Karina Teuma v Technical and Further Education Commission T/A TAFE NSW
[2022] FWC 1446
•22 JUNE 2022
| [2022] FWC 1446 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Karina Teuma
v
Technical and Further Education Commission T/A TAFE NSW
(U2021/11479)
| COMMISSIONER MCKENNA | SYDNEY, 22 JUNE 2022 |
Application for an unfair dismissal remedy
Karina Teuma (“applicant”) has made an application, pursuant to s.394 of the Fair Work Act 2009 (“Act”), in which she seeks an unfair dismissal remedy in relation to her termination of employment by the Technical and Further Education Commission T/A TAFE NSW (“respondent” or “TAFE NSW”).
Preliminary matters
As to the initial matters to be considered, as set out in s.396 of the Act, there was no issue, and I otherwise find, that the application was made within time; the applicant is a person who was protected from unfair dismissal; the respondent is not a small business, with the result that consideration of the Small Business Fair Dismissal Code does not arise; and the termination of employment was not a genuine redundancy.
Background
The following background is based principally on the structure of the respondent’s submissions, due to the discursive, oftentimes highly-repetitive and/or irrelevant nature of much of the applicant’s written materials in relation to the allegedly unfair dismissal – albeit with reference to some of the applicant’s own relevant written materials. Much of what was addressed in the applicant’s materials referred to workers’ compensation-type issues in connection with a dispute about a return-to-work; various forms of alleged discrimination, bullying and “workplace violence;” and dissatisfaction overall with the findings of an external investigation into certain allegations. For example, in the applicant’s materials, she alleged, in detail, multiple breaches of various statutes as follows:
“TAFE NSW have maintained adverse action in relation to me, directly in relation to the contravention of the following:
1/ Workers Compensation Act 1987 No 70;
2/ Anti-Discrimination Act 1977 No 48;
3/ Employment Protection Act 1982 No 122;
4/ Work Health and Safety Act 2011 No 10;
5/ Workplace Injury Management and Workers Compensation Act 1998 No 86; and
6/ Fair Work Act 2009, Volume 1 and Volume 2.”
The preceding list is not a complete catalogue. For instance, the applicant referred on numerous occasions in her materials to privacy principles and the Privacy and Personal Information Protection Act 1998 in connection with her “private and personal medical information”. The applicant’s allegations about improper, invalid and/or illegal conduct in connection with her employment also extended beyond employees of the respondent. For example, the applicant alleged that a SafeWork NSW investigator “despite her qualifications and experience, has chosen to contravene section 49 of the Workplace Injury Management and Workers Compensation Act 1998 No 86 by failing to encourage” various named individuals and TAFE to provide her with suitable duties, “despite the continuous attempts I made for suitable duties to be provided”. As to the dismissal itself, part of the applicant’s case was set out as follows (as written, and then supplemented by examples upon which the applicant relied):
“In relation to TAFE NSW’s unproven comments on how the employment relationship has “irretrievably broken down,” I do not agree with these comments. TAFE NSW conveniently claims that the employment relationship has “irretrievably broken down,” as a sneaky method for TAFE NSW terminating me at TAFE NSW’s initiative.
The unlawful termination of my employment was caused by a Termination at TAFE NSW’s initiative because:
- TAFE NSW’s actions directly and consequentially resulted in the termination of my employment; and
- Had TAFE NSW not taken these actions, I would have remained employed.
- There were several actions taken by TAFE NSW that intended to bring the relationship to an end.”
It may be noted that the applicant refused to be cross-examined in the proceedings on any matter by the respondent’s representative, with the result that her evidentiary-style materials and/or assertions are to be weighed accordingly. Evidence was given in the respondent’s case by Stacy Treglown, the respondent’s Manager Workforce Alignment, People and Culture.
Separately, to assuage any remaining concerns the applicant may have (as set out in her various emailed communications following the hearing) in relation to the background that follows in the decision and my findings, I did not privately or secretly continue to hear further oral submissions from the respondent immediately following the conclusion of the hearing and nor did I privately or secretly subsequently receive written materials of any description from the respondent.
By way of short background, the applicant was employed by the respondent in the period 22 July 2019 to 23 November 2021 as a Work Health and Safety (“WHS”) Specialist, albeit she did not perform work in the period from 19 March 2021 (when she commenced a period of paid personal leave due to a medical illness and/or injury) to the date of the dismissal.
On 6 April 2021, the applicant made a complaint about allegedly inappropriate behaviour and conduct of two employees of the respondent. The respondent engaged an external investigator, Workdynamic Australia Pty Ltd, to investigate the complaint. None of the applicant’s allegations was found to be substantiated, albeit the investigator considered that, in one aspect, the conduct of one the employees had been “less than ideal.”
The applicant provided several certificates of capacity to the respondent with respect to periods of time between 19 March 2021 and 28 July 2021. Relevantly, various certificates, including the last certificate the applicant provided to the respondent, identified that the applicant was not to be contacted by the two employees in relation to whom she had earlier made the allegations – which effectively would have been impracticable given the structure of the WHS teams. Between June and October 2021, the respondent engaged with the applicant in various communications. On 30 June, 5 July and 7 July 2021, the respondent made a request to the applicant to provide her consent to obtain further medical information about her fitness for duty. The applicant took the position that her refusal to comply with this request was because she considered that all the required medical information had already been provided to the respondent in the certificates of capacity from her medical practitioner.
On 15 July 2021, the respondent wrote to the applicant with advice that it had referred her to attend an independent medical capacity assessment on 10 August 2021. The respondent subsequently sent follow-up correspondence on 23 and 28 July, and 5 August 2021 – including a direction to attend the appointment. The applicant’s position was that she did not attend the appointment as she considered it was not reasonable given that her own medical practitioner had certified her as having full capacity to perform her duties.
On 20 August 2021, the respondent made a request to the applicant to provide documents that were stored on her work-issued laptop. The request arose because the documents were required to be produced in response to a notice issued by SafeWork NSW. The respondent made follow-up communications in relation to this request, culminating in a direction on 10 September 2021 to comply with this earlier request/s concerning the provision of the documents required by SafeWork NSW. The applicant took the position that her refusal to comply with the direction was because she had not been provided with a return-to-work plan; thereby, she was not authorised to work and, collaterally, she was unauthorised to provide the documents. The applicant described matters around this as follows:
“47. On the 20 August 2021 at 10:09:01 am and on the 25 August 2021 at 8:18:01 am, TAFE confirmed their ongoing request for me to work in the absence of a return-to-work plan, via means of the production of the investigation documents. This request is in complete contrast to what they previously requested to me on the 20 April at 4:44pm. Thus, TAFE NSW have not authorised me to return to work, yet they demanded I perform my WHS Specialist position by producing the required documents. This further proves my fitness to return to my pre-injury role as a WHS Specialist and how TAFE NSW discriminated against me.”
As to this, the applicant’s materials included associated submissions which read:
“161. In relation to section 43 of the Work Health and Safety Act 2011 No 10, I am therefore not authorised to conduct my duties as a WHS Specialist, via absence of a provision of a return-to-work plan and, consequently, an absence of suitable duties. It is therefore an unlawful request to order me to provide documents in relation to an incident investigation, via absence of a provision of a return-to-work plan and, consequently, an absence of Suitable Duties. TAFE NSW is thus contravening section 43 of the Work Health and Safety Act 2011 No 10.
…
169. Additionally, TAFE NSW have contravened Clause 46 of the Workplace Injury Management and Workers Compensation Act 1998 No 86, by TAFE NSW unlawfully enforcing obligations on myself to work as a WHS Specialist by demanding I provide the incident investigation documents for the Gymea Router Incident, without the presence of an injury management plan or return-to-work plan on suitable duties.
…176. TAFE NSW wrote to me on numerous occasions, unlawfully attempting to coerce me to work as a WHS Specialist by expecting me to submit further investigation documents, in the absence of a return-to-work plan on suitable duties. It is particularly unlawful how, TAFE NSW, still, despite the unlawful request for me to provide the investigation documents, TAFE NSW had ignored [name of the applicant’s medical practitioner’s] medical clearance and, without being qualified Doctors, thought they could deem me as ‘unfit’ to perform me role as a WHS Specialist. TAFE NSW do not have any evidence to support their false claims and have thus contradicted themselves by expecting me to work by providing investigation documents, in the absence of a return-to-work plan, yet claiming I am ‘unfit’ to return-to-work. Emails sent to and from TAFE NSW coercing me to work in the absence of a return-to-work plan, were sent on 20 August 2021 at 10:09:01 am, 20 August 2021 4:21 PM, 25 August 2021 at 8:18:01 am, 10 September 2021 at 1:15:21 pm, 13 September 2021 10:34 AM and the 7 October 2021 6:59 PM.”
On 21 September 2021, the respondent informed the applicant that the independent medical capacity assessment had been rescheduled to 28 September 2021.The applicant took the position that she did not attend the appointment for reasons including that she had privacy concerns, given that the respondent had provided her personal information to the independent medical capacity provider without her consent. The applicant also considered that the respondent was coercing her to attend unnecessary medical appointments with a doctor who allegedly had a reputation of psychologically harming patients. The applicant said that in her materials that if she had attended the relevant appointment, the respondent “would have knowingly subjected me to intense psychological harm”, and the respondent would have used the practitioner’s “diagnosis/prognosis as a method for TAFE NSW to dismiss me by fictitiously claiming I am unfit to return to work. This would have provided TAFE NSW with a fictitious get out of jail free card, in order to dismiss me, illegally.” The applicant also later contended in her materials that the practitioner was known to cause not only significant psychological harm but also “biological” harm to patients.
On 7 October 2021, the respondent wrote to the applicant, advising that SafeWork NSW had requested it to require the applicant to provide documents in relation to the SafeWork NSW matter. The applicant’s position was that she did not provide the documents for the reasons around the lack of a return-to-work plan.
Show cause process
On 18 August 2021, the respondent advised the applicant that it was considering bringing her employment to an end on the basis that she had failed to comply with multiple lawful and reasonable management directions, relevantly in relation to medical examination/s. On 3 September 2021, the applicant sent a response which detailed her reasons for refusing to comply with the directions.
On 21 September 2021, the respondent advised the applicant that it was considering taking disciplinary action against her, up to and including the termination of her employment on the basis that she failed to comply with a further lawful and reasonable management direction in connection with the provision of the SafeWork NSW documents. On 6 October 2021, the applicant provided further reasons for refusing to comply with the directions. Ms Treglown characterised matters about the applicant’s responses as follows:
“29. In Ms Teuma’s responses to the two Show Cause Letters, she provided lengthy explanations of her reasons why she chose not to comply with the relevant requests and directions, which included that:
(a) she did not provide her consent for TAFE NSW to obtain further medical information because she believed she had provided all required medical information in the form of the Certificates of Capacity issued by her nominated medical practitioner;
(b) she did not comply with the direction to attend the independent medical assessment appointments as she believed:
(i) TAFE NSW had intentionally falsified her capacity;
(ii) she was being coerced to attend unnecessary and unreasonable appointments;
(iii) TAFE NSW had breached her personal privacy by referring her to the independent medical assessment company, IMMEX; and
(iv) the doctor who would be undertaking the independent medical assessment has a reputation of psychologically harming his patients and has engaged in malpractice;
(c) she did not comply with the direction to provide documents stored on her work-issued laptop in relation to a SafeWork NSW investigation as she believed she was unauthorised to perform any of the duties of her WHS Specialist role in the absence of a return-to-work plan with suitable duties.”
Upon her consideration of the applicant’s responses, Ms Treglown was not satisfied that the responses provided any justification for the applicant’s persistent non-compliance with the requests and directions which Ms Treglown considered to have been reasonable and appropriate in all the circumstances. Ms Treglown determined that the appropriate disciplinary action to take in relation to the applicant was dismissal. In so concluding, Ms Treglown considered: (a) the directions issued to Ms Teuma, along with the surrounding circumstances and supporting documents; (b) the matters raised by the applicant in response to the two show cause letters, none of which adequately explained or justified, to Ms Treglown’s mind, the applicant’s refusal to participate in a medical assessment or provide documents for SafeWork NSW; and (c) the position the applicant held as a WHS Specialist and what Ms Treglown reasonably expected would be her cooperation with the directions to participate in a medical assessment and to provide documents stored on her work-issued laptop so that the respondent could comply with the SafeWork NSW notice.
On 22 November 2021, the respondent advised the applicant that the decision had been made to terminate her employment effective 23 November 2021, on the grounds of failing to comply with lawful and reasonable management directions. The dismissal was effected with two weeks’ pay in lieu of notice. The dismissal letter referred to two annexures, which outlined matters in greater detail. Annexure A outlined the reasons for the dismissal. Annexure B set out certain background information upon which the decision to dismiss had proceeded.
As to the reasons for the dismissal, Annexure A relevantly read:
“1. You failed to follow multiple reasonable directions provided to you in writing by email on 30 June, 5 July and 7 July 2021 which requested your consent to obtain further medical information which was for the purpose of understanding your capacity to perform the inherent requirements of your substantive position to support your return to work at TAFE NSW.
2. You failed to follow multiple reasonable directions provided to you in writing by email on 15 July, 23 July, 28 July and 5 August 2021 to attend and participate in an independent medical capacity assessment (IMCA) with external company, Immex, at 2.00pm on 10 August 2021 which was for the purpose of understanding your capacity to perform the inherent requirements of your substantive position to support your return to work at TAFE NSW.
3. Your failure to attend the IMCA with Immex that was scheduled to occur at 2.00pm on 10 August 2021 resulted in the forfeiture by TAFE NSW of $715 to pay for the cost of the IMCA.
4. You failed to follow a reasonable direction provided to you in writing by email on 21 September 2021 to attend an IMCA with external company, Immex, at 3.00pm on 28 September 2021. This IMCA was arranged for you because:
(a) you failed to attend the initial IMCA on 10 August 2021; and
(b) on 6 September 2021 you advised in an email to TAFE NSW that you changed your mind and would attend and participate in an IMCA. The purpose of requiring you to attend the IMCA was to understand your capacity to perform the inherent requirements of your substantive position to support your return to work at TAFE NSW.
5. Your failure to attend the IMCA with Immex that was scheduled to occur at 3.00pm on 28 September 2021 resulted in the forfeiture by TAFE NSW of $715 to pay for the cost of the IMCA.
6. You failed to follow multiple reasonable directions provided to you in writing by email on 20 and 25 August and 10 September 2021 which requested you to provide documents that we understand are stored on your TAFE NSW issued laptop. The purpose for TAFE NSW requesting the documents was for the Legal team at TAFE NSW to respond to a SafeWork NSW investigation. TAFE NSW also understands that SafeWork NSW has attempted to contact you directly to obtain the required documents and that you have failed to provide the said documents to them as well.
7. You failed to follow a reasonable direction provided to you in writing by email on 7 October 2021 which gave you a final opportunity by close of business on 18 October 2021 to provide the documents that SafeWork NSW requested and that we understand are stored on your TAFE NSW issued laptop. This is despite the fact that TAFE NSW repeatedly explained to you the seriousness of the matter because the said documents were requested by SafeWork NSW, and that if you continued to fail to provide the required documents SafeWork NSW may issue you, in your individual capacity and not as an employee of TAFE NSW, with a summons/notice to produce documents under Section 155 of the Work Health and Safety Act 2011 (NSW), which if not complied with attracts monetary and other penalties. To date, TAFE NSW understands that you have not produced the required documents to SafeWork NSW or TAFE NSW.
8. In your position as a WHS Specialist it is reasonable of TAFE NSW to expect that you understand the importance and seriousness of providing the documents requested by SafeWork NSW as well as the consequences by not doing so in relation to the continuation of your employment with TAFE NSW.”
In Annexure A to the dismissal letter, the respondent advised the applicant that: “Based on the reasons stated above, TAFE NSW considers the employment relationship with you in your position as a WHS Specialist to have irretrievably broken down, which is why the decision has been made to bring your employment to an end …”.
Consideration
I turn now to a consideration of whether the dismissal was harsh, unjust or unreasonable, taking into account the criteria in s.387 of the Act.
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)
The respondent submitted it had dismissed the applicant because she failed to comply with lawful and reasonable directions, which relevantly culminated as follows:
(a) a direction on 5 August 2021 to attend and participate in an independent medical capacity assessment on 10 August 2021 for the purpose of understanding her capacity to perform the inherent requirements of her substantive position; and
(b) a direction on 10 September 2021 to provide documents stored on the applicant’s work-issued laptop for the purpose of the respondent responding to a notice issued by SafeWork NSW in relation to a safety incident that was investigated by the applicant as part of her role.
Despite the applicant’s detailed materials outlining reasons why the directions were not lawful or reasonable and, indeed, were variously characterised by her as involving (among other alleged defects) frank illegality, I am satisfied that the directions issued by the respondent to the applicant were lawful and reasonable directions. That is, I accept the respondent’s submissions that the directions were lawful and reasonable in the circumstances respectively including: (a) the applicant’s extended absence from work due to a medical illness and/or injury; and (b) the necessity for the respondent to meet its obligations in responding to a statute-based notice issued by SafeWork NSW. I accept the respondent’s submissions that the applicant’s reasons for her non-compliance with the directions were entirely inadequate, “particularly given the critical role she held as a WHS Specialist and her professional expertise and knowledge about such processes.” The applicant was not incapable of accessing/sending the documents to the respondent that were required under the SafeWork NSW notice due to any illness or injury; indeed, she was contending that she was fit to return to work, albeit subject to qualifications such as interaction with the employees in relation to whom she had made her complaints. Specifically, I do not accept the applicant’s contentions that she could not provide/forward to the respondent certain documents required by SafeWork NSW which were stored on her work-issued laptop and/or that it was unreasonable or unlawful for her to be asked by the respondent to do so. As the materials amply indicated, the applicant was otherwise capable of sending multiple emails and the like to the respondent during the time she was not working due to the issues about the return-to-work arrangements and what the applicant considered were unsuitable duties.
Following upon the applicant’s failure to comply with various requests about the twin matters, the applicant’s subsequent failure/refusal to comply with the directions concerning two discrete matters constituted, I find, two valid conduct-related reasons for the dismissal.
Among other submissions put by the applicant, the applicant submitted “TAFE NSW discriminated against me by dismissing me because I made a bullying & harassment complaint.” I find no basis to conclude that the applicant was dismissed by the respondent because she made a bullying and harassment complaint. The applicant also alleged that on a ground addressed in anti-discrimination legislation. In deference to the applicant’s concerns about traversing medical-type matters in the decision, and my assurance to her that I would not traverse such matters, I will say only that I find no basis to conclude that the dismissal was brought about on the ground as alleged, or on other grounds that were alleged. Rather, the dismissal was effected for the reasons described by the respondent.
Whether the person was notified of that reason
On 18 August 2021, the respondent notified the applicant in writing that it was considering bringing her employment to end for failing to comply with lawful and reasonable directions. On 21 September 2021, the respondent again notified the applicant in writing that it was also considering her failure to comply with the further directions to her on 20 and 25 August 2022 in the context of the consideration of the termination of her employment. It is clear, as the respondent submitted, that the applicant was notified of the reason for the dismissal.
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
The applicant provided detailed, lengthy responses to the respondent in relation to the correspondence that had been sent to her in connection with the notification letters.
Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
It is unclear whether there were any discussions of the type contemplated in this part of the Act, as opposed to the various written communications between the parties; indeed, it seems there were no such formal discussions before the dismissal. In consequence, there was no evidence of any unreasonable refusal by the respondent to refuse to allow the applicant to have a support person in any discussions relating to her dismissal.
If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
The dismissal of the applicant did not relate to unsatisfactory performance, so consideration of this criterion as it relates to prior warnings does not arise as a relevant consideration.
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 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
The respondent employs approximately 15,000 employees, including a number of dedicated human resources-type management specialists. The procedures adopted by the respondent appeared to be broadly consonant with those that might be expected of an employer of that size, which also has in-house human resources personnel.
Any other matters that the FWC considers relevant.
I have read and considered all the matters set out in the applicant’s materials. While the applicant’s materials addressed a raft of topics in considerable detail, or her characterisation of them, I have not recounted them all; the matters that are relevant to my conclusions are set out in the decision. It is not appropriate to purport to pass upon matters which are not within the jurisdictional remit of the Commission in relation to an application made under s.394 of the Act for an unfair dismissal remedy. Similarly, I do not propose to deal with the applicant’s claims with respect to alleged underpayments.
Conclusion
The applicant has not established a case that her dismissal by the respondent was harsh, unjust or unreasonable. As such, it is unnecessary to consider the question of any remedy.
An order dismissing the application will issue in conjunction with these reasons.
The proceedings are concluded.
COMMISSIONER
Appearances:
K Teuma on her own behalf.
J Oliveux for the respondent.
Hearing details:
2022.
Sydney (via Microsoft Teams):
May 5.
Printed by authority of the Commonwealth Government Printer
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