Melissiah Diabel v Metro Trains Trains Melbourne Pty Ltd
[2021] FWC 6020
•5 NOVEMBER 2021
| [2021] FWC 6020 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Melissiah Diabel
v
Metro Trains Trains Melbourne Pty Ltd
(U2021/6144)
COMMISSIONER HARPER-GREENWELL | MELBOURNE, 5 NOVEMBER 2021 |
Application for an unfair dismissal remedy
[1] On 13 July 2021, Ms Melissiah Diabel (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Metro Trains Melbourne Pty Ltd (the Respondent).
[2] Ms Diabel was dismissed on 23 June 2021 at the initiative of her employer and the dismissal took effect immediately. Ms Diabel seeks reinstatement to the position she held prior to the dismissal or an alternative position no less favourable and an order for lost wages and continuity of employment.
Procedural background
[3] The matter was conciliated on 3 August 2021 however it was not resolved.
[4] After consultation with the parties, I considered it appropriate that the matter be referred to a member assisted conciliation. A member assisted conciliation took place on 4 October 2021, however the parties were unable to reach a settlement agreement and the matter remained unresolved.
[5] The matter proceeded to a hearing and was heard on 7 October 2021. The hearing was conducted via Microsoft Teams. Ms Diabel sought and was granted permission to be represented by Mr Mitchell Latham of Counsel. Metro Trains Melbourne Pty Ltd (Metro Trains) was represented by Mr Kelvin Reidy, Senior Workplace Relations Manager.
[6] At the hearing Ms Diabel gave evidence on her own behalf. Dr Shannon Paisley, practising Psychiatrist also gave evidence on behalf of Ms Diabel.
[7] The following witnesses gave evidence on behalf of Metro Trains:
• Ms Penny Totino, Group Manager North,
• Mr Ryan Smart, Human Resources Business Partner, Train Services Division,
• Mr Gary Wegert, General Manager Operations, and
• Ms Jacqueline Lyons, Head of Health and Wellbeing.
Factual Background and evidence
[8] Whilst the facts pertaining to the history of this matter are largely uncontested, it is useful to set out the background and events prior to Ms Diabel’s absence from work and her incapacity to perform her duties as a Train Driver.
[9] Ms Diabel commenced employment with Metro Trains in April 2010. At the time of her dismissal, she was employed as a train driver. Ms Diabel had been absent from work since January 2020. Ms Diabel had presented certificates of incapacity until she was dismissed on 23 June 2021. Ms Diabel is currently studying a degree in psychological sciences.
[10] As part of the Metro Trains Tunnel Rail Infrastructure Alliance, and the development of the Eastern Portal, alterations had been made to track sections between Hawksburn Station and South Yarra. On 2 January 2020, Ms Diabel attended a briefing class and viewed computer generated images of the new track as part of her preparation for driving the altered track.
[11] On 23 January 2020 the Rail, Tram and Bus Union (RTBU) issued a circular raising concerns that Metro Trains had made a unilateral decision about what training was necessary for drivers required to drive the new track. 1 The RTBU alleged Metro Trains had ignored the recommendations from a risk assessment conducted by 8 of its personnel including managers.
[12] A dispute about the adequacy of training provided by Metro Trains to its train drivers relating to the sections of track that had undergone alterations as part of the Victorian State Government infrastructure projects was lodged in this Commission. On 25 January 2020 Deputy President Gostencnik expressed an opinion to assist with the resolution of the dispute. The Deputy President had formed a view that:
• The nature of the training provided to drivers appeared to comply with the requirements of the Agreement;
• Metro Trains appeared to be entitled under the Agreement to determine that drivers would be provided with route knowledge in relation to the alteration to that section of track by the use of computer generated imagery (CGI), briefings and the provision of route information booklets containing route maps;
• The route learning tools provided by Metro Trains to its drivers were consistent with the route risk assessment process conducted; and
• “[T]he fact that training was provided to drivers through instructed CGI briefings and route information booklets, without more training, is not likely to found a basis for reasonable concern by an employee about an imminent risk to the employee’s health and safety.” 2
[13] On 26 January 2020 the RTBU issued a further circular in which it stated that the Deputy President had expressed an opinion about training for the new section of track between Hawksburn and South Yarra station’s and that his opinion was not a binding decision. The RTBU concluded stating that if drivers were concerned, they could raise their concerns with Metro Trains or the Union. 3 Ms Diabel says prior to receiving the circular she was not aware of the dispute regarding the new track.
[14] On 27 January 2020, Ms Diabel emailed Metro Trains CEO, Mr Raymond O’Flaherty. In her email Ms Diabel requested she be provided with a pilot to enable her to familiarise herself with the new track and infrastructure. Ms Diabel informed Metro Trains that if she was not provided with a pilot, she would be willing to perform other duties. Ms Diabel stated, amongst other things, that she did not take kindly to threats of disciplinary action for requesting a pilot in accordance with Victorian state legislation.
[15] On 28 January 2020, Ms Diabel received an email with a message providing an update about the dispute application before the Deputy President from Mr Ali Elbouch, General Manager, Train Services. The message states:
“……
Our records indicate that since 26 January 2020, you have refused to drive a train between South Yarra station and Hawksburn station without the assistance of a ‘pilot’, on -the-job trainer or similar MTM employee; or having observed that sector being by another driver as part of an on-site or in-cab view. Metro Trains considers that this refusal constitutes unprotected industrial action.
As such, you remain a party to the FWC proceeding, and Metro Trains will continue seek orders that apply to you which have the effect of requiring you to stop engaging in that action. You are of course entitled to attend and participate in that proceeding. A copy of the amended application is attached.
In the interim, Metro Trains is prohibited under the Fair Work Act 2009 from making any payment to you in relation to the duration of any unprotected industrial action. You should also be aware that unprotected industrial action will be treated as a serious disciplinary matter.
You are required to immediately advise Metro Trains if your position changes, and you are prepared to drive the section of track between South Yarra and Hawksburn station without the assistance of a ‘pilot’, on-the-job trainer or similar MTM employee; or having observed that sector being driven by another driver as part of an on-site or in-cab view.” 4
[16] Ms Diabel says the email containing the message from Mr Elbouch caused her a significant amount of stress and she went to her doctor and obtained a medical certificate for the day.
[17] On 29 January 2020, Ms Diabel attended work, she signed on and requested a pilot because she had been allocated to drive the new track. Ms Diabel refused to drive the track and says it was because she was complying with the Book of Rules and her obligations under workplace health and safety law. Consequently, Ms Diabel was directed to see her duty manager Mr Lou Gotsis. Ms Diabel then attended a meeting with Mr David Hutton, Group Manager South, and Ms Penny Totino. Ms Diabel says she requested a support person, and her request was denied. She explained she wanted a pilot to drive the new track and was told that she was capable of driving the track without a pilot. Ms Diabel was then told she was engaging in industrial action and would be stood down. Ms Diabel replied stating that she was “upset, anxious and distressed as a result of the accusation” and that she had to leave the workplace because of a “psychological injury”. 5 Ms Diabel was accompanied by a Metro Trains representative to the Bridge Road Medical Centre where she obtained a certificate of capacity stating she was unfit for work from the period of 29 January 2020 to 5 February 2020.
[18] On 31 January 2020, the Deputy President recorded a settlement agreement reached by the parties to the dispute. The matter before the Deputy President was discontinued, and Metro Trains undertook not to take any disciplinary action against employees who were named in Schedule 1 of the settlement agreement. Ms Diabel was an employee named in Schedule 1.
[19] On 3 February 2020, Ms Diabel completed a Worker’s Injury Claim Form for the incident that occurred on 29 January 2020. Ms Diabel says being ‘stood down’ caused her to experience stress and anxiety and she felt she was being bullied and harassed by Metro Trains.
[20] On 4 February 2020, Ms Diabel received a letter from Ms Jenna Yates, Group Manager regarding the incident that occurred on the 29 January 2020. The letter states the following:
“Dear Melissah,
Our records indicate that you refused to drive the section of track between South Yarra station and Hawksburn station unless you had a “pilot”, on-the-job trainer or similar, on 29/01/2020. Section 474 of the Fair Work Act 2009 (Cth) (Act) provides that:
‘If an employee engaged, or engages, in industrial action that is not protected industrial action against an employer on a day, the employer must not make a payment to an employee in relation to:
(a) if the total duration of the industrial action on that day is at least 4 hours--the total duration of the industrial action on that day; or
(b) otherwise – 4 hours of that day.’
Equally, section 475 of the Act provides that:
‘An employee must not:
(a) accept a payment from an employer if the employer would contravene section 474 by making the payment;
or
(b) ask the employer to make such a payment (sic).’
We understand that it may be the case that your refusal to drive as described above related to concerns held by you in relation to health and safety. However, Metro Trains Melbourne Pty Ltd (Metro Trains) is of the view that there was no reasonable basis for any such concern, and that accordingly your refusal constituted unprotected industrial action. Whether any particular conduct is, or is not, industrial action is determined by the operation of section 19 of the Act, and is not in the discretion of Metro Trains.
As a result, and in light of section 474 of the Act, Metro Trains is of the view that it is required to deduct 4 hours pay and associated penalties from you in relation to your refusal, and that failing to do so would expose Metro Trains to the possibility of a civil penalty being imposed on it. We note also that section 475 of the Act (relating to the accepting or requesting of payments by employees) is also a “civil penalty provision (sic).”
The deduction will be made on 4 February 2020.
If you have any queries, please contact Patrick Kennedy. We encourage you to speak to us about matters of concern.” 6
[21] On 10 February 2020, Ms Yeats responded to Ms Diabel’s previously raised grievances about the deduction of 4 hours from her pay due to taking unprotected industrial action. Ms Yeats reiterated that Metro Trains considered Ms Diabel’s refusal to drive the South Yarra track without a pilot constituted industrial action and therefore it would be in breach of the Fair Work Act if it failed to deduct 4 hours from Ms Diabel’s pay. Ms Yeats also explained that the deduction of the 4 hours was a legal requirement, and it was not “disciplinary action” and no action of a disciplinary nature, such as issuing a warning was being taken by Metro Trains against Ms Diabel. Metro Trains declined to reimburse Ms Diabel the 4 hours that had been deducted from her pay. 7
[22] On 21 February 2020, Ms Diabel attended an independent medical examination conducted by Dr Chris Grant, Psychiatrist. Dr Grant’s diagnosis was that Ms Diabel was not suffering from any psychiatric disorder or mental illness but rather she was angry and upset about the meeting held at work over the industrial relations matter that occurred on 29 January 2020. Dr Grant concluded that there was no loss of current work capacity arising from any psychiatric condition and that she was fit to participate in any steps required to achieve a return to work. 8
[23] On 24 February 2020, Ms Diabel received a Certificate of Capacity from Allianz which appeared to have several details removed.
[24] On 12 March 2020, Ms Diabel sent an email to Mr Patrick Kennedy, Depot Train Driver Manager reagitating her complaint and requesting that Metro Trains rescind its decision to deduct 4 hours from her pay for the alleged unprotected industrial action and remove any reference that she had engaged in unprotected industrial action on 29 January 2020 from her personal record. 9
[25] On 17 March 2020, Ms Diabel sent an email with the same content as the 12 March 2020 email to Ms Catherine Baxter, Chief Operating Officer. Ms Diabel did not mention in her email that she had previously sent the same email content to Mr Kennedy. Ms Baxter responded that same day informing Ms Diabel that her concerns were being passed on to Mr Wegert for his review.
[26] On 19 March 2020, Ms Diabel sent further correspondence to Mr Kennedy again reagitating her concerns in addition to issue relating to training and alleged inconsistent messaging from Metro Trains. In her correspondence Ms Diabel states:
“Hello Patrick, I’m sorry that I’m unable to talk to you on the phone atm, but I’m currently taking prescribed anti-anxiety medication over what happened at work and feel it would be best to correspond via email.
Just letting you know I am returning to the doctor shortly for reassessment. As it’s important to resolve this situation, I will need a reply by Friday 20 March to the email I sent you last Thursday regarding my query of Metro Trains policy and procedures as related to management’s claim that I participated in unprotected industrial action.
In the context of what has recently transpired, I feel it’s important for you to know that I received a phone call from the training department early last year instructing me that I had to be requalified over skyrail DNG – PKM as my record – that I qualified on the 1 January 2019 – had been lost. I had to undertake a second viewing, and completed my 2nd instructed drive up and drive down on the 15 March 2019, even though I had already driven the section numerous times on my own since the 1 January. As you can imagine, these significant training inconsistencies that I’ve encountered over the past 12 months have caused me much confusion in relation to Metro policy and procedures.
I was subject to more confusion, when the day after Rita rang me and asked about my return to work, I received the email from Jenna informing me for further punishment. It’s hardly an incentive considering the distress I experienced on the 29 January when my driving skills were repeatedly questioned by 3 non-driving managers.
As I haven’t received acknowledgement of my previous email, is there something bothering you? I’m not after any legal advice whatsoever, just a clarification of why I’ve been punished by Metro when I thought I was raising a valid OHS concern and acting in good faith in accordance with policy and procedure.” 10
[27] Ms Diabel claims she was subjected to confusion due to the policy and training inconsistencies and was subjected to further confusion when she was asked about her return to work. Ms Diabel alleges the email received from Ms Yeats was informing her of further punishment. Regardless of the prior correspondence explaining that Metro Trains was not taking disciplinary action, Ms Diabel continued with her tightly held the view that she was being disciplined.
[28] On 23 March 2020, Mr Wegert responded to Ms Diabel’s 12 and 19 March 2020 emails to Mr Kennedy and her 17 March 2020 email to Ms Baxter. Mr Wegert reiterated the response provided on 10 February 2020, being that Metro Trains maintains its opinion that Ms Diabel’s refusal to drive the South Yarra section of the track met the definition of industrial action as provided for in section 19 of the Act and that Metro Trains does not agree that its position was inconsistent with its policies or section 19 of the Act. Mr Wegert confirmed that Metro Trains response remained unchanged, and that the deduction was a legal requirement and not disciplinary action. 11
[29] After receiving the response from Mr Wegert, Ms Diabel lodged an incident report. Ms Diabel wrote “I have sustained a psychological injury due to the failure of Metro Trains management to revoke the false accusation detailed in an email I received from Ms Yeats on 4 February 2020, that I participated in unprotected industrial action.” 12 In her incident report Ms Diabel states that Metro Trains had tampered with her Certificate of Capacity issued on the 29 January 2020 to gain advantage and she has notified the Fraud Department at WorkSafe of the matter. Ms Diabel also commented that the response received earlier that day caused her to sustain a psychological injury that had further exacerbated the psychological injury she sustained on 29 January 2020. On that same day Ms Diabel obtained another Certificate of Capacity that determined she had no capacity for employment from 23 March 2020 to 22 April 2020.
[30] Ms Diabel continued to submit certificates signed by her treating practitioner, Dr Gunasekera that determined she had no capacity to return to work, that she was undergoing counselling and was taking antidepressants for the following periods:
• 23 April 2020 to 23 May 2020;
• 23 May 2020 to 23 July 2020;
• 23 July 2020 to 23 September 2020;
• 23 September 2020 to 23 November 2020;
• 23 November 2020 to 23 February 2021; and
• 24 February 2021 to 24 May 2021.
[31] Each of the medical certificates provided by Ms Diabel state that she was on medication for depression and receiving regular counselling. The certificates also state that Ms Diabel’s attention/concentration, memory and judgement were affected, and she did not have capacity for employment. Whilst on leave due to her incapacity Ms Diabel was able to continue with her psychology studies.
[32] On 5 March 2021, Ms Penny Totino sought advice from Mr Ryan Smart, Human Resources Business Partner. Ms Totino also held discussions with Mr Kennedy regarding Ms Diabel’s long term absence.
[33] In a meeting on 10 March 2021, Ms Totino, Mr Kennedy and Mr Smart discussed the management of Ms Diabel’s absence. Mr Smart sought advice from Mr Reidy, Senior Workplace Relations Manager and it was agreed that Metro Trains would write to Ms Diabel to notify her that due to her ongoing incapacity Metro Trains was proposing to terminate her employment.
[34] On 4 May 2021, Ms Kelly Lawson, Deputy Manager, sent a letter by email and registered post to Ms Diabel informing her that Metro Trains was considering terminating her employment due to her ongoing incapacity to perform her role as a Train Driver. Ms Diabel was invited to provide information relevant to why Metro Trains should not terminate her employment. Ms Diabel was also invited to provide medical advice from her treating practitioner and Metro Trains offered to pay for a medical report (within reasonable costs). Ms Diabel was requested to provide the information by 26 May 2021 and she was advised a request for more time would be considered. Ms Lawson expressed that Metro Trains would consider any information Ms Diabel provided before making a decision as to the future of her employment with Metro Trains and she invited Ms Diabel to either discuss the contents of the letter by phone or in person. Ms Diabel confirmed receipt of the letter and notified Metro Trains of her change of address by return email.
[35] On 25 May 2021 at 4:48pm, Ms Diabel sent an email to Ms Lawson with a letter dated 24 May 2021 attached, where she provided the following response to the 4 May 2021 letter:
“….
I refer to the email and electronic document I received in my Deakin email on the 4 May 2021 regarding my employment with Metro trains. I emailed acknowledgement on the same day and also notified you of my correct address. Please note that I have not received a hard copy of your correspondence sent via registered post as stated on the electronic document. Furthermore I have not received a copy of your email in my Metro trains email account.
In order to provide medical information pertaining to my absence and the reasons why you should not terminate my employment, I am prepared to attend an independent medical examination (IME) as appointed by Metro Trains. Furthermore, I am prepared to give my informed consent at the IME for the examining health professional to contact my treating doctors to discuss or clarify information relating to my current health status.
…” 13
[36] On 26 May 2021, Ms Diabel sent Ms Lawson a new Certificate of Capacity. The Certificate states that Ms Diabel was examined on 25 May 2021 and it was determined that she had no capacity for employment for the period from 24 May 2021 to 24 August 2021. The Certificate states that Ms Diabel has a clinical diagnosis of depression/anxiety related to work issues and she was presently undergoing regular counselling and that Ms Diabel was on medication for depression.
[37] After receiving the medical certificate from Ms Diabel, Mr Smart met with Ms Totino on 27 May 2021 and then sought advice from Mr Reidy. Mr Smart says the response from Ms Diabel was considered along with her recent certificate of incapacity. Relying on the information provided Mr Smart created a request to terminate Ms Diabel’s employment and the request was submitted to Mr Wegert. Mr Wegert considered the material provided by Mr Smart and approved the proposal to terminate Ms Diabel’s employment.
[38] On 11 June 2021 Ms Lawson attempted to contact Ms Diabel on her mobile phone. Her attempt was unsuccessful.
[39] After failed attempts to make contact with Ms Diabel, Ms Lawson sent correspondence on 15 June 2021 to Ms Diabel by email informing her that Metro Trains had considered her written response and invited her to attend a meeting with Ms Totino, and Mr Smart on 21 June 2021. Ms Diabel was invited to bring a support person and was advised that termination of her employment was a possible outcome. Ms Diabel was also informed that the meeting would be confidential, and she was not to discuss the matter with anyone in the workplace other than those who may be supporting her.
[40] On 20 June 2021, Ms Diabel sent correspondence to Ms Baxter. In her correspondence Ms Diabel alleges that she was being bullied and the bullying had caused an ongoing negative impact to her psychological health and the severity of the impact had prevented her from returning to work. Ms Diabel also raised issues of a historical nature relating to events that occurred in 2014 and 2018. In her concluding paragraphs Ms Diabel wrote:
“Last Friday, the 18/6/21 I received via registered post ‘Re: Outcome of employment review’ from Kelly Lawson Depot Train Driver Manager. The letter contains a gag order, threatens termination of my employment, and requests that I attend a disciplinary meeting on the 21/06/21. I supplied a Certificate of Capacity from my doctor by registered mail on the 25/05/21, which states my mental health function (attention/concentration, memory, and judgement) is affected, and that I am on a treatment plan which includes antidepressants. As such, it seems that Metro Trains is either rejecting my medical certificate as evidence of my condition, or is of the opinion that I should attend a disciplinary meeting despite being in an unfit psychological state to do so. Furthermore, in my previous correspondence on the 24/05/21 I indicated that I was prepared to attend an independent medical examination (IME) as appointed by Metro Trains, and that I was prepared to give my informed consent at the IME for the examining health professional to contact my treating doctors to discuss or clarify information relating to my current health status.
Despite Metro Trains having a duty of care to provide and maintain a safe workplace, I have been unable to return to my job since the 29/01/20 due to the profound and cumulative effect of bullying. To resolve my complaint and facilitate a return to my job I request Metro Trains:
• Cease and desist any further attempts to have me attend disciplinary meetings whilst I am under a Certificate of Capacity indicating that my mental health is affected.
• Revoke the accusation that I participated in unprotected industrial action on 29/01/20.
• Clarify Metro Trains policy and procedures in regard to the safe operation of trains in
• relation to The Book of Rules and Operating Procedures 1994, Railway Fundamentals, TLIB3118 Apply awareness of railway fundamentals/TLIF2080 Safely access the rail corridor, and TSD-610.
• Complete and return the supplied Employer’s Statement Income Protection Claim
• Form in order for me to claim my income protection benefit through my superannuation, in consideration of the extended period of time I have been unable to work.
I have been unable to email this letter to HR as the apps on my work phone have been disabled and I do not have HR contact details. Please advise Metro Trains willingness to resolve my complaint within the next 14 days. Failing this, I will refer the matter to the Fair Work Commission.” 14 (emphasis added)
[41] On 21 June 2021, Ms Diabel sent an email to Ms Lawson informing her of the complaint sent to Ms Baxter on 20 June 2021.
[42] On 23 June 2021, Metro Trains sent a letter to Ms Diabel notifying her that her employment was being terminated and the termination took effect immediately.
Preliminary Matters to be considered
[43] Section 396 of the Act requires that I decide four preliminary matters before considering the merits of Ms Diabel’s application. I find that Ms Diabel’s application was made within the 21-day period prescribed by s.394(2) of the Act. Metro Trains is not a Small Business employer within the meaning of the Act, therefore the Small Business Fair Dismissal Code does not apply. The dismissal was not a case of genuine redundancy.
[44] At the time of her dismissal Ms Diabel was covered by the Metro Trains Melbourne Pty Ltd Rail Operations Enterprise Agreement 2019 (the Agreement) 15 and she earned less than the high-income threshold. Ms Diabel had completed a period of employment with Metro Trains that was at least the minimum employment period required by s.382 of the Act.
[45] I am therefore satisfied that, at the time of dismissal, Ms Diabel was a person protected from unfair dismissal.
[46] Having considered each of the initial matters, I am required to consider the merits of Ms Diabel’s application.
Was the dismissal harsh, unjust or unreasonable?
[47] 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.”
[48] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 16
[49] I set out my consideration of each below.
Was there a Valid Reason for the dismissal related to Diabel’s capacity or conduct? - s.387(a)
[50] Metro Trains must have a valid reason for the dismissal of Ms Diabel, although it need not be the reason given to her at the time of the dismissal. 17 The reason for the dismissal should be “sound, defensible and well founded”18 and should not be “capricious, fanciful, spiteful or prejudiced.”19
[51] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 20 The question the Commission must address is whether there was a valid reason for the dismissal related to Ms Diabel’s capacity or conduct (including its effect on the safety and welfare of other employees).21
[52] In the Termination of Employment letter dated 23 June 2021, Metro Trains states the reason it was terminating Ms Diabel’s employment was because she had been unable to perform her role as a Train Driver since 29 January 2020 and based on the medical certificates provided it was evident that she had no capacity to perform any work during that time, at the time of her dismissal and in the foreseeable future.
[53] A reason will be “related to the capacity” when the reason is associated or connected with the ability of the employee to do his or her job.22 A capacity related reason for dismissal might be concerned with an employee’s performance, the employee’s physical capacity to perform the work, the loss of a qualification or licence necessary to perform the work, or an inability to perform the inherent requirements of the job because of some injury, illness or other disability. 23 In a dismissal related to the person’s capacity, s387(a) requires the Commission to consider and make findings as to whether, at the time of dismissal, the applicant suffered from the alleged incapacity. The assessment of capacity is to be determined by the Commission based on its assessment of the evidence.24
[54] Assessing the validity of a capacity-related reason involves three considerations; whether Ms Diabel was capable of performing the inherent requirements of her role as at the date of her dismissal; whether Ms Diabel would be able to perform the inherent requirements of the role at some time in the future; and whether there was some reasonable adjustment which could be made to Ms Diabel’s role to accommodate her incapacity.
[55] Contrary to the medical evidence and her written responses she provided to Metro Trains prior to her employment being terminated, Ms Diabel now argues that she was fit to return to work at the time of her dismissal. Ms Diabel asserts she was dismissed without the opportunity to attend an Independent Medical Examination (IME) and Metro Trains failure to send her for an IME prior to the decision to terminate her employment was procedurally unfair.
[56] Ms Diabel concedes that as of 4 May 2021 she was aware that Metro Trains was considering terminating her employment because she had been absent from work since January 2020 due to what was described as a ‘psychological injury’. Ms Diabel understood Metro Trains was considering terminating her employment due to her ongoing incapacity to perform her role. Ms Diabel also concedes Metro Trains had invited her to provide medical advice about her capacity to perform her role prior to her dismissal.
[57] Ms Diabel claims she was unsure as to what medical advice was being sought by Metro Trains when it notified her that it was considering terminating her employment due to her incapacity. However, Ms Diabel concedes that Metro Trains had requested she provide “any” medical information for its consideration prior to making its decision as to whether to terminate her employment. I am not at all persuaded that Ms Diabel was naïve or unsure as to what information she could have provided to Metro Trains if she had at that time intended on contesting the proposed termination on the basis that she was able to perform her role. The steps Ms Diabel took prior to her dismissal was to insist that Metro Trains accept her certificate of incapacity and that she was incapacitated and demanded that they refrain from taking any action until she was capable of returning to work. Ms Diabel did not indicate when she was likely to return to work. The evidence before me is that Ms Diabel was contesting the proposed dismissal on the basis that she was not fit to attend a meeting or return to work due to her incapacity. In these proceedings Ms Diabel now seeks to argue a different position.
[58] Ms Diabel was afforded a period of three weeks, from the date of notification, to provide information or make any inquiries about the request for information made by Metro Trains. Ms Diabel did not provide any information that would suggest she was fit for work prior to 25 May 2021 or prior to the decision being made to terminate her employment. Ms Diabel made no attempts to clarify what information, if any, would assist with her return to work. To the contrary, Ms Diabel sent correspondence and a Certificate of Capacity that confirmed she was unable to return to work at the time Metro was considering the future of her employment.
[59] I am of the view that Metro Trains was entitled to rely on the information contained in Certificate of Capacity provided by Ms Diabel which stated that as of 24 May 2021 she was receiving regular counselling and was on medication for depression. Ms Diabel’s treating practitioner had determined that she had no capacity for employment for a further three months from 24 May 2021 until 24 August 2021. Metro Trains were also entitled to rely on the email sent by Ms Diabel for consideration prior to her dismissal which stated that her mental health function was affected, and that she was on a treatment plan which included prescribed antidepressants. I accept the evidence of Ms Diabel being that at the time she wrote the letter she was relying on the information provided by her Doctor and that the letter reflected her own point of view about her health status at that time. I accept Ms Diabel’s evidence on this point and therefore the letter provided by Ms Diabel accurately reflected her health status at the time Metro Trains was considering terminating her employment being that she was totally incapacitated and therefore unable to perform her duties as a Train Driver.
[60] Ms Diabel argues that Metro Trains had an obligation to send her for an IME. She submits Metro Trains maintains two policies that are particularly relevant to the health and fitness of Train Drivers. The first being the Health Assessment Policy (HA Policy) which she submits required Metro Trains to undertake a Triggered Health Assessment in response to concerns regarding an employee’s ability to safely perform the inherent requirements of their position. Ms Diabel submits this policy permits employees to request a referral to an Authorised Health Professional if they were concerned about their ability to perform their work safely due to health reasons. Ms Diabel submits that by requesting an IME she sought to engage with this provision. Ms Diabel specifically relies on clause 5.8.3 of the HA Policy.
[61] Metro Trains argues they did not intend on contesting Ms Diabel’s fitness for work and had instead accepted Ms Diabel’s Certificate of Capacity and the content of her letter to Ms Baxter as evidence that she was not capable of returning at the time of her dismissal or in the foreseeable future. Before proceeding to terminate Ms Diabel’s employment, Metro Trains had accepted that her health status at that time was a total incapacity and therefore there was no requirement to send her for an IME. Ms Jacquie Lyons gave evidence about the operation of the policies relied on by Ms Diabel. I am persuaded by Ms Lyon’s evidence that Metro Trains did not have a positive obligation to send Ms Diabel for an IME in circumstances where it had accepted that she was not fit to return to work. On a plain reading of clause 5.8.3 of the HA Policy, a Triggered Health Assessment can only be requested through the Medicals Team in writing based on the criteria set out in that clause. Ms Diabel relies on the criteria being that a Triggered Health Assessment can be conducted if there has been a workplace injury or if an employee is returning to work from a workplace injury. The HA Policy provides for an employee to be directed to attend an IME if it is their intention to return to work after an illness or injury. However, there is no obligation for Metro Trains to direct an employee to attend an IME in circumstances where there is no dispute about an employee’s incapacity or when an employee has indicated they are unable to return to work due to their incapacity. Further, Ms Diabel had not at the time of her dismissal provided any evidence to the contrary.
[62] The second policy relied on by Ms Diabel is the Fitness for Duty Policy. Ms Diabel relies on clause 5.3 of the policy which provides:
“In the event that a rail safety worker may no longer meet the medical category requirements for the role they are employed in will be required to attend health assessment. Should the assessment result in the employee being deemed ‘permanently unfit’ the employee’s direct manager will be advised as well as a PEOPLE ERR for further action.” (sic)
[63] Reading the policy as a whole, it is clear that the requirements set out in clause 5.3 apply where there is a medical condition or increased risk identified that would pose a risk to Metro Trains and its employees if the risk was not assessed. Ms Diabel did not pose a risk because she was not at work and had not been at work for 16 months at the time of her dismissal. On the evidence before me it is clear that Ms Diabel had no capacity to return to work in the foreseeable future and as such there was no immediate risk that would have triggered a requirement for her to attend an IME. The policy does not pose a positive obligation on Metro Trains to send Ms Diabel for an IME in circumstances where she was not at work due to her incapacity to perform her role and she was not likely to return to work in the foreseeable future.
[64] However, even if the policies did provide that upon request Metro Trains had an obligation to send Ms Diabel for an IME, I do not accept that Ms Diabel requested to attend an IME. She merely informed Metro Trains if they wanted her to attend an IME she would not object. In addressing the requirements of the policies relied on by Ms Diabel I have accepted the evidence of Ms Lyon. Ms Lyons’ evidence is that it is not a requirement of either of the policies relied on by Ms Diabel that Metro Trains must send a Train Driver in similar circumstances to Ms Daibel for an IME. Ms Lyons explained that Metro Trains will refer a driver to a Triggered Health Assessment where it has a concern about the driver continuing to perform their duties and it requires medical advice to understand if its concerns have substance. Likewise, if an employee has been absent from work and they have presented a Certificate deeming them fit for work, Metro Trains will send the driver for a triggered medical assessment to be performed by a rail Accredited Health Provider.
[65] In Ms Diabel’s circumstances, she had been absent from work and had provided certificates that determined she was unfit for all duties. Ms Diabel at no time prior to her dismissal or at the time of her dismissal represented that she was fit for work or that she intended to return to work. Therefore, Ms Diabel was not considered a safety risk and in those circumstances, it was not necessary for Metro Trains to send Ms Diabel for an IME. Further, as Metro Trains was not contesting Ms Diabel’s incapacity, there was no policy reason or requirement for Ms Diabel to attend an IME.
[66] In support of the assertion that she was fit for work at the time her employment was terminated, Ms Diabel relies on the report and evidence of Dr Shannon Paisley, consulting psychiatrist located in Sydney, Australia. Sometime after her dismissal, Ms Diabel’s lawyer arranged for her to attend a consultation with Dr Paisley, the consultation took place by video conference on 8 September 2021. The consultation with Dr Paisley occurred two and a half months after the termination of Ms Diabel’s dismissal.
[67] Dr Paisley’s report dated 7 September 2021 acknowledged receipt of the request for an IME of Ms Diabel received on 6 September 2021. The report although dated 7 September 2021 states he conducted an examination of Ms Diabel on 8 September 2021 being two days after the request was received and some two and a half months after her dismissal. In his report Mr Paisley concludes that Ms Diabel was fit to return to her role as a Train Driver. Ms Diabel’s lawyer requested Mr Paisley respond to a series of questions posed one being, “was our client fit to perform the inherent requirements of the role as of 23 June 2021 (being the date of termination)”. Dr Paisley’s response in his report was, “Yes. I did not have any evidence to the contrary”.
[68] It is well established that although the validity of a reason for dismissal may be determined by reference to the facts discovered after the dismissal, however those facts must have existed at the time of the dismissal. 25 Applying this principle, whilst Dr Paisley had concluded that in the absence of evidence to the contrary Ms Diabel was capable of performing her role at the time of her dismissal, Dr Paisley’s opinion was obtained well after the dismissal took effect and therefore I do not consider it permissible to take Dr Paisley’s report into account.
[69] Even if I was to consider the report as admissible evidence, my conclusions below would not be affected for the following reasons. Dr Paisley’s conclusions were that Ms Diabel was capable of performing the inherent requirements of her role at the time she was dismissed, however his caveat was that he did not have any evidence to the contrary. That is because although he was aware Ms Diabel’s doctor had determined she had no capacity for work, he had not been provided with copies of the numerous certificates of incapacity she had provided to Metro Trains prior to her dismissal. Further, Dr Paisley records that Ms Diabel had ceased taking anti-depressant medications at some time since mid-2020. Whereas the letter sent by Ms Diabel to Ms Baxter and the Certificates of Capacity provided by her Doctor suggest Ms Diabel was taking anti-depressants at the time of her dismissal. Regardless, as to whether or not Ms Diabel had been taking medication at the time she attended her appointment with Dr Paisley, he was not aware that at the time of her dismissal she had reported that she was taking anti-depressants and the Certificates of Capacity stated the same. Had Dr Paisley been aware of the information at the time of the consultation he would have been able to evaluate the reasons for the inconsistencies and this may have altered the outcome of his findings.
[70] Dr Paisley reached his conclusions based on Ms Diabel’s self-reporting, the February 2020 report of Dr Grant and the 14 April 2020 Psychologist’s report from Ms Liz Macmillian. Dr Paisley conceded that he had no expertise or training for assessing fitness to work for Train Drivers. Dr Paisley was not familiar with the Rail Safety Worker requirements and could not recall if he had received a position description for the role of Train Driver. Further, Dr Paisley reported that Ms Diabel had not suffered any trauma or abuse during childhood which was factually incorrect. Ms Diabel had suffered a childhood trauma of significant magnitude. Further, Dr Paisley was not aware that Ms Diabel had reported that she was having ongoing counselling at the time he authored his report. After having those matters drawn to his attention it was put to Dr Paisley’s would his opinion change in any way, and Dr Paisley’s evidence in reply was, “Yes, I would have to say that it does soften my certainty in my opinion, given that when I asked her if she was taking any psychiatric medication she denied it to me, yet there’s some, perhaps, evidence to the contrary there.” Regardless as to whether or not Ms Diabel was taking medication, there are clearly a number of factual inconsistencies in the information provided to Metro Trains by Ms Diabel at the time of her dismissal and those provided to Dr Paisley some two and half months after the dismissal took effect. For the report to be reliable and considered admissible those inconsistencies would have to be resolved and I am not satisfied Dr Paisley’s evidence in these proceeding went so far as to do so.
[71] Having regard to the medical evidence before me and the evidence of Ms Diabel regarding her capacity at the time of her dismissal, I find that Ms Diabel was incapable of performing the inherent requirements of her role as a Train Driver with Metro Trains as at the date of her dismissal. Given the nature of her incapacitation Ms Diabel was not capable of returning to work in any capacity and there were no reasonable adjustments that could have been contemplated by Metro Trains. Further, Ms Diabel had provided a certificate from her treating Doctor that had determined she would be fully incapacitated until August 2021. At the time of her dismissal Ms Diabel provided no evidence that she would be able to return to work in the foreseeable future.
[72] Having had regard to the circumstances before me, I am satisfied there was a valid reason for the termination of Ms Diabel’s employment relating to her capacity.
Was Diabel notified of the valid reason? - s.387(b)
[73] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 26 and in explicit27 and plain and clear terms.28 In Crozier v Palazzo Corporation Pty Ltd, a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 29
[74] Ms Diabel submits Metro Trains failed to follow its own procedures by failing to send her for an IME. In concluding that there was a valid reason for Ms Diabel’s dismissal I have dealt with Ms Diabel’s contentions on this issue and set out my finding above, I do not intend to repeat my reasoning here. On this issue I am not satisfied that Metro Trains failed to comply with its procedures.
[75] I am satisfied that Metro Trains notified Ms Diabel in the show cause letter that it was proposing to dismiss her because she had no capacity to perform work. In the termination letter Ms Diabel was again notified of the reason for dismissal being that she had been dismissed because she had no capacity to perform the duties of her role.
Was Diabel given an opportunity to respond to any valid reason related to their capacity or conduct? – s.387(c)
[76] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. This criterion is to be applied in a common-sense way to ensure the employee is treated fairly and should not be burdened with formality. 30
[77] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements. 31
[78] Ms Diabel submits that Metro Trains led her to believe that a medical report could be sought and that it would pay for the report. In departing from this position without warning or explanation, it denied her an opportunity to source her own medical report to demonstrate her capacity.
[79] I find Ms Diabel’s submission to be at odds with her evidence. Whilst I accept that Ms Diabel wrote to Metro Trains and suggested that if they were willing to arrange and pay for an IME she would be willing to attend, however she immediately provided certificates that certified her unfit to perform any work. Ms Diabel also wrote to Ms Baxter complaining that Metro Trains was not giving due consideration to her medical condition and her incapacity to return to work.
[80] Ms Diabel was put on notice that Metro Trains was considering dismissing her employment. She was provided with sufficient opportunity to respond however she chose not to take up the opportunity. Ms Diabel was invited to attend a meeting to discuss the potential for her employment to be terminated however she did not respond or attend the meeting.
[81] Having regard to the matters referred to above, I find that Ms Diabel was given an opportunity to respond to the reason for her dismissal prior to the decision to dismiss being made.
Did Metro Trains unreasonably refuse to allow Ms Diabel to have a support person present to assist at discussions relating to the dismissal? – s.387(d)
[82] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.32 With respect to this consideration, the Explanatory Memorandum states:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”33
[83] Metro Trains offered to meet with Ms Diabel prior to making a decision about her employment. The offer was not accepted by Ms Diabel therefore no meeting took place. I find this to be a neutral consideration.
Was Ms Diabel warned about unsatisfactory performance before the dismissal? – s.387(e)
[84] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, if the dismissal related to unsatisfactory performance by the person, the Commission must take into account whether the person had been warned about that unsatisfactory performance before the dismissal.34 Unsatisfactory performance is more likely to relate to the employee’s capacity to do the job, than their conduct.35 The Commission must take into account whether there was a period of time between an employee being warned about unsatisfactory performance, and a subsequent dismissal. This period of time gives the employee the opportunity to understand their employment is at risk and to try and improve their performance.36
[85] A mere exhortation for an employee to improve their performance would not be a sufficient warning. A warning must:
• identify the relevant aspect of the employee’s performance which is of concern to the employer; and
• make it clear that the employee’s employment is at risk unless the performance issue identified is addressed. 37
[86] The dismissal was due to Ms Diabel’s incapacity to perform her role and not performance. This is a neutral factor.
Impact of the size of Metro Trains on procedures followed and absence of dedicated human resources management specialist/expertise on procedures followed – s.387(f)-(g)
[87] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.38 Further, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account 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.39
[88] I also find, having regard to the foregoing, that Metro Trains’ enterprise did not lack dedicated human resource management specialists and expertise.
What other matters are relevant? – s.387(h)
[89] Section 387(h) requires the Commission consider any other matters that the Commission considers relevant.
[90] Ms Diabel submits the following matters are pertinent to the exercise of the Commissions discretion when considering whether the dismissal was harsh;
• Ms Diabel was 57 years of age at the time of her dismissal;
• she was a faithful employee;
• she is a Train Driver in a State where Metro Trains is the primary provider of rail services; and
• she has been unable to find alternative employment despite having made several job applications.
[91] Whilst I acknowledge that Ms Diabel’s age may pose some barriers to obtaining future employment, I note that whilst she was unable to return to work due to her incapacity Ms Diabel continued with her studies in psychology which may result in alternative employment prospects.
[92] Although Metro Trains is the primary provider of rail services in Victoria, on the evidence provided in these proceedings there is the prospect that Ms Diabel would be able to do a conversion course and apply for roles with V/Line.
Conclusion
[93] I have made findings in relation to each matter specified in section 387 of the Act as relevant. I have considered and given due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable I am satisfied that Ms Diabel’s dismissal was not harsh, unjust or unreasonable and that there was a valid reason for Ms Diabel’s dismissal due to her incapacity to perform her role at the time of her dismissal and in the foreseeable future.
[94] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Ms Diabel was unfairly dismissed within the meaning of section 385 of the Act. Ms Diabel’s application is therefore dismissed.
[95] An Order 40 to this effect will accompany this decision.
COMMISSIONER
Appearances:
R. Levin of Anderson Gray Lawyers for the Applicant.
K. Reidy of Metro Trains Melbourne Pty Ltd for the Respondent.
Hearing details:
2021.
Melbourne:
7 October.
Final written submissions:
Applicant: 17 September 2021.
Respondent: 1 October 2021.
Printed by authority of the Commonwealth Government Printer
<PR734429>
1 Witness Statement of Melissiah Diabel, 17 September 2021, at Attachment MD-8.
2 Ibid, Opinion of Gostencnik DP at [4].
3 Witness Statement of Melissiah Diabel, 17 September 2021, at Attachment MD-8.
4 Ibid, at Attachement MD-10.
5 Ibid, at [22].
6 Ibid, at Attachment MD-14.
7 Ibid, at Attachment MD-15.
8 Ibid, at Attachment MD-16
9 Ibid, at Attachment MD-18
10 Ibid, at Attachment MD-20.
11 Ibid, at Attachment MD-21
12 Ibid, at Attachment MD-22.
13 Ibid, at Attachment MD-27.
14 Ibid, see Attachment MD-29.
15 AE508102.
16 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
17 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8.
18 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.
19 Ibid.
20 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685.
21 Ibid.
22 Crozier v Australian Industrial Relations Commission [2001] FCA 1031, [14].
23 Reseigh v Stegbar Pty Ltd[2020] FWCFB 533 at [42].
24 [2018] FWCFB 1005.
25 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430 per Brennan CJ and Dawson and Toohey JJ; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14; Paech v Big W Monarto Warehouse [2007] AIRCFB 1049 at [8].
26 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
27 Previsic v Australian Quarantine Inspection Services Print Q3730.
28 Ibid.
29 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [73].
30 RMIT v Asher (2010) 194 IR 1 at 14-15.
31 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
32 Fair Work Act 2009 (Cth) s.387(d).
33 Explanatory Memorandum, Fair Work Bill 2009 (Cth) [1542].
34 Fair Work Act 2009 (Cth) s.387(e).
35 Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.
36 Johnston v Woodpile Investments Pty Ltd T/A Hog’s Breath Café – Mindarie[2012] FWA 2 [58].
37 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
38 Fair Work Act 2009 (Cth) s.387(f).
39 Fair Work Act 2009 (Cth) s.387(g).
40 PR735527.
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