Linda Duckham v The Royal Children's Hospital T/A the Royal Children's Hospital Melbourne
[2019] FWC 1612
•18 APRIL 2019
| [2019] FWC 1612 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Linda Duckham
v
The Royal Children’s Hospital T/A The Royal Children’s Hospital Melbourne
(U2018/9362)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 18 APRIL 2019 |
Application for an unfair dismissal remedy – medical incapacity – inherent requirements of the role – application dismissed.
[1] On 7 September 2018, Ms Linda Duckham (Ms Duckham) made an application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. Ms Duckham was employed by The Royal Children’s Hospital T/A The Royal Children’s Hospital Melbourne (the respondent) as a Medical Scientist from 2 April 2001 until her employment was terminated on 20 August 2018.
[2] Ms Duckham commenced personal leave from the workplace on 31 July 2017 and remained on personal leave until the termination of her employment. Ms Duckham received a termination letter dated 15 August 2018 advising her that her employment had been terminated as she was unable to perform the inherent requirements of her pre-injury role. 1
[3] Ms Duckham submitted that the termination of her employment was unfair and seeks reinstatement. 2
[4] I conducted a Mention by telephone with the parties on 6 March 2019. Ms Duckham was self-represented and Mr David Hartnett made an application to represent the respondent pursuant to s.596 of the Act. I granted Mr Hartnett permission on the basis that it would enable the matter to be dealt with more efficiently given the complexity of issues before the Fair Work Commission (the Commission). I also formed the view that representation would assist in keeping matters pertinent to the application. 3
[5] In the proceedings on 12 March 2019, Ms Duckham represented herself, with the assistance of support people, and gave evidence on her own behalf. The respondent was represented by Mr Nick Harrington of Counsel, with the Commission’s permission, and led evidence from Ms Simone Zelencich.
[6] Section 396 of the Act requires that I decide four matters before considering the merits of Ms Duckham’s application. There is no dispute between the parties, and I am satisfied, of the following matters. Firstly, Ms Duckham’s application was made within the 21 day period required by s.394(2) of the Act. Secondly, Ms Duckham was a person protected from unfair dismissal, as she had completed the minimum employment period and was covered by the Victorian Public Health Sector (Medical Scientists, Pharmacists and Psychologists) Single Interest Enterprise Agreement 2017-2021 (the Agreement) at the time of dismissal (s.382). Thirdly, the respondent is not a small business for the purposes of the Act, and therefore I do not need to consider the Small Business Fair Dismissal Code. Fourthly,Ms Duckham’s dismissal was not a case of genuine redundancy.
Background
[7] Ms Duckham commenced employment with the respondent on 2 April 2001 as a Medical Scientist in the Laboratory Services Division of the Department of Microbiology and Infectious Diseases. 4 She was employed on a permanent part-time basis and was required to work 38 hours per fortnight.5 At the time of her dismissal, Ms Duckham was classified as a RX7 Scientist Gr 1 Yr 7.6
[8] There was a long and somewhat involved sequence of events in this matter, few of which are of assistance to resolving the essential issues, which include was there a valid reason for termination of Ms Duckham’s employment, and issues of procedural fairness. Nevertheless, for completeness, some of the history is set out below. This includes extensive endeavours by the Commission to resolve issues between the parties.
[9] On 18 September 2017, the respondent wrote to Ms Duckham in relation to her capacity to return to work. The respondent directed Ms Duckham to provide ‘updated medical information, which [would] assist to safely support [her] with return to work.’ 7 The respondent’s letter to Ms Duckham also included a letter that she was to provide to her treating medical practitioner. The letter to Ms Duckham’s treating medical practitioner requested ‘medical information, which provides clarifications pertaining to Ms Duckham’s absence (17 days of personal leave), diagnosis, workplace restrictions or how to provide a safe work environment specific to Ms Duckham’s medical needs.’8
[10] The respondent’s letter stated that Ms Duckham was to provide the medical information obtained from her medical practitioner by 28 September 2017. 9
[11] Ms Duckham, on advice from her union representative, did not provide the medical information. 10
[12] On 21 September 2017, Ms Duckham was issued with a Certificate of Capacity by WorkSafe Victoria (WorkSafe). Dr Nobia Abidi (Dr Abidi) certified Ms Duckham as having no capacity for employment from 21 September 2017 to 5 October 2017. 11
[13] The Certificate of Capacity stated the clinical diagnosis as ‘depression and anxiety secondary to work place harassment’.
[14] The Certificate of Capacity further stated:
‘Significant impact on mental health and wellbeing not only within the workplace but extending to impact activities of daily living due to physical and psychological manifestations of anxiety and depression. For over five years, recently escalated in Feb 2017.’ 12
[15] Ms Duckham said she sent the respondent Certificates of Capacity ‘every month from 17 October 2017 to 10 August 2018’. 13
[16] The respondent sent a further letter to Ms Duckham dated 16 October 2017 after it failed to receive a response to its initial request for further medical information. The respondent directed Ms Duckham to attend an Independent Medical Examination (IME) on 6 November 2017, and stated that failure to attend may result in disciplinary action. 14
[17] Ms Duckham did not attend the IME on advice from her union representative. 15
[18] Ms Duckham’s union representative contacted the respondent on 11 December 2017 requesting it ‘provide the technical basis for [its] assertion that the IME request is a lawful direction.’ 16
[19] Ms Duckham submitted that she did not attend the IME as she had made a WorkCover claim, which was received by WorkSafe on 4 October 2017, and she was to have an IME as part of the WorkSafe claim process. 17
[20] Ms Duckham said ‘the expectation from [the respondent] to commit to a second IME, without [her] consent, or face disciplinary action caused [her] great stress and further aggravated [her] anxiety and depression.’ 18
[21] On 20 December 2017, the respondent lodged an application with the Commission to try and resolve its dispute with Ms Duckham regarding the provision of further medical information to determine Ms Duckham’s fitness for work.
[22] Ms Duckham and the respondent attended Conferences before Commissioner Cribb at the Commission on 15 February 2018, 1 May 2018 and 28 May 2018 to try and resolve the matter.
[23] Following the first Conference on 15 February 2018, the respondent was provided with a one-page medical report from Ms Duckham’s medical practitioner, Dr Abidi, dated 23 February 2018.
[24] On 8 March 2018, the respondent wrote to Ms Duckham stating that it had ‘not heard from [her] or received medical information from [her] treating medical practitioner as requested and agreed to by [her] on 15 February’ and ‘as a result of [her] breach of this agreement, [it] is now reviewing [her] employment and considering all appropriate outcomes including termination of employment.’ 19
[25] The respondent requested a response from Ms Duckham that may assist in its determination by 16 March 2018. 20
[26] The respondent submitted that it sent its 8 March 2018 letter as it received Dr Abidi’s medical report, dated 23 February 2018, on 22 March 2018. 21
[27] The respondent submitted that ‘no further medical information was provided by Ms Duckham subsequent to the provision of the 22 February 2018 medical report.’ 22
[28] On 10 May 2018, the respondent wrote to Ms Duckham advising that it was ‘in the process of reviewing [her] employment and considering all options including termination.’ 23
[29] The respondent invited Ms Duckham to provide ‘any medical information or other information which [she] would like [them] to consider before making a decision regarding [her] ongoing employment by no later than close of business 14 May 2018.’ 24
[30] On 15 August 2018, the respondent sent Ms Duckham a letter terminating her employment, effective Monday, 20 August 2018. 25
[31] Ms Duckham remained absent from the workplace on personal leave and did not perform any work duties until her dismissal on 20 August 2018. 26
Consideration
[32] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable. In considering whether it is so satisfied, the Commission must take into account the matters specified in s.387. I will address each of these matters in turn below.
Section 387(a) – Valid reason
[33] The Act directs consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct. A valid reason is one that is ‘sound, defensible or well-founded’ and not ‘capricious, fanciful, spiteful or prejudiced’. 27
[34] On 20 August 2018, Ms Duckham was provided with a termination letter dated 15 August 2018 by the respondent, which provides as follows:
‘… based on the medical opinion you provided on the 22 March 2018, it appears that you are, unfortunately, unable to perform the inherent requirements of your pre-injury role.’ 28
[35] Is this a substantiated valid reason for termination of employment?
[36] Ms Duckham submitted that it is not. Ms Duckham submitted that she is able to perform the inherent requirements of her role, provided she is in a safe working environment. 29 In order for me to find that the respondent did not maintain a safe working environment, Ms Duckham would need to provide satisfactory material on how the environment was unsafe, and what the respondent’s actions were to make it unsafe, or failure by the respondent to take action. Ms Duckham did not do this except in the most general terms. I had the opportunity to observe her giving evidence, and overall I found her evidence somewhat emotional and unreliable, and essentially self-serving. She seems, for example, to consistently describe communications from the respondent as ‘bullying and harassment’ when they are simply the employer attempting to ascertain her medical condition or similar.30 If this is her judgement of bullying and harassment, and an unsafe culture in action, I respectfully disagree with her judgement. It is well-established that the act of disciplining an employee does not constitute an acceptable reason for abusive or defiant or otherwise inappropriate conduct.31 Similarly, a reasonable employer attempt to obtain information about the health of an employee is not unreasonable because the employee has an emotional reaction to it. I cannot confidently rely on Ms Duckham’s recollections or assessments. In my view, the respondent was correct when it said in response to my question whether this was bullying and harassment:
‘No, your Honour. We say it was an entirely standard process to try and assess the capacity of the applicant for her work purposes and there was nothing sinister or nothing out of the ordinary. It was an entirely orthodox process. All that has been set out as simply and straightforward as we can do it in a witness statement, and it simply sets out that process of writing to her asking for her to get a medical report from her doctor. Her refusing, some time going by, then directing her to attend an IME in lieu of providing a report from her doctor; again, refusal to do so. No explanation for that, simply not responding to those things, et cetera.
From the hospital's point of view it's simply a frustrating process of attempting to deal with an employee and genuinely assess her fitness for work. There was simply nothing in the nature of bullying and harassment about it.’ 32
[37] At no stage did Ms Duckham appear to understand this, or be willing to come to terms with the possibility that the respondent might be correct in this. It is easy to make general accusations, but they must be substantiated.
[38] Ms Duckham provided a list of grievances she had in the workplace, beginning in 2010-2011. 33 She claimed that, in 2012, she raised a number of her concerns regarding the behaviour of her immediate manager, Gena Gonis (Ms Gonis) with Human Resources. Ms Duckham provided examples of Ms Gonis’ behaviour that she had issues with, which included Ms Gonis yelling at her in front of colleagues, calling her to impromptu meetings and asking her about incidents that happened weeks or months before, providing inadequate training, giving her wrong advice, ignoring Occupational Health and Safety concerns, and delaying annual leave approval.34 Ms Duckham said, between 2012 and 2017, she spoke to various managers about her concerns regarding Ms Gonis’ conduct, including the Principal Scientist, Nigel Kelly.35
[39] Ms Duckham also relied on the witness statements of Secci Rye and Ms Rachel Phillips (Ms Phillips). Secci Rye deals with a number of matters in her evidence, including her observations of Ms Duckham’s emotions at certain periods of her dispute with the respondent, the support and assistance she had provided to Ms Duckham in her dispute with the respondent, and other matters. This evidence does not change the fact that there was a valid reason for termination of Ms Duckham’s employment, namely that she could not perform the inherent requirements of her role. Even if Ms Duckham became upset, it does not mean that the respondent acted inappropriately in sending the letter of 8 March 2018. The respondent’s 8 March 2018 letter, which Secci Rye said caused Ms Duckham to become upset, was written in a temperate and reasonable fashion. Employers are obliged, as part of managing the employment relationship, to ascertain the fitness for work of employees, not least because of requirements to maintain a safe workplace and the safety of employees.
[40] In Ms Phillips’ evidence, she outlined a number of difficulties she had in the workplace whilst working for the respondent, including her anxiety caused by management, and her mistreatment by Ms Gonis and colleague, Michelle Lim. Ms Phillips also provided examples of how certain staff treated Ms Duckham, including rolling their eyes when she spoke and frequently interrupting her, some general observations about how staff feared consequences of angering management, how dissent in the laboratory grew, and other matters. 36 Again, this does not change the fact that Ms Duckham was incapacitated for work at the date of termination, and again, it is very general in nature and almost expressly does not attempt to provide a balanced account of what happened and who was at fault.
[41] The respondent did not consider that Secci Rye and Ms Phillips’ evidence was relevant, did not seek to cross-examine them, and sought to have the material excluded. I have had regard to the material but it is of very limited value. It is, unfortunately, easy to respond to a termination by attempting to put the entire employment history under some form of trial or audit simply by making accusations of the most general kind, and of the most extreme kind. However, in my view, I must attempt to evaluate the material before me, and I will not exclude it because there is a possibility, however remote, that there is some substance to it.
[42] It is difficult to draw any conclusions from Ms Duckham’s evidence and the evidence of Ms Duckham’s witnesses. Workplace disagreements may not be a rare thing. When disagreements occur, it can be an extremely difficult task to attribute blame, and to disentangle the various explanations of right and wrong, as any consideration of unfair dismissal ‘conduct’ decisions or bullying decisions shows. The evidence before me does not properly engage in the evaluation process that is needed before conclusions can safely be reached. The evidence falls well short, for example, of that considered in Mac v Bank of Queensland Limited, which enabled conclusions to be drawn. 37 The difficulties with this evidence are firstly, that it is very general in nature, and secondly it is somewhat emotional and self-justificatory rather than providing a balanced account. I have already made observations about the reliability of Ms Duckham’s evidence. It is not enough to enable me to conclude that the respondent did not maintain a safe workplace. At most, I accept that there were some workplace disagreements between Ms Duckham and others. If this sort of evidence is sufficient to enable a finding that the employer failed to maintain a safe workplace, it is possible that many or even most workplaces could be so found simply by an employee or group of employees making general accusations. I am not satisfied that the respondent did not maintain a safe working environment.
[43] Ms Duckham said that her union told her that the respondent ‘did not have the right to commit [her] to this demand’ to attend an IME. 38 She submitted that it was unreasonable for the respondent to require her to attend an IME as she was already attending one for WorkSafe. She also claimed that the various respondent communications referred to above were ‘bullying and harassment’ or part of a culture of that.39 However, as noted above, employers are obliged as part of managing the employment relationship to ascertain the fitness for work of employees, not least because of requirements to maintain a safe workplace and the safety of employees. I am sure that many would be quick to blame the employer if it did not do this, for example, if it allowed an employee to work in circumstances where this was injurious to their health.
[44] I was not provided with detailed submissions in relation to the relevant agreement clause. I was provided with the clause after the proceedings. Clause 81 of the Agreement, Fitness for Work, provides for a complex procedure for ascertaining fitness for work. It may or may not have been followed in this case, something uncertain given the lack of submissions. The clause does not expressly provide for a right to direct that the respondent purported to exercise, but does expressly provide a right to ‘request the employee’s consent to obtain a report from the employee’s treating medical practitioner regarding the employee’s fitness for work’. 40 Furthermore, it does not state what happens if the employee does not consent. That is an open question. On one view, the employer may then direct consistent with common law obligations and rights, on another, it might be argued that the employer cannot do this. The better view, in my opinion, without the benefit of submissions, is that such an important right to direct should only be abrogated expressly, and to find otherwise has the potential to threaten health and safety, and such an interpretation is not to be preferred having regard to the ordinary rules of interpretation of agreements. However, that is an argument for another day. At this stage, the issue is ambiguous, and even if I am wrong, the respondent had a legitimate interest in obtaining information about Ms Duckham’s health.
[45] However, the issue before me is whether or not, at the date of dismissal, Ms Duckham was unable to perform the inherent requirements of her role because of medical reasons.
[46] In Crozier v Australian Industrial Relations Commission (Crozier), 41 the Full Court of the Federal Court endorsed the approach taken by the Full Bench of the Australian Industrial Relations Commission to determining whether a valid reason exists in the context of a capacity case. In Crozier, the Full Court of the Federal Court held:
‘The word "capacity", as used in s 170CG(3)(a), means the employee's ability to do the work he or she is employed to do. A reason will be "related to the capacity" of the employee where the reason is associated or connected with the ability of the employee to do his or her job. The terms of s 170CG(3)(a) provide no support for Mr Crozier's contention that there can be no "valid reason ... related to the capacity ... of the employee" where an employee is working to his or her personal best, even though this personal best is less than what is required to do the job for which he or she is employed. Plainly, there can be a valid reason for the termination of an employee's employment where he or she simply does not have the capacity (or ability) to do the job. In this case, the Full Bench found that Mr Crozier knew that "the main focus of his position was to generate new business"; that he failed to meet this objective; and that his failure was not due to external factors but to a lack of capacity (or ability) as a sales representative (at 150 & 152-153). In making these findings it acted within jurisdiction, and we detect no jurisdictional error in its approach.’ 42
[47] In CSL Limited v Papaioannou (CSL), 43 applied in Hyde v Serco Australia Pty Limited (Serco),44 a Full Bench of the Commission concluded that:
‘In a dismissal related to the person’s capacity, s.387(a) requires the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. Such findings are to be based on the relevant medical and other evidence before the Commission.’ 45
[48] The question is whether or not, at the date of the dismissal, Ms Duckham was incapacitated for work, not whether or not at a later date after termination she became capacitated.
[49] In Hyde v Serco Australia Pty Limited, 46a Full Bench of the Commission adopted the approach taken in Jetstar Airways Pty Limited v Neeteson-Lemkes (Jetstar)47 on capacity at the time of dismissal,and said:
‘As noted in Jetstar, it is well-established that, although the validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, those facts must have existed at the time of dismissal. Applying this principle to the matter before us, Dr White’s evidence was correctly excluded from the assessment of whether there was a valid reason for Mr Hyde’s dismissal because it was clearly founded upon a factual situation which came into existence well after the date of Mr Hyde’s dismissal. Dr White examined Mr Hyde on 10 November 2017, some two months after his dismissal, and his evidence concerned Mr Hyde’s capacity as at 10 November 2017; not his capacity as at the date of his dismissal. The validity of that part of Serco’s reason for dismissal which concerned Mr Hyde’s future capacity to perform his duties must be assessed by reference to his state of health, and the expert opinions expressed as to his state of health, as they were at the time of his dismissal.’ 48
[50] In Jetstar,the Full Bench said:
‘Consideration of the validity of that reason requires three interconnected elements to be considered: firstly, whether Ms Neeteson-Lemkes was capable of performing the inherent requirements of her role as at the date of dismissal; secondly, whether Ms Neeteson-Lemkes would be able to perform the inherent requirements of her role at some time in the future; and thirdly, whether there was some reasonable adjustment which could be made to her role to accommodate any current or future incapacity.’ 49
[51] Ms Duckham provided the respondent with a medical report from her treating medical practitioner, Dr Abidi, dated 4 December 2018. It shows that Ms Duckham did not have capacity to work, and could not perform the inherent requirements of her role on an ongoing basis rather than temporarily. 50 The report states that as at 31 July 2017, Ms Duckham was suffering from a severe mental disorder on the Kessler Psychological Distress Scale (K10) (a measure for psychological distress), and suffering from a moderate mental disorder as at 20 October 2018.
[52] All the evidence shows an ongoing medical condition of a similar nature. Also, Ms Duckham did not dispute that she did not have capacity for work at the date of dismissal, but said that if the alleged ‘unsafe environment’ was removed, this would change. 51 Nevertheless, I will examine the medical evidence.
[53] Dr Abidi’s medical report dated 23 February 2018 states:
‘Ms Linda Duckham… has presented over the course of the last 12 months with symptoms of increasing anxiety and depression secondary to work place related issues. This has manifested in multiple worsening physical symptoms… which have had a significant impact on her daily life resulting in requiring time off work.
Ms Duckham has presented to multiple General Practitioners over the last 5 years with similar work place stress leading to intermittent time off work. Since February 2017 Ms Duckham has seen me on multiple occasions at regular intervals for the management of her Anxiety disorder, for which she is currently being treated with both pharmacological and psychological therapies.
Currently Ms Duckham is improving with the above mentioned treatment, however a clear timeframe of recovery is unknown.’ 52
[54] It is significant that the timeframe of recovery is ‘unknown’. This suggests an ongoing condition.
[55] The next examination of Ms Duckham after the 23 February 2018 medical report was on 20 October 2018, and Dr Abidi stated in her medical report dated 4 December 2018 that there was an ongoing condition. Dr Abidi said:
‘Linda’s mental health has deteriorated due to what she states to be work-related issues. Whilst she is capable of performing the physical tasks of her work she is unable to be in the work environment to what she claims is bullying and harassment by her supervisor (Gena) and co-support by principal scientist and other members of management acting in a supportive role towards this form of harassment. Given the above circumstances and ongoing anxiety (symptoms + high scores on the 2 validated scales), I have deemed Linda unfit for work unless the above circumstances were to change.’ 53
[56] The report further shows an ongoing medical condition: ‘I have deemed Linda unfit for work unless the above circumstances were to change.’ 54
[57] In addition, Ms Duckham said she sent the respondent Certificates of Capacity ‘every month from 17 October 2017 to 10 August 2018 which showed that she was incapacitated for work’. 55 There was no suggestion ever that Ms Duckham’s capacity had changed after 10 August 2018, and between the last Certificate of Capacity and the 4 December 2018 medical report. In fact, by 15 August 2018, Ms Duckham had been absent from work for over 12 months because of incapacity for work.
[58] Overall I am satisfied that Ms Duckham was incapacitated for work on the date of dismissal, 20 August 2018, given the above. There was also no medical evidence provided at any stage which showed Ms Duckham had capacity to work up to the date of dismissal, or a likelihood of her returning to her duties in the short or medium term.
[59] In relation to the ongoing nature of the incapacity, the Full Bench said in Jetstar:
‘… Jetstar’s view at the time of dismissal that Ms Neeteson-Lemkes would not be able to return to work her full duties as a Jetstar flight attendant was not contrary to any medical opinion in existence at or about that time.’ 56
[60] In this case, Dr Abidi’s medical opinion was that she deemed Ms Duckham ‘unfit for work unless… circumstances were to change.’ It was not a medical opinion that she would be fit for work in the future, rather a finding that the unfitness for work was ongoing unless circumstances were to change. All the evidence suggests that this was a longstanding incapacity for work of over 12 months, and there was no suggestion that anything would change in the foreseeable future, or that reasonable adjustments could be made. There was also no evidence that Ms Duckham had the capacity to work or would have capacity in the future. The allegations against the respondent recorded in Dr Abidi’s medical opinion were second hand and based on Ms Duckham’s advice, and were rather general in nature.
[61] Jetstar also raises the issue of reasonable adjustments. I do not think that reasonable adjustments are possible, nor was anything specifically advanced by way of a proposal for reasonable adjustments which would be workable. I am not satisfied that there was an unsafe workplace which could be changed in any event for the reasons given.
[62] The respondent has therefore made out the grounds for Ms Duckham’s termination, namely that she was incapacitated for work at the date of dismissal, and this is a valid reason for termination.
[63] In a psychological report dated 14 January 2019, Joseph Gagliano, Psychologist, diagnosed Ms Duckham with Adjustment Disorder, with Mixed Anxiety and Depressed Mood. 57 The respondent submitted that this report is inadmissible because it does not provide relevant evidence as to Ms Duckham’s ability to work and related issues as at the date of dismissal, 20 August 2018.58 To the extent that it is relevant, the report states that ‘Ms Duckham’s injury is as a direct result of her employment’, and that at the date of the report, Ms Duckham’s emotional states of anxiety and depressed mood have ‘been exacerbated since August 2018, when [she] was terminated.’59
[64] Mr Gagliano’s findings in his report are based on Ms Duckham’s second hand accounts to him of alleged bulling by managers. I can only rely on the evidence given by Ms Duckham to the Commission justifying her claims of alleged bullying. Overall, the report is of little assistance.
[65] The various disputes between Ms Duckham and the respondent do not change my findings. The union did not appear at the proceedings to put a view in relation to the legality or otherwise of the direction to attend an IME, but it was at least arguably a reasonable and lawful direction. In my view, it was lawful and reasonable. In the alternative, if I am wrong about that, the medical evidence provided by Ms Duckham shows that she was incapacitated for work for medical reasons at the time of dismissal. It is reasonable for an employer to seek clarifying medical evidence to the extent that the law provides, including in cases where some form of legal dispute may exist over the extent of employer powers, and the situation is ambiguous at worst, and it is open to an employee to respond as they see fit.
[66] However, Ms Duckham’s responses confirm that the respondent was correct in the view it took that Ms Duckham was incapacitated for work for medical reasons.
[67] It is perhaps understandable that Ms Duckham would have an emotional reaction to the respondent’s requests for information, but that does not make the respondent’s actions unreasonable. In particular, I do not agree that the various respondent requests for medical information were ‘bullying’ or ‘harassment’. They were simply an employer doing its job to ascertain the medical fitness of an employee, which is a fundamental part of employer management of employment.
[68] I find that there was a valid reason for termination of employment.
Section 387(b) – Notification of reason for dismissal
[69] The letter of termination states that Ms Duckham was terminated because she was ‘unable to perform the inherent requirements of [her] pre-injury role.’ 60 Ms Duckham was notified of this reason in the 10 May 2018 letter from the respondent, which states:
‘[The Royal Children’s Hospital] is in the process of reviewing your employment and considering all options including termination. We invite you to provide us with any medical or other information which you would like us to consider…’ 61
[70] It was clear from the context that this related to Ms Duckham’s alleged ongoing incapacity for work. In its 8 March 2018 letter, the respondent stated that Ms Duckham had failed to attend an IME it had requested, and it ‘[had] not heard from [her] or received medical information from [her] treating medical practitioner as requested and agreed to by [her] on 15 February [2018].’ 62 The respondent also advised in its 8 March 2018 letter that termination of employment was being considered. Inherent in this and other correspondence was the issue of her capacity to work. I find that Ms Duckham was notified of the reason for dismissal before her dismissal.
Section 387(c) – Opportunity to respond
[71] The respondent gave Ms Duckham the opportunity to respond in the various letters it sent her, including on 10 May 2018, and it submitted that ‘it had been communicating with Ms Duckham and her union all through 2018 until the dismissal date.’ 63
[72] While Ms Duckham submitted that she was suffering from a medical condition and was unable to return to the workplace, there was no evidence before me that Ms Duckham could not have responded in writing or through a support person or through her union representative. Ms Duckham did not take advantage of the opportunities provided to put submissions.
[73] Even if there is an issue, and some form of inadequacy in the opportunity to respond, it is of the most technical kind given the consistent attempts by the respondent to obtain a response from Ms Duckham.
Section 387(d) – Unreasonable refusal by the employer to allow a support person
[74] There was no meeting and no unreasonable refusal to allow a support person.
Section 387(e) – Warning about unsatisfactory performance before dismissal
[75] This is not relevant.
Section 387(f)(g) - Size of enterprise and absence of dedicated human resource management specialists/expertise likely to impact on procedures followed
[76] This is a large employer with dedicated human resource management specialists. 64
Section 387(g) – Other relevant matters
[77] I have taken into account all the submissions put, including the submissions of Ms Duckham on the long history of issues she had in the workplace prior to her termination by the respondent, including but not limited to bullying and harassment.
[78] I have also taken into account the respondent’s submissions that:
‘Ms Duckham:
• was absent from the workplace suffering from a medical condition (anxiety and depression) for more than a year;
• refused to attend an IME when directed to do so;
• obtained on 23 February 2018 the most cursory one page medical report from her treating [General Practitioner] which gave little detail to [the respondent] as to how it might return her to work in a safe manner;
• was unable, during her absence of 12 plus months, and was unable on the dismissal date, to return to work in the laboratory to perform her contracted duties; and
• in December 2018 and even now, is unable to return to work in the laboratory to perform her contracted duties.’ 65
[79] It is also a relevant matter that Ms Duckham had been employed by the respondent since 2001.
Conclusion
[80] I have taken into account all submissions and evidence, and find that the termination of Ms Duckham was not harsh, unjust or unreasonable. An order dismissing the application is contained in PR705762.
DEPUTY PRESIDENT
Appearances:
L Duckham on her own behalf.
N Harrington of counsel for the respondent.
Hearing details:
2019.
Melbourne:
March 12.
Printed by authority of the Commonwealth Government Printer
<PR705761>
1 Exhibit R1, Attachment SV-9.
2 Applicant’s Form F2 Unfair Dismissal Application, 3.
3 Transcript, 6 March 2019, PN50.
4 Exhibit R1, Attachment SV-1.
5 Exhibit D1, 5 [2].
6 Applicant’s Documents, Certificate of Service dated 22 August 2018.
7 Exhibit R1, Attachment SV-3.
8 Ibid.
9 Ibid.
10 Exhibit D1, 8.
11 Applicant’s Documents, Certificate of Capacity dated 21 September 2017.
12 Ibid.
13 Exhibit D1, 8 [41].
14 Exhibit R1, Attachment SV-4.
15 Exhibit D1, 8 [46].
16 Applicant’s Documents, Email from Matt Hammond (Medical Scientists Association of Victoria) to Michelle Sultana (The Royal Children’s Hospital) dated 11 December 2017.
17 Exhibit D1, 8 [44].
18 Ibid, 8 [45].
19 Ibid, Attachment SV-6.
20 Ibid.
21 Ibid, 3 [17].
22 Ibid, 4 [18].
23 Ibid, Attachment SV-8.
24 Ibid.
25 Ibid, Attachment SV-9.
26 Respondent’s Outline of Submission, 4 [30].
27 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
28 Exhibit D1, 11 [81] and Exhibit R1, Attachment SV-9.
29 Applicant’s Outline of arguments: merits, 14.
30 Transcript, 12 March 2019, PN64, PN118, PN262, PN1116 and PN1154.
31 See Naicker v Epworth Foundation[2017] FWC 4928 and Talevski v Chalmers Industries Pty. Ltd.[2018] FWC 1807.
32 Transcript, 6 March 2019, PN185-186.
33 Exhibit D1, 5-11.
34 Ibid, 5 [8].
35 Ibid, 6 [18].
36 Witness Statement of Rachel Phillips, 13-14.
37 [2015] FWC 774.
38 Exhibit D1, 8 [46].
39 Transcript, 6 March 2019, PN199 and PN208-209 and Transcript, 12 March 2019, PN64, PN118, PN262 and PN1154.
40 Victorian Public Health Sector (Medical Scientists, Pharmacists and Psychologists) Single Interest Enterprise Agreement 2017-2021, Clause 81.1(g).
41 [2001] FCA 1031.
42 Ibid, [14].
43 [2018] FWCFB 1005.
44 [2018] FWCFB 3989, [62].
45 [2018] FWCFB 1005, [77].
46 [2018] FWCFB 3989.
47 [2013] FWCFB 9075.
48 [2018] FWCFB 3989, [64].
49 [2013] FWCFB 9075, [53].
50 Applicant’s Documents, Medical Report dated 4 December 2018, Dr Nobia Abidi, Melton Medical Clinic.
51 Transcript, 6 March 2019, PN106.
52 Exhibit R1, Attachment SV-7.
53 Applicant’s Documents, Medical Report dated 4 December 2018, Dr Nobia Abidi, Melton Medical Clinic.
54 Ibid.
55 Exhibit D1, 8 [41].
56 [2013] FWCFB 9075, [56].
57 Applicant’s Documents, Psychological Report dated 14 January 2019, Joseph Gagliano, Western Psychological Services.
58 Respondent’s Outline of Submission, 7 [46].
59 Applicant’s Documents, Psychological Report dated 14 January 2019, Joseph Gagliano, Western Psychological Services.
60 Exhibit R1, Attachment SV-9.
61 Ibid, Attachment SV-8.
62 Ibid, Attachment SV-6.
63 Respondent’s Outline of Submission, 8 [49].
64 Ibid, 8 [52].
65 Ibid, 8 [53]
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