Cause Letter (Show Cause Response) through her union representative noting that:[81]

a.She commenced a return to work on a part-time basis relatively quickly after the incident.

b.In the Report Dr Tavasoli, recommended an increase in her weekly workload to 20 hours per week, from her then load of 18.6 hours.

c.Dr Tavasoli was optimistic of a full recovery, meaning that a return to full-time duties was not off the table, querying the need for the College to progress a dismissal.

d.The Report contained some misunderstandings in what she communicated to him during an appointment, including that contrary to what was stated in the report, she no longer experienced anxiety about having her back to students.

e.That treating a major depressive order of the kind she experienced can take time, particularly when there is a need to match medication to a patient's needs, a fact noted in the Report.

f.Her work provides a sense of purpose and hope, and removing that away from her would effectively exacerbate the injury she sustained at work.

  1. On 24 June 2021 at 3:04pm, Ms McElhinney provided Mr Williams with a Certificate of Full Capacity from Dr Douglas which indicated that with continued fortnightly psychological counselling and persistence with a new medication (Valdoxan), she had full capacity for work from 28 June.[82]

  1. Mr Williams says that he was concerned by the sudden certification for full capacity for work in circumstances where:

a.There had been limited progress in the prior 6 months.

b.The assessment of Ms McElhinney’s capacity had suddenly changed from 0.4 capacity to full capacity within 3 days of the Show Cause Letter being provided to Ms McElhinney. 

c.Dr Douglas acknowledged that Ms McElhinney still required regular counselling and medication.

d.The certification of full capacity was in contradiction to Dr Tavasoli’s report which noted limited progress and ongoing treatment required.

  1. In her witness statement, Dr Douglas clarified that she believed Ms McElhinney fit “for a trial” of regular duties and hours rather than confirming that she was fully fit without restriction.[83]

  1. Mr Williams considered the information available to him and determined that Ms McElhinney’s employment should be termination.  He explained his decision making process as follows:[84]

“11.1   My reading of the psychologist’s, Ms Weatherston’s, opinion was that it was not consistent with the report of Dr Tavasoli, which said that treatment was not shown to have improved Clare’s symptoms, and it was inconsistent with the recent general practitioner’s certificate of 11 June 2021, which stated that Clare still experienced significant depressive symptoms and an increase in anxiety. I understood that Dr Tavasoli was the only medical practitioner who was able to diagnose mental health issues who was independent to Clare’s treating general practitioner and psychologist.

11.2     In his report, Dr Tavasoli noted that Clare had not recovered. Dr Tavasoli did not articulate a return to work achievement of full duties or timeframe. He confirmed ongoing treatment was required and there was no significant improvement since November 2020. I spoke with CCI and Employment Relations at CEWA for advice and considered that Clare’s psychologist was previously employed at the College and also that Clare’s general practitioner appeared to have specialist skills as an obstetrician and that her field of expertise was not in psychiatry. I gave weight to the fact that Dr Tavasoli was a psychiatrist who is medically trained to diagnose mental health issues and of the three opinions, I found that his assessment carried the most weight.

11.3     I also considered that if I allowed Clare to come back to the College on full time hours on the advice of Clare’s general practitioner or psychologist, given that I had Dr Tavasoli’s psychiatrist report saying that she was not fit for full time work, I could potentially be found negligent given my duty of care owed to Clare. In that regard, I was conscious of the WorkSafe improvement notices that the College had received, following Clare’s complaint to WorkSafe.”

  1. Mr Williams also explained the additional costs and difficulty associated with securing teachers to work short-term part-time contracts in a regional area to cover the balance of Ms McElhinney’s duties was a factor in his decision making.[85]

  1. At 4:44pm on 24 June 2021, Mr Williams sent an email to Ms McElhinney alerting her to the fact that a meeting would be held to discuss the outcome of the show cause process and inviting her to bring a support person with her.[86]

  1. On 2 July 2021, Ms McElhinney was provided with a letter informing her that her employment had been terminated (Termination Letter).  The Termination Letter stated as follows:[87]

“I write further to our meeting held on 21 June 2021 and letter dared 18 June 2021. On 21 June 2021 I informed you of my concerns regarding your ongoing fitness for work and ability to safely undertake the inherent requirements of your duties in accordance with your contract of employment as a full time teacher at Nagle Catholic College (the College).

It was communicated to you on the 21 June 2021 that because of your ongoing fitness for work concerns, I was proposing the termination of your employment contract, the reasons for this decision were detailed in the letter dated 18 June 2021. Prior to making a final decision you were invited to provide a response to the proposed termination of your employment by 25 June 2021, I received your response on Thursday 24 June 2021 in writing.

Clare, you have demonstrated limited progress in your recovery to return to full duties at the College. This lack of progress is concerning and is noted in an independent medical assessment. Since June 2020 you have not been certified fit to work any more than 18 hours per week. This is well short of the progress I would have hoped for in this timeframe. Additionally, the lack of clarity regarding your return to full duties is cause for concern. To date there has been no evidence to support a clear goal on full recover to return to work and this is also supported by an independent medical assessment. As the Principal I have a duty of care to you and also to students and must discharge that duty of care to the best of my ability. Overall, I have no confidence in your ability to safely undertake the inherent requirements of your position as a full time Teacher at the College.

I have taken into account your written response and those of your G.P, Psychologist and Return to Work Liaison Officer. I confirm that none of this correspondence has altered my opinion in relation to my assessment of your fitness for work, the independent medical assessment or the proposed termination of your employment. A professional independent psychiatrist confirms you have not recovered, does not articulate a ‘Return to Work’ time frame and notes ongoing treatment is necessary. I regret to inform you that for the reasons above your employment will be terminated.

The termination of your employment will be effective immediately as of 2 July 2021…”

  1. The Termination Letter identified the reasons for termination as a lack of confidence in Ms McElhinney’s fitness for work and a lack of clarity as to when she might be fit to return to her full-time duties.[88]

  1. At the time of her dismissal, Ms McElhinney’s remuneration was $101,053 per annum.[89]

  1. On 23 July 2021, Ms McElhinney filed the Application.

  1. On 19 August 2021, Dr Douglas issued a report stating that Ms McElhinney was probably be fit to resume her normal duties in early June 2021 but there remained significant problems in the workplace which Dr Douglas deemed put the Applicant at high risk of relapse if they were not addressed.[90]

  1. On 30 August 2021, Dr Tavasoli replied to Ms McElhinney’s request to review his report.  He did not concede that he had wrongly recorded her fears about having her back to students and relevant stated that: [91]

“On review my report and the feedback provided by Ms McElhinney in my opinion the recommendations and opinion provided in my report dated 31 May 2021 remain unchanged.’

  1. On 31 August 2021, CCI sent a letter to Ms McElhinney stating its intention to discontinue her workers’ compensation weekly payments after 21 days, on the grounds that she had been certified fit for work pursuant to section 61 of the Workers’ Compensation and Injury Management Act 1981 (WA) (WC Act).[92]

  1. On 17 September 2021, Ms McElhinney filed a conciliation application in WorkCover WA seeking an order that her weekly payments of compensation not be discontinued on the basis that her general practitioner has issued an updated progress medical certificate and did not consider her to be fit for full pre injury duties.[93]

  1. Since Ms McElhinney’s dismissal, she was in receipt of weekly payments of workers’ compensation until 14 October 2021, at which point her workers’ compensation claim was resolved for a payment of $24,500 in redemption of all claims for weekly payments and compensation benefits under the WC Act.[94]

  1. In addition to the redemption settlement of $24,500, Ms McElhinney received the following workers’ compensation entitlements:[95]

a.        Medical Services: $12,779.30
b.        Non Medical: $1,410.47 (including travel)
c.        Rehabilitation: $15,004.59
d.        Weekly Compensation: $63,633.42.

  1. Ms McElhinney says that she believes that:

“… if Nagle had of engaged fully with the Worker's Compensation plan and increased my duties, I would have proven my capacity and fitness to work either way and if I was unfit I would have resigned.”

  1. However, Ms McElhinney’s return to employment as a teacher since her termination has not been successful.  Although she initially performed relief work at another school on 30 August 2021, a subsequent engagement led to a deterioration in her condition.

“8th Sept 2021- I experienced increased levels of sleeplessness and anxiety over the previous 2 weeks due to unfamiliar surrounding, volatile and erratic behaviour of students with varying degrees of lack of self regulation and sighting the student REDACTED who had assaulted me in these unfamiliar surrounding made me feel afraid. I made an appointment to see Dr Douglas and on discussion with the doctor my capacity was reduced again.”

  1. On 8 September 2021, her treating doctor issued a Workcover progress certificate certifying her only fit for modified duties for modified hours of work of 7.5 hours per day four times per week.  The Doctor noted:

“Increased stress levels and problems coping with relief teaching despite increase in Valdoxan. Claire is working in a school with very high levels of severe behavioural issues amongst the students which is adding to her stress and undermining her recovery
Needs to reduce hours and not work in a high stress environment (ie high prevalence behavioural problems/special needs students) until she has recovered from her iniurv.”

  1. Ms McElhinney commenced part time work of 4 days or 30 hours per week as an electorate officer for a local MP on 13 September 2021.[96]

  2. Her workers compensation claim was finalised on 14 October 2021.[97]

Is Ms McElhinney protected from unfair dismissal?

  1. An order for reinstatement or compensation may only be issued if Ms McElhinney was unfairly dismissed and Ms McElhinney was protected from unfair dismissal at the time of her dismissal. 

  1. Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

  1. the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
  2. one or more of the following apply:

·     a modern award covers the person;

·     an enterprise agreement applies to the person in relation to the employment;

·     the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the Fair Work Regulations (Cth) 2009 (FW Regulations), is less than the high income threshold.

  1. For the purposes of Part 3-2 of the FW Act, an employer means a national system employer and an employee means an employee of a national system employer. CEWA is a national system employer and Ms McElhinney is therefore a national system employee.

  1. If the employer is not a small business, the ‘minimum employment period’ is six months ending at the earlier of the following times:[98]

a.the time when the person is given notice of the dismissal; or

b.immediately before the dismissal.

  1. There is no dispute, and I am satisfied, that CEWA is not a small business employer for the purposes of section 383 of the FW Act.

  1. Ms McElhinney commenced employment with CEWA on 1 January 2018. Ms McElhinney was dismissed on 13 April 2021.[99]  I am therefore satisfied that, at the time of dismissal, Ms McElhinney was an employee who had completed a period of employment of at least the minimum employment period.

  1. It was not in dispute, and I find that, at the time of dismissal, the Agreement applied to the Ms McElhinney’s employment.

  1. It was not in dispute, and I find that, at the time of dismissal, the sum of Ms McElhinney’s annual rate of earnings (being $101,053 per annum) together with such other amounts worked out in accordance with regulation 3.05 of the FW Regulations was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2021, is $158,500.

  1. Consequently, I am satisfied that at the time of her dismissal Ms McElhinney was a person protected from unfair dismissal.

Was Ms McElhinney unfairly dismissed?

  1. Section 385 of the FW Act provides that a person has been unfairly dismissed if the FWC is satisfied that:

a.the person has been dismissed;

b.the dismissal was harsh, unjust or unreasonable;

c.the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFD Code); and

d.the dismissal was not a case of genuine redundancy.

Was Ms McElhinney dismissed?

  1. Section 386(1) of the FW Act provides that a person has been dismissed if the person’s employment was terminated at the employer’s initiative or the person resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.

  1. Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

  1. There was no dispute, and I find, that Ms McElhinney’s employment with CEWA was terminated at the initiative of CEWA.[100]

  1. I am therefore satisfied that Ms McElhinney has been dismissed within the meaning of section 385 of the FW Act.

Was Ms McElhinney’s dismissal a case of genuine redundancy?

  1. Pursuant to section 389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:

a.the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

b.the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

  1. It was not in dispute[101], and I find, that Ms McElhinney’s dismissal was not due to CEWA no longer requiring her job to be performed by anyone because of changes in CEWA’s operational requirements.

  1. I am therefore satisfied that the dismissal was not a case of genuine redundancy.

Was Ms McElhinney’s dismissal consistent with the SBFD Code?

  1. Section 388 of the FW Act provides that a person’s dismissal is consistent with the SBFD Code if:

a.immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

b.the employer complied with the SBFD Code in relation to the dismissal.

  1. It was not in dispute[102], and I find, that CEWA was not a small business employer within the meaning of section 23 of the FW Act at the relevant time, having in excess of fourteen (14) employees.

  1. As CEWA is not a small business employer within the meaning of the FW Act, I am satisfied that the SBFD Code does not apply to Ms McElhinney’s dismissal.

Was the Application made within the period required?

  1. Pursuant to section 396 of the FW Act, the FWC is obliged to decide whether an application was made within the period required in subsection 394(2) of the FW Act before considering the merits of an application.

  1. Section 394(2) of the FW Act requires that the Application is to be made within twenty-one (21) days after the dismissal took effect.

  1. It is not disputed, and I find, that Ms McElhinney was dismissed from her employment on 2 July 2021 and made the Application on 22 July 2021. I am therefore satisfied that the Application was made within the period required in subsection 394(2) of the FW Act.

Was the dismissal harsh, unjust or unreasonable?

  1. The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd by McHugh and Gummow JJ as follows:

“…. It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”[103]

  1. Section 387 of the FW Act provides that, 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);

b.whether the person was notified of that reason;

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

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;

e.if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;

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;

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.

  1. Each of these criteria must be considered to the extent they are relevant to the factual circumstances of the Application.[104]

Was there a valid reason for the dismissal related to Ms McElhinney’s capacity or conduct?

  1. In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[105] and should not be “capricious, fanciful, spiteful or prejudiced.”[106] That test is to be applied in a common sense way to ensure that the employer and employee have both been treated fairly.[107] It is not the role of the FWC to stand in the shoes of the employer and determine what the FWC would do if it was in the position of the employer.[108]

  1. The employer carries the onus of establishing a valid reason.[109]

  1. The Termination Letter identifies the reason for Ms McElhinney’s dismissal as: [110]

a.her limited progress in her recovery to return to full time duties;

b.since June 2020, she had not been certified fit for work for more than 18 hours a week;

c.there was a lack of medical clarity around her return to full duties;

d.there was no evidence to support a clear goal of full recovery to return to work;

e.Mr Williams had a duty of care to her and the students; and

f.Mr Williams had no confidence in her ability to safely undertake the inherent requirements of her position as a full time teacher.

  1. Ms McElhinney submits that there is no valid reason for her dismissal because:

a.The reason why she was absent from work was because she had sustained an injury at work for which her employer accepted liability.

b.She engaged in good faith in a return to work program including undergoing psychological and pharmaceutical treatment.

c.The medical evidence demonstrated a trajectory towards recovery.

d.She had no opportunity to respond to the assertion that she was unfit and unsafe to perform her role.

e.She provided evidence that she was fit to return to work in a full time capacity but was not permitted to do so.

  1. To the extent that she was not fit for work, Ms McElhinney she says that this was a consequence of the conduct of the College in particular that:

a.It did not characterise the May Incident sufficient severely.

b.That it reported that she had engaged in paid work as a swimming teacher to CCI.

c.That it raised a potential conflict of interest in Ms Weatherston treating her which led to a temporary suspension of the financial support from the CCI for her sessions with Ms Weatherston.

d.That it refused to allow her to engage in professional development training.

e.Provided insufficient IT support

f.Ms Gummery targeted her work performance.

  1. In cases relating to whether an employee has the capacity to perform the job, capacity is the employee's ability to do the job as required by the employer.[111]  Capacity also includes the employee's ability to do the work they were employed to do.[112] The appropriate test for capacity is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively.[113]

  1. Inability to perform the inherent requirements of the position may be a valid reason for the termination of an employee:[114]

“Where an employer relies upon an employee's incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must considered.”

  1. The May Incident occurred on 14 May 2020. [115]

  1. Ms McElhinney was off work from 10 June 2020 until October 2020 when she commenced a graduated return to work.

  1. On 17 November 2020, Ms McElhinney was reviewed by the independent medico legal psychiatrist Dr Tavasoli.  In his report dated 30 November 2020 Dr Tavasoli, diagnosed Ms McElhinney as having major depressive episode as per Diagnostic and Statistical Manual of Mental Disorders 5th Edition (DSM-5) characterised by low mood, low energy, poor concentration, reduced appetite, feelings of worthlessness and insomnia and trauma related symptoms. He reported that she was not fit to return to full-time employment and that she may still have another six months to fully recover from her depressive episode and her hours may gradually increase over this period to return to full-time employment.[116]

  1. Ms McElhinney’s hours of work increased to only 18 hours per week (of which only a portion was teaching duties) before her health declined again.

  1. On 9 March 2021, Ms McElhinney’s new general practitioner Dr Douglas issued a medical certificate stating that Ms McElhinney had no capacity for work from 9 March 2021 to 26 March 2021. The Report noted that:[117]

“Has experienced significant increase in her sx of anxiety and insomnia after being started on Sertraline  Recent presentation to ER for urgent mental health review  Experiencing severe insomnia, hypervigilance and severe levels of anxiety.. Antidepressant switched to Mirtazipine.

  1. Ms McElhinney subsequently returned to work however her capacity to work remained limited.

  1. On 18 May 2021 Dr Tavasoli reviewed Ms McElhinney again and in a report dated 31 May 2021 noted that: [118]

“Ms McEllinney continues to experience depressive symptoms quite similar to what she reported in November 2020 and that there did not seem to be a significant shift in the Ms McElhinney’s symptoms.

…
The treatments provided so far do not appear to have had much benefit in terms of her depressive symptoms.

…Ms McElhinney currently qualifies for a diagnosis of major depressive disorder
characterised by low mood, reduced energy, lack of motivation, anhedonia, feelings of worthlessness, sleep disturbance and reduced concentration.
…
Ms McEllinney’s treatment to date does not appear to have led to a significant improvement in her depressive symptoms.
…
I believe Ms McElhinney is still unfit to return to work on a full-time basis.  I recommend continuing with a part-time employment at 20 hours per week with plans to increase her hours once there is evidence of improvement in her depressive symptoms.”

  1. Ms McElhinney asserts that Dr Tavasoli’s report contained inaccuracies.  I note that Dr Tavasoli subsequently reviewed his report and confirmed that his diagnosed remained unchanged. [119]

  1. On 11 June 2021, Dr Douglas issued a medical certificate assessing Ms McElhinney’s capacity for work as limited to 18.5 hours a week.  The certificate notes that Ms McElhinney was still experiencing stress which was affecting her mood, sleep and performance and that the next review would not occur until 25 June 2021. [120]

  1. Ms Gummery’s notes of the Show Cause meeting held on 21 June 2021 record that the rehabilitation provider indicated that Ms McElhinney was ‘hoping’ to be able to be fit to return to full time work by the start of 2022.[121]

  1. However, following the Show Cause Meeting held on 21 June 2021 notwithstanding another review was not due until 25 June 2021 Dr Douglas suddenly issued a Certificate of Full Capacity.[122]

  1. As part of the Show Cause process, Ms McElhinney also produced a report from Ms Weatherston which stated that Ms McElhinney had made good progress and indicated a readiness to increase to full time hours.[123]

  1. The weight of this medical evidence must be assessed in the context that:

a.The medical assessments of Ms McElhinney’s capacity since lodging her workers compensation claim consistently noted that her symptoms were persisting and from time to time worsening.

b.There had been no significant increase in her capacity to work in over six months.  To the contrary her capacity for work declined for a period of time.

c.Dr Douglas’ assessment of Ms McElhinney’s capacity had suddenly changed from partial capacity to full capacity within a few days of the Show Cause Letter being provided to Ms McElhinney. 

d.This reassessment occurred prior to the scheduled date for the next assessment.

e.While assessing Ms McElhinney as fully fit Dr Douglas noted that Ms McElhinney still required fortnight counselling and medication.

f.In her witness statement Dr Douglas subsequently sought to recharacterize her assessment as a capacity for a ‘trial’ of full capacity[124]

e.The certification of full capacity was in contradiction to Dr Tavasoli report which noted limited progress and ongoing treatment required.  There is no evidence to impugn the objectivity or accuracy of Dr Tavasoli’s opinion.

f.It is also inconsistent with the evidence tendered by Ms McElhinney’s lawyers in an effort to resist the discontinuance of her workers compensation payments.[125]

g.Dr Douglas is a general practitioner with specialist skills as an obstetrician.  Her field of expertise was not in psychiatry. Dr Tavasoli is an independent medico legal psychiatrist who is medically trained to diagnose and assess mental health illnesses. [126]

h.Ms Weatherston’s report did not confirm Dr Douglas’s assessment that Ms McElhinney was fit to immediately return to work.  Rather it contemplated it occurring sometime in the next school term.  It also indicated a ‘willingness’ rather than a capacity to do so.

  1. Ms Weatherston has had a series of exceptionally negative communications and experiences with the College and the rehabilitation provider which might suggest that her opinion might not be unclouded. [127]

  1. It is apparent from Ms McElhinney’s earnest and diligent pursuant of her unfair dismissal claim that Ms McElhinney passionately wants to return to teaching. Although Ms McElhinney made efforts to improve her physical and mental well-being, she sadly Ms McElhinney struggled to do so. 

  1. The College engaged with Ms McElhinney over an extensive period of time to support her return to her role.  While Ms McElhinney asserts that the College’s efforts to do so compromised her recovery, I am not satisfied the evidence supports this.  The various allegations she raised were investigated and not substantiated.  On the evidence before me the College did not act in any untoward manner.  For example:

a.Ms McElhinney asserts that the College did not treat the May Incident seriously. However, the evidence reveals that the immediate response from staff was concern about Ms McElhinney’s welfare.  None of their responses downplayed the seriousness of her experience.  The College acted upon her concern that the disciplinary action was not sufficiently serious by changing the action it took against at least one the students.

b.Ms McElhinney complains that the College reported her engagement in paid work and the potential conflict of interest involving Ms Weatherston.  The evidence reveals that these matters were appropriate and reasonable to raise.

c.Ms McElhinney complains that she was unreasonably performance managed by Ms Gummery. However, the communications which she relies upon is consistent with the evidence of Mr Williams that Ms Gummery was performing her normal duties in an appropriate manner consistent with her treatment of other teachers.

  1. As made clear by the Worksafe Notices, Mr Williams has an obligation to ensure the physical and psychological safety of both his students and his staff.  He also has an obligation to ensure consistency and quality in teaching delivery at the College. 

  1. The fact Ms McElhinney was not fit to return to work in a full time capacity at the time of her dismissal or within a reasonable period of time thereafter is evidenced by her unsuccessful attempts after her dismissal from the College to teach at other local schools.

  1. Based on the evidence before me and the submissions of the parties for the reasons above I find that a valid reason existed for Ms McElhinney’s dismissal.

Was Ms McElhinney notified of the valid reason?

  1. Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[128] and in explicit,[129] plain and clear terms.[130]

  1. The proposed reasons for her dismissal were verbally put to Ms McElhinney at the Show Cause Meeting and in writing in the Show Cause Letter. [131]  The reasons for her dismissal were communicated to her in the Termination Letter. [132]

  1. Ms McElhinney says that the Termination Letter contained reasons for her dismissal which she was not given an opportunity to respond to.  Namely:

a.No confidence in her ability to safely undertake the inherent requirements of the position as a full time teacher.

b.Limited progress to return to full capacity.

c.Lack of clarify around returning to full duties

d.No evidence to support a clear goal for full recovery

  1. While the language of the Termination Letter may have not matched precisely the language of the Show Cause Letter, I am satisfied that the reasons for which the CEWA ultimately terminated Ms McElhinney’s employment were adequately expressed to her prior to her dismissal to allow her to properly respond to them.

  1. I am therefore satisfied, that Ms McElhinney was notified of the reasons for her dismissal.

Was Ms McElhinney given an opportunity to respond to any valid reason related to his capacity or conduct?

  1. An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[133] This entitlement is reinforced in the Agreement.[134]

  1. The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[135] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[136]

  1. Ms McElhinney was provided with the opportunity to respond to the Show Cause Letter and did so in writing in the Show Cause Response.  Ms McElhinney benefited from the assistance of her union in preparing the Show Cause Response.  The Show Cause process also provided Ms McElhinney with the opportunity to provide her own medical evidence. 

  1. Ms McElhinney submits that she was denied procedural fairness because the Termination Letter included reasons for termination which were not raised in the Show Cause Letter:[137]

  1. While the language of the Termination Letter may have not matched precisely the language of the Show Cause Letter, I am satisfied that the reasons for which the CEWA ultimately terminated Ms McElhinney’s employment were adequately expressed to her prior to her dismissal to allow her to properly respond to them.

  1. Ms McElhinney also asserts that she was denied procedural fairness because the Show Cause Letter was issued on 21 June 2021 and her response was due on 25 June 2021 she had insufficient time to get Dr Tavasoli to review his report.  However, Dr Tavasoli did ultimately review his report and confirmed his original views remained unchanged.  Therefore, a further delay in responding to the Show Cause Letter would not have changed the outcome.

  2. I am satisfied, that Ms McElhinney was given an opportunity to respond to the reason for her dismissal prior to the decision to dismiss being made and to the extent that she did not have the opportunity to seek further information from Dr Tavasoli, this would not have changed the outcome.

Did CEWA unreasonably refuse to allow Ms McElhinney to have a support person present to assist at discussions relating to the dismissal?

  1. Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

  1. There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” [138]

  1. Ms McElhinney had Ms Dufour and her rehabilitation provider Mr Kuxton present as a support person during the Show Cause Meeting.

  1. There is no dispute[139], and I am satisfied, that CEWA did not unreasonably refuse to allow Ms McElhinney to have a support person present at discussions relating to her dismissal.  This consideration is therefore neutral in this Application.

Was Ms McElhinney warned about unsatisfactory performance before the dismissal?

  1. There is no dispute,[140] and I am satisfied that the dismissal did not relate to unsatisfactory performance. This consideration is therefore neutral in this Application.

To what degree would the size of CEWA’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

  1. Where an employer is substantial and has dedicated human resources personnel, and access to legal advice, there will likely be no reason for it not to follow fair procedures.[141] 

  1. CEWA is a large business with dedicated human resource management specialists.

  1. I am satisfied that the procedures followed by CEWA were appropriate having regard to the size of its enterprise. This consideration is therefore neutral in this Application.

To what degree would the absence of dedicated human resource management specialists or expertise in CEWA’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

  1. The absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”[142]

  1. CEWA’s enterprise did not lack dedicated human resource management specialists and expertise.

  1. This consideration is therefore neutral in this Application.

What other matters are relevant?

  1. Section 387(h) of the FW Act requires the FWC to take into account any other matters that the FWC considers relevant to determining whether the dismissal was harsh, unjust or unreasonable.

  1. Ms McElhinney submits that regard ought to be had to the following matters:

a.The injury which ultimately resulted in her dismissal was sustained in the course of her employment for which her employer accepted liability. 

b.She engaged in a return to work program in good faith including undergoing psychological l and pharmaceutical treatment.

c.Termination of her employment acerbated her workplace injury.

d.The home which she purchased when she relocated to accept employment with Nagle is in a regional area with limited employment opportunities.

e.She has lost the benefit of the 33 days of long service leave and the 34 days of sick leave which she had accrued.

f.She was penalised by being taxed $12,410 to exit the salary sacrifice scheme she had entered.

g.She lost all the benefits of Salary sacrifice of her mortgage which had been saving her around $500 per month.

  1. CEWA submit that regard ought to be had to the following matters:

a.Ms McElhinney had a relatively short period of employment.

b.The impacts of the termination of her employment are not dissimilar to the impact on termination of employment on most employees.

  1. I have considered all these matters and attached appropriate weight to them. 

  1. CEWA’s insurer accepted that the injury which ultimately resulted in her dismissal was sustained in the course of her employment and appropriately accepted liability.  The fact that an employee is unable to perform the inherent duties of their role due to a workplace injury does not provide immunity from dismissal.  The workers compensation system is intended to be the mechanism via which the employer redresses the injury. 

  1. Via the Workers Compensation system, Ms McElhinney has been in receipt of workers compensation payments from her dismissal until 14 October 2021 at which point her workers compensation claim was resolved for the payment of a lump sum of $24,500.  This has ensured that she continued to receive an income.

  1. The loss of accrued sick leave and contingent long service leave entitlements is a consequence that all employees experience on separation whether by resignation or by dismissal.

  1. Ms McElhinney did engage in the return to work program but notwithstanding her best endeavours the reality proved to be that her psychological health was too fragile. 

  1. While Geraldton is in a regional area, it is the major west coast seaport and a large regional town which is an important service and logistical centre for mining and agriculture.

  1. According to the evidence of Mr Williams, Geraldton has the following high schools which like most regional schools are actively seeking additional staff:

a.Geraldton Senior College – which has about 1,000 students;

b.Champion Bay Senior High School – which has about 800 students;

c.Geraldton Grammar School - which has about 550 students;

d.Geraldton Christian College - which has about 550 students;

  1. Ms McElhinney has been able to secure alternative employment since 13 September 2021 working 30 hours per week in an electoral office.[143]

  1. None of the factors raised by Ms McElhinney either individually or cumulatively make her dismissal unfair in the circumstances.

Conclusion

  1. I have made findings in relation to each matter specified in section 387 of the FW Act as relevant.

  1. I have considered and given due weight to each factor as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.

  1. Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Ms McElhinney was not harsh, unjust or unreasonable.

  1. Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Ms McElhinney was unfairly dismissed within the meaning of section 385 of the FW Act. The Application is therefore dismissed.

  1. An Order[144] to this effect will be issued with this Decision.

DEPUTY PRESIDENT

Appearances:
Ms C McElhinney, for the Applicant.
Mr R French, for the Respondent.

Hearing details:

PERTH
2022
24 February

Final written submissions:

Applicant, 16 March 2022.
Respondent, 9 March 2022.


[1] Warrell v Walton (2013) 233 IR 335, 341 [22].

[2]  Exhibit DCB1 (DCB), 156-158.

[3] Ibid, 159-164.

[4] Ibid, 173.

[5] Ibid, 181-195.

[6] Ibid 3, 22, 29-32, 86-87, 181, 196.

[7] Ibid 22, 86-87, 355.

[8] Ibid 92.

[9] Ibid 87.

[10] Ibid 93.

[11] Ibid 93, 258.

[12] Ibid 252.

[13] Ibid 98.

[14] Ibid 252.

[15] Ibid 91.

[16] Ibid 22, 86-87, 355, 196.

[17] Ibid 22, 87.

[18]  Ibid.

[19] Ibid 22, 77-78.

[20] Ibid 365.

[21] Ibid 94.

[22] Exhibit R1.

[23] DCB 22, 83-84.

[24] Ibid 182.

[25] Exhibit R1.

[26] DCB 355, 200.

[27] Ibid 183-184.

[28] Ibid 182.

[29] Ibid 202.

[30] Ibid 355.

[31] Ibid 356.

[32] Ibid 209.

[33] Ibid.

[34] Ibid 210.

[35] Ibid.

[36] Ibid 356, 211 -215.

[37] Ibid 356, 216-220.

[38] Ibid 221.

[39] Ibid 228.

[40] Ibid 23.

[41] Ibid 183.

[42] Ibid 356, 222-223.

[43] Ibid 356, 224-226.

[44] Ibid 23.

[45] Ibid 357,237-244.

[46] Ibid 357.

[47] Ibid 227-231.

[48] Ibid 356, 232-236.

[49] Ibid 357.

[50] Ibid 357, 249.

[51] Ibid 86-90.

[52] Ibid 357, 261-263.

[53] Ibid 357, 265.

[54] Ibid 357, 267-274.

[55] Ibid 23.

[56] Ibid 357.

[57] Ibid 186.

[58] Ibid 358, 275.

[59] Ibid 23.

[60] Ibid 358, 281.

[61] Ibid 187, 282-283.

[62] Ibid 187.

[63] Ibid 358, 265-267.

[64] Ibid 358, 292-293.

[65] Ibid 358.

[66] Ibid 358, 304-306.

[67] Exhibit R1.

[68] Ibid 358.

[69] Ibid 359, 309-311.

[70] Ibid 312.

[71] Ibid 188.

[72] Ibid 359, 107-108.

[73] Ibid 109.

[74] Ibid 359

[75] Exhibit R1.

[76] Ibid 359, 322-324.

[77] Ibid 23.

[78] Ibid 23-24, 120-121. 189-190, 326-327.

[79] Ibid 325.

[80] Ibid 149.

[81] Ibid 24, 123-124, 359, 328-329.

[82] Ibid 24, 360, 330.

[83] Ibid 158.

[84] Ibid 191.

[85] Exhibit R1.

[86] Ibid 331.

[87] Ibid 340.

[88] Ibid 126-127.

[89] Ibid 3.

[90] Ibid 360, 342.

[91] Ibid 360, 141.

[92] Ibid 361, 138.

[93] Ibid 193.

[94] Ibid 361.

[95] Ibid.

[96] Ibid 26.

[97] Ibid.

[98] Fair Work Act 2009 (Cth) s 383.

[99] DCB 273-279.

[100] Ibid.

[101] Ibid 10.

[102] Ibid.

[103] (1995) 185 CLR 410, 465 (McHugh and Gummow JJ).

[104] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, 4 [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB), (Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[105] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[106] Ibid.

[107] Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 at 372.

[108] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

[109] Culpeper v Intercontinental Ship Management Pty Ltd (2004) 134 IR 243.

[110] DCB 340.

[111] Walton v Mermaid Dry Cleaners Pty Limited (1996) ALR 681.

[112] Webb v RMIT University[2011] FWAFB 8336.

[113] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137) at [62].

[114] Boag & Son Brewing Pty Ltd v Button[2010] FWAFB 4022.

[115] DCB 22, 86-87, 355.

[116] Ibid 357, 237-244.

[117] Ibid 358, 265-267.

[118] Ibid 359, 107-108.

[119] Ibid 360, 141.

[120] Ibid 359, 322-324.

[121] Ibid 325.

[122] Ibid 24, 360, 330.

[123] Ibid 360.

[124] Ibid 158.

[125] Ibid 193.

[126] Ibid 191.

[127] Ibid 221, 202.

[128] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 [73].

[129] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).

[130] Ibid.

[131] DCB 23-24, 120-121. 189-190, 326-327.

[132] Ibid 340.

[133] Crozier (n 160), 151 [75].

[134] DCB 199.

[135] Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 – 15 [26] quoting Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).

[136] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7 (Wilcox CJ).

[137] DCB 8.

[138] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

[139] Ibid 360.

[140] Ibid 360.

[141] Jetstar v Meetson-Lemkes (2013) 239 IR 1, 21 – 22 [68].

[142] Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].

[143] DCB 26.

[144] PR741941.

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Warrell v Fair Work Australia [2013] FCA 291
Warrell v Fair Work Australia [2013] FCA 291
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