Iona Stavrou v Austin Health T/A Austin Hospital

[2015] FWC 8668

[2015] FWC 8668

The decision issued by the Fair Work Commission on 18 December 2015 [2015] FWC 8668 is refiled to include the print code [PR575074]

Andrea Kerley

Associate to Deputy President Hamilton

Dated 18 December 2015

[2015] FWC 8668 [Note: An appeal pursuant to s.604 (C2016/2047) was lodged against this decision - refer to Full Bench decision dated 23 March 2016 [[2016] FWCFB 1742] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Iona Stavrou
v
Austin Health T/A Austin Hospital
(U2015/8631)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 18 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 19 June 2015 Ms.Iona Stavrou lodged an application under s.394 of the Fair Work Act 2009 (‘the Act’) for an unfair dismissal remedy. It is agreed that no jurisdictional issue exists and that Ms.Stavrou is a person protected from unfair dismissal, and it was agreed that the matter be conducted by way of conference. Permission for the parties to be represented by legal practitioners was sought and granted pursuant to s.596 of the Act.

[2] I have taken account of all the evidence and submissions.

Submissions

[3] In closing submissions, Ms.Stavrou submitted that it is necessary to address the actual reasons for the dismissal, and submitted that the employer failed to establish on the facts that Ms.Stavrou failed to comply with a lawful and reasonable direction to attend an IME, and that she was not adequately notified of the reason for her dismissal, or given an opportunity to respond within s.387(b) and (c). Ms.Stavrou dealt in some detail with the alleged failure to comply with a lawful and reasonable direction to attend an IME, alleged failure to give sufficient consent for the IME, the employer’s failure to satisfy the onus of demonstrating a valid reason, inadequate notification and lack of opportunity to respond 1. Ms.Stavou also had put in an initial written submission which made similar points2.

[4] The employer’s closing submissions were that Ms.Stavrou was dismissed for two reasons or grounds, failing to attend the second IME, and seeking to contain or confine the nature of any third IME. Each reason was communicated to Ms.Stavrou during the meeting on 1 June 2015. The employer dealt with a number of other issues discussed in more detail below, and also put in an initial submission.

Consideration

Valid reason: s.387(a)

[5] In this case the employer alleges in the letter of termination that Ms.Stavrou breached lawful and reasonable employer directions to participate in an independent medical examination and to authorise the release of medical information to Austin Health. Ms.Kirsty Cadusch, Employee Relations Adviser, gave evidence that on 8 May 2015 she sent Ms.Stavrou a letter and an email (copied to Mr.Inglis, Ms.Stavrou’s solicitor) directing her to attend an independent medical examination with Dr.Salimi on 14 May 2015. Attached to the letter was a medical consent form 3. The letter was sent by courier, and Ms.Cadusch received confirmation from the couriers that the letter and consent form had been delivered to Ms.Stavrou’s letterbox. On 13 May Ms.Cadusch emailed Ms.Stavrou again and requested that she confirm she would attend the second IME, and again Mr.Inglis was copied in4.

[6] Ms.Stavrou had injured herself at work, and had provided a series of medical certificates stating that she was unfit for work, which are attached to Ms.Stavrou’s witness statement (Exhibit S1). Some of these are summarised in Exhibit A1. In addition, while unfit for work, Ms.Stavrou engaged in the Gatorade triathlon series from 30 November 2014-29 March 2015 (Exhibit A2). Ms.Cadusch gave evidence that Austin decided to seek medical advice to determine Ms.Stavrou’s fitness for work, both because this was ‘standard practice …. After an employee has been off work for an extended period’, and also because of concerns that the Triathlon participation during periods of unfitness for work meant that she ‘considered that Ms.Stavrou may have been guilty of misconduct if she had misled Austin Health as to her physical condition’ 5.

[7] It is common ground that the medical examination scheduled for 14 May 2015 did not occur. Ms.Stavrou said that she did not receive the letter and email and Mr.Inglis did not tell her to attend the examination. She gave evidence that she could provide proof from her internet provider that her bill had been unpaid and that she had problems accessing email via the internet, and that she did not receive the letter. However, her evidence about the letter is couched in terms that there was no evidence that she was aware of the second IME (independent medical examination) 6, a somewhat indirect way to give honest and direct evidence about what she did and did not know. In addition, apparently Mr.Inglis did not notify her of the second IME on her evidence.

[8] I note that Mr.Inglis was not called to verify her version of events. Nor did he comply with directions to produce his file records. As the employer submitted, an inference should be drawn that Mr.Inglis’s evidence would not have assisted Ms.Stavrou on the question of what was discussed between Ms.Stavrou and Mr.Inglis on this point: Jones v. Dunkel 7. I would have come to the same conclusion without drawing this inference. Nor is there proof that the internet was not functioning on 8 May when the email directing her to attend the second IME was sent beyond her word. There is no statement from the internet provider beyond a note from the provider stating that there were severe issues with connectivity since April 2015, and that internet service was effectively being disrupted by another connection closer to the exchange8. The applicant did not produce any statement that the internet was cut off on or around 8 May because she did not pay her bill. As the employer submitted there was evidence that the internet was functioning on 24 April, 30 April, 18 May and 25 May9. I am asked to believe that three methods of communication with Ms.Stavrou, namely an email to her, an email to her solicitor, and a couriered letter to her, failed to reach her.

[9] There is also the context that there was a dispute between her and Austin about these medical examinations. Austin sought her consent to full release of medical information, while Ms.Stavrou wished to substantially limit the information released. The first independent medical examination did not take place after Ms.Stavrou refused to sign a full consent form authorising the release of medical information, and instead inserted written conditions limiting release to her solicitor, Mr.Inglis. 10 For whatever reason Ms.Stavrou had little reason to wish to authorise a full release of medical information, or to attend a medical examination except on the conditions that she wished.

[10] Ms.Cadusch gave evidence that Ms.Stavrou only agreed at a meeting on 26 May to provide a consent form relating to ‘her capacity for work only’, which she interpreted as refusing information about her capacity to run triathlons 11. This is a reasonable interpretation given Ms.Stavrou’s earlier refusal to sign a full consent form. I prefer the evidence given by Ms.Cadusch to any contrary evidence given by Ms.Stavrou. I had the opportunity to observe witnesses giving evidence, and in any event as the employer submitted, Ms.Cadusch’s interpretation was consistent with the context12.

[11] I do not accept Ms.Stavrou’s evidence that she did not receive the email or letter of 8 May or 13 May. The explanation in final submissions 13 of why three methods of communication somehow failed so that she did not attend a meeting is valiant but unconvincing. It is complex and seems overall unlikely that such a series of unfortunate events would occur. For example the explanation for not receiving the letter includes that there was more than one mail box, that the respondent did not seek first hand personal evidence of delivery, and it is likely that the letter was ‘simply not correctly delivered to Ms.Stavrou’s mail-box’. The explanation for not receiving the email is also curiously couched as ‘the applicant can only say she did not discover the e-mailed version of the letter … until 18 May 2015’. The explanation for her solicitor not advising her to attend is that she ‘misunderstood him as having referred to a different, earlier IME’. I do not accept the evidence she gave. On the balance of probabilities she did receive the employer communication by email or by letter, or both. She was aware of the employer direction to attend the second IME to be held on 14 May.

[12] It was a lawful and reasonable direction given her workplace injury and participation in triathlons. As Justice Goldberg said in Thompson v. IGT (Aust) Pty Ltd 14:

‘It is also an established principle that it is reasonable to direct an employee to attend a medical examination to determine whether the employee is fit to perform his or her duties and whether he or she can do so safely.’

[13] This participation was something that Austin legitimately decided raised questions about her medical certificates. In any event, given the injury and long absence from work the directions were lawful and reasonable.

[14] Ms.Stavrou failed to comply with these directions. This constitutes a valid reason for termination of employment.

Notification of reason – s.387(b)

[15] The letter of termination (Attachment 8 to the application) notified Ms.Stavrou of the reason for termination. There was some debate about the exact nature of the notification. However in my view the nature of the notification is sufficient to meet the requirements of s.387(b).

Opportunity to respond – s.387(c)

[16] The employer submits that the applicant was given an opportunity to respond at a meeting held on 1 June 2015, and I agree. I accept the evidence of Ms.Owen 15 and Ms.Cadusch16. It may be that Ms.Stavrou did not avail herself of the opportunity to respond, but such opportunity was provided. In any event she did respond at an earlier meeting on 26 May.

Support person – s.387(d)

[17] A support person was present on 1 June.

Unsatisfactory performance – s.387(e)

[18] The dismissal was not for unsatisfactory performance, and this is not relevant.

Size of business, human resources personnel – s.387(f)(g)

[19] Austin Health is a large employer with specialist human resource managers.

Other – s.387(h)

[20] I have taken all matters into consideration.

Conclusion

[21] Ms.Stavrou was accorded a fair go all round. Her dismissal was not harsh, unjust or unreasonable. I dismiss the application. An order is contained in PR575075.

DEPUTY PRESIDENT

Appearances:

Mr R Sorensen for the Applicant

Mr N Harrington for the Respondent

Hearing details:

2015

Melbourne

16 November

Final written submissions:

1 December 2015

 1   Applicant’s closing submissions

 2   Exhibit S2

 3   Exhibit A4, paragraphs 34-36

 4   Exhibit A4 at 39

 5   Exhibit A4, paragraphs 12-16

 6   Exhibit S1, paragraphs 80-81

 7 (1959) 101 CLR 289, employer closing submissions paragraph 29

 8   Exhibit S1, Attachment IS17

 9   Employer Closing Submissions, paragraph 21(b)

 10   Exhibit S1, Attachment IS14.

 11   Exhibit A4, Attachment KC24, p.423

 12   Employer closing submissions paragraph 46

 13   Closing Submissions for Applicant, 25 November 2015

 14 (2008) 173 IR 395 at 407, paragraph 49

 15   Exhibit A3, paragraphs 86-91

 16   Exhibit A4, paragraphs 73-76

Printed by authority of the Commonwealth Government Printer

<Price code C, PR575074>