Kylie Jeffrey v IBM Australia Limited - [2014] FWC 8166

[2014] FWC 8166 [Note: Appeals pursuant to s.604 (C2014/7304) were lodged against this decision - refer to Full Bench decisions dated 30January 2015 [[2015] FWCFB 397] and 22June 2015 [[2015] FWCFB 4171]] respectively for result of appeals.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kylie Jeffrey
v
IBM Australia Limited
(U2012/13165)

DEPUTY PRESIDENT MCCARTHY

PERTH, 17 NOVEMBER 2014

Termination of employment.

[1] Ms Kylie Jeffrey (the Applicant) was employed by IBM Australia Limited (IBM) on a full time basis as a Business Analyst from 28 June 2010. Prior to her employment with IBM the Applicant stated that she had been employed from 12 January 2009 as a Business Analyst with Qantas Airways Ltd (Qantas) through the Qantas/IBM Indigenous Information Technology Employment Partnership. The Applicant stated that as a result of an acquisition agreement between Qantas and IBM she became an employee of IBM in November 2009. The Applicant says she was originally employed in Sydney but transferred to Perth in July 2010.

[2] On 10 September 2010 the Applicant commenced a period of sick leave. The Applicant stated that she suffered a stress related injury as a result of exposure to stressors at work. The stressors she referred to were “bullying, harassment, sexual harassment and racial harassment”. The Applicant stated that she took extended sick leave (of 12 months) available to her under her contract of employment.

[3] On 22 September 2011 the Applicant’s paid sick leave entitlements expired and she commenced a three month period of unpaid sick leave. The Applicant states that she was informed by IBM that “unless I [the Applicant] had no immediate capacity to return to work by 22 December, 2011 that IBM would take steps to terminate my [the Applicant’s] employment”. IBM state that the Applicant was informed that “IBM advised Ms Jeffrey [the Applicant] that her ongoing employment would be reviewed at the end of the 3 month period.”

[4] The Applicant elected to take paid annual leave during the three month unpaid sick leave period. IBM informed the Applicant on 11 November 2011 that her annual leave entitlement had been exhausted. Whilst there is a dispute about the extent of the annual and public holiday entitlements of the Applicant and whether it had been exhausted or not it is clear that the Applicant did not return to work in 2011.

[5] The Applicant asserts that she obtained a medical certificate to return to work (apparently in late November 2011 or early December 2011) but was not permitted by IBM to return to work until February 2012. IBM assert that on 6 December 2011 the Applicant was declared fit for a restricted return to work however as the Applicant’s treating doctor (Dr Parsons) was unavailable for details about the return to work he had certified the period of unpaid sick leave was extended until 31 January 2012.

[6] The Applicant says that she was provided with a return to work programme (RTWP). She says she made modifications to the RTWP and also had been negotiating with IBM regarding the conditions of her return to work. The Applicant returned to work on 1 February 2012 IBM asserts that she refused to sign the RTWP. On 20 February 2012 IBM state that they instructed the Applicant to cease work until such time as there was a signed RTWP in place. The discussions and events relating to RTWPs are dealt with below.

[7] On 20 April 2012, IBM assert that a signed RTWP was received which was unaltered. On that day (20 April 2012) the Applicant was instructed to return to work and her Salary Continuance Insurance Claim was also approved.

[8] On 24 July 2012, the Applicant was certified as psychologically unfit for work by her treating clinical psychologist Ms Vandamme. The Applicant’s General Practitioner at that time was on leave. On 3 August 2012, IBM assert that the Applicant informed them that she would be attending full time treatment for 2 weeks from 20 August 2012. On 7 August 2012, a certificate was issued to the Applicant by her General Practitioner stating that she was fit for work but restricted to work for four hours per day and then on 14 August 2012 the Applicant’s General Practitioner provided her with a certificate that she was fit for work but restricted to three hours per day.

[9] The Applicant’s General Practitioner is asserted to have stated on 17 August 2012 to IBM’s Occupational Physician, Dr Simone Ryan that the Applicant was not fit for work and had not been fit for some time, notwithstanding the terms of the certificates issued in August 2012. Dr Ryan spoke to the Applicant on 20 August 2012 and advised her that she was declaring the Applicant unfit for work. On 23 August 2012 Dr Ryan asserts that in a discussion with Dr Hall the Applicant was unfit for work and IBM was informed of that discussion.

[10] On 29 August 2012, the Applicant says that she received a text message and an email advising her of her termination of employment on the grounds that she could not fulfil the inherent requirements of her role.

The Proceedings

[11] An application for unfair dismissal concerns an ascertaining of whether the dismissal was harsh, unjust or unreasonable. The role of the Fair Work Commission (the FWC) is directed by the Fair Work Act 2009 (the FW Act). The obligations of the FWC in determining whether a dismissal was harsh, unjust or unreasonable are prescribed by the FW Act. 1

[12] This hearing and determination of the application was not without its difficulties. It was obvious throughout the proceedings, indeed from the very first day of attempted hearings, that the Applicant was critical of Dr Ryan. I therefore made many rulings and directions in an endeavour to keep the proceedings on course for matters that were relevant to my considerations.

[13] I have endeavoured to avoid making any findings that could appear to be a finding or comment on any other matters the Applicant was pursuing or may pursue. I refer to her claim for workers compensation and any common law actions or claims in respect of income continuance insurance she may have on foot or intend pursuing as well as a number of complaints regarding various treatment providers.

The Evidence

Medical Reports and Issues

Absence until January 2012

[14] The Applicant commenced a period of absence from work on 10 September 2010. The reasons for the Applicant’s extended absence from mid September 2010 were not contentious.

[15] The Applicant evidenced that she had attended multiple consultation visits with her treating psychiatrist Dr Raymond Wu and her treating clinical psychologist Ms Vandamme. The Applicant produced account statements that showed she had 18 consultations with Ms Vandamme until January 2012. She also produced statements showing she had two consultations with Dr Wu in that period, one on 7 October 2010 and the second on 19 December 2011.

[16] A Confidential Medical Report Certificate was issued by Ms Vandamme on 16 May 2011 (the Vandamme Report). Ms Vandamme is a clinical psychologist to whom the Applicant had been referred and was treating the Applicant and stated that she had been seeing the Applicant on and off since about November 2010.

[17] The Report was sent by Ms Vandamme to Mr Kevin O’Brien at IBM’s Medical Department on 17 May 2011. On the cover sheet Ms Vandamme referred to a telephone conversation with Mr O’Brien the previous week and confirmed her recommendation for an external Perth based rehabilitation consultant provider to be appointed. Ms Vandamme evidenced that the 16 May 2011 report was the only report that she had provided to IBM and the only direct liaison was with Mr O’Brien at that time.

[18] It seems, but is by no means clear, that the Applicant had raised the prospect of returning to work and that there had been some communication between Ms Vandamme and someone handling the Applicant’s case at IBM, most likely Mr O’Brien. A report was possibly sent by Mr O’Brien to Ms Vandamme which resulted in the medical report then being issued by Ms Vandamme on 16 May 2011 and supplied to IBM. The Applicant’s evidence surrounding this sequence was that:

“a return to work plan from Kevin O’Brien by recollection. But I provided that to Fiona Vandamme and she said that it wasn’t sufficient because it just outlined gradual return to work, reduced hours and it didn’t reflect her recommendations to change the supervisors or anything like that. I can recall sending an email to my new disability case manager when I did return to work stating that my manager, Mr Steve Davies, no arrangements had been made to provide a new supervisor.”

[19] The Applicant says that work capacity reports were filled out and initially stated that no response was ever received. The Applicant repeatedly claimed that she had had no contact from IBM during the 2010-2011 absence until September 2011 other than in May 2011 involving Ms Vandamme. I accept the Applicant’s account of the extent and nature of communications during that period. However, I also accept the view that IBM put forward that there is a responsibility on the employee to keep in regular contact with their employer during periods of extended absence.

[20] There was little evidence provided about what interactions there had been during the twelve month period following the Applicant’s commencement of what was referred to as extended sick leave. The first medical report produced was the Vandamme Report issued by Ms Vandamme on 16 May 2011.

[21] Ms Vandamme’s diagnosis of the Applicant was stated as “Adjustment disorder with mixed mood (depression and anxiety)”. She recommended that treatment be “Cognitive behaviour therapy including stress management and problem-solving. Further, more regular physiological treatment likely to be helpful in parallel to a gradual return to work program”. Her prognosis was “Unknown at this stage -depends upon factors such as the development of an appropriate vocational rehabilitation program”.

[22] Ms Vandamme opined that the Applicant was unfit to work in her normal position on a full-time regular basis Ms Vandamme recommended that “Kylie [the Applicant] could commence a graduated return to work within the next 4-6 weeks commencing 2-3 days per week for 4 hours each day. Restrictions - Not to work under previous supervisor/manager. Should return to supportive team environment utilising Kylie’s [the Applicant’s] existing skills.” (my emphasis)

[23] It is unclear what, if any, actions were taken following the issuance of the Vandamme Report by either the Applicant or IBM. The only other report produced that was issued by Ms Vandamme was a short one issued on 24 July 2012 which was a brief medical certificate in the form of a letter which states that the Applicant was “psychologically unfit for work from 24 to 26 July 2012”.

[24] The Applicant stated that she was, or would be, well enough to return to work “once her previous supervisors, Mr Steve Davies, Mr Nick Coghlan and Sandra Johnson relocated.” It was evidenced by Mr John Williams that Mr Davies had moved from Perth due to his assignment being completed. This appears to have occurred in late 2011 or January 2012. Mr Williams was appointed as the Applicant’s direct manager in early 2012. In 2012 issues surrounding the Applicant’s return to and retention at work became more contentious. The medical reports and RTWP associated with the return to work, the continued presence at work and the eventual dismissal from work are influenced by the facts and perceptions surrounding the medical reports, medical treatment and views formed arising from those reports. Observed behaviour and conduct experienced was also important and will be dealt with later.

[25] Ms Vandamme evidenced that her diagnoses and recommendations were based solely on the Applicant’s statements to her. It would seem then that the recommendations that the Applicant not work under previous supervisor/manager were made without any input from IBM of what allegations the Applicant had made against her supervisor/manager nor what investigations had been undertaken or the results of any investigation. The recommendation also appears to have been made without any consideration of the practicality of implementing such a recommendation. It is thus unsurprising that there was no progress in the Applicant’s return to work for a lengthy period, indeed not until Mr Davies no longer worked in Perth. Ms Vandamme also seemed to think that a medical opinion and report undertaken by the Applicant was one requested by IBM when in fact it was IBM’s insurers who had arranged the examination of the Applicant.

[26] Ms Vandamme ceased being the Applicant’s treating clinical psychologist in February 2013 because:

“she [the Applicant] was needing to have her medication really sorted out and that was definitely province of Dr Wu, and I felt that I had provided all the cognitive therapy, therapeutic coping skills that I could have ... and, you know, there comes a point where if the therapy is not being beneficial, really, all I was doing was providing what we would call supportive counselling. ... and I understand now she has a clinical psychologist through the health department who would be free of charge, she - I understand she’s still under a psychiatrist as well as her GP and I felt, therefore, that it was probably a good time for me to terminate my services ...”

[27] The report and certificate issued by Ms Vandamme are also important as it seems her recommendations formed part of the sequence of Workcover Medical Certificates (WMC’s) issued by Dr Amanda Hall. Those certificates were of significance in the various RTWPs.

[28] The first Workers Compensation document that was produced in the proceedings is a letter of 18 August 2011 from IBM’s insurers, Allianz Insurance Australia Ltd (Allianz), to the Applicant.Workers Compensation documentation produced also included a copy of a Workers Compensation Progress Certificate (a WC Certificate) received by IBM on or about 29 November 2011. That WC Certificate was provided by Dr Parsons, the Applicant’s General Practitioner at that time. It was unsigned and undated. Under the heading “Progress Report (clinical findings/diagnosis at this consultation and possible barriers to return to work)” it stated “This worker has not heard from you as to rehabilitation provisions”. It stated in handwriting to the side of the document under the heading “Fitness for Work”that “unable to work 1/12 from 21.11.11”. It also had boxes ticked under the heading “Return to Work Options” indicating that “Doctor and employer to coordinate return to work” and that “Vocational rehabilitation not required”.

[29] Due to the incompleteness of the WC Certificate Mr Benson faxed a copy of the incomplete form to Dr Parsons. A WC Certificate signed by Dr Parsons and dated 6 December 2011 was received by IBM on that date. The WC Certificate stated under the heading “Progress Report (clinical findings/diagnosis at this consultation and possible barriers to return to work)” “Work stress”. It also stated under the heading “Fitness for Work” that the Applicant was “Fit for restricted return to work from: 2 December 2011”. There were no hours or duty restrictions specified however work restrictions were specified as “Able to undertake duties agreed between doctor & employer”.

[30] On 7 December 2011, the Applicant wrote to IBM and alerted them to the recommendations of Ms Vandamme that she not work under her previous manager. She also advised IBM that Dr Parsons was on leave from 7 December 2011 until early January 2012. The Applicant also acknowledged that her unpaid sick leave had been extended until the end of January 2012 due to her treating Workers Compensation Doctor being overseas.

[31] IBM had also sent a form to Dr Parsons on 23 November 2011 requesting information on the Applicant’s work capacity. A completed form was returned to IBM on 9 January 2012. The content of that form was as follows:

“Can the employee perform the normal duties of the position described above? (IT Specialist) Pt [Patient] claims that she has the job description as a Business Analyst.

If unable to perform the normal duties of the position, could IBM accommodate the employee to perform these duties? If yes specify below: Yes she can perform duties as a Business Analyst.

...

If the employee returns to work is there a risk of exacerbating their injuries due to work? If yes what is the level of risk: Wants new manager and own office? Possibility to work from home or on client’s site.

Can the employee perform the normal duties of the position above? If yes please specify when. If possible provide timeframes. Yes”

[32] The Applicant persistently portrayed the WC Certificates issued by Dr Parsons as though they established that she was fit for work. On the face of the WC Certificates themselves it is not the case that the Applicant was totally fit for work without restriction. The 6 December 2011 WC Certificate indicated that the Applicant was fit for “a restricted return to work” from 2 December 2011. That return did not occur presumably because the duties could not be agreed between IBM and Dr Parsons as he was away until early January 2012. In any event the Applicant and IBM effectively agreed to defer any return to work until the end of January 2012. Secondly the Applicant appeared to be placing conditions on her return such as wanting her own office and to be working under a new manager.

[33] There are two aspects of the certificates issued by Dr Parsons that are of importance for what later transpired. Firstly, that both of the WC Certificates were conditional on the Applicant undertaking duties “agreed between doctor and employer”. It is implicit from the WC form itself that the employer has a role and a right to place conditions and attach requirements on any return to work, which the employee’s doctor might agree with or might disagree with or might place further conditions or restrictions as a result of employer’s conditions.

From February 2012 until Mid July 2012

[34] A RTWP was first sent to the Applicant by an IBM Rehabilitation Co-ordinator, Mr O’Brien, on 30 November 2010 with an intended cover period of 10 January 2011. The Applicant’s manager on the form was stated as being Mr Davies and the HR partner as Ms Jane Hughes. The role was identified as “Business Analyst”.

[35] The Applicant appears to have received notification on a letter dated as 12/08/11 that Mr O’Brien was leaving IBM and that her replacement case manager was Mr Luke Armstrong. 2 On 30 January 2012 Mr Armstrong sent a RTWP to the Applicant. The letter sent with the RTWP noted that it supported the advice received from Dr Parsons on 9 January 2012. It referred to a discussion between Mr Armstrong and the Applicant and requested that the Applicant sign and return the RTWP before return to work on 1 February 2012.

[36] The RTWP had a number of elements to it including: (i) a 2-3 week gradual transition; (ii) low key duties initially leading up to full time Business Analyst role; and (iii) reporting to a different manager (Mr John Williams). The RTWP also stated that the Applicant could not be allocated an office due to the open-office design. The HR partner was named as Ms Sue Sinclair. The role was stated as Business Analyst. It also identified that Workers Compensation had been applied for but a decision was pending. The RTWP was to cover the period 1 to 16 February 2012. It identified the relevant doctor to sign the form as Dr Parsons.

[37] It seems that the Applicant had started being treated by Dr Hall as her General Practitioner sometime in January 2012. Whilst there is no direct evidence of this change an email from Mr Benson on 30 March 2012 refers to a conversation between Mr Armstrong and Dr Hall (with the Applicant present with Dr Hall) on 26 January 2012 regarding the RTWP. An email from the Applicant to Mr Armstrong confirmed that on 26 January 2012 Dr Hall contacted Mr Armstrong whilst she was present.

[38] On 6 February 2012 the Applicant emailed Mr Armstrong indicating that she had returned to work on 1 February 2012 and had been made to feel very welcome by Mr Williams. The Applicant expressed some concerns about the RTWP including that consideration of the medical recommendations, a lack of definition of the Applicant’s duties and a lack of definition for a rehabilitation/retraining arrangements. The Applicant sought amendment to the RTWP to “clearly state” the recommendations of Dr Parsons and Ms Vandamme. She then listed those matters as follows:

“— Provision of a Business Analyst (BA) Job Description;

Assignment of duty that meets the job description of a Business Analyst (‘Suitable duties’ and timeframes for each stage of suitable duties program to be clearly defined)

Honour the Qantas/IBM Indigenous Partnership Program or access to relevant training (IBM e-learning materials resources (such as BA Mentor), and other assistance required to carry out the role of Business Analyst (i.e. participating in the Qantas/IBM Indigenous Partnership Program, IBM University Graduate Program, IBM Global Business Summer School, Professional Accreditation).

Not to work with previous Managers/Supervisors. Recommend assignment to a new Manager/Supervision (as she claims she was subjected to bullying, racial and sexual harassment).

Provision of own office or work station, preferable enclosed (as she claims she was subjected to bullying, racial and sexual harassment).

Recommend Kylie could work from home and complete suitable training courses (ie IBM Professional Accreditation online from Career Smart Framework, IBM Global Business Summer School annual basis, IBM Graduation Program in replacement of Qantas/IBM Indigenous Partnership Program, or access to relevant 3rd party training/rehabilitation services) until these recommendations are put in place and that IBM is flexible to all Ms Jeffrey to work from home as an ongoing option beneficial to assist reduce stress and anxiety levels.”

[39] The Applicant stated in her letter that:

“I would appreciate the recommendations to be formalised and an opportunity to review the Return to Work Plan with my treating doctors (Dr Ralph Parson’s, General Practitioner & referred Specialist Fiona Vandamme, Clinical Psychologist) for sign off.

[40] The Applicant stated that her next appointment with Dr Parsons as “tomorrow Tuesday, 6th February 2012 at 12 pm” and that she “can arrange the signature and the returned agreement of the return to work plan ...”. The date and time of the email is 10:52am on 6 February 2012, but I am not confident that was the actual day and time it was sent.

[41] Mr Benson responded to the Applicant’s email of 6 February 2012 on 10 February 2012. In that response Mr Benson replied to each of the six dot points in the Applicant’s email. He then stated that:

“Kylie one of the conditions that must be met is for you to sign the return to work plan. If you choose not to sign, unfortunately we will require you cease your return to work plan and you will be placed on unpaid leave until the signed return to work plan is received.”

[42] No mention was made or response given to the Applicant’s request that she be given the opportunity to discuss the RTWP with her Doctor. The RTWP was signed by Dr Parsons on 2 February 2012 and also signed by Mr John Williams and Mr Luke Armstrong. It was not signed by the Applicant.

[43] It appears that the Applicant continued to work in the Perth office without signing the RTWP after the interchange on 6 and 10 February 2012.

[44] On 20 February 2012, Mr Benson sought to discuss the refusal by the Applicant to sign the RTWP but she refused to discuss it with him. He then emailed the Applicant (at 3:33 pm) and in the following terms:

“As per my phone call today at 16:50 Sydney time, Unfortunately as you have not signed IBM’s return to work, we do not have your arrangement to return to work. This means IBM does not have the authority to carry out the return to work plan. You are therefore directed to cease work immediately and you will not be able to return to work until IBM has received a copy of the signed return to work plan. You will be placed on unpaid sick leave as you have already exhausted your 12 months paid sick leave entitlements. I have asked Sue Sinclair the Perth HR Partner to assist you with leaving the premises. Once we have received your return to work plan I will arrange for your assigned Disability Manager Luke Armstrong to make arrangements to get you back to work.”

[45] The Applicant replied to Mr Benson by email that evening. In that email she referred to a meeting with Mr Williams she stated was held on 17 February 2012 where a number of things were canvassed which she itemised as:

“— IBM’s Sign off Requirements for the Return to Work Plan

Qantas/IBM Indigenous IT Partnership and the current issues of identifying suitable duties considering my education, skills and experience

Hours of Duty

Delays in processing Workers Compensation Claim (...) and Salary Continuance

Parking”

[46] The Applicant stated that she felt that she had been put under duress to agree with the RTWP and suggested two options of (i) a conference call with Ms Vandamme and (ii) a referral to a rehabilitation provider. She also stated that she felt uncomfortable signing off on the RWTP without her clinical psychologists recommendations being included in the plan.

[47] The Applicant identified that the plan was not specific enough regarding what suitable duties were or retraining requirements and treatment provisions. She also made a suggestion that if IBM did not agree to those proposals that what she considered to be a slight amendment could be made by making a reference to an email of the IBM and medically agreed recommendations or reference to the job description of a business analyst.

[48] The emails then contained some five pages of an account of a discussion she says she had with Mr Williams about the RTWP which appear to be greater details of those points identified above.

[49] The Applicant ceased attending for work on 20 February 2012.

[50] In my view the action by IBM to direct the Applicant not to attend for work at that juncture was unwarranted. Firstly, and as I found above, a fundamental condition to the Applicant returning to work was that her duties be agreed between the doctor and IBM. It was entirely reasonable for the Applicant to not sign the RTWP until she had input from those who were treating her and to insist on a condition of her return to work that her duties be agreed with her doctor. It was also reasonable to request a referral to a rehabilitation provider.

[51] Furthermore the Applicant had changed treating doctors as is evident from the expected signatories from the RTWPs. The next series of communications appears to have been early March 2012 between Mr Benson and Dr Hall. On one of the documents there is a notation by the Applicant that she returned signed copies of the RTWP on 29 February 2012 and on 2 March 2012.

[52] Version 4 of an eventual 10 versions of the RTWP was signed by Dr Hall and sent to IBM on 2 March 2012. However there were number of handwritten changes to the original version. Those changes included the following:

• Under the heading “Workers Compensation”: “since 18th August 20?”
• Next to the words “As per WorkCover ‘Progress’ Medical Certificates dated” 1/03/2012 - Dr Amanda Hall”: the date was crossed out and the words “Dr R. Parson” inserted.
• Next to the words “Fit for Pre-injury duties as Business Analyst 23/03 to 08/03/2012”: the date was crossed out and“since 2/12/201” inserted.
• Under the heading “Rehabilitation Goal”: the words“; and as per IBM Business Analyst Job description attached” inserted at the end of the paragraph.
• Under the heading “Limitations/Restrictions”: at the conclusion of the second bullet point the words “, as per job description that are meaningful and productive.” The fifth bullet point was amended to read: “once a week ~~Regular~~ monitoring of RTW progress then as required - will be monitored by Disability Case Manager Luke Armstrong, in consultation with Ms Jeffrey and Line Manager, John Williams and Perth HR Partner Sue Sinclair and Ms Jeffrey’s treating doctor. (Note: to avoid confusion, one assigned IBM representative (i.e. Medical Case Manager Luke Armstrong) only is to provide monitoring on a weekly basis.”
• Under the heading “Suitable Duties” at the conclusion of the paragraph the words “, consistent with the ‘Qantas/IBM Indigenous Employment project partnership aimed at providing employment initiatives, training and retention of Australian indigenous staff in the I.T industry (refer to Qantas/IBM Indigenous IT Project deliverables attached) included.
• Under the heading “Comments” the first bullet point was amended to read as follows: “Working from IBM Office. Agreed start time > no later than 10am (~~subject to review in 4 weeks)~~. If arriving later due to illness or any other factors, or unable to report for work, manager must be advised prior to 10am. Shall work a nominal 37.5 hours per week on average within the standard hours 7am to 7pm Monday to Friday as per IBM Normal Business Hrs policy attached.
• Under the heading “Comments” the third bullet point was amended to read as follows: “Appropriate time off to attend medical/specialist appointments where possible. medical appointment times to be provided 1 week in advance to manager John Williams to effectively manage business requirements. Employee agrees to advise manager of intent to attend medical appointments if within business hrs as per described in IBM work related injury Management & Return to Work Procedure (Refer to doc ANZ-PRC 0898, Rev 5)
• Under the heading “Comments” the second and third points of bullet point five was amended to read as follows: “To date, there has been no decision by the Insurer in relation to the Workers Compensation claim lodged ~~on 18th~~ in August 2011; and pending since 18th August 2012; and” “Further consideration of an external rehabilitation provider ~~may~~ will occur once workers compensation claim has been determined by Insurer, if disagreements continue as the employee retains the right to nominate an accredit provider.” (emphasis and editing in original)

[53] Mr Benson emailed Dr Hall on 8 March 2012 and advised her that the plan had multiple amendments which were not acceptable to IBM. He indicated he would inform the Applicant and requested that Dr Hall return the RTWP signed and unchanged. IBM received a signed form from Dr Hall signed by her on 9 March 2012.

[54] Further RTWPs were signed by Dr Hall and the Applicant on 15 March 2012 and 5 April 2012. Both have added written conditions that are initialled. The Applicant asserts that she was not notified that the amendments were unacceptable until 13 March 2012. Even if this was the case it does not explain why extra conditions were continued to be inserted on the forms notwithstanding that her treating Doctor had signed the forms.

[55] The suggestion by the Applicant that she had signed the RTWP prior to 19 April 2012 is a misrepresentation of what she actually did. She signed a RTWP but with alterations she had already been informed were not acceptable to IBM.

[56] On 30 March 2012, Mr Benson emailed the Applicant attaching a RTWP and requested that it be signed and returned with no amendments. The email also outlined the reasons the Qantas/IBM IT program was not, nor would be, included because the program was by that time inactive. He stated that a mentor would be assigned to the Applicant and also identified career and development opportunities and programs.

[57] On 1 April 2012 the Applicant emailed Mr Orth, the HR Director for IBM Australia and New Zealand (the Orth email). The Applicant expressed concern about the management of her RTWP, communication sent to her General Practitioner and issues surrounding the Qantas/IBM IT Employment Partnership.

[58] Mr Benson responded to the Applicant in relation to the Orth email on 3 April 2012. In that response he indicated that the Applicant’s Doctor had declared her fit for work on 23 February 2012 and that since that time IBM had been attempting to negotiate a RTWP. He stated that seven variations had been prepared for consideration by the Applicant and her treating Doctor. He also stated that Dr Hall had first advised the acceptability of the plan on 2 March 2012 but that since that time the Applicant had continued to request amendments. Mr Benson identified the amendments and changes that IBM refused to make in the following table:

*Amendment requested by Kylie Jeffrey*	*IBM Response*
Inclusion OF “SINCE 18/8/2011” IN THE WORKERS COMPENSATION OF RTW	Agreed - RTW updated to reflect your request
Changing “regular” monitoring of RTW to “weekly” monitoring	Agreed - RTW updated to reflect your request
Further to weekly monitoring you requested “To avoid confusion, One IBM representative only to provide weekly monitoring”	Agreed - Weekly monitoring will be carried out by Mr Luke Armstrong
Removal of “Subject to review by management in 4 weeks” in relation to agreed start time > no later than 10am	Not Agreed - the no later than 10am start was put place to address the RTW and is subject to business requirements/deliverables and medical status
Removal of “appropriate” internal resources ie “skilled and experienced Disability Care Managers” who provide rehabilitation services	Not Agreed - IBM has the appropriate internal resources that are skilled and experienced Disability Managers who can provide rehabilitation services in consultation with your doctor.
Inclusion of “where possible” medical appointment times to be provided 1 week in advance to manager John Williams	Agreed - RTW updated to reflect your request
Inclusion of “of required by employee” in regards to further consideration of an external rehabilitation provider will occur once workers compensation claim has been determined by Insurer.	Agreed - RTW updated to reflect your request
RTW is subject to Qantas/IBM IT Indigenous Program partnership deliverables	Not agreed - see below.

[59] The reasons for not agreeing with the three matters IBM was not prepared to agree to were explained in detail in the body of the email response to the Orth email.

[60] Mr Benson then directed that the Applicant sign and return the plans unaltered by 4 April 2012 and attend work on 10 April 2012. Mr Benson had also sent a copy of version 7 of the RTWP to Dr Hall. He received a signed return copy from Dr Hall on 3 April 2012 which he forwarded to the Applicant.

[61] IBM did not receive a copy of the RTWP until the evening of 19 April 2012. Attached to the plan was a Workers Compensation Certificate which I will refer to below. The Applicant was thus requested to report for duty on 20 April 2012. On 20 April 2012 at 2:21pm the Applicant emailed that she was unwell and would not be able to return to work until 23 April 2012. The Applicant referred to an earlier telephone call to Mr Armstrong presumably in response to several messages left for her.

[62] The approach to the RTWPs by the Applicant I consider to be unreasonable. Once Dr Hall had signed the plan the critical element of the Applicant’s complaint to that point that her treating doctor had not agreed to the duties she was to perform was satisfied. It appears to me that what the Applicant was trying to achieve was to attach conditions to her return to work that had little if anything to do with the purpose of the RTWP. IBM quite reasonably and appropriately refused to accommodate changes which they considered inappropriate and irrelevant to the Applicant’s return to work.

[63] The Applicant returned to work on 23 April 2012. On 30 April 2012 the Applicant had difficulties with her access card. Mr Williams evidenced that he told her not to storm into the office like that again. The Applicant was upset and stated that she was “being treated like a criminal” and that she was considering “a bigger lawsuit”. About 30 minutes later Mr Williams found a note on his desk from the Applicant informing him that she had left for the day and intended visiting her General Practitioner as she was too distressed (to remain at work). She requested that Mr Williams call her when he had organised access to her work area and a supportive work environment as she was finding it too hostile.

[64] Mr Williams spoke to the Applicant that afternoon. He stated that she was rude and aggressive and behaved in a manner not befitting a discussion between an employee and a manager. The Applicant did not attend work on 1 May 2012 and does not appear to have advised that she would not be attending. No further issues arose until July 2012. Mr Williams seems to have gained confidence in the Applicant during this period as in July 2012 he assigned the Applicant to an outside role with Horizon Power. The feedback Mr Williams received of her performance at Horizon Power was positive.

Mander Report

[65] On 27 March 2012, the Applicant was advised by Allianz to attend a medical examination on 24 May 2012 with Dr Tony Mander. The advice referred to the relevant sections of the Workers Compensation and Injury Management Act 1981 (WA) which identified the capacity to require an employee to undergo a medical examination. A form was signed by the Applicant consenting to the medical examination and to it being provided to the referring party which in this case was Allianz.

[66] Dr Mander examined the Applicant on 24 May 2012 and wrote a report on 29 May 2012 (the Mander Report) which was received by Allianz on 8 June 2012. It is unclear when the Applicant’s lawyers received the Mander Report and from whombut they sent a copy of it to the Applicant on 9 July 2012. It seems the Applicant did not have a copy of the report until that time.

[67] Dr Ryan explained in her evidence the report was not one that IBM had any involvement with. Dr Ryan explained that “IBM were not privy to receive a copy of that report and we are privy to receive a summary of the outcome of that report, which we did receive.” IBM did not have a copy of the report and it seems that it was the Applicant’s lawyers acting for her at the time and handling her workers compensation claim who sent IBM a copy of it on 9 July 2012.

[68] The Applicant continually portrayed the Mander Report as a report commissioned by IBM and paid for by IBM. However it is clear from the documentation the Applicant herself tendered that it was Allianz that commissioned the report, and that she consented to her examination by Dr Mander and also consented to the his report being provided to Allianz.

[69] Mr Benson stated that he could not comment on the Mander Report and that he had no understanding of the diagnosis in the Mander Report. Further he evidenced that Allianz handled IBM’s workers compensations claims and explained that IBM’s role was to be involved in any RTWPs. Mr Benson expressly stated that he had not read nor had any regard to “the report prepared for the workers compensation case”.

[70] The documentation trail supports Dr Ryan’s evidence. I accept that IBM had no involvement with the Mander Report. I also accept Mr Benson’s evidence and account of the lack of involvement in or influence of the Mander Report with his role in developing and implementing RTWPs

Mid Jul 2012 to 17 August 2012

[71] The Applicant stated that she “became distressed and overwhelmed with regard to Mander’s report”, at a time when she was under pressure from the work with Horizon Power. She also evidenced that her treating Psychiatrist Dr Wu had increased her medication and recommended that she attend the Perth Clinic for some Cognitive Behaviour Therapy.

[72] On 24 July 2012, Ms Vandamme issued a statement that the Applicant was psychologically unfit for work from 24 to 26 July 2012. On 26 July 2012, Dr Hall issued a WMC stating that the Applicant was unfit for duties on 26 and 27 July 2012. Dr Hall faxed the WMC to Mr Armstrong on that day. Dr Hall also referred the Applicant to Dr Wu with a request that he assess the Applicant.

[73] It should be noted that the standard WMC includes a signed consent from the employee for an exchange of information between the nominated treating Doctor, the employer, the insurer, other treating practitioners, rehabilitation providers, etc for the purposes of managing her injury and workers compensation claim.

[74] Mr Williams stated that he was advised by Mr Armstrong on 26 July 2014 that the Applicant had provided IBM with a medical certificate that she was unfit for work. Mr Armstrong also advised Mr Williams on 27 July 2012 he had been attempting to discuss it with Dr Hall but had been unsuccessful. He indicated that he did not expect that the Applicant would be returning to work the next week and he expected a certificate. A further WMC was issued by Dr Hall on 30 July 2012 stating that the Applicant was unfit for duties from 30 July 2012 until 6 August 2012 and that a treatment plan from Dr Wu was pending.

[75] The Applicant emailed Mr Williams on 30 July 2012 and indicated to him that she would not attend work that day and it was possible she would be admitted to the Perth Clinic.

[76] On 3 August 2012, Mr Armstrong emailed Mr Williams and Mr Benson that he had spoken to the Applicant and that she informed him that she would be attending full time treatment from 20 August 2012. She had also informed him that she would be seeing her Doctor on the Monday (6 August 2012) and she would speak to him on the Tuesday (7 August 2012).

[77] On 6 August 2012 the Applicant sent a WMC to Mr Armstrong indicating that she would not be fit for work on Monday 6 August 2012 but would be fit for work for four hours per day between 7 August 2012 and 13 August 2012. Mr Williams became aware of the WMC on 7 August 2012, as it was a public holiday in NSW where Mr Armstrong worked on the previous day.

[78] It was at this juncture that Mr Williams became concerned about the ability of the Applicant to fulfil the inherent requirements of her role as a Business Analyst. He stated that he did not have suitable duties for the Applicant to perform for four hours per day and he was concerned at the suggestion from her doctor that she perform those duties from home. He stated he could not accommodate those suggestions as the role of Business Analyst was intrinsically customer facing and required close collaboration with other team members.

[79] He evidenced that:

“to perform the role of the business analyst either from home or on a parttime as available type basis for a limited number of hours per day is not actually a practical way in which those functions can be performed, given that there are many interactions with many other parties are actually required to be able to successfully perform that role”.

[80] On 12 August 2012 Mr Williams sent an email to the Applicant which stated as follows:

“I am concerned that the correct approach to the notification of sick leave is not being followed by you. I am writing to remind you of your responsibilities as previously instructed and required.

1. As the employee you are required to notify me your Blue pages manager by telephone call as soon as practicable (and in any event before your usual start time) that you will be absent from work because of personal illness or injury. This is imperative so I can manage client expectations around any absences.

2. You must complete a leave application form on or before the day you return to work. The leave application must include every day or part day that is taken by the employee as sick leave.

3. A medical certificate must be provided to me as soon as practicable. It is your responsibility to send me a copy and not rely on your GP forwarding a copy through to Luke Armstrong. I need this medical certificate to validate the associated sick leave requests.

Also Kylie I am advised by Luke Armstrong that we have not received any copy of your medical certificate for 07/07/2012. Please action and provide to a copy to myself or Luke ASAP.”

[81] On 13 and 14 August 2012 the Applicant responded to the email of Mr Williams. The full content of the 13 August 2012 email was as follows:

“Why are you giving me such a hard time?

I’m having a nervous breakdown and you, Luke and any one from IBM are so arrogant and not helping me at all.

I have been in communication with you, I have been in communication with Luke, I been in communication with Michael to advise of the situation and keep the client informed. All I got from Luke Armstrong was some ridiculous statement that he has “37 years experience” trying to diagnosis me down the telephone.

The medical certificates have been sent to Luke Armstrong stipulating 4 hours work per day. Michael is aware of the situation as the resource manager of the project.

This is not the first time Luke Armstrong has declared non-receipt of Medical Certificate. He is lying. I have the fax from the doctors surgery and I remember vividly the time I was berated by Sue Sinclaire in front of Kim Macri my Mentor accusing me of not providing a medical certificate when in fact it was sent to Luke Armstrong.

This circus I’m experiencing from IBM is making me really sick. I’m on really strong medication and are really unwell. I’m trying to do my best with no help, no assistance.

I’m being admitted to Perth Clinic on Monday and all you care about are these beuracratic [sic] practices at IBM and harassing me further when the medical certificate has been sent to Luke Armstrong. You all have my doctors phone number. You all have each other’s phone number. Perhaps Luke Armstrong should manage my case and actually keep you informed. If you all don’t believe me call the doctor.

On a separate note what are your, or IBM’s obligations to arrange payment of my salary continuance??????? I have no money. I have no means of evening getting work.

I’m tired of everyone giving me a hard time at work. I simply can’t take more. Your my manager. You should know that I have applied for leave. YOU should realise that the system is down and not working. I sent a email with a screen shot as evidence and tried my best to get the issue resolved.

I can’t cope.

You give NO SUPPORT at all. Can I ask that IBM Management start managing and stop BULLYING & HARRASSING me into the psychiatric hospital? You all are just playing games with my health and I hope you are satisfied with yourself John.”

[82] I consider Mr Williams’ description of the responses as “intemperate and illogical” as reasonable and appropriate.

[83] Notably, in the email of 13 August 2012, the Applicant informed Mr Williams that she was “being admitted into Perth Clinic on Monday”. Mr Williams was advised on 17 August 2012 that he had received another WMC which indicated that the Applicant had not been admitted to the Perth Clinic and also that her hours of work were reduced to three hours per day.

[84] However in evidence the Applicant explained that she:

““didn’t ever go to Perth Clinic because it was too expensive and my insurance didn’t cover it” as “Dr Raymond Wu said that it wouldn’t resolve all my problems and he wasn’t aware that I had to personally pay for it and that my insurance wasn’t covering it so he made arrangements to put me on a wait list for the Perth Centre of Interventions, so that’s a government facility rather than a private hospital and it’s taken a very long time on the wait list and I’ve only just started [meaning June 2013] to attend the Perth Clinic of Interventions for intensive CBT.”

Dr Hall Consultation on 23 August 2012

[85] The Applicant had a consultation with Dr Hall on 23 August 2012. The Applicant stated that she did not know that Dr Ryan would be invited to be present by telephone during the discussion. That supposed lack of knowledge was despite the Applicant informing Dr Ryan in her email to her of 22 August 2012 that she had permitted Dr Hall to invite Dr Ryan to the meeting. The Applicant said she did not know that Dr Ryan would be in attendance because Dr Ryan had not responded to her email and informed her that she would be attending. However there was no request by the Applicant for Dr Ryan to respond. In any event the offer in the Applicant’s email was for Dr Hall to call Dr Ryan during the consultation. That is exactly what happened. Indeed in the Applicant’s own evidence Dr Hall sought and gained the Applicant’s permission during that consultation before she called Dr Ryan. I do not accept the Applicant’s contention that she did not expect Dr Ryan to be invited to attend that consultation. I regard it as disingenuous and damaging to the Applicant’s credibility.

[86] The main contentious issue however was to do with the consultation itself and whether Dr Hall had stated that the Applicant was unfit for work. The Applicant asserts that Dr Ryan raised performance issues and allegations about her workers compensation history with other employers which caused the Applicant to direct Dr Hall to terminate the call. Dr Hall disagreed and the Applicant says she then reached forward and endeavoured to disconnect the call. She stated that Dr Hall grabbed her by the upper arm and told her to sit down.

[87] Dr Hall told the Applicant that she had been in discussions with Dr Ryan and Mr Armstrong and that they had questioned her about why she was reducing the hours when the Applicant was due to be admitted into psychiatric treatment. The Applicant says that Dr Hall stated that they (IBM) have a valid point.

[88] The Applicant stated that “I said to her [Dr Hall], “Let go of my arm,” and she said, “Look at you. You don’t even have the ability to concentrate right now, do you?” I said, “I’m not putting up with this,” and I walked out of the office”. The Applicant later affirmed that evidence by agreeing that Dr Hall had said to her “Kylie, you are obviously unfit. Look at you” which the Applicant said she “refuted that, and I told her to let go of my arm, and I left her practice”.

[89] Notwithstanding the Applicant’s own evidence above about what transpired she gave evidence that ”at no stage in August 2012” didDr Halltell the Applicant that she thought the Applicant was unfit for work. The Applicant acknowledged that “... I was angry. I was extremely angry.” But this still does not adequately explain the inconsistency in her evidence. Indeed the Applicant accused Dr Hall and Dr Ryan of “conspiring between each other”.

[90] Dr Ryan stated that Dr Hall had said towards the conclusion of the discussion that “In the interest of Kylie’s reaction as discuss - progressed, her supporting GP requested her right to reserve completing medical certificates and the like for the moment.” However the reason that Dr Hall did not issue another certificate appears to be because of her concerns of the effect that may have on the Applicant rather than because she held an opinion that she was fit for work. The Applicant also stated that prior to her walking out of the office she heard Dr Hall state that she was not going to change her WMC. This is not inconsistent with Dr Ryan’s account.

[91] The evidence establishes from Dr Ryan’s evidence and the statements of the Applicant herself in cross-examination that at the meeting/consultation with Dr Hall on 23 August 2012 Dr Hall expressed an opinion that the Applicant was not fit for work. She appears to have formed that view during the consultation and discussion when Dr Ryan was on the phone and after observing the Applicant’s state and conduct. Dr Hall decided not to change the WCM as she considered it could have a detrimental effect on the Applicant.

The decision to dismiss

[92] Dr Ryan stated that after the Dr Hall consultation she informed Mr Williams, Mr Benson and the IHS Manager that she would be declaring the Applicant unfit for work and would be informing the Applicant of that on the weekend. Dr Ryan stated that she regarded the situation as urgent as Dr Hall had stated that the Applicant had been unfit for work for a very long time. Dr Ryan sent an email to Mr Williams, Mr Benson and others within IBM that Dr Ryan “confirm[ed] that she [the Applicant] is unfit for work due to a serious medical condition that is pending urgent and necessary further treatment.” The email also stated that:

“...

This comment, amongst others, was discussed with Kylie and her GP this evening and I have the GP’s verbal support regarding Kylie being unfit for work - not only (yet obviously) due to this comment but from an overall medical perspective. During that conversation, Kylie continually denied this medical assessment from both her GP and myself.

In the interest of Kylie’s reaction as the discussion progressed, her supportive GP requested her right to reserve completing medical certificates and the like for the moment (again out of a duty of care). With a risk assessment of this situation, I agreed out of a duty of care. The risk was if the GP was to declare Kylie unfit on paper at that particular time, then there was a strong likelihood to actually further exacerbate her current symptoms, with potentially dire consequences.

...”

[93] Mr Benson gave evidence that after receiving the email from Dr Ryan he concluded that:

“Given Dr Ryan’s assessment of Ms Jeffrey’s unfitness for work, which was based on her conversations with Ms Jeffrey’s treating doctor, and her review of Ms Jeffrey’s file, I formed the view that IBM had enough evidence to conclude that Ms Jeffrey was unable to fulfil the inherent requirements of her position, and that she would continue to be unable to fulfil the inherent requirements of her position in the foreseeable future.” [my emphasis]

[94] Dr Ryan also stated that:

“I formed the view that Ms Jeffrey [the Applicant] was unfit for work and was not fit to perform the inherent requirements of her pre-injury position, which was working full time, as a Business Analyst. I regard the inherent requirements as being to work at a client site, with full-time hours and client facing duties and interactions. I expressed this view in the email I sent to Dr Hall. I also expressed this view to Mr Benson and Mr Williams.”

[95] Mr Williams gave evidence that on 19 August 2012 he received an email from Dr Ryan advising that the Applicant was unfit for work and required urgent medical treatment. The relevant parts of that email stated:

“Given that her intensive medical treatment due to start tomorrow has been cancelled (for non-medical reasons), her GP and I both agree that she’s unfit until this is sorted out. It would appear that Kylie has been medically unwell for a lengthy period of time and perhaps her GP’s fitness for work opinion and certification have been influenced by other matters (which I appreciate).

...

At the very least, we will need clear communication from her current treating Specialist (and we have not had this for a long time) and her GP will arrange this tomorrow.

...”

[96] Mr Williams in his statement evidenced in the paragraph immediately following that:

“Following receipt of this medical advice, IBM made a decision to terminate Ms Jeffrey’s employment.” (my emphasis)

[97] On a fair reading of Mr Williams statement it appears that he was actually referring to the later email of Dr Ryan on 23 August 2012 as Dr Ryan made clear in the email of 19 August 2012 that she had not at that stage spoken to the Applicant. I also accept that Mr Williams was not intending to rely on that medical advice in isolation but rather in addition to other medical advice.

[98] Mr Williams continued in his statement that:

“I have reviewed the letter of termination signed by Mr Benson and agree with its contents. I agree with the assessment that Ms Jeffrey was not fit to perform the inherent requirements of a Business Analyst and it is my view that there is little prospect that she will be able to perform such a role in the foreseeable future.

From my perspective, the inherent requirements of a Business Analyst include:

the role is full-time;

the role is customer facing;

the role requires close collaboration with the client and other IBMers; and

reasonable flexibility in terms of having to work additional hours or on weekends.”

(my emphasis)

[99] There are three elements to the views formed by Mr Benson and Mr Williams. Firstly they accept the opinion of Dr Ryan that the Applicant was unfit for duties. There was a reasonable basis to form that view and indeed it did not conflict with the view of Dr Hall. Secondly, that the Applicant could not perform the inherent requirements of the job because of the need for the four elements that Mr Williams identified above to be able to be performed. I find that IBM also had a sound basis to form that view. Thirdly, they both formed the same view that the Applicant “would continue to be unable to fulfil the inherent requirements of her position in the foreseeable future” and “that there is little prospect that she will be able to perform such a role in the foreseeable future.”(my emphasis)

[100] It is clear then that there were three elements to the views formed IBM which they relied upon to make a decision to dismiss the Applicant. It is the third element of those views formed to which I now turn.

[101] Mr Williams gave evidence that he based the decision on his own observations and the doctors certificates provided. He said this view was based on a “pattern of medical certificates received that were ultimately showing a reduced capacity for work over time” and was a view he formed in the first few weeks of August 2012. He also stated that there was nothing in the certificates that he could refer to that stated anything about any extended period of absence or absences for the foreseeable future.

[102] It appears then that Mr Williams with the experience of what had transpired before August 2012 in respect of the Applicant’s previous absences and her return to workformed the view that the experiences and pattern of absences prior to August 2012 would again be experienced.

[103] Mr Benson stated that he came to the medical conclusion that the Applicant could not meet the inherent requirements of the job now or in the foreseeable future in discussions with Dr Ryan and Mr Armstrong. He stated that Dr Ryan’s diagnosis was that the Applicant was “unfit to perform your [the Applicant’s] duties and she [Dr Ryan] was declaring you [the Applicant] unfit for work”. He also stated that “the advice from Dr Simone Ryan was that you [the Applicant] were unfit for work and then the termination proceeded.”

[104] The Applicant asked Mr Benson whether the advice he received from Dr Ryan and Mr Armstrong indicated that the Applicant was permanently disabled to which he answered “the advice was that you [the Applicant] were unable to fulfill the inherent requirements of the role and you [the Applicant] were declared unfit”. He also stated that he had no understanding of the Applicant’s diagnosis and that he was “only interested in the advice from the IHS team advising that you’re unfit to perform your role” although those answers were in response to a question about the Mander Report.

[105] Thus both Mr Williams and Mr Benson, despite the assertions of the Applicant, were clearly the two persons most involved in making the decision to dismiss the Applicant. They formed a view about the likelihood of the Applicant fulfilling her role for the foreseeable future. However there was no medical evidence presented that supported a view about the foreseeable future. It is evident that the Applicant was not fit for duty from 22 July 2012, however each of the various certificates provided were for periods of relatively short durations. Furthermore, whilst I found Dr Hall had agreed on 23 August 2012 that the Applicant was not fit for duty there are no indications that Dr Hall gave any opinion that the Applicant would not be fit to resume her full duties for the foreseeable future. The evidence of Dr Ryan also provides no indication that the Applicant would be unfit for duties for any an extended period of time.

[106] Dr Hall had also indicated in the WMC of 6 August 2014 that she had referred the Applicant to a psychiatric specialist. There is evidence that the Applicant had consultations with Dr Wu during August 2012 however there is no evidence of any diagnosis nor prognosis arising from those consultations. There is no evidence of IBM giving consideration to awaiting to be informed of any opinion of Dr Wu. Nor is there any evidence of IBM giving the Applicant the opportunity to consult Dr Wu.

[107] The Mander Report was, by August 2012, somewhat dated and perhaps not much assistance in determining the future likelihood of the Applicant returning to work, and in any event was prior to the apparent recurrence of the Applicant’s latest illness episode or episodes. Even if the Mander Report were to be relied upon it does not support any contention of the foreseeablity of incapacity to perform the inherent requirements of the role.

[108] There is therefore no evidence of any medical opinion or advice that was provided that supports any finding about the Applicant being unable to perform the inherent requirements of the job for the foreseeable future. There is evidence about the incapacity for the immediate future but there is nothing beyond that. Moreover there appears to be no real effort by IBM in considering whether the Applicant would be dismissed to either request that Allianz commission another report from Dr Mander or request advice from either Dr Wu or Dr Hall.

[109] I find that there was no sound and defensible reason for IBM to form the view that the Applicant would not be able to perform her role for the foreseeable future. There may have been little confidence or low expectations that the Applicant would return but in my view in the circumstances here more was required. In my view something more than informed speculation is required before a decision could be safely made that someone cannot perform the inherent requirements of their job for the foreseeable future. Here the future prospects of returning could only have been sound if there was some medical evidence that supported that decision. I am not suggesting that such evidence should always be required before such a decision could be formed but in the circumstances here with the medical history involved I consider the decision was not sound as it was based on impressions and non medical observations of past conduct, much of which was unrelated to capacity, rather than medical advice about future prospects.

[110] Mr Williams also gave evidence that the decision to dismiss was also influenced by a loss of confidence and faith in the Applicant, however this reason was not developed to an extent that I could safely make a finding that it created a valid reason for termination although it has other relevance as can be seen from my other findings below.

Consideration

[111] The dismissal was for the reason that the Applicant did not have the capacity to do the job for the foreseeable future. Resulting from my findings above I do not consider that was a valid reason for dismissal. There may have been other reasons that influenced the decision to dismiss the Applicant such as Mr Williams’ loss of faith and confidence in the Applicant. A further reason could have been the uncooperativeness of the Applicant in previous RTWP and especially endeavouring to include matters irrelevant to the RTWP for other purposes. Another reason may have been one expressed by Mr Williams of the amount of his time required to deal with issues involving the Applicant which was detracting from his other duties and management of other staff. I had the impression from the evidence as a whole, but unstated, that IBM had simply had enough and had arrived at a point where the resources and effort devoted to the Applicant’s grievances could not be justified. There was insufficient evidence for me to make a finding that these other reasons either individually or as a whole established a valid reason for dismissal.

[112] The Applicant was notified of the reason. I also find that she had the opportunity respond to the reason and was not refused permission for another person to be present to assist in any discussions relating to the dismissal. The dismissal did not relate to the Applicant’s performance.

[113] I find that the size of the IBM enterprise did not impact on the procedures followed in effecting the dismissal and IBM did have dedicated human resource specialist involved.

[114] There are no other matters I consider relevant in my considerations.

[115] I find that the dismissal of the Applicant was harsh, unjust, or unreasonable. I find therefore that the dismissal was unfair.

Remedy

[116] The FW Act provides in s.390 that:

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

[117] The remedy or a remedy is thus a discretion to issue an order or to not issue an order. There are a number of issues in this matter that are relevant to that consideration.

Conduct of the Applicant

[118] The Applicant throughout the proceedings raised allegations and assertions about Dr Ryan. I had made it clear near the beginning of proceedings that I would not deal with any allegations of professional conduct. I had to repeatedly remind the Applicant throughout the proceedings that the application I was dealing with was related to her dismissal and not to other grievances she may have. Despite this it appeared to me that another purpose the Applicant had in these proceedings was to use it as a forum to criticise Dr Ryan. This was not only unfair to Dr Ryan but a deliberate and regular ignoring of directions and advice I gave the Applicant throughout the proceedings.

[119] It is often a difficult balance to ensure that an unrepresented Applicant has a fair hearing without being unfair to the other side by too much help being given to the Applicant. Indeed at one juncture I put a series of questions to Mr Williams whose answers were important in my findings above. I asked those questions in an endeavour to illustrate to the Applicant the type of questions she should be asking and the specific issues that were important. I said as much to the Applicant after asking those questions.

[120] Despite my advice and assistance the Applicant regularly appeared to ignore it and continued to pursue what I can only regard as a vendetta against Dr Ryan. In case there is any doubt I make no adverse findings about Dr Ryan’s credibility nor in any other respect.

[121] I do not regard the Applicant’s conduct to be those of a naive person but rather those of an intelligent and articulate person intent on creating a stage in which she had decided she would vent her anger about Dr Ryan. The conduct of the Applicant during proceedings and her use of the proceedings for that purpose and for other purposes I regard as matters that weigh against an order of any type being issued.

Accusations

[122] The Applicant repeatedly made very serious allegations and accusations about others with little or no foundation. I will not traverse all of the accusations but the following two examples should be sufficiently indicative.

[123] The first concerns an allegation by the Applicant that Dr Hall had “conspired” against her. The Applicant sent an email to Dr Hall, and provided it to my Chambers on 13 March 2013 which stated:

“Dear Dr Hall, it seems that you are worried about your professional integrity. There is no need for me to present at the medical emergency department. I guess I have no other option to produce this email to his Honour, which I’m sure is self-explanatory, that you conspired with Dr Ryan without my consent and then admitted to doing no wrongdoing”

[124] The Applicant was given repeated and clear opportunities to withdraw the allegation. It was also suggested to the Applicant that she may have been careless with the use of the word “conspired”. Despite the Applicant’s evidence that “I wouldn’t put it [the allegation of conspiring] in those terms” and “I don’t like the word conspired” and “Perhaps that wasn’t the right word to use” and“I perhaps used the wrong word in that sentence structure” she refused to withdraw the accusation.

[125] The Applicant at one point responded petulantly by stating “Well if you want me to withdraw it I’ll withdraw all of my evidence”. I endeavoured to explain to the Applicant that IBM’s representative was entitled to ask her “whether the words were careless, whether they were intentional, and whether you on reflection now wish to withdraw the allegation you made” and during that explanation the Applicant interrupted me stating “He always gets his way” . It seemed clear enough to me that the Applicant was inferring that I was dealing with the matter in an unfair way by giving IBM’s representative rulings that she viewed as being unfair to her. I note that the IBM could have regularly objected to the advice, if not assistance, the Applicant was receiving from me but they did not.

[126] Notwithstanding the opportunities for the Applicant to moderate her serious accusations towards Dr Hall the Applicant eventually reaffirmed her accusation by stating“Well I believe that she did conspire because why wouldn’t she be here to defend herself?”. This also illustrated that the Applicant viewed the proceedings as opportunity for purposes other than to dispute the fairness of her dismissal.

[127] The second example is that the Applicant viewed a comment by Mr Williams that emails the Applicant had sent to him were “illogical and intemperate” as a derogatory reference to the Applicant’s indigenous heritage. The Applicant’s accusation arose out of Mr Williams witness statement for these proceedings. Mr Williams stated that he viewed the emails that the Applicant sent to him on 13 and 14 August 2012 as “intemperate and illogical”. That description was hardly surprising given the content of those emails.

[128] Mr Williams evidenced that when he used the word intemperate “I meant that in my opinion the email that was written to me was written more in response to an emotion, as opposed to a reasoned thought process.”

[129] The Applicant in her evidence stated that she “felt that it [use of the word intemperate] is a direct vitriol in regards to my Indigenous heritage. It was just a low shot taken at me, and it’s not the first time that he’s done it.” I accept Mr Williams’ intent in using the word intemperate. I regard the Applicant’s view of Mr Williams’ intent as being fanciful and itself offensive.

[130] Despite the content of the emails and the accusations of Mr Williams being disparaging about the Applicant’s heritage the Applicant during proceedings apologised to Mr Williams. The apology was a generic one and made no reference to the specific allegation which in my view was the most serious and clearly caused offense to Mr Williams.

[131] There were other instances throughout the proceedings including (i) accusing Mr Armstrong of being a liar (ii) referring to Dr Ryan as a bitch (iii) accusing IBM of an impropriety through altering medical certificates.

[132] I consider that the Applicant improperly and unfairly endeavoured to use these proceedings to besmirch others.

[133] Despite the Applicant’s propensity to make unfounded or unrealistic allegations it was apparent she did not consider any of her own conduct may have been improper. For example the Applicant tape recorded a consultation with Dr Hall without Dr Hall’s knowledge.

[134] The Applicant was also regularly evasive especially during her cross-examination. Mr Hooker had to regularly repeat questions to her and await lengthy responses that were usually irrelevant to the question or far strayed from the issue involved that it avoided the answer. It appeared to me that this was not inadvertence on the part of the Applicant nor a lack of experience or understanding. Rather it appeared to me that the Applicant improperly avoided answering relevant and fair questions.

[135] In contrast and lest there be any doubt about the conduct throughout the proceedings by either IBM’s witnesses or IBM’s representatives I make it clear that I have no criticisms whatsoever. I also find that each of the witnesses of IBM were honest, clear and forthright.

Amount of absences

[136] There was a significant amount of time that the Applicant was absent. The absences included a long period of paid sick leave, substantial periods of unpaid leave and a series of absences for which workers compensation was claimed. I do not suggest that the absences were avoidable. The extent of these absences should have been a cause for the Applicant to fully cooperate in any RTWPs. However the evidence outlined above illustrates that the Applicant did not cooperate but rather frustrated efforts to have a reasonable programme for her return to work. This influenced my decision not to issue an order.

Conclusion regarding remedy

[137] It is clear from the analysis of the evidence and my findings above that I find that it would be inappropriate for the Applicant to be reinstated.

[138] I also do not consider that it is appropriate in all of the circumstances of this case to issue an order for compensation.

DEPUTY PRESIDENT

Appearances:

K Jeffrey in person.

R Hooker of Counsel for the Respondent

Hearing details:

2013.

Perth:

June 10, 11, 12

September 24, 25.

Final written submissions:

Applicant, 9 January 2014.

Respondent, 24 January 2014.

1 see s.394 of the FW Act.

2 It is apparent that the date was an American format meaning it was 8 December 2011 that the case manager changed

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