Deborah Brittain v Teewah Power Co Pty Ltd

[2021] FWC 5451

[2021] FWC 5451

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Deborah Brittain
v
Teewah Power Co Pty Ltd
(U2021/1928)

DEPUTY PRESIDENT ASBURY BRISBANE, 15 NOVEMBER 2021

Application for an unfair dismissal remedy – Not appropriate or necessary for Commission to determine whether dismissal breached Workers’ Compensation and Rehabilitation Act 2003 (Qld) – Dismissal unfair – No valid reason for dismissal – Dismissal procedurally unfair – Reinstatement inappropriate on the basis that Applicant has rejected reinstatement – Consideration of whether compensation should be awarded where Applicant has not suffered financial loss due to receipt of workers compensation payments – Finding that Applicant will not return to employment – Consideration of the effect of injury caused by employer on assessment of compensation – Compensation refused – Application for unfair dismissal remedy dismissed.

SUMMARY

[1] Ms Deborah Brittain (the Applicant) applies under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in respect of her dismissal by Teewah Power Co Pty Ltd (the Respondent) on 22 February 2021. The Respondent operates a Health Centre in Noosa. The Applicant was employed as a part-time Medical Receptionist from 26 October 2011 and was dismissed on 22 February 2021. It is not in dispute that the Applicant’s employment was covered by the Health Professionals and Support Services Award 2020.

[2] The Applicant was dismissed for incapacity to perform her role following an absence from work due to a workplace injury, from 26 August 2020. The Applicant’s injury, which persists to the present day, is psychological and was found by WorkCover to be compensable because it arose from reasonable management action taken in an unreasonable way. The Applicant alleged in respect of her workers compensation claim (and in the present proceedings) that the workplace injury arose from bullying by Dr Richard Heath, Director of the Respondent, during her employment.

[3] The Applicant received workers compensation payments equal to the full amount of her weekly wage from 26 August 2020 and continues to receive those payments. If the Applicant remains unfit for normal work, she will continue to receive workers compensation payments equal to the full amount of her wages until 26 August 2022.

[4] In its Form F3 Employer Response, the Respondent indicated that it opposed the application on the basis that it is a small business employer and the dismissal was consistent with the Small Business Fair Dismissal Code (the Code). The Respondent also asserted that the reasons for the Applicant’s dismissal were, in addition to the Applicant’s incapacity to return to the workplace, an unsatisfactory performance review undertaken prior to the Applicant making a claim for workers compensation and payroll costs including superannuation payments, workplace insurance and legal fees which were not covered by WorkCover Queensland.

[5] The matter was not resolved at conciliation and was allocated to me to determine. I conducted a Mention on 15 April 2021. At the Mention, the Respondent made an offer of reinstatement to the Applicant on the basis that Dr Heath would no longer be present in the business. The Applicant did not accept the offer of reinstatement. The Applicant does not seek reinstatement as a remedy for her unfair dismissal and seeks the alternative remedy of compensation. Directions were issued for a hearing in relation to whether the dismissal was consistent with the Small Business Fair Dismissal Code and in the alternative, whether the Applicant’s dismissal was unfair.

[6] On 14 May 2021 the Respondent filed a brief submission which stated that the Respondent relied on its previous submissions (its Form F3 Employer Response), the Respondent pressed its objection to the application on the basis that the dismissal was consistent with the Small Business Fair Dismissal Code and that the Respondent continued to offer the Applicant reinstatement consistent with s. 391 of the FW Act. The Respondent also advised that it would not file any further material or have any witnesses attend the hearing.

[7] The Applicant initially sought that the matter be determined on the papers without the need for a hearing on the basis that the Respondent advised it was not filing any further material or calling evidence. The Respondent opposed this course and sought the matter proceed to hearing. I determined to conduct a hearing on the basis that section 397 of the FW Act requires a hearing where the matter involves facts the existence of which is in dispute. Notwithstanding that the Respondent had not filed any material, it was still entitled to cross-examine the Applicant and I considered that a hearing was appropriate on the basis that disputed issues of fact could arise from cross-examination and were evident from statements made in the Respondent’s Form F3 Response to the application.

[8] A hearing was conducted on 24 May 2021. The Applicant was represented by Mr E Fry of the Health Services Union. Dr Heath represented the Respondent. The Applicant tendered an affidavit setting out her evidence 1 and gave oral evidence on her own behalf. The Applicant was also cross-examined.

[9] Section 396 of the FW Act requires that four specified matters must be decided before the merits of the application may be considered. There was no contest between the parties about any of those matters. I find that:

(a) the application was made within the period required by s.394(2);

(b) the Applicant was a person protected from unfair dismissal;

(c) the Respondent was a “small business employer” as defined in s.23 of the FW Act, so that the Small Business Fair Dismissal Code was applicable; and

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

[10] The issues for determination are:

1. Whether the dismissal was consistent with the Code;

2. If not, whether the dismissal was unfair;

3. If the dismissal was unfair whether a remedy should be granted; and

4. If a remedy is granted, what remedy is appropriate.

[11] If the Applicant has been unfairly dismissed, the issue of remedy is vexed because of the workers compensation payments which the Applicant continues to receive, the difficulty of assessing the period over which those payments are likely to continue and the fact that the Applicant does not seek reinstatement and specifically seeks compensation, notwithstanding the stated willingness of her former employer to reinstate her.

EVIDENCE

[12] The Respondent filed no material in response to the Directions issued for the hearing of this matter and relied on the information set out in its Form F3 Response to the application as follows. In relation to its jurisdictional objection, the Respondent said:

“We are a small business (medical practice) and all employees are advised that rostering flexibility, strict confidentiality and high performance (data accuracy) are essential with offers of employment (as was in this case).

2020, was a challenging year in which considerations of staff safety and management were paramount with various regulatory and health and safety changes related to the CoVid19 Pandemic.

With the support of the Federal Government, all staff were retained and paid.

At all times, the company has complied with the Small Business Dismissal code including direct consultation with legal experts appointed by the Fair Work Commission. Performance Assessments were conducted with ALL employees following this advice.

Prior to a meeting to discuss Mrs Brittain’s assessment, a claim for workplace harassment was made; this has been reviewed and found that the management of the worker was reasonable, but there was unreasonable communication. This is further addressed below

During the period following the performance assessments, all staff had their assessments discussed and reviewed with myself except for Mrs Brittain. At the same time, I was responsible for the care of my recently widowed, and frail mother AND was non-weight bearing on medical advice. By default much of the communication with staff was electronic”

[13] In relation to the reasons for the dismissal the Respondent said:

“A. Unsatisfactory Performance review, undertaken prior to Work Cover claim. This was unable to be addressed at the time due to the Work Cover claim.

B. Continued certification of unfitness to return to the workplace (19 Aug 20 to present); Mrs Brittain continues to be unable to perform her job and there has apparently been little success with rehabilitation.

C. Payroll costs which are not covered by Work Cover Queensland such as Superannuation, workplace insurance and legal fees.”

[14] The Applicant commenced with the Respondent as a part-time Medical Receptionist on 26 October 2011. The Applicant’s primary duties in this role included:

•  Customer service including telephone communication skills;

•  Checking in patients on arrival & billing on departure (eftpos & Hi-caps);

•  Scanning to & updating patient files;

•  Sending & receiving emails; and

•  Investigating & rectifying the exceptions for Medicare billing.

[15] The Applicant’s annual salary was $43,397.64 based on an hourly rate of $30.9100, equating to a fortnightly payment of $1,731.36. The Applicant stated that she had no disciplinary or performance management history with the Respondent during her employment. Dr Heath was the owner and manager of the Respondent during the Applicant’s employment. The Applicant states she was bullied by Dr Heath throughout her employment, culminating in the Applicant being diagnosed with an acute stress reaction/disorder on 26 August 2020. Annexed to the Applicant’s statement was a copy of a workers’ compensation medical certificate from her medical practitioner. The medical certificate stated the date of injury was 19 August 2020 and the Applicant’s evidence is that she has remained unfit for work since this date.

[16] The Applicant made a claim for Workers’ Compensation on 27 August 2020 which was accepted by WorkCover Queensland on 6 October 2020. Compensation payments to the Applicant were backdated to 27 August 2020 and covered the full amount of the Applicant’s pre-injury earnings. The Respondent sought a review of the decision on 7 October 2020. On 25 January 2021, the Worker's Compensation Regulator issued a review decision which confirmed the decision of WorkCover to accept the Applicant’s claim. A copy of the decision of the Workers’ Compensation Regulator was also annexed to the Applicant’s statement. The Applicant has remained unfit for work since sustaining the injury, and it is not in dispute that the Applicant has not been in the workplace since 26 August 2020. Since this time, the Applicant stated she has had limited contact with Dr Heath relating to her workers compensation payments and superannuation, and there was no discussion concerning the termination of the Applicant’s employment until the letter of 22 February 2021, informing the Applicant of her dismissal.

[17] The Review Decision confirmed the earlier WorkCover Decision finding that the Applicant had sustained a personal injury of a psychological nature, best described as an acute stress disorder. It was also found that the injury arose out of or in the course of the Applicant’s employment and that the employment was a significant contributing factor. In this regard, the Applicant had nominated four factors involving Dr Heath, which she claimed had caused her injury. The first of these factors was the Applicant being stood down from her employment due to COVID-19 and health concerns based on her age and having been informed of the stand down by text message and email. The second factor related to allegations that the Applicant had been ignored and belittled by Dr Heath. The third factor concerned proposed roster changes sought to be implemented by Dr Heath. The fourth was a text message sent to the Applicant by Dr Heath on 25 August 2020 wherein Dr Heath stated to the Applicant that he had made alternative arrangements (presumably for work coverage) because he had not heard from the Applicant.

[18] Factor 1, the stand down was considered to have been established. In relation to Factor 2 – alleged ignoring and belittling of the Applicant, it was concluded that there was insufficient evidence to determine whether the events described by the Applicant relevant to this matter were substantiated and the factor was not considered further. Factor 3 concerning the proposed roster change was established and Factor 4 concerning the text message was found to have occurred after the Applicant had sustained her injury and was determined not to be relevant for consideration. Based on Factors 1 and 3, the injury was found to have arisen out of management action. The Review Decision concluded that these factors were reasonable management action taken in an unreasonable way.

[19] In relation to the stand-down, it was concluded that while it was reasonable for the Respondent to have taken action to protect an employee’s health in light of the unprecedented circumstances brought about by COVID-19, such management action was not taken in a reasonable way. This conclusion was based on the fact that the Applicant was not consulted about the stand-down and was advised on a public holiday by text message and email that she was being stood down and that taking this step without prior consultation or warning was unreasonable. It was also noted that there was no reference to specific recommendations of the Australian or Queensland Government that supported the Company’s actions and that measures had been put in place to protect other staff with no explanation as to why these could not have been utilised to protect the Applicant and allow her to remain in her employment.

[20] With respect to the roster change, the Review Decision was that it is reasonable for an employer to consult with staff in relation to a roster change that it considers necessary to carry out its business but that this action must be undertaken in a reasonable way. It was also noted that it was unclear whether the roster change was proposed for operational reasons or to meet the concerns of another staff member. It was concluded that the following conduct on the part of Dr Heath was unreasonable:

•  Directing staff who did not want to change their roster to sort it out between themselves;

•  Lack of clarity about the roster change;

•  Delay in pursuing the issue; and

•  Dr Heath raising his voice during discussions with the Applicant about the roster change.

[21] In relation to Dr Heath raising his voice, the Review Decision notes that there is evidence that the Applicant also raised her voice but that Dr Heath as a manager should have provided an example of appropriate workplace conduct.

[22] As previously noted, the Applicant was absent from the workplace and in receipt of workers compensation payments, from 26 August 2020. This situation continued until 22 February 2021, when the Applicant received an email from Dr Heath which attached a letter and asked that the Applicant confirm receipt. The letter, marked “without prejudice”, was in the following terms:

“Dear Deborah,

Regarding: Reception Position - Health Professionals and Support Services Award, 2010, [MA000027], 27 Jun 19 Noosa Health Centres

I am in receipt of your medical certificates dated from 19 Aug 20, which preclude you from undertaking your position. As part of the mandatory insurance carried by Teewah Power Co, you have continued to be paid, albeit without access to Jobkeeper payments or the accumulation of further leave entitlements since that date.

As previously advised, discussion of your formal performance review did not occur; this was requested prior to 19 Aug 20.

I am formally advising you, therefore, that your employment with Teewah Power Co has been terminated due to your continuing incapacity to undertake the position. The effective date is 16 Sep 20. I note that Superannuation payments continued until December 20 which are not provided for by Work Cover. I request you liaise directly with WorkCover regarding any further payments and management of your claim.”

[23] The letter noted that it was carbon copied to WorkCover Queensland and the email and the attached letter was copied to a person with a WorkCover Queensland email address. The Applicant and Dr Heath then engaged in correspondence designated as “without prejudice” which was tendered by the Applicant. The Applicant wrote to Dr Heath on 26 February 2021 to gain further understanding as to why she had been terminated and to seek payment of accrued annual leave and long service leave entitlements. The letter stated:

“Dear Richard

I am in receipt of your letter of 22 .2.21 terminating my employment with Teewah Power Co. Pty Ltd (Teewah) effective from 16th September 2020. You may wish to clarify why this date was chosen please.

I am advised that Teewah cannot terminate my employment retrospectively particularly as I was on sick leave at that specific time & because I am presently on Workcover.

So that we don't get embroiled in legal argument will you kindly advise what legal precedent/advice you (Teewah) are relying on to make this determination.

You will be aware that my incapacity to fulfil (sic) my receptionist duties with Noosa Health Centres is a direct consequence of the very considerable mental health issues I have incurred whilst in your employ & continue to incur since being formally diagnosed with ‘Acute Stress Reaction/Disorder’ as a consequence of bullying at workplace by employer as described by Dr. Hoffman in his numerous Workers Compensation Medical Certificates since 26th August 2020.

A claim with Workcover of bullying by you was accepted by Workcover Queensland (Workcover) on 7th October 2020. On that day you lodged a request for review with the Workers' Compensation Regulatory Services, Office of Industrial Relations & their decision on 25th January 2021 vindicated the original decision by Workcover. As you have said in your email of 25th January 2021 you advised the OIR Review Officer you shall leave Workcover to deal with the claim based on your review & as you have elected not to pursue the decision further, I can only conclude that you accepted the bullying claim.

Unless you are able to provide legal evidence/advice to the contrary, I consider my effective date of termination by Teewah to be 22nd February 2021. Accordingly, I believe I am entitled to payment from Teewah as follows:

1) Outstanding leave accrued up to & including 22.2 .21 at the hourly rate of $30.91

2) Outstanding long service leave accrued up to & including 22.2.21 at rate of $30.91

Further, on advice I have, you (Teewah) as my employer up to & including 22.2.21 is required to pay the Superannuation Guarantee Levy on the payments I have received from & presently continue to receive from Workcover. Should you have legal opinion to the contrary I would appreciate a copy.

It is extremely disappointing that as a qualified medical practitioner of over thirty years' experience that I have been treated in the manner you have treated me primarily with the age discrimination you displayed in your stand down text & email on Easter Monday (13th April 2020), further age discrimination during a meeting with Tina, yourself & me on 23rd June 2020, your discussion with Barrie Whelan in June 2020 that you wanted to get rid of me as disclosed in his subsequent statement to Workcover, The proven bullying in your capacity as employer (i.e. Director of Teewah) & now wrongful dismissal. I offered to resolve our differences with you as stated in my email of 1st September 2020 but this was ignored. At no time in this very stressing & anxious time to me have you taken the time to ask how I was doing or try to show some form of empathy to an employee of 9 plus years of service.

For your information, your request for a Performance Review meeting was dated 25th August 2020 which was just 4 days after attending Dr Hoffman; it was not prior to 19th August 2020 as stated in your letter of 22.2.21. I can provide a copy of your letter if you wish. It should be pointed out that at no time up to & including the date of your review letter have you given me any reason to believe I had performance issues. Other doctors in the practice have indicated they had no issues with my performance. The timing of your letter enormously added to my stress.

It would be appreciated if payment could be made before the close of business Wednesday 3rd March 2021. If my entitlements are not received by that date, the matter will be referred to the Fair Work Ombudsman.”

[24] Dr Heath replied to the Applicant’s letter by a letter dated 4 March 2021, as follows:

“Dear Deborah,

…

Further to your letter of 26 Feb 2l regarding your employment termination.

The review of your Work Cover claim S20EG723939 demonstrated ‘reasonable management’ but ‘unreasonable communication’. The management of the claim and injury has been vested with Work Cover and your General Practitioner since your initial certificate and claim acceptance on 7 Oct 20.

The formal Performance Review undertaken prior to your claim, in consultation with the Fair Work Commission, was unsatisfactory. There was no opportunity to discuss this review with you.

At 19 Sep 20 your leave entitlements amounted to $3,809 86. This amount with tax subtracted will be paid by the end of this month. Please refer to your ‘MyGov’ account for reconciliation.

Superannuation, based on payments from Work Cover ($910.36) will be paid and finalised to 22 Feb 21 as part of the March Superannuation payment.

Please forward any written advices you may have. If this proposal is unacceptable, mediation through the Fair Work Commission is welcome.”

[25] The Applicant consulted with the Health Services Union and instructed the Union to file an unfair dismissal application on her behalf. The application was filed on 9 March 2021. Following a conciliation conference in relation to the matter, the Applicant became concerned she had not received all her accrued leave entitlements following her dismissal. Mr Fry wrote to Dr Heath on 25 March 2021 on the Applicant’s behalf seeking copies of the Applicant’s employment records.

[26] Dr Heath responded to the email on 25 March by return email directly to the Applicant. The email attached a letter addressed to the Applicant, in the following terms:

“Dear Deborah,

Regarding: Reception Position - Health Professionals and Support Services Award, 2010, [MA000027], 27Jun19 Noosa Health Centres

Further to my without prejudice letter of 22Feb21, I formally rescind my termination advice, as your WorkCover claim has not been finalised. I request you liaise directly with WorkCover regarding management of your claim.”

[27] The Applicant did not accept the purported recission of the termination of her employment. The Applicant’s evidence is that she remains unfit for work and whilst she loved working at Teewah Power, she was terrified to continue working with Dr Heath. The Applicant also said in her evidence that she considered it would take considerable time before her psychological health and day to day living standards returned to anywhere near normality. The Applicant stated she faces the possibility of not finding a fulfilling position commensurate with her skills as a medical receptionist with over 11 years’ experience, and that at 67 years of age, she was not certain the workforce would teach her new skills when there are so many younger people looking for employment. The Applicant also stated she was placed under additional stress as she believed she has not been paid her full entitlements. This claim is based on the purported retrospective date of dismissal and the fact that accrued entitlements have not been paid for the period between 16 December 2020 (when the dismissal was said to have taken effect) and 22 February 2021 when the Applicant was notified of her dismissal. The Applicant further contends that Dr Heath continues to ignore the correspondence of the Applicant’s HSU representatives and correspond directly with the Applicant.

[28] At the hearing, the Applicant gave oral evidence in support of her application. The Applicant confirmed that her usual wage while working for the Respondent was $1,731.36 per fortnight and that she had been in receipt of weekly amounts from WorkCover equal to her usual wage, since 26 August 2020. At the date of hearing the Applicant was still receiving WorkCover payments and was unable to state the estimated duration of her incapacity for work. The Applicant also confirmed that while she wanted to return to work as soon as possible, she no longer wanted to work for Dr Heath and did not wish to return to her employment with the Respondent. In relation to how long she would have remained in employment but for her dismissal, the Applicant said that she had planned to work a further three or four years as long as she was healthy and fit to do so.

[29] In response to a question posed to her by Dr Heath in cross-examination, the Applicant accepted that the Respondent’s employees worked flexibly, including on days that were not routine, because of the nature of the Respondent’s business.

[30] Consistent with my Directions at the hearing, a further affidavit of the Applicant was filed on 31 May 2021, which annexed a copy of a document detailing the workers compensation payments the Applicant had received at the time of the hearing of her application. The document evidences the Applicant commenced receiving payments for weekly benefits on 9 November 2020, which also included back payment of those benefits from 28 August 2020. The document also evidences that the Applicant has received a total of $33,415.25 (gross) from 28 August 2020 to 31 May 2021 in weekly compensation. The Applicant’s next medical assessment with Dr Hoffman was scheduled for 4 June 2021 and at the time the affidavit was filed the Applicant was unsure about what his assessment of her capacity would be and does not have a timeline for a full recovery.

[31] In the further affidavit, the Applicant said that on 13 November 2020, she was referred to a company called Work Rehab Pty Ltd to assist her to obtain new employment following her injury. The Applicant completed a work trial with the St Vincent de Paul Nambour from 13 January 2021 until 10 March 2021 and worked for three days per week (Monday, Tuesday and Wednesday). The first week was three hour per day and progressively increased to eight hours per day. Between 22 March 2021 and 27 April 2021, the Applicant completed an online training course with Work Rehab. The Applicant has yet to gain new employment, particularly as her medical practitioner has not determined that the Applicant is fit to do so.

[32] In a supplementary statement filed on 3 September 2021, the Applicant provided information about her assessment by Dr Hoffman on 4 June 2021. The Applicant said that following this assessment, she was issued with a new workers compensation medical certificate stating that she is fit for suitable duties from 4 June 2021 to 2 July 2021. The Applicant has had two further appointments with Dr Hoffman on 2 July and 27 August 2021. After these examinations the Applicant was issued with further medical certificates stating that she is fit for suitable duties. On 24 August 2021, the Applicant received a letter from WorkCover Queensland informing her that she was required to attend an appointment for an independent medical examination to be conducted by a specialist Psychiatrist, for the purposes of the specialist providing a report to WorkCover with a medial report that will assist with providing options for treatment and rehabilitation of the Applicant. The Applicant states that she spoke to her case manager at WorkCover Queensland about attending the appointment and was informed that it was to see if she needed further treatment. The Applicant attended the appointment on 24 August 2021 but to date has not received a report or feedback from WorkCover.

[33] The Applicant has continued to receive weekly workers compensation benefits since her last statement but understands that the independent medical examination may affect her ongoing workers compensation benefits although no changes to these have been advised. The Applicant also provided further submissions outlining that if she continues to be unfit for work, she is entitled to receive workers compensation payments in the gross amount of $865.68 per week until 26 August 2022 at which point the payments will reduce to $476.30 per week.

[34] In its Form F3 response to the Applicant’s contentions in her Form F2 application, the Respondent said:

“The dismissal is fairly covered and was referenced through the Fair Work Commission. The Work Cover claim was used to obviate the following performance deficits:

- Decreased cognitive function as evidenced by increased transcription and data entry errors, and diminished insight into both increased complexity and scope of the position,

- Refusal to consider roster and site changes as discussed which were specified in Mrs Brittain’s original letter of appointment.

- Increased complaints, both verbal and written, from patients, and other staff,

- Refusal of other clerical staff to be rostered on with Mrs Brittain,

- Difficulty with both taking instructions and giving instructions (as a Senior Receptionist)

It was originally planned to undertake a formal review of the above performance issues, and move to a mutually agreed remediation with a specific timeline. The sudden departure of a senior staff member in a small business was managed with the help of other staff working additional hours and the recruitment of a replacement staff member whilst Mrs Brittain was continued to be paid, initially by Teewah Power Co, and then Work Cover Queensland. ALL accumulated benefits and Superannuation have been paid at this time.”

SUBMISSIONS

[35] It is submitted by the Applicant that her dismissal was not for serious misconduct but rather her “continued incapacity to undertake the position” as evidenced in the termination letter. Accordingly, the first limb of the Small Business Fair Dismissal Code is irrelevant to the termination of the Applicant’s employment. The Applicant’s uncontested evidence is that at no point was she provided with any warning or notice that she was at risk of being dismissed and nor was she provided any opportunity to respond to the proposition that her employment was at risk of being terminated. Therefore, as the second limb of the Code is not met by the Respondent her dismissal cannot be deemed to be consistent with the Code and does not present a jurisdictional barrier to the application before the Commission.

[36] The second matter in contest between the parties is whether the dismissal was harsh, unjust or unreasonable. To determine whether the dismissal was harsh, unjust or unreasonable, the Commission is required to consider the factors under s. 387 of the FW Act. In relation to whether there was a valid reason for the dismissal, the Applicant submits that the letter of termination is explicit that the reason for the termination was the Applicant’s “continued incapacity to undertake the position.” It is also submitted that the Applicant was an injured worker with a compensable injury under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WC Act). Accordingly, it is contended that the termination of the Applicant within 12 months of her injury is in breach of s. 232B of the WC Act, which relevantly provides:

“232B Dismissal of injured worker only after 12 months

(1) Within 12 months after a worker sustains an injury, the employer must not dismiss the worker solely or mainly because the worker is not fit for employment in a position because of the injury. Maximum penalty—40 penalty units.

(2) This section applies to a dismissal after the commencement of this section even if the worker became unfit before the commencement.

[37] In this regard, the Applicant submitted that workplace legislation is intended to work in harmony and the dismissal of the Applicant in breach of the Qld WC Act, means that a valid reason for dismissal cannot exist. Further, the Applicant submitted that it is only through a deficit in the FW Act that the termination of her employment was not a contravention of s. 352 of the FW Act. This is due to regulation 3.01 of the Fair Work Regulations 2009 (FW Regulations) excluding periods of workers compensation from an illness or injury of a prescribed kind and therefore removing the protection for a worker under s. 352 of the FW Act if the worker is terminated due to a temporary illness or injury after an absence of more than three months. The Applicant submits that the intent of this regulation was made clear in the Explanatory Memorandum in relation to the FW Regulations which states at paragraph 91:

“Subregulation 3.01(6) specifically provides that a period of paid personal/carer’s leave (however described) does not include a period of absence on paid workers’ compensation. This provision has been included to clarify that the protection is not intended to apply to employees on workers’ compensation. Specific protections in State and Territory workers compensation legislation that prohibit a person being dismissed because they are on workers compensation…”

[38] According to the Applicant, the FW Act assumes that employers would not terminate an injured worker in breach of State workers compensation legislation. However, the WC Act is “woeful deficient” in penalties for such a breach and redress can only be sought by the state regulator. In the alternative, if the Commission found the termination of the Applicant’s employment in contravention of s. 232B of the WC Act did not preclude the Applicant having been dismissed for a valid reason within the meaning of s.387(a) of the FW Act, the decision to dismiss the Applicant was still unreasonable as no medical information had been sought to form the view she could not return to the substantive position.

[39] In relation to the considerations in ss. 387(b) and (c) of the FW Act, it is submitted that the Applicant was only notified of the decision to terminate her employment by email sent on 22 February 2021. The Applicant had limited contact with Respondent since her injury on 26 August 2020 and the correspondence terminating her employment was the first time this outcome had been proposed to her. As a result, the Applicant was never provided with an opportunity to respond to the proposition that her employment could be terminated. The Applicant was not provided with an opportunity for a support person during the termination process as she was terminated via email without an opportunity to respond.

[40] As the reason for the dismissal was “continued incapacity to undertake the position”, s. 387(e) is not relevant to the proceedings. In relation to effect of the size of the Respondent’s enterprise and its access to human resource management expertise, on the procedures followed in effecting the Applicant’s dismissal, it is accepted that the Respondent is a small business with only ten employees. However, it is also pointed out that the Respondent claims to have sought advice about the dismissal from the Fair Work Commission and has the capacity to seek professional assistance from a vast array of professional services to ensure compliance with the FW Act.

[41] In relation to the consideration of other relevant factors under s.387(h) of the FW Act, it is submitted that the Commission should have regard to the loss of ongoing employment and amenity suffered by the Applicant when considering whether her dismissal was harsh. The Applicant’s evidence that she is still unfit for work due to the workplace injury caused by Dr Heath and the significant emotional stress suffered by the Applicant, are also submitted to be relevant matters for the purpose of determining that the dismissal was harsh. A further relevant matter is the fact that the Applicant has not been paid her statutory entitlements as the Respondent claims that the effective date of the dismissal was 16 September 2020. It is submitted that these matters weigh in favour of a finding that the dismissal was harsh.

[42] The Applicant also submits that in drawing conclusions on the mandatory factors for consideration in s 387 of the Act, the Commission should note the statement of principle from Byrne v Australian Airlines Ltd 2 that the concepts of whether a dismissal is harsh, unjust or unreasonable may overlap. In the present case, the Applicant’s dismissal is unreasonable and unjust because there was no valid reason for the dismissal, the dismissal was in breach of s. 232B of the WC Act and there was no proper opportunity for the Applicant to respond to the proposition to terminate her employment. The dismissal was also harsh in its consequences for the Applicant in her individual circumstances. Accordingly, the Commission should conclude that the dismissal was harsh, unjust and unreasonable and as such that the dismissal was unfair.

[43] In supplementary submissions filed on 31 May, the Applicant provided the following information in relation to remedy. Since the commencement of the claim, the Applicant has received a total of $33,415.25 (gross) in workers compensation payments in weekly instalments of $865.68 (gross). Workers’ compensation payments commenced on 9 November 20205 on a fortnightly basis, with back payments to 28 August 2020. The Applicant has participated in a work trial and completed an online course to assist her in obtaining new employment. However, the Applicant cannot obtain new employment as she remains unfit for work. At that stage, the Applicant’s next assessment with her treating doctor was scheduled for 4 June 2021 and it was unknown when the Applicant’s capacity for work will be upgraded as her injury is psychological and does not have a set time for recovery.

[44] It was also submitted that the ongoing weekly payments that the Applicant will receive through the Queensland Workers Compensation Scheme will depend on how long she continues to have no capacity for work. In this regard, the WC Act provides the statutory entitlement for weekly payments for injured workers. Section 144A of the WC Act sets out when weekly payments to a worker will cease and provides as follows:

144A When weekly payments of compensation stop

(1) The entitlement of a worker to weekly payments of compensation under part 9 stops when the first of the following happens—

(a) the incapacity because of the work related injury stops;

(b) the worker has received weekly payments for the incapacity for 5 years;

(c) compensation under this part reaches the maximum amount under part 6.

(2) If subsection (1)(b) or (c) applies, the worker’s entitlement to further compensation for the injury stops.

(3) Subsection (2) does not apply to the worker’s entitlement to compensation under chapter 4A.

(4) This section does not limit another provision of this Act that stops weekly payments.

[45] Therefore, the weekly workers compensation payments to the Applicant will cease when the first of three possible events occur:

a. The Applicant is assessed by Dr Hoffman and is found to have capacity to return to work (either with the Respondent or any other employer); or,

b. The Applicant has been in receipt of weekly payments for a period of 5 years; or,

c. The Applicant’s total compensation exceeds the maximum entitlement as defined in Part 6 of the Qld WC Act, being 216.1511 x the Queensland full-time adult persons ordinary time earnings (QOTE). The current QOTE is $1,609.30 (gross) per week. Therefore, the total compensation cap is $347, 850.20 (gross).

[46] Section 150 of the WC Act sets out how the Applicant’s weekly payments are calculated whilst she remains unfit to perform any work. The Applicant’s current weekly payments are set at $865.68 (gross) per week as per s. 150(1)(a)(ii) of the WC Act. The Applicant’s weekly payments were not reduced as per s. 150(1)(b) of the Qld WC Act as weekly benefit being received was lower than the amounts prescribed in s. 150(1)(b)(i), being 75% of the NWE and s.150(1)(b)(ii) being 70% of the QOTE. If the Applicant remains unfit for work, her weekly payments will reduce on 19 August 2022 to $476.36 (gross) per week in accordance with s. 150(1)(c)(ii) of the WC Act.

[47] It is submitted that the ongoing weekly workers compensation payments made to the Applicant, while subject to the provisions of s. 150 of Qld WC Act, ultimately depend upon how long she remains unfit work. Given the nature of the injury, the timeline for the Applicant’s recovery is hard to predict. However, once she is cleared for work, the Applicant’s payments will cease in accordance with s. 144A(1)(a) of the Qld WC Act. If the Applicant remains unfit, her current rate of compensation (being $865.68 (gross) per week) will continue until 19 August 2022.

[48] In oral submissions, the Applicant raised the following matters. In relation to whether the Applicant’s dismissal was consistent with the Small Business Fair Dismissal Code, it was submitted that the Respondent had not provided proof that it was in fact a small business. There was no valid reason for the Applicant’s dismissal in circumstances where the Respondent had failed to consult the Applicant or investigate the extent of her incapacity for work before deciding to dismiss the Applicant and the dismissal was a breach of s. 232B of the Workers’ Compensation and Rehabilitation Act 2003. In this regard it was submitted that the termination letter sent by Mr Heath to the Applicant on 22 February 2021 3 makes specific reference to medical certificates precluding the Applicant from undertaking her role and that the termination of her employment was due to continuing incapacity to undertake her position with the termination of employment purporting to operate retrospectively, from 20 September 2020.

[49] It was also submitted that the Commission should have regard to the fact that the Applicant had sustained a psychological injury caused by bullying carried out by Dr Heath and that the Applicant was incapacitated because of this conduct. The Applicant had not been afforded procedural fairness and the conduct she had been subjected to removed any opportunity for the Applicant to return to work because of fear that she would be subjected to further behaviour of the kind that led to the injury.

[50] Other matters said to be relevant to the assessment of compensation for unfair dismissal are that the Applicant had received workers’ compensation payments because of the conduct of Dr Heath and remains unfit for work because of that conduct. The Respondent had ignored its obligations under workers’ compensation legislation and effected termination of the Applicant’s employment within 12 months of her injury. The Applicant is unfit for work and has no prospect of transitioning to return to work for the Respondent because of Dr Heath’s conduct. Other factors which the Commission should weigh are that it is a perverse outcome if a worker can be unfairly dismissed and receive no compensation where the employer is the cause of an injury. It was contended that the Applicant had “fallen into a strange crack” but still sought redress.

[51] In response to a question from me as to how I would assess the anticipated period that the Applicant would have remained in employment for the purposes of assessing compensation, and what if any loss the Applicant had suffered given the workers’ compensation payments she had received, Mr Fry for the Applicant said that this is unknown, but when all of the factors are considered, limiting compensation based on these considerations would be inconsistent with the Objects of the FW Act. This was particularly so given the manner in which the termination of the Applicant’s employment was effected and the reasons.

[52] Dr Heath for the Respondent submitted at the hearing that he had made a mistake drafting the termination letter dated 22 February 2021. Dr Heath contended that he had attempted to rescind the termination letter and would take the Applicant back into employment immediately, if possible. Dr Heath also contended that he had consulted lawyers “nominated by FWC” and as advised conducted performance reviews of all staff. In relation to the Applicant’s workers’ compensation claim, Dr Heath said that the claim had been accepted on the basis that reasonable management decisions were unreasonably communicated. This was said to be partially because Dr Heath was dealing at the time with the death of his father and his mother’s dementia.

[53] Dr Heath also said that he had communicated with the Applicant in writing rather than face to face discussions because the Applicant was absent on workers’ compensation leave and he did not want to exacerbate the matter by discussing it with her. Dr Heath reiterated that if the Applicant wished to return to work the Respondent would be glad to have her and if the Applicant did not wish to return to work the Respondent would be guided by the Commission as to appropriate compensation. Dr Heath maintained that he has good relationships with employees and pointed to the fact that in the period between the Applicant going on sick leave in August 2020 and having her workers’ compensation claim approved in November, the Respondent kept paying the Applicant.

LEGISLATION

[54] In unfair dismissal cases where the employer is a small business employer, the Commission must first consider whether the dismissal was consistent with the Code. The Code has two limbs: “summary dismissal” upon the ground of serious misconduct and “other dismissal” based on the employee’s conduct or capacity to do the job. The Code is not located in the Act or the Regulations. Rather it is governed by a Ministerial Declaration pursuant to s. 388(1) of the Act. The terms of the Code are as follows:

“Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.

Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair, it is sufficient, though not essential, than an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned either verbally, or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem having regard to the employee’s response.

Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer may be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to the Fair Work Commission..

Evidence may include a completed check list, copies of written warning(s), a statement of termination or signed witness statements.”

[55] It has been observed by Members of the Commission that the provisions of the Code are “inelegantly expressed” 4 and “somewhat confusing”,5 and as Anderson DP said in Hart v Forex 1 Pty Ltd ATF Trading Rental Trust6, interpreting the requirements of the Code with respect to “Other Dismissal” – dismissal for reasons other than those justifying immediate or summary dismissal – is no straightforward task. I share those views.

[56] It is clear from the Explanatory Memorandum to the Act that the intent is to provide a simpler and more streamlined unfair dismissal regime for small business employers and to reduce the burden placed on small business employers by the provisions of the Act relating to unfair dismissal. In this regard the Code focuses on steps small business employers must take to carry out a fair dismissal. If a dismissal is consistent with the Code it is deemed to be fair, and the provisions in s. 387 of the Act do not operate and are not considered. As Hampton C observed in Grigonis v Adelaide Coffee Company Pty Ltd 7:

“In establishing the Fair Dismissal Code and the preliminary (jurisdictional) point associated with unfair dismissals in that context, the evident intention of Parliament was to establish a particular benchmark against which small business unfair dismissals would be initially considered. The question of fairness is to be assessed having regard to a modified set of considerations that recognise the more informal nature and circumstances of small business and the needs of employees.” 8

[57] In the terms of the Code dealing with “Other Dismissal” the drafters included a reference to “valid reason”. The first sentence of this part of the Code requires that the employee be “…given a reason why he or she is at risk of dismissal”. The second sentence requires that: “The reason must be a valid reason based on the employee’s conduct or capacity to do the job.” Consideration of whether a reason is valid is a separate consideration to the requirement that the employee be given a reason for dismissal although the reference to valid reason is a reference to the reason given to the employee.

[58] In relation to the reason being given to the employee, the language in the first sentence of the Code explicitly requires that this occur before a decision to dismiss has been made. That sentence refers to the employee being given a reason why he or she is “at risk of being dismissed”. These provisions can be contrasted with those which apply when the fairness of a dismissal is being assessed under s. 387 of the Act. Whether an employee is notified of a reason for dismissal as provided in s. 387(b) is a consideration that is weighed in the overall assessment of whether a dismissal was unfair and a finding that this step was not taken will not necessarily be fatal to a finding that the dismissal was fair.

[59] It appears from the terms of the Code dealing with “Other Dismissal” that if the employee is not given a valid for dismissal based on the employee’s conduct or capacity to do the job, prior to being dismissed, the dismissal will not be consistent with the Code. It is axiomatic that an employee cannot respond to a reason for dismissal if he or she is not informed of that reason before the dismissal is carried out and given an opportunity to respond. The requirement that the reason be given before a dismissal is carried out is consistent with the later requirements of the Code in relation to warnings and opportunity to respond. The effect is that under the Code the employer is stuck with the reason given to the employee before the dismissal is carried out and cannot rely on another reason including a reason which may not have been known at the time of the dismissal. This can be contrasted with consideration of whether there was a valid reason for dismissal as provided in s. 387(a) of the Act where in finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer. 9

[60] It is also the case that the requirement in the Code that the reason is a valid reason based on the employee’s conduct or capacity to do a job is not expressed subjectively, based on the view or belief of the employer on reasonable grounds. This can be contrasted with the “Summary Dismissal” part of the Code which refers to the belief of the employer on reasonable grounds that the employee engaged in conduct that justified summary dismissal (a subjective consideration) rather than whether the conduct occurred and was of sufficient gravity or seriousness such as to justify dismissal as a sound, defensible or well- founded response (an objective consideration).

[61] The terms “valid reason”, “capacity” and “conduct” have well-established meanings in the context of legislation governing unfair dismissal and have been used in legislation which pre-dates the Code. I can see no basis for giving these terms a different meaning in the application of the Code. The absence of reference in the “Other Dismissals” section of the Code to the reasonable belief of the employer as to the validity of the reason for dismissal is a further indication that the term should be given the same meaning as it has in s. 387(a) of the Act – a reason that is objectively sound, defensible and well founded and which justifies dismissal. Such a construction is not inconsistent with the legislative intent of the Code as evidenced by the Object of Part 3-2 of the Act in which the Code appears, which includes the needs of employers and employees and the intention to afford a “fair go all round”.

[62] “Capacity” is the employee’s ability to do the job required by the employer 10 including the work the employee was employed to do.11 Capacity is assessed objectively based on whether the work was performed satisfactorily and not whether the employee is working as well as could be expected or to the employee’s personal best.12 Capacity may also include circumstances where the employee is physically incapacitated so that he or she is unable to perform the inherent requirements of the role. The FW Act protects an employee from being dismissed due to a temporary absence for illness or injury for up to three months or up to three months in total in a 12 month period, or where an employee is on paid personal/carers’ leave for the duration of the absence. After three months, it is necessary to consider whether the employee is likely to return to his or her duties in the short or medium term.

[63] The requirements in the Code that there be a valid reason for dismissal and that the employee is informed of that reason before dismissal also imply that any response provided by the employee is required to be considered by the employer before deciding to dismiss the employee. Where an employer cannot provide evidence that the response was considered, there may be difficulty in establishing the validity of a reason for dismissal particularly where the response provides an explanation for the conduct or capacity which led to the dismissal. This is also consistent with the provisions of the Code in relation to warnings which state that any response to a warning made by the employee should be a matter to which the employer has regard.

[64] I proceed on the basis that the provisions of the Code relating to “Other Dismissal” require that:

1. Before dismissing an employee for reasons of conduct or capacity (other than those justifying summary dismissal) the employer must give the employee a reason why he or she is at risk of being dismissed.

2. The reason must be a valid reason (in the sense that it is sound, defensible and well founded and justifies dismissal) based on the employee’s conduct or capacity.

3. Conduct includes an omission 13 and capacity is the employee’s ability to do the job as required by the employer14 and also includes the employee’s ability to do the work he or she was employed to do.15

4. The employer must give the employee an opportunity to respond to the reason for dismissal before dismissing the employee.

5. The requirement that there be a valid reason for dismissal means that some consideration should be given to the response the employee provides. This will generally be required when the Commission is assessing whether the reason for dismissal was valid.

6. The employee must have been warned that he or she is at risk of being dismissed either for similar conduct or capacity issues or that the issue that is the subject of the warning has generally placed the employee’s employment at risk and that any repetition or further conduct or capacity issues will result in dismissal.

7. If the employee has previously engaged in conduct that has placed his or her employment at risk and has been warned in relation to it there is no requirement that a further warning be given and it will be sufficient if the employee is notified that the employer believes that the same conduct or further conduct that places the employee’s employment at risk has occurred and gives the employee an opportunity to respond before dismissing the employee.

8. The employee must have been given a reasonable opportunity to improve his or her performance prior to the dismissal being effected which may include the employer providing additional training and ensuring that the employee knows the employer’s job expectations.

9. An employee may request to have another person present to assist in discussions in circumstances where dismissal is possible provided that person is not a lawyer acting in a professional capacity. The employer is not required to offer a support person.

[65] If a dismissal was consistent with the Code then the dismissal is not unfair and does not fall to be considered against the criteria in s. 387 of the Act. If the Commission is not satisfied that the dismissal was consistent with the Code, the Commission must then consider whether the dismissal was unfair because it was harsh, unjust or unreasonable on the basis of the criteria in s.387 of the Act as follows:

“387 Criteria for considering harshness etc.

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

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

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

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

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

[66] Applying those criteria, a dismissal may be:

Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer. 16

CONSIDERATION

Was the Respondent a small business employer?

[67] I first consider whether the Respondent is a small business employer. The Respondent bears the onus of establishing the basis of its jurisdictional objection on this ground. The Respondent asserted that this was the case in its Form F3 Response stating that it had ten employees and 7 full time equivalent employees at the time the Applicant was dismissed and that the dismissal was consistent with the Small Business Fair Dismissal Code. The Form F3 Response filed by the Respondent was tendered by the Applicant as an appendix to her witness statement. The Respondent indicated in advance of the hearing that it would rely on the information in its Form F3 Response at the hearing. The Applicant did not dispute the assertion of the Respondent in relation to the number of employees at the time of her dismissal.

[68] In those circumstances, I do not accept the submission on behalf of the Applicant that the Respondent has not established that it is a small business employer. I am satisfied and find that the Respondent was a small business employer at the time the Applicant was dismissed and that the Code applies to the dismissal. It is therefore necessary to consider whether the dismissal was consistent with the Code.

Was the Applicant’s dismissal consistent with the Code?

[69] The letter notifying the Applicant of her dismissal states that the reason for dismissal is the Applicant’s continuing incapacity. This is notwithstanding that it also refers to a formal performance review which was not completed. In its Form F3 Response to the application the Respondent gave two additional reasons for the Applicant’s dismissal: The Applicant was the subject of an unsatisfactory performance review prior to making a claim for workers’ compensation and the Respondent had incurred payroll costs that were not covered by WorkCover, during the Applicant’s absence. While the letter notifying the Applicant of her dismissal refers to all of these matters, it clearly states that the reason for the Applicant’s dismissal was the Applicant’s continuing incapacity to undertake the position. I also observe that the reference to the performance review does not indicate that it was unfavourable, further evidencing that this was not a reason for the Applicant’s dismissal.

[70] Accordingly, the reason was not conduct of the kind listed in the provisions of the Code as justifying summary dismissal, but rather was for a reason caught by the “Other Dismissal” provisions of the Code. On the face of the letter informing the applicant of her dismissal, the reason for the dismissal was not associated with the Applicant’s conduct but rather, was based on the Applicant’s capacity to do her job. The failure of the Respondent to call evidence at the hearing means that I am unable to be satisfied that this was a valid reason for dismissal.

[71] There was no evidence that the duration of the Applicant’s absence was impacting on the Respondent or its operations so that it could not have given the Applicant a reasonable opportunity to return to work. To the extent that Dr Heath stated at the hearing that staff are needed and that he would have the Applicant back at work immediately, this supports the lack of valid reason for the Applicant’s dismissal. There is no apparent reason for the failure to maintain the Applicant’s employment while she recovered from her injury. Further, the failure to discuss the matter of her incapacity with the Applicant meant that the Respondent did not have a valid basis to conclude that she would be unable to return to work in the future.

[72] To comply with the Code the Respondent was required to inform the Applicant, either verbally or in writing, before deciding to dismiss her, that she was at risk of dismissal because of her continued incapacity to do her job. The Respondent did not comply with this requirement and did not inform the Applicant that she was at risk of dismissal for this reason. Neither did the Respondent inform the Applicant that she was at risk of dismissal for any other reasons including the alleged unfavourable performance review.

[73] As a result of the failure to inform the Applicant of the reason for her dismissal in advance of the dismissal taking effect, the Applicant was not provided with a chance to respond to these matters and was not given an opportunity to rectify them. Because the Respondent did not comply with procedural matters, there were no discussions about the dismissal and it is not necessary to consider whether the Applicant had another person present to assist her in discussions. Further, the Respondent has not completed the Checklist, a written warning or witness statements in relation to the dismissal to support his jurisdictional objection.

[74] Accordingly, I am unable to be satisfied that the dismissal complied with the Code. it is therefore necessary to consider whether the dismissal was unfair, having regard to the matters in s. 387 of the FW Act.

Was the Applicant’s dismissal unfair?

Was there a valid reason for the Applicant’s dismissal?

[75] The reasons for the Applicant’s dismissal are within the Respondent’s knowledge, and it is required to establish that the reason was a valid reason for the purposes of s. 387(a) of the FW Act. A valid reason for dismissal is one that is “sound, defensible or well-founded” and not “capricious, fanciful, spiteful or prejudiced.” 17 The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts.18

[76] I do not accept in the present case that the Respondent has established that there was a valid reason for the Applicant’s dismissal. The Applicant contends that her dismissal constitutes a breach of s. 232B of the Workers Compensation and Rehabilitation Act 2003 and that because of this a valid reason cannot exist.

[77] I accept that the Respondent cited the Applicant’s ongoing incapacity as a reason for dismissal and that the incapacity was as the result of an injury for which compensation was payable under the Workers Compensation and Rehabilitation Act 2003. I also accept that the Respondent has not called any evidence about the reasons for the Applicant’s dismissal and I am left with the Applicant’s evidence, the statements made by Dr Heath in the correspondence to the Applicant in relation to the dismissal and the statements made by the Respondent in the Form F3 Response to the application. In this regard, I note that the correspondence to the Applicant and the Form F3 Response refer to two other matters which may also have been reasons for the dismissal – a performance review and the on-costs associated with keeping the Applicant in employment .

[78] Section 232B of the Workers Compensation and Rehabilitation Act 2003 does not appear to prohibit dismissal of a worker within 12 months of an injury but rather, prohibits dismissal within that time period solely or mainly because the worker is not fit for employment in a position because of the injury. A contravention of that section carries a maximum penalty of 40 penalty units.

[79] In my view, it is neither appropriate nor necessary that I make a finding about whether the Applicant’s dismissal is a breach of this provision. In relation to the inappropriateness of making such a finding, firstly, the Commission does not have jurisdiction in relation to breaches of the Workers Compensation and Rehabilitation Act 2003. Secondly, the provision carries a penalty which is a serious matter and notwithstanding the lack of jurisdiction, any finding could potentially have implications for the Respondent. The submissions of the Applicant on what is a serious allegation, were inadequate. The terms of the section were not set out in the submissions and it was necessary for me to adjourn the hearing to give the parties a copy of the text of s. 232B of the Workers Compensation and Rehabilitation Act 2003. No case law was referred to about the application of the provision and there is insufficient evidence before me to make a finding about whether it has been breached.

[80] Thirdly, the Applicant’s submission that that penalties under the Workers Compensation and Rehabilitation Act 2003 for breaches of s. 232B of that Act are “woefully inadequate”, is not an appropriate basis for the Commission to address in a decision relating to an application for an unfair dismissal remedy. Nor is a decision relating to an unfair dismissal remedy an appropriate vehicle to address what the Applicant’s representative termed a deficiency in the FW Act and Regulations in relation to temporary absence due to illness or injury, which prevents the application being brought as a general protections dispute. Any such deficiency is a matter for the legislature.

[81] It is also not necessary for me to make a finding about the alleged breach by the Respondent of the Workers Compensation and Rehabilitation Act 2003 in circumstances where the issue I am required to consider pursuant to s. 387(a) of the FW Act is whether there was a valid reason for the Applicant’s dismissal. A finding in this regard is not contingent on establishing that the dismissal breached other legislation, although such a breach may be relevant.

[82] In the present case, I am satisfied and find that there was no valid reason for the Applicant’s dismissal. There was no evidence that the Applicant’s incapacity was having an impact on the Respondent at the point she was dismissed, for reasons such as it was not possible to replace her on a temporary basis while she was absent. There is also no evidence of financial issues caused by the Respondent continuing to pay the Applicant’s superannuation or other on costs during her absence either at the time of the dismissal or at the point her unfair dismissal application was heard. Further, in circumstances where the Respondent took no steps to communicate with the Applicant about the expected duration of her absence before deciding to dismiss her, there is no sound, defensible or well-founded reason for the Applicant’s dismissal.

Was the Applicant notified of the reason for her dismissal?

[83] Section 387(b) requires consideration of whether an employee is notified of “that reason” with reference to the valid reason for dismissal related to the employee’s capacity or conduct referred to in s. 387(a). In relation to whether the Applicant was notified of the reason for her dismissal consistent with s. 387(b), as a Full Bench of the Commission observed in Crozier v Palazzo Corporation Pty Ltd 19 procedural fairness requires that an employee be notified of a valid reason for dismissal before any decision to dismiss is taken, to provide an opportunity to respond to the reason identified.

[84] The Applicant was dismissed for reasons including capacity and possibly conduct. There was no notification to the Applicant that dismissal was in contemplation of the employer much less of the reasons for the dismissal. Accordingly, I find that the Applicant was not notified of the reason for her dismissal within the meaning in s. 387(b) of the FW Act.

Was the Applicant given an opportunity to respond to reasons for dismissal?

[85] As the Applicant was not notified of the reasons for dismissal, she was not given an opportunity to respond to the reasons to the extent those reasons related to her capacity and/or conduct as provided in s. 387(c).

Was there an unreasonable refusal to allow the Applicant a support person?

[86] There were no discussions with the Applicant relating to the dismissal and s. 387(d) is not relevant.

Was the Applicant warned about any unsatisfactory performance before dismissal?

[87] If the reasons for the Applicant’s dismissal included her poor performance review, there is no evidence that she had ever been warned about her performance, for the purposes of s. 387(e). The Applicant states that she had received no warnings during her employment and there was no evidence to the contrary. The letter notifying the Applicant of her dismissal also makes clear that the Applicant’s performance review had not been conducted at the point she was dismissed.

[88] I therefore find that the Applicant was not warned about any unsatisfactory performance that may have been the subject of the performance review referred to by the Respondent as a possible reason for dismissal.

Did the size of the enterprise impact on procedures followed in dismissing Applicant?

[89] The Respondent’s enterprise is a small business and I accept that it is likely that this had an impact on the procedures followed in effecting the dismissal. Dr Heath conceded – in my view correctly – that the letter he sent to the Applicant on 22 February 2021, purporting to retrospectively dismiss her, was a mistake which he sought to correct by withdrawing the letter.

[90] My general observation based on the correspondence sent by the Respondent to the Applicant, WorkCover, QComp and the Commission, is that the Applicant’s injury and her dismissal were badly handled by Dr Heath and I do not doubt that this is because of the size of the enterprise.

Did any absence of dedicated human resource management or expertise impact the dismissal?

[91] The Respondent’s enterprise does not have dedicated human resource management specialists or expertise. While Dr Heath claims that he was advised by the Fair Work Commission to take certain steps it is far from clear that the Commission is the body that he sought assistance from. That advice was also about performance appraisals rather than the Applicant’s dismissal. I accept that the lack of dedicated human resource management specialists or expertise in the Respondent’s enterprise impacted on the poor handling of the Applicant’s injury and the decision to dismiss her.

[92] I also accept that Dr Heath could have sought assistance in his dealings with the Applicant and did not do so. In all the circumstances of this case, this consideration is not a matter to which I have afforded significant weight given the other findings I have made.

Are there any other matters relevant to whether the Applicant’s dismissal was unfair?

[93] The following matters are in my view relevant to the overall consideration of whether the Applicant’s dismissal was unfair. At the time the Applicant was dismissed, she had been absent from the workplace for a lengthy period as the result of suffering an injury arising in the course of her employment. I accept that the duration of the absence and the nature of the Applicant’s injury, combined with her age, would make it difficult for the Applicant to have obtained alternative employment upon her recovery. I am also of the view that the failure of the Respondent to pay the Applicant’s statutory entitlements based on the misapprehension that the Applicant could be dismissed with retrospective effect, adds an additional level of unfairness to the Applicant’s dismissal.

[94] However, I do not accept the assertions made on behalf of the Applicant that she had been bullied by Dr Heath and that I should have regard to this in determining whether her dismissal was unfair. Firstly, neither WorkCover nor QComp found that the Applicant had been bullied by Dr Heath. To the contrary, the decisions of WorkCover and the QComp Review Unit found that that management action taken by Dr Heath, which gave rise to the Applicant’s psychological injury, was reasonable management action taken in an unreasonable way. The Applicant has been compensated for the nature of her injury by workers compensation payments and I do not accept the submission that the cause of the Applicant’s illness or the loss of amenity and emotional distress suffered by the Applicant because of the conduct of Dr Heath is a matter that should be afforded weight in considering whether her dismissal was unfair.

Conclusion in relation to whether the Applicant was unfairly dismissed

[95] Balancing the considerations in s. 387 of the FW Act, I find that the Applicant was unfairly dismissed. The Applicant’s dismissal was harsh because of its consequences for her future employment prospects in circumstances where she was suffering from an injury arising in the course of her employment when she was dismissed and her age. The harshness of the Applicant’s dismissal was exacerbated by the Respondent purporting to dismiss her retrospectively and refusing to pay her accrued statutory entitlements. The Applicant’s dismissal was unreasonable because the Applicant was dismissed in circumstances where she was not given an opportunity to respond to Dr Heath’s assertion that she was precluded from undertaking her position. In the absence of any inquiry by Dr Heath, he had no reasonable basis to conclude that the Applicant’s incapacity would be permanent. Further, there was no evident operational or organisational imperative preventing the Applicant’s position being filled temporarily while she was absent.

REMEDY

Should the Applicant have a remedy for her unfair dismissal?

Whether reinstatement is inappropriate

[96] In circumstances where I have found that the Applicant was protected from unfair dismissal at the time of being dismissed and she has been unfairly dismissed, s. 390(1) provides discretion for the Commission to order a remedy of reinstatement or compensation. As required by s. 390(2) the Applicant has made an application for an unfair dismissal remedy under s. 394 of the FW Act. By virtue of s. 390(3) the Commission must not order compensation unless satisfied that reinstatement of the person is inappropriate and the Commission considers an order for compensation is appropriate in all of the circumstances.

[97] The Applicant does not seek reinstatement and contends that it would be inappropriate because of the nature of her injury and the fact that the conduct the Applicant had been subjected to removed any opportunity for her to return to work because of fear that she would be subjected in the future to further behaviour of the kind that led to the injury. While Dr Heath offered to reinstate the Applicant and asserted in his submissions that he would be pleased for her to return to employment when she was fit to do so, Dr Heath did not give evidence on this point. Further, given the nature of the Applicant’s injury and her demeanour at the hearing I am satisfied that reinstatement would be inappropriate. I am also satisfied that there is little if any prospect that the Applicant will have the capacity to return to employment with the Respondent in future, because of her injury.

[98] In these circumstances, I am satisfied that it is not appropriate to order reinstatement (s 390(3)(a)). I must therefore consider whether it is appropriate in all the circumstances to make an order for payment of compensation (s 390(3)(b)). For reasons which will become apparent, I first consider the amount of compensation which could be awarded in the event that I thought it appropriate to make such an award.

[99] Section 392 of the Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered. I consider below each of the matters s. 392 of the Act.

Determination of amount of compensation

Remuneration that would have been received: s.392(2)(c)

[100] This consideration requires an assessment of the remuneration a person who has been unfairly dismissed would have received, or would have been likely to receive, had the person not been dismissed. It requires an estimation of how long the person would likely have remained in employment but for the dismissal and the remuneration the person would have received, or have been likely to receive, during that period. The estimated period must be related to a period fixed in time from the date of the dismissal. It may include a period that has already elapsed when the assessment or compensation is made or a period in the future. The lost remuneration and the estimated period of employment cannot be separated and the purpose of this step is to establish the starting point for the calculation of compensation. In this regard, it is well established that failure to have appropriate regard to financial loss suffered by a person who has been unfairly dismissed, may constitute an appealable error. 20

[101] While an injury or illness on the part of an employee may be relevant to the estimated duration of employment for the purposes of s. 392(2)(c) of the FW Act, it is not determinative. In the present case it is also necessary to note that the consideration is not how long the Applicant would have remained in employment but for her injury. The injury is one of the matters that must be considered. It is also important to note that in assessing compensation for the purposes of s. 392 of the FW Act, the Commission cannot compensate an injured employee for the injury or for lost remuneration directly arising from it. The lost remuneration must be as a result of an unfair dismissal.

[102] There are cases where the conduct of an employer is so unreasonable that the employee would not realistically have remained in employment for any significant period in the face of such conduct. In those cases, where dismissal causes financial loss, compensation should not be limited by the Commission estimating the likely duration of employment in a manner that allows the employer to benefit from that unreasonable conduct and it would be unfair to disregard the employer’s conduct separating it from the dismissal. In Iliades v Rail Corporation of NSW 21 (Iliades) a Full Bench of the Commission observed that there may be cases where if would be unfair for an employer to take advantage of its own unlawful conduct – for example an assault by an employer resulting in an incapacitating injury.22

[103] Illiades was an appeal against a refusal to grant an extension of time in which to file an unfair dismissal application. In overturning the refusal and granting the extension the Full Bench observed that the member at first instance had assumed that the Applicant was suffering from a medical condition that had been caused in part by bullying and harassment in the workplace. As a result, the Member at first instance concluded that the Applicant had other remedies for a dismissal and refused the extension on that basis. The comments of the Full Bench were made in the context of a factual scenario where the Applicant may have succeeded in an argument that her dismissal was harsh, unjust or unreasonable and had not sought a remedy in another jurisdiction. Iliades is not authority for the proposition that an employee injured at work, who receives compensation for the injury, must also receive compensation for unfair dismissal.

[104] In the present case, the Applicant’s injury was caused by reasonable management action taken in an unreasonable way. Unlike Iliades and other cases where the failure to consider financial loss suffered by the Applicant has been the subject of a successful appeal, the Applicant has been in receipt of workers compensation payments which have compensated her for financial loss, other than the loss of superannuation contributions.

[105] Notwithstanding that the conduct of Dr Heath was the principle factor that brought the Applicant’s employment to an end, the Applicant’s assertion at the hearing that she would have remained in employment for a period of three to four years is contradicted by her own evidence. Upon receipt of the letter from Dr Heath dated 22 February 2021, purporting to retrospectively terminate her employment with effect from 16 September 2020, the Applicant’s response, was effectively to seek payment of her accrued entitlements and superannuation contributions up until 22 February 2021. It was only after this claim was refused by Dr Heath in a letter of 4 March 2021, that the Applicant filed her unfair dismissal application.

[106] I also note that the Applicant’s correspondence to Dr Heath conveys her anger and disappointment with the manner in which she has been treated. While this is understandable, the tone of the Applicant’s letter indicates that her relationship with Dr Heath was not such that her employment would have continued for the period the Applicant asserts. The Applicant’s letter also refers to an earlier offer made in September 2020, to resolve her differences with Dr Heath. While the correspondence does not clearly indicate that the Applicant would have accepted her statutory entitlements and not made an unfair dismissal claim if they had been paid, these matters point to an employment relationship which was not likely to continue for a lengthy period.

[107] Further, I note that one of the issues which led to the Applicant’s injury was associated with a request from Dr Heath that the Applicant change her working hours. The Applicant objected to the request. Significantly, the WorkCover Decision and the QComp Review tendered by the Applicant, make clear that it was not unreasonable for Dr Heath to request the change to the Applicant’s working hours, and that the issue was that the request was made in an unreasonable way. Had the Applicant remained in employment, Dr Heath could have pursued the change to the Applicant’s working hours, and subject to complying with award requirements in relation to consultation, that change could have been imposed, notwithstanding the Applicant’s objection. These matters, combined with the antipathy displayed by the Applicant to Dr Heath during the hearing of her application, evidence that the employment relationship would not have subsisted for three to four years as claimed by the Respondent.

[108] The Applicant has indicated that she does not wish to return to work and maintains the view that if she does so, she will suffer further injury. Accordingly, at the point this application was heard, the Applicant had no prospects of returning to work with the Respondent and it is certain that this situation will continue. Even if the Applicant recovers and is able to resume work, it is certain that she will not return to work for the Respondent. I accept that the Applicant’s position in this regard is the result of Dr Heath’s conduct and that the Respondent should not benefit from that conduct by virtue of a reduction in the estimated period of employment because of the impact on the Applicant’s future employment caused by the injury. I have had regard to this matter in my estimation of the estimated period the Applicant would have remained in her employment but for her unfair dismissal.

[109] Against this consideration I also balance the fact that the Respondent is a small business and while there was no evidence at the hearing in relation to any difficulties the Respondent was having holding the Applicant’s position open, it is unlikely that this situation could have continued indefinitely given there was no prospect of the Applicant returning to work. Further, there was no obligation on the Respondent to hold the Applicant’s position open indefinitely in circumstances where she could not return to work. It is relevant that the Respondent could have dismissed the Applicant on 27 August 2021, 12 months from the date of her injury, without breaching s. 232B of the WC Act, notwithstanding that it may have been unfair to do so.

[110] In my view, at or around 27 August 2021, the Respondent should have initiated a discussion with the Applicant in relation to the likelihood of her return to work. The Applicant’s views should have been sought and she should have had an opportunity to consider her position and the consequences of indicating that she could not return. However, in light of the evidence in this case, I am also of the view that such discussion would not have changed the outcome, that the Applicant could not have returned to work and her dismissal would have been inevitable at that point.

[111] In those circumstances, I determine that the Applicant’s employment would have continued until 30 September 2021, which would have provided a reasonable period after the restriction on dismissal under s. 232B of the WC Act, for Dr Heath to have had a discussion with the Applicant about returning to work. It is improbable that this discussion would have resulted in the Applicant returning to work given that she has rejected several offers of reinstatement made by Dr Heath. However, in order to effect a fair dismissal this discussion was required.

[112] Accordingly, I find that the Applicant would have remained in employment until 30 September 2020, a total of 31 weeks. In that period the Applicant would have earned $23,836.08 gross (based on her salary of $1,731.36 per fortnight) plus superannuation contributions of 9.5% of that amount, totalling $2,264.42.

Remuneration earned: s.392(2)(e)

[113] The Applicant’s evidence establishes that she has been in receipt of weekly workers’ compensation payments from 28 August 2020 in the amount of $865.68 per week which is equal to her fortnightly pay had she remained in employment. The Applicant continued to receive those payments at the point her application was heard and was still receiving this amount on 3 September 2021, being the date the Applicant gave her supplementary statement. The Applicant’s evidence also establishes that she will continue to receive workers’ compensation payments in this amount until 19 August 2022, unless the Applicant is fit to resume work before that date, whereupon her workers’ compensation payments will cease. If the Applicant remains unfit for work on 19 August 2022, she will continue to receive workers’ compensation payments based on a lesser amount after that date.

[114] Consistent with the Decision of the Full Bench of the Commission in Sprigg v Paul’s Licensed Festival Supermarket 23 workers compensation payments are considered as moneys earned since termination and are deducted from remuneration that would have been received had the Applicant remained in employment for the estimated period determined for the purposes of s. 392(2)(c). Having regard to the workers compensation payments received by the Applicant, the total amount of remuneration received between the date of dismissal and the making of an order (if an order was made as a result of this Decision) is estimated as $23,836.08 (37 weeks at $865.68). This amount is equal to the amount determined as the remuneration the Applicant would have received if she had not been dismissed.

[115] Had the Applicant not been dismissed, she would also have been entitled to receive superannuation contributions by virtue of clause 20.5 of the Clerks Private Sector Award. The Applicant did not receive superannuation contributions after her dismissal on 22 February 2021. Accordingly, her lost remuneration for the estimated period she would have remained in employment is $2,264.42 in superannuation contributions to which she would have been entitled.

Income likely to be earned: s.392(2)(f)

[116] Based on the continuing workers compensation payments the Applicant is receiving, I am satisfied that the Applicant is likely to continue to be paid an amount of $865.68 per week between the making of any order for compensation (should I determine to make such an order) and the payment of any compensation. However, the estimated period that the Applicant’s employment would have continued has now passed and it is not necessary to consider this matter further.

Other matters: s.392(2)(g)

[117] I find it is not appropriate in the circumstances of this case that a contingency should be applied, given the status of the Applicant’s workers’ compensation claim and the likelihood that she will continue to be paid workers’ compensation entitlements until August 2022.

[118] I do not accept the submission advanced for the Applicant that I should have regard to the nature of her injury or its cause in assessing compensation for unfair dismissal. The nature and the cause of the injury are properly compensated for by workers compensation payments. Neither do I accept that any amount of compensation should be awarded on the basis that the Applicant was not paid statutory entitlements on termination of her employment. There are cases where a dismissed employee suffers financial loss because of an unfair dismissal which is exacerbated by a failure to pay statutory entitlements. This is not such a case. Here, the Applicant has suffered no financial loss in terms of wages because of her unfair dismissal, by virtue of her receiving workers compensation payments. If the Applicant’s statutory entitlements on termination of her employment have not been paid, the Applicant may recover them in a court. Similarly, any failure on the part of the Respondent to pay the Applicant’s statutory superannuation contributions prior to her dismissal, may be recovered by the Applicant through the Australian Taxation Office.

[119] I also do not accept that it is appropriate to award an amount of compensation to offset what the Applicant’s representative contends are inadequate penalties for breach of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) or a perceived deficiency in the FW Act in relation to dismissal of employees temporarily absent due to illness or injury. The powers of the Commission to award compensation are limited to lost remuneration calculated in accordance with the matters specified in s. 390 of the FW Act.

Viability: s.392(2)(a)

[120] I find that an order for compensation, if made, would not affect the viability of the Respondent’s enterprise, on the basis that the Respondent did not call any evidence to the contrary.

Length of service: section s.392(2)(b)

[121] I accept that the Applicant had a period of some nine years’ service with the Respondent and that this weighs in favour of an award of compensation for the Applicant’s unfair dismissal.

Mitigating efforts: s.392(2)(d)

[122] In considering whether the Applicant has taken steps to mitigate the loss suffered as a result of the dismissal, I consider that the Applicant has acted reasonably in not seeking alternative employment in another enterprise in circumstances where she has been unable to work due to an injury arising in the course of her employment with the Respondent.

[123] However, it is also the case that the Applicant rejected an offer from Dr Heath made on 25 March 2021, to rescind the termination of her employment. Acceptance of this offer would not have required the Applicant to return immediately to work given that she was suffering from an injury arising in the course of her employment. Acceptance of this offer would also not have impacted on the Applicant’s continued right to receive workers’ compensation payments. Further, had the Applicant accepted the offer of reinstatement she would have been entitled to the receive the superannuation contributions that I have estimated she has lost for the anticipated period she would have remained in employment but for the dismissal. Finally, to have accepted reinstatement would have allowed the Applicant to attempt, via the Union which represented her in these proceedings, to negotiate an exit from employment which may well have been achieved without the Applicant returning to work.

[124] I find that in all of the circumstances, the Applicant’s refusal to accept reinstatement when it was offered in circumstances where it would have entirely mitigated her only financial loss (superannuation contributions) for the period I have estimated she would have remained in employment, was unreasonable and that any award of compensation I make should not include a component for lost remuneration in the form of superannuation contributions for that period.

Misconduct: s.392(3)

[125] The Applicant has not engaged in misconduct and there is no basis to reduce any amount of compensation she may be awarded on account of this consideration.

Shock, Distress: s.392(4)

[126] I note that any amount of compensation calculated must not include a component for shock, humiliation or distress.

Compensation cap: s.392(5)

[127] In the event that I award compensation covering the full period I have estimated that the Applicant would have remained in employment, it will not be necessary to apply the cap provided for in s. 392(5) of the FW Act.

Whether compensation is appropriate: s. 390(3)(b)

[128] In light of my findings in relation to the quantum of compensation to which the Applicant would be entitled pursuant to s. of s. 392, I turn now to consider whether it is appropriate in all of the circumstances of this case, to make an award of compensation to the Applicant. A decision to award compensation to a person found to be unfairly dismissed, is discretionary. As a Full Bench of the Commission held in Vennix v Mayfield Childcare Limited 24 s. 390(3) requires that the Commission must not make an order for compensation in respect of an unfair dismissal unless and until it is satisfied as to two matters: first that reinstatement of a person who has been dismissed is inappropriate and, second, that an order for compensation is appropriate in all of the circumstances of the case.25 The Full Bench in that case also accepted that the consideration required by s. 390(3)(b) involves the making of a discretionary intermediate decision and that the discretion is broad since it is not guided by the provision beyond the requirement to take into account all of the circumstances of the case.

[129] A decision not to award compensation to a person found to be unfairly dismissed must have regard for all of the circumstances including whether the dismissal has caused the person financial loss. Even where other considerations weigh against the exercise of the discretion to award compensation, failure to have appropriate regard to financial loss suffered by a person who has been unfairly dismissed, may constitute an appealable error. 26 It is also necessary to consider whether, at the end of the process for determining an amount of compensation, the figure arrived at is manifestly excessive or inadequate.

[130] I accept in the present case that the Applicant has been unfairly dismissed and that she has an extensive period of service. There was no valid reason for the Applicant’s dismissal and it was carried out with a total lack of procedural fairness. All of these matters weigh in favour of an award of compensation. It is also the case that to determine that no compensation should be awarded to the Applicant may be considered to be manifestly inadequate.

[131] However, the present case is unusual in that the Applicant has suffered no loss of income other than an amount of superannuation, which could have been entirely mitigated had she accepted an offer of reinstatement in circumstances where there would have been no requirement for her to attend for work, given her injury.

CONCLUSION

[132] In all of the circumstances, I do not consider that it is appropriate to award compensation to the Applicant, notwithstanding my finding that the Applicant has been unfairly dismissed. Accordingly, the application for an unfair dismissal remedy in U2021/1928 is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Mr E Fry of the Health Services Union for the Applicant.

Dr R Heath for the Respondent.

Hearing details:

24 May.

2021.

Brisbane.

Printed by authority of the Commonwealth Government Printer

<PR733449>

 1   Exhibit A1 – Affidavit of Deborah Brittain 14 May 2021.

 2 (1995) 185 CLR 410.

 3   Exhibit A1 Annexure DB-6.

 4   Hart v Forex 1 Pty Ltd ATF Trading Rental Trust [2018] FWC 942 per Anderson DP at [84].

 5   Puri v Sydney Strata Pty Limited [2012] FWA 7317 per Watson VP at [5].

 6   Ibid note 1.

 7   [2011] FWA 1586.

 8 Ibid at [58].

 9   Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.

 10   Walton v Mermaid Dry Cleaners Pty Limited [1996] IRCA 267; (1996) 142 ALR 681 at 684.

 11   Webb v RMIT University [2011] FWAFB 8336 at [6].

 12   Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 AIRCFB at [62] (2000) 98 IR 137.

 13   Fair Work Act 2009 s. 12.

 14   Walton v Mermaid Dry Cleaners Pty Limited [1996] IRCA 267; (1996) 142 ALR 681 at 684.

 15   Webb v RMIT University [2011] FWAFB 8336 at [6].

 16   Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR 410 at 465-8 per McHugh and Gummow JJ.

 17   Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 18   Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

 19 (2000) 98 IR 137.

 20   Vennix v Mayfield Childcare Limited [2020] FWCFB 550; Kylie Jeffrey v IBM Australia Limited [2015] FWCFB 397 at [12].

 21   [2007] AIRCFB 1041.

 22 Ibid at [8].

 23 (1998) 88 IR 21.

 24   [2020] FWCFB 550.

 25 Ibid at [18].

 26   Vennix v Mayfield Childcare Limited [2020] FWCFB 550; Kylie Jeffrey v IBM Australia Limited [2015] FWCFB 397 at [12].