Karina Zelesco v Australian Postal Corporation
[2022] FWCFB 235
•12 DECEMBER 2022
| [2022] FWCFB 235 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Karina Zelesco
v
Australian Postal Corporation
(C2022/5695)
| VICE PRESIDENT CATANZARITI | SYDNEY, 12 DECEMBER 2022 |
Appeal against decision [2022] FWC 2001 of Deputy President Millhouse at Melbourne on 28 July 2022 in U2021/11105 – permission to appeal refused.
Background
Ms Zelesco (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Deputy President Millhouse (Deputy President) issued on 28 July 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against Australian Postal Corporation (the Respondent) pursuant to s.394 of the Act. The Deputy President ultimately dismissed the application finding that the Appellant was not unfairly dismissed in accordance with the Act.
Directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material. The Appellant filed written submissions and made further oral submissions at the hearing on 12 October 2022. On 12 September 2022, the Respondent filed submissions seeking permission to be legally represented at the hearing in accordance with s.596 of the Act. On 6 October 2022, the Full Bench refused permission for the Respondents to be legally represented at the hearing.
For the reasons that follow, permission to appeal is refused.
Decision Under Appeal
The Appellant was employed by the Respondent as a Mail Officer at the Dandenong Letter Centre from 28 November 2011. A summary of the events leading to the Appellant’s dismissal are set out below:
· 15 February 2019 – the Appellant was involved in an incident at her workplace where she raised a large wooden stick capped by a metal hook towards her colleagues. The Appellant attended a violence risk assessment which concluded that she was able to participate in the Respondent’s disciplinary investigation but may be suffering from an underlying mental health condition.
· 8 April 2019 – the Respondent’s incident report recommended that the Appellant be dismissed but the Respondent did not act on this recommendation. The Appellant was instead referred for a psychiatric assessment which recommended that she remain on sick leave until she underwent a neuropsychological and cognitive assessment.
· 9 June 2019 – the Appellant was suspended without pay. Between 10 June – 5 July 2019 the Appellant used accrued annual leave and purchased leave entitlements. Between 6 July – 28 August 2021 the Appellant was on paid sick leave.
· 20 August 2019 – Appellant was assessed by a neuropsychologist who determined that the Appellant was capable of returning to her role subject to the one restriction, that is she is only able to focus on doing one job at a time. Following consideration of the report, the Respondent determined that it could not accommodate this requirement.
· 5 September 2019 – until her dismissal the Appellant was on unpaid sick leave.
· 13 March 2020 – the Respondent had a meeting with the Appellant which advised that they would not be accommodating the restriction advised in the report, but that consideration would be given to moving the Appellant to another role.
· 1 July 2020 – the Respondent informed the Appellant that that under the Australia Post Enterprise Agreement 2017 (Agreement) a person who is continuously absent for more than 78 weeks can be medically retired on incapacity grounds. The Appellant indicated that she had increased symptoms of depression and anxiety.
· 19 March 2021 – the Respondent advised the Appellant that it was their intention to medically retire her. The Appellant responded by indicating that no attempt had been made by the Respondent to medically assess her for over a year. The Appellant was therefore invited to provide any new medical information.
· 28 April 2021 – the Appellant’s general practitioner issued a medical certificate stating that the Appellant had recovered and was fit for normal work. The Respondent suspended the medical retirement process based on this advice and referred the Appellant to the neuropsychologist for further assessment.
· 15 June 2021 – the neuropsychologist report advised that while the Appellant did not have any particular learning disability, her cognitive functions were in the low to average and borderline range and that she was fit to return to work with no restrictions. However, it was advised that the Appellant’s personality or psychological issues be further assessed.
· 3 August 2021 – the Appellant underwent a psychiatry assessment and the report indicated that the Appellant was fit to return to work gradually and advised against medical retirement.
· 12 August 2021 – the Respondent advised the Appellant that they would not be proceeding with her medical retirement based on the medical reports and that they would instead commence the process of gradually returning her to work.
· Around this time, the Appellant began sending text messages and emails to various employees of the Respondent. For example, one employee was contacted 20 times in one weekend.
· 23 August 2021 – the Respondent held a conference with the neuropsychologist and psychiatrist which provided an updated recommendation that the Appellant was not fit for work, she was unlikely to ever be fit for work and that the Respondent should medically retire her.
· 29 August 2021 – the Appellant emailed an employee informing them that she had brought a knife to work in 2019.
· 31 August 2021 – the psychiatrist provided a supplementary report which confirmed her modified diagnosis that the Appellant was unfit for work, that her mental illness was permanent in nature and that the process of medical retirement should proceed.
· 1 September 2021 – the Respondent notified the Appellant via letter that she would be medically retired on 15 September 2021.
· 11 September 2021 – the Appellant lodged an internal appeal of the decision. The internal appeal found that the decision to medically retire the Appellant was not harsh, unjust or unreasonable.
The Deputy President then provided a summary of the relevant medical evidence and the emails sent by the Appellant to employees of the Respondent at around August 2021. The Deputy President accepted the psychiatrist’s evidence that the emails were ‘disordered’ and provided the following summary of their content in relation to the Appellant’s return to work:
· the Appellant said she “didn’t want to go back to [Dandenong Letters Centre];”
· the Appellant said “my life has been so much better since leaving [Dandenong Letters Centre] I’m not sure if I can ever come back to tell you the truth;” and
· the Appellant said “these part-time hours are way too long for me. It is way too much for me and really overwhelming.”
The Deputy President summarised that Appellant’s submissions as follows:
1.The Appellant was not afforded an opportunity to provide a response to the 15 February 2019 incident that led to her suspension.
2.The Appellant was not afforded an opportunity to provide a response to the disciplinary inquiry report.
3.The Appellant was not afforded an opportunity to respond or provide an explanation for sending the texts and emails in August 2021, which made the Supplementary Report unfair.
The Deputy President then moved to consider whether the dismissal was harsh, unjust or unreasonable in accordance with s.387 of the Act. First, the Deputy President considered whether there was a valid reason for the Appellant’s dismissal (s.387(a)). Taking into account the expert medical evidence from the time of the Appellant’s dismissal, the Deputy President was satisfied that the Appellant was unable to perform the inherent requirements of her role and would be unable to do so in the foreseeable future. Further, the Deputy President found that the medical evidence did not identify any reasonable modification to the Appellant’s role that could facilitate the Appellant’s return to that position. The Deputy President also addressed and rejected the Appellant’s submissions on valid reason. Therefore, the Deputy President was satisfied that the Respondent had a valid reason for the Appellant’s dismissal.
The Deputy President then considered s.387(b) and found that the Appellant was notified of the reason for dismissal in the Respondent’s letter to her on 1 September 2021.
Turning to s.387(c), the Decision notes that the Appellant contended that she was not given an opportunity to respond to the dismissal as she was not provided with the supplementary psychiatry report. The Respondent submitted and the Deputy President accepted that such report was provided to the Appellant’s general practitioner for further discussion with the Appellant, in line with the recommendations of the medical assessors. Further findings of the Deputy President on this issue are set out below:
“[101] However, there is insufficient material before the Commission to conclude that Australia Post provided Dr Wu [general practitioner] with a copy of Dr Redmond’s [psychiatrist] Supplementary Report prior to issuing the Medical Retirement Letter, noting that the Supplementary Report was issued on 31August 2021 and the Medical Retirement Letter was provided to the applicant the following day. Accordingly, there is no evidence of the applicant being given an opportunity to respond to the Supplementary Report before a decision was taken to medically retire her.
[102] It is relevant to note that the Medical Retirement Letter provided the applicant with a period of two weeks before the medical retirement would “proceed” on 15 September 2021. The applicant did not respond to that letter by, for example, requesting further time or providing alternative medical evidence as she had done previously…
[105] For the purposes of s 387(c), I therefore find that the applicant was not given an opportunity to respond to any reason related to her capacity before a decision was taken to medically retire her on 1 September 2021. Rather, as I have noted, the applicant was provided with a two-week period before the decision took effect on 15 September 2021 to provide any responsive views or medical evidence, as she had done previously. The applicant did not avail herself of this opportunity on this occasion. As described in my consideration pertaining to s.387(h) of the Act, the applicant lodged an internal review of the decision on 11 September 2021.”
Additionally, the Deputy President was satisfied that ss.387(d), (e), (f) and (g) were not relevant and did not arise for consideration.
Section 387(h) allows the Commission to consider any other relevant matters and accordingly the Deputy President had consideration to the Appellant’s contentions namely that she:
· did have an opportunity to respond to the 15 February 2019 incident;
· was denied an opportunity to respond to the disciplinary inquiry report;
· did have an opportunity to respond to the supplementary report which advised the Appellant’s amended diagnosis and knife incident; and
· that the knife incident was not irrelevant.
In conclusion the Deputy President found:
“[146] The fact that Australia Post did not provide the applicant with an opportunity to respond to any reason related to her capacity before a decision was taken to medically retire her does not automatically render the dismissal harsh, unjust or unreasonable. As noted by the Full Bench in Etienne v FMG Personnel Services…
[147]At no stage has the applicant produced any medical evidence to rebut the Supplementary Report. Accordingly, even if Australia Post had given the applicant an opportunity to respond prior to issuing the Medical Retirement Letter, I do not consider that the applicant would have produced any responsive medical evidence to displace Dr Redmond’s diagnosis and prognosis. A “bare denial” by the applicant is insufficient to displace a diagnosis by a psychiatrist.”
Therefore, the Deputy President was satisfied that the Appellant’s dismissal was not unfair within the meaning of s.385 of the Act and she dismissed the application.
Appeal Grounds and Submissions
The Appellant has provided significant material to the Commission in her F7 – Notice of Appeal, outline of submissions and further material provided on the morning of the hearing. In particular, the F7 – Notice of Appeal goes through each paragraph of the Decision indicating whether the Appellant agrees or disagrees with its contents and whether she has found an error. We have therefore summarised the Appellant’s appeal grounds and submissions as follows:
The Appellant alleges a significant error of fact in the Decision regarding the email about a knife being brought by her to her workplace. The Appellant’s submissions express concern with the fact that the psychiatrist considered this email and that it informed their supplementary report, especially without having consulted with the Appellant before reaching an amended diagnosis. Further, the Appellant alleges errors in the interpretation of the knife email, namely that the knife was brought to the workplace for the purpose of eating fruit and not because she was angry. The Appellant submits, that at the time, she was unsure why she brought the knife to work but she has since remembered the context. The Appellant submits that if the psychiatrist was aware of this context it would have changed the outcome of the report, particularly the recommendation to medically retire her.
The second significant error of fact pertains to the errors in the disciplinary report issued by the Respondent which led to the Appellant being suspended and eventually medically retired. The Appellant alleges several errors in the report, particularly regarding dates on which certain events occurred. Further, the Appellant’s concerns with the report extend to the fact that she was not given an opportunity to respond to the 15 February 2019 incident or disciplinary report itself and that she was unable to provide medical evidence. The Appellant also alleges error at [118]-[120] of the Decision in relation to what was discussed during the violence risk assessment.
Additionally, the Appellant contends that the Deputy President’s assessment of whether the dismissal was harsh was incorrect as there was a mistake as to the valid reason for her dismissal, she was not notified of the reason for dismissal and because the knife email was not discussed with the Appellant until the matter came before the Commission. The Appellant also submits that her dismissal can be seen as harsh when compared to other similar matters.
As to why the appeal is in the public interest, the Appellant submits:
· the Respondent did not offer her to return to work with reasonable adjustments;
· she was not evaluated before being medically retired;
· the Respondent employs a large number of employees; and
· no consideration was given to accommodate her disability.
In conclusion the Appellant states, “[I] therefore ask permission to appeal the decision in the hope as (sic) there is an error in the original decision that needs to be considered as well as a few other minor inaccuracies.”
Principles on Appeal
An appeal against a decision to dismiss an unfair dismissal remedy application under s.604 of the Act is one to which s.400(1) of the Act applies.[2] Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.[3] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[4] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[5] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[6] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[7]
Consideration
In this case, we are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that a reasonably arguable case has been advanced that the Decision of the Deputy President was attended by appealable error. Notably, the Appellant’s submissions are largely an attempt to reagitate the merits of the case as put to the Deputy President at first instance.
The Appellant’s first main submission alleges error in the way the Respondent dealt with the knife email. We note that the substance of this submission was put to and considered by the Deputy President at first instance. Further, the Deputy President made findings on these submissions at [137] – [139] of the Decision. The Deputy President resolved to approach the Appellant’s submissions on the knife cautiously in light of the other relevant disclosures the Appellant made to the Respondent about it. We are satisfied that the Deputy President’s findings and approach to this issue were open to her on the evidence and do not disclose any appealable error. Accordingly, we dismiss these grounds.
The Appellant’s second main submission alleges error in the disciplinary report and her inability to respond to the 15 February 2019 incident or provide medical evidence. Again, we note that the Deputy President dealt extensively with these submissions at [115] – [133] of the Decision and do not wish to repeat her findings here. We have considered these submissions and are satisfied that the Deputy President’s findings are not attended by error and were open to her on the evidence. We therefore dismiss these grounds of appeal.
The Appellant also alleges that the Deputy President erred in her assessment of whether the Appellant’s dismissal was harsh. We find no error in the Deputy President’s assessment of whether the decision was harsh, unjust or unreasonable. We note the Deputy President gave proper consideration to each of the matters specified in s.387 of the Act and ultimately found at [144] – [150] of the Decision that the Respondent’s non-compliance with s.387(c) in the circumstances of this case does not render the dismissal harsh, unjust or unreasonable. This was because the Deputy President was ultimately not persuaded that the Appellant was deprived of the possibility of a different outcome, in terms of avoiding her dismissal and that the Respondent’s non-compliance did not outweigh the valid reason. We are satisfied that the Deputy President’s conclusion on this issue was open to her on the evidence and that her findings contain no appealable error. We dismiss this ground.
Finally, we note that the Appellant also identified many alleged errors in the Decision, for example pertaining to incorrect dates in the disciplinary report, errors in the transcript and factual discrepancies. We have considered these submissions and find that nothing turns on the alleged errors identified, and that they have had no impact on the Deputy President’s reasoning or findings. As the Appellant herself recognised, these are “minor inaccuracies” which do not amount to significant errors of fact, let alone appealable errors.
Overall, it is clear that the basis on which the Deputy President reached her Decision discloses an orthodox approach to the determination of the Appellant’s application. The Deputy President applied the correct legal principles, considered, and dealt with the evidence that was before her, and made findings of fact based on that evidence. Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required;
· the appeal raises issues of importance and/or general application;
· the Decision at first instance manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act.
Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Ms K Zelesco, on her own behalf.
Ms A Freeman, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
11 October.
[1] [2022] FWC 2001 (‘the Decision’).
[2] Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37].
[3] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).
[4] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[5] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [27].
[6] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[7] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
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