Jason Air v Peet Limited
[2024] FWC 2637
•2 OCTOBER 2024
| [2024] FWC 2637 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Air
v
Peet Limited
(U2024/1557)
| DEPUTY PRESIDENT LAKE | BRISBANE, 2 OCTOBER 2024 |
Application for an unfair dismissal remedy – lawful and reasonable direction – independent medical examination – application dismissed.
Mr Jason Air (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that he was unfairly dismissed from his employment with Peet Limited (the Respondent).
A conciliation was held on 10 July 2024 and the matter was not resolved. The matter was listed for hearing on 23 August 2024. The Applicant was self-represented. The Respondent was represented by Ms Danielle Flint from HWL Ebsworth Lawyers. Leave was granted for the Respondent to be represented under s.596 of the Act.
Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act, earned less than the high-income threshold, is a person protected from unfair dismissal, that his dismissal was not a case of genuine redundancy, and the Small Business Fair Dismissal Code is not applicable as a business with more than 15 employees.
Background
The Applicant commenced employment as a Development Manager with the Respondent on 21 October 2019.[1]
On 19 July 2023, the Applicant took leave from work to attend a court trial on 20 July 2023 for a domestic violence matter.[2]
The Applicant’s manager, Mr Jonathan Lawson, was made aware of the trial, but he states that he did not know the trial related to a domestic violence matter.[3]
After the trial, the Applicant texted Mr Lawson to tell him that he would not be attending work the next day.[4] The Applicant took additional leave the following week, of which Mr Lawson was aware.[5]
On 28 July 2023, the Respondent’s Brisbane social club held an event which the Applicant attended.[6] During the evening, there was an incident between the Applicant and another employee (the incident). The Respondent claims that the Applicant inappropriately touched the other employee.[7] The Applicant claims that the other employee assaulted him by pinching his cheek.[8]
On 1 August 2023, the Respondent received a complaint from the Applicant’s colleague regarding the Applicant’s conduct during the social event.[9] The Applicant was stood down with pay pending the outcome of an investigation into the incident. The Applicant was given both a verbal and written direction by Mr Lawson not to contact any other Peet employees who may be involved in the investigation.[10]
On 2 August 2023, the Applicant sent two text messages to the employee who had made the complaint:
“Why did you pinch my check [sic] so hard in [sic] Friday night? It bruised my face.”
“I know what it was.”
Ms Emma Atkin, People and Culture Manager for the Respondent, contacted the Applicant by email on 2 August 2023 to remind him that he had been told not to contact other employees who may be involved in the investigation.[11]
The Applicant replied to Ms Atkin’s email, writing:
“Sorry you did say on the phone yesterday don’t contact anyone about an incident, however I am not sure what you are referring to so I can contact anyone right? Not being cheeky at all just saying. I am after a support person Emma. I should have had one on the first call.”[12]
On 10 August 2023, Ms Atkin sent the Applicant a letter outlining the allegations against him and asking for him to attend a meeting on 11 August 2023.[13] The Applicant did not attend this meeting, stating that he had come down with the flu but that he would do his best to check in later.[14]
On 14 August 2023, the Applicant advised Ms Atkin that he had engaged a solicitor. He asked to reschedule the meeting with the Respondent for later in the week, to give his solicitor time to review the matter.[15]
Ms Atkin again attempted to schedule a meeting with the Applicant on 17 August 2023. Ms Atkin emailed the Applicant on 16 August 2023 and stated that:
“You failed to attend the meeting on Friday 11th August, you failed to give notice of your non-attendance, you have not provided a medical certificate and did not respond to our repeated attempts to contact you during and after the scheduled meeting time.”[16]
Ms Atkin noted in her letter to the Applicant that the purpose of the meeting was for the Applicant to describe in his own words what occurred on 28 July 2023, during the social event.[17]
The Applicant did not attend the meeting on 17 August 2023.
On 18 August 2023, the Applicant emailed Ms Atkin and provided a response to the allegations against him. He denied the allegation that he assaulted his colleague. He stated that the employee who had made the complaint had assaulted him by pinching his cheek and giving him a bruise.[18]
Ms Liezl Ulrich, Head of People & Culture for the Respondent, replied to the Applicant’s email of 18 August 2023. Ms Ulrich stated that the Applicant’s response did not set out the necessary information in order for the Respondent to close the investigation.[19] Ms Ulrich directed the Applicant to attend a meeting on 21 August 2023.
The Applicant did not attend the meeting on 21 August 2023. He sent the Respondent a medical certificate and stated that he would be “unfit to attend a meeting until the end of September 2023”.[20]
On 22 August 2023, Ms Ulrich wrote to the Applicant acknowledging receipt of the medical certificate. Ms Ulrich asked for further medical evidence which confirms that the Applicant is unable to participate in an investigation process.
On 23 August 2023, Ms Atkin wrote to the Applicant to confirm that his personal leave had been exhausted and that any further leave would be processed as unpaid leave.[21] The Applicant called Ms Atkin but the Applicant reportedly refused to respond to questions about his fitness to participate in the investigation.[22]
On 29 August 2023, the Applicant’s solicitors wrote to the Respondent providing a medical certificate from a General Practitioner which stated that the Applicant “has a medical condition and will be unfit for work from 21/08/2023 to 31/09/2023 inclusive”.[23]
On 27 September 2023, the Respondent’s solicitor sought an updated medical certificate confirming that the Applicant was unable to participate in the investigation process.[24] The Applicant’s solicitor provided a further medical certificate which states:
“Mr Jason Air has a medical condition and will be unfit for work from the 29/9/2023 to 30/10/2023. Mr Air is unfit to participate in any part of the investigation process during this period”[25]
When the Respondent’s solicitor asked for an updated medical certificate on 27 October 2023, the Applicant’s solicitor provided another medical certificate from the Applicant’s General Practitioner stating that the Applicant was unfit for work until 24 November 2023 and that he was unfit to participate in any investigation process during this period.[26] The investigation was still pending at this time.
On 22 November 2023, the Respondent’s solicitor wrote to the Applicant’s solicitor directing the Applicant to attend a meeting with Ms Atkin on 28 November 2023 to discuss the incident on 28 July 2023.[27] Again, the Applicant’s solicitor responded by providing a medical certificate from the Applicant’s General Practitioner which certified the Applicant as being unfit for work or to participate in an investigation process until 15 December 2023.[28]
The Applicant’s solicitor provided a fifth medical certificate from the Applicant’s General Practitioner stating that the Applicant was unfit for work until 7 January 2024.[29]
On 12 December 2023, the Respondent’s solicitor advised that the Respondent would be requesting for the Applicant to attend an Independent Medical Examination (IME). The Respondent’s solicitor further stated:
Peet cannot continue to keep Mr Air’s position open indefinitely, when his return date is not known and he is not providing information about a potential return date or any restrictions that may apply to his employment on his return to work.[30]
The Applicant’s solicitor responded on 15 December 2023, indicating that the Applicant consented to attending an IME.[31]
An IME was booked for 8 January 2024 with a Clinical Psychologist.[32] However, the Applicant advised Ms Atkin on 5 January 2024 that he was unable to attend the IME as he was not available that day, writing, “Please have some respect and understand I am on leave”.[33] The Applicant was on unpaid leave as his sick leave entitlements had been exhausted since 23 August 2023.
On 10 January 2024, Ms Ulrich sent the Applicant a Show Cause Letter. The letter outlined failures by the Applicant to comply with the Respondent’s directions, including:
1.Failure to comply with the direction on 1 August 2023 not to contact Peet employees after the incident
2.Failure to attend a meeting on 11 August 2023
3.Failure to attend a meeting on 15 August 2023
4.Failure to attend a meeting on 17 August 2023 or to provide sufficient evidence for non-attendance
5.Failure to provide further medical information
6.Failure to attend the IME
The Applicant was instructed to show cause as to why his employment should not be terminated by 15 January 2024. On 15 January 2024, the Applicant responded by providing further details about the incident on 28 July 2023, stating again that he had been assaulted by the other employee.[34] The Applicant did not provide a response in relation to the failures to attend investigation meetings or his failure to attend the IME. The Respondent replied on 16 January 2024 asking for the Applicant to provide a response regarding the Respondent’s failure to comply with the other directions noted in the Show Cause letter.
The Applicant responded on 18 January 2024 stating, “as per my submitted medical certificate dated 8 January 2024, I am on leave until 8 February 2024”.
On 18 January 2024, Ms Ulrich sent the Applicant a further letter inviting the Applicant to provide evidence to address the matters in the Show Cause Letter. The letter noted that if the Applicant failed to provide evidence by 22 January 2024, his employment would be terminated.
On 22 January 2024, the Applicant responded by reiterating his request that the Respondent “Please respect that I am on leave.”[35]
On 23 January 2024, Ms Ulrich sent the Applicant a letter terminating the Applicant’s employment.
The Applicant lodged his unfair dismissal application on 13 February 2024 within the 21-day statutory timeframe.
Was the Applicant unfairly dismissed?
Section 387 of the Fair Work Act 2009 (Cth) (the Act) provides that, in considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
a. whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
b. whether the person was notified of that reason;
c. whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
d. any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
e. if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
f. the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
g. the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
h. any other matters that the Commission considers relevant.
(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);
A valid reason for dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.”[36] As summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a “dismissal must be a justifiable response to the relevant conduct or issue of capacity”.[37] The Commission must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.[38]
The reason for the Applicant’s dismissal was the failure to attend three meetings as part of an investigation process into the incident, failure to provide further medical evidence after an extended leave of absence and failure to attend an IME as directed.
This was a valid reason for dismissal given that the Respondent was enquiring about the Applicant’s capacity to work after being absent for six months along with the failure to cooperate with an investigation.
Employees are expected to follow a lawful and reasonable direction from their employer.[39] It was lawful for the Respondent to ask the Applicant to attend an IME, and it was reasonable for the Respondent to ask the Applicant to attend given that he failed to attend 3 meetings beforehand regarding the investigation due to “medical reasons”.
After a long period of absence, the Respondent should be cautious about returning the employee back to work. The Respondent has a duty of care to the employee and as a result the use of an IME should be appropriate and responsible. If the Respondent is unable to assess the capacity of an employee after a long absence, then out of caution it will be assumed that the employee will not have the ability to complete the inherent requirements of the role. The failure to follow a reasonable request is a valid ground for dismissal. This weighs against finding that the dismissal was harsh, unjust or unreasonable.
(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
Although the employer is not required to take any “particular steps” in carrying out the dismissal, it is a commonly accepted practice that the notice must be provided in explicit, plain and clear terms regarding the termination of an employee except in cases of serious misconduct.[40]
The Applicant was provided a Show Cause letter on 10 January 2024 which outlined the instances where the Applicant failed to comply with lawful and reasonable directions. The Applicant was initially given five days to respond to the letter. The Applicant’s initial response only provided further information about the incident and did not address the failure to attend the investigation meetings, the failure to provide further medical information or the failure to attend an IME.
The Applicant was given another opportunity to respond on 18 January 2024. The Applicant responded by asking that the Respondent respect that he was on leave.
The Applicant was given chances to provide further information explaining his extended leave of absence. Each time the Applicant was requested to provide further information, he supplied a medical certificate from his General Practitioner stating that he was unable to work or participate in an investigatory process.
The Applicant was notified of the reason for dismissal and given an opportunity to respond.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal; and
There is no positive obligation on an employer to offer an employee the opportunity to have a support person and it is only relevant when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses.vi I do not consider this to be a relevant factor in this case in determining whether the dismissal was harsh, unjust or unreasonable.
(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
The Applicant was not dismissed due to poor performance. I do not consider this to be a relevant factor in this case in determining whether the dismissal was harsh, unjust or unreasonable.
(f) Size of employer’s enterprise, and (g) impact on procedures caused by absence of dedicated human resources:
The parties did not submit that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise or absence of dedicated human resources had no impact on the dismissal.
(h) any other matters that the FWC considers relevant
The Applicant has submitted that the Respondent failed to take into consideration the Applicant’s personal issues.[41] The Applicant states he has been a survivor of domestic violence since 2001 and has never been offered support by the Respondent in this regard.[42] I note that both Mr Lawson and the Respondent’s State General Manager, Mr Michael Stone have stated that they were not made aware of the Applicant experiencing domestic violence until after he had been dismissed.[43]
These factors do not pertain to why the Applicant did not attend the IME, or attend the meetings and therefore do not relate to the dismissal. Instead, the Applicant provided a medical certificate which did not indicate the Applicant’s capacity and therefore with the information before the Respondent, it was appropriate that the Applicant was asked to attend an IME.
Conclusion
The Applicant’s dismissal was not harsh, unjust or unreasonable in considering all the circumstances as he was given numerous opportunities to engage with the Respondent and provide further information but failed to do so. The Applicant was absent from his employment for months and refused to participate in the investigation process regarding the incident. Therefore, a remedy for unfair dismissal cannot be awarded and the Application is dismissed. I Order accordingly.
DEPUTY PRESIDENT
Appearances:
J. Air for the Applicant
D. Flint appearing for the Respondent from HWL Ebsworth Lawyers
Hearing details:
23 August 2024
Brisbane
Hearing via Microsoft Teams
[1] Respondent Submissions [1].
[2] Email from the Applicant to Chambers dated 19 July 2024; Respondent Submissions [7].
[3] Jonathan Lawson Witness Statement [7].
[4] Jonathan Lawson Witness Statement [23] .
[5] Jonathan Lawson Witness Statement [28] –[31].
[6] Respondent F3.
[7] Respondent F3.
[8] Applicant email to Liezl Ulrich dated 15 January 2024.
[9] Show Cause Letter from Peet Limited to the Applicant .
[10] Emma Atkin Witness Statement [32]-[34].
[11] Show Cause Letter
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Email from the Applicant to Emma Atkin dated 14 August 202
[16] Email from Emma Atkin to the Applicant dated 16 August 2023
[17] Email from Emma Atkin to the Applicant dated 15 August 2023
[18] Email from the Applicant to Emma Atkin and Jonathan Lawson dated 18 August 2023.
[19] Email from Liezl Urlrich to the Applicant dated 18 August 2023
[20] Email from the Applicant to Liezl Ulrich dated 21 August 2023
[21] Email from Emma Atkin to the Applicant dated 23 August 2023
[22] Enma Atkin Witness Statement [94].
[23] Ibid Annexure EA-21
[24] Ibid Annexure EA-26.
[25] Ibid Annexure EA-27.
[26] Ibid Annexure EA-29.
[27] Ibid Annexure EA-30.
[28] Ibid Annexure EA-31.
[29] Ibid Annexure EA-35.
[30] Ibid Annexure EA-36.
[31] Ibid Annexure EA-37.
[32] Ibid Annexure EA-38.
[33] Ibid Annexure EA-40.
[34] Email from the Applicant to Liezl Ulirch dated 15 January 2024.
[35] Email from the Applicant to Liezl Ulirch dated 22 January 2024.
[36] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[37] [2021] FWC 4 at 118.
[38] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185, [46], citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.
[39] Dr Amir Reza Zokaei Fard v Royal Melbourne Institute of Technology (RMIT University)[2022] FWC 1375
[40] Chubb Security Australia Pty Ltd v Thomas (2000) AIRCFB at [41] Print S2679 (McIntyre VP, Marsh SDP and Larkin C); Crozier v Palazzo Corporation Pty Ltd [2000] 98 IR 137 at 73 (Ross VP, Acton SDP and Cribb C); Previsic v Australian Quarantine Inspection Services, Print Q3730 (AIRC, Holmes C, 6 October 1998). The principles still apply to the provisions of s.389(b) and (c) of the Fair Work Act 2009 (Cth), see William Eskander v Visy Board Pty Ltd [2021] FWC 3122 (Harper-Greenwell C) upheld in [2021] FWCFB 6036.
[41] Applicant’s Submissions.
[42] Ibid.
[43] Jonathan Lawson Witness Statement [25]; Michael Stone Witness Statement [20].
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