Diane Hammond v Australian Red Cross Blood Service Sydney
[2011] FWA 1346
•4 APRIL 2011
[2011] FWA 1346 |
|
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Diane Hammond
v
Australian Red Cross Blood Service - Sydney
(U2010/12871)
DEPUTY PRESIDENT SAMS | SYDNEY, 4 APRIL 2011 |
Application for unfair dismissal remedy - allegations of fraud, corruption and breaches of policies - alteration of medical certificate - procedural unfairness - no valid reason to dismiss - manifest injustice - reinstatement appropriate.
BACKGROUND
[1] Ms Diane Hammond (‘the applicant’) commenced employment as an Enrolled Nurse with the Australian Red Cross Blood Service (‘the respondent’) at its Parramatta Donor Centre on 23 August 2004. The applicant is a Registered Nurse and was represented throughout these proceedings by the New South Wales Nurses’ Association (‘the Association’). The applicant was dismissed for misconduct on 14 September 2010. There is no dispute that the applicant was a person protected from unfair dismissal at the time of her dismissal: see s 382 of the Fair Work Act 2009 (‘the Act’). An application for an unfair dismissal remedy, pursuant to s 394 of the Act, was filed on the applicant’s behalf by the Association on 29 September 2010. The matter was unable to be resolved at conciliation and proceeded to arbitration. The applicant seeks reinstatement to her former position, without loss of earnings or continuity of service. I shall return to the reasons for, and circumstances surrounding, the applicant’s dismissal shortly.
[2] On 18 June 2008, the applicant sustained an injury to her back at work. Some aspects of her workers’ compensation claims remain in dispute. Nevertheless, as a result of her injury, she had been on light duties and restricted hours until her dismissal. On 5 July 2010, the applicant received a letter from the respondent which was headed, ‘Potential Termination of Employment’. The letter advised that ‘The Blood Service is now reviewing your employment and wishes to discuss this matter with you’. Two meetings were held on 13 and 23 July 2010, involving the applicant, Ms Sue McNicholas (Senior Human Resources Manager), Mr Rod Jones (Donor Services Manager), Ms Linden Hayler (Western Area Manager) and Mr Patrick Byrne from the Association (by phone). Ms McNicholas and Mr Jones provided written and oral evidence in these proceedings. There is no doubt that during these meetings the respondent was seeking clarification from the applicant as to when she would be able to return to her pre-injury duties. She was warned that a failure to provide such information might lead to a termination of her employment.
[3] The applicant obtained a WorkCover Medical Certificate from Dr Vijay Maniam on 29 July 2010, and provided another medical certificate dated 21 June 2010. As will be seen below, both certificates overlap the period up to 30 August 2010. However, as will be seen below, the specific restrictions were different in the two certificates:
21 June Certificate Period 10/7/10 to 10/9/10 | 29 July Certificate 30/7/10 to 30/8/10 |
Lifting up to: 10 Kg | Travelling up to: 30 min |
Avoid prolonged bending | Avoid mobile units |
[4] At a further meeting on 31 August 2010, the respondent, through Ms McNicholas and Mr Jones, offered the applicant a part time contract at 25 hours per week. On legal advice, she rejected the offer.
[5] On 6 September 2010, the applicant attended Dr Maniam’s surgery and obtained a WorkCover Medical Certificate, upon which the Doctor had cited only one restriction - ‘Avoid mobile unit’. When the applicant realised that the medical certificate did not include all of the restrictions which she had discussed with the Doctor (such as lifting and prolonged bending restrictions), she rang his surgery and spoke to the receptionist, Ms Maree Kalamvokis. She asked Ms Kalamvokis if the Doctor had wanted all the restrictions included. It is not disputed that the receptionist advised her that she could put further restrictions on the certificate herself and she did so believing the Doctor had agreed she could do so. In the tea room at her workplace, in front of another staff member, she added the following changes:
“Lifting up to: 10kg
Sitting up to: Avoiding prolonged ending / twisting
Travelling up to: 30 mins”
On 8 September 2010, Mr Jones was informed by an unnamed staff member that he/she had observed the applicant amending a medical certificate.
[6] On 9 September 2010, at a meeting involving the applicant, Ms McNicholas, Mr Jones and Ms Donna St Clair from the Association, Ms St Clair advised that the applicant would not be able to accept the part time contract, as there were additional restrictions that the Doctor had omitted to put on the 29 July medical certificate. The respondent received a medical certificate from the Doctor’s surgery, which was illegible and a clearer copy was sought and obtained. The legible certificate was dated 10 September 2010, but backdated to 6 September 2010. On this certificate, the Doctor had only added ‘travelling up to: 30 mins’.
[7] On 13 September 2010, the applicant was called to a meeting with Ms Karin Cook (Human Resources Business Partner) and Mr Jones. Due to the short notice, she had no Union official and no support person present. At this meeting, she was accused of ‘doctoring’ the medical certificate for her own advantage. The applicant explained the conversation she had had with the Doctor’s receptionist. She accepted that she had put the restrictions on the certificate believing she had the Doctor’s authority to do so. A dispute emerged during the evidence, as to whether Ms Cook spoke to either Dr Maniam or the Office Manager, where words were said to the effect of “he would never do this and he could be deregistered for doing so”.
[8] On 14 September 2010, the applicant received a letter from the respondent which said, inter alia:
Dianne, you were advised that this behaviour is unacceptable and is in direct contravention of the values that underpin this organisation, as well as its policies and procedures. Also that your actions do not demonstrate that expected behaviour of an Enrolled Nurse of the Blood Service.
...
Following full investigation of the facts and careful consideration of your responses, the Blood Service will determine whether you have breached the terms and conditions of your employment, as specified in your employment contract and our policies and procedures.
[9] A further meeting with the applicant, the Association (Ms Sharon Rea), Mr Jones, Ms Cook and Ms Maureen Stacy (Donor Centre Manager) was held on 20 September 2010. Ms Kalamvokis joined the meeting by phone on loudspeaker. She confirmed that she had advised the applicant that it was okay to add the restrictions and added that the last certificate had the restriction ‘lifting up to: 10 kilos’. This restriction was again different to the earlier certificate sent to the respondent from the Doctor’s surgery. There were now four different medical certificates from the surgery for overlapping periods.
[10] Ms Cook inquired as to whether she could speak to Dr Maniam, but was told he was not available until 4:30pm. The applicant was dismissed at this meeting and later provided with a letter of dismissal, which I note was altered by crossing out the words ‘in writing dated’ and inserting the word ‘today’ in the fifth paragraph. The letter was expressed in the following terms:
In our discussions today you were advised of a matter that had been brought to our attention as follows:
1. Alleged breach of Blood Service policies and procedures:
1. Illegal and Unethical Behaviour Policy.
2. Code of Conduct.
3. Fraud and Corruption Control Program.
4. Fraud and Corruption Control Policy.
2. Inability to demonstrate Blood Service Value of Integrity.
These allegations were based on the alleged behaviour that you altered/added to your Workcover NSW Medical Certificate dated 6 September 2010.
On Monday 13 September 2010 you attended a meeting at the Parramatta Donor Centre with Rod Jones, Donor Service Manager NSW/ACT and Karin Cook, Human Resources Business Partner NSW/ACT, to respond to these concerns.
Following a full investigation of the facts and after careful consideration of your responses, we have formed the view that:
• You have breached Blood Service policies and procedures listed above.
• You have not demonstrated the appropriate actions in your capacity as an Enrolled Nurse with the Blood Service.
• You have not demonstrated appropriate Blood Service Values.
Upon consideration of your responses today 20 September 2010, we have formed the view that you have breached the terms and conditions of your employment as specified in your employment contract and our policies and procedures. As such we regrettably inform you that your employment has been terminated, effective immediately.
This decision is not taken lightly and based on the fact that your conduct has not met acceptable standards and your conduct is regarded as a serious breach of the Blood Service’s policies and procedures.
It is noted that all Blood Service property (access card, keys, etc) in your possession has been returned. Your final pay will be calculated within the next few business days and deposited into your bank account that currently is used by payroll. Please advise if your bank account details have altered.
An End of Year Payment Summary for the 2010/11 financial year will be forwarded to your home address in July 2011. We ask you to advise us in writing if your postal address changes prior to this being issued.
EVIDENCE
[11] The following persons provided written and oral evidence in the proceedings:
Ms Sharon Rea, Union Organiser
Ms Karin Cook, Human Resources Business Partner and National Recruitment Manager
Mr Rod Jones, Blood Service’s Donor Services Manager
Ms Maureen Winifred Stacy, Donor Centre Manager
Ms Susan Elizabeth McNicholas, Senior Human Resources Consultant
I do not intend to traverse the evidence where it is consistent with the chronology of events I outlined earlier.
[12] In her written statement, the applicant said that at the 13 July 2010 meeting she had requested a support person to be physically present, but this was denied. She said that during this meeting, Ms McNicholas had said to her quietly ‘we think you are a lot better than you are - getting up on a chair to get a clock off the wall’. The applicant said that although the respondent would not provide her with the details of the information they required from Dr Maniam, she had been particularly careful to ensure that she provided all the relevant medical information, as she was concerned that she might further injure herself or exacerbate her existing injuries.
[13] The applicant said that after she had been given the threatening letters, offered a part time contract and had had the serious meetings, she became stressed and anxious that her employment was in jeopardy. She believed the respondent was trying to ‘get rid of her’ and she sought assistance from a psychologist.
[14] The applicant deposed that she had not felt right, at the time, about changing the medical certificate. However, she knew how hard it was to get an appointment with Dr Maniam and she feared that if all the restrictions were not in place, the respondent would force her to work without them and this might cause further injuries. She had changed the medical certificate on the understanding she had permission from the Doctor to do so.
[15] At the meeting on 13 September 2010, the applicant said she was given no notice of the meeting and had no time to organise a Union Official or support person to be present. The applicant accepted that she had not sought an adjournment nor objected to meetings going ahead without a support person being physically present. Mr Jones had told her the 6 September 2010 certificate had been ‘doctored’ and that this was corruption and fraud and grounds for her termination. She explained the circumstances and told Mr Jones she did it believing she had the Doctor’s permission to do so. She had not deliberately set out to deceive anybody. When she asked for an adjournment, she contacted the Doctor’s surgery and spoke to Ms Kalamvokis, who confirmed their conversation of 6 September 2010. She agreed that the receptionist did not specify what restrictions should be added to the certificate. When she returned to the meeting, Ms Cook told her that she had spoken to the Doctor’s Practice Manager, (whose first name is Sharene), and she had said she did not have permission to alter the certificate. Ms Cook then said “we have spoken to Dr Manaim and he said he would never do this and he could be deregistered if he did this”.
[16] Mr Jones also accused her of changing the date of her certificate from one month to two months. The applicant explained that at the end of the consultation with Dr Maniam on 6 September 2010, he had said that he would see her again in a month, but then changed it to two months. He had amended the medical certificate accordingly. The applicant said she did not think it was relevant to tell the respondent that she had added the restrictions, because they were already in place and had been since 2008. When she was suspended, she was asked for her swipe key and locker key.
[17] The applicant said that at the meeting on 20 September 2010, Ms Cook appeared to be in ‘disbelief’ that Ms Kalamvokis had said the medical certificate of 6 September 2010, had the restriction ‘Lifting up to: 10 kilos’. The applicant assumed the Doctor had amended the certificate; however it was not the same as the one which had already been sent. Ms Cook asked to speak to Dr Maniam, but was told he would not be available until after 4:30pm. The applicant was told that she had tampered with a legal document, the (employment) relationship had broken down and as a result she was to be terminated.
[18] In further evidence, the applicant said that her dismissal had devastated her and she cannot afford to pay rent or to register her car. She has been seeing a psychologist who had prescribed anti-depressants. She has been unable to obtain alternative employment.
[19] Mr C Blair, for the Association, tendered evidence relating to the applicant’s post termination medical assessments. He submitted that any medical restrictions would be relevant to the terms of any order of reinstatement Fair Work Australia (FWA) might make. In cross-examination, the applicant agreed that she was not able to perform most of her pre-injury duties at the present time.
[20] The applicant conceded that she had not advised the respondent that the 6 September 2010 certificate was incorrect. However, she claimed that she wanted to get the correct information and that she was under a lot of pressure and not thinking clearly. She said that she had rejected a part time contract, not only because it reduced her hours, but because it did not contain all her medical restrictions. When shown a copy of the Code of Professional Conduct for Nurses in Australia the applicant conceded that it set out the appropriate standards of practice for Enrolled Nurses and the consequences of breaching the Code could be dismissal and deregistration. She was also shown the Code of Ethics for Nursing in Australia. She acknowledged that she had breached both this Code and the Code of Professional Conduct for Nurses.
[21] Ms Sharon Rea, Union Organiser, is a Registered Nurse. She was not required for cross-examination. Ms Rea participated in the meeting on 20 September 2010, and annexed her notes of the meeting. She also responded to Mr Jones’ evidence as follows:
In my experience with members of the NSW Nurses’ Association it is my view that many nurses do not have an understanding of workers compensation including their legal rights and responsibilities.
It is common in the profession of nursing for doctors to make mistakes which are picked up by nursing staff. There are also authorised practices known as a telephone order which allow for doctor’s orders/prescriptions (whether due to mistake or changed patient needs) to be changed by way of telephone advice. Such practices usually have protocols and a witness is usually required. The doctor is usually required, within a timeframe to make formal written changes as per the telephone verbal advice.
Respondent’s evidence
[22] Ms Karin Cook has worked for the respondent since 2007. Ms Cook deposed that the applicant had been on a Return to Work Plan, aligned with her medical restrictions since 2008. At no time since her injury had she advised the respondent that she was fit to resume her pre-injury duties.
[23] Ms Cook said that she could not recall making any statement, comments or giving any reason through her conduct for the applicant to believe her employment was in jeopardy, including when she provided her with a new part time contract of employment.
[24] Ms Cook referred to the various medical certificates of 6 September 2010. The first was illegible and the second, dated 10 September 2010, was a duplicate which contained significant differences to the others. The one presented from the applicant had additional restrictions. Ms Cook said that the applicant did not immediately admit to adding the restrictions and had displayed no contrition nor did she apologise for her actions. Ms Cook said she spoke to Dr Maniam’s surgery but could not speak to him directly. The Practice Manager had told her the Doctor would never advise a patient to alter a medical certificate and he could be deregistered if he did. Ms Cook said that after representations from the Union, she agreed to extend the time for the applicant to respond to the allegations.
[25] Ms Cook denied being in ‘disbelief’ in the meeting of 20 September 2010, after hearing from Ms Kalamvokis. Ms Cook said that even though she had confirmed that the applicant had been advised to make the changes, they were additional to what had actually been authorised by the Doctor. Ms Cook believed that as an Enrolled Nurse, the applicant was in a special position of trust and confidence and should have known that tampering with a medical certificate was inappropriate.
[26] In cross examination, Ms Cook conceded that, in a separate meeting with Mr Jones after 13 September 2010, she had agreed with him that she thought the applicant might be lying. However, she insisted she had not formally decided that the applicant had lied. Ms Cook denied any bias towards the applicant and did not believe she herself had breached the respondent’s Fraud and Corruption Control Policy and the Code of Conduct in that she had failed to ensure that decisions are ‘fair and without bias.’
[27] Ms Cook denied that she had ever spoken directly to Dr Maniam and had never said that she had. When she had referred to speaking to Dr Maniam’s surgery, it was to the Practice Manager, Sharene. Ms Cook agreed that Sharene had said that Ms Kalamvokis was new at the job. However, she could not recall if Sharene described the matter as a ‘miscommunication by all parties’. Ms Cook had wanted to speak to Dr Maniam, as she had four different certificates covering the same period. Dr Maniam had never returned calls. When asked if she ever considered that the problem emanated from the Doctor’s surgery, Ms Cook said they “had considered all aspects”.
[28] In re-examination, Ms Cook insisted that no decision had been made to dismiss the applicant until the 20 September 2010 meeting and, at all times, she had been afforded natural justice. She noted that the additional restrictions of the applicant, were inconsistent with the restrictions identified by the Doctor.
[29] Mr Rod Jones responded to the applicant’s statement as follows. The applicant had been employed by the respondent, despite a pre-employment medical which identified that she had pre-existing conditions, relating to her back. The respondent had made various adjustments to her work duties to accommodate these medical restrictions. During her employment, the applicant filed two WorkCover compensation claims, one of which was denied by the insurer.
[30] Mr Jones referred to the 13 July 2010 meeting and said he had not denied the applicant a support person. She had acknowledged that Mr Byrne, who was on the phone, was her support person. Mr Jones denied that Ms McNicholas had lowered her voice and turned her head away from the phone connecting Mr Byrne. Mr Jones said the applicant had not brought any new information as to when she would be able to return to pre-injury duties. She had claimed she did not know what was required.
[31] The medical certificate of 29 July 2010, stated that the applicant’s injury was a permanent injury and she was unlikely to return to full time work. Her hours were restricted. Mr Jones met with Ms Cook and it was decided to offer the applicant a part time contract, with reduced hours and restrictions on rostering on mobile units. Mr Jones said the applicant had not advised him that the contract omitted to contain any relevant restrictions. Mr Jones added that he made no comment which would have made the applicant feel her employment was in jeopardy. Mr Jones said that when the applicant provided the 6 September 2010 certificate on 8 September 2010, she had not volunteered any information about her personally altering the document. However, on that day, he had been informed that another employee had observed her writing on the medical certificate.
[32] Despite telling Ms Cook on 10 September 2010, that as the copy of the certificate from the Doctor was different from the 6 September 2010 certificate, this proved that the applicant had altered the certificate, Mr Jones insisted that the subsequent 13 September 2010 meeting was not a disciplinary meeting. Mr Jones deposed that this meeting was to advise the applicant of the respondent’s concerns, and she would be required to attend a further meeting to respond to the allegations. He agreed he had told her that the certificate had been ‘doctored’ and she had been observed doing so. He conceded that she had said that the receptionist had told her she could add the restrictions and that the Doctor would amend the certificate. Mr Jones did not consider this to be ‘direct authority’ from Dr Maniam. He had told her that her integrity was in question and, as a nurse, she should have known that you cannot change a legal document. Mr Jones gave the applicant a copy of the respondent’s Code of Conduct, Fraud & Corruption Control Policy and Illegal and Unethical Behaviour Policy and said:
“You are in breach of various Blood Service policies and procedures, particularly Blood Service’s code of Conduct regarding honesty and integrity.”
[33] Mr Jones deposed to the following conversation with Ms Cook after the meeting on 13 September, 2010:
I said: “If Di doesn’t receive confirmation from Doctor Maniam that he agreed to change the certificate we have no option but to terminate. We are going around in circles; I think she is lying.”
Cook: “I agree.”
I said: “Even if she added some parts under instruction from the receptionist, she has actually gone beyond that and added in extra restrictions and time. This is ridiculous. If Di doesn’t bring in any information to support her, then we have to terminate her employment.”
[34] Mr Jones said he was told that Ms Cook had phoned the Doctor’s surgery and had spoken to a person named ‘Maree’. He still remained concerned that what the receptionist had described, was inconsistent with the restrictions the applicant had put on the certificate. He said it was decided that if the applicant did not bring any further supporting documentary information, then her employment would be terminated at the next meeting. Mr Jones added that the applicant’s employment was terminated ‘on the basis that she had changed the medical certificate which was unacceptable behaviour for a person in her position of trust, honesty and integrity’.
[35] Mr Jones said the next meeting was scheduled for 15 September 2010, but was postponed at the Association’s request until 20 September.
[36] In cross-examination, Mr Jones was asked whether he had formed a view of the applicant’s dismissal before the 20 September 2010 meeting as to breaches of the Code of Conduct. His response was that she had ‘potentially done’ so. He agreed that prior to the 20 September meeting, he and Ms Cook had agreed the applicant was a liar and based on the evidence he had before him, she had failed to comply with the respondent’s policies. However, he conceded she had not provided a full response at that point. He denied he was biased and, himself, in breach of the respondent’s policies, by denying the applicant natural justice.
[37] Mr Jones was queried as to when the letter of dismissal had been written. He said it was on 20 September 2010, but he could not recall whether it was before or after the meeting with the applicant.
[38] Mr Jones acknowledged that it had been the practice of the applicant to have a Union representative at all meetings she had with Management. He denied ‘ambushing’ the applicant at the 13 September 2010 meeting. He agreed that she had only been told of the meeting that day. However, he did not know how much notice was given to her. He conceded that she had not been told what the meeting was about, or that it concerned her possible termination. He denied that the short notice was designed to avoid the applicant being able to arrange Union support.
[39] Mr Jones agreed that Ms Cook had said that she had spoken to Dr Maniam. However Ms Cook had been referring to Sharene. He could not recall if he had corrected Ms Cook at the time. He denied that Ms Cook was trying to scare the applicant by saying she had spoken to the Doctor.
[40] Mr Jones was asked whether the two letters to the applicant in July 2010, indicated a possibility of termination. His response was that he did not consider that these letters were putting any pressure on the applicant. Mr Jones could not recall in the meeting of 9 September 2010, whether Ms St Clair had said that the applicant would not accept a part time contract because additional restrictions were not on 29 July 2010 medical certificate.
[41] Ms Maureen Stacy’s statement dealt with the position description of an Enrolled Nurse employed by the Blood Service.
[42] Ms Stacy said she could not recall Ms Cook displaying ‘disbelief’ after the conversation with ‘Maree’ at the meeting of 20 September 2010. Rather, it was Ms Rea who was particularly expressive; rolling her eyes, throwing her head around and sighing heavily.
[43] Ms Susan Elizabeth McNicholas is currently employed as the respondent’s Senior Human Resources Consultant. As part of this role she was involved in the development of the applicant’s Return to Work Plan. She said that when medical information is not forthcoming, steps are taken to facilitate appropriate Return to Work Plans.
[44] Ms McNicholas said that the applicant had utilised all her available paid leave and was on authorised unpaid leave during April, May and June 2010. Ms McNicholas said that the applicant was not able to perform most of her pre-injury duties. Her medical certificates stipulated that she was unable to work for more than 30 to 60 minutes on blood collection and unable to participate in staff rotations.
[45] Ms McNicholas agreed that she was concerned with conflicting information and had mentioned how the applicant got up on a chair to fix a clock on the wall. Ms McNicholas said she had told the applicant that the Service needed to know what work she could and could not do. She said that a Return to Work Plan is about looking at your duties and hours. The part time contract specifically dealt with the applicant’s medical restrictions set out in the WorkCover certificate of 29 July 2010. It was designed to facilitate her continued employment. Ms McNicholas denied conducting herself in any manner which would cause the applicant to feel the respondent was trying to ‘get rid of her’.
[46] Ms McNicholas said the conversation with Ms St Clair on 9 September 2010, was as follows:
Ms St Clair: “There are actually additional restrictions that the doctor forgot to put on the medical certificate dated 29 July 2010, and on that basis, Di will not be able to accept the part-time contract.”
Me or Rod Jones: “Ok, in that case we will need to revise her part-time contract and we will need to go away and consider the new restrictions.”
[47] In cross-examination, Ms McNicholas confirmed that Mr Jones was in the meeting of 9 September 2010, and had heard what Ms St Clair had said in the above paragraph.
SUBMISSIONS
[48] Both parties provided the Tribunal with helpful outlines of their submissions which I reproduce below:
For the applicant
[49] Mr Blair submitted that:
The dismissal of the Applicant was harsh, unjust and unreasonable on the following grounds:
(a) The allegations made against the Applicant do not justify termination and the dismissal is harsh.
(b) The Respondent placed enormous pressure on the Applicant with respect to her workplace injury and requirements to provide evidence of injury and appropriate duties.
(c) The Applicant did not try to hide her actions from the Respondent, but rather, openly and honestly explained what had happened.
(d) The Applicant did not try to obtain a dishonest benefit from her actions as the restrictions she placed on the workcover medical certificate were her normal restrictions.
(e) The Respondent wanted to terminate the Applicant due to her workplace injuries and is using her action of inserting the restrictions on the workcover medical certificate as a vehicle to terminate the Applicant to avoid ongoing requirements to provide suitable duties under relevant workers compensation legislation.
(f) A reasonable person, having the material before them and having made a proper investigation would not come to the conclusion that the actions of the Applicant warranted termination.
(g) The termination was unfair because of the effect it had upon the Applicant as an injured employee.
Remedy
2. The Applicant seeks:
(a) reinstatement pursuant to section 391 of the Act;
(b) an order to maintain continuity of employment pursuant to section 391(2), and
(c) an order to cause the Respondent to pay to the Applicant an amount pursuant to section 391(3) of the Act.
3. In addition and/or as an alternatively (sic) to 2 above, the Applicant seeks a finding that the reason for the dismissal was really the Applicant’s workplace injuries and inability to return to pre-injury duties. That the termination for alleged breaches of the Blood Service policies and procedures and inability to demonstrate Blood Service values of integrity was in effect a smokescreen for the real reason for termination relating to the Applicant’s injuries.
[50] In oral submissions, Mr Blair said the chronology of events was very important as it established that during July and August 2010, there were a number of threats of termination of the applicant’s employment. He said that the evidence makes clear that the respondent had four totally different medical certificates, in which the restrictions are different for overlapping periods.
[51] Mr Blair accepted that, in retrospect, the applicant was ill advised to add the medical restrictions. She should have either, obtained a new medical certificate, which would have been very difficult, or noted on the certificate that the changes were made in accordance with the telephone advice from the Doctor’s surgery. Mr Blair said that the respondent knew, at least by 29 July 2010, that the Doctor had not put all of the medical restrictions on the certificate.
[52] Mr Blair submitted that the applicant was taken by surprise when, without any notice, she was called to the meeting of 13 September 2010, and accused of ‘doctoring’ the document. There was no procedural fairness and the respondent’s actions were ‘duplicitous.’ The applicant had immediately explained that she had been given the ‘okay’ by the Doctor’s receptionist, yet she was accused of serious misconduct, illegal and unethical behaviour, fraud and corruption, including criminal behaviour.
[53] Mr Blair relied on the following authorities in support of the applicant’s case: Black and Santoro v Ansett Australia Limited [PS3905, per Drake SDP, 20 March 2000] and Reyn and ors v Qantas Airways Limited [PS4850, Drake SDP, 14 April 2000]. He said the respondent did not conduct a full investigation in order to demonstrate clear and cogent proof of fraud and corruption. Mr Blair dealt with each of the criteria in s 387 of the Act, dealing with the matters FWA must take into account in determining whether a dismissal is ‘harsh, unreasonable or unjust’.
[54] Mr Blair submitted that before the dismissal, the respondent had already formed the view that the applicant was a ‘liar’ and that there is a real question that the altered termination letter had been drafted in advance of the meeting in which she was asked to defend herself. Mr Blair observed that Ms Cook could have waited to speak to Dr Maniam after 4:30pm, but the applicant was dismissed before doing so. As a large and well resourced employer, the respondent should have known that it had denied the applicant natural justice.
[55] As an injured worker, the applicant’s personal circumstances are more severe on her and, at the age of 52, finding alternative work has, and will be, very difficult. Mr Blair sought the following orders: the applicant’s re-employment to Southport, Queensland, where she has family, and, in accordance with her medical restrictions. Alternatively, the applicant could be reinstated to a full time position, at Parramatta, where a new manager, Ms Stacy has been appointed; the applicant could be re-employed to a full time position at Miranda; or the parties could negotiate a suitable part time contract, at either of these locations. Mr Blair also sought orders as to continuity of employment and loss of income.
For the respondent
[56] Ms S Smith, Employee Relations Business Partner, put that:
1. The Applicant has not been dismissed for reasons that are harsh, unjust or unreasonable.
2. The Applicant altered a WorkCover NSW Medical Certificate dated 6 September 2010 and presented this certificate to management by facsimile on 8 September 2010.
3. The Applicant admitted to personally changing the WorkCover medical certificate purportedly under the authorisation of Dr Maniam through his receptionist.
4. On investigation with Dr Maniam's surgery, the receptionist admitted advising the Applicant to make changes to the medical certificate, however purported changes and actual changes made to the WorkCover medical certificate were not consistent (according to the changes described by the receptionist and as received by facsimile) (referred to as changes). The changes were to the benefit of the Applicant.
5. The Applicant failed to provide adequate responses to the Respondent's concerns about the changes.
Reasons for Termination of Employment
6. The Applicant was dismissed for altering a WorkCover medical certificate to her advantage. A WorkCover medical certificate is a legal document (i.e. it affects the rights and obligations of the relevant employer and employee) and needs to be completed accurately based on facts known to Dr Maniam.
7. WorkCover medical certificates are relied upon by employers and insurers in relation to claims for workers' compensation and obligations that are triggered under the Workplace Injury Management and Workers Compensation Act 1998.
8. The Applicant was given an opportunity to respond to the allegation that she had altered the WorkCover medical certificate. The Applicant admitted to altering the certificate by inserting medical restrictions. The Applicant asserted this was done with the knowledge of her treating medical practitioner, Dr Maniam after queries with the receptionist at his surgery. This explanation was then tested through enquiries with the receptionist, who confirmed that she had spoken to the Applicant about changing the certificate. However, the changes discussed with the receptionist were not consistent with the changes made by the Applicant, which go beyond the revised WorkCover medical certificate sent through by Dr Maniam on 10 September 2010.
9. The Respondent was entitled to conclude that the Applicant had altered the certificate in a manner inconsistent with the opinion and without the authority of Dr Maniam. The Applicant deceived the Blood Service about the extent of her medical restrictions and the duration of the WorkCover medical certificate and amounts to serious misconduct.
10. The Applicant was employed in a position which requires, among other things, the accurate recording of sensitive personal information and medical details. The Applicant was employed in a position of trust and one with the potential to compromise the safety and care of donors and the general public. Her actions concerning the changes, demonstrate a disregard for the importance of medical data recording and her unsuitability for employment as an Enrolled Nurse with the Australian Red Cross Blood Service. For example, the conduct demonstrates a propensity to add in or complete medical data without regard to accuracy, proper procedure and authorisation protocols.
Policies and Procedures relating to the termination
11. In terminating the Applicant's employment, the Respondent referred to and relied upon their workplace policies, including its:
11.1 Fraud and Corruption Control Policy (and associated program);
11.2 Code of Conduct; and
11.3 Illegal and Unethical Behaviour Policy.
12. The Applicant most recently completed the course work and assessment in the Fraud and Corruption Program on 26 November 2009.
13. The Applicant did not voluntarily disclose that she had altered /added to the WorkCover medical certificate of 6 September 2010. It was only after the Respondent questioned the Applicant and raised its concerns with her, that she admitted amending the WorkCover medical certificate.
14. In a letter dated 14 September 2010, the Applicant was advised in writing of:
14.1 the allegation that she had altered/added to the WorkCover medical certificate dated 6 September 2010, sufficiently particularised to allow the Applicant an opportunity to respond to the allegations;
14.2 the appropriate policies relating to her alleged breach;
14.3 the seriousness of the matter to elicit an adequate and reasonable response from the Applicant with regard to the allegations
14.4 that a consequence of not providing an adequate and reasonable response could include disciplinary action, including termination of employment;
14.5 a reasonable period of time to respond to the allegations (extended to 20 September 2010) suspended from duties and on full pay; and
14.6 the opportunity to have a support person with her
Termination – procedurally and substantively fair
15. The Applicant was dismissed by the Respondent for a valid reason that related to her unacceptable behaviour.
16. The Respondent denies that the Applicant was dismissed for any reason relating to her long term injury or due to any medical restriction imposed by that injury. Indeed, the Respondent attended to return to work management of the Applicant, even though it was under no obligation to do so.
17. The Respondent reasonably required medical confirmation about the Applicant's fitness for work.
18. The Respondent designed a part time position for the Applicant which accommodated permanent impairment and work restrictions as provided by the Applicant to the Respondent and set out in her WorkCover medical certificate dated 29 July 2010.
Outcome
19. The Respondent seeks that the Application for relief in respect of termination of Ms Diane Hammond be dismissed on the grounds that the termination of her employment was not harsh, unjust or unreasonable.
20. The Applicant was afforded procedural and substantive fairness in the termination of her employment.
21. The Applicant admitted to changing and adding to the WorkCover medical certificate dated 6 September 2010 and presented by her on 8 September 2010.
22. On investigation, the changes made by the Applicant were not consistent with the changes made by the specialist's surgery. The Applicant failed to provide an adequate explanation relating to the additional changes that were made to her benefit.
23. In the Applicant's position as an Enrolled Nurse, the Applicant knew, or ought to have known, that changing a WorkCover NSW medical certificate is not an acceptable practice.
24. In the event that dismissal of the Applicant is considered to be harsh, the Respondent submits that she is unsuitable for reinstatement given the nature of her conduct, which has caused the respondent to lose trust and confidence in her. The Applicant's behaviour was fundamentally incompatible with the duties of an Enrolled Nurse with the Parramatta Donor Centre.
25. The Applicant was paid all of her lawful entitlements, including five weeks in lieu of notice at the time of termination.
[57] In oral submissions, Ms Smith relied on two decisions relating to dismissal for misconduct, involving fraudulent medical certificates: Anderson v Crown Melbourne Ltd [2008] FMCA 152 (‘Anderson case’) and Tina Louise Sulis v Woolworths Limited[2009] AIRC 791. Ms Smith put that the applicant’s conduct not only involved a breach of her employment contract, but was also a breach of her registration as an Enrolled Nurse.
[58] In questions from the Tribunal as to whether alternatives other than dismissal, were considered, Ms Smith said the respondent had not tendered its disciplinary policy in these proceedings. Ms Smith said that reinstatement of the applicant would not be suitable, given the nature of her conduct, which has caused the respondent to lose trust and confidence in her.
CONSIDERATION
[59] At the outset, I note that the applicant’s letter of termination did not expressly describe her conduct as misconduct; let alone serious or wilful misconduct. Nevertheless, it is plain from the evidence adduced in this case, the fact that she was summarily dismissed (albeit with notice), and that the allegations were framed as constituting fraud, illegal, unethical behaviour and corruption, that the respondent regarded her alteration of the medical certificate, as serious and wilful misconduct. Given this characterisation, it is necessary to consider whether the applicant’s conduct was such as to constitute a repudiation of her contract of employment or was a breach of an express or implied term of her contract of employment. Put another way, the evidence must disclose a wilful and deliberate intent by the applicant to commit an act/s which strikes at the heart of the employment relationship between her and the respondent. This proposition finds its legislative imprimatur in the Regulations to the Act. Regulation 1.07 defines serious misconduct as:
1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
[60] The principles underpinning this characterisation have been elucidated in a number of well known authorities: In North v Television Corporation Ltd (1976) 11 ALR 599, Franki J said at p 616:
It is clear that a single act of disobedience may be sufficient to justify dismissal on the ground of misconduct but it was held in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285, that to justify summary dismissal a single act must be such as to show that the employee was repudiating the contract of service or one of its essential conditions.
[61] The 1959 English case referred to above makes it plain that an act of disobedience or misconduct (justifying dismissal) requires also that the disobedience must be “wilful”:
... I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is “wilful”: it does (in other words) connote a deliberate flouting of the essential contractual conditions (P288).
[62] In Concut Pty Ltd v Worrell and Anor (2000) 103 IR 160, his Honour, Kirby J, dealt with the ordinary relationship of the employer and employee at common law:
The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law:
“[c]conduct which in respect of important matters is incompatible with the fulfilment of an employee’s duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ...[T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises.”
In the present case, the findings at trial went beyond mere uneasiness as to the future. They necessitated, or at least warranted, a conclusion that the “confidence” essential to the relationship of employer and employee had been destroyed. Instead of pursuing the interests of the company and its shareholders, the employee had pursued his own private interests. Not only was the employee in breach of his duty of fidelity and trust owed to the employer, he had remained in breach of that duty to the date of the trial. Until that time he had not accounted for the benefits wrongly appropriated by him. Indeed, he had denied any wrongful appropriation. The issue so tendered at the trial was determined against the employee. He was then subject to the employer’s counter-claim for an order to make a refund. Such order was duly made at trial. It was not contested on appeal. Given his senior status in the company’s service and the nature and extent of the misconduct disclosed in the evidence and accepted by the primary judge, it was open to him to find that the employee had undermined the confidence essential to the ongoing relationship of employment. Prima facie, this had afforded a legal justification for the employee’s summary dismissal.
It is, however, only the exceptional circumstances that an ordinary employer is entitled at common law to dismiss an employee summarily. Whatever the position may be in relation to isolated acts of negligence, incompetence or unsuitability, it cannot be disputed (statute or express contractual provision aside) that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal. Exceptions to this general position may exist for trivial breaches of the express or implied terms of the contract of employment. Other exceptions may arise where the breaches are ancient in time and where they may have been waived in the past, although known to the employer. Some breaches may be judged irrelevant to the duties of the particular employee and an ongoing relationship with the employer. But these exceptional cases apart, the establishment of important, relevant instances of misconduct, such as dishonesty on the part of an employee like Mr Wells, will normally afford legal justification for summary dismissal. Such a case will be classified as amounting to a relevant repudiation or renunciation by the employee of the employment contract, thus warranting summary dismissal.
[63] In Farquharson v Qantas Airways Limited[2006] AIRC 488, the Full bench of the Australian Industrial Relations Commission (AIRC) referred with approval to the following analysis of Ross VP in Rose v Telstra [Print Q9292, 4 December 1998]:
An employee's implied duty of fidelity and good faith is particularly relevant here. One of the most concise and authoritative statements of what is generally encompassed by the duty of fidelity and good faith is to be found in Blyth Chemicals v Bushnells. In that case their Honours Dixon and McTiernan JJ said:
“Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty. Or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to future conduct arises.”
In the same case their Honours Starke and Evatt JJ note:
“The mere apprehension that an employee will act in a manner incompatible with the due and faithful performance of his duty affords no ground for dismissing him; he must be guilty of some conduct in itself incompatible with his duty and the confidential relation between himself and his employer.”
...
The obligations imposed by the common law duty of fidelity and good faith operate to prohibit acts outside of the employment which are inconsistent with the continuation of the employment relationship. But as Spender AJ observed in Cementaid (NSW) Pty Ltd v Chambers, ‘an actual repugnance between the employee's acts and his relationship with his employer must be found’.
More recently the implied term of fidelity and good faith has been expressed as an obligation to serve the employer loyally and not to act contrary to the employer's interest. In England this obligation appears to have been subsumed by the more general obligation of mutual trust and confidence. The implied term of mutual trust and confidence imposes reciprocal duties on the employee and employer that they shall not ‘without reasonable and proper cause, conduct themselves in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’.
If conduct objectively considered is likely to cause serious damage to the relationship between employer and employee then a breach of the implied obligation may arise.
There is some support for the proposition that the existence of an implied term of trust and confidence in contracts of employment has been accepted in Australia.
The words `trust and confidence' in this context are used in a contractual sense rather than as an ingredient of a personal relationship. As McCarry notes:
“... the words `trust and confidence', just like the employee's reciprocal duties of ‘fidelity and good faith’, do not now refer to the ingredients of a personal relationship, even if they once did. The words now represent, in shorthand form, a bundle of legal rights which have more to do with modes of behaviour which allow work to proceed in a commercially and legally correct manner than with ingredients in an interpersonal relationship.”
The above statement is consistent with the shift in the nature of the employment relationship, from status to contract, referred to earlier.
[20] His Honour then formulated a summary of principle which has now been applied on a number of occasions:
“It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:
• the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
• the conduct damages the employer's interests; or
• the conduct is incompatible with the employee’s duty as an employee.
In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.”
[64] Given the allegations against the applicant involve a criminal element, I also refer to Neat Holdings Pty Limited v Karajan Holdings Pty Limited [1992] HCA66; (1992) 110 ALR 449, where the High Court, adopted the comments of Dixon J in Briginshaw v Briginshaw (1936) 60 CLR 336, and said:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. In our view, it was so in the present case.
[65] It should come as no surprise to the respondent, or any fair minded observer for that matter, that I can find no basis to conclude that the applicant’s alteration of the medical certificate, constituted a wilful and deliberate intent by her to repudiate her contract of employment. I shall elaborate further on this conclusion shortly. In addition, I would add that the respondent’s reliance on two authorities dealing with the deliberate alteration of medical certificates to obtain a benefit (such as the issuance of a false medical certificate to allow an employee to attend a football match (Anderson case)), can be readily distinguished to the facts and circumstances of this case, and do not advance the respondent’s case, one iota. On the other hand, I adopt, with respect, the following passage from Ken Mourilyan v James Hardie Australia Pty Ltd[2010] FWA 9672, where Asbury C said at par [88]:
[88] Whether the dictionary definition of fraud or that found in criminal law is applied, the fact remains that the dismissal of an employee on a ground such as fraud, can have a potentially far reaching and catastrophic effect on the employee’s future employment prospects, given the connotations of criminal activity associated with such an epithet. An allegation of fraud should not be lightly levelled and conduct of an employee should not be labelled as fraud without clear and cogent proof.
[66] That said, it troubles me to say that I find the conduct of the respondent towards the applicant, from July to September 2010, to be appalling and unacceptable. The respondent’s actions ill behove the standards of behaviour I would expect from any employer; let alone one of the size, functionality and reputation of the Red Cross Blood Service. In my view, the respondent embarked on a deliberate and reprehensible campaign to threaten the applicant’s ongoing employment, based primarily on the grounds of her unfitness to fulfil her pre-injury duties. When it found what it thought to be the perfect grounds for the applicant’s dismissal - her alteration of the 6 September 2010 medical certificate - it pounced on her with speed and gusto, denied her procedural fairness and accused her, without mincing words, of the most serious of conduct, being corruption and fraud. I believe the applicant’s consequent dismissal to be manifestly unjust. On any objective analysis, the applicant’s alteration of a medical certificate was nowhere near what any reasonable person might consider to be corrupt, fraudulent or illegal conduct. This is so, not only because of the nature of the conduct itself, but because of the circumstances surrounding the conduct. That is not to say that the applicant’s alteration of the certificate can be condoned or that she is entirely blameless for what happened. Indeed, she readily admits that she did the wrong thing. But given the following circumstances, the applicant’s conduct warranted no more than a warning, and most certainly not summary dismissal for fraud and corruption.
[67] Firstly, the respondent had been well aware since 2008 that the applicant had been working with a number of medical restrictions. Indeed, the respondent had employed her in 2004, notwithstanding a pre-employment medical assessment which disclosed pre-existing conditions relating to her back. It knew she was receiving treatment and that she was on a Return to Work Plan. It could not possibly have been taken by surprise by the restrictions the applicant placed on the certificate.
[68] Secondly, the respondent had four medical certificates which overlapped periods of time and had different restrictions on them. This was an extraordinary situation warranting a thorough and proper inquiry. Nevertheless, given this confusion and the onus on the respondent to prove the applicant’s misconduct, see Pastrycooks, Biscuit Makers and Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70, it was incumbent on the respondent to establish the factual situation from the Doctor. In its misguided haste to dismiss the applicant, rather than waiting until 4:30pm on the day of dismissal to speak directly to the Doctor, the respondent unilaterally and summarily dismissed the applicant without establishing what the true position was. Her explanation was a plausible and totally explicable explanation and had been confirmed by the receptionist (although this added to the confusion).
[69] Thirdly, it seems to me that the respondent was never going to accept the applicant’s explanation for her conduct. From around July 2010, it had embarked on a course of either forcing her resignation or finding some other pretext for terminating her employment. It was disingenuous and utterly unbelievable that the respondent could suggest that the letter of 5 July 2010, headed ‘Potential Termination of Employment’ did not constitute a threat to the applicant’s employment. It is difficult to imagine a clearer threat to an employee’s employment. It is little wonder that the applicant felt stressed and anxious about her future. To then receive a part time offer of employment was, to my mind, just another of the respondent’s tactics to bring about the applicant’s termination of employment.
[70] Fourthly, the respondent had made up its mind that the applicant was guilty well before the meeting called to consider her responses. The respondent crudely exposed its predetermination of its intentions to dismiss her well prior to the meeting on 20 September 2010. For example, Ms Cook said on 13 July 2007, ‘Blood Service can’t be expected to continue your light duties and restricted hours forever’. Mr Jones admitted in his statement that at the 13 September 2010 meeting (which he curiously claimed was not a disciplinary meeting), ‘You are in breach of various Blood Service policies and procedures, particularly Blood Service’s Code of Conduct regarding honesty and integrity’. To suggest the 13 September 2010 meeting was a disciplinary meeting, in circumstances where she was accused of ‘doctoring’ the certificate, is to strain the meaning of ‘disciplinary’ to an illogical absurdity. That same day, Mr Jones and Ms Cook both agreed that they thought the applicant was ‘lying’. I do not accept Ms Cook’s explanation that this was not a final and concluded view. It could not be perceived otherwise.
[71] It is open for the Tribunal to find that the applicant’s letter of dismissal had been prepared before the 20 September 2010 disciplinary meeting, as it originally refers to her responses ‘in writing’ but these words had been crossed out and the word ‘today’ was handwritten in. No one could say when the letter was prepared. However, given the respondent’s other conduct, it is more likely that the applicant’s letter of dismissal had been prepared before the meeting to dismiss her. It was not a case of just being prepared for that possibility.
[72] It was Ms McNicholas’ evidence that in the meeting of 9 September 2010, Ms St Clair, from the Union, had said that one of the reasons the applicant rejected the part time agreement was that the Doctor had forgotten to put the additional restrictions on the certificate dated 29 July 2010. In other words, the respondent knew well before its meeting with the applicant on 13 September 2010, that in the Union’s view, Dr Maniam had not put all of the medical restrictions on an earlier certificate (29 July 2010). This was a ‘live’ and ongoing issue. In my opinion, the respondent knew full well that the Doctor had a history of not accurately recording the restrictions on the certificates.
[73] In addition, what must be steadily borne in mind is the applicant’s role in the incident. I have already referred to the principle of summary dismissal for misconduct which must, in my view; be conduct which is wilful. In no way can the applicant’s behaviour be considered wilful or deceitful. I am fortified to this conclusion for the following reasons:
[74] Firstly, the applicant had corroborative proof that her belief that the Doctor had authorised her altering the certificate was genuine.
[75] Secondly, the applicant hardly acted in a covert or deceitful way by changing the certificate in the workplace lunchroom within full view of anyone who was around - and obviously someone did see her and reported it.
[76] Thirdly, at no time did the applicant deny that she had altered the medical certificate, and when first confronted with the allegation, she gave the same consistent explanation as she has maintained throughout these proceedings.
[77] Fourthly, although the applicant did not volunteer that she had altered the certificate, I accept that she believed it was unnecessary to do so because the restrictions were the same as she had been on for some time and were well known to the respondent.
[78] Fifthly, even by altering the certificate, the applicant had not sought to obtain any more favourable treatment than had otherwise applied. Nor had she sought to dishonestly obtain a benefit.
The Legislation
[79] Turning then to the specific statutory framework which mandates FWA to take into account a number of matters when considering whether a dismissal is ‘harsh, unreasonable or unjust’. The statutory criteria are found in s 387 of the Act, as follows:
(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 FWA considers relevant.
[80] The oft quoted authority as to the meaning of ‘harsh, unreasonable or unjust’ is found in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted”.
[81] Section 387(a) of the Act requires the Tribunal to make a finding as to whether there was a valid reason for the applicant’s dismissal. The meaning of the adjective ‘valid’ in this context can be found in Selvechandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, where North J said:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly”.
[82] Subsections (b), (c), (d) and (e) of s 387 of the Act, are matters relevantly dealing with issues of procedural fairness.
[83] Underpinning the Tribunal’s consideration of an unfair dismissal matter is the principle found in s 381(2) of the Act, commonly referred to as ‘the fair go all round’ test:
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.
[84] For the reasons which I have earlier developed, I find that there was no valid reason for the applicant’s dismissal. The reasons given being ‘fraud and corruption’ and breaches of the respondent’s Code of Conduct were neither ‘sound, defensible or well founded’ (s 387(a)). The applicant was notified of the reason for her dismissal, at least, in the meeting of 20 July 2010 (s 387(b)). The applicant was provided with an opportunity to respond to the reason and, in fact, she arranged to have her explanation supported by an independent person (s 387(c)). However, this does not exculpate the respondent’s conduct. It took no notice of her reasonable explanation and rushed to judgement about her dismissal, without seeking to have it verified by a third person, Dr Maniam. While the applicant was represented at all meetings by a Union official, either in person or on the phone, I do not consider that the fact she did not have a support person actually present, would have disadvantaged her in defending her position. What I do consider to be reprehensible conduct was the respondent calling her to a meeting on 13 July 2010, without telling her the purpose of the meeting and at such short notice that she could not reasonably have arranged for a Union official or support person to attend (s 387(d)). The applicant’s dismissal was not related to unsatisfactory performance, but was for a single act of alleged misconduct (s 387(e)).
[85] Australia wide, the respondent employs three and a half thousand employees and has a dedicated human resources team (s 387(f) and (g)). Given these facts, it is extraordinary, and beggers belief, that the respondent acted so poorly in respect to the applicant’s dismissal.
Remedy
[86] Section 390 of the Act deals with the remedies in unfair dismissal matters. It is expressed as follows:
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
[87] There is no doubt that the applicant was unfairly dismissed and her dismissal was manifestly unjust. The applicant seeks an order from FWA of reinstatement to a position consistent with any medical restrictions and orders for lost remuneration and continuity of service. Section 381(c) of the Act makes plain, where an applicant demonstrates that he/she was unfairly dismissed, that reinstatement is the primary remedy:
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
[88] In Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, a Full Bench of the Federal Court referred to the practicality of reinstatement issue at p 191 to 192 as follows:
It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer’s own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.
[89] Ms Cook and Mr Jones both said that the respondent had lost trust and confidence in the applicant and reinstatement would therefore be inappropriate. If that was all that was required to deny an unfairly dismissed employee the primary remedy under the Act, then I doubt that any dismissed employee would ever be reinstated. It requires something more than bold assertions of Management to establish the inappropriateness of reinstatement. In this respect, I refer to Regional Express Holdings Limited t/a REX Airlines v Richards [2010] FWAFB 8753, where the Full Bench said at par [26]:
[26] Whenever an employer dismisses an employee for misconduct, assuming the employer is acting honestly, there is an implied loss of trust and confidence in the employee. If it is subsequently found that the termination was harsh, unjust or unreasonable it is appropriate to consider whether the relationship can be restored if the employee is reinstated. That question cannot be answered solely by reference to the views of management witnesses. All of the circumstances should be taken into account. In this case there is a number of relevant matters. They include the fact that not all of the conduct alleged against the respondent has been proven, the respondent’s apparently unblemished record in the performance of his flying duties over a period of 14 years, the fact that the misconduct is not directly related to the performance of the respondent’s professional duties as a first officer and Rex’s failure to pursue any substantial disciplinary action against another pilot who, it is alleged, has been guilty of misconduct at least as serious as that of which the respondent was accused. The significance of the last consideration is that the pilot in question is still carrying out the full range of his duties, despite allegations of conduct of a kind which, in the respondent’s case, is said to have led to an irrevocable loss of trust and confidence. Assuming a positive approach on both sides we find there is a reasonable chance that the employment relationship can be restored with the necessary level of mutual trust.
[90] Given the size of the employer, the manifest unjustness of her dismissal and the paucity of cogent evidence as to the inappropriateness of reinstatement, I am satisfied, pursuant to s 390 of the Act, that reinstatement is the appropriate remedy in this case. A number of options were put by Mr Blair. My present view is that reinstatement should be to a position agreed to by the parties, having regard to the applicant’s current medical restrictions. I also intend to make consequential orders to maintain the applicant’s continuity of employment and orders for lost remuneration, less any remuneration earned by her up to the point of reinstatement. I direct the parties to prepare and file draft orders giving effect to the findings in this decision, within 14 days of today. Any disagreement concerning the orders shall be referred to FWA for final determination.
DEPUTY PRESIDENT
Appearances:
Mr C Blair, New South Wales Nurses’ Association for the applicant
Ms S Smith, Australian Red Cross Blood Service
Hearing details:
2010
SYDNEY
19 January
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