Edith Paskett v Medgate Administration Pty Ltd ATF Medgate Administration Trust T/A Medgate Medical Centre

[2012] FWA 9516

[2012] FWA 9516

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Edith Paskett
v
Medgate Administration Pty Ltd ATF Medgate Administration Trust T/A Medgate Medical Centre
(U2012/7961)

DEPUTY PRESIDENT BARTEL ADELAIDE, 8 NOVEMBER 2012

Termination of Employment.

[1] Ms Edith Paskett (the applicant) was dismissed by Medgate Administration Pty Ltd ATF Medgate Administration Trust (the employer) by letter dated 8 May 2012. She has made application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy.

[2] The termination letter of 8 May 2012 1 states that:

“RE Certificate of illness

I am writing to inform you that your employment at Medgate Administration Trust is terminated effective 05/03/2012.

The reason for the termination is forging of your certificate of illness from Dr M. Arstall dated 23/2/2012.

Please return all keys and any other property of Medgate Administration Trust to me.

(Riaan Landman)

Business Manager”

[3] The applicant denies the allegation of forgery and contends that her dismissal was in retaliation for raising a complaint concerning the employer’s alleged non-compliance with its obligations to pay superannuation.

[4] The applicant was self-represented and Mr Riaan Landman, Business Manager, represented the employer. Each had difficulty eliciting evidence from the other without entering into argument and/or justification of their respective position on any given topic. Nonetheless I am satisfied that the evidence is sufficient to make necessary findings of fact. Fortunately the factual disputes between the parties, with a few exceptions, tend to concern peripheral events which are not germane to the determination of this matter.

The relevant facts

[5] The applicant commenced with the employer on 19 March 2009 as the Practice Manager, a position she held until her dismissal.

[6] On 20 February 2012 the applicant became ill and was airlifted from Whyalla to the Lyell McEwin Hospital (LMH) in Adelaide’s northern suburbs. She remained as an inpatient until 24 February 2012. On her discharge from LMH, the applicant said that she was give a sickness certificate (“the original certificate”) dated 23 February 2012 which was signed by Dr Arstall, the applicant’s cardiologist. The applicant stated that the certificate was for the period 20 February 2012 to 24 March 2012.

[7] This evidence was corroborated by the applicant’s husband, Alan Paskett, who was present at LMH when the applicant received the original certificate. He gave evidence that he recalled saying to the applicant at the time that she may have to use her annual leave, which she had booked to commence in late March, for recuperation. The applicant’s daughter, Ms Meredith Watt, with whom the applicant stayed for a few days on her discharge from LMH, also stated that she viewed the original certificate. Ms Watt confirmed that the dates on the certificate accorded with the applicant’s evidence.

[8] The applicant returned to Whyalla and attended the employer’s premises on 27 February, with her husband. It is agreed that at that time there was a discussion with Mr Landman about whether she would perform any work from home during the period of her absence from work and/or attend work for some hours each day to undertake light duties. This was not agreed by Mr Landman, for obvious reasons. Mr Landman requested a medical certificate but as the applicant did not have it with her at the time she undertook to provide it.

[9] From 14 March 2012 to 25 March 2012 the applicant stated that she stayed with her daughters in Adelaide as her husband was required to work and there remained some concerns about her health. This evidence was corroborated by Mr Paskett and Ms Watt, who also gave evidence that they returned to Whyalla with the applicant on 25 March 2012.

[10] There is a dispute as to when, and the circumstances in which the applicant provided the sickness certificate to the employer and whether she provided the original certificate or a copy. The applicant stated that she attended the employer’s premises with her daughter on 27 March 2012 at which time she made two copies of the original certificate. She said she took one copy home; placed one copy in an envelope marked to the attention of Mr Landman which she stuck to his computer terminal; and placed the original certificate in her personnel file. This was supported by Ms Watt, although her evidence concerning the applicant’s placement of the certificate on her personnel file was somewhat vague and confusing.

[11] Ms Santie Hattingh, Assistant Manager, gave a different version of events. She stated that in early March 2012, Mr Landman requested that she obtain a medical certificate from the applicant. Ms Hattingh stated that the applicant attended the employer’s premises on 20 March 2012, at which time she provided a copy of a medical certificate (Ex R1). On request from Mr Landman, she subsequently made a copy for him and placed Ex R1 on the applicant’s personnel file.

[12] Exhibit R1 specifies the dates of 20 February to 24 March as the period that the applicant will be unfit for work. There are two handwritten notations on the document provided at the hearing. The first, signed by Ms Hattingh, states that “I received this sick certificate on the Tuesday 20/03/12, it was given to me in an envelope on my desk addressed to Riaan [Landman].” The second notation was added by Mr Landman. It states “On 24/4/2012 asked Edith [Paskett] for original … she said its (sic) in her file … it was not … she is looking for it.” Neither notation is dated.

[13] When shown Ex R1 in the course of her cross-examination, the applicant stated that this document was not the copy of the original certificate that she had made. She stated that her copy was in portrait format whereas Ex R1 was in landscape format. In addition, she stated that the number “2” in the date of 24 March had been tampered with in Ex R1.

[14] On 2 April 2012 the applicant returned to work from annual leave. On 19 April she had a discussion with Mr Landman about the sick certificate. She stated that Mr Landman presented her with a copy of the sick certificate and asked her to place it in her personnel file. She said that this was unnecessary as the original certificate was on the file to which he replied that in that case she may as well shred it. The applicant said that she did in fact shred the certificate later in the day. She cannot recall examining the document and is unable to say whether it the copy of the original certificate she had made, or Ex R1.

[15] Mr Landman testified that during the week commencing 16 April he approached the applicant and asked her the whereabouts of the original certificate. He said that she stated it was on her file. Mr Landman said he retrieved the file and that there was no original certificate included in it. He then took the file to show the applicant. Mr Landman stated that the applicant protested that she had put the original certificate in the file, that she had a witness to this event and that somebody must have removed it from the file. Mr Landman stated that the conversation ended after he told the applicant to get a new original certificate from her doctor. 2 He stated that he repeated this request on 24 April 2012 but that the applicant did not produce a new certificate.

[16] The applicant said that she made a complaint to the Australian Taxation Office (ATO) in April regarding the non-payment or underpayment of superannuation by the employer on behalf of certain employees. She said that this led to bullying and harassment by Mr Landman which resulted in a claim for work related stress. A prescribed medical certificate was provided to the employer on 30 April 2012, for a period of one month. I note that as at the date of the hearing on 27 September, the applicant remained incapacitated for work.

[17] Mr Landman wrote to Dr Arstall on 2 May 2012 requesting an original certificate. On 7 or 8 May he received one (the second certificate), which stipulated that the applicant was unfit for work from 20 February to 4 March 2012. 3 On then examining Ex R1, Mr Landman said he noticed that the number “2” in front of the “4” in the date of 24 March looked to have been tampered with and the qualifications recorded under Dr Arstall’s signature were more extensive than in the second certificate.

[18] These discrepancies together with the shorter period of absence specified in the second certificate led Mr Landman to conclude that the applicant had ‘forged’ the certificate she provided. At no stage has Mr Landman identified whether he alleges that Ex R1 is forged in its entirety or that the applicant tampered with the certificate provided by Dr Arstall.

[19] In any event, Mr Landman determined that the applicant’s action was unacceptable and that she had also breached her employment conditions that require that an original certificate be provided for absences due to ill health. After discussion with the Directors, it was decided to terminate the applicant’s employment and the termination letter was sent.

[20] Lastly, the applicant stated that in August 2012, some three months after her dismissal, she received the original certificate in the mail. The envelope did not identify the sender. The original certificate was accompanied by an anonymous note that included the following passage:

“We are sorry for what has happened to you and know it is a lot of crap. This was found in you know whose (sic) office hope it helps you. We miss you here and everyone asks where you are please come back to work …" 4

The absence of Dr Arstall

[21] Dr Arstall was not called to give evidence. The applicant had been made aware of the process for issuing a summons after she advised problems in arranging Dr Arstall’s attendance at the hearing. The Doctor was absent interstate when the matter was first listed (for which an adjournment was granted), and the Doctor’s workload coupled with the requirement to travel to Whyalla apparently presented difficulties in her attendance.

[22] The applicant tendered a statement prepared by Dr Arstall setting out the circumstances and details of the certificates she issued to the applicant and to Mr Landman. Mr Landman objected to the admission of the statement as evidence in the absence of Dr Arstall being available for cross-examination. I decided to admit the statement on the basis that it represented the document that the applicant received from Dr Arstall, but indicated that the weight that attaches to the statement would be a matter to be considered.

Findings

[23] The findings of fact set out below are based on the evidence of the witnesses who attended the hearing. I have not relied on Dr Arstall’s statement. I have placed limited weight on the evidence of Mr Paskett and Ms Watt. Although I consider that they gave their evidence genuinely, there is some doubt in my mind as to the independence of their evidence. Mr and Mrs Paskett and Ms Watt presented as a close family unit that had been dealing with significant events in the applicant’s life and it is likely that the applicant’s dismissal and preparation for the trial has been the subject of significant discussion between them.

[24] I find that the applicant was given the original certificate on 24 February 2012 certifying that she was unfit for work between 20 February and 24 March 2012. There is no evidence to the contrary.

[25] I further find that the applicant presented the original certificate at the work place, most likely by placing it in her personnel file on 27 March 2012, after she returned from Adelaide on 25 March 2012. Her evidence on this point was credible and detailed. The following matters have also informed my conclusion on this point:

• When the applicant first attended the workplace on 27 February after her stay at the LMH, she raised the possibility of working from home or attending the practice on a part time basis. This is inconsistent with the employer’s implied contention that she sought to unlawfully extend her period of absence from the workplace by forging the end date on the certificate she presented;



• According to Mr Landman, the applicant was shocked on 19 April when shown that her personnel file contained no original certificate;



• The re-emergence of the original certificate from the workplace;



• The absence of any prior incidents in the applicant’s employment, and particularly any incidents of a kind that would tend to indicate untrustworthiness or a propensity to deceive;



• Ms Hattingh stated that the applicant attended the workplace on 20 March, when the applicant was in Adelaide at the time. Also, contrary to her notation on Ex R1 that it was “in an envelope on my desk”, Ms Hattingh repeatedly stated in evidence that the applicant “handed” her the sick certificate. 5

[26] I find that at some stage the original certificate went missing from the applicant’s file. I have reached no conclusion on when or how this occurred.

[27] Contrary to Mr Landman’s submission, there is nothing in the applicant’s offer of employment that states that originals of medical certificates must be provided or dismissal will result. 6 Even if this was the case, the validity of a dismissal on these grounds would need to be considered in the particular circumstances of any given case. Nonetheless, the employer was within its rights to require original medical certificates and it is agreed that that this was the practice adopted for the applicant and other staff. As noted above, I am satisfied that the applicant did in fact provide an original certificate.

[28] I make no finding on the applicant’s allegations that she was bullied and harassed by Mr Landman, as it is unnecessary that I do so.

The statutory context

[29] The employer is a small business employer within the meaning of s.23 of the Act. There are no jurisdictional barriers to the determination of the application.

[30] Fair Work Australia (FWA) is required to determine whether the application was made within the prescribed time limit of 14 days after the dismissal took effect. 7As noted in the letter of termination set out earlier, the purported date of dismissal was 5 March 2012. However the effective date of dismissal is the date that it is communicated to the employee.8 As the application for an unfair dismissal remedy was filed within two days of receiving the employer’s advice of the dismissal, it was made within the prescribed 14 day time limit. The employer did not argue otherwise.

[31] Section 385 of the Act sets out the criteria to be met in order for a person to be deemed to have been unfairly dismissed, as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

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

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

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[32] It is common ground that the applicant was dismissed and that the dismissal was not a case of genuine redundancy.

[33] Section 396(c) of the Act requires that FWA determine whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code) before considering the merits of the application.

[34] The Code is in the following terms:

“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, that 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 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 will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

Compliance with the Code

[35] The applicant was summarily dismissed for misconduct.

[36] It has been held that there are two steps in determining whether the employer believed on reasonable grounds that the employee’s conduct justified summary dismissal. Firstly, there must be consideration of whether the employer held a belief that the conduct was sufficiently serious to justify summary dismissal. The second step is consideration of whether the employer conducted a reasonable investigation such that the belief held is based on reasonable grounds. 9

[37] Having regard to all the circumstances I am not entirely persuaded that Mr Landman genuinely believed that the applicant had forged her certificate. There appears to be an element of opportunism in the haste with which the dismissal was brought about. However, if I accept that Mr Landman did believe that the applicant was guilty of forging a medical certificate then this would be conduct that could reasonably be argued to constitute conduct justifying summary dismissal.

[38] I am not satisfied that the employer had reasonable grounds for his belief that the applicant committed misconduct, because of the failure to conduct a reasonable investigation. The employer’s case rests heavily on the second certificate provided by Dr Arstall, some three months after the original was provided, which contained different dates. The employer made no attempt to investigate the discrepancy with Dr Arstall, and provided no reason why this could not have been attempted. The allegations of forgery were not put to the applicant. There was no attempt by Mr Landman to investigate the applicant’s contention that someone had removed the original certificate from her personnel file.

[39] On identifying the discrepancies between the two certificates Mr Landman determined that the applicant had forged the earlier certificate and took immediate steps to put her dismissal in train.

[40] I therefore conclude that the dismissal was inconsistent with the Code. As such, s.385 of the Act requires that FWA determine whether the dismissal was harsh, unjust or unreasonable.

Was the dismissal harsh, unjust or unreasonable?

[41] A range of matters are to be considered in determining whether a dismissal was harsh, unjust or unreasonable. These matters are specified 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, FWA 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 FWA considers relevant.”

[42] Having regard to the factual findings above and the requirements of s.387, I have determined that:

• There was no valid reason for the dismissal because there is no credible evidence that the applicant forged her medical certificate as alleged by the employer;



• The applicant was not notified of the reason for dismissal in advance of the dismissal; 10



• The applicant was denied the opportunity to respond to the allegations;



• The size of the employer’s enterprise and the absence of dedicated human resource specialists no doubt impacted on the (lack of) procedure surrounding the dismissal. However this is not a case where a small business employer has attempted to ‘do the right thing’ but the process miscarried in some way because of a lack of resources and/or specialist knowledge. The dismissal of the applicant reflects a denial of the most basic procedural fairness requirements and demonstrates a callous disregard by the employer for the interests of an employee already suffering a stress related illness; and



• There are no other matters that I consider relevant.

Conclusion

[43] I conclude that the dismissal was harsh, unjust or unreasonable and that the applicant has been unfairly dismissed. Further information will be sought from the parties in order to determine the appropriate remedy.

DEPUTY PRESIDENT

Appearances:

E Paskett on her own behalf

R. Landman for the respondent

Hearing details:

2012

Whyalla

September 27

 1   Ex A1.

 2   PN 602.

 3   Ex R2.

 4   Ex A3.

 5   At PN 936, 947, 1010.

 6   The offer of employment (Ex A7) states that “Medical certificates may required (sic) to cover all absences from work for personal/carer’s leave.”

 7   Section 396(a) of the Act.

 8   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496.

 9   John Pinawin T/A RoseVi.Hair.Face.Body v Edwin Domingo[2012] FWAFB 1359.

 10   In Crozier v Palazzo Corporation Pty Limited, (2000) 98 IR 137, it was held that the requirement to notify an employee of the reason for dismissal pertains to the period before dismissal.

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<Price code C, PR531135>