Lisa Bell v The Trustees of the Society of St Vincent de Paul (NSW) T/A St Vincent de Paul Society Sydney Archdiocese

[2013] FWC 3166

[2013] FWC 3166

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lisa Bell
v
The Trustees of the Society of St Vincent de Paul (NSW) T/A St Vincent de Paul Society Sydney Archdiocese
(U2012/9706)

DEPUTY PRESIDENT BOOTH SYDNEY, 24 MAY 2013

Termination of employment - alleged unfair dismissal.

[1] On 13 September 2012, Mrs Lisa Bell (the applicant) lodged an application pursuant to s.394 of the Fair Work Act2009 (the Act) for an unfair dismissal remedy in relation to the termination of her employment from The Trustees of the Society of St Vincent de Paul (NSW) T/A St Vincent de Paul Society Sydney Archdiocese (the respondent).

[2] A conciliation was conducted on 9 October 2012 but did not resolve the matter.

[3] The applicant was self-represented and was supported by her husband, Mr Geoff Bell. The respondent was represented by Mr David Morris, solicitor, Morris Legal.

[4] On 7 November 2012, the matter was listed for arbitration on 7 and 8 February 2013 and directions issued to the parties in relation to filing of submissions, any witness statements and other documentary material. On 12 November 2012, the applicant made a request by email to Fair Work Australia (FWA), as it then was, that the matter be heard in private with no cross examination of Mrs Bell on the basis of written documentation only, due to the state of the applicant’s health. In support of this request material was provided by the applicant including a Power of Attorney in favour of her husband, Mr Geoff Bell, and medical reports. The respondent objected to this course. Mrs Bell’s application was allocated to me on 28 November 2012 and I decided to list the matter for mention on 19 December 2012. By consent of the parties a conciliation conference was held on that day and the parties came close to resolving the matter. However it was not resolved and I listed the matter for directions on 21 February 2013, the hearing dates on 7 and 8 February having been vacated. On this occasion it was agreed between the parties that the matter be determined based upon written submissions made by the applicant and the respondent, commonly referred to as being a consideration “on the papers”.

[5] The applicant had already provided FWA with a submission on 19 November 2012 containing many documents. The applicant provided the Fair Work Commission (the Commission) and the respondent with additional written submissions and documents on 1 March 2013 and the respondent supplied its response on 12 March 2013. The applicant replied with further submissions and documents on 20 and 24 March 2013.

[6] These submissions and documents, Mrs Bell’s Application for Unfair Dismissal Remedy contained in Form F2 and the Employer’s Response to Application for Unfair Dismissal Remedy contained in Form F3 are the entirety of the materials that I have relied upon in coming to my decision.

[7] I note at the outset that some of the applicant’s submissions in relation to discrimination cannot be addressed as this matter is being determined pursuant to Part 3-2 of the Act which concerns Unfair Dismissal rather than Part 3-1 of the Act which concerns General Protections. Further, if the applicant wishes to pursue her claim for unpaid entitlements she will need to do so in another jurisdiction.

[8] None of the matters I am required to consider at the outset pursuant to s.396 of the Act prevent Mrs Bell’s application from being considered. Mrs Bell lodged her application on 13 September 2012. Although there is some uncertainty about the day her dismissal took effect, due to the letter of termination dated 30 August 2012 not reaching Mrs Bell until 6 September due to her relocation of residence, at worst Mrs Bell’s application was lodged on day 14 of the limitation period and is within time. Mrs Bell was a person protected from unfair dismissal having been dismissed within the meaning of s.386 of the Act, having completed at least the minimum employment period with the respondent, being covered by a modern award 1, being covered by an enterprise agreement2 and earning less than the high income threshold. The respondent is not a small business employer and there is no suggestion that the applicant was dismissed on the grounds of genuine redundancy.

Background

[9] A large amount of material was provided to the Commission by the parties. My outline of the background to this matter is based upon a reading of all the material however I have only cited some of those documents in this description of the background to this matter.

[10] In 1999 the applicant suffered a stroke contributed to by her chronic condition, Lupus, an autoimmune disease. She has also suffered depression and has had a kidney tumour which was removed by surgery in 2011. She has high blood pressure and is prescribed Warfarin to prevent blood clotting.

[11] In 2000 the applicant commenced as a volunteer with the respondent in the “Vinnies” retail store in Waverley, NSW, facilitated by the Commonwealth Rehabilitation Service (CRS) as part of her rehabilitation following her stroke. She was deployed in the back room of the store unpacking boxes and operated the cash register at the front of the store. She performed these duties on Saturdays.

[12] The applicant commenced in paid employment on 23 April 2002 as a shop assistant. For the majority of her employment she has worked on a part-time basis 22.5 hours per week. At this time a Health Status Assessment was completed which indicated that the applicant should not be required to lift heavy weights and the respondent was informed of her medical history.

[13] In 2011 it was suggested that the applicant transfer to the Kingsford store to be closer to her home and to work in the accessories area which was her strength. The Kingsford store was not air conditioned and the applicant rejected the proposal because she said her medical condition required her to work in air conditioning. This was accepted by the respondent and she did not transfer.

[14] In January 2011 the applicant was relocated from the front counter to the back room sorting accessories. Later in 2011 the applicant had an operation to remove a tumour on a kidney and was absent from the workplace. She returned to work in or around October 2011 to the back room.

[15] On 13 December 2011 the applicant tripped over at work and injured her left foot. She lodged a workers’ compensation claim with Catholic Church Insurances (CCI) for a sprained left ankle and psychological injury which was accepted and she was absent from work until 9 January 2012.

[16] From this time onwards she maintained that she needed an independent rehabilitation provider to undertake a workplace assessment of her workplace. Her preferred provider was CRS who had assisted her to return to work in 2000.

[17] On 30 January 2012 the applicant commenced annual leave which concluded on 19 April 2012. The applicant submits that apart from the period 20 March 2012 – 30 April 2012 she was not aware of the form of leave she was on, however, this is not material to my determination in this matter and I do not propose to comment on it further. Suffice to say that she did not return to work from this time onwards.

[18] On or around 16 February 2012 the applicant lodged a grievance with the respondent alleging:

• Bullying by the Store Manager



• Breach of duty of care by the Area Manager, the Work Health Safety Consultant and the Claims Officer of CCI.

[19] The respondent engaged Ms Robyn Bailey of Explore Solutions to conduct an independent investigation into the complaint. The report of the independent investigation found, on the balance of probabilities, that the bullying allegation was not substantiated and the breach of duty of care allegation was not substantiated against the Area Manager, withdrawn in relation to the Work Health Safety Consultant and out of scope of the grievance procedure in relation to the Claims Officer of CCI. These findings were communicated to the applicant on 11 May 2012. The applicant rejected these findings and disputed the withdrawal of the claim against the Work Health Safety Consultant.

[20] On 1 March 2012 CCI wrote to the applicant by email indicating that she was free to engage a rehabilitation provider of her choice.

[21] On 27 March 2012, Professor Denis Wakefield, Professor of Medicine and Director of Immunopathology in the South East Sydney Local Health District wrote a letter “To Whom It May Concern” outlining the applicant’s medical history and, in effect, urging her employer to consider this history in managing her.

[22] On 3 April 2012, Dr Louise Hudson certified in relation to the applicant’s “ankle fracture/sprain” that the applicant “can work for half an hour then allowed (sic) to sit down as required no lifting >5kg but not to go back to work until has (sic) assessment by rehabilitation coordinator”.

[23] On 23 April 2012, the applicant commenced unpaid sick leave which concluded on 6 May 2012.

[24] On 4 May 2012, Dr Hudson signed two medical certificates in relation to the applicant’s ankle and it is not clear whether one superseded the other, however, they are inconsistent. She certified in relation to an “ankle fracture/sprain” that the applicant “is suitable for duties after assessment by independent rehabilitation coordinator CRS” from 28 May 2012. Lifting limits and breaks were included in this certificate. She also certified in relation to an “ankle fracture/sprain” that the applicant “is fit for pre-injury duties from 15/6/12”. Lifting limits were included in this certificate. The latter certificate was relied upon by the respondent and the former by the applicant.

[25] Also on 4 May 2012 Dr Hudson certified in relation to “Depression/anxiety” that ”The worker has the following capabilities for 6hrs/day 3 days/week starting at 10am medical condition will be reassessed after return to work”. No start date was included in this certificate but a review date of 4 June 2012 was included.

[26] On 7 May 2012, the applicant commenced long service leave which concluded on 23 July 2012 after which the applicant was on unpaid leave.

[27] On 15 May 2012, the respondent sent a Return to Work Plan (RTWP) to CRS to facilitate the applicant’s return to work. The plan proposed she work as a shop assistant for 22 hours per week Monday, Tuesday and Thursday performing the duties of customer service, pricing, tidying/returns and re-stocking shelves with various restrictions including not standing for more than 30 minutes and not lifting greater than 5kg. No response was received from CRS or the applicant.

[28] On 31 May 2012, CRS wrote to CCI by email indicating that the applicant’s CRS file was closed and had only been a single service, a Workplace Assessment. Consistent with this email a Case Note Record from CRS contains entries from 2 April 2012 to 10 May 2012 when the Case Note indicates that the file was closed. This was a source of concern by the applicant that CRS had been improperly influenced by CCI.

[29] On 31 May 2012, Dr Hudson certified in relation to both an “ankle fracture/sprain (now recovered)” and “panic disorder and depression secondary to bullying episode post ankle injury” that the applicant was “unfit to work from 20/1/12 until further CRS assessment”.

[30] On 12 June 2012, CRS wrote by email to CCI indicating that due to an industrial issue between the applicant and her employer “we are unable to assist you further”.

[31] On 22 June 2012, Dr Hudson certified in relation to both an “ankle fracture/sprain (now recovered)” and panic disorder and depression secondary to bullying episode post ankle injury” that the applicant was fit to return to work in her pre-injury duties from 1 July 2012.

[32] On 4 July 2012, a meeting was held between the applicant and the respondent. The applicant was represented by the Shop Distributive and Allied Employees’ Association (SDA). The respondent informed the applicant that it would like the applicant to return to work on 6 July 2012 and provided a Return to Work Plan to the applicant and her union representative.

[33] The applicant contends that the respondent informed the applicant that failure to do so would result in dismissal, although there is a dispute about whether the word “dismissal” or the terms “employment ended” and “abandonment of employment” were used. Following the meeting the respondent wrote to the applicant by email extending the deadline and seeking a response and a further meeting on 13 July 2012. A response was not received.

[34] On 5 July CCI wrote to the respondent enclosing an Injury Management Plan (IMP) which had been designed for the applicant. CCI advised that the IMP had been supplied to the applicant’s representative, the SDA, on 2 July 2012. The IMP was dated 5 July and referred to “Sprained left ankle (recovered) and psychological injury” and stated that “Lisa Bell is currently certified fit to return to work on 1/07/12, (6hrs/day, 3 days/week)”.

[35] On 26 July 2012 CCI terminated the applicant’s workers compensation payments.

[36] Between 30 July and 12 August 2012, the applicant, while still absent from work, was paid wages. It is the respondent’s submission that was due to an administrative oversight. The respondent has not sought to recover this overpayment. This was the source of a belief by the applicant that she was not on unpaid leave, however, I accept the respondent’s explanation and in any event it is not material to my determination in this matter.

[37] The applicant submits that on 31 July 2012 she was approved by Centrelink for a Disability Pension, however, she did not apply to receive the pension until September 2012 because she was hoping to be able to return to work.

[38] On 13 August the respondent wrote to the applicant advising that she had exhausted her long service leave, was now on leave without pay and was expected to return to work. The respondent sought a response by 20 August 2012 indicating her intentions, including whether she wished to access any accrued annual leave or sick leave that was available.

[39] The applicant did not return to work and Mr Bell replied by email dated 24 August 2012 to the effect that the applicant would come back to work only if her “2001 work agreement” was honoured “that considered her then & current condition as being part of that agreement. She will not return to work under the conditions that the society (sic) & CCI have demanded since January 2012.”

[40] On 30 August the respondent wrote to the applicant terminating her employment stating:

“Given your fitness for work, your refusal to participate in the injury management plan developed by CCI on 2 July 2012 and your husband’s response to my letter and email of 13 August, it is clear that you do not wish to return to work.”

[41] Mr and Mrs Bell replied to the respondent disputing the contentions contained in the letter of 30 August 2012.

[42] On 4 September the respondent wrote to the applicant enclosing the letter of 30 August and indicating that they were resending it as it was initially sent to her previous address, which was the only address the respondent had for the applicant at the time.

[43] Sometime before 30 August 2012 Mr and Mrs Bell relocated from Kingsford in Sydney to Long Jetty on the NSW Central Coast where they continue to reside. The applicant contends that her residential location did not prevent her from returning to work at the St Vincent de Paul Waverley Retail Store.

[44] Finally I note that a feature of the background to this matter is that Mr Bell’s support of Mrs Bell goes beyond the traditional role of a support person. As a result of his concern about her cognitive capacity, Mr Bell largely speaks for Mrs Bell and the submissions in this matter were prepared by him. The applicant’s motivations, decisions and actions are strongly influenced and in some cases dictated, by Mr Bell and the submissions reveal that this has been the case during the period of her employment with the respondent as well as in the conduct of this matter before the Commission.

Competing contentions

[45] The applicant contends, in effect, that she was unfairly dismissed because she wanted to return to work but she was prevented from doing so because the respondent did not provide reasonable adjustment for her disability and thus a safe place of work. She contends that the respondent failed in its duty of care for her.

[46] She contends that a major factor in her dismissal was discrimination against her by the independent investigator Robyn Bailey, CCI and CRS. I understand this contention to arise from the investigation conducted by Ms Bailey and her findings and the approach taken by CCI to the applicant’s proposed return to work after her ankle injury. The contention concerning CRS arises because the applicant hoped to gain the assistance of CRS in her 2012 return to work after her ankle injury and include consideration of the applicant’s prior medical history in so doing. CRS did not agree to this course.

[47] The applicant does not seek reinstatement but an amount of compensation detailed in her submission in the form of an employer contribution to her superannuation fund. Consideration of this submission will be given only if a finding of unfair dismissal is made.

[48] The respondent contends, in effect, that the applicant was not unfairly dismissed because she was fit for work, had failed to return to work, had failed to make any efforts to return to work or to provide any reasonable explanation for not returning to work. The respondent contends that it had no alternative but to terminate the applicant’s employment.

Statutory framework

[49] I am required to consider whether the applicant was unfairly dismissed from the respondent.

[50] The relevant sections of the Act are as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Consideration

[51] I have already indicated that there is no contest that the applicant was dismissed, that the respondent is not a small business and that the applicant’s case is not one of genuine redundancy. Therefore, in considering whether the applicant has been unfairly dismissed I must consider whether the applicant’s dismissal was harsh, unjust or unreasonable. In so doing I must take into account the criteria in s.387 of the Act.

[52] I will take each criteria in turn:

a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[53] Guidance as to the meaning of the term ‘valid reason” is provided by Selvachandran v Petron Plastics Pty Ltd 3. In that decision of the Industrial Relations Court of Australia Northrop J said:

“In its context in subsection 170DE(1), the adjective ‘valid’ should be given the meaning sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirements applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and the employee are treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, unreported, when considering the construction and application of section 170DC.”

[54] Section 170DE(1) of the Industrial Relations Act 1988 was in broadly similar terms to the corresponding provisions of the current Act.

[55] The applicant’s case is that she is disabled, her disabilities are known to the respondent, the respondent has failed to take the necessary steps to provide a safe place of work for the applicant and, in particular, would not agree to do so in the period of the applicant’s absence from work between 30 January 2012 and 30 August 2012, when she was dismissed.

[56] I accept that the applicant experiences difficulties as a result of her long standing medical condition exacerbated by her ankle injury in 2011. I feel very sorry for her and her husband, who is her carer, notwithstanding his own health challenges. I recognise Mr Bell’s strong belief that the respondent, CCI and CRS have neglected the welfare of his wife. However, I think this belief is based on unreasonable expectations of the roles of each of these entities and failure to recognise his own contribution to the inability of these entities to meet his demands.

[57] It was the responsibility of CCI to develop an Injury Management Plan in consultation with the applicant and the respondent. It was the responsibility of the Return to Work Co-ordinator (either CRS or the respondent) to develop a Return to Work Plan in consultation with the applicant and, if the provider was CRS, the respondent. It was the responsibility of the applicant and the respondent to implement both. The finalisation of both plans was prevented by Mr and Mrs Bell’s failure to constructively participate in this process and the implementation of both plans was prevented by the applicant’s failure to return to work.

[58] It appears to me that the failure of the applicant to participate in the finalisation of the IMP and the RTWP was due to Mr and Mrs Bell’s distrust of the respondent which derailed communication between all parties. Compounding this was the confusion about the respective roles of CCI and CRS and the purpose of an IMP and a RTWP, Mr and Mrs Bell’s insistence that CRS and not the respondent be the return to work co-ordinator, disagreement with the medical certificate issued by Dr Hudson on 22 June 2012 and belief that the respondent, CCI and CRS were engaged in a conspiracy to prevent the applicant from returning to work. These factors together accounted for the applicant’s failure to return to work. The applicant would only return to work on the terms laid down by Mr Bell. However, those terms were imprecise. In general the demand was for all of the applicant’s disabilities to be considered in the design of her work and workplace. This required the particulars of the work and working environment to be set out in an IMP and RTWP. An IMP and RTWP could not be agreed. That agreement could not be reached was not for want of trying on the part of the respondent.

[59] I find that the respondent acted reasonably in requiring the applicant to return to work on the basis of the CCI IMP dated 5 July 2012 and a CRS or St Vincent de Paul RTWP (never finalised). By 30 August the respondent came to the conclusion, and it was reasonable to do so, that the applicant was not going to return to work at the St Vincent de Paul Waverley Retail Store on this basis. Acting upon that conclusion they informed her that the contract of employment was at an end and in doing so they acted reasonably.

[60] Accordingly, I find that the respondent had a valid reason for her dismissal.

(b) whether the person was notified of that reason

[61] The respondent’s letter of termination to the applicant clearly stated that the reason for dismissal was her failure to return to work as directed. Furthermore, it is clear from submissions that while there is a dispute about the words used and their intent, some reference to termination of employment was made in the meeting of 4 July 2012 and the applicant was aware from this time that this was a possible outcome of her not returning to work.

[62] I find that there is no contribution to a finding of unfair dismissal from consideration of this factor.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[63] The respondent wrote to the applicant on 13 August asking her to inform them of her intentions to return to work. Mr Bell responded on 24 August in no uncertain terms that the applicant would not be returning on the respondent’s terms. The parties were at a standoff. I regard this exchange as indicative of the applicant’s opportunity to respond to the reason for dismissal notwithstanding that dismissal was not advised until 30 August.

[64] I find that there is no contribution to a finding of unfair dismissal from consideration of this factor.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[65] The applicant was afforded an opportunity to have a support person from the SDA present in the meeting of 4 July and the many exchanges of correspondence that took place between the parties in the lead up to the dismissal were prepared by her support person, Mr Bell. There was no meeting to discuss the termination in the traditional sense although an opportunity to convey her views on the dismissal was taken by Mr Bell following receipt of the letter of 30 August 2012.

[66] I find that there is no contribution to a finding of unfair dismissal from consideration of this factor.

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[67] The applicant was not dismissed for unsatisfactory performance. Therefore, this factor is not relevant to my consideration of this matter.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[68] The respondent is a large employer. Therefore, this factor is not relevant to my consideration of this matter.

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[69] The respondent has a dedicated human resource capability. Therefore, this factor is not relevant to my consideration of this matter.

(h) any other matters that the FWC considers relevant

[70] There are no other matters that bear upon my consideration of the dismissal of the applicant.

Conclusion

[71] I find that the respondent had a valid reason for dismissal. Taking this and all of the above into account I find that the dismissal was not harsh, unjust or unreasonable. Accordingly, I find that it was not unfair and the application is dismissed.

DEPUTY PRESIDENT

Final written submissions:

24 March 2013

 1   General Retail Industry Award 2010

 2   St Vincent De Paul Society (NSW) Retail and Distribution Collective Agreement 2011

 3  

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