Mr Alan De Sousa v Department of Education, Employment and Workplace Relations

[2013] FWC 10155

[2013] FWC 10155

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Alan De Sousa
v
Department of Education, Employment and Workplace Relations
(U2013/10789)

COMMISSIONER STEEL ADELAIDE, 23 DECEMBER 2013

Termination of employment - Incapacity of employee.

Application

[1] The applicant is seeking a remedy in respect to s.394 of the Fair Work Act 2009 (the Act) in regard to his alleged unfair dismissal. There are no relevant jurisdictional matters and the applicant seeks reinstatement pursuant to s.390(1) of the Act.

[2] It is not in contention that the applicant was dismissed, that the dismissal was not a case of genuine redundancy and was not subject to the requirements of the Small Business Fair Dismissal Code. The applicant is seeking a determination as to whether the dismissal was harsh and just unreasonable within the meaning of s.385 of the Act.

Evidence

[3] The applicant provided evidence on his own behalf and witnesses Dr My Tran Ha, Mr John Said, Dr Graham Wright and Dr Yasna Petrunic. The respondent provided witness evidence from Mr Bruce Bungey, Mr Mark Groote, Ms Loretta Cachia and Ms Janine Hollis. For the respondent unchallenged statements were also accepted from Mr Mark Bateman, Mr Benjamin Wyers and Mr Stewart Thomas.

[4] The Commission found the applicant had obvious limitations in regard to his recall of events at times and was assisted by the statements of others. Given regard to the uncontested effects of the applicant’s injuries sustained in his car accident and his stated psychiatric illness, the applicant endeavoured to assist the Commission. The Commission found all witnesses provided reliable testimony and assistance to the Commission save for some limitations as noted above.

Relevant submissions of the parties

[5] The applicant is a long term employee of the public service and prior to his accident had no findings of significant unsatisfactory performance against his record. He should therefore be given some positive allowance for such a record of employment. 1

[6] The applicant was disabled in a motor vehicle accident in 2010 and has remained incapacitated since that time. His injuries resulted in significant psychiatric issues with prescribed medication for such conditions.

[7] The applicant’s psychologist, Mr Said, has identified that his health situation has greatly improved from the adverse situation in early 2012 to a much better cognitive level of performance in recent times. 2 The applicant asserts he was affected by various medication trials around the early part of 2012 going into 2013 and that this should be regarded as a temporary incapacity of significance.

[8] The applicant submits that it is the response of the employer that should be examined in these circumstances as to whether it was a reasonable response to the situation they faced. That is, they were faced with a long term effective employee now having a medical condition which affected his ability to perform his work significantly. The applicant submits that the employer must in these circumstances make appropriate enquiries to ascertain particularly the nature of those symptoms and the prognosis. 3

[9] The applicant asserts the employer must ascertain if the condition is going to be indefinite or permanent or affect the applicant’s ability to undertake the inherent requirements of his job or otherwise. In the applicant’s case he asserts that the relevant medical evidence on his health and material essential for an investigation by the respondent was never obtained by them. The only medical evidence the employer obtained was from Dr Fry in June 2012 and Dr Haynes. That evidence did not address the issue of the applicant’s prognosis and is not featured in the report relied upon by the respondent.

[10] The respondent has just dismissed the medical evidence of the applicant’s condition in 2012 and 2013 when the applicant was being assessed in regard to continuing employment. Factually, things have changed with significant improvement in the applicant’s condition and reliance on medication.

[11] The applicant asserts his condition and his reliance on medication was known to the employer from the latter part of 2012 yet no enquiries were made by the respondent. The applicant did make information available to the rehabilitation advisor of the respondent and to Ms Hollis that clearly advised of his issues. The respondent chose to rely on outdated reports and information.

[12] The applicant submits the Commission should disregard the respondent’s evidence as to issues in the workplace regarding music and the applicant’s effect on others as being irrelevant to the critical matters in this application. Further, that the referred to complaints by colleagues were apparently made in ignorance of his medical condition and need for medication and reflects a lack of understanding in the workplace of the applicant’s personal position.

[13] The applicant’s fundamental proposition is that he was suffering from significant disabilities which affected his ability to perform his work. The respondent faced with this scenario could have made reasonable enquiries of the applicant and if appropriate his medical practitioners or others they may choose to instruct to make enquiries of the medical treatment that the applicant is involved or would be involved in. The respondent needs to consider the future of the relationship of employment, whether the condition is permanent, whether long absences shall be involved or otherwise, what medication is involved and their effects and the necessary accommodations or arrangements. In contrast the applicant submits the respondent made no such enquiries.

[14] The respondent submitsthat the applicant’s evidence must be considered as unreliable to the extent that it was significantly refreshed by material within other statements. Thus in circumstances of contested material facts the respondent’s evidence should be preferred. 4

[15] The applicant, being a full-time public servant, was unfortunately involved in a non-work related motor vehicle accident that resulted in him requiring to be treated and rehabilitated for a range of ailments including psychological injury. There is no evidence of a change to his contract only allowances and accommodations by the employer in regard to his condition and his medical limitations. He was not at any time employed as a part-time employee before his termination.

[16] The respondent had no obligation at law to provide rehabilitation to the applicant or take him back to work until he was able to fulfil his obligated contractual duties. In contrast the employer provided work for him over a period of two and a half years in circumstances where he could clearly not fulfil his duties to give him a chance to improve. The medical evidence of the applicant’s prognosis is vague and it is asserted his doctors cannot say when the applicant would return to work in the sense of being able to complete is contracted duties.

[17] It is not contentious the respondent allowed and accommodated the applicant back into the workplace albeit he could not work full-time. The respondent’s rehabilitation officers were involved in this return to the workplace and were involved in the circumstances of the accommodation. The respondent says this was generous and was essentially risk assessed. The respondent did not obstruct the applicant returning on a limited basis and they allowed him to do so gratuitously.

[18] Mr Manuel, for the respondent, asserted that the respondent’s position is sound in that the requirements of the role are fundamental and on the occasions where an employer allows an injured worker to return to work on an different basis they must be in a position to form a view that within a reasonable time that there will be a sufficient recovery to enable ordinary work. In contrast the applicant’s case is that despite the accommodations the applicant cannot do his contracted work and his prognosis for recovery is vague.

[19] The respondent asserts the applicant has complained about not being provided with part-time work despite wanting to get back to full-time work, a position which is not consistent with the applicant claiming he can return to his contracted duties.

[20] The medical evidence is that the applicant can return to the workforce on a limited basis, i.e. returning to work four days a week and requiring breaks per hour amounting to six hours over four days depending on how he is travelling. 5

[21] The respondent asserts that the applicant’s output of work is such that they could identify no discernible output at a level far below his pay scale. The respondent identified essentially five aspects of concern; timeliness; attention to detail; poor judgement; difficulty carrying out tasks and poor workplace behaviour. The applicant was provided the time and opportunity to meet the standards required but could not do so.

[22] The respondent had gone to some end to accommodate the applicant’s needs over the period of his limited return to work including physical locations and resources and the nature of work required of him. The respondent says the evidence is clear the applicant could not perform in the limited role but was continuing to be paid at his former competency level. In this context the respondent had no obligation to be a rehabilitation provider. They have an obligation to the public purse to get output from employees and they did not get it from the applicant.

[23] In terms of the work assessments relied upon the applicant was given significant leeway in terms of response time to their intended dismissal action.

[24] In terms of the issue of medication consumed by the applicant during the period at work the drug list indicates very serious levels of medication with undoubted effects on the applicant and his performance. The respondent asserts the applicant denied his employer the knowledge of his drug taking and assured them it was not affecting his performance. The respondent, while referring to the aspects of privacy and the implications of such drug therapy, asserts the applicant had a fundamental obligation in terms of safety to the respondent and also his capacity. However he failed to provide an explanation of medical evidence of these effects.

[25] In terms of the reasonableness of the response to the situation of the applicant the respondent asserts that the Commission does not need to stand in the shoes of the employer. It is a question of whether the employer’s actions fit within a range of reasonable responses given the circumstances.

[26] In that respect the employer did not immediately dismiss the applicant which may have been unreasonable. The respondent in contrast, for a period of two and a half years accommodated various hours, breaks, adjusted the applicant’s type of work and work station and computer resources, including the screens heights, all indicating that the respondent was not callous but generous in this respect.

[27] The respondent asserts the workforce of the respondent has reduced and the propensity for part-time work to be accommodated has also been reduced. There is no propensity other than the creation of a role for the applicant at the public’s expense as he lacks the ability to do the job required.

[28] The respondent raised the issue of the applicant’s economic loss and asserted that as the applicant cannot render service in his contracted role from the date of termination he thus has incurred no economic loss from that date. Further, that the applicant may have a claim from his motor vehicle accident. In this respect it is contended the applicant may not be able to mitigate his loss in a realistic way.

[29] The assessment of the applicant’s capacity undertaken by the employer was not really challenged nor his actual performance. The applicant was not disciplined as such nor received warnings as the reason for his standard of performance was it seems reasonably obvious or accepted by the employer as evolving from his injuries. The applicant was subject to a rigorous review of his situation by the respondent. There was a proposal to review him to which the applicant sought to review. This proceeded but was delayed as the applicant as absent for approximately three months. It was recommenced in December 2012. The applicant again made representations and the review was extended. It was ultimately concluded and the respondent gave him five weeks paid leave to provide a response to their intentions.

[30] The applicant’s medical specialists say the review was a source of anxiety for the applicant. The respondent doses not take issue with this as the doctors are treating the applicant as presented to them.

[31] The respondent says they are entitled to make decisions in the interests of the business whilst at the same time having regard to the needs of the employee and in this matter they have clearly done so. The outcome of dismissal in these circumstances was open to the employer on the available evidence.

The relevant facts of the dismissal

[32] Having considered all the evidence and submissions the Commission finds the following relevant facts in this matter.

[33] The applicant presently has residual physical restrictions to his neck, neck pain, post traumatic stress disorder, depression and anxiety. He also has had suicidal ideation.

[34] During the time since his accident he has undergone various medication regimes including anti-psychotic medication, some of which has significantly affected his performance and concentration at times.

[35] The applicant commenced work with the respondent in September 2004. He was an appointed at APS Level 5 in the role of Equity and Diversity Officer. He was injured in a vehicle accident in December 2010 and since that time he has continued to have medical problems.

[36] The applicant returned to work and the respondent allowed him to recommence work on a part-time basis on 27 January 2011. He was unable to return to full-time work but was able to work on a modified four-day week basis, being Wednesdays off on sick leave while his accumulation lasted and agreed breaks of 10-15 minutes every hour on an as needs basis. He was on a number of prescribed medications, was experiencing pain symptoms and had limited energy. He asserts he was doing the same work he was prior to the accident. He has experienced some memory difficulties as a result of the accident and the effects of his medication.

[37] The applicant asserts his condition has improved but he is still unable to work more than four days per week and is seeking reinstatement on that basis and would seek a part-time employment role if reinstated. 6

[38] The applicant has limited recall of his functional assessment test in August 2011 which was directed at his capacity to work. In that report Doctors Fry and Haynes said he was fit to work his normal duties four days per week with breaks and work station adjustments.

[39] In April 2012 he was moved to the policy team. The applicant asserts this was against the medical advice of this Clinical Psychologist, Ms Suter, and his General Practitioner Dr Ha. Mr Bungey, his supervisor, and the applicant met several times in the following months. The applicant had difficulty with detailed recall of those meetings.

[40] The applicant asserts that he was completing and achieving good results in the Individual Performance and Development Plan (IPAD) assessments prior to the above move and his performance was satisfactory. Some three months after this move he was advised of a requirement to undergo an IPAD assessment in which he received an unsatisfactory rating, his first since commencing employment with the respondent. In evidence the applicant refers to four IPAD assessments from the time of the accident to the termination. The first was a good rating, the second was a satisfactory rating, the third was no rating and the fourth was an unsatisfactory rating. 7 The applicant accepts his performance was lower due to his medication and injuries.

[41] Mr Bungey’s evidence is that he completes accurate notes of all meetings as of habit. That he arranged an IPAD plan with the applicant following his transfer. That the applicant also was provided with an ergonomic assessment of this workplace at this time by an occupational therapist of the Recovre Group which liaised with the applicant, DEEWR and the applicant’s medical advisors throughout the course of the applicant’s employment.

[42] Mr Bungey advised the applicant of the requirements of the work plan applying to his employment and the nature of the work he was expected to perform. 8 This was confirmed by email to the applicant.

[43] The ergonomic/workstation report was completed and arrangements were sufficient. Mr Bungey at this time asserts he was not aware of the nature of the applicant’s medication. He had questioned the applicant about his medication. The response was to the effect:

“he merely referenced ‘strong medication’ with no specifics” 9

[44] The applicant in his evidence confirms he had not advised Mr Bungey about the drugs he was taking.

[45] The applicant’s evidence is that he was taking a number of extremely powerful drugs, some of which have significant side effects. He had not advised his employer directly but had signed a written statement allowing the DEEWR Rehabilitation Manager, Mr Bateman, to communicate with his doctors. 10

[46] The applicant, in cross-examination said:

“I did sign a statement allowing the rehab unit manager, Mr Mark Bateman at the time, to communication (sic) with my doctors and it was up to them to communicate and find out exactly what treatment I was receiving.” 11

[47] The applicant further stated:

“A: I was concerned about the social stigmatisation with taking those medications.

Q: You made a conscious decision not to tell your supervisor?

A: That I was taking Zprexa, yes.”

...

Q: Weren’t you in fact strongly of the view that you didn’t want your medication communicated to Mr Bungey?

A: Yes, that is correct. 12

[48] The applicant’s evidence is that he provided certificates to Mr Bungey to cover his absences but letters from his doctors were sent to Mr Bateman and Ms Hollis not to Mr Bungey. 13

[49] The applicant is clear that Mr Bateman:

“...is to communicate what issues I may be encountering, not to reveal personal and confidential information.” 14

[50] Mr Bateman’s evidence is that he was appointed to the applicant’s case on 23 August 2011. His role included the coordination and return to full-time work of injured or ill workers. Mr Bateman organised the functional capacity test of the applicant in March 2012 and the fitness for duty assessment by Doctors Fry and Haynes in May 2012. The reports indicated that the applicant was fit to resume his normal duties for four days per week.

[51] Dr Ha’s evidence is that she communicated with Mr Bateman however she did not have instructions from the applicant to provide aspects of information to the employer. 15

[52] It is clear the applicant did not advise his employer or Mr Bungey of the side effects or symptoms he was experiencing from his medication at any time, nor did he want his employer to be so advised .

[53] Mr Bungey’s evidence is that he regularly asked the applicant if the work arrangements fitted with his medical condition. That he asked the applicant if he was suffering from psychological issues as he had observed some variation in his cogency at work. Mr Bungey says the applicant later raised stress, unrelated to his work, as an issue and that he was seeing a psychologist. The applicant again had difficulty about recall of these events however he indicates he was “very guarded about my personal health.” 16 The applicant denies he communicated he was seeing a psychologist to Mr Bungey.

[54] The evidence of Mr Groote, who supervised the applicant prior to his dismissal, is to the effect the applicant made it quite clear that he was not willing to release medical information to him, only to people based in Canberra and that he did not want Mr Groote to be aware of what was in the reports 17 and that his medication did not affect his role at work.18

[55] On 8 May 2012 Mr Bungey’s evidence is that he met with the applicant and advised him of concerns as to his performance. The concerns mentioned were; he had failed to meet the objectives set for him, his work achievement was unsatisfactory, he had been absent for 11 out of the 21 work days with little work to show for 10 days present and that an inspection of his physical work completed was unsatisfactory. Mr Bungey asserts the applicant complained about the work required of him, that he wanted routine processing tasks that he had insufficient time to learn his new role, that he hinted at psychological reasons for his performance and he would instruct Mr Bateman to disclose information to be taken into account in his IPAD.

[56] Again the applicant had difficulty with recall of these events. Mr Bungey asserts that he told the applicant the work completed was unsatisfactory for an APS5 level employee, even allowing for medical issues. The applicant denies this occurred.

[57] On 15 May Mr Bungey was advised by Mr Bateman that he had no evidence to suggest the applicant had a psychological condition arising from his vehicle accident. A further meeting was arranged with the applicant for 24 May 2012 but did not occur.

[58] On 1 June they met and the applicant accused Mr Bungey of discriminating against him but when questioned refused to provide further explanation. In his evidence the applicant asserted he should have been allowed to work from home.

“Because being in my home environment, given my mental health status as well as the pain that I was suffering, would allow me to take breaks as needed, to relax as needed, to undertake those things in the confines and privacy of my home as well as being able to work.” 19

[59] Mr Bungey had prepared an IPAD for the applicant which included references to expectations that were related to lesser competency standards. In the meeting conversation Mr Bungey says the applicant was heated and deflected criticism.

[60] Mr Bungey’s evidence is that the applicant did not complete the first deliverable of his work plan and that in the period from April to late July 2012 he received multiple complaints from employees about the applicant’s lack of contribution, personal phone calls, lack of attendance and availability.

[61] On 19 June 2012 Mr Bungey received an email from Mr Bateman summarising reports from Doctors Haynes and Fry with respect to the applicant’s fitness for duty. Basically he could work four days per week. Mr Bateman advised he was not authorised to release the reports only summaries (privacy reasons).

[62] In that email from Mr Bateman it states Dr Haynes notes:

“...Alan’s treatment regime is appropriate, however there may be scope for review of his medication once he commences the Pain Management Program with Dr Graham Wright (program was to commence in June 2012).” 20

[63] Dr Haynes considers the current working arrangements appropriate and further states:

“...Alan is fit to work his normal duties on these days...”

[64] Dr Haynes could not give an estimate as to when the applicant will be able to return to full time work duties.

[65] Dr Haynes contacted Dr Ha with the applicant’s approval however Dr Ha did not wish to disclose specifics. Dr Haynes also contacted the orthopaedic surgeon Dr Savvoulidis who could not discuss the matter without written consent from the applicant.

[66] In the same email Dr Fry’s note includes:

“This essentially means that given Alan’s assertions that his psychological issues are not impacting on his work, he is fit to perform at the expected level and also participate in the all (sic) normal operational mechanisms required of an employee at his level.” 21

[67] Importantly for Mr Bungey this information reinforced that the applicant was able to perform normal work and they could expect normal performance and reasonably assess his performance.

[68] On 31 July Mr Bungey and the applicant met again for a formal IPAD assessment. He was rated as unsatisfactory with respect to the performance of tasks. Also his behaviour had been unsatisfactory because of constant threats of formal complaints against colleagues and accusations of discrimination and harassment. The applicant indicated he saw himself as facing health issues compounded by bullying and harassment and that he had performed satisfactorily at work. The meeting did not end well with the applicant being advised his unsatisfactory rating would be followed up and the applicant advising he would be raising concerns of discrimination and unfair treatment.

[69] Mr Bungey rated the applicant unsatisfactory in several areas and recommended to his superiors that formal underperformance procedures be commenced. On 9 August Mr Bungey was advised the Recovre group had not been provided with any updated medical advice from the applicant.

[70] The formal performance procedures were approved on 31 August 2012. The applicant took extended leave in September, October and November 2012. On 7 December the parties met to discuss the work plan and associated issues as part of the formal procedures due to commence on 10 December. Notably this conversation included the advice to the applicant that the potential outcomes of the formal performance procedures was termination of his employment, that the respondent was satisfied reasonable adjustments had been made to the applicant’s work plan to take into account his medical issues and that the process would end on 15 February 2013. 22 The applicant signed the plan on 14 December 2012.

[71] The applicant had corresponded with Ms Hollis on 23 November attaching medical documents and requesting reconsideration of the formal underperformance process. Ms Hollis considered the medical evidence from the applicant’s medical practitioners regarding the applicant suffering from anxiety arising from the motor vehicle accident did not obviate the fitness for duty report previously obtained from the Consultant Psychiatrist, Dr Fry. They also all indicated that the applicant was fit to work. The process was to continue. Ms Hollis in her evidence also referred to the statements by the applicant that:

“He stated he believes his psychological difficulties have not impacted upon his work. He’s quite adamant that his psychological condition post-accident is not the main issue in regard to his work.” 23

[72] Ms Cachia during this process was appointed the case manager for the applicant’s formal process. Her evidence reflects that she was responsible for ensuring the medical reports relating to the applicant and any reasonable adjustments required were taken into account by his supervisors in the work plan. She refers to a further work station assessment, discussions regularly about his concerns regarding a recent MRI scan, his failure to provide information as to his medications and his concerns as to a cancer scare which he wanted to remain excluded from the knowledge of any state colleagues. Ms Cachia invited the applicant to provide any further medical evidence that was relevant.

[73] In the mid-term report of the formal underperformance process completed in late January 2013 the applicant was found to be underperforming in significant areas. Notably the applicant raised various medical issues such as medication dosages and new physical issues that he claimed were impacting on his performance. However he provided no evidence in support. The decision to commence the formal process was appealed by the applicant and the process was reviewed by the respondent.

[74] On 13 March 2013 Mr Bungey sought to extend the process to 22 March 2013 due to the applicant’s absences during the period. On 14 May 2013 the applicant again sought a review and provided further medical information from Doctors Wright and Ha to the effect that the formal process should not proceed as it may affect the applicant’s anxiety.

[75] The formal process concluded with the applicant’s performance being rated as unsatisfactory despite he being provided with feedback sessions and advice on the various tasks. Mr Bungey in his evidence referred to further absences by the applicant coinciding with arranged meetings, a range of assistance and support including informal meetings, training and provision of advice, further adjustments to workstations and an external rehabilitation provider being available to him.

[76] The Final Report of Formal Underperformance Process 24 is a comprehensive document and Ms Hollis on 16 May advised the applicant that her preliminary view was that his employment should be terminated on the grounds of unsatisfactory performance of duties. The applicant was provided with the opportunity to respond before the final decision was made and given the full documentation of the report.

[77] The applicant was placed on leave with pay. The applicant replied on 21 May and his document was considered by Ms Hollis who considered:

“I was satisfied that a proper and fair process had been followed, reasonable workplace adjustments had been made and that the evidence provided supported my decision.” 25

[78] Ms Hollis reviewed a significant amount of material. In her evidence she was asked why she did not contact the nominated medical practitioners of the applicant. It is noted Dr Fry’s report mentions the issue of consent which appears to be vexed. Then Dr Ha being contacted and she would not disclose specifics as well as Dr Savvoulidis doing the same.

[79] The applicant was sent his letter of termination on 4 June 2013. He was dismissed with payment of notice in lieu.

[80] From the evidence in this matter it is apparent that at the time of dismissal and previously during the formal assessment process the applicant was taking significant medications for serious pain symptoms and anxiety that may have affected his performance at work. The evidence of Dr Ha is to that effect and also that such effects had been discussed with the applicant in that they could be an issue in the workplace. 26 Further that despite a number of medications the applicant suffers from pain and has to manage the pain.

[81] Medical evidence from Mr Said who has seen the applicant previous and after his dismissal indicated the applicant is managing a short term memory problem. He was performing poorly late last year but has significantly improved recently when tested in September 2013.

Consideration as to the decision to dismiss the applicant

[82] The issue in dispute is whether the applicant has been unfairly dismissed. The provisions of the Act at s.385 provide that a person has been unfairly dismissed if the FWC is satisfied that:

(a) The person has been dismissed;
(b) The dismissal was harsh, unjust or unreasonable;
(c) The dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) The dismissal was not a case of genuine redundancy.

[83] As previously stated the Small Business Fair Dismissal Code and the issue of genuine redundancy were not relevant in this case.

[84] A dismissal may be:

• harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;

• unjust, because the employee was not guilty of the misconduct on which the employer acted; and/or

• unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer."

[85] The criteria that the Commission must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, are set out in s.387 in the following terms:

(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 the dismissal; and
(e) If the dismissal related to unsatisfactory performance – 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 the Commission considers relevant.

Was there a valid reason for the applicant’s dismissal?

[86] The applicant was dismissed for unsatisfactory work performance after a significant evaluation and assessment of his work output and application to tasks. The formal process was well resourced and documented and was initiated after a periodic IPAD assessment in the workplace by the applicant’s supervisor which rated the applicant as unsatisfactory.

[87] The applicant was involved in appropriate discussions about the process and its work plan and signed off on the plan before it commenced. He had a significant time for rest on vacation before it commenced and was given time to familiarise himself with its requirements on his return. He was at all times involved in relevant discussions with his supervisor, had adequate feedback and could respond to the apparent results throughout the process. The process of warning, assessment, decision, consultation and mitigation responses was apparently a fair process.

[88] In all the above process the respondent has acted upon the medical advice from their nominated practitioners that the applicant was fit to work the limited hours agreed within the modified return to work arrangements. They have also applied such a view to the applicant when undertaking the formal performance review process. They maintained a reliance on this advice and it would seem the prevailing industrial instrument applying to the applicant reinforces this reliance. 27

[89] The applicant apparently returned back to work after his accident without prior discussion to work to limited hours (four days per week, 15 min break each hour) nominated by his medical practitioners. This was apparently accepted by the respondent employer and their rehabilitation personnel as modified arrangements substantially different to his contract of employment as a full-time employee. The respondent applied their rehabilitation personnel with a view to assisting the applicant back to full-time work. The Commission has formed the view such application resources and policy were beneficial and of substantial material benefit to the applicant.

[90] The respondent accepted the injured worker back to work in a modified arrangement, made repeated reasonable adjustments for his welfare within the workplace and was accepting of various and repeated behavioural issues that arose over the two and a half years these arrangements were in place, despite having no obligation at law to rehabilitate the applicant.

[91] The applicant suffered some psychological injury from his accident and the symptoms of that illness or injury have arisen in the workplace. The performance of the applicant or lack of performance, lack of cogency and interaction issues have been observed by the employer and caused them concern. Such matters have arisen as a consequence of the injury and possibly the medications that have been necessary for the applicant to take during this extended period. The applicant’s medical practitioners have indicated the applicant is fit to work limited hours and with some modifications but it is also apparent that they consider that the applicant being at work is a therapeutic arrangement available from a big employer .It can it seems be easily accommodated .

[92] The applicant has also submitted that the respondent should have made further enquiries of his medical experts to ascertain the nature of his prognosis in the above circumstances. However it is plain the applicant obstructed such knowledge at the operational level in terms of discussion with his supervisors and officers (re above comments about his privacy). The respondent’s medical nominee experts were also blocked from such knowledge from the applicants’ medical practitioners. The applicant also made Mr Bateman aware of his position on such knowledge. He was not a cooperative employee to an employer going to some trouble to accommodate his modified employment arrangement.

[93] This scenario is not a frustration of contract in terms of an incapacity to perform the employment contract in the conventional sense. It is not in the Commission’s view a Smith v Moore Paragon Australia Ltd 28 situation. The applicant was seemingly fit to work by his provided medical opinion and the respondent s’ expert opinion. It is clear now that medications may have played a distinct part in the play of events. However it is not a frustration of contract as a consequence directly of illness or injury where the employer should identify a prognosis and other elements before proceeding.

[94] The Commission has formed the view that given the above the respondent had a valid reason for dismissal, being the lack of performance of the applicant in his modified duties and the apparently enduring nature of those modified arrangements.

Was the applicant notified of the reason for dismissal?

[95] The applicant was given the reasons for dismissal. The documentation in this process was impressive in content.

Was the applicant given an opportunity to respond?

[96] The applicant was given opportunity to seek reviews during the process and extensive paid time off of five weeks to respond to his impending dismissal.

[97] There was no issue of an unreasonable refusal to allow a support person to the applicant.

[98] The applicant was warned about the unsatisfactory performance at various times previous to dismissal and the process of evaluation and assessment was extensive.

[99] The employer is of a significant size and the applicant benefitted from the scale and available resources of the respondent in the process.

[100] There was no absence of dedicated human resource personnel.

[101] For all the above reasons the Commission does not find the dismissal of the applicant unfair and accordingly dismisses this application.

COMMISSIONER

Appearances:

Mr T Bryant for the applicant

Mr R Manuel for the respondent

Hearing details:

2013:

Adelaide

15, 16, 17 October

 1   PN 2103

 2   PN 2104

 3   PN 2105

 4   PN 2051

 5   PN 2052-2053

 6   PN 86

 7   PN 243

 8   Exhibit R4 at para 17

 9   Ibid at para 21

 10   PN 299

 11   PN 303

 12   PN 306-310

 13   PN 771-779

 14   PN 311

 15   PN 934

 16   PN 325

 17   PN 1700

 18   PN 1775

 19   PN 364

 20   Exhibit R4 at Annexure BB3

 21   Ibid

 22   Exhibit R4 at para 56

 23   PN 1989

 24   Exhibit R7 at Annexure JH12

 25   Exhibit R7 at para

 26   PN 994

 27   See DEEWR Enterprise Agreement 2012-2014, Part E, s 238

 28 (2004) 130 IR 446

Printed by authority of the Commonwealth Government Printer

<Price code C, PR546259>