Mr Mark Weber v Deakin University

[2017] FWC 744

[2017] FWC 744

FAIR WORK COMMISSION

DECISION

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

Mr Mark Weber
v
Deakin University
(U2016/13057)

COMMISSIONER ROE MELBOURNE, 7 FEBRUARY 2017

Application for relief from unfair dismissal – was the Applicant forced to resign from his employment by the actions of the Respondent.

[1] Mr Weber was employed as a Lecturer by Deakin University from 19 January 2009 until his resignation on 7 October 2016.

[2] Mr Weber has made an application for unfair dismissal remedy on the basis that he says that he was forced to resign from his employment in order to be able to access permanent disability insurance benefits and superannuation funds from his Superannuation fund, UniSuper. Mr Weber says that this was because of the actions of Deakin University in forcing him onto unpaid sick leave. Mr Weber also says that the actions of the University in forcing him onto unpaid sick leave aggravated his mental health condition.

[3] At the time of his resignation Mr Weber “was unable to return to any form of paid employment as confirmed by the Independent Medical Experts Report commissioned by the superannuation fund”.

[4] The following events are not disputed:

● Mr Weber was absent for short periods on personal leave due to illness during the period May 2013 to November 2013.

● Mr Weber was diagnosed with depression and anxiety in June 2013.

● Mr Weber made a Workcover claim and this was rejected on 5 November 2013. Mr Weber says that his challenge to the rejection of his claim is listed in court later in 2017.

● Mr Weber was absent due to illness on paid personal leave from 25 November 2013 to 18 March 2014. He also accessed about 10 weeks of his annual leave during the period. Paid personal leave was exhausted as at 18 March 2014.

● On 29 January 2014 Deakin directed Mr Weber to attend an independent medical examination in accordance with Clause 27 of the Deakin University Enterprise Agreement 2013. This was initially scheduled for 5 March 2014 but was moved to 2 April 2014 at the request of Mr Weber. The directions to attend included a warning that failure to attend the examination would constitute evidence of inability to perform duties and could result in termination of employment.

● On 21 March 2014 Mr Weber advised Deakin that he had returned to work but he did not physically attend the workplace. Professor Day in response directed Mr Weber not to perform any duties until he had provided a certificate from his medical practitioner confirming his fitness for work.

● On 26 March 2014 Mr Weber provided a certificate from his own doctor that stated he could work with the following restrictions: “avoid contact with persons involved in litigation, alternative supervisor, primarily work from home to avoid contact”.

● The litigation referred to is action commenced by Mr Weber against Deakin and a number of his colleagues in the school and faculty in VCAT. The proceedings were ultimately dismissed.

● On 1 April 2014 Mr Weber sought again that Deakin agree to “reasonable adjustments” to allow him to return to work.

● On 4 April 2014 Professor Day advised Mr Weber that it was not possible for him to perform his role from home and that there were no suitable duties which could be assigned to him. Professor Day advised that Mr Weber would be paid 50% of his normal rate until at least the outcome of the independent medical examination.

● Mr Weber was paid his normal salary from 21 March 2014 until 7 April 2014 and then 50% of his salary from 7 April 2014 until 28 April 2014.

● Deakin received the independent medical report on 14 April 2014. The report stated that Mr Weber would have no capacity to work for three months and then he might be able to commence a graduated return to work program. Deakin responded to the medical report on 28 April 2014 by writing to Mr Weber and requested he attend a further examination on 2 July 2014 and advising that he would be on unpaid personal leave until that time.

● On 14 April 2014 Deakin contacted the independent medical examiner about an incorrect date and advised that they were “considering asking for a supplementary report after we provide you some further publicly available information on Mark’s litigious history”.

● On 5 May 2014 Mr Weber asked Deakin to review the medical report in accordance with Clause 27.5 of the Agreement. Mr Weber stated that the report can only be used for the purpose of termination of employment in certain circumstances and noted that those circumstances did not apply to him.

● On 7 May 2014 Deakin responded disputing Mr Weber’s interpretation of Clause 27 of the Agreement and stated that because the Vice Chancellor has not sought to terminate employment under Clause 27.4 the review under Clause 27.5 was not applicable.

● On 3 July 2014 Mr Weber wrote to Deakin and advised that he had been unable to attend the 2 July 2014 medical examination due to illness and that he remained unfit for work and that he was in the process of applying for temporary disability benefits through his superannuation fund. Clause 27.2 of the Agreement prevents Deakin from requiring attendance at an independent medical examination “where the staff member elects to apply to the staff member’s superannuation fund, prior to the expiry of the notice, for ill health retirement or temporary disability benefit” until and unless the application is rejected or the fund decides that the person is capable of resuming work.

● In early July 2014 Mr Weber advised Deakin of his intention to make an application for temporary incapacity benefits from his superannuation fund. Deakin forwarded the necessary paperwork to the superannuation fund. The application was made in October 2014. The application was approved on 12 January 2015 for the period 1 July 2014 to 30 June 2016. Mr Weber was in receipt of temporary incapacity benefits for that period.

● On 30 June 2016 the temporary incapacity benefits expired. Mr Weber did not provide Deakin with any information that suggested he was fit to return to his normal duties after 30 June 2016.

● On 29 September 2016 Deakin University was advised by UniSuper that Mr Weber had applied for permanent disability benefits from the superannuation fund. UniSuper asked if Mr Weber was still employed.

● Mr Weber did not resume work during the period from 4 April 2014 until his resignation.

● On 7 October 2016 Mr Weber resigned his employment in order to access superannuation entitlements.

● On 27 October 2016 Mr Weber emailed Mr Mahoney of Deakin University Human Resources stating that “just for the record, I have retired due to ill health”.

[5] Mr Weber argues that:

● Deakin’s refusal to make reasonable adjustments and allow modified duties after his attempt to return to work on 21 March 2014 was unreasonable.

● Mr Weber argues that Deakin has an obligation under its own policy to assist the return to work of an injured worker.

● Deakin’s actions in placing him on half pay during the period between 7 April 2014 and 28 April 2014 were unreasonable and contrary to the Agreement and the Fair Work Act 2009. This was the period when Deakin was awaiting and considering the report of the independent medical practitioner and the period when Mr Weber says that he should have had access to modified duties and Deakin said there were no suitable duties. Mr Weber argues that this reduction in pay was a demotion which amounts to a termination of his employment because he never accepted the demotion.

● Deakin’s actions in placing Mr Weber on unpaid sick leave between 28 April 2014 and the date he went on temporary incapacity benefits from his superannuation fund was unreasonable. Mr Weber says that it is a breach of the Fair Work Act 2009 to force him onto unpaid sick leave. Mr Weber alleges that he was stood down contrary to Section 524 of the Fair Work Act 2009.

● The failure to allow a review of the independent medical practitioner’s report was a breach of Clause 27 of the Agreement. He also argues that the direction of 29 January 2014 to attend an independent medical practitioner was in breach of Clause 27 of the Agreement.

● These matters considered as a whole demonstrate that he was forced to resign due to the conduct of Deakin which was intended to or had the probable result that he would resign and left him with no real choice but to do so.

[6] During the proceedings the parties agreed that given that the relevant facts were not in dispute there was no need for witnesses to be cross examined. The conclusions to be drawn from the facts were in dispute and I have considered the detailed submissions of the parties about the appropriate conclusions to be drawn.

[7] Mr Weber accepts that he was unfit for all duties during the period from 1 July 2014 until the date of his resignation. Mr Weber says that his own doctor had certified that he was fit for modified duties during the period from 21 March 2016. Mr Weber says that Deakin was not permitted to rely upon the 14 April 2014 report of the independent medical practitioner that he was unfit for duties for a period of at least three months. He says that a report obtained under Clause 27.1 of the Agreement can only be utilised for the purpose of terminating an employee due to incapacity and not for any other purpose.

[8] I am satisfied that there is no basis for the allegation that Deakin breached Clause 27 of the Agreement. Clause 27.1 allows for a direction, with at least one month’s notice, to attend an independent medical examination where “capacity to perform duties is in doubt.” This right is not restricted to circumstances where Deakin is considering termination of employment. Nor is it restricted to circumstances where an employee has exhausted their paid leave entitlements. I am satisfied that the history of absence from work by Mr Weber provided a reasonable basis for the Vice Chancellor’s direction. Although some of the period of absence since 25 November 2013 had been paid as recreation leave, Deakin understood that Mr Weber was unfit for work throughout the period between 25 November 2013 and 18 March 2014. The history of Mr Weber’s illness made the direction to attend an independent medical examination reasonable and open to Deakin under Clause 27.1 of the Agreement. If Mr Weber believed that the direction was not reasonable and consistent with Clause 27.1 then he had the opportunity to have that matter reviewed and resolved through the disputes settlement procedure of the Agreement. I am satisfied that Clauses 27.4 and 27.5 of the Agreement can only operate when a report from an independent medical practitioner has already been obtained. The capacity to obtain a report under Clause 27.1 cannot therefore be restricted to circumstances in Clause 27.4.

[9] I am also satisfied that Deakin did not breach Clause 27 of the Agreement when it refused to allow a review of the independent medical report. That right only exists in circumstances where the Vice Chancellor received a report that the employee is unlikely to be able to return to work within 12 months and where the Vice Chancellor is seeking to terminate employment due to incapacity. Neither of those conditions was present at the time Mr Weber requested a review. I am not satisfied that the Agreement prevents Deakin from relying on a report obtained pursuant to Clause 27.1 in determining an employee’s fitness for work. The Agreement is silent about this matter. Of course Deakin is required to take into account other evidence which subsequently becomes available, including evidence from the employee’s own practitioners, in assessing fitness for duty.

[10] I am satisfied that Deakin did not stand down Mr Weber contrary to Section 424 of the Act. An employee is not stood down when he is unable to work due to incapacity. It is not disputed that Mr Weber was incapacitated for work during the entire period between 25 November 2013 and the date of his resignation except for the period between 21 March 2014 and the date he commenced temporary incapacity benefits from the superannuation fund which was 1 July 2014. There is no medical certificate advising of any capacity to work during this period except for the period between 21 March 2014 and 1 July 2014 and by definition he was unfit for work when in receipt of temporary incapacity benefits and then when deemed eligible for permanent incapacity benefits.

[11] During the period from 21 March 2014 until 1 July 2014 Mr Weber says that he did have capacity work subject to the restrictions identified by his doctor. Those restrictions were “avoid contact with persons involved in litigation, alternative supervisor, primarily work from home to avoid contact”.

[12] The disputed period can be categorised as follows:

● 21 March 2014 until 26 March 2014: Professor Day issues a direction that Mr Weber is not to work until a certificate of capacity is provided by his own doctor. Mr Weber is paid in full during this period. I am satisfied that the direction to obtain a certificate of capacity was fair and reasonable in the circumstances that Mr Weber had been totally unfit for work since November and where the employer was awaiting the attendance by Mr Weber at the independent medical practitioner on 2 April 2014.

● 26 March 2014 until 4 April 2014: Professor Day receives the certificate of capacity which contains significant restrictions on the capacity to perform normal duties. Professor Day is considering what to do including correspondence from Mr Weber seeking modifications to enable him to work. Mr Weber is paid in full during this period. I am satisfied that Professor Day’s actions were reasonable.

● 4 April 2014 to 28 April 2014: Professor Day advises that he has considered the request for modified duties and has concluded that it cannot be accommodated at that stage. I am satisfied that considered in context this meets the obligations of Deakin under its Return to Work policy. 1 Under that policy an employee does not have an automatic right to modified duties as selected by the employee, rather there is an obligation on the employer to consider reasonable modifications and to assess and propose options. I am satisfied that in the circumstances the correspondence between Professor Day and Mr Weber was the appropriate consultation about return to work. The existence of other litigation in VCAT involving Mr Weber’s key managers created some limitations on the level of consultation which was practicable. I accept that the requirement to avoid contact with those involved in litigation meant that the only practical way the restrictions could be met was for Mr Weber to work from home. The persons Mr Weber was unable to interact with were the key persons he needed to interact with in order to carry out his duties as a lecturer. Given that Mr Weber is a lecturer it was open to Professor Day to conclude that working from home would involve such a restriction on normal duties as to be impractical. I am satisfied that the refusal of modified duties was reasonable in the circumstances. If Mr Weber believed that the direction was not reasonable then he had the opportunity to have that matter reviewed through the disputes settlement procedure of the Agreement given that the policies are referred to in a clause of the Agreement.

● 28 April 2014 to 1 July 2014: During this period Deakin relied upon the advice of the independent medical practitioner that Mr Weber was unfit for all duties for a period of three months. I have no reason to doubt the assessment of the independent medical practitioner that Mr Weber was incapacitated for his duties for three months from 14 April 2014. Deakin effectively advised Mr Weber that because he was unfit for work and because he had exhausted his paid leave entitlements he would be on unpaid leave. Mr Weber says that Deakin could not rely on that report but should have relied upon the view of his medical practitioner that he was capable of modified duties. Even if this is correct there was nothing before Professor Day that could or should have led him to draw a different conclusion about Deakin’s capacity to agree to Mr Weber working from home during this period.

● After July 2014: Deakin was prevented from seeking further independent medical assessment and hence limited in respect to exploring return to work options because Mr Weber advised that he was seeking incapacity benefits from the superannuation fund. Given it is accepted that Mr Weber had no capacity to return to work during the period from July 2014 and no foreseeable return to capacity the issue of return to work plans is irrelevant during that period.

[13] Mr Weber submitted that the key managers involved in the decision to deny his request to return to work on modified duties and in directing him to attend the independent medical practitioner and in denying him an appeal against the independent medical practitioner’s finding were biased because of their involvement in the VCAT proceedings he initiated against them. He says that they should have removed themselves from any decision making involving him. I am not satisfied that there is any evidence of bias.
[14] I am satisfied that the decision to pay Mr Weber 50% of his salary during the period between 7 April 2014 and the response to the independent medical report on 28 April 2014 was an ex gratia payment. It was not a demotion or a dismissal. Mr Weber had no entitlement to payment as he had exhausted his personal leave and he did not have capacity to perform his normal duties and it was reasonably open to Deakin to determine that modified duties were impractical.

[15] The period when Mr Weber was not on normal pay and when there was a dispute about Mr Weber’s capacity for work was a short period of time in the circumstances of this case. If there was any non-compliance with policy to assist a returning injured worker it was confined to this short period. I am unable to conclude that Deakin failed in its responsibilities to Mr Weber as an injured worker. There may well be legitimate room for argument about the things Deakin could or should have done to assist Mr Weber under the Return to Work policy. However, I am not satisfied that any failings were a deliberate attempt to force Mr Weber out of his employment. This could not have forced a resignation more than two years later.

[16] I accept that Mr Weber never applied for unpaid personal leave. He was not fully fit for work and in those circumstances he was on personal leave unless the employer agreed to modified duties. When the request for modified duties was rejected he was automatically on personal leave given the employer obviously approved his absence. He was on unpaid personal leave because he had run out of all paid entitlements. The provision in Section 107 the Fair Work Act 2009 that “an employee is not entitled to take leave under this Division unless the employee complies with this section” is a limitation on the rights of employees not the right of employers.

[17] I am satisfied that:

● Deakin’s refusal to allow return to work on 21 March 2014 until a certificate of capacity was obtained was reasonable in the circumstances. Mr Weber could have challenged the decision utilising the disputes settlement procedure of the Agreement.

● Deakin’s refusal to allow Mr Weber modified duties after receiving and considering the request for such duties from 4 April 2014 was reasonably open to it. Mr Weber could have challenged the decision utilising the disputes settlement procedure of the Agreement.

● The restrictions in the certificate of capacity in practice meant that Mr Weber would have to work from home. It was open to Deakin to conclude that such a modification to duties was so extensive as to be impractical.

● Deakin did not breach its obligations to assist the return to work of an injured worker. The obligations are to assist the worker “to the extent that it is reasonable to do so”. To the extent that there were any inadequacies in Deakin’s implementation of its obligations under its return to work policy such inadequacies cannot be a breach of the employment contract as the employment contract specifically excludes policies. The Agreement also makes it clear that policies are not incorporated. However, Mr Weber could have raised a dispute about implementation and/or adherence to the policy through the disputes resolution procedure of the Agreement.

● The short period of half pay was an ex gratia payment by Deakin and there was no obligation to pay Mr Weber during that period as he was unfit for normal duties and Deakin had considered reasonable modifications and had concluded that reasonable modifications were unavailable or impractical.

● The decision to refuse to allow Mr Weber to work from home was not a decision to stand down Mr Weber contrary to Section 524 of the Act. A decision to not allow a person who does not have the capacity to perform their duties to work is not a stand down.

● The decision to refuse to allow Mr Weber to work from home and as a consequence to place him on approved unpaid personal leave was not a demotion. If an employee does not have a capacity to work and does not have access to paid leave then there is no obligation on the employer to pay the employee. In this case the employer determined that Mr Weber did not have the capacity to work (on reasonable grounds) and as all paid leave was exhausted Mr Weber was on a period of unpaid leave although Deakin did pay 50% pay for a short period on an ex gratia basis.

[18] I am not satisfied that the dispute over whether or not Mr Weber should have been allowed to work from home in the period between 4 April 2014 and 1 July 2014 forced Mr Weber to resign in October 2016. I accept that Mr Weber feels that he has been poorly treated by Deakin. I accept that there is room for debate about the measures Deakin could or should have taken to assist Mr Weber’s return to work. I accept that he believes the refusal of Deakin to allow him to work from home was unreasonable and that it exacerbated his medical condition. To some extent this contest is a matter which may be resolved through the workers compensation system. There is no evidence before me which would be sufficient to draw a conclusion about whether or not Deakin’s actions exacerbated the medical condition. I am not satisfied that the actions of Deakin in refusing to allow Mr Weber to work from home resulted directly or consequentially in the termination of the employment relationship more than two years later. There is certainly no basis to conclude that if this action had not happened then the employment relationship would not have ended in October 2016.

[19] Mr Weber resigned his employment after not being at work for several years because he remained totally unfit for work and it was the only way he could access income from his superannuation fund. Mr Weber’s need for income and his ongoing incapacity for work was the reason for his resignation. Deakin had taken no action to dismiss Mr Weber from his employment. It ceased trying to get further independent medical assessments after Mr Weber said he would make an application for temporary incapacity payments from his superannuation fund more than two years prior to his resignation. I cannot identify any actions by Deakin which were intended to force Mr Weber to resign or has the probable result that he would resign or which left him with no real choice but to resign. If Mr Weber believed that he had some prospect of being able to return to work then he could have remained employed by Deakin. An employee who runs out of paid personal leave is not on unpaid personal leave because of the actions of the employer.

[20] I am not satisfied that Mr Weber was dismissed. The actions of the employer did not cause Mr Weber to resign. The actions of the employer were not directed at ending the employment relationship and did not cause an end to the employment relationship.

[21] As there was no dismissal the application for unfair dismissal remedy cannot proceed. The application is dismissed.

COMMISSIONER

Appearances:

Mr M Weber appeared for himself.

Mr W Spargo represented the Respondent.

Hearing details:

2017

Melbourne

February 2

 1   Exhibit R1, Attachment MO24.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR589997>