Mohammed Aejaz Bukhary v South32 Group Operations Pty Ltd

[2020] FWC 2610

[2020] FWC 2610

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohammed Aejaz Bukhary
v
South32 Group Operations Pty Ltd
(U2019/10040)

COMMISSIONER WILLIAMS PERTH, 19 MAY 2020

Termination of employment.

[1] This decision concerns an application made by Mr Mohammed Aejaz Bukhary (Mr Bukhary or the Applicant) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent is South32 Group Operations Pty Ltd (South32 or the Respondent).

[2] The Applicant had been employed as a Consolidation Systems Analyst since 2015.

[3] The Applicant’s employment was terminated on 19 August 2019 essentially on the basis that South32 had concluded the Applicant was unfit to perform the inherent requirements of his role.

[4] At the hearing of this matter Mr Bukhary gave evidence on his own behalf and tendered a statement from Dr Zlatan Golic (Dr Golic) 1. For the Respondent evidence was given by Ms Katherine Tovich, Chief Financial Officer, Ms Anneke Klopper (Ms Klooper), Manager Finance, Functions, Projects, and Joint Ventures and Ms Melissa English (Ms English), Human Resources Lead.

Evidence and factual findings

[5] Much of the history of this matter is not disputed between the parties.

[6] Based on the evidence of the witnesses I find as follows.

[7] The Applicant commenced working for South32 in May 2015 as a Consolidation Systems Analyst.

[8] He was responsible for operating and maintaining the accounting consolidation system for internal and external reporting. The role included cultivating reporting relationships with the managers of the management reporting, tax, IT and treasury groups. These relationships were systems-based and positioned outside of his team.

[9] The Applicant was required in his role to work in a collaborative way with all stakeholders within the South32 group.

[10] The Applicant initially reported to Mr Michael Sucher (Mr Sucher), Senior Manager - Corporate Reporting.

[11] In June 2016 the Applicant says he asked to be considered for roles that involved greater creativity and collaboration such as accounting policy and management reporting, as he felt this would better suit his strengths.

[12] Performance reviews or “check-ins” were required to be scheduled regularly as a means of employees obtaining feedback and monitoring against their current KPIs.

[13] In or around July or August 2016, South32 raised issues about the Applicant’s performance. He says he was concerned that the allegations regarding his performance were unsubstantiated as he was not provided with the level of evidence he understood was required under the relevant internal procedures.

[14] The Applicant’s evidence is that in October 2016, he was placed on a performance improvement plan (PIP).

[15] Despite having concerns, he says he engaged with the PIP and achieved the required improvements in performance. The PIP ended around February 2017.

[16] In June 2018 there was an internal restructuring and as a result Ms Klopper became the Applicant’s direct manager.

[17] Ms Klopper says that between July 2018 in April 2019 she raised a number of concerns with the Applicant about his performance. Initially she raised concerns in an informal way with a view to supporting him and encouraging him to improve his performance. She says that in December 2018 during a performance check-in she again raised her concerns with his performance.

[18] Her evidence was that during the course of these discussions the Applicant refused to accept her feedback and she continued to receive complaints from other team members about his performance. 2

[19] Around 18 January 2019 the Applicant says he was requested to attend a meeting with Ms Klopper and Mr Sucher, who is now Ms Klopper’s manager, on 21 January 2019. He says that he was not given any notice that his alleged underperformance was to be discussed.

[20] The Applicant’s evidence is that he was utterly surprised when at this meeting he was told that he was underperforming in the following competencies and behaviours; availability, attention to detail, impact on others, communication, accountability. He says he could not understand this as only a month earlier he had been told availability was one of his strengths.

[21] On 28 January 2019 the Applicant emailed Ms Klopper to ask her why those areas of his supposed underperformance were not brought up with him before. He also requested evidence in writing that supported the charge of underperformance.

[22] The same day Ms Klopper replied to the Applicant’s email identifying 11 examples of concern with his performance but, the Applicant says with no evidence to back up these examples.

[23] On 11 February 2019 the Applicant says he sent to Ms Klopper an email and attached 24 documents that disputed her 11-point claim of underperformance.

[24] On 19 February 2019 the Applicant had a meeting with Ms Slater, from Human Resources and Ms Klopper. The Applicant says he was concerned that allegations were being made regarding his performance that could not be substantiated. At the end of the meeting, Ms Slater and Ms Klopper said they would review the points he raised.

[25] Ms Klopper arranged a performance follow-up meeting on 12 March 2019. The Applicant emailed Ms Klopper asking for an agenda for this meeting but did not receive a reply.

[26] On 12 March 2019 Ms Klopper and Ms Slater again met with the Applicant and informed him that he was to commence what was described as an Expectations Plan. The Applicant says Ms Klopper said words to the effect that it was not what he was doing but how he was doing things.

[27] Ms Klopper gave the Applicant an expectations letter which identified seven specific areas of his performance and behaviour which it says require improvement. The letter explained that future catch ups will be held to review his progress and encourages him to suggest any reasonable support or training the company could provide to assist him. The letter also states that failure to meet the required expectations may result in further action which may include disciplinary action. 3

[28] The Applicant’s evidence is that he did not understand why he was been putting on an Expectations Plan or what the plan was. He did not sign the expectations letter.

[29] As a consequence, on 2 April 2019 in a meeting the Applicant requested an outcomes review process be commenced by the Human Resources Lead, Ms English.

[30] Ms English commenced that review into the performance management process which was conducted between 3 and 9 April 2019. Ms English says as part of this process she considered the concerns the Applicant raised with her on 2 April 2019 and emails between the Applicant and Ms Klopper which he had provided. Ms English also met with Ms Klopper to understand her reasons for instigating the performance management process and her response to the materials the Applicant had provided earlier to her. Ms English said she also met with Ms Slater to further understand the process that had been followed to date.

[31] Ms English’s evidence was that after considering all the information she concluded that the Applicant’s concerns were not substantiated and that the conduct of Ms Klopper had been a genuine attempt to provide both constructive feedback and coaching to improve the Applicant’s work performance. 4

[32] On 9 April 2019 the Applicant attended a meeting with Ms English and Mr Sucher. The Applicant’s view was that Ms English had reviewed his response to Ms Klopper’s claims instead of reviewing Ms Klopper’s initial claims of underperformance. He says he was questioning whether there was evidence to support the claim that he was underperforming but this was not addressed by Ms English at all.

[33] At the 9 April 2019 meeting the Applicant was advised that he should communicate to Mr Sucher within the next two business days whether or not he accepted the Expectations Plan. He was also advised in a letter from Ms English the reasons for her findings and of his ability to escalate his concerns in accordance with steps outlined in South32’s Outcome Review Procedure.

[34] On 11 April 2019 the Applicant was absent on personal leave. He was absent from work on a mixture of personal leave and annual leave until 2 May 2019.

[35] At the Respondent’s request on 2 May 2019 the Applicant underwent a fitness for work assessment conducted by Dr Olivia Lee (Dr Lee).

[36] The applicant agrees Dr Lee asked if he had any previous illnesses and he told her that he did not have any previous psychological or psychiatric illnesses.

[37] The Applicant deliberately did not disclose to Dr Lee that he had previously received treatment for Attention Deficit Hyperactivity Disorder (ADHD). He did not disclose to Dr Lee that he had been treated for this by a psychiatrist, Dr Golic.

[38] At no time prior to 11 August 2019 had he disclosed these facts regarding ADHD and his treatment of it to his employer.

[39] The Applicant says he exercised his right not to disclose this because he was concerned about people’s unconscious bias against people with disabilities in the workplace.

[40] The Applicant also agrees, as is included in Dr Lee’s report, that he told her he wanted a role at South32 that was not going to be available until 2020 and he wanted to be on workers’ compensation until then. 5

[41] Dr Lee issued a report about the Applicant’s fitness to work which was also provided to the Applicant. 6

[42] Dr Lee’s summary and assessment includes the following,

“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 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 the 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.”

[43] Dr Lee’s medical opinion as to whether the Applicant is currently fit to undertake the full demands of his role was that,

“There are no psychiatric reasons to preclude him from undertaking the full demands of his role if he was able to work with different managers. Under those conditions, if he is not able to fulfil the role demands, it is not due to a psychiatric condition.”

[44] Dr Lee’s answer to the question “[d]o you consider he is fit to commence a restricted return to work program?” was,

“The only restriction that I would place is that he needs to have a different manager. That or work in a different department because of the irreversible breakdown in the relationship with his Managers.”

[45] Dr Lee goes on to state that the restriction of not working with his current managers would likely need to be long-term.

[46] Dr Lee’s report also includes the following,

“He said that the clear solution was for him to be transferred into a different department. He said that he would be able to take up any work proposed if he did not have to return to work with the same two Managers. He said that the role that he wants will not become available until 2020 and he said, “I want to be on Workers’ Comp until then”.”

[47] The Applicant has read Dr Lee’s report and is aware of her findings that if he returned to the same department with the same managers his symptoms would be likely to return, and he agrees that that is the case, without any treatment.

[48] The Applicant agrees with Dr Lee’s recommendations about him returning to work. 7

[49] On 23 May 2019, the Applicant received a letter from Mr Sucher asking him to attend a meeting to discuss Dr Lee’s report, his relationship with his managers, and a return to work plan.

[50] The Applicant’s evidence was that he declined to meet with Mr Sucher as it appeared as if the meeting required him to enter into a return to work program that did not contain any of the recommendations included in Dr Lee’s report.

[51] The email the Applicant sent to Ms English declining the meeting he had been requested to attend includes the following points,

•  He notes that Dr Lee’s assessment is he is unfit for work until there is a change in managers or department and the Applicant says “I will not go against these recommendations as you have requested. Therefore I decline your request for a review meeting on this basis.”

•  The Applicant says that he will be obtaining an independent psychiatric diagnosis and recommendation.

•  The Applicant ends his email as follows,

“Failure to implement the recommendations contained in either Dr Lee’s report or the independent psychiatric assessment may result in further action including but not limited to an application for order to the Fair Work Commission.” 8

[52] The next day 24 May 2019, the Applicant filed a workers’ compensation claim.

[53] On 26 May 2019, the Applicant submitted a bullying and harassment claim through South32’s Ethics Point, an online workplace grievance point of contact.

[54] Next, Ms English sent the Applicant a letter asking for a meeting on 10 June 2019 and he agreed but under the following conditions:

a) The Applicant asked that Mr Sucher not attend the meeting but that an authorised member of the business be present should a business decision be required;

b) The Applicant asked that a detailed meeting agenda be sent to him in advance; and

c) The Applicant also asked that any return to work program should include the recommendations detailed by Dr Lee in her assessment.

[55] South32 agreed to convene the meeting with a replacement standing in for Mr Sucher. An agenda was provided to the Applicant.

[56] The meeting goes ahead on 10 June 2019.

[57] By email on 15 July 2019 the Applicant indicates he will not return to work unless there are a change of his managers. 9

[58] The Applicant provides medical certificates and is on a period of personal leave until the end of July 2019.

[59] On 24 July 2019 Ms English sends a letter to the Applicant advising that the investigation into his Ethics Point grievance has found his allegations to be unsubstantiated. The letter refers to him having been unfit to perform the inherent requirements of his role since 9 April 2019 due to the irreversible breakdown in a relationship with his managers as diagnosed by Dr Lee. The letter advises that the company maintains that a restructure of the departments to address his diagnosis would be unreasonable and unduly disruptive to the team. The letter seeks to schedule a meeting with him in the week commencing 29 July 2019 to discuss his ongoing employment and he is invited to bring a support person.

[60] On 31 July 2019 Ms English and Ms Caterina met with the Applicant and discussed his employment. The Applicant was advised South32 were considering terminating his employment and he was provided with a show cause letter which provided him with an opportunity to provide a response before the Respondent made a final decision. The Applicant did not respond to the issue of his employment being terminated during this meeting.

[61] The show cause letter dated 31 July 2019 repeats the history of the Applicant, it says, being unfit to perform the inherent requirements of his role since April 2019 due to the irreversible breakdown in the relationship with his managers. The letter refers to Dr Lee’s report and diagnosis. The letter states that as previously advised to him the company deems it unreasonable and unduly disruptive to restructure his department or to allocate his role to another team and they have considered whether there are any suitable alternative roles they can offer him however the letter says this is something that the Respondent is not prepared to explore given that he was not meeting performance expectations in his existing role and was unable to accept the company’s performance management processes were reasonable, despite multiple reviews confirming it was.

[62] The letter states that on the company’s assessments he is no longer able to fill the inherent requirements of his role including compliance and cooperation with existing line leadership. The medical advice is the situation is unlikely to change in the foreseeable future and transferring him into an alternative role would not be suitable in all the circumstances and so the employment relationship has irreversibly broken down.

[63] The letter states that in light of this the Respondent is proposing to end his employment. The Applicant is invited to provide a written response to this by 6 August 2019 and further meetings can be scheduled to discuss his response thereafter.

[64] The same day, 31 July 2019, the Applicant sends his response to the show cause letter. The Applicant’s response in summary says that the issue of meeting performance expectations in his existing role is still in dispute, there was only one review (not multiple) and he believes there are still subsequent steps pending in the outcome review, however notwithstanding this he proposes that:

a) he is seconded to an alternative specific role he identifies,

b) he would be willing to consider any Expectations Plan over the disputed behavioural traits raised in the Respondent’s 12 March 2019 letter to be assessed during the secondment,

c) the specific role he proposed to be seconded to has a different manager and so satisfies Dr Lee’s recommendations,

d) he says his proposal is consistent with the Fair Work Ombudsman Best Practice Guide for Managing Underperformance which refers to exploring opportunities in other areas of the business, and

e) he states his proposal is consistent with the Respondent’s Diversity and Inclusion Policy given his Indian ethnicity.

[65] On 7 August 2019 Ms English by email to the Applicant proposes a further meeting.

[66] On 11 August 2019 the Applicant by email to Ms English explains he is intending to provide a letter from a Dr Golic and mentions for the first time his diagnosis of ADHD.

[67] The Applicant also then requested, because of his ADHD disability, reasonable accommodations and special consideration be given to him in relation to the underperformance complaints.

[68] On 14 August 2019 Dr Golic’s letter is sent to the Respondent. 10

[69] Dr Golic in this letter states that the Applicant “...has been diagnosed with long-standing Attention Deficit Hyperactivity Disorder (ADHD), Generalised Anxiety Disorder (chronic) and Cluster C Personality with a degree of obsessive and oppositional symptomology.”

[70] The letter states the Applicant has been receiving treatment for his condition.

[71] Dr Golic’s letter goes on to quote the Applicant’s view of his work situation and then Dr Golic expresses his opinion that support for the Applicant including accommodation of a change in line leaders and department would minimise his stress and improve his work performance.

[72] Dr Golic also provided a witness statement 11 for the hearing however did not attend the hearing. His statement was not objected to by the Respondent’s save for paragraph 7 which has been struck out.

[73] Dr Golic in the statement says he has been the treating psychiatrist for the Applicant since October 2015. He repeats the Applicant’s diagnosis and states ADHD did not render him unable to work or impair his ability to work, nor did it and its treatment predispose the Applicant to resist his line managers and it did not disable him from submitting to management.

[74] Dr Golic says it would be difficult to say if the Applicant could have returned to work at the time of his dismissal under the supervision of his existing line managers and have the same functioning prior to February 2019. He says however if his employer accommodated the Applicant’s request to be transferred to another team under a different manager that his symptoms would have been significantly eased.

[75] On 14 August 2019 Ms English by email to the Applicant requested he consent to releasing Dr Golic’s letter to Dr Lee for her consideration.

[76] By email dated 14 August 2019 at 9:27 p.m. the Applicant advises that he cannot provide his authority to release Dr Golic’s letter to Dr Lee. He instead proposes a process whereby Dr Lee should request of Dr Golic in writing why she proposes to receive from him particular medical information and Dr Golic will then provide an appropriate response after obtaining the Applicant’s consent.

[77] In response Ms English explains to the Applicant that given the medical information provided by Dr Golic was not disclosed to Dr Lee in the original fitness for work assessment the Respondent would like to understand how this new information might impact Dr Lee’s original diagnosis.

[78] In reply on 15 August 2019 at 10:50 a.m. the Applicant says he is concerned about the integrity of the original fitness for work assessment which may have been compromised and that this would require a separate independent investigation. He repeats he is unwilling to simply allow Dr Lee to see Dr Golic’s letter and repeats the process he proposes.

[79] Ms English replies explaining again the reason why they would simply like Dr Lee to be appraised of Dr Golic’s letter. She points out this matter has been ongoing for months and that the Applicant has been provided with multiple opportunities to put forward all the information he wants them to consider.

[80] On Friday, 16 August 2019 at 12:09 a.m. the Applicant confirms he will not provide his consent for the release of Dr Golic’s letter to be provided directly to Dr Lee.

[81] Ms English replies by email the same day explaining the company will consider the information provided and will communicate a formal response during the week commencing 19 August 2019 and request he confirmed his preference for future communications advising the outcome can be provided in writing via email or the Respondent is happy to schedule a meeting with him to discuss the outcome in person followed by confirmation in writing.

[82] On Sunday, 18 August 2019 the Applicant emails Ms English requesting she please communicate the outcome in writing.

[83] The following day Monday, 19 August 2019 the Respondent provides the termination of employment letter to the Applicant’s by email.

[84] The termination of employment letter dated 19 August 2019 sets out the history of the matter and in summary as follows,

1. The Applicant has been diagnosed with an Adjustment Disorder with anxiety features, triggered by the irreversible breakdown in his relationship with his managers.

2. It is an inherent requirement of his role that he constructively in cooperative work with his managers. The medical advice says his symptoms are likely to return if he returns to his role reporting to his managers and accordingly he is unable to safely perform the inherent requirements of his role.

3. There are no reasonable adjustments that can be made to his role to allow him to perform the inherent requirements. It is unreasonable and unduly disruptive to restructure the department and the reporting lines of his role.

4. The company is not prepared to transfer him to another role because he is not meeting the expectations in his current role and refused to constructively participate in performance management. There is no legal obligation to redeploy him into another role.

5. Reviews of the performance management process have determined that this was reasonable. There are no outstanding review actions pending as he has alleged.

6. The fact he continues to dispute the reasonableness of the actions taken by his managers to performance manage him demonstrates the fundamental breakdown in the employment relationship. It also suggests if his employment was to continue he would not participate in performance management constructively. Consequently, the company is not prepared to second him into another role.

7. The company is disappointed he was not forthcoming with the information about his ADHD diagnosis and that this was withheld during the fitness for work assessment. Nothing in the information he has provided about this indicates he is able to perform the inherent requirements of his role.

8. Allegations he has raised regarding the integrity of the fitness for work process, regarding the company contacting Dr Lee’s prior to the process were unfounded. That contact was normal process to provide Dr Lee with a factual account of the relevant background and was not inappropriate.

[85] The letter concludes that based on these findings and particularly the fact that the Applicant is unfit to perform the inherent requirements of his role the Respondent has decided to terminate his employment, effective that day with pay in lieu of notice.

[86] The sequence of events was that the Applicant only made the Respondent aware of his having been diagnosed with ADHD and that he had been historically treated by Dr Golic after the Respondent had issued him the show cause letter and after the Applicant had responded to the show cause letter.

[87] The evidence of Ms English is that while she accepts the show cause letter did not refer to the late disclosure by the Applicant of his ADHD condition and him not disclosing this information to Dr Lee during the fitness for work assessment, the concerns the Respondent had about this referred to in numbered point 7 of the termination of employment letter was not a primary reason for the Applicant’s termination. Her evidence was that the primary reason for his termination was that the Applicant was unfit to perform the inherent requirements of his role.

[88] I accept Ms English’s evidence on this point which is consistent with the lengthy history between the parties concerning the Applicant’s unfitness to return to his role based on Dr Lee’s assessment. 12

Submissions

The Applicant

[89] Section 382 of the provides for when a person is protected from unfair dismissal.

[90] It is not in dispute that the Applicant is protected from unfair dismissal and eligible to make an application for an unfair dismissal remedy.

[91] Section 385 of the Act provides for when a dismissal is unfair, with section 387 providing the criteria for considering harshness.

[92] In considering if a dismissal was harsh, unjust or unreasonable section 387(a) of the Act provides that the Commission must take into account if there was a valid reason for the dismissal related to the person’s capacity or conduct.

[93] Such a reason must be sound, defensible or well-founded. 13

[94] A reason for dismissal will not be valid if it is capricious, fanciful, spiteful or prejudiced. 14

[95] The Respondent dismissed the Applicant on the basis that the Applicant was unable to fulfil the inherent requirements of his role because a breakdown in the relationship with his line managers, and the employment relationship had irretrievable broken down.

[96] The Applicant’s relationship with his managers had broken down because of the Applicant’s concerns regarding the management of the performance process. It is submitted it was open to the Respondent, a large organisation, to transfer or second the Applicant to a position under different managers whilst continuing the performance management process as recommended by Dr Lee during the fit for work assessment. The Applicant’s employment relationship as a whole had not broken down, just the relationship with his direct line managers.

[97] The Applicant argues the allegations of underperformance had not been substantiated, and the performance management process was ongoing. It was premature of the Respondent to make the assessment that the Applicant could not be transferred or seconded based on these allegations regarding the Applicant’s performance.

[98] It is submitted the Applicant has demonstrated a willingness to engage with the Respondent and the performance management process during transfer or secondment.

[99] There was no valid reason for the Applicant’s dismissal. Even in the event it was found that the Respondent had a valid reason to terminate the Applicant’s employment which is denied, the circumstances of the dismissal were harsh, unjust or unreasonable.

[100] Section 387(h) of the Act allows the Commission to take into account any other relevant matters.

[101] The Commission may take into account the differential treatment of other employees when determining if a dismissal is harsh, unjust or unreasonable. 15

[102] The Applicant is aware of circumstances in which a colleague whose relationship with line managers had deteriorated was given the opportunity to transfer or be seconded. The Applicant was not afforded such an opportunity by the Respondent, despite it being in line with the return to work recommendations of Dr Lee.

The Respondent

[103] The Respondent submits an inability to perform the inherent requirements of a position is generally regarded a valid reason for dismissal.

[104] Where an employer relies upon incapacity to perform the inherent requirements of an employee’s 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 in order to accommodate the employee’s injury.

[105] The Applicant’s substantive role was Consolidation Systems Analyst. The role sits within the organisational structure of the Respondent’s financial reporting team. The role reports to the Manager Governance and Reporting, which reports to the Group Manager Financial Reporting. The Group Manager reports to the South32 group’s Chief Financial Officer.

[106] The main responsibilities of the role of Consolidation Systems Analyst is to ensure the integrity, accuracy and governance of South32’s system which consolidates the financial data from South32’s various legal entities to prepare the South32 group’s consolidated financial reports on a monthly, half-yearly and annual basis. In addition, this role is also:

•  accountable for reviewing, supporting and managing changes to the accounting system; and

•  required to work in a collaborative way with all stakeholders within South32’s group management reporting team, group IT for system changes and other finance teams such as group tax and group treasury.

[107] In order to achieve these responsibilities, the Applicant was accountable for:

•  supporting the integrity of the Respondent’s finance systems and processes;

•  trouble-shooting month end, half year and year end finance system issues;

•  managing any merger and acquisition implications and associated testing of the consolidation system;

•  ensuring monthly accuracy of all consolidated equity balances, including performing required reconciliations/proofs and having knowledge of all movements through consolidated equity balances;

•  maintaining and supporting the finance master data governance framework;

•  reviewing, supporting and managing system change requests;

•  executing and controlling front end loading activities for system changes/upgrades by controlling content and scope of all projects;

•  rolling out and implementing system upgrades / changes to the finance systems;

•  engaging with finance representatives to continually improve system process and data compliance;

•  supporting finance teams by providing guidance and leadership in analysis & improvement opportunities; and

•  supporting finance half year and year end reporting requirements as required.

[108] Given the nature of these responsibilities within the financial reporting team, the Applicant also had to have the following personal attributes in the performance of his role:

a) Demonstrates an ability to influence, communicate and engage with internal and external stakeholders to achieve positive outcomes for the business; and

b) Interacts positively with others and engages in a broad range of positive interpersonal interactions.

[109] These attributes apply equally to interacting positively with the managers responsible for the team in which the role of Consolidation Systems Analyst is organisationally situated. All South32 employees are required to interact positively with their line leader.

[110] Where a dismissal relates to a person’s capacity, section 387(a) of the Act requires the Commission to consider and make findings as to whether, at the time of dismissal, the Applicant suffered from the alleged incapacity having regard to the relevant medical evidence before the Commission.

[111] The Respondent submits the relevant medical evidence before the Commission is that of Dr Lee contained in her report of 7 May 2019. Dr Lee,

a) considered that the Applicant had an adjustment disorder with anxiety features. Dr Lee noted that the Applicant’s symptoms had been “precipitated and perpetuated by the breakdown in the relationship with his Managers”;

b) determined that “There are no psychiatric reasons to preclude [the Applicant] from undertaking the full demands of his role if he was able to work with different managers”;

c) assessed the Applicant as being fit to return to work but subject to the restriction that “he needs to have a different Manager or work in a different department because of the irreversible breakdown in the relationship with his Managers”; and

d) considered that this restriction would “likely need to be long term”.

[112] The Applicant agreed with Dr Lee’s medical assessment that he was not able to return to the role under the supervision of the existing Manager Governance and Reporting (Ms Klopper) and Group Manager Financial Reporting (Mr Sucher).

[113] On 31 July 2019, the Respondent sent a letter to the Applicant advising of its proposal to terminate his employment, based upon the following information:

1. the Applicant was no longer able to fulfil the inherent requirements of his role, being compliance and cooperation with existing line leadership;

2. on Dr Lee’s advice, the situation was unlikely to change in the foreseeable future;

3. transferring the Applicant into an alternate role would not be suitable in all the circumstances; and

4. the employment relationship had irreversibly broken down.

[114] The Respondent invited the Applicant to provide a written response to the Respondent’s proposal before a decision was made regarding the Applicant’s employment.

[115] As part of his response, on 11 August 2019 the Applicant sent an email informing the Respondent that he had been diagnosed with ADHD.

[116] On 14 August 2019, the Respondent received a letter from the Applicant’s treating psychiatrist, Dr Golic, confirming his diagnosis of ADHD.

[117] The Applicant had not disclosed his diagnosis of ADHD to Dr Lee as part of her independent psychiatric assessment. When asked by Dr Lee, the Applicant denied having any past psychiatric history. Dr Lee also reported that, based upon her own assessment, she “could not elicit any other medical conditions which have impacted on his symptoms and diagnosis”.

[118] Due to the Respondent’s reliance on Dr Lee’s medical assessment in proposing the termination of the Applicant’s employment, the Respondent then sought the Applicant’s consent to provide Dr Golic’s report to Dr Lee, so that Dr Lee could consider this additional information and provide a revised opinion to the Respondent. The Applicant refused to provide his consent, despite the Respondent clearly articulating the purpose for providing that report to Dr Lee and the potential consequences of his refusal to consent.

[119] Even taking the information contained in the letter provided by Dr Golic on its face, there is nothing in that letter to suggest that there would be a different outcome to Dr Lee’s original assessment, as the only accommodation that the Applicant was seeking was “a change in line leaders and department at which he used to work”.

[120] In these circumstances it is submitted, the Respondent was entitled to continue to rely on the information contained in Dr Lee’s report, in making its decision to terminate the Applicant’s employment.

[121] The evidence before the Commission clearly establishes that at the time of dismissal, the Applicant was suffering from a psychological condition which prevented him from returning to work in his existing position with the Respondent.

[122] A significant feature of this application from the Applicant’s perspective was that he was able to perform the inherent requirements of his role until January 2019, when his managers’ initiation of a performance review process (which he considered to be unfair and unreasonable) triggered the deterioration of his working relationships and subsequently his health. However, the events concerning the Respondent’s performance review process, and the investigation into the allegations made by the Applicant against his managers concerning bullying and harassment, were ultimately not what brought about the end of the Applicant’s employment.

[123] Consequently, the Respondent submits it is not necessary for the Commission to make findings about the substance of the Applicant’s complaints, nor whether the performance management or investigation undertaken by the Respondent were reasonable.

[124] The requirements for an unfair dismissal remedy have not been met for the reasons set out above and the Respondent submits the application should be dismissed.

The legislation

[125] Section 387 of the Act, which is set out below, details factors that the Commission must take into account when considering whether an applicant has been unfairly dismissed.

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

Consideration

Valid reason

[126] The evidence is that the Applicant’s role involved amongst other things a requirement to work collaboratively with all stakeholders within South32’s group management reporting team plus with the group IT for systems changes as well as with other finance teams such as group tax and group treasury.

[127] The Applicant also had to have personal attributes to perform his role including an ability to influence, communicate and engage with internal and external stakeholders to achieve positive business outcomes and to be able to engage in a range of positive interpersonal interactions.

[128] Being able to interact positively with those managers responsible for his team was required of the Applicant as it would be for most other South32 employees.

[129] These were inherent requirements of the Applicant’s role.

[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.”

[131] The assessment was that the Applicant was only fit to return to work with different managers.

[132] The Applicant entirely agreed with Dr Lee’s assessment and at no time contested this. 16

[133] The additional medical evidence known to the Respondent at the time of dismissal was the letter dated 14 August 2019 from the Applicant’s treating psychiatrist Dr Golic.

[134] Dr Golic in his letter refers to Dr Lee’s assessment that there has been an irreversible breakdown in the relationship with the Applicant’s line leaders. Dr Golic does not dispute Dr Lee’s assessment.

[135] Dr Golic’s letter notes the Applicant was seeking support including accommodation of a change in line leaders and department. Dr Golic’s opinion is that this would allow the Applicant to minimise his stress and improve his work performance.

[136] I am not at all satisfied that the Applicant has demonstrated on the evidence that his medical incapacity was caused in some way by an unreasonable act of the Respondent.

[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 17 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 18 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.” (Underlining added)

[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.

Notification of reason for dismissal

[141] The Applicant was notified of the reason for his dismissal in the Respondent’s letter dated 19 August 2019.

Opportunity to respond

[142] The Applicant had an opportunity to respond to the reasons for which she was dismissed during a meeting on 31 July 2019. Also, at this meeting he was provided with a show cause letter. That letter invited him to provide a response by close of business 6 August 2019. The Applicant in fact provided his written response to the Respondent later that day on 31 July 2019.

Support person

[143] There was never any refusal let alone an unreasonable refusal by the Respondent to allow the Applicant to have a support person present at any discussions relating to his dismissal.

Warnings in respect of unsatisfactory performance

[144] This factor is not relevant because the dismissal of the Applicant was not based on his performance but rather his incapacity to perform inherent requirements of his role.

The size of the Respondent’s enterprise and the existence of Human Resource management specialists

[145] The Respondent is a large enterprise which does have dedicated Human Resource management specialists, and this was reflected in the appropriate procedures followed in effecting the Applicant’s dismissal.

Other relevant matters

[146] The Applicant had been employed for a little over four years.

[147] Whilst the Applicant has referred to unfair differential treatment compared to one other employee the evidence in support of this was minimal and insufficient to conclude this assertion was correct. 19

Conclusion

[148] I am not satisfied that the dismissal of Mr Bukhary was either harsh, unjust or unreasonable. The dismissal was not unfair.

[149] Consequently, this application will now be dismissed and an order [PR719470] to that effect will be issued.

Appearances:

M. Hillier of MKI Legal, solicitor for the Applicant.
R. Cosentino, counsel for the Respondent.

Hearing details:

2020.
Perth:
February 28.

Printed by authority of the Commonwealth Government Printer

<PR719469>

 1   Exhibit A3.

 2   Exhibit R5, Attachment AK3.

 3   Exhibit A1, Attachment MB5.

 4   Exhibit R7 at paragraphs 12 to 15.

 5   Transcript at PN290 to PN304.

 6   Exhibit R7, Attachment MCE7.

 7   Transcript at PN287.

 8   Exhibit R7, Attachment MCE10.

 9   Ibid., Attachment MCE14.

 10   Exhibit A1, Attachment 11.

 11   Exhibit A3.

 12   Transcript at PN576 to PN580.

 13   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

 14   Ibid.

 15   See Sexton v Pacific National (ACT) Pty Ltd PR931440 at [33] and Jetstar Services Pty Ltd [2013] FWCFB 7030 at [13].

 16   See for example Exhibit R7, Attachment MCE9.

 17   [2010] FWAFB 4022.

 18   [2013] FWCFB 9075.

 19   Exhibit A1 at paragraph 45.