Malcolm Adkins v Energy Queensland Limited - [2022] FWC 786

[2022] FWC 786

The attached document wholly replaces the document previously issued with the document code [2022] FWC 786 on 31 May 2022 as a paragraph numbering error has been amended.

Associate to Deputy President Lake

Dated 1 June 2022

[2022] FWC 786

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Malcolm Adkins
v

Energy Queensland Limited

(U2021/10511)

DEPUTY PRESIDENT LAKE

BRISBANE, 31 MAY 2022

Application for an unfair dismissal remedy

Mr Malcolm Adkins (the Applicant) filed an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act), alleging that he was unfairly dismissed from his employment with Energy Queensland Limited (the Respondent).

Several attempts were made to resolve the matter through conciliation the final one being 7 Feb 2022. As the matter could not be resolved, directions were issued for the filing of material and a hearing was listed for 29 -30 March 2022. The Applicant was represented by Mr Rohan Tate of Maurice Blackburn Lawyers, while the Respondent was represented by Ms Tamara Lutvey of Ashurst, with Glen Dahlenburg as a witness.

Both the Applicant and Respondent sought to be represented. Granting permission to be represented under s.596 requires the satisfaction of two elements.
· The presence of one of the criteria under s.596(2), does not immediately invoke the right to representation and establishing satisfaction “involves an evaluative judgment akin to the exercise of discretion.”

· Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”3

I exercised my discretion and granted permission pursuant to s.596(2), to both parties, as I was satisfied that the matter would be dealt with more efficiently and effectively, considering the complexity of the matter and the capabilities of the parties. As both parties were represented, it is not unfair to allow representation.

Section 396 of the Act requires that I am satisfied of four matters before considering the merits of the application. Neither party disputed any factor and I am satisfied that the Applicant made his application within the 21 day period required by s.394(2) of the Act, that he was a person protected from unfair dismissal, that his dismissal was not a case of genuine redundancy and that the Respondent is not a small business to whom the Small Business Dismissal Code applies.

BACKGROUND

The Applicant commenced full time employment with a predecessor company in 1982 in an Engineering role and has worked since that period in a variety of roles within the organisation. Most recently his role was as a Senior Network Forecaster in the Strategic Pricing Team based in Rockhampton. In this role he was required to analyse the electricity distribution network to predict the electrical demands on the electricity distribution network assets, to ensure

continuity of electrical supply to Queensland homes and business.

The Applicant was counselled by his Supervisor, Ms Hincksman for inappropriate behaviour on 31 July 2019 and on 23 August 2019. The behaviour in question was his continued use of a term that he had been advised was inappropriate. The Supervisor intended to issue a written warning at this time however the Applicant took sick leave and made a formal complaint regarding his supervisor which then instigated an investigation by the Respondent. The investigation was postponed until after the sick leave period.

The Applicant took sick leave from September 2019 to June 2020, citing that he was stressed and anxious about the warning he had received and the conduct of his supervisor. His General Practitioner provided a series of medical certificates for this period.

The Respondent provided a temporary secondment in the Finance Division and the Applicant returned to work from the period July 2020 to December 2020.

On 5 August 2020 the Applicant was contacted by the Respondent in relation to a bullying claim that the Applicant had previously lodged and informed him that an independent investigation was being undertaken and requesting his assistance in being interviewed as part of the process. The Applicant was interviewed on 11 August 2020.

On 16 September 2020 he was issued with a first written warning regarding 2 incidents in July and August 2019 involving his supervisor, and on 7 October 2020 the Respondent wrote to the Applicant informing him that the investigation had not substantiated his allegations which were centred around his treatment by his supervisor and providing a summary of the findings.

Towards the end of the secondment the Applicant saw two other clinicians; Dr Johan Schoeman, a consulting Psychologist, and Dr Lynne Steele, a Psychiatrist, both of whom provided reports back to the treating doctor and the Union that represented the Applicant. By error, the 24 November 2020 report was provided to the Respondent. In these reports, on 2 December 2020, Dr Sunda provided a response to the Respondents request for assessment of the Applicant’s current health and capacity for work. Dr Sunda stated that the restrictions were permanent.

The temporary secondment concluded in December 2020 and on the 23 December 2020 the Respondent notified the Applicant that it had decided, as a result of the medical information received from the reports, to place the Applicant on the Disability Management Process (DMP) under Clause 11.8 of the Energy Queensland Union Collective Agreement 2017 (the Agreement). The Applicant’s representative refuted this assessment and commenced the dispute resolution processes under clause 2.1.6 of the Agreement.

As part of the DMP the Applicant was provided with a series of sessions with an external provider to assist him in developing a resume and conducting a skills assessment to assist in identifying roles that may suit him.

In March 2021 a vacant Senior Engineer Role was considered, the Applicant was interested in the role, however a detailed skills assessment concluded that it was not a suitable redeployment opportunity. This was reviewed at the request of the Applicant which confirmed the role as unsuitable.

The Respondent assessed 3 different roles for the Applicant. The first, a position in the Grid Investment team. This was deemed as ultimately unsuitable due to the current workload of the team. The second, Investment Scenario Manager. This role was deemed unsuitable as the role was undergoing an approval process for recruitment. Finally, the Respondent considered if there were any vacant position in the Demand and Energy Management group. This was also unsuitable as there were no vacant budgeted positions at the time of the DMP.

At a meeting on the 1 April 2021 the Applicant was informed that no other positions had been identified and as the 3-month time limit for the DMP had surpassed, the process was concluded, and he was now able to apply for an Extraordinary Early Separation Payment of 26 weeks.

On 21 April 2021, the Applicant had lodged a dispute with the FWC regarding the matter of his being placed on the DMP and a conference was held on the 10 May 2021. The outcome was for the parties to continue discussions regarding what adjustments would be required to return the Applicant to his substantive role. A meeting was held on the 14 May 2021 during which the Applicant indicated that he was only prepared to return to his substantive role if he could report to someone outside of his team and that someone else be present for any communications with Ms Hincksman. The Respondent agreed to consider them despite stating that this arrangement may not be possible. Further the Applicant agreed to obtain additional medical evidence regarding his restrictions.

On 21 June 2021 the Applicant provided a medical certificate and letter from his GP which stated that the Applicant was "requesting that he is willing to return to work without restrictions as that seems to be the best way forward".

On 2 September 2021 the Applicant’s representative forwarded two reports from the Psychologist Dr Schoeman and the Psychiatrist Dr Steele, dated 30 August 2021 and 26 August 2021 respectively.

The Respondent notified the Applicant that they had requested further reports from Dr Steele and Dr Schoeman. A further a report of Dr Schoeman of 21 September 2021 was provided to the Respondent. It provided an update in respect of Dr Schoeman’s view of the treatment that she had been undertaking with the Applicant

A further report of Dr Steele of 11 October 2021 was provided to the Respondent. The report made comment regarding the brief that she had been given and gave her views on the Applicant’s prognosis in the workplace

The Applicant was requested to show cause on 18 October 2021 as to why he should not be terminated in circumstances where he could not fulfil the inherent requirements of the role without risk.

On 21 October 2021, the Applicant’s Representative’s correspondence responding to the show cause. That correspondence raised, at a high level, a number of issues with the interpretation of the medical reports by the Respondent, in particular, Dr Steele’s report of 11 October 2021, contending that the conclusion reached by the Respondent that the Applicant could no longer perform his role was incorrect, based upon Dr Steele’s report.

On 28 October 2021, the Respondent directed the Applicant to attend a meeting regarding his employment on 4 November 2021. Ultimately, the Applicant did not attend the scheduled meeting, and, his employment was terminated on 4 November 2021.

THE HEARING

The Applicant gave evidence on his own behalf.

The following witness gave evidence on behalf of the Respondent
Glenn Dahlenburg – Manager Special Projects, Energy Queensland

RELEVANT LAW

Relevant legislation

Section 385 of the Act provides that a person has been unfairly dismissed if the

Commission 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.

Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

SUMMARY OF SUBMISSIONS AND EVIDENCE

Applicant’s Evidence

The Applicant commenced employment with the Respondent in February 1982 and was employed at the time of his termination as a Senior Network Forecaster Engineer. From September 2019 to June 2020 the Applicant was unable to fulfill his usual duties due to psychological stress, which the Applicant states was a result of stress and anxiety brought about by a warning and Ms Hincksman’s conduct. The Applicant’s employment was terminated on 4 November 2021.

The Applicant presented his view clearly, there were some inconsistencies between his testimony and his statement that led me to conclude that he wanted to present a curated narrative of the events that would support his arguments. An example during his testimony can be found at PN 147 – 167 where the Applicant is cross examined on his view and the clinicians view of the Applicant working for Ms Hincksman. This led me to treat his evidence with some caution.

The Applicant states that on 31 July 2019 in a message to Ms Hincksman he wrote “Back shortly, going for a quick fag”, to which Ms Hincksman informed that this may be viewed as offensive by the LGBTQI community. The Applicant stated that this term was used again on the 23 August 2019 when he mumbled “this is a fine example of a fag task”. The statement was made in response to a direction given to him by Ms Hincksman. In his submissions, the Applicant conceded that he should not have made this comment. On the 4 September 2019, the Applicant was disciplined for this conduct and resulted in a first written warning being issued on 16 September 2020.

The Applicant’s evidence includes several medical certificates for a period of medical leave resulting as he was ‘stressed and anxious from the warning process and working environment. The Applicant states that the process caused him significant distress from the period of 4 October 2019 to 1 June 2020 and thereby, the Applicant was unable to fulfill his usual duties.

The Applicant’s latest medical certificate from 1 June 2020 stated the Applicant’s condition was ‘work related stress caused by alleged bullying’.

In the Applicant’s statement, he outlines that upon Applicant’s return to work a formal complaint regarding the alleged bullying by Ms Hincksman was lodged. The investigation was completed on 7 October 2020 and the Applicant was notified that the bullying allegations were unsubstantiated. Further, the Applicant was advised that if he should raise the same or further ‘without substance’ allegations about Ms Hincksman, then the Respondent may deem the complaint to be ‘frivolous, misleading and/or false’.

The Applicant provided further evidence which included correspondence dated 5 June 2020 from Dr Sunda to the Respondent in response to a request from the Respondent for further medical evidence. Dr Sunda’s correspondence indicated that restrictions included that the Applicant should not interact with his supervisor and some colleagues, and these restrictions were permanent.

Further, a medical report was provided to the Respondent from consultant Psychiatrist Dr Steele and clinical psychologist Dr Schoeman dated November 2020. In his report, Dr Sunda stated that after reading the reports he thought that “these restrictions should be permanent”. As a result, the Applicant states that he received correspondence from Mr Glenn Dahlenburg titled ‘Disability Management’ advising that he would no longer be able to be employed in his role as Senior NW Forecasting Engineer due to the level of risk associated with his restrictions and that a redeployment process would be considered.

The Applicant’s Representative contested and did not agree with the disability management assessment by the Respondent and sought further discussions to resolve the issue. The Applicant states he received further correspondence from the Respondent as a result which states

“The permanent restrictions prevent Mr Adkins from returning to his nominal role of Senior NW Forecasting Engineer in the Strategic Forecasting team. Given Mr Adkins is permanently unfit to return to his nominal role in his nominal team, the next step is to refer Mr Adkins to disability management in accordance with Clause 11.8 of the Energy Queensland Union Collective Agreement 2020”

On 21 April 2021, the Applicant filed a F10 Application with the Commission regarding the dispute in accordance with clause 2.1.9 of the Agreement

On the 21 June 2021, a further report was provided to the Respondent from Dr Sunda stating that:

“Malcom has attended an appointment with me today, requesting that he is willing to return to work without restrictions as that seems to him to the best way forward. He plans to see a psychologist, Dr Johan Schoeman, who he has seen in the past, to develop strategies to engage meaningfully at work and manage interpersonal relationships such as to keep the workplace streamlines and minimise stress.”

The Applicant submits that a medical report from Dr Steele dated 26 August 2021 confirms that he was fit to return to work in his substantive position and sought he be returned to this position.

The Applicant states that the Respondent sought further information form Dr Steele and Dr Schoeman.

The Applicant submitted that Dr Schoeman confirmed in his report on 21 September 2021 that there is “no significant risk of aggravation or deterioration in his condition should he return to his normal role” Dr Steele also prepared a report for the Respondent which she state “you have not outlined any concerns Energy Queensland hold with regard Mr Adkins work capacity nor have you outlined any issue of conflict”.

The Applicant states that he then received a ‘show cause’ letter on 18 October 2021 from the Respondent requesting the Applicant submit a response in writing as to why his employment should not be terminated due to his inability to fulfil the inherent requirements of his role.

The Applicant’s Representative provided correspondence sent in response which raised a number of issues including that the decision to consider termination is not based on the recent medical evidence provided to the Respondent

On 28 October 2021, the Applicant was invited to a meeting scheduled on 1 November 2021 to which he states he was unable to attend on account of his health and communicated this to the Respondent in correspondence on the 4 November 2021.

The Applicant stated that he then received correspondence that same day in reply from Mr Dahlenburg confirming his employment with the Respondent was terminated

The Applicant states that it was his intention to work with the Respondent until retirement and made certain plans based on this assumption. He was employed for nearly 40 years and only had one performance/disciplinary issue since commencing employment and found the process distressing, however, states he obtained support to manage this distress and emphasises his belief that he can successfully return to his substantive position and repair any interpersonal relationships at the Respondent’s business.

Applicant’s submissions

The Applicant disputes that based upon the medical evidence, that he does not have capacity to return to work in his substantive role and that he cannot fulfill the inherent requirements of the role.

The Applicant contends that the decision maker failed to take into account, or at least properly test, the medical report of Dr Steele of 11 October 2021. The Applicant asserts that the report, at its lowest, suggests that Dr Steele was not provided enough information by the Respondent to provide a report Respondent that could be relied upon to terminate the Applicant’s employment, or, at its highest, that the Applicant was able to return to his substantive position without restriction.

In the alternative, the Applicant contends that the Respondent failed to properly assess and consider reasonable adjustments, to enable him to return to his substantive role. Including acknowledging that the Applicant is resident and works from Rockhampton in an autonomous manner and his supervisor is based in Brisbane with limited interactions.

Finally, the Applicant contends the medical reports were not fulsome enough to make a decision to terminate the Applicant.

The Applicant submitted that for the above reasons and in recognition of his 40 years’ service, that the termination was harsh.

Respondent’s evidence

Witness statement by Glenn Dahlenburg

The Respondent’s evidence included a statement from Mr Glenn Dahlenburg who is the Manager of Battery Projects at the Respondent and reports to the Executive General Manager, engineering. This role was responsible for making decisions in consultation with subject matter experts that included the decisions made in respect of the Applicant’s employment. He presented in a forthright, straightforward and objective manner. He was credible and had good command of the matter.

Mr Dahlenburg states that the strategic forecasting team in which the Applicant worked was a small team compromising of 11 individuals and that the Applicant reported directly to the line manager Ms Hincksman.

Mr Dahlenburg stated that before commencing his current role he received a handover from Mr Philpotts advising the Applicant had been on personal leave for a period of 9 months and was advised that the Respondent had sought clarification from the Applicant’s General Practitioner regarding his restrictions to which the General Practitioner advised the Applicant was not cleared to return to his full duties and was not to be placed in his previous work group.

Based on records the Respondent’s injury management advisor wrote to Dr Sunda on 4 June 2020 seeking clarification. In reply, Dr Sunda stated that the Applicant was unfit to return to his full duties without restriction and the restrictions were permanent.

The Respondent stated the correspondence from Dr Sunda wrote:

“Malcom is not to interact with the supervisor or a number of his team members, to avoid triggers and minimise stress and given the current mix of members as per Mal, the restrictions are permanent.”

Due to this response, and the allegations of bullying raised by the Applicant, he had been placed in a temporary role, which allowed the Respondent to undertake independent investigations into the allegations and consider the Applicant’s fitness for his substantive role.

Mr Dahlenburg was advised by Mr Phillpotts that the allegations of the bullying complaint were not substantiated, and the investigator noted issues with the working relationship. The outcome letter was sent on 7 October 2020.

Mr Dahlenburg states that shortly after commencing his role he was advised by the HR Business partner that the Respondent had received further advice from Dr Sunda, Dr Steele and Dr Schoeman who advised that the Applicant had a permanent restriction and was unable to work in the strategic forecasting team.

Mr Dahlenburg was aware that the Applicant’s temporary duties were ending in December 2020 and that he would be required to return to his substantive role. This was discussed with the HR Business partner and the injury management manager.

Mr Dahlenburg states that he was conscious of the risk to the Applicant’s health and well-being if he was to return and returning him to his substantive role would be exposing the Applicant to an “unacceptable level of risk”. This is when the decision was made to place the Applicant on the Disability Management Process, which would enable the Respondent to investigate other employment opportunities and provide necessary support to the Applicant.

The Respondent’s evidence outlines the DMP was the best alternative considering the Applicant was unable to return to his substantive role.

A meeting was held on 23 December 2020 to where Mr Dahlenburg advised of the risks associated returning to his role based on the medical information, and that the Applicant would be placed on the DMP. Mr Dahlenburg states that during this meeting the Applicant did not raise any issues with this course of action.

On 23 December 2020, the Respondent received correspondence from the Applicant’s representative seeking for the Applicant to remain in his seconded position and that the Respondent had a duty of care to make reasonable adjustments for Mr Adkins. The Respondent replied the next day informing that the medical information they had been provided informed the restrictions permanently prevented Mr Adkins from returning to his role. Further, the Respondent informed that the secondment will be extended for a short period in light of the time of year.

In the initial stages of the DMP, the role of the Senior Engineer Investigations was considered as a possible option for redeployment.

An Assessment of the role was conducted by Ms Chalmers and Ms Sharyn Scriven to determine the Applicant’s suitability. On 1 April a meeting was conducted to discuss the detail of the role and why it was deemed not to be suitable for the Applicant. Additional roles were considered, being a position in the Grid Investment Team, Investment Scenario Manager and any positions/roles in the Demand and Energy Management Group.

It was noted for all roles that the work requirements, knowledge and experience were significantly different to the Applicant’s current role and would not be considered a reasonable prospect even with training and development. It was further noted that the relevant teams would not have capacity or positions available. The assessments made outlined the redeployments would be likely to lead to failure and have an impact on the Applicant’s health.

The Respondent provided evidence of the suitability assessments for all positions which confirmed the above information.

Based on these assessments and no other roles becoming available the Respondent identified no suitable opportunities for redeployment.

In response to the F10 application and conciliation conference held it was noted that the Respondent and the Applicant would continue discussions to resolve the dispute. Accordingly, Mr Dahlenburg on 11 May 2021 sent an email requesting information to discuss what adjustments would be required for the Applicant to return to his substantive position.

On 14 May 2021 the Applicant’s representative responded advising the Applicant was seeking an adjustment to ‘report to another person’ and was only ‘prevented from having interactions with Ms Hincksman’.

Mr Dahlenburg states that a meeting was held on 14 May 2021 to discuss further options to which he was advised by the Applicant he would only be able to return to his substantive role if there was an ‘intermediary’ between himself and Ms Hincksman. This meeting included discussions regarding redeployment opportunities for the investment portfolio manager position. An assessment was made and this role was deemed unsuitable for the Applicant as a redeployment option. These reasons included:

“the work requirements, knowledge, experience and accountabilities indicates that this role is significantly different to the Senior Forecasting Engineer and other roles undertaken by Mal…

Mals experience has focused on network modelling and forecasting whereas the investment portfolio manager position is focused on application of financial analysis, risk and commercial assessment of projects and implications for the business….

Given the significant difference in Mals role and the requirements for the investment portfolio manager position, it is not considered a reasonable redeployment on the basis there is minimal cross over.”

Mr Dahlenburg agreed with this analysis and this outcome was communicated to the Applicant on 14 May 2021.

In the meeting on the 14 May 2021 the Applicant agreed to obtain further medical evidence.

Mr Dahlenburg stated that a copy of the medical certificate from Dr Sunda on 21 June 2021 was provided and his impression was that

“instead of providing a medical opinion regarding Mr Adkins fitness or restrictions, the medical certificate merely restated what Mr Adkins had reported to Dr Sunda in relation to his request and preparedness to return to work without restrictions.”

Mr Dahlenburg submits that this medical certificate was not regarded as clearing the Applicant as being fit to return to his substantive role without any restrictions. The Medical certificate was concerning to the Respondent as it appeared that the Applicant was seeking to have the Respondent ‘disregard the restrictions he had previously insisted upon.’

The Respondent was concerned if they were to follow this advice, they would be in breach of their duty of care to the Applicant to provide a safe work environment, as the environment he would return to was the same environment in which the permanent restrictions resulted. The medical certificate contradicted further advice received which stated the Applicant was permanently incapacitated to return to his substantive role.

Mr Dahlenburg also stated that the reports provided by Dr Steele and Dr Schoeman in August 2021 raised similar concerns. For similar reasons set out above, the Respondent was not satisfied that the Applicant could perform the inherent requirements of his substantive position at an ‘acceptable level of risk’.

Mr Dahlenburg raised these concerns with the Applicant’s representative Ms Ding on 15 September 2021, enclosing a letter requesting further information from Dr Steele and Dr Schoeman.

Dr Steele’s report stated that the Applicant could return to his substantive role if the relationship with Ms Hincksman was “appropriately managed”.

The Respondent stated that the only way they could manage this relationship would be to implement the accommodations the Applicant had been seeking, to have an intermediary present for all interactions. In the Respondent’s view this was not a feasible option from an operational perspective. This request could not reasonably be accommodated by the Respondent.

The Respondent stated further concerns that the Applicant initially was adamant he was unable to return to his role without accommodations and provided medical evidence for a ‘permanent’ restriction, then later suggesting he could return without accommodations. This raised concerns to the Respondent which were compounded with concerns that the two-year period he had not worked would raise difficulties upon his return to work.

As a result, a show cause letter was provided to the Applicant on 18 October 2021. A response was received on 21 October 2021. The Respondent was satisfied that the response did not provide:

“any additional information or consideration upon which I (the Respondent) could be satisfied that Mr Adkins could perform the inherent requirements of the senior NW forecasting engineer position at an acceptable level of risk”

The Respondent could not be satisfied from a safety perspective that the Applicant could return to his substantive position and was terminated on 4 November 2021.

Respondent’s submissions

The Respondent denies that the Applicant’s dismissal was unfair. The Respondent contends that given the totality of all the evidence and significant medical opinions by diverse clinicians, the decision to terminate the Applicant’s employment was based on a valid reason and was otherwise not harsh, unjust or unreasonable.

On about 5 September 2019, the Applicant attended a disciplinary meeting and received a first written warning regarding his use of the term "fag" in a conversation he had with his supervisor Candice Hincksman (Manager Network Forecasting) on 31 July 2019 and again on 23 August 2019.

The Applicant commenced personal leave 5 September 2019, in part due to his perceptions of bullying conduct from Ms Hincksman. A series of medical certificates were received from Dr Sunda, his general practitioner, through the period of September 2019 through to 2 June 2021 which stated he was receiving medical treatment and was unfit to continue his usual occupation.

He was then referred to a Psychologist, Dr Johan Schoeman by his treating Doctor to assist in the Applicant’s treatment. Dr Schoeman stated in response to questions from the Applicant’s representative that he ‘is not aware of any significant symptoms which would prevent him (Mr Adkins) from returning to his substantive role…’

On the 1st June 2021 the GP certified on a workers compensation medical certificate that that he was suffering from work related stress and would be able to return to normal duties from the 3 June 2020 with a notation that the Applicant was ‘not to be placed in previous work groups to avoid triggers and minimize stress” The Respondent wrote back to the GP to confirm that the Applicant was cleared to return to work without restrictions from 3 June 2020, noting the requirement that he not be returned to his previous workgroup. The workers compensation claim was later rejected.

The response from Dr Sunda on the 5 June was that he was not cleared to return to full duties in his substantive role without restrictions. He wrote further affirming the restriction that “he was not to be placed in his previous workgroup to avoid triggers and stress. He went on to state that he was not to interact with his supervisor and a number of team members, to avoid triggers and stress.” And further that “given the current mix of members as per Mal, the restrictions are permanent.” He went on to say he could work from home and reinforced that he not be in contact with his Supervisor and team members.

The Applicant was then provided with a seconded temporary role in the Finance Division from July 2020 to December 2020.

In June 2020, the Respondent engaged an external investigator to conduct an investigation into the allegations made by the Applicant in relation to bullying by Ms Hincksman and members of the Strategic Forecasting team. On 7 October 2020, the Respondent issued an outcome letter to the Applicant following the conclusion of the external investigation into his allegations.

The external investigator found the allegations of bullying were not substantiated and that the Applicant's complaint was "bordering on vexatious". Relevantly, the outcome letter provided

“… It is noted that the Investigator assessed that your complaint was a series of assertions, perceptions and rehashed matters with little supporting evidence. When asked at the interview to provide specific evidence, you were unable to. Further, the investigator found that for you to raise concerns that have been referred to a senior manager or (sic) the Fair Work Commission and previously resolved, is inappropriate and bordering on vexatious. The investigator also advised that there was information provided to him through the investigation in relation to you being unable to accept Ms Hincksman because she is a female and not an engineer. While this allegation was outside the scope of the investigation and was not reviewed further, the Investigator found that it was unable to be dismissed without consideration. This information, on the face of it, is of concern to Energy Queensland. …”

On or around 13 November 2020, the Applicant was referred by his GP to a Psychologist and a Clinical Psychiatrist who provided reports which were forwarded to the Respondent. The Psychiatrist report discussed the Applicant’s established diagnosis of Bipolar disorder (which had not been the subject of any note by either the Respondent or the Applicant in this history but was a background matter). The Psychiatrist did make comment “there is certainly a risk of deterioration in his mental state if he is placed in a pressured or stressful situation and he clearly finds working with his boss in his substantive position. A return to this post may well precipitate illness in the context of his untreated mental health condition.” This is a reference to his underlying bipolar disorder which on the report notes is bipolar affective disorder which is untreated as was his alcohol dependency.

The Doctor further contemplates that on the grounds of his bipolar affective disorder and his alcohol dependency both untreated it would be reasonable to state that a return to a pressured stressful situation could clearly precipitate deterioration in his mental health. Note the Dr had not been provided with any information from the Respondent and was basing her comments upon the Applicant’s narrative and symptoms. Also note that Dr Steele is known to the Respondent and has been utilised by the Respondent to provide reports on other employees who have been sent to her for Independent Medical Examination.

The Psychologists report (#2) the psychologist reports that the Applicant has been positively engaged in therapy and made progress however still feels uncomfortable and unsafe reporting to his former manager. He states that he would like to continue to treat the Applicant and suggests that the secondment be continued rather than a return to his previous/substantive role.

Disability Management Process

A meeting was held on 23 December 2020 and was followed by a summary letter to the Applicant from Mr Dahlenburg which stated:

“Given the medical information available to energy Queensland the level of risk associated with return you to the role of senior and doubling forecasting engineer in the strategic forecasting team, it has been determined that you are no longer able to be employed in this role I had acceptable level of risk. The Manager had determined that the Respondent would initiate the disability management process as per the Certified Agreement. Under this policy once the process had been commenced the Respondent was obliged to identify if there was an appropriate redeployment opportunity. Further if no redeployment opportunities were identified that separation options may need to be discussed.”

The Applicant, through his union representative, Professionals Australia, disputed the assessment and interpretation of the diagnosis provided by his medical practitioner and proposed that he reasonably requires he be placed in a group or department outside of the stressful environment. Further, that this requirement did not equate to a disability requiring management under clause 11.8 of the agreement. The Representative requested further discussions be held in January 2021.

The Respondent replied and reinforced their view that given the medical reports that the restrictions on the Applicant were permanent and that he would be unable to return to his nominal/substantive role of senior Northwest forecasting engineer in the strategic forecasting team and once again asserted that they were to manage him under the disability management process in clause 11.8

On the 7 January 2021, the Respondent informed the Applicant that the secondment had ended on the 30 December 2020 and the disability management program had now commenced.

Clause 11.8.2 of the Energy Queensland Union Collective Agreement 2017 (The Agreement) states”

“On referral, the case manager will assess case status and in particular determined that genuine attempts have been made to rehabilitate employees to their preinjury role…

When returning to usual duties is excluded as an option, the case manager will explore alternative placement opportunities, provide support and appropriate resources and document the actions taken.’

Alternative placement strategies include ‘Reasonable modification of the employee’s usual duties’, ‘job skills assessment’, ‘reskilling for other duties including retraining’ and ‘placement support’.”

As part of the process, the Respondent provided an external consultant to assist the Applicant with resume development, in obtaining a functional report and skills assessment and received coaching regarding networking and interview skills.

As part of the DMP, the Respondent sought to identify any appropriate redeployment opportunities for the Applicant. Two possible redeployment opportunities for the Applicant were identified which were at his Professional & Managerial Grade 3 classification level, being that of Senior Engineer Investigations and Senior Protection Engineer. A third position was identified the following the conclusion of the Disability Management Process; Investment Portfolio Manager.

Each of the identified roles were considered in detail and a suitability matrix was completed by HR and the relevant line manager. The outcome of those assessments was that none of these positions were identified as suitable redeployment opportunities.

In his statement, Mr Dahlenburg informed regarding the roles considered during the DMP:

“The difficulty in finding an appropriate redeployment opportunity for Mr Adkins was that the difference between the knowledge and experience he had attained in his substantive Senior NW Forecasting Engineer role compared to the knowledge and experience that was required of other PM3 roles was significant. Mr Adkins' experience over the past 20 years had been focused around data and analysis, rather than on technical engineering expertise. Further, Mr Adkins did not hold RPEQ registration, which was a further barrier to his consideration for Senior Engineer roles.

I was satisfied that unfortunately, EQL did not have any suitable redeployment opportunities for Mr Adkins.”

On the 16 April the Respondent wrote to the Applicant and his Representative as a follow up to a meeting held on the 1 April 2021 where the Respondent confirmed that no other position had been identified and as it had been three months since the Disability Management Process had been initiated that the process had concluded and that he was eligible for an Extraordinary Early Separation Payment of 26 weeks.

Adjustments to role

The Applicant requested that as a suitable adjustment to be considered that he return to his role but to report to another person as an "intermediary" so that he would not have to report to Ms Hincksman. Further he advised the Respondent that he no longer had any issue with any other individuals in the Strategic Forecasting team,

Again, Mr Dahlenburg stated that:

“My strong impression during the meeting was that while Mr Adkins had indicated a willingness to return to his substantive role, he was only prepared to do if there was an intermediary between him and Ms Hincksman so that they would not have any contact and that there at least one other person present whenever he was required to have a discussion with Ms Hincksman. The suggestion on behalf of Mr Adkins was that Steven Sinini (Senior Engineer Connections Assessment) would be an appropriate intermediary, even though this would involve Mr Adkins reporting to someone outside of Strategic Forecasting.”

My initial thoughts were that these adjustments would be difficult to implement and manage effectively and would potentially create challenges and additional workloads for Mr Sinini. The Strategic Forecasting team were also in a process of updating their systems, methodologies and processes and moving to a data centric methodology approach away from relying on existing tools. I was concerned that the complexity of changing work practices and using reporting lines outside the group would not be sustainable and would create further tensions. However, I agreed that EQL would consider the proposed adjustment.”

Further redeployment opportunity

A further role came under consideration, the Investment Portfolio Manager, and a suitability assessment was conducted by HR and the relevant line manager who undertook a detailed consideration of the selection criteria, knowledge, skills, ability and requirements of the role as well as key accountabilities. The conclusion was that the position would not be a suitable redeployment opportunity for the Applicant.

Further Medical Reports

The Applicant agreed to provide the Respondent with further medical evidence regarding his restrictions and they received a medical certificate from Dr Sunda stating

“This letter is to inform you that Malcolm has attended an appointment with me today, requesting that he is willing to return to work without restrictions as that seems to him the best way forward. He plans to see a psychologist, Dr Johann Schoeman, who he has seen in the past, to develop strategies to engage meaningfully at work and manage interpersonal relationships such as to keep the workplace streamlined and minimise stress.”

The Respondent regarded this certificate as one that did not actually express the Doctors medical opinion of the Applicant’s capacity to return to work and was contradictory to the medical certificate provided one year earlier that indicated that the Applicant had a permanent restriction from reporting to Ms Hincksman and that he had to avoid triggers and stress. The Respondent requested further medical evidence that would support that there were no longer any permanent restrictions in place.

Dr Steele’s report stated

“… I can see no reason from clinical assessment on 16th August why his bipolar disorder of longstanding would preclude him from performing his substantive role. He has been performing this role for many years prior with the same diagnosis. …’

… I have no particular concerns raised by the employer to address in relation to his role description however can certainly confirm with you that he has longstanding bipolar disorder. He presents as currently stable and euthymic with no evidence of relapse of his medical condition that I would consider would preclude him from performing his role within the workplace. …”

Dr Schoeman’s report indicated

“… He presented with symptoms associated with an Adjustment Disorder with mixed emotional features, superimposed on a longstanding history of Bipolar-Affective Disorder. The Adjustment Disorder was likely in response to alleged bullying, harassment and intimidation by a manager at Energy Queensland. It was further amplified by the loss of his partner and the associated loneliness and isolation which he experienced both at home and at work. He indicated that he felt quite isolated and marginalised by the dynamics at work and equally lonely and isolated at home at that time. …

The symptoms associated with the Bipolar-Affective Disorder have been present for many years. … The symptoms have however never significantly stifled his ability to perform his duties in his substantive role as Senior Network Forecasting Engineer with EQL. I am not aware of any significant symptoms which would prevent him from returning to his substantive role as Senior Network Forecasting Engineer with EQL. …’

These reports were provided to the Respondent via a referral from his GP/Union and the Respondent found the reports lacking in the requisite detail they required to make an informed decision. The reports focused upon his underlying Bipolar disorder which had not been a factor in the Respondent’s consideration regarding his capacity for work.

The Clinicians were also not provided with objective workplace context no details of the Applicant’s substantive role and responsibilities, the current duties of the substantive role and the requisite skills required of the Senior NW Forecasting Engineer position. The reports did not examine or comment on the Applicant's previously reported permanent restrictions and whether any adjustments were required. Accordingly, the Respondent could not be satisfied on the basis of these reports that the Applicant was capable of performing the inherent requirements of his substantive position without restriction, or that the risks to the Applicant or others would be at an acceptable level if he were permitted to return to his substantive position

The Respondent identified several shortcomings with the evidence and material put before the clinicians which meant that the reports were not a faithful interpretation and diagnosis of the Applicant’s prospects of a return to work.

Medical Reports #3

The Respondent wrote to both clinicians in a common letter in an effort to get an accurate and fulsome diagnosis or prognosis of a return to work for the Applicant who had been unable to return to work for over 12 months as a result of a permanent restriction being placed upon the Applicant by his treating doctor Dr Sunda whom had been the treating GP for the Applicant from the beginning of this matter.

The Respondent drafted a letter to the two clinicians requesting further information and to answer several questions. The Psychiatrist noted that the information provided by Respondent was not comprehensive and seemed to contain references to other communications that the Clinician was not aware of or only aware of through the Applicant’s recall.

On 11 October 2021, Dr Steele (Consultant Psychiatrist) issued a supplementary report (Dr Steele's Third Report) opining (amongst other matters) that (emphasis added)

“… Mr Adkins has initially advised me in November of 2020 that he perceived there had been bullying within the workplace from his boss and that WorkCover had rejected the claim, an internal investigation from Ergon had apparently stated that his bullying claim was vexatious, according to Mr Adkins. I am not privy to any further information about the relationship within his previous supervisor and team other than it would seem unlikely by the description, if this is an accurate reflection, that it would be beneficial for the supervisor or Mr Adkins to continue to work closely together within one another given what I would assume is interpersonal conflict. This would be in the context more of perceived or alleged interpersonal difficulties. …

Mr Adkins condition is unmedicated at his choosing and can certainly be aggravated or deteriorated in the context of stressful circumstances. If at all possible I think it would certainly be beneficial for him to return to a different team with a separate supervisor in order to minimise conflict and potential deterioration of mental state, however I can see no reason why his discrete bipolar disorder of long standing would preclude him from performing his substantive role if this relationship was appropriately managed. …

Returning to any situation of conflict is not without risk of deterioration in mental state, however his bipolar disorder alone currently does not preclude him from performing his role.…

Mr Adkins has been clear in his assessment on the 24th November 2020 with me that he feels the relationship with his line manager, who I am assuming is Ms Hincksman, has broken down. As such I would consider from a management perspective the two (2) options would of course be to manage this relationship or to move Mr Adkins to a different team. Mr Adkins clearly finds working with his line manager very stressful and as such I cannot exclude that there may be a risk of deterioration in this context. It would make more sense that he is transferred to a a separate team if this is something Ergon can offer if the relationship itself cannot be resolved.

(Emphasis added)

The third report of Dr Schoeman's stated there were no significant risks of aggravation or deterioration to the Applicant's condition if he were to return to his substantive position. This seemed to be contrary to the medical opinion previously which stated that this was a permanent impairment. Further that the Applicant had recently been requesting redeployment into an alternate role or for him to report to his supervisor through an intermediary for all interactions.

The Respondent was not satisfied on the basis of Dr Schoeman's Third Report that the risks to the Applicant would be at an acceptable level if he were to return to his substantive position

Although the external investigation had found the allegations concerning Ms Hincksman's conduct to be unsubstantiated, the Applicant maintained negative perceptions of Ms Hincksman's reasonable management action. This was evident as a result of the Applicant having recently and proactively pressed for redeployment into another role or for an intermediary to be permanently appointed so that he would not be required to report to or engage with Ms Hincksman. In those circumstances, the Respondent submits that it was reasonable to conclude that the risks to the Applicant would not be at an acceptable level if he were to return to his substantive Senior NW Forecasting Engineer position and report to and interact with Ms Hincksman.

The Respondent also submits that it was reasonably satisfied that having an intermediary present for all interactions with Ms Hincksman or having him report to another person outside of Strategic Forecasting, were not feasible, practice or reasonable measures to implement in all of the circumstances. The Respondent reasonably required the Applicant to interact with and report to Ms Hincksman as an inherent requirement of the Senior NW Forecasting Engineer position.

Further, given the significant changes to the duties and role of the Senior NW Forecasting Engineer since the Applicant had last performed that role, the Respondent could not discount the potential additional stress to the Applicant from returning to that role and considered that this would further expose him to an unacceptable level of risk.

In all circumstances, the Respondent could not be satisfied from a safety perspective that the risks to the Applicant would be at an acceptable level if he were permitted to return to his substantive position. As it was also satisfied that no reasonable adjustments could be made and that there were no suitable redeployment opportunities, the Respondent decided it was appropriate to require the Applicant to show cause why his employment should not be terminated on the basis that he was unable to perform the inherent requirements of the Senior NW Forecasting Engineer position.

Show Cause and Termination

On 18 October 2021, the Respondent issued a show cause letter to the Applicant asking him to why the Respondent should not terminate his employment due to incapacity. A response through his representatives was provided on the 21 October 2021 which disputed that the Applicant was unable to perform the inherent requirements of his substantive position. The Respondent considered the response including the length of service that the Applicant had however they were convinced that there would be an unacceptable level of risk if the Applicant returned to his substantive position reporting to Ms Hincksman. The Respondent determined that termination of the Applicant’s employment on the ground of incapacity was appropriate in all the circumstances.

Termination

The Respondent organised for an outcome meeting with the Applicant to provide the decision in person however the Applicant declined the meeting on the basis that he was unwell. The Respondent on the 4 November 2021 sent via email advising that it had decided to terminate his employment with immediate effect on the basis that the Applicant was “unable to fulfil the inherent requirements of [his] position without risk”. He was provided 5 weeks’ pay in lieu of notice.

CONSIDERATION

I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me.[1]

s.387(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)

To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced.”[3] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.

Inherent requirements

In examining the inherent requirements of a role it is clear that matters of health and safety should be included – it is a particular application of the inherent requirement to perform one’s role with reasonable care and skill. This was made clear in X v Cth,: [4]

“Similarly, carrying out the employment without endangering the safety of other employees is an inherent requirement of any employment. It is not merely "so obvious that it goes without saying” - which is one of the tests for implying a term in a contract to give effect to the supposed intention of the parties. The term is one which, subject to agreement to the contrary, the law implies in every contract of employment. It is but a particular application of the implied warranty that the employee is able to and will exercise reasonable care and skill in carrying out his or her duties.

It would be extremely artificial to draw a distinction between a physical capability to perform a task and the safety factors relevant to that task in determining the inherent requirements of any particular employment. That is because employment is not a mere physical activity in which the employee participates as an automaton. It takes place in a social, legal and economic context. Unstated, but legitimate, employment requirements may stem from this context. It is therefore always permissible to have regard to this context when determining the inherent requirements of a particular employment.
…
Nevertheless, contract or statute to the contrary, performing the duties of the employment without unreasonable risk to the safety of fellow employees is, as a matter of law, an inherent requirement of employment… (emphasis added)

It follows from both the reference to inherent requirements and the reference to particular employment that, in considering the application of s 15(4)(a), it is necessary to identify not only the terms and conditions which stipulate what the employee is to do or be trained for, but also those terms and conditions which identify the circumstances in which the particular employment will be carried on. Those circumstances will often include the place or places at which the employment is to be performed and may also encompass other considerations. For example, it may be necessary to consider whether the employee is to work with others in some particular way. It may also be necessary to consider the dangers to which the employee may be exposed and the dangers to which the employee may expose others.”
(Emphasis added)

In the context of this matter the Respondent contends that it was an inherent requirement of the role for the Applicant to be able to perform his role in a safe manner and not put at risk himself or other employees. The risk they have identified is that they were informed by the GP Dr Sunda that there were permanent restrictions upon the Applicant’s returning to work which were, that he should not report to the supervisor of his substantive role. On several occasions the GP reinforced this restriction and the Psychiatrist maintained in her final report that there was a risk in returning him to his substantive role and that it would be preferable that he be placed in another role.

The Respondent had provided a seconded role for 6 months and at the conclusion the Applicant still indicated he was unable to return to his role and the Respondent then determined that they would place him on the Disability Management process. The decision at that point was that he was no longer able to perform in his role without restrictions. The Respondent did request from the Applicant what would be regarded as reasonable adjustments and the suggestion of placing another person in between the Applicant and his Supervisor was considered but ultimately rejected as being, unworkable and not aligned with teamwork amongst the workgroup.

The Respondent asserts that the Applicant at this point, when faced with no alternatives to maintain his employment with the Respondent sought a medical certificate/evidence from his GP. The GP responded by recording on medical letterhead that the Applicant had indicated that he wished to return to work with no restrictions. The GP provided no medical opinion as to his fitness to return or that the permanent restrictions were now lifted. The GP did not provide a medical clearance just reported the wishes of the Applicant who may have realised that a return to his original position with no restrictions was the only alternative he had to maintain employment.

Two further medical reports from the Psychiatrists and the Psychologist did not traverse the workplace issues with any detail rather the Psychiatrist focused upon the impact that a return to work may have on his underlying Bipolar disorder. The Bipolar had not been the subject of the matter at issue with restrictions rather it was stress and anxiety experienced by the Applicant.

In CSL CSL Limited T/A CSL Behring v Chris Papaoinnou [2018] FWCFB 2005 the Full Bench were faced with a diversity of view between Lion and Jetstar regarding medical evidence (references)

“[76] Contrary to the proposition in Lion Dairy, there is no basis to leave the resolution of any conflict in medical opinion to the employer. The Commission is frequently called upon to resolve evidentiary conflict, including the assessment of expert evidence.

[77] The tension between Lion Dairy and Jetstar is to be resolved by the adoption of the approach in Jetstar. 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.”

I adopt the approach and will make my own evaluation of the medical evidence to support whether the termination was a valid one.

Medical evidence

It is necessary to consider the medical evidence.

The medical information before me commences with a generic medical certificate from Dr Anil Sunda, General Practitioner at the Mandalay Medical Centre. This medical certificate was completed on 4 October 2019 and certified that the Applicant “WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION” and was receiving medical treatment for the period 9 September 2019 to Friday 1 November 2019.

On 31 October 2019 Dr Sunda completed a further medical certificate. Again, Dr Sunda certified the Applicant as “UNFIT TO CONTINUE his USUAL OCCUPTATION” and was receiving medical treatment for the period 2 November 2019 to 2 December 2019. And so it continued with further medical certificates for:

3 December 2019 to 2 January 2020;
3 January 2020 to 2 February 2020;
3 February 2020 to 2 March 2020;
3 March 2020 to 2 April 2020;
3 April 2020 to 2 May 2020; and
2 May 2020 to 2 June 2020.

From about 1 June 2020 the Applicant was referred by Dr Sunda to Dr Schoeman, Psychologist. At the same time, Dr Sunda completed a workers’ compensation medical certificate. The certificate certifies that Dr Sunda saw the Applicant on 1 June 2022 and that the Applicant was diagnosed with suffering from “work related stress”. The certificate continues on to say that the Applicant first saw Dr Sunda about this condition on 4 October 2019 and stated that the date of injury was 9 September 2019. In Dr Sunda’s opinion, the Applicant’s description of the cause of the diagnosed injury, being “work related stress from alleged bullying” was consistent with the diagnosis.

By this certificate, Dr Sunda indicated that the Applicant required treatment from 1 June 2022 to 1 September 2020 but had capacity to “return to normal duties” from 3 June 2020. However, under the heading “Medical management plan” and a space for any further information, Dr Sunda has stated “Not to be placed in previous work group to avoid triggers and minimise stress”.

Shortly after, the Respondent wrote to Dr Sunda seeking clarification concerning the position. In that correspondence, a number of questions were put to Dr Sunda for response. Those questions, and Dr Sunda’s handwritten responses are as follows:

“Doctor in your opinion:-

Is Mal cleared to return to full duties of his nominal role/working nominal hours/working in nominal location without restriction?

YESNO (Dr Sunda has circled NO)

Is the notation on the medical certificate for Mal to “not be placed in previous workgroup to avoid triggers and minimise stress” a restriction?

(Dr Sunda has handwritten) YES”

The request then sets out a table with various questions and answers. Without recreating the table the questions and answers are as follows:

Is this restriction about –

Who Mal reports to / Mal’s direct supervisor? (Dr Sunda has circled “Yes”)

Who Mal interacts with? (Dr Sunda has circled “Yes”)

Working within Strategic Forecasting Team? (Dr Sunda has circled “Yes”)

Working within the Group Strategy or SASP Business Unit? (Dr Sunda has circled “No”)

If you replied yes to any of the 4 points above please detail what the restrictions are about and to what extent are the restrictions related to people involved?

“Malcolm is not to interact with the supervisor and a number of the team members, to avoid triggers and minimise stress.”

Is this a temporary or permanent restriction. If it’s temporary, within what recommended timeframe could Mal recommence dealing with his direct supervisor and / Strategic Forecasting Team / Group Strategy or SASP Business Unit –

“Given the current mix of members as per Mal, the restrictions are permanent.”

Does the restriction relate to the work Mal undertakes? (Dr Sunda has circled “No”)

Do you approve Mal to work from home until 13/7/2020 in line with current Energy Queensland CoVID 19 business restrictions? (Dr Sunda has circled “Yes”)

Post 13/07/2020 there is an expectation for the immediate future that the business directive/expectation is one designated week each fortnight to be work from home. Please advise if you have restrictions for Mal’s work location for the other week in the fortnight:-

“Malcolm is not to interact with the Supervisor and a number of the team members during the other week in the fortnight.”

On 2 December 2020, Dr Sunda responded to a request for an updated assessment from to the Respondent, stating:

“This [is] in response to your recent email for assessment of Malcom’s current health and capacity for work.

Malcom has seen Dr Lynne Steele, consultant Psychiatrist, whose letter is attached for your perusal.

I am also attaching the Psychologist’s report for your information.

Recanting the restrictions for Malcom’s return to work, there were: “not to interact with his supervisor or a number of his team members, to avoid triggers and minimise stress” and “given the current mix of members as per Mal the restrictions are permanent”.

After reading the reports (mentioned above), I think that these restrictions should be permanent. Dr Lynne Steele is also happy to provide further clarifications if you so need.”

It is possible that Dr Sunda was “recounting” the restrictions referred to in the earlier correspondence rather than “recanting” them. Nothing turns on this.

A letter or report of Dr Lynne Steele, Consultant Psychiatrist, was attached to Dr Sunda’s letter. Because of its importance, it is necessary to set out Dr Steele’s letter in full, with formalities omitted:

“Many thanks for the referral of this lovely 60-year-old gentleman who has an established diagnosis of bipolar affective disorder.
He was originally admitted with a hypomanic episode under regulation to the PA in Brisbane in 1989 and had contact with a psychiatrist for most of that year, however subsequently has been off medications since then. He describes no particular episodes of depression but recurrent episodes of elevation. The episode in 1989 was certainly grandiose and he advised me that he “basically thought I was Jesus Christ” and following discharge from the PA thought he was “a very special person in the world and that made him a target” and was subsequently quite paranoid.

He is aware and I can certainly see from the description from the junior doctor who reviewed him at the Base that he was quite elevated in June of last year also and I wonder whether or not this goes some way to explain his more reckless and inflammatory comments that he describes making in the workplace which have led to a complaint about his behaviour.

Malcolm alleges bullying within the workplace from his boss and you are aware that he has been moved to an alternative team despite WorkCover rejecting his claim and an internal investigation from Egon recently apparently stating that his complaint about bullying was vexatious. Malcolm has been offered redundancy however he does not want to accept it as he has no social life and described wanting to “work forever” as he would rather be “shitty at work”, as he put it, than “depressed at home”. His social life involves clubbing until 3 a.m. in the morning and he drinks 2-4 bottles of vodka or gin per week.

I spoke to Malcolm about his diagnosis and his presentation, particularly bipolar and alcohol dependency. He was certainly well kempt at review and presented with a blank eye that he had no idea as to why he had. Speech was spontaneous and normal in tone with occasional pressure and a little disjointed and mildly tangential in form and rhythm. There was no evidence of psychotic phenomenon nor any risk issues, however he certainly presented with dipolar affective disorder and alcohol dependency both untreated. I offered medication today and he declined advising that he does not need it and I have certain made him aware that bipolar mania can be triggered by stressful situations and he would be wiser to take care of his mental health. Certainly he is also drinking far too much which will no doubt affect his mental health and physical.
He advises me he is working from home but has been given no tasks since October. There is certainly risk of deterioration in his mental state if he is placed in a pressured or stressful situation and he clearly finds working with his boss in his substantive position pressured. A return to this post may well precipitate illness in context of his untreated mental health condition.

Malcolm also alleges bullying in his position, however this of course would need to be substantiated by investigation and he is keen to seek further legal redress despite the recent outcome from the Ergon investigation apparently stating that his complaint is unsubstantiated.

Certainly on the ground of his bipolar affective disorder and his alcohol dependency both untreated it would be reasonable to state that a return to a pressured stressful situation could clearly precipitate deterioration in his mental health, however it would of course be a decision from Ergon with regards whether or not they support him with a move to a different permanent position elsewhere, be this through formal interview or otherwise.

Ergon are not aware that he is attending here today and I am certainly more than happy to respond to any report they may request with Malcom’s consent, however in the meantime I have advised Malcolm that I will reply to you.

I certainly think he is unwise to not be on a mood stabiliser, however clearly he has managed to control his hypomanic episodes since the index episode in 1989 without further hospital admission. His alcohol dependency certainly needs managed by Malcolm is not in a position where he feels he needs to consider treatment for either and I certainly do not have grounds to regulate him in this regard. I am more than happy to see him at any point in the future however and hope this is of some assistance.”

Dr Sunda also attached a report of Johan Schoeman, Clinical Psychologist, dated 13 November 2020:

“Malcolm presented with symptoms generally associated with an Adjustment Disorder with depression and anxiety. These symptoms appear to be in response to alleged bullying, harassment and intimidation by a manager at Energy Queensland. It is further amplified by the loss of his partner and the associated loneliness and isolation which he experienced both at home and at work. He indicated that he felt quite isolated and marginalised by the dynamics at work and equally lonely and isolated at home.

I am aware of the fact that his Workcover claim has been rejected and his allegations found to be unsubstantiated. Malcolm has indicated that he is comfortable with the new team arrangements and reporting structure provided by his employer since his return to work. Malcolm however still feels uncomfortable and “unsafe” reporting to his former manager.

Malcolm appear to be a well experienced employee with an ongoing strong work-ethic and attention to detail.

He has positively engaged in therapy and has made positive progress as a result. There are unfortunately no quick fix solutions to these complex problems.

Malcolm unfortunately remains significantly symptomatic. He appeared to have been self-medicating by an increase in alcohol intake.

I have now completed four sessions under his current GP Mental Health Plan.

In light of the above-mentioned and ongoing symptoms, consideration of the approval of further treatment would be appreciated. I am further of the opinion that it would be in his best interest to continue with the current reporting and team arrangements at work.”

The next medical information, I refrain from using the word opinion on purpose, in the timeline was that of Dr Sunda. On 21 June 2021, Dr Sunda informed the Respondent:

“This letter is to inform you that Malcolm has attended an appointment with me today, requesting that he is willing to return to work without restrictions as that seems to him the best way forward. He plans to see a psychologist, Dr Johann Schoemann, who he has seen in the past, to develop strategies to engage meaningfully at work and manage interpersonal relationships such as to keep the workplace streamlined and minimise stress.”

From this, it seems to me, Dr Sunda’s opinion has not changed. If it had, Dr Sunda did not convey as much. What Dr Sunda has done is to convey the Applicant’s request.

In August, the Applicant sought further opinions of Dr Steele and Dr Shoeman. Again, it is necessary to set out a large portion of those opinions.

As at 26 August 2021, Dr Steele provided the following opinion:

“Thank you for your background detail with regards Mr. Adkins personal leave in September of 2019 due to mental health issues. I understand on 23 June, 2020 he returned to work in his substantive role within a different team. His secondment there concluded on the 30^th December, 2022 and he is keen to return to work in his substantive role on the strategic forecasting team.

I shall address your questions, however by way of summary I advise I met with Mr. Adkins on the 16^th August 2021 for the purpose of addressing the questions in this report. Prior to this Mr. Adkins has been reviewed by myself on one other occasion on the 24^th November, 2020 and he has neither seen myself nor required treatment from myself in the intervening period.

Mr Adkins attended on the 16^th August and gave me a history and update since our previous appointment. He advised, as you state, he had a 6-month return to work (at some points working from home during COVID) with a separate team and he feels that he managed this very well and that no issues were raised by management.

He advised that on the 21^st December he was informed that disability management process would be initiate but informs me that no particular reason was given as to why and no areas of concern in relation to his work were raised. He described that in the intervening nine (9) months since review with myself he had been fine, travelling well, that health was stable and in the context of current paid leave and disputing the management process he essentially was travelling “as well as could be expected”.

He advised me that there had been no mood instability over the last nine (9) months, he had reduced his alcohol intake and had had no relapse of bipolar disorder illness.

At examination and assessment on the 16^th August he presented as stable. In the context of mental state, there was no evidence of thought disorder nor of any psychotic phenomena in content of thought. Mood was euthymic and reactive with no major risk issues and no evidence of either depression of hypomania. He continues to consider that he can manage and maintain stability without any mood stabiliser medication and as such remains on no prescriptions. Given he has capacity to make decision about his health care he is clearly entirely within his right not to commence medications at this point in time should he deem it preferable for him not to do so.

I shall address your questions:-

1. Is Mr Adkins currently suffering from any medical condition(s) that preclude him from performing his substantive role of Senior Network Forecasting Engineer on the Strategic Forecasting team?

I do not consider so. He has a long established diagnosis of bipolar affective disorder and certainly in the past has admitted to drinking alcohol heavily which he advises me has not reduced. In the context of mental health assessment today however I can see no reason from clinical assessment on the 16^th August why his bipolar disorder of longstanding would preclude him from performing his substantive role. He has certainly been performing this role for many years prior with the same diagnosis.

2. If yes to Question 1, would it be possible for Mr Adkins to perform his substantive role, provided that EQL made reasonable adjustments?

Please see above.

3. If yes to Question 1, what are the reasonable adjustments?

Please see above. I think one of the difficulties here is that the workplace have allegedly not been clear with regards what their concerns raised in terms of perceived difficulties performing his substantive role are. Malcolm advises that he was not given any indication with regards concerns raised when his return to work in a substantive role with a different team, which he felt progress well, was concluded in December of last year.

As such a review today I have no particular concerns raised by the employer to address in relation to his role description however can certainly confirm with you that he has longstanding bipolar disorder. He presents as currently stable and euthymic with no evidence of relapse of his medical condition that I would consider would preclude him from performing his role within the workplace.”

Pausing there for a moment. The first paragraph of Dr Steele’s response to the third question is unclear. If Dr Steele is indicating it is difficult for her to form an opinion because it’s not clear what the Respondent’s concern is, then Dr Steele needn’t have looked any further for such concern than her 24 November 2020 opinion. As at that time, Dr Steele’s opinion was:

· a return to a pressured stressful situation could “clearly” precipitate deterioration in the Applicant’s mental health and

· the Applicant “clearly” finds working with his boss in his substantive positions pressured.

If Dr Steele’s confusion is why the Respondent is unwilling to leave the Applicant in his seconded position it is unclear to me how that would impact the medical issue in question. The medical issue in question, the question asked of Dr Steele, is whether the Applicant can perform his substantive role of Senior Network Forecasting Engineer on the Strategic Forecasting team.

I further note that Dr Steele’s opinion is on the basis of the “role description”. It does not appear that Dr Steele has given any consideration to the main issue underlying her November 2020 opinion, being the Applicant’s work relationships.

As at 30 August 2021, Dr Schoeman provided the following opinion:

“REQUEST BACKGROUND

“We act for Mal Adkins, who is a member of Professionals Australia. Mr Adkins is currently employed as Senior Network Forecasting Engineer in the Strategic Forecasting team at Energy Queensland limited (EQL).

In September 2019, Mr Adkins went on personal leave due to mental health issues. On 23 June 2020, he returned to work in his substantive role within a different team, being the Network Pricing team. Mr Adkins’ secondment to the Network Pricing team concluded on 30 December 2020. Mr Adkins is keen to return to work in his substantive role on the Strategic Forecasting team.

We are instructed that you are Mr Adkins’ treating psychologist, following a referral from his GP Dr Anil Sunda. Accordingly, we are writing to request a medical report in relation to Mr Adkins’ capacity to return to work, as well as any reasonable adjustments that are required in order to facilitate his return to work.

BACKGROUND

Mr Adkins was referred to me by his General Practitioner, Dr Anil Sunda.
I saw him for 4 sessions between 27/06/2020 and 09/09/2020.

He presented with symptoms associated with an Adjustment Disorder with mixed emotional features, superimposed on a longstanding history of Bipolar-Affective Disorder. The Adjustment Disorder was likely in response to alleged bullying, harassment and intimidation by a manager at Energy Queensland. It was further amplified by the loss of his partner and the associated loneliness and isolation which he experienced both at home and at work. He indicated that he felt quite isolated and marginalised by the dynamics at work and equally lonely and isolated at home at that time.

The symptoms associated with the Adjustment Disorder have subsided and he is no longer affected by these symptoms.

I only saw him again on 16/08/2020 for the purposes of this report.

Mr Adkins reported that his functioning has been stable since his last visit in September 2020. He further indicated that his alcohol consumption has significantly decreased.

The balance of the medical evidence weighs in favour of a finding that the Applicant cannot perform the inherent requirements of his role without risk. This finding primarily relies upon the opinion of Dr Steele and Dr Sunda. I accept that Dr Steele’s, in my view very, qualified opinion is that the Applicant’s disorder itself doesn’t prevent him from doing his substantive duties but the qualifications to that opinion are significant. I also do not discount the opinion of Dr Schoeman however, as the Applicant accepts, Dr Schoeman is not qualified to make an assessment as to diagnosis and management of the Applicant’s medication condition.[15] What the medical opinion establishes, in my view, is that the Applicant’s diagnosis of bipolar disorder does not prevent him from doing his physical job. However, this condition is not without risk of deterioration if the Applicant were to return to a stressful situation, of which the Applicant “clearly” finds working with his manager to be.

I have also reached this view on the basis of the other evidence before me and, in particular, the evidence of the context and the history.

In relation to the Applicant’s evidence, the Applicant candidly accepts that there is friction between him and Ms Hincksman.[16] The Applicant further accepts that he found the warning and allegations from Ms Hincksman to be “very distressing”.[17] Despite that the Applicant considers he has not had time to reflect, obtain support and believes he can return and work with Ms Hincksman. The Applicant continues to believe that he can repair the relationship with Ms Hincksman, even though they don’t really work together that much.

The position the Applicant has taken in his evidence to this Commission is not easily reconcilable with the position he has consistently taken since, at least, December 2020. At that time the Applicant’s position was that he can return to work but not to a stressful environment and that working for Ms Hincksman was a stressful environment.[18] The Applicant’s position at this time was the medical advise from his treating physician was that the reasonable adjustments requested (ie not working with Ms Hincksman) were to “remove any barriers preventing” the Applicant from fulfilling his job to his best ability.

In January 2021, the Applicant’s position was that he “cannot return to his usual duties under” Ms Hincksman[19] and that the reasonable adjustments sought at that time were “on the basis of his medical condition”.

In May 2021, the Applicant’s representative conveyed that the Applicant was “prevented from interacting” with Ms Hincksman. Requests for reasonable adjustments at this time were made on the basis that the Applicant firmly held the view that he was prevented from interacting with Ms Hincksman.[20]

In September 2021, the Applicant’s position, on the basis of the August reports of Dr Steele and Dr Schoeman, was that he does not suffer from a medical condition that would preclude him from returning to his substantive role without any reasonable adjustments.

In October 2021, in response to the request to show cause, the Applicant’s position became, on the basis of Dr Steele’s opinion, that there was no reason the Applicant could not return to his role “subject to” the “reasonable adjustments” proposed by Dr Steele. Dr Schoeman did not consider reasonable adjustments necessary. The Applicant’s position now becomes that he can return to his role on the proviso that either the working relationship with Ms Hincksman be managed appropriately, or the Applicant be transferred to a different team.

This position was put to the Applicant in cross-examination as follows:

“So I suggest to you that this statement in that fourth paragraph indicates that your long-held perceptions of Ms Hincksman and her conduct towards you remained unchanged, and that you were not capable of safely returning to work with her or interact with her without the adjustments you had previously been seeking. Do you agree with that proposition? ‑‑It's a long one.
I agree there were concerns.”[21]

On 4 November 2021, the Applicant was unable to attend the meeting arranged with the Respondent on the basis that he has had “very little peace” since receive the request to attend the meeting and was seeking assistance with his “current state of mental health”.

Despite this, the Applicant steadfastly maintained his position in cross-examination that he genuinely believes he can return to work, reporting to Ms Hincksman, without any adjustments whatsoever. I do not accept this position.

The Applicant has, for an extensive period, maintained to varying degrees that he cannot return to work with Ms Hincksman without modifications. Those modifications being either an intermediary or a change to a different team. When confronted with potential termination the Applicant’s position becomes that he is not prevented from returning to work, reporting to Ms Hincksman, without adjustments and that, at least in respect of those portions of Dr Steele’s final opinion that might indicate otherwise, he does not agree with the medical advice provided. The Applicant’s denials about this change in position are disingenuous. It seems to me, as was put to the Applicant in cross-examination, and despite his denials to this effect, that the Applicant saw the writing on the wall and considered that his only option at that time was to return to his substantive duty without any modifications. This is what the Applicant has sought to achieve despite the medical opinion to the contrary, at least as I have found it.

The Applicant accepts that an inability to perform the inherent requirements of their position maybe a valid reason for the termination of the employee. The Applicant also accepts that it is capacity to do the substantive position that is relevant, rather than capacity to perform some position. I am satisfied, for the reasons explained that there was a valid reason to dismiss the Applicant.

In the matter of the Bipolar Disorder diagnosis, this was not initially part of the consideration by the Respondent, there concerns were regarding the working or non-working relationship between the Applicant and his Supervisor and the stress that had the Applicant be on leave for 9 months. Further, during this leave, a Workcover claim was lodged and a formal complaint by the Applicant against the Supervisor was also lodged. The GP stating at the end of that period June 2020 that the restrictions (not to work with the Supervisor) being permanent. The Bipolar Disorder Diagnosis as Dr Steele commented had been diagnosed early in the Applicant’s career and had not presented any symptoms that impacted his work. However, the Psychiatrist did note in report 3 that although the disorder was untreated. The Psychiatrist had suggested mood stabilisers and she expressed concerns over his alcohol usage. She stated that the Bipolar would not preclude but would likely need to have the relationship managed.

The Respondent was not satisfied that there were any other mitigations that could be undertaken to "manage" the relationship between the Applicant and Ms Hincksman to ensure the risks to the Applicant were at an acceptable level, other than implementing the accommodations that he had been seeking (which would have precluded him from reporting to or interacting with Ms Hincksman).

Reasonable Adjustment

The Respondent considered a request by the Applicant to place another employee between the Applicant and his supervisor to act as an intermediary. This intermediary would then presumably allow information and directions to flow between the Supervisor and the Applicant without the Applicant having direct contact with his Supervisor. The Respondent considered this request but found that this approach would simply unworkable. The interposing of an intermediary clearly would represent an extra cost, further, what would the intermediary do as their normal role? What if performance issues arise or there is a disagreement? How do you develop teamwork through an intermediary? This request was not feasible, practical or reasonable.

A similar matter was considered in Mohammed Aejaz Bukhary v South 32 Group Operations Pty Ltd (South 32) where the Applicant, as a result of suffering an Adjustment Disorder with anxiety features was only fit to return to work with a different manager or in a different department as the stressor in the Applicant’s case were the managers he reported to.

“[130] The medical evidence available to the Respondent at the time of dismissal included the fitness for work assessment undertaken by Dr Lee. Dr Lee’s assessment was as follows,

“The diagnosis is of an Adjustment Disorder with anxiety features. The trigger appears to be the irreversible breakdown in the relationships with his Managers.

He would be fit to return to work should he be able to work with a different manager that or department, however, should he return to the same department with the same Managers, the symptoms would likely return.

The stressor is a breakdown in a relationship with his superiors and is not related to the workload or to his work duties. Thus, do not recommend any changes to his duties as I anticipate that even if his workload was reduced, he would still find working with the same Managers difficult.”

…

[137] Importantly the Applicant throughout his dealings with the Respondent, before he was dismissed, and in the hearing took the position that his medical incapacity should be accommodated by the Respondent moving him to a different role so that he was no longer subject to those people who were his managers (or perhaps moving both of his managers to different roles). It was submitted for the Applicant that this was a reasonable adjustment for a large employer such as the Respondent to make.

[138] The Respondent rightly rejected this approach relying on the reasoning of the Full Bench in J Boag and Son Brewing Pty Ltd v Allan John Button that,

“[22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.”

[139] This principle was endorsed again in a more recent Full Bench decision in Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes as follows,

“[53] We have earlier set out the reason why Jetstar dismissed Ms Neeteson-Lemkes. 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. In accordance with the reasoning of the Full Bench in J Boag and Son Brewing Pty Ltd v Allan John Button, a reason for dismissal based upon an injured employee’s incapacity to perform the inherent requirements of his or her position or role must be assessed against the requirements of the substantive position or role, not as it may be modified or restricted in order to accommodate the employee’s injury.”

[140] The medical evidence available to the Respondent at the time of the dismissal established that the Applicant was incapable of returning to work with his managers. The Applicant was incapable of performing this inherent requirement of his role. This was a valid reason for his dismissal related to his capacity.

For the Applicant to return to work without an appropriate level of risk, a change in reporting lines was not possible, neither was reporting through an intermediary to his supervisor for all interactions. There was no proposed adjustment that would enable the Applicant to work safety with his supervisor without the concomitant risk to health and safety.

Redeployment

The Respondent under the DMP in the Enterprise Agreement did identify a total of three positions that were at the same level of classification structure, Senior Engineer Investigations, Senior Protection Engineer and Investment Portfolio Manager. Following a documented assessment process involving several managers a suitability match was not identified given the Applicant’s skills, expertise and experience required for the roles.

A redeployment to the role the Applicant had performed on a temporary basis previously was sought however after consideration by the Respondent there was not an ongoing role in the Network Pricing and Tariff Team.

I find the employer had a valid reason to terminate the employment of the Applicant, he was, in my view of the medical evidence, unable to perform the inherent requirements of his role without risk. The medical reviews were conducted over a two-year period and by several clinicians. The Applicant had a background condition of bipolar affective disorder, this condition was never raised by the Respondent as a matter that was given weight regarding their actions and ultimately the termination. I have not had regard to this medical condition, rather the issue raised by the Applicant in and managed by the Respondent was the stress and anxiety experienced by the Applicant if he were to return to his substantive role working for his supervisor. In this it is clear that no clearance was provided by his treating GP who had oversight of his patient over this period. He reviewed the medical reports in December 2020 and he stated again in June 2021 that he considered the restrictions were permanent. He did not recant from this position.

The reports of the psychologist I regard as treatment focused and do not place much weight on his diagnosis but rather appreciate that he was focused on providing interventions to assist the Applicant manage his stress and anxiety. The Psychiatrists reports, once the Bipolar issues are put to one side, although there is an implicit warning by the Psychiatrist that issues in the workplace may exacerbate the underlying bipolar condition. Her comments are that any return to his substantive role would require management and it would be preferable that an alternative position be found.

Thus, my view after careful consideration of the evidence is that the clinicians provided enough information and opinion that the Respondent could reasonably conclude that a return to his substantive role was not possible. The medical certificate from his GP only restated the Applicants opinion and provided no medical evaluation or opinion.

(b) and (c) whether the person was notified of that reason and had an opportunity to respond

The Respondent undertook a lengthy and comprehensive program of assistance to attempt to return the Applicant to his position. Over a two-year period they provided a seconded role for 6 months, initiated a Disability Management Program, reviewed a number of positions with the assistance of the HR function to evaluate suitability. Once that path was exhausted they then discussed any reasonable accommodation with the Applicant and when this was not found to be workable and following more medical reports moved to terminate. At all stages, the Applicant had a representative and was informed and involved in the processes leading ultimately to his termination. He was informed of the reason and provided the opportunity to respond. This factor weights positively towards the termination not being unfair.

(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

There was no unreasonable refusal by the employer to allow the Applicant to have a support person present. He was represented at all times throughout the entire process. This factor weights positively towards the termination not being unfair.

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

The Applicant was not terminated because of unsatisfactory performance

(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed

The Respondent is a relatively large employer with a dedicated human resources capability. The Respondent undertook a lengthy and well-resourced series of actions to support the Applicant and rehabilitate the Applicant to being able to return to his position. A 6-month secondment and a review of alternative positions as part of this demonstrates the commitment the Respondent had to assist the Applicant return to his position. This factor weights positively towards the termination being not unfair.

(h) any other matters that the FWC considers relevant

Frequently and invariably the consequences of a termination upon an individual are adverse[22] The impact of the termination after a period of two years on leave sick no doubt was substantial, however not out of proportion or harsh. There were many off ramps during this period for the Applicant had he made a recovery to return to his role. The cost on the employer was significant as supporting the Applicant and providing temporary roles as well as the relevant processes of identifying and assessing redeployment and possible reasonable adjustments did impose work upon the Respondent. However, this effort is what the community expects from a large employer, however, it is not expected the employer bear this for an indefinite time.

The Applicant did not make any efforts to mitigate his loss, he was offered assistance in developing his resume and coaching in interviewing and networking which were not taken up. He had had a long and stable career with progression which spoke to both parties in terms of his commitment and work performance and to the organisations career progression and opportunities for employees.

The outcome was not harsh relative to the circumstances of the matter, the termination was done after a lengthy and considered process by the Respondent who supported the Applicant through these difficult times. All the Applicant’s suggestions were considered and given consideration and a process of managing the disability was followed. The Applicant’s representative advocated strongly and effectively for the Applicant and the Respondent did respond to many of the issues raised by the Applicant’s representatives.

The recent finding of the Full Bench of the Commission in [2022] FWCFB 65 informs a consideration that due process undergone by a Respondent in considering termination weighs against a dismissal’s unfairness. In relation to the current matter, I find similarly and even more so did the Respondents significant undertakings in relation to redeployment weigh against the dismissal’s unfairness.

Whilst the impact upon the Applicant was that he was no longer employed, this followed a two-year process where he was in the workplace for approximately 6 months to assist in his return to his substantive role. The Respondent considered all the evidence regarding a safe return to work against his capacity to perform the inherent requirements of the role in a safe manner and determined that this could not be done.

Human Rights

The Applicant drew the Commissions attention to The Human Rights Act 2019 (Qld) (HR Act) and that it applied to the Respondent, given it is a Government Owned Corporation. Specifically, that the Respondent pursuant to section 58 (1) of the HR Act, must consider human rights in its decision-making process. To this point I note that the Respondent did not dismiss the Applicant because of his bipolar disorder diagnosis. Rather, the Respondent focused their attention upon whether the Applicant could perform the inherent requirements of his substantive role. Further they investigated whether redeployment opportunities existed and if reasonable adjustments to his substantive position were available. No evidence was put either way that the decision to terminate the Applicant had any basis for unlawful discrimination as a result of his bipolar disorder diagnosis or any other factor.

CONCLUSION

The Applicant suffered a significant and lengthy illness, he had the support of his GP throughout the period and he was not able to return. The Respondent utilised all processes available to them in attempting a return to work including a 6 month secondment and the use of the DMP they seriously evaluated three alternative positions with detailed and documented evaluation of the role against the Applicant’s skills experience and capabilities however were unable to make a match. The Respondent further considered reasonable adjustment however that was ultimately an unworkable solution reporting through another employee to his substantive supervisor.

The Respondent had the benefit of substantial medical evidence, the consistent view of his treating GP who saw the Applicant the most frequently and had been with him for the over two-year journey was that he was permanently restricted from working with his supervisor in his substantive role. This was a significant impediment that ultimately could not be overcome. The additional reports provided by a clinical psychologist and a psychiatrist offered insights into his bipolar disorder diagnosis which was not a consideration by his employer during the process. However, the additional reports of the specialists did warn against a return to his substantive role without the interpersonal matter being resolved. In the face of the inability for the employer to resolve that matter and with no alternative role or a suitable adjustment that Respondent took the step of termination for the inherent capacity of the role without risk. There was a valid reason and further I do not identify any harshness or unreasonableness in the decision.

DEPUTY PRESIDENT

[1] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].

[2] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[3] Ibid.

[4] X v Cth (1999) 200CLR 177, [32]-[33],[38],[103]

[5] PN158.

[6] See for example PN154.

[7] [2013] FWCFB 9075.

[8] Ibid at [45].

[9] [2018] FWCFB 1005.

[10] Ibid at [50].

[11] Ibid at [78].

[12] [2016] FWCFB 4218.

[13] [2018] FWCFB 1005 at [75].

[14] Respondent’s submissions at paragraph 55.

[15] Applicant’s submissions at paragraph 13.

[16] Applicant’s statement at paragraph 28.

[17] Ibid at paragraph 85.

[18] Ibid at MA-20.

[19] Ibid at MA-22.

[20] PN82.

[21] PN138.

[22] Sipple v Coal & Allied Mining Services Pty Ltd [2015] FWCFB 5728, [28].

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