Mrs Linda Marie Frizell v OS ACPM Pty Ltd T/A BHP Operations Services

[2023] FWC 1991

[2023] FWC 1991

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mrs Linda Marie Frizell
v

OS ACPM Pty Ltd T/A BHP Operations Services

(U2023/954)

COMMISSIONER SIMPSON BRISBANE, 10 AUGUST 2023

Application for an unfair dismissal remedy

1. On 7 February 2023, Ms Linda Marie Frizell (Ms Frizell /the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with BHP.  An application was subsequently made to amend the name of the Respondent to its correct legal name and this was not opposed and was granted.  The Respondent to the application is OS ACPM Pty Ltd T/A BHP Operations Services (the Respondent).

1. I listed the matter for a directions hearing by telephone on 11 April 2023. The matter was listed for Hearing by Microsoft Teams on 31 May and 1 June 2023.

1. At the Hearing permission was granted for the Applicant to be represented by Mr Troy Spence of Counsel instructed by Ms Angela Fortt of Mackey Wales Law, and for the Respondent to be represented by Mr James McLean of Counsel instructed by Ms Leyla Dixon of MinterEllison.

1. The Applicant relied on the witness statements of a Clinical Psychologist Ms Jenny Sztaroszta (Exhibit 1), and two witness statements from the Applicant (Exhibit 2 and Exhibit 3).  The Applicant also relied on its Outline of Submissions filed on 3 May 2023, and its Outline of Submissions in Reply filed on 25 May 2023 and closing oral submissions.  The Applicant filed a further submission and witness statement after the hearing on 12 June 2023 in relation to a discrete issue concerning remedy.  

1. The Respondent relied on the witness statements of Mr David Brook (Exhibit 4), and Mr Shane Bayntun (Exhibit 5), who were not required for cross examination by the Applicant, however the Applicant raised an objection to paragraph 23 of the statement of Mr Bayntun as it contained hearsay.   The parties were content for the paragraph to be entered into evidence on the basis that the submission as to weight would be taken into account.  The Respondent also relied on the witness statements of Mr Grant Walker (Exhibit 6) and Dr Nicholas Jetnikoff (Exhibit 7).  The Respondent also relied on its Outline of Submissions filed on 17 May 2023,  its closing oral submissions and a further submission in response to the Applicant’s further submission on remedy on 19 June 2023. 

1. The Applicant was dismissed from her employment on the Respondent’s initiative. The application was filed on 7 February 2023, within 21 days of the date of the dismissal. The Respondent is not a small business employer, and there is no jurisdictional objection to the Applicant’s application.

SUBMISSIONS AND EVIDENCE

Background

1. The Applicant was employed by the Respondent for a period of approximately 3 years and 1 month, with her employment commencing 16 December 2019 and her dismissal taking effect on 18 January 2023.  At the time of the dismissal, the Applicant was employed as a Specialist Technical Maintenance at the Respondent’s Blackwater Mine in Queensland.

1. The Applicant said from approximately late 2021 she experienced considerable difficulty working for the Respondent, which ultimately resulted in her being on extended leave from her employment from March 2022 until her employment was terminated in January 2023. From approximately June 2022, the leave was unpaid leave. As the period of unpaid leave extended for more than three months, the Applicant was not protected by section 352 of the Act.

1. In August 2022, pursuant to the processes for dealing with physical and psychological illnesses under BHP OS’ Physical & Psychological Impairment Procedure (PPI Procedure), Ms Frizell’s line leader, Grant Walker, Superintendent Mobile Maintenance, requested that Ms Frizell attend an appointment with her treating doctor to obtain a report to assist BHP OS with determining Ms Frizell's fitness for work.  Mr Walker was referred to the email he sent to the Applicant and her husband on 2 August 2022 requesting the consent form to be returned by 4 August 2022.  It was put to Mr Walker the timeframe was not reasonable, however he did not agree.  The consent form was provided by 11 August.  Mr Walker evidence was to the effect that he was assisted in the PPI Procedure by the ER Team and the Operational Services Health Team. 

1. Mr Walker was asked about clause 5 of the PPI Procedure and confirmed he was the Applicant’s supervisor at the relevant time for the purposes of clause 5 of the PPI Procedure, and he was not an Operational Services Health Specialist as referred to in the PPI Procedure.  It was put to Mr Walker that there was no guidance from an OS Health Specialist in accordance with the Procedure.  Mr Walker said he did not know if an OS Health Specialist had been in direct contact with the Applicant. Mr Walker said the OS Health Specialist was Lauren Constable.  Mr Walker said he received guidance from Ms Constable from the OS Health Team and Ms Constable also drafted correspondence for him in relation to health matters, and in relation to medical reports. 

1. Mr Walker was also referred to an email of 16 August he had sent to Mr Frizell where he directed the Applicant to make an appointment with her treating medical practitioner asking that an appointment be made by 18 August.  Mr Walker did not accept the timeframe to comply with the request was unreasonable as it was only to make the appointment not to attend an appointment.  Mr Walker was also referred to a further email of 19 August he sent requesting confirmation an appointment had been booked by 23 August.  The Applicant’s husband subsequently advised on 19 August that an appointment had been made on 15 September 2022.  

1. Mr Walker said the correspondence he sent on 5 September 2022 to Dr Ola Agbasale, the Applicant’s treating medical practitioner was drafted with the assistance of the OS Health Team, and he did not write the questions in the correspondence as he was assisted by an OS Health Specialist. 

1. Mr Walker sent further email correspondence to Mr Frizell advising that a Report had not yet been received and the Respondent would have to consider its options based on current information if a Report was not received.  It was put to Mr Walker that at that stage he had the consent of the Applicant to contact the Applicant’s Doctor.  Mr Walker said that multiple attempts had been made to get the report at that stage and he couldn’t get anything.  Mr Walker rejected the proposition that he was considering terminating the Applicant at that stage because the Report had not been provided.  Mr Frizell subsequently contacted Dr Agbasale and the Report was provided.  Mr Frizell sent email correspondence to Mr Browne, Mr Walker’s supervisor complaining about Mr Walker threatening to stop the PPI process as unprofessional given the matter was between the Respondent and Dr Agbasale. 

1. Dr Agbasale provided two reports as part of the process under the PPI Procedure – an initial report dated 20 October 2022 (Agbasale Initial Report) and a supplementary report dated 31 October 2022 (Agbasale Supplementary Report). The Respondent says neither the Agbasale Initial Report or the Agbasale Supplementary Report allowed BHP OS to understand and assess Ms Frizell's fitness for work. 

1. On 2 November 2022, the Applicant was requested to attend an appointment with a psychiatrist appointed by the Respondent, Dr Nicholas Jetnikoff, for an independent medical assessment (IMA).  Mr Walker was asked about this email and its statement that the process of participating in the IMA was mandatory in accordance with point 4 of the PPI Procedure.  It was put to Mr Walker the PPI Procedure did not say that at point 4.  Mr Walker said the email was drafted in consultation with the OS Health Team and Human Resources.  Mr Walker said Ms Prinsloo from the ER Team drafted the email.   It was put to Mr Walker that the language in the email came from point 5 in the PPI Procedure.  It was put to Mr Walker that he did not follow point 5 of the Procedure.  Mr Walker said that he did consult with the Health Team, however he did not know if anyone from the OS Health Team spoke directly to the Applicant’s health practitioner.  Mr Walker said it was the OS Health Team that determined that the Applicant should attend an IMA. 

1. On 30 November 2022, Mr Walker wrote to Dr Jetnikoff requesting he conduct an IME assessing Ms Frizell’s fitness for work (Request Letter). The Request Letter asked Dr Jetnikoff to provide a medical report responding to nine questions in relation to Ms Frizell's medical condition and fitness for work. Dr Jetnikoff was provided with a copy of the Agbasale Supplementary Report as well as the job task analysis of the role Technical Specialist, which included information about the inherent requirements of Ms Frizell’s role.

1. Dr Jetnikoff reviewed the documentary material provided and conducted an IMA of Ms Frizell on 2 December 2022. Dr Jetnikoff subsequently provided BHP OS a report on 3 December 2022 (Jetnikoff Report) On 15 December 2022, the Applicant received an email from Mr Walker inviting the Applicant to attend a meeting to be held on 20 December 2022. The meeting was rescheduled to 12 January 2023 at the request of the Applicant’s husband Mr Frizell.

1. On 12 January 2023 the Applicant participated in the meeting with the Respondent and subsequently received a letter by email from the Respondent inviting her to show cause as to why her employment should not be terminated (Show Cause Letter).  The Applicant responded to the Show Cause Letter by email dated 15 January 2023 (Show Cause Response).  On 18 January 2023 the Applicant participated in an outcome meeting with the Respondent and subsequently received a letter by email from the Respondent notifying her that her employment was terminated on “the grounds of incapacity” effective immediately (Termination Letter).  It was stated that the Applicant’s employment was terminated with BHP OS because she was permanently unfit for her substantive role as Technical Specialist at the Mine, or any role at BHP OS and would never be able to return to work.

Treatment at Workplace

1. The Applicant submitted that a number of serious complaints were raised in relation to her treatment in the workplace and a lack of support was received from the Respondent. These allegations included complaints of bullying and harassment by her supervisor, Shane Bayntun and a colleague David Brook threatening to kill her.  The Applicant submitted that rather than considering how the Respondent could address these serious concerns and provide the Applicant with a safe workplace, the Respondent proceeded to terminate the Applicant’s employment.

1. The Respondent submitted Ms Frizell is critical of BHP OS’s failure to address her complaints about the behaviour of Messrs Bayntun and Brook, however those complaints were first raised by Ms Frizell during her consultation with Dr Jetnikoff, after the PPI Procedure had commenced. Mr Walker was not aware of her complaints prior to that time, and once Ms Frizell’s complaints were brought to his attention, Mr Walker, with Ms Frizell's approval, reported the relevant matters to EthicsPoint (BHP’s complaint reporting system).  The Respondent submitted that in any event, the complaints raised by Ms Frizell were not relevant to BHP OS’ decision, and did not change BHP OS’ view that Ms Frizell was permanently unfit for her substantive role, or any role at BHP OS.

Grant Walker

1. The Applicant submitted that she was involved in an incident with superintendent Grant Walker in early November 2021 when Mr Walker approached her about printing out information on the work computer that he suggested was opposed to the COVID-19 vaccination. The Applicant submitted this was during the COVID-19 pandemic and BHP was in the process of implementing a vaccine mandate for its sites, which had caused some concerns amongst some employees and received media attention.  Mr Walker has been employed by the Respondent for a proximity 16 years and has held leadership positions including Superintendent. 

1. It was submitted by the Applicant that to the best of her recollection, the material that she printed out was a flyer that she found on the internet with information regarding the vaccine. The Applicant contended that Mr Walker was upset with her and accused her of not being a good role model for the team, which she disputed.  The Applicant contended that Mr Walker told her that if it was up to him, he would terminate her employment but there was a process he had to follow so she would receive what he described as a “first and final warning” as a minimum.  Despite this indication from Mr Walker, she did not hear anything further about this issue and she did not receive any formal warning or other disciplinary outcome.

1. Mr Walker stated that he recalled that in around November 2021, he discovered that anti-vaccination material had been printed using the work printer under Ms Frizell’s username, and that these materials had been posted on the notice boards around the workplace. When he raised the matter with Ms Frizell, he said that Ms Frizell admitted that she was the one who printed those materials and posted them on the notice boards around the workplace.  At that time, BHP OS was implementing its mandatory COVID-19 vaccination policy. Mr Walker stated that when he asked Ms Frizell why she printed and posted the materials, she said that it was because she did not agree with BHP OS' mandatory COVID-19 vaccination policy.

1. Mr Walker stated that he recalled saying to Ms Frizell words to the effect that ‘it is fine if that is your personal stance, that is your prerogative. However, this is where the company is going and you are in a leadership role, I did not expect you to do this. It is fine that you have issues with the vaccine, but I am very disappointed in you for printing these out’.

1. Mr Walker also stated that he recalled saying to Ms Frizell that he was not going to take the matter any further, but that he would be making a file note of the conversation. Mr Walker’s evidence was that he disagreed that he ever told Ms Frizell that she would receive a first and final warning, and indeed no such warning was ever issued. Any such warning would have been placed on Ms Frizell's disciplinary file.

1. Mr Walker denied that Ms Frizell did not receive any support to return to work, and he had offered to assist Ms Frizell with any issues she had with the Employment Assistance Program on multiple occasions.  The Applicant stated that she disputed that Mr Walker attempted to check in with her at any time. The Applicant stated that as early as April 2022, Mr Walker was requiring her to contact him, which she was not in a position to do.

1. Mr Walker agreed he left the Blackwater Mine to work at the Saraji Mine about a week after the Applicant had been dismissed, and he was aware he would be moving to the Saraji Mine about a month earlier.  Mr Walker agreed Mr Rod Nichols advised him in early January 2021 that the Applicant wished to move from Brisbane to work at a role in the Mine.  It was put to Mr Walker that there had not been any disciplinary issues with the Applicant, and he said he believed a diary note had been raised by Mr Bayntun concerning an incident between the Applicant and another co-worker.Mr Walker said that a diary note remains in the system for a year. Mr Walker said he had not seen the diary note. 

Shane Bayntun

1. The Applicant submitted that a supervisor, Shane Bayntun, made it clear to her that he did not support her being in the position she held, and frequently told her that she was not his choice for the role. Mr Bayntun held a leadership position at BHP and would act in the superintendent role in Mr Walker’s absence. The Applicant submitted that by way of short examples, Mr Bayntun:

(a)often spoke to her aggressively and/or in a sarcastic manner;

(b)excluded her from training opportunities;

(c)referred to her as a “cunt” or to a group of which she was a part as a “bunch of cunts”; and

(d)played loud head banging music with sexist and inappropriate lyrics (including lyrics referring to women being raped), even after she asked him not to do so.

1. The Applicant submitted that her concerns with Mr Bayntun were common knowledge amongst her crew and Mr Walker. The Applicant submitted that she raised several verbal complaints with Mr Walker about Mr Bayntun’s conduct but his conduct continued to escalate.  From about mid November 2021 the Applicant stated that she started to find it extremely difficult to return to work each shift knowing that she was going to have to face Mr Bayntun. The Applicant’s evidence was that she started having panic attacks at around this time.

1. It was submitted by the Applicant that to the best of her recollection, she sent two or three email complaints to Mr Walker and Mr Bayntun but she no longer had access to her BHP emails. At the time, she did not feel comfortable lodging a formal complaint with the Respondent about Mr Bayntun for fear of repercussions.  It was put to the Applicant that she had a very friendly relationship with Mr Bayntun.  The Applicant said she had a professional relationship with Mr Bayntun.  The Applicant accepted that she contacted Mr Bayntun outside work however said it was infrequent.  The Applicant accepted that she had sent messages to Mr Bayntun with friendly emojis, and that she offered Mr Bayntun some of her home-made honey, however she said she offered that to everyone on the crew. 

1. The Applicant was referred to series of text messages exchanged between herself and Mr Bayntun including one where the Applicant said she was looking forward to seeing him back at work, dated October 2021.  The Applicant said that was before her medical condition.  It was put to the Applicant that her friendly text messages with Mr Bayntun extended to as recently as January 2022 and she accepted that.  It was put to the Applicant that she never complained to anyone within the Respondent about Mr Bayntun.  The Applicant claimed she sought counsel from other supervisors, and she raised her concerns with management  including Mr Walker.  The Applicant said she always took the higher road in keeping things amicable hence her text messages, and it was always about the crew.  The Applicant said if she continually showed she was a nice person he would not be so mean to her.  The Applicant said she responds to everyone with an emoji however Mr Bayntun’s responses were one line. 

1. The Applicant said in December 2021, she told Mr Bayntun that she wanted a transfer to another unit on site. Ms Frizell said Mr Bayntun told her he would not support any sort of move to another team and would block her wherever he could as she got the job done and had good working rapport with the crews. This discussion is said to have occurred in person at the Applicant’s quarterly performance review between her and Mr Bayntun.

1. The Applicant stated that at a team meeting on 2 March 2022, the team were discussing a report about equipment usage, and she asked a question about the new system they were using to record usage data. The Applicant’s evidence was that she and a colleague, Teleah Summers, had a discussion about the source of the data as she wanted to ensure it was accurate. Later that day, the Applicant submitted that Mr Bayntun called her into a meeting with Ms Summers and accused her of being disrespectful and told her to mind her manners. The Applicant contended that she did not consider that she had been disrespectful or inappropriate in any way and she found these accusations unwarranted and condescending. The Applicant stated that she also found these allegations extremely unfair given the way that Mr Bayntun himself spoke to others in the workplace. The Applicant submitted she finished her 7 day shift the next day and returned home. The Applicant stated that she has not returned to work for BHP since this time.

1. Mr Bayntun said that he recalled that Ms Frizell told him that she wanted to transfer to the track team on site and he agreed that she had a good working rapport with the crews. He said this was initially discussed at Ms Frizell's performance review, and they had a similar informal conversation later at her workstation in the workshop.  Mr Bayntun denied that he told the Applicant he would not support her moving to another team.  He said he told Ms Frizell that he would support her decision and it was disappointing to see her leave and for the team to lose her skillset.  Mr Bayntun said that Ms Frizell did not tell him of the reason why she wanted to transfer to the track team, and he was not aware of any reasons which led to this desire.  Mr Bayntun said in any event, any decision in relation to Ms Frizell’s transfer would be made by Mr Walker as the Superintendent and was not within his purview as the acting Superintendent at the time because Mr Walker was away.

1. Mr Walker contended that he never received any verbal or email complaints from Ms Frizell about Mr Bayntun’s conduct. He said if he had received any such complaints, he would have raised them with Mr Bayntun. Mr Walker’s evidence was that ordinarily he would expect matters like this to be raised with him as the Superintendent. He was not aware that Ms Frizell required regular medical appointments with her General Practitioner, Psychiatrist or Psychologist, and he never heard of these matters from Ms Frizell or indeed anyone else.

1. Mr Walker submitted that he recalled Mr Bayntun informing him of an incident between Ms Frizell and Ms Summers. From his discussion with Mr Bayntun at that time, he understood that the incident involved unsatisfactory behaviour on the part of both Ms Summers and Ms Frizell, however that Mr Bayntun had met with both individuals and the issue had been resolved.  Mr Bayntun said Ms Summers called him in the afternoon of 1 March 2022 at around 2.48pm stating that her and Ms Frizell ‘had a few words while updating the L2 board’ and that Ms Frizell was very rude to Ms Summers and had told Ms Summers to ‘pull her head in’ and stormed out.  Mr Bayntun said he recalled that Ms Summers appeared quite upset by this event.  Mr Bayntun provided a copy of his diary note of the discussion, and coaching notes. The Applicant was referred to paragraph eleven of her witness statement where she said she has an unblemished disciplinary record with the Respondent.  The Applicant was referred to a document titled ‘Coaching – File Note.’  The document records the Applicant’s name, position and department and is dated 2 March 2022.  The Applicant said her name is spelt incorrectly and she never received it.  The Applicant said she believed the document was fabricated. 

1. Mr Bayntun said that following Ms Summers’ report to him on 1 March 2022, he facilitated a discussion between Ms Frizell and Ms Summers on 2 March 2022 at 8.30am.  He said in that discussion, Ms Frizell raised concerns about Ms Summers not helping Ms Frizell with work, and Ms Summers raised concerns about the way Ms Frizell spoke to her.  Mr Bayntun said at the end of the discussion, Ms Frizell apologised to Ms Summers for not speaking to her with respect.   Mr Bayntun said he reminded both of them that their interactions have to be respectful and that they need to work as a team and support each other, which they both agreed with.  Mr Bayntun said from his perspective, the matter between Ms Frizell and Ms Summers resolved at that meeting. 

1. Mr Bayntun denied that he did not support Ms Frizell being in her role, or that he ever told her that she was not his choice for the role. Mr Bayntun’s evidence was that, to the contrary, because Ms Frizell told him when she first commenced in the role that she came from a corporate environment and was not familiar with working on site, he told Ms Frizell he would help her as much as he could because he was familiar with it. He stated that he provided as much assistance as he could and took on additional work to help Ms Frizell. Mr Bayntun’s evidence was when Ms Frizell began in her role, she undertook training with another employee, and he also provided Ms Frizell with a handbook he created when he was employed as a Technical Specialist on how to perform that specific role, which he provided to another Technical Specialist he had trained before Ms Frizell.

1. Mr Bayntun also stated that he denied that he often spoke to Ms Frizell aggressively and/or in a sarcastic manner and he believed that he and Ms Frizell had a good working relationship. Mr Bayntun denied that he excluded Ms Frizell from training opportunities and denied that he has ever referred to Ms Frizell as a ‘cunt’ or to a group of which Ms Frizell was a part as a ‘bunch of cunts’. Mr Bayntun stated that he would never say this to anyone, whether in a work setting or not and this goes against his values. Additionally, Mr Bayntun denied that he played loud head banging music with sexist and inappropriate lyrics (including lyrics referring to women being raped) or that Ms Frizell ever asked him to not play music of this kind. While other Maintenance Technicians used to play music in the shed, he said he rarely played music when at his workstation.

1. Mr Bayntun stated that he was not aware that Ms Frizell had any concerns about him, and he thought that their working relationship was constructive and friendly. Although he had never taken up the offer, Ms Frizell would invite him over to her and her husband’s house. This is evidenced by the text messages between 27 May 2021 and 28 January 2022 which were submitted with Mr Bayntun’s statement referred to above.[1]

1. Mr Bayntun was not required for cross examination by the Applicant and his statement was admitted into evidence. 

David Brook

1. The Applicant gave evidence that in or about October 2021 there was an incident one morning after late shift at the camp mess with a colleague, David Brook. The Applicant said that Mr Brook said to her words to the effect of  “I will hunt you down and kill you if my family gets COVID from you”. The Applicant contended that this incident was witnessed by Mr Walker and Mr Dean Blackburn as well as other employees who left the mess area due to Mr Brook’s aggressive behaviour.

1. The Applicant stated that she was told this incident had been reported to Mr Bayntun. The Applicant stated that she found this incident extremely upsetting, and she was not aware of any action being taken by BHP to address this incident. The Applicant’s evidence was that whilst she had asked questions in relation to the implementation of the Respondent’s policies in relation to COVID-19, she was not against vaccination, and she received her full dose of the COVID-19 vaccination by January 2022 in accordance with BHP’s then requirements.

1. Mr Brook gave evidence that he denied that he said words to Ms Frizell to the effect of ‘I will hunt you down and kill you if my family gets COVID from you’. He said he has never, and would never, make a comment like that to Ms Frizell – either at that time or any other time. Mr Brook’s evidence was that the Applicant had interrupted a conversation he was having with two work colleagues and shared her strong views about the COVID-19 vaccine. Mr Brook’s evidence indicated that as the conversation progressed, the Applicant became more animated and angrier, and accordingly, he got up and walked away. Mr Brook stated that he did not know if Ms Frizell ever made a complaint about the incident, but no-one ever addressed it with him afterwards.

1. The Applicant’s evidence was that she disagreed with Mr Brook’s version of the incident in October 2021. She stated that the incident occurred at the camp mess and both she and Mr Brook together with colleagues Mr Blackman and Mr Waker, were sitting at the table having a discussion. She stated that she did not interrupt any conversation between her colleagues, nor did she raise her voice or was “close to yelling” at Mr Brook.

1. The Applicant stated that at around this time, she was seeing her General Practitioner, Dr Agbasale at Divine Medical Centre in Maryborough regularly, often every two (2) to four (4) weeks. In approximately mid-2021, Dr Agbasale referred her to Psychiatrist, Dr Vichal Woochit. She had two (2) appointments with Dr Woochit before she moved away from the area. The Applicant’s evidence was that from approximately November 2021, she received treatment from Psychologist Desley Fraser at Desley Fraser & Associates in Maryborough.  The Applicant said after Ms Fraser retired, she received treatment from psychologists at Thriving Minds in Maroochydore and Psychology Choices in Maryborough.

1. It was put to the Applicant that Mr Brook did not say that he would hunt her down and kill her.  The Applicant maintained that he did.  It was put to the Applicant that if someone had threatened to kill her, she would have reported that.  The Applicant said she didn’t report it to anyone because it was so intimidating, and there were two other supervisors at the table at the time.  It was put to the Applicant that the Respondent’s Ethics Point system provides for anonymous complaints.  The Applicant said she didn’t believe the system was anonymous, however was aware that it was advertised as being anonymous.  The Applicant accepted she did not have a basis for believing that an anonymous complaint would not be treated with the appropriate discretion. The Applicant claimed Mr Walker had told her that he had reported the incident, however she could not recall the specifics of the conversation. The Applicant could not remember who she thought it was reported to, however thought it went up the chain.  Mr Walker said he was not aware of the incident between Ms Frizell and Mr Brook until he saw it referred to in the Jetnikoff Report.

Absence from work

1. On 21 March 2022, the Applicant stated that her husband Mr Frizell, provided a medical certificate to Mr Walker and Mr Bayntun regarding her absence from work for the period 9 March 2022 to 31 March 2022.  The Applicant stated that on 5 April 2022, Mr Frizell sent a further email and medical certificate to Mr Walker and Mr Bayntun for the period 1 April 2022 to 27 April 2022.  The Applicant’s evidence was that Mr Walker had requested that she contact him regarding her absence from work and her husband indicated that she would not being doing so at that time based on medical advice.

1. On 4 May 2022, Mr Frizell forwarded a further medical certificate to Mr Walker for the period 28 April 2022 to 10 May 2022.  The Applicant’s evidence was that Mr Frizell requested that she take annual leave as she had used all of her available sick leave. On 16 May 2022, Mr Frizell forwarded a further medical certificate to Mr Walker for the period 11 May 2022 to 15 July 2022.   The Applicant stated that on 24 June 2022, Jamie Haffenden, acting superintendent sent an email to Mr Frizell confirming that the Applicant had exhausted all of her leave entitlements and was now on unpaid leave.

1. The Applicant’s evidence was that on 18 July 2022, Mr Frizell forwarded a medical certificate to Mr Haffenden for the period 15 July 2022 to 15 August 2022, and Mr Frizell informed Mr Haffenden “We are working hard to get Linda well enough to return to work as soon as possible”.  The Applicant stated that on 16 August 2022, Mr Frizell sent a further email to Mr Walker with a medical certificate for the period 16 August 2022 to 16 September 2022.

1. The Applicant stated that on 2 August 2022, Mr Walker sent an email with a requirement that she book an extended review with her treating medical practitioner to gain “return to work and/or recovery timeframes”. A response was requested by 4 August 2022. The Applicant’s evidence was that she did not see these emails at the time as she did not have access to her work emails and Mr Frizell was dealing with these requirements on her behalf. On 11 August 2022, Mr Frizell responded to Mr Walker.   On 16 August 2022 Mr Walker sent a further email to Mr Frizell requesting a response by 18 August 2022.  On 19 August 2022, a “Letter of Direction” was sent by Mr Walker at 1.50pm.  Mr Frizell responded at 2.20pm that day indicating that an appointment had been arranged with Ms Frizell’s doctor for 15 September 2022, being the earliest longer consultation that could be secured.

1. On 13 September 2022, Mr Frizell sent an email to Mr Walker and to group manager Mr Joseph Browne with a medical certificate for the period 16 September 2022 to 17 October 2022.  The Applicant stated that she attended with her general practitioner, Dr Agbasale on 15 September 2022.  The Applicant’s evidence was that she and Mr Frizell relocated from River Heads in the Fraser Coast Region of Queensland to Bilyana in Far North Queensland in late September 2022 to be closer to her parents and her daughter so that she had more family support.

1. The Applicant contended that she had intended to seek approval from BHP to fly out to work via Townsville rather than Brisbane when she was in a position to return to work. She had previously been flying out from Brisbane after driving 4.5 hours from River Heads whereas the commute to Townsville from Bilyana would take less than half of this time.  The Applicant’s evidence was that she commenced treatment with Jenny Sztaroszta from City Psychology in or about October 2022 after she relocated to Far North Queensland. On 18 October 2022, Mr Frizell sent a further email to Mr Walker with a copy of a medical certificate through to 17 November 2022.

1. The Applicant stated that on 20 October 2022, Dr Agbasale provided a medical report. On 31 October 2022, Dr Agbasale provided a further medical report. The Applicant’s evidence was Dr Agbasale was of the view that her prognosis for the short and long term was “good” with the right support.

1. On 2 November 2022, the Applicant stated she was requested to attend an appointment with a medical practitioner appointed by the Respondent.  On 2 December 2022 the Applicant attended an appointment with Dr Jetnikoff by videoconference. The Applicant stated that Dr Jetnikoff questioned her as to why she would want to return to a workplace that she had described as toxic. The Applicant submitted that she told him that she did have concerns about returning to work without the proper support from BHP but that she was working through these concerns with her treating doctors.

1. The Applicant agreed that the medical certificates that had been provided to the Respondent provides no details to the Respondent other than that she had a medical condition.  The Applicant also accepted that none of the medical certificates provided the Respondent with an indication as to when the Applicant was likely to be in a state to return to work. 

Medical Reports and Capacity

Jetnikoff Report

1. In the Jetnikoff Report, Dr Jetnikoff expressed the view that Ms Frizell was permanently unable to return to her role of Technical Specialist with BHP OS, and was in fact unable to return to any role with BHP OS. Dr Jetnikoff, a qualified psychiatrist with more than 15 years of clinical experience and IME experience, reached the following conclusions:

(a)Ms Frizell has developed a level of anxiety and mistrust of BHP OS such that she could not attend the workplace, and to do so would result in her medical condition being exacerbated or deteriorating;

(b)given Ms Frizell’s state, which Dr Jetnikoff often refer to as ‘malignant resentment’, it was not necessary for him to consider each and every task she would be required to perform in her role and determine whether she could perform those tasks in isolation. Her ability to perform her role was inextricably linked to her feelings about the workplace, and her feelings about BHP OS in general;

(c)redeploying Ms Frizell to another role with BHP OS would not address her psychiatric condition. Instead, what she needed to help her recovery was to separate from her employment with BHP OS;

(d)no changes could be made at the workplace to make it ‘safe’ for Ms Frizell to return to her role, or indeed to any other role with BHP OS; and

(e)there is nothing that BHP OS could have done to enable Ms Frizell to return to her role, or to any other role, without the risk of further exacerbating her condition.

1. The Applicant submitted that in terminating the Applicant’s employment, the Respondent relied entirely upon a report of Dr Jetnikoff dated 3 December 2022. The report contains the following responses to questions asked by the Respondent:

   “1. Does Ms Frizell have a diagnosable medical condition(s) and if so, what is the nature of Ms Frizell’s medical condition(s) and stability?

   Chronic adjustment disorder with anxiety and depressed mood. Her condition is a chronic source of anxiety and a barrier to returning to work for her employer in any capacity. She is unstable with this and prone to panic all of which relates to a threat of returning to work.

2. What is the prognosis for Ms Frizell’s medical condition, short and long term?

Ms Frizell is unable to return to her substantive position. She is considered unfit for the position now. She is permanently considered unfit for the position and no treatment or alterations to her role would alter this prognosis.

3.What is the likelihood of a future aggravation of Ms Frizell’s condition/s? Please quantify whether the risk is moderately significantly or greatly increased?

Ms Frizell remains unwell and would have aggravations of the condition with any attempt to return to work for her employer. The risk is greatly increased particularly as she has not achieved remission.

4.Does Ms Frizell have the capacity to meet the inherent cognitive, social and safety requirements of the role and the resilience to make a sustainable return to work?
…
No, she does not. She will never be fit to return to duties in the future and in my opinion she is permanently unfit to return to this work.”

1. Dr Jetnikoff’s report also contains the following statements:

“I believe Ms Frizell is permanently unfit to return to work for her employer in any capacity and a separation from her employer should be pursued.

…

Some ongoing psychological support is recommended until she ceases from her employer. She is likely to achieve a full recovery on finding suitable alternate employment. Her condition is specifically associated with her substantive position with BHP and once she is separated from her employer, I believe that she will achieve a remission in time no greater than two months following separation.

I would strongly recommend a discussion about separation from the employer begin as soon as it is practical.”

1. Cross on Evidence sets out the criteria for the conditions for admissibility of expert opinion evidence as is set out below:[2]

“…Indeed, “in a great deal of complex litigation …, expert testimony is a practical if not legal necessity.” The conditions for admissibility of expert opinion evidence may be summarised as follows. First, it must be demonstrated that there is a field of specialised knowledge… Secondly, there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert... Thirdly, it must be demonstrated that the opinion proffered is wholly or substantially based on the witness's expert knowledge... Fourthly, the expert must identify the assumptions of primary fact on which the opinion is offered (“the assumption identification rule”)... Fifthly, the opinion is not admissible unless evidence has been, or will be, admitted, whether from the expert or from some other source, which is capable of supporting findings of primary fact which are “sufficiently like” those factual assumptions “to render the opinion of the expert of … value. This is often called “the basis rule”... Sixthly, there must be a demonstration that the facts on which the opinion is based form a proper foundation for it. Seventhly, the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached… discussing the third, sixth and seventh conditions. It is not, however, necessary for the expert's opinions to be described as such: it is sufficient if in substance they are inferences from assumed facts drawn with the aid of the expert's expertise. These are rules of admissibility for the judge, although to the extent that the evidence, though admitted, transgresses these criteria they indicate matters material to weight.

Underlying the seven requirements there is probably a question concerning the methods used by the expert. Assuming a field of expertise and a witness expert within it, and assuming satisfaction of the third-seventh requirements, can it be said that the methods used by the expert witness were capable of producing valid answers? This question arises particularly, but not only, in relation to the first two requirements. There is little express recognition of the question in the authorities. rules of admissibility for the judge, although to the extent that the evidence, though admitted, transgresses these criteria they indicate matters material to weight.” (citations in original omitted)

1. The Applicant submitted that the Applicant does not take issue with Dr Jetnikoff’s capacity to give admissible opinion evidence in relation to the first and second criteria set out in Cross on Evidence. Importantly, it was submitted that his report does not comply with the “assumption identification rule”, nor does it set out the evidence he has relied upon that is capable of supporting findings of primary fact which are “sufficiently like” those factual assumptions “to render the opinion” of Dr Jetnikoff of value.

1. The Applicant submitted that whilst it is true to say that the principles set out in Cross on Evidence apply to the admissibility and/or weight to be given to an experts opinion before a court or tribunal – the Applicant submits that in circumstances where there are such deficiencies, it was entirely unreasonable to require the Applicant respond to the report (including in the time provided by the Respondent), in circumstances where she had no expertise, by reason of training, knowledge or experience to properly respond to the opinion of Dr Jetnikoff.

1. The Applicant submitted that relevantly, it is difficult to ascertain the basis for the opinions set out in Dr Jetnikoff’s report. There are no reasons provided as part of the answers to the specific questions asked by the Respondent. Regard therefore has to be had to the earlier parts of Dr Jetnikoff’s report in assessing the opinions offered by him.

1. The Applicant submitted that Dr Jetnikoff does not appear to have regard to the inherent requirements of the position, but rather the complaints made by the Applicant regarding her workplace that led to her taking extended leave.

1. The Applicant submitted that the Show Cause Letter contains the following:

“Dr Jetnikoff further indicated that you are not currently fit to complete the full inherent requirements of your role…and…considers you to be permanently unfit for the position and no treatment or alterations to your role would alter this prognosis.”

“The report further states that if you had to be returned to work for BHP, the risk of aggravation is greatly increased and recommends that separation from BHP should be pursued.”

1. In the Show Cause Response, the Applicant indicated:

“I am more than capable and confident in performing my duties/daily tasks as a Specialist Maintenance Technician as long as I can assimilate into a better culture and more inclusive site based workforce.”

1. The Respondent submitted Ms Frizell contends that the criteria for the conditions for admissibility of expert opinion evidence are relevant in considering the Jetnikoff Report, however this view is misguided. When BHP OS relied on the Jetnikoff Report, it relied on that report as the product of Dr Jetnikoff’s independent medical assessment of Ms Frizell. In any event, the Respondent submitted that the Commission is not bound by the rules of evidence and procedure, and Dr Jetnikoff was not engaged as an expert witness.

1. It was put to the Applicant that she complained about the time she was given to respond to the Report, however she was provided a copy of it in mid-December 2022, and didn’t need to response to the show cause until 16 January 2023 and she provided it a day earlier on 15 January 2023.  The Applicant accepted that the report was sent to her husband in mid-December as an attachment to an email.  The Applicant accepted that the email gave her an opportunity to respond to the Reports findings in relation to her fitness for work. 

1. The Applicant said she did not remember seeing the questions answered by Dr Jetnikoff however she said she remembered reading the report and not agreeing with it.  The Applicant said she may have skimmed over the questions. 

1. The Applicant was asked about her evidence in her second statement that if Mr Bayntun and Mr Walker were no longer at the mine, she would have been comfortable to return.  The Applicant was asked whether that meant if Mr Bayntun and Mr Walker were still at the mine she would not have been comfortable to return.  The Applicant did not accept that.  The Applicant said her abilities would have got her through to another job, and she could have got a transfer.  It was put to the Applicant that her level of distrust for the Respondent as at December 2022 was at a point that she was incapable of returning to work for the Respondent in any capacity.  The Applicant did not agree. 

1. Dr Jetnikoff agreed he had some experience in providing such reports. He said he had provided at least dozens of reports to BHP over a period of 10 years.  Dr Jetnikoff described his task as to assess the psychiatric status of the individual.  Dr Jetnikoff agreed the consult with the Applicant on 2 December was about one and half hours and he provided it to his referring agency which was 3 December 2022.  Dr Jetnikoff confirmed he had the 31 October Report of Dr Agbasale and the Position Overview Document at the time of his consult with the Applicant. 

1. Dr Jetnikoff did not think the fact that he referred to a first and final warning in his report when the Applicant had not received such a warning, would have influenced his conclusion.  Dr Jetnikoff said that anything he said in the report that was not contained in the referring material would reflect what he was told by the Applicant. 

1. Dr Jetnikoff was referred to the following paragraph from his report;

“Ms Frizell advised me that in July 2019, she commenced at the Brisbane Corporate Office of BHP through a contractor and as this period was impacted by the pandemic she worked at home for 10 months. She became a permanent employee based at the Brisbane office in December 2020. She advised me that she was required to return to the office environment, but she had reservations about doing this although we did not explore this it did appear it related to having vaccination and her civil liberties. (underlining added) She advised that the managers forced her to return which led to conflict with her supervisor even though the senior management of the company had no concerns about working from home if it was achievable. She described this leading to a “run in” with her supervisor and she was unable to continue working with the supervisor and organised transfer to the mine work at Blackwater, where she started in February 2021. She advised me that the supervisor she had the encounter with left the employment. She advised me that in her own personality she tends to avoid conflict. This encounter did not lead to a Workers’ Compensation claim. She explained that when she started at Blackwater, she was enthusiastic as she liked field work but was fragile after the incident with her former supervisor.”

1. It was put to Dr Jetnikoff that the Applicant was merely expressing a political opinion.  Dr Jetnikoff disagreed, saying that it was indicative of the Applicant not being able to get to the point.  Dr Jetnikoff was referred to a later section in his Report where he mentions that she tried to explain things but could never get to the point, and that is a description of mental state.  Dr Jetnikoff said the expression by the Applicant of a political opinion was not relevant to his conclusions. 

1. In reference to the following paragraph in his report, and a number of further following paragraphs Dr Jetnikoff said he was recording what the Applicant had told him.  Dr Jetnikoff was also referred to a later paragraph on the next page of his Report where he said as follows: 

“Ms Frizell was increasingly stressed by the requirement to have vaccination of COVID-19 and did have the vaccinations only because of the employer mandate. She had the required two vaccinations by October 2021. She advised me she disagreed with COVID lockdowns as a civil liberty issue and in general having to have vaccinations and only did this to maintain her employment. Despite these difficulties she reported a good performance at work having achieved well in her performance reviews on both occasions when they were undertaken. She had maintained a degree of frustration and anxiety for most of the time she was there.”

1. Dr Jetnikoff was again asked how the expression of a political opinion by the Applicant is relevant to the diagnosis.  Dr Jetnikoff said the diagnosis in this case relates to a series of contributing factors.  He said it is the unfortunate case that stress disorders sometimes don’t have one clean linear causation between stress and onset of illness.   He said no one can apportion with God like accuracy what has caused the problem.  Dr Jetnikoff said in this case he had identified a series of recurrent themes of unfair treatment, and this was another example.  He also referred to a theme of lack of support. 

1. Dr Jetnikoff was asked whether if he had known that a supervisor who the Applicant had concerns with had left the worksite in May 2022, it would have changed his conclusions.  Dr Jetnikoff said it is a complicated question, however it was not only about the supervisor as he sets out in the summary section of his report.  Dr Jetnikoff said the Applicant had developed a degree of resentment, and negative opinion toward her employer, and this was a contributing factor that had led to her diagnosis. 

1. Dr Jetnikoff said his conclusion in the Report is based on the way he approached the diagnosis, and the summary is to help the layman with the story.  Dr Jetnikoff said the diagnosis is set criteria based on well-established international coding systems.  Dr Jetnikoff was clear his view about permanent incapacity pertains to this employer.  It was put to Dr Jetnikoff that his expression of an opinion that a separation from the employer should be pursued, is not a medical opinion but human resources advice.  Dr Jetnikoff responded that he had been asked his opinion, and the reason he had said that was because in adjustment disorders where he believes the employment is the perpetuating factor for the morbidity of the condition, that even sustaining the employment in the absence of being in the work environment can perpetuate the condition, and so his medical advice in the context of an adjustment disorder is to remove one from the stressor, which is the employment.  Dr Jetnikoff said it is his medical opinion that a separation from the employment would lead to a remission in the Applicant’s condition. 

1. It was put to Dr Jetnikoff that his use of the expressions ‘malignant resentment’ and ‘general mistrust’ are not a medical diagnosis. Dr Jetnikoff accepted that.  Dr Jetnikoff described general mistrust as a symptom.  Dr Jetnikoff said only the Applicant can answer who her malignant resentment was directed toward.  Dr Jetnikoff said malignant resentment is a feature of the adjustment disorder, and it is a term he has coined himself.   Dr Jetnikoff said he believed the Applicant’s anxiety was sufficiently incapacitating that she could not do the job and could not attend the work. 

Dr Olabode Agbasale Reports – Applicant’s GP

1. The Applicant submitted that the Respondent also held two reports from the Applicant’s General Practitioner, Dr Olabode Agbasale being a report dated 20 October 2022 (First GP Report) and a report dated 31 October 2022 (Second GP Report).

1. The First GP Report contains the following:

“Her response (sic) are guarded and unpredictable, with appropriate therapy , she should improve.

With sustained psychological support and medical supervision under the psychiatrist , she should be able to make functional recovery.

Full functional recovery and return back to work…Possibly in the next 6-12 months…”

1. The Applicant submitted that the Second GP Report responds to specific questions asked by the Respondent (the same questions answered by Dr Jetnikoff) and contains the following:

“…

2. What is the prognosis for Ms Frizell’s medical condition, short term and long term?

With the right support , Her prognosis is good for short and long term

3. What is the likelihood of a future aggravation of Ms Frizell’s condition(s)? Please quantify whether the risk is moderately, significantly or greatly increased?

Just like any other Mental health or medical condition , there is a potential for aggravation of her condition in future…with appropriate support and treatment the risk of aggravation is just like any other medical condition. With a good crisis management and support structure , the risk would be greatly reduced.”

1. The Applicant submitted that The Second GP Report also contains the following information:

“With appropriate support and treatment…she should be able to return back to work;

The timeframe is unpredictable depending on her response to treatment;

As her condition is yet to be stabilised, I am seriously concerned regarding her returning to work art (sic) this time until she has received the appropriate level of support”

1. The Applicant submitted that Dr Olabode Agbasale also identified a need for the Applicant to engage with new treating practitioners as she had relocated from the Maryborough area.

1. The Applicant submitted that there is no evidence that the Respondent sought any medical evidence from the Applicant’s treating psychiatrist or psychologist.  Mr Walker was asked about this and he said when the Applicant was asked for consent to speak to her treating medical practitioner she authorised the Respondent to speak to Dr Agbasale and not her psychologist or psychiatrist.  It was put to Mr Walker that the matters the subject of question 7 would need to be discussed with her psychologist or psychiatrist and Mr Walker agreed.  Mr Walker agreed that the Respondent did not go back to the Applicant and ask to speak to those persons.  Mr Walker said the OS Health Team did not recommend that. 

Ms Sztaroszta Report – Applicant’s Psychologist

1. Ms Jenny Sztaroszta, a registered Clinical Psychologist provided a one page document dated 23 May 2023.   Ms Sztaroszta said the Applicant’s GP referred the Applicant to her, and the Applicant attended her first appointment on the 8th of November 2022.  The Applicant’s next appointment was on 31 January 2023 and her third appointment was on 20 March 2023. Ms Sztaroszta said she is unable to comment on the Applicant’s functioning prior to December 2022.  As at the time Ms Sztaroszta provided her report she had seen the Applicant for six sessions.

1. Ms Sztaroszta said she did not see the Applicant while she was working at the Respondent, and could not comment on whether she met criteria for a diagnosable condition during her employment.  Ms Sztaroszta said the Applicant is currently reporting experiencing significant anxious symptoms which has limited her ability to engage with others in the community (i.e, going to stores and going to social events). She currently meets DSM-V criteria for social anxiety.  Ms Sztaroszta said the Applicant’s symptoms of social anxiety manifested after the issues started at her work as she indicated that she did not experience these symptoms prior to this time. Ms Sztaroszta said since working with the Applicant using CBT strategies, she has reduced her anxious symptoms and has increased her frequency in going to stores and social events, and therefore her prognosis is good.

1. Ms Sztaroszta said the Applicant reported that she has worked over twenty years in similar roles previously to working for the Respondent, and did not report any difficulties with her colleagues or supervisors.  Ms Sztaroszta said is also important to note that the Applicant reported that no issues were noted about her performance during her performance reviews last year.  Ms Sztaroszta said if the Applicant was to continue to work with the same staff and colleagues that she did previously, this would further aggravate her current symptoms. However, if she was able to work with different staff and colleagues, the Applicant would have been able to undertake her duties well as she had been able to do this previously in her career.   Ms Sztaroszta said she did not feel that the Applicant would require any further adjustments to her previous role however the Applicant, as well as any other employee, would benefit from working in an environment that does not encourage but dissuades indirect or direct bullying in the workplace.  Ms Sztaroszta said in her opinion, the Applicant would currently be fit to return to work however would require certain accommodations since she has not been working since last year. Ms Sztaroszta said the Applicant would benefit from initially working in a part-time basis and may eventually graduate to full-time employment.  Ms Sztaroszta said the Applicant would also benefit from working in a small team with limited client-facing tasks, and would also work better with set routine tasks that she can work through during the day.

1. It was put to Ms Sztaroszta during her oral evidence that her observations about the Applicant’s prognosis is limited to as at 23 May 2023.  Ms Sztaroszta replied that her observations are from 20 March 2023.  Ms Sztaroszta later agreed with the proposition that the diagnosis from 20 March 2023 took into account observations from the earlier appointments with the Applicant. 

Show Cause and Termination

Show Cause Process

1. The Applicant stated that on 15 December 2022, she was provided with a copy of the report from Dr Jetnikoff dated 3 December 2022 and requested to attend a meeting on 20 December 2022. At this time, she said she had no expectation that her employment would be terminated. The Applicant said she had submitted medical certificates to her employer that she was not fit for work, and she understood at the time that her employer was not able to terminate her employment during the period covered by the medical certificate.  It is notable that the Applicant and her husband had been sent a copy of Dr Jetnikoff’s report and were sent an email by Mr Walker on 15 December advising that the purposes of the intended meeting on 20 December was for the Applicant to have an opportunity to respond to the conclusions in Dr Jetnikoff’s Report. 

1. The Applicant’s evidence was that she was also aware of at least two former colleagues, being given “first and final” warnings as part of a disciplinary process and she had expected the same to be given to her with a requirement to return to work by a certain time period. In response to this, Mr Walker’s evidence was that those employees were subject to disciplinary processes regarding matters related to conduct, not related to incapacity. Mr Walker stated that every matter is dealt with on a case-by-case basis and no comparison can be drawn between their circumstances and Ms Frizell’s.

1. It was put to Mr Walker that he did not indicate to the Applicant that she could seek another medical opinion.  He agreed he did not say that.  Mr Walker said as it was a show cause if the Applicant wanted to provide any other evidence she could do so.  It was put to Mr Walker to get another medical diagnosis in less than 5 days would be very difficult.  The Applicant’s evidence was that she and Mr Frizell were going away for the Christmas 2022 period, and she was not in a position to attend the requested meeting on 20 December 2022. At Mr Frizell’s request, the meeting was rescheduled to 12 January 2023 because she and Mr Frizell took a pre-planned holiday in December 2022. On 11 January 2023, Mr Frizell sent a further medical certificate to Mr Walker for the period 17 December 2022 to 17 January 2023.

1. The Applicant’s evidence was that she and Mr Frizell participated in a meeting by phone with Mr Walker and Mr Browne on 12 January 2023. The Applicant stated this was a brief meeting, of less than 10 minutes in duration, during which Mr Walker read out the contents of a letter to her and told her that he would send her a copy of the letter by email.  Mr Walker accepted that the show cause letter was provided to the Applicant on 12 January 2023.  It was put to Mr Walker that the correspondence of 12 January 2023 sent to the Applicant was the first time the Applicant had been put on notice that she may be face termination of employment on the basis of her medical incapacity.   Mr Walker said the medical opinion of Dr Jetnikoff was taken into account and the decision to terminate was taken in conjunction with Mr Browne. 

1. The Applicant’s evidence was that the contents of the letter read out to her included that BHP was considering the termination of her employment. The Applicant stated she was shocked to hear that BHP was considering terminating her employment as she had expected to be provided with further time to return to work or to be offered an alternative position within the organisation. The Applicant said that Mr Browne interjected during the meeting and asked her if he could refer her complaints to the Ethics Point at BHP. The Applicant said that she had not raised any complaints at this meeting, so she assumed that Mr Browne was referring to issues she had previously raised with Mr Walker. The Applicant said she authorised Mr Browne to do so on her behalf. After the telephone meeting, she received a letter from Mr Walker by email.

1. On 15 January 2023, the Applicant stated she forwarded an email to Mr Walker and Mr Browne, being her response to the show cause letter dated 12 January 2023.  The Applicant said even at the time of sending her response to the show cause letter, she did not think that her employment was going to be terminated. The Applicant contended that she believed that she had raised sufficient grounds in her response to justify retaining her employment.

1. The Applicant said she was aware of an employee of BHP, who had been redeployed to another position within BHP after taking a period of extended leave due to illness. In response to this, Mr Walker’s evidence was that this employee had a brief absence from work that was not due to illness - she took some time off work as she had bought a new house. While she was absent from work, she was notified that she had been the successful candidate for another BHP OS position that she had applied for. Consequently, she did not return to her role but instead in around December 2022 after her period of leave she moved to take up her new position.

1. The Applicant stated she was continuing to receive medical treatment including approximately monthly sessions with her psychologist, and the Respondent held a medical certificate that she remained unfit for work during this time.

1. Mr Walker accepted that Mr Bayntun would have left the worksite where the Applicant had worked in May 2022, and that he knew as at 12 January 2023 Mr Bayntun was no longer at the worksite.  Mr Walker said the issues raised by the Applicant concerning Mr Bayntun were only accusations, and nothing was proven.  Mr Walker accepted that he did not pass onto Dr Jetnikoff the information that Mr Bayntun no longer worked at the worksite.  It was put to Mr Walker that it was not possible for the Applicant to get a second medical opinion on the timeframe she was given to respond to the show cause.  Mr Walker did not agree.  Mr Walker gave evidence that his email of 15 December 2022 indicated that if the Applicant could not attend the meeting on 20 December, he would make a decision about her future employment on the material before him.  It was put to Mr Walker that as at 1 February 2023 both Mr Bayntun and himself would have left the worksite.  Mr Walkers evidence was that Dr Jetnikoff’s Report in answer to the second question indicated it would not have made any difference. 

Termination of employment

1. The Applicant’s evidence was that on 17 January 2023, she was notified by email that she was required to attend an outcome meeting by phone on 18 January 2023 at 9.00am. The Applicant said she and Mr Frizell participated in a meeting by phone with Mr Walker on 18 January 2023. Mr Walker read out the contents of a letter to her notifying that her employment was terminated and told her that he would send her a copy of the letter by email. The Applicant’s evidence was that it was a very short meeting of approximately five (5) minutes, and she was so shocked by the outcome that she barely said a word.

1. The Applicant stated that after the meeting, she received a letter by email from Mr Walker confirming that her employment was terminated effective immediately.

1. At the time of termination, the Applicant said her employment salary comprised of:

(a)wages of $123,971 per annum or $2,384.41 per week;

(b)allowances of:

(i)commuter/mobility allowance of $3,250.00 per annum;

(ii)site allowance of $ 17,500.00 per annum; and

(iii)work pattern allowance of $23,150.00 per annum;

(a)incentive plan with a notional target of 10% of her annual salary; and

(b)superannuation of 9.5% per annum.

1. The Applicant stated that at the time of the termination of her employment, she and Mr Frizell, together with her treating practitioners, were continuing to work towards a common goal of her return to work.

1. The Applicant contended that she did not receive any support from the Respondent to return to work, and at no stage did any representatives from the Respondent reach out to her whilst she was on extended leave to inquire how she was going or to offer any return-to-work programs. The Applicant further contended the Respondent declined to extend her entitlement to the Employee Assistance Program after she exhausted the initial five (5) available sessions by approximately mid-2022.  It was put to the Applicant that in circumstances where her husband had been designated as the point of contact it is unreasonable for the Applicant to criticise the Respondent for failing to reach out to her.  The Applicant did not agree.  It was put to the Applicant that Mr Walker attempted to call her during her absence on his personal phone, and through email to her husband expressing his well wishes.  The Applicant said she was unaware of that.  The Applicant was referred to an email Mr Walker sent the Applicant’s husband saying “hope she gets well soon” and Mr Frizell responded thanking Mr Walker and advising that the message would be passed on.  The Applicant did not recall it.  The Applicant was also referred to email correspondence from Mr Haffenden advising that if there was anything he could do to assist to please feel free to reach out and asked if her husband ever passed this message on.  The Applicant said yes. 

1. The Applicant was referred to another email of 16 August 2022 from Mr Walker to her husband which included a statement that the employer had not been advised of whether the Applicant had made an appointment with her treating medical practitioner.  The Applicant said she was seeing a psychologist at that time, but was seeing a psychiatrist after this time.  The Applicant stated that after that time, she obtained both psychiatric and psychological treatment at her own expense. The Applicant contended that from about August 2022, the Respondent commenced a formal process that she believes had a pre-determined outcome being the termination of her employment.  The Applicant accepted that she had been absent for around five months at the time the Respondent first asked her to attend a medical appointment. 

1. The Applicant stated that as far as she was aware, the Respondent did not request any evidence from her treating psychiatrist, Dr Vichal Woochit, nor from her treating psychologists.   The Applicant was referred to correspondence of 2 August 2022 where the Respondent directed her to attend for an extended review with her normal treating medical practitioner.  The Applicant accepted that it did not direct her to see a particular medical practitioner and she agreed she could have provided the name of her treating specialist if she wished. 

1. The Applicant stated that she was not aware of any steps taken by the Respondent to address her concerns regarding Mr Brook and Mr Bayntun, other than that she has now heard reports that both men have been redeployed from the Blackwater Mine.  The Applicant stated that she was never offered the opportunity to redeploy to an alternative role with the Respondent to allow any gradual return to work or to enable her skills and experience to continue to be utilised by the Respondent. The Applicant stated that had her employment not been terminated, she estimates that she would have been fit to return to work by the first week of February 2023 due to the progress that she had been making with her psychologist.

Capacity

1. The Termination Letter contains the following:

“…I have now reviewed all information available to me, including the medical report from Dr Jetnikoff and your written response dated 15 January 2023.

Unfortunately, in the circumstances the decision has been made to terminate your employment on the ground of incapacity, effective immediately.”

1. The Applicant submitted that at the time of both the Show Cause Letter and the Termination Letter, the Respondent knew the Applicant was suffering from a mental health condition and held medical certificates evidencing that the Applicant was not fit for work.

1. The Applicant submitted that “Capacity” is the employee’s ability to do the job required by the employer.[3]  The Applicant cited DA v Baptist Care SA[4] where a Full Bench of the FWC held:[5]

“Where an employee cannot perform the inherent requirements of their job and there is no reasonable scope for the employee to be redeployed into another role, it is likely that there will be a valid reason for dismissal based on the employee’s capacity.”

1. It is the Applicant’s submission that Dr Jetnikoff relied upon reports from the Applicant regarding the toxic work culture and her fear of returning to work as determinative of the alleged incapacity, rather than any inability to perform the job required of the employer.  The Applicant submitted that there is no clear finding available on the evidence that the Applicant was unable to perform the inherent requirements of the position.  The Applicant submitted that indeed, Dr Jetnikoff suggests that the Applicant would recover within only two months, but his opinion is predicated on “separation” from the employer rather than provision of a safe workplace at which the Applicant could perform the duties of the position. There is a strong inference that had the relevant “workplace stressors” been eliminated, the Applicant could have recovered within two months, with no need for the Applicant to be separated from the Respondent.

1. In addition, the Applicant submitted the Respondent did not have due regard to the opinions of the Applicant’s General Practitioner including that:

(a)   the Applicant’s prognosis for the short and long term was “good” “with the right support”;[6]

(b)   with a good support structure, the risk of aggravation of the Applicant’s condition would be greatly reduced;[7] and

(c)   the Applicant’s goal was to achieve full functional recovery and return back to work and the timeframe for this goal was possibly within 6-12 months (from October 2022).[8]

1. It was submitted no evidence was sought from the Applicant’s treating specialists.  The Applicant submitted in Ambulance Victoria v V,[9] a dismissal was found to be unfair in circumstances where there was no clear finding that the Applicant could not perform the inherent requirements of the job.  This decision was upheld on appeal.[10]

1. The Applicant submitted that there was no valid reason for the dismissal having regard to:

(a)   the above analysis of the medical evidence available to the Respondent;

(b)   the failure of the Respondent to obtain evidence from the Applicant’s treating psychologist and psychiatrist;

(c)   the lack of any genuine attempt by the Respondent to support the Applicant’s return to work; and

(d)   the absence of any consideration of redeploying the Applicant into another role.

1. The Applicant submitted there is no evidence of any medical condition of the Applicant having any effect on the safety and welfare of other employees of the Respondent.

1. The Applicant submitted that Dr Jetnikoff did not in his report address the inherent requirements of the Applicant’s role.  The Applicant submitted that Dr Jetnikoff’s position was that he was not required to do that because the Applicant had reached a state of ‘malignant resentment’ against the Respondent.  The Applicant submits that is not a medical diagnosis, as is not feelings of mistrust, and therefore they are not medical opinions and should not be relied upon, or given any weight at all.  Further the opinion of Dr Jetnikoff that the Applicant and Respondent should be separated is human resources advice, and not expert medical evidence.  The Applicant argues that the Applicant said in her own evidence that her concerns pertained to Mr Bayntun, Mr Brook, and Mr Walker and not the Respondent as a whole. 

1. It was submitted by the Applicant that the opinion that the Applicant having a ‘malignant resentment’ toward the Respondent, could be applied to any union member on a picketline.  The Applicant submitted that it is erroneous for Dr Jetnikoff to say that the symptom of ‘malignant resentment’ as the reason the Applicant can never return to work for the Respondent again, when juxtaposed against his opinion in the Report that the Applicant can recover from her medical condition within two months if she works for someone else. 

1. The Applicant submitted that it was clear on the evidence that Mr Walker was not familiar with, and did not follow the PPI Procedure, and further the Applicant did not get an opportunity to cross examine Ms Constable the OS Health Specialist, including about any consultation between that person and the Applicant’s treating medical practitioner.  The Applicant said there is no explanation about why the Respondent did not take steps to make further enquiries of the psychiatrist and psychologist who had treated the Applicant.  The Applicant submitted that a Jones v Dunkel inference could be draw in relation to the failure of the Respondent to call Ms Constable.  The Respondent submitted that it is not clear what evidence Ms Constable could have given to assist the Commission to determine the issue if Ms Constable had been called to give evidence. 

1. It was submitted by the Applicant that the Respondent was put on notice regarding the deficiencies in Dr Jetnikoff’s opinion as they relate to the assumption identification rule; the basis rule; there being no demonstration that the facts on which the opinion is based to form a proper foundation for it; and demonstration or examination of the scientific or other intellectual basis of the conclusions reached.  The Applicant submitted Dr Jetnikoff’s opinion should be given no weight, and Dr Jetnikoff’s evidence that the Applicant would need to be asked about how deep the resentment went, demonstrates the erroneous nature of the conclusion that the Applicant was unable to work for the Respondent again. 

1. The Respondent submitted that where an employee cannot perform the inherent requirements of their role and there is no reasonable scope for the employee to be redeployed into another role, it is likely that there will be a valid reason for dismissal based on the employee’s capacity.[11]  In this case, the Respondent submitted Ms Frizell's employment was terminated on the basis that she was permanently unfit for her substantive role, or any role at BHP OS for that matter, and would never be able to return  to work with BHP OS.  Therefore, any consideration of redeployment was irrelevant.

1. The Respondent submitted that in such circumstances, ‘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’[12] and ‘the reference to ‘inherent’ requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral.’[13]  The Respondent cited Re Crozier, where it was observed:

“…The word “capacity”, as used in s 170CG(3)(a), means the employee’s ability to do the work he or she is employed to do. A reason will be “related to the capacity” of the employee where the reason is associated or connected with the ability of the employee to do his or her job… Plainly, there can be a valid reason for the termination of an employee’s employment where he or she simply does not have the capacity (or ability) to do the job. In this case, the Full Bench found that Mr Crozier knew that “the main focus of his position was to generate new business”; that he failed to meet this objective; and that his failure was not due to external factors but to a lack of capacity (or ability) as a sales representative…”[14]

1. The Respondent submitted that Ms Frizell’s employment was terminated because there was a legitimate concern as to her ability to safely perform her role. Further, it was submitted BHP OS has a responsibility to ensure safety in its workplace. This includes a responsibility to ensure that allowing an employee to work does not pose a risk to the health and safety of themselves or others. The unequivocal medical opinion provided by Dr Jetnikoff made it untenable for BHP OS to continue Ms Frizell’s employment with BHP OS.

1. The Respondent submitted it was Dr Jetnikoff’s conclusion that, having regard to Ms Frizell's mental state, it was not necessary for him to consider every task she would perform in her role and determine whether she could perform those tasks in isolation. This was so because she had developed a general mistrust of her employer and anyone working in a position of authority for her employer, and Dr Jetnikoff opined that she could not return to work for BHP OS in any role. Dr Jetnikoff’s medical opinion was based on his examination of Ms Frizell and his more than 15 years of experience working as a psychiatrist in clinical practice and carrying out medico legal assessments. The Respondent submitted there was nothing to suggest that Dr Jetnikoff’s conclusions in this regard were not sound, and BHP OS was entitled (if not obliged) to rely on his expert medical opinion.

1. The Respondent submitted that BHP OS took appropriate steps to seek expert medical advice from Dr Jetnikoff as to any reasonable adjustments which could be made to Ms Frizell’s role, in response to which Dr Jetnikoff observed that there were no reasonable adjustments which could be made to Ms Frizell’s role that would accommodate her safe return to work. Further, it was submitted BHP OS rightfully preferred the Jetnikoff Report over the Agbasale Initial Report and Agbasale Supplementary Report given Dr Jetnikoff's expertise in the field, and his detailed examination and assessment of Ms Frizell.

1. Taking into account the matters set out above, the Respondent submitted the Commission should conclude that:

(a)Dr Jetnikoff’s opinion was based on an accurate assessment of Ms Frizell's psychological condition, was valid, and was able to be relied upon by BHP OS in reaching its conclusion that Ms  Frizell was permanently unable to return to her role of Technical Specialist with BHP OS (or any  role with BHP OS) and there were no reasonable adjustments which could be made to enable her to do so;

(b)BHP OS followed a fair process for obtaining the required medical information, by following the process set out in the PPI Procedure; and

(c)Because there was a valid reason for Ms Frizell’s dismissal (her permanent incapacity to perform her substantive role, or any role at BHP OS) and a fair process was followed in the lead up to her dismissal (per the PPI Procedure and show cause process) Ms Frizell's dismissal was not harsh, unjust or unreasonable.

1. The Respondent submitted the matter is reasonably straightforward in that the Applicant was absent from work for a considerable period of time, and in accordance with a pre-existing policy the Applicant was required to attend an IMA.  The assessment provided an unequivocal view that the Applicant was permanently unfit to perform her role, and there were no reasonable adjustments that could be made to allow her to do so.  The Respondent submitted that after going through a show cause process the Respondent made the decision to terminate the Applicant’s employment.  The Respondent contended its approach was entirely sound and orthodox. 

1. The Respondent relied on the Full Bench decision in Jetstar Airways Pty Ltd v Monique Neeteson – Lemkes [2013] FWCFB 9075 at para 45 where the Full Bench said as follows in relation to unfair dismissal proceedings involving dismissal on the basis of capacity.

“[45] The requirement to take this matter into account means that not only must it be considered but it must be treated as a matter of significance in the process of deciding whether the dismissal was unfair. In this matter, as earlier stated, the reason for the dismissal relied upon by Jetstar was a capacity based one, namely that Ms Neeteson-Lemkes was unable to perform the inherent requirements of her safety critical role then or in the future, and that there were no reasonable adjustments which could be made to allow her to perform that role. Section 387(a) therefore required the Commissioner to consider and make findings as to whether, at the time of the dismissal, Ms Neeteson-Lemkes suffered from the alleged incapacity based on the relevant medical and other evidence before her and, if so, whether there were any reasonable adjustments which could be made to her role to accommodate her. Those findings then need to be considered and treated as matters of significance in the process of deciding whether Ms Neeteson-Lemkes’s dismissal was, to use the general rubric, unfair.”

1. The Respondent further submitted that the Applicant’s capacity needs to be considered against their substantive role and not a modified role,[15] and further the assessment concerning fitness for work is at the time of dismissal, however is based on all of the evidence at the time of the hearing. The Respondent said it is not confined to the evidence in Dr Jetnikoff’s Report itself, and the Respondent is also entitled to also rely on the evidence of Dr Jetnikoff’s statement in the proceedings.

1. The Respondent also submitted that the Commission is required in assessing whether an employee can fulfil the inherent requirements of their role, to assess whether the employee can perform the requirements of their role safely.[16]  The Respondent submitted it is an inherent requirement that an employee has the capacity to work for their employer, and this sits above any task or duties.  The Respondent submitted that the only evidence before the Commission in this regard is the evidence of Dr Jetnikoff, and the evidence of the Applicant.  The Respondent submitted that Ms Sztaroszta conceded that the Report attached to her statement was limited to her observations as at the time of that Report.  The Respondent submitted Ms Sztaroszta accepted her observations and conclusions are as at the time of the Report.  The Respondent submitted the views of a qualified occupational psychiatrist who assessed the Applicant for the very purpose of her fitness for work, should be preferred over that of the Applicant herself.  

1. The Respondent made specific reference in closing to the following excerpts from Dr Jetnikoff’s Report.  Under the heading ‘Mental State Examination’ Dr Jetnikoff’s comments including the following:

“Ms Frizell was organised in her thoughts although overdetailed in responses. There was no evidence of cognitive impairment. She had no confidence to return to the workplace. She could not nominate any changes to the workplace that the employer could accommodate to encourage a return. She acknowledged that she may never feel comfortable to return to the workplace given her own experiences. Insight and judgment seemed reasonable.  She could not see any treatment that would assist her on returning to work given that the issues related to how she was treated by others and that she expected unfair treatment should she return to an unsupportive workplace.” 

1. Under the heading ‘Summary of Case’ Dr Jetnikoff’s comments included the following:

“Ms Frizell remains fearful of a return to work and has no confidence that any particular treatment or accommodation by her employer will assist her ever returning to the work. She has no trust in her employer providing her work environment that is safe and conducive to staying well.

Ms Frizell developed her adjustment disorder with anxiety and depressed mood in the context of an unsuccessful placement in two different work environments due to the development of her anxiety. She has an ongoing medical barrier to returning to work as a result of her adjustment disorder. Her symptoms have settled away from the workplace. It is likely that they will be aggravated substantially on any attempt to return to work. She ceased work altogether in April 2022, eight months later she is no better. Treatment has not assisted.

In my opinion Ms Frizell is unable to return to her substantive position nor she capable of ever doing this in the future. She would be considered in my opinion to be permanently incapable of returning to work in her substantive position because of her adjustment disorder.” 

1. The Respondent submitted that it was more than open for the Applicant to have led evidence from a qualified medical practitioner.  The Respondent submitted that the Applicant had a General Practitioner, a Psychologist and a Psychiatrist around the time of her dismissal and has not led any evidence from those persons.  The Respondent submitted that on that basis there is no evidentiary contest, and Dr Jetnikoff’s Report compels a conclusion that the Applicant was not capable of fulfilling the inherent requirements of her role at the time of her dismissal, nor was she in the foreseeable future, and no reasonable adjustments could have been made to allow the Applicant to do so.

1. The Respondent submitted that the suggestions from the Applicant that Dr Jetnikoff’s evidence cannot be afforded the requisite weight because it is not in the form of an expert report doesn’t hold up.  The Respondent submitted it was not clear whether the Applicant’s criticisms of Dr Jetnikoff were directed at Dr Jetnikoff’s Report, or his statement in the proceedings.  The Respondent submitted that the Applicant’s first outline of submissions criticised Dr Jetnikoff and this must have been directed to Dr Jetnikoff’s Report as his statement was not filed at that stage.  The Respondent submitted that it is not reasonable or practicable to expect that whenever an employer wanted to reply on medical evidence to assess whether an employee is fit for work that needed to be in the form of an expert report. 

1. The Respondent submitted that it is correct for the Applicant to concede that the Commission is not bound by the rules of evidence, and it is properly a matter of weight for the Commission, it may be different if there were two competing medical opinions before the Commission and one was in the form of an expert report and the other not so.  However, that is not the case here.  The Respondent said whatever might be made of the fact that Dr Jetnikoff’s Report is not in the form of an expert report, it is still far weightier than anything else in these proceedings.  The Respondent submitted that Dr Jetnikoff’s credentials set out in some detail, and the Report sets out in detail the background and the observations he relied on in forming his opinion as a professional occupational psychiatrist as to the Applicant’s fitness for work. 

1. The Applicant submitted that there was unfairness by virtue of the fact that the Applicant was not advised at the time of her assessment by Dr Jetnikoff that Mr Bayntun and Mr Walker would no longer be at the mine.  The Respondent submitted that Dr Jetnikoff was very clear that the Applicant’s incapacity was not tied to the presence or otherwise of particular individuals, but was tied to her distrust of the Respondent more generally, and this was a symptom of his diagnosis, and was relevant to her capacity.  Dr Jetnikoff identified the employment itself as the stress factor, that the Applicant needed to be removed from to recover.  The Respondent submitted that it relied on the entirety of the Report, and whatever may be said about the use of expressions such as ‘malignant resentment’, the balance of the conclusions have not been impugned. 

Procedurally Unfair

1. The Applicant submitted that the process adopted by the Respondent was procedurally unfair because:

(a)   the process was marked by unreasonable timeframes being imposed on the Applicant including in circumstances where the Respondent knew the Applicant was suffering from a mental health condition; and

(b)   it was entirely unreasonable to require the Applicant respond to the report, in circumstances where:

(i)she had no expertise, by reason of training, knowledge or experience to properly respond to the opinion of Dr Jetnikoff - it required the Applicant to respond to the expert opinions of Dr Jetnikoff in circumstances where she was not qualified to do so;

(ii)in the absence of Dr Jetnikoff’s report complying with the “assumption identification rule”, and setting out the evidence that was relied upon to support his opinion.

1. The Applicant submitted that the Respondent had pre-determined the outcome it wanted to achieve, being the termination of the Applicant’s employment. The “show cause” meetings were a mechanical process during which the contents of letters were read out to the Applicant and no regard was had for submissions made by the Applicant.

1. The Applicant submitted that the inference of a pre-determined outcome can be drawn from the following matters:

(a)the Respondent’s failure to take into account the views of the Applicant’s General Practitioner;

(b)the Respondent’s failure to obtain evidence from the Applicant’s treating specialists;

(c)the lack of a clear finding being available on the evidence that the Applicant was unable to perform the inherent requirements of the position;

(d)Dr Jetnikoff’s focus on recommending the Applicant’s “separation” from the employer;

(e)the Respondent’s failure to address the serious workplace complaints made by the Respondent;

(f)the Respondent’s failure to make any attempts to assist the Applicant to return to work; and

(g)the Respondent’s failure to consider redeploying the Applicant into another role.

1. In addition, the Applicant submitted that the Respondent failed to have regard to:

(a)the serious complaints made by the Applicant; and

(b)the Applicant’s satisfactory work performance and history.

1. The Applicant submitted she was not offered any return to work program or to redeploy to an alternative role.  In Tasmanian Ports Corporation Pty Ltd t/as Tasports v Gee,[17] a Full Bench of the Commission held:

“An employer’s review of alternate opportunities for an employee’s employment does not have to be a forensic review, but it does have to be real, otherwise there is no safeguarding of the employee’s interests.”

1. The Applicant understands that two employees who were the cause of most of her complaints have been redeployed from the Respondent’s Blackwater Mine. As set out above, if the relevant “workplace stressors” had been eliminated, the Applicant could have recovered within two months, with no need for the Applicant to be separated from the Respondent.

1. The Applicant submitted that the Respondent failed to consider the impact of the dismissal on the employee’s personal or economic situation. At the time of the dismissal, the Respondent held medical evidence regarding the Applicant’s mental health condition and a medical certificate that the Applicant was not fit for work.  The Applicant submitted that no consideration appears to have been given to the Applicant’s ability to find alternative work including in circumstances where the Applicant had relocated to a small regional town.

1. BHP OS denies that the show cause process was procedurally unfair:

(a)Ms Frizell was provided an extension from 20 December 2022 to 12 January 2023 to consider the Jetnikoff Report and attend the Show Cause Meeting; and

(b)it was not unreasonable to require Ms Frizell to provide a Show Cause Response, following receipt of the Jetnikoff Report. Ms Frizell is the subject of the Jetnikoff Report and is capable of commenting on it or providing a response about Dr Jetnikoff's assessment of her condition and is not required to have any training, knowledge or expertise in the medical field to be able to do so.

1. The Respondent submitted Ms Frizell contends that the show cause process was procedurally unfair as BHP OS had pre-determined the outcome. The Respondent submitted that as set out in the statement of Mr Walker, it is clear Mr Walker followed a clear and lawful process and he did not have a pre-determined outcome in mind at any stage prior to the termination of Ms Frizell’s employment.

1. The Applicant submitted that there is no way that the Applicant could have obtained a second medical opinion in the time between receiving the show cause of letter on 12 January 2023, and the decision to terminate her employment on 18 January 2023.  The Applicant submitted that as Dr Jetnikoff’s Report does not raise the issue of the Applicant having a ‘malignant resentment’ toward the Respondent, the Applicant was not put on notice about that issue, and it was only raised in Dr Jetnikoff’s statement in the proceedings.  The Applicant submitted that this is suggestive that the decision is predetermined.  The Applicant said it was not explicit in the 15 December correspondence from Mr Walker that if the Applicant did not attend the meeting the Respondent would be terminating her employment based on Dr Jetnikoff’s Report. 

1. The Applicant submitted that if the Commission is satisfied that there was a valid reason for dismissal, then the Commission should still find the dismissal was harsh and unreasonable on the basis that Applicant was only given four days to respond to the show cause letter, and further that the Applicant was never put on notice about the ‘malignant resentment’ opinion. 

1. The Respondent submitted that the email correspondence from Mr Walker to the Applicant and her husband of 15 December 2022, attaching Dr Jetnikoff’s Report expressly tells the Applicant that the Report has made a determination about her fitness for work, and she is also asked to attend a show cause meeting where she will be provided an opportunity to respond to the Reports findings.  The Respondent submitted the obvious connotation given the conclusions in the Report that the Applicant is permanently unfit to work for the Respondent in any capacity, is that the Applicant was on notice from 15 December 2022 that her employment was at risk, and that the Applicant would be required to respond to the Respondent’s concerns that she could not fulfil the inherent requirements of her role.  The show cause process is then adjourned until 12 January 2023, and despite this the Applicant did not seek to precure a second medical opinion.  On 12 January 2023 the Applicant was given the show cause letter, and her response to it does not request an opportunity to seek a second medical opinion. 

1. The Applicant submitted that the email of 15 December 2022 does not provide the level of clarity that the letter of 12 January 2023 show cause letter. 

1. The Respondent submitted given Dr Jetnikoff’s conclusions it is immaterial whether Mr Bayntun and Mr Walker would be present or not, however Mr Brooke would be present and the Applicant made no submissions on that issue despite the Applicant in her reply statement claiming that Mr Brook was part of the issue with returning to work. 

Income Protection Insurance

1. The Applicant gave evidence that she had received income protection insurance in the time she had been without pay during her employment, and after her employment.  The Applicant said she believed it was 70% of her monthly income.  In addition the Applicant accepted she received an additional $37,000 as income from the Respondent in the time she was on unpaid leave. 

Relocation to North Queensland. 

1. The Applicant agreed that she relocated to Bilyana in October of 2022.  The Applicant said she had applied for a number of full time positions after she lost her position at the Respondent, although she clarified that had made no substantial job applications prior to May 2023. 

CONSIDERATION

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

1. A valid reason was described in Selvachandran v Petron Plastics Pty Ltd[18] as one which is “…sound defensible or well founded.  A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1).  At the same time the reason must be valid in the context of the employee’s capacity or conduct or based on the operational requirements of the employer’s business.”  The onus rests with the Respondent in cases such as this to establish that it had a valid reason for dismissal. 

1. It is common ground that the Applicant commenced a period of medical leave from early March 2022 and did not return to work at any time prior to her termination of employment on 18 January 2023.  The Applicant agreed that the medical certificates that had been provided to the Respondent provided no details to the Respondent other than that she had a medical condition.  The Applicant also accepted that none of the medical certificates provided the Respondent with any indication as to when the Applicant was likely to be in a state to return to work.  The Applicant exhausted all of her leave entitlements by late June 2022.  The Applicant confirmed in her evidence that she asked her husband to be the point of contact with the Respondent while she was on leave as she was not capable of this during that time. 

1. The Respondent firstly attempted to get clarification from the Applicant as to her medical situation through advice from her own treating medical practitioner, and it was only after two unsuccessful attempts to do so, that the Respondent directed the Applicant to attend an IMA.  I have considered the Applicant’s criticisms of the Respondent’s level of compliance with steps in its own PPI Procedure, however despite some failings, it appears overall, the Respondent’s approach was broadly consistent with the intended procedure. I do not intend to draw a Jones v Dunkel inference because Ms Constable did not give evidence. It is possibly the case that Ms Constable did not engage directly with persons other than Mr Walker concerning the way the PPI Procedure was conducted, but to the extent that was a failure to comply with the PPI Procedure, I have concluded that not much turns on it. 

1. The subsequent medical Report provided by Dr Jetnikoff following the IMA, was clear and unambiguous.  Dr Jetnikoff left no room for doubt that in his opinion the Applicant was not and would never be fit to return to her former role, and that no reasonable adjustments could be made for her to return to work for the Respondent.  The Respondent’s decision to terminate the Applicant rests heavily on the conclusion in the medical opinion of Dr Jetnikoff.  I have considered the Applicant’s criticisms of Dr Jetnikoff’s Report, and his evidence in these proceedings, particularly that his conclusions concerning the Applicant’s capacity to return to work for the Respondent are more personal opinion than medical opinion.

1. Dr Jetnikoff is a highly qualified Psychiatrist and holds vast experience on the matters he was asked by the Respondent to express his medical opinion on concerning the Applicant’s capacity.   There is no basis for the Commission to reject Dr Jetnikoff’s clinical assessment that the Applicant is suffering from a chronic adjustment disorder. The Applicant has not suggested otherwise. All of the medical reports tendered in the course of the hearing support a conclusion that the Applicant has been very unwell. The Applicant’s attack on Dr Jetnikoff’s conclusion has concerned her capacity to recover.  The Applicant has focussed on Dr Jetnikoff’s use of the expression ‘malignant resentment’ referring to the Applicant’s attitude toward the Respondent.  Dr Jetnikoff described ‘malignant resentment’ and ‘mistrust’ as symptoms of the clinical diagnosis of chronic adjustment disorder.  To support its contention that Dr Jetnikoff’s opinion (that the Applicant could never return to work for the Respondent) was erroneous, the Applicant points to Dr Jetnikoff’s conclusion that the Applicant could recover within two months if she works for someone else. 

1. It is not contested that the Applicant was not fit for work at the time of termination.  Having considered all of the evidence, I am inclined to accept the opinion of Dr Jetnikoff concerning the nature of the Applicant’s chronic adjustment disorder and mental condition.  Dr Jetnikoff explained both in his Report, and in his statement and oral evidence why he had formed the opinion that it was the association with the Respondent itself, and not specific individuals within the Respondent that would prevent the Applicant’s recovery.  I am satisfied that Dr Jetnikoff's opinion is likely to be an accurate assessment of Ms Frizell’s condition.  

1. The Applicant has argued Dr Jetnikoff’s Report should be given little or no weight based on the assumption identification rule and the basis rule concerning expert witness evidence.  Dr Jetnikoff’s credentials as an occupational psychiatrist are considerable.  The Commission is entitled to take into account medical evidence from a Specialist Medical Practitioner, even if it is not in the form of an expert report.  Dr Jetnikoff provided the Report to the Respondent in December 2022, and has also provided a witness statement in these proceedings and oral evidence under cross examination.  Ultimately it is a matter for the Commission to determine the weight that should be afforded to Dr Jetnikoff’s evidence, and I am satisfied it is appropriate that his evidence be afforded considerable weight.  It is also the only medical opinion before the Commission that pertained to the capacity of the Applicant, just prior to the time of the dismissal.  

1. I have also considered the Applicant’s submissions criticising the Respondent for not taking steps to make further enquiries of the psychiatrist and psychologist who had treated the Applicant.  The evidence is however that the Applicant was offered the opportunity to advise the Respondent which treating medical practitioner that she would consent to the Respondent engaging with. The Applicant nominated her general practitioner.   It would have been open at any time from the commencement of the PPI procedure for the Applicant to propose to the Respondent, that the Respondent should confer with these other medical practitioners.  This includes up to the point of receiving the email of 15 December 2022 from Mr Walker, or the show cause on 12 January 2023.  For reasons only known to the Applicant, this step was never taken. 

1. The Applicant has also criticised Dr Jetnikoff’s Report for failing to address the Applicant’s capacity to perform the specific tasks required by her role.  Given Dr Jetnikoff's conclusion concerning Ms Frizell’s mental state, I agree with the Respondent’s submission that it was not necessary for him to consider every task in isolation. Dr Jetnikoff opined that the Applicant had developed a general mistrust of her employer and anyone working in a position of authority for her employer, based on his examination of Ms Frizell.  In those circumstances issues concerning assessment of the Applicant's capacity to perform specific tasks is moot. 

1. The Applicant has also contended that the medical report was infected with a bias against the Applicant on the basis of her political opinion in relation to her rights concerning COVID 19 vaccination.  I do not accept that submission.  Dr Jetnikoff explained during his evidence the reason why he included references to these matters in his Report, and I am satisfied he adequately explained his reason for doing so, and I am not persuaded that the Applicant’s expression of a political opinion caused Dr Jetnikoff to form a bias against her because of that opinion. 

1. The Applicant has sought to rely on the fact that Mr Bayntun and Mr Walker would no longer be based at the workplace as a basis to argue that, as their conduct toward her were contributing factors to her medical condition, she could recover if she returned to a workplace where they were not present.  The Applicant did not specifically address the circumstances of Mr Brook being at the workplace despite the allegation made by the Applicant about him.  Mr Bayntun, Mr Brook and Mr Walker all contested the allegations the Applicant had made against them concerning their conduct toward her.   The Applicant did not require either of Mr Bayntun or Mr Brook for cross examination about their rejection of her allegations in their respective witness statements and on that basis their evidence was admitted unchallenged.  I am satisfied that a diary note that was raised by Mr Bayntun concerning an incident between the Applicant and another employee Ms Summers was a contemporaneous record of the discussion Mr Bayntun had with the Applicant about the incident with Ms Summers and was not fabricated as the Applicant has asserted.  The Applicant never made a complaint about Mr Brook. Mr Walker’s evidence was no complaints were ever made to him about Mr Bayntun’s conduct and I am inclined to accept that evidence.  I am unable to be satisfied that the allegations concerning the conduct of Mr Bayntun and Mr Brook were made out.  Further the text messages exchanged between the Applicant and Mr Bayntun up until October 2022 appear friendly and tend to undermine the Applicant’s claims about Mr Bayntun’s alleged conduct toward her. 

1. I have also considered the competing versions in Mr Walker and Ms Frizell’s evidence concerning their discussions in late 2021 about Ms Frizell having used one of the Respondent’s printers to print out information on a work computer concerning COVID-19 vaccinations.   Mr Walker gave evidence that Ms Frizell also distributed this material on site.  Having considered the evidence on this issue and observed the witnesses, I am inclined to prefer Mr Walker’s version of the exchange as it would seem more likely to be an accurate description of the exchange given all of the surrounding circumstances, and that Ms Frizell did not contest that she used a work computer and work printer to print the material, and did not contest that she distributed the material on site in circumstances where the information was contrary to the Respondent’s policy position.

1. In summary concerning section 387(a), I am satisfied the Respondent was entitled to rely on Dr Jetnikoff’s Report in reaching its conclusion that Ms Frizell was permanently unable to return to her role, and there are no reasonable adjustments which could be made to enable her to do so, and therefore it had a valid reason to dismiss Ms Frizell.

(b) Whether the person was notified of the reason

1. The show cause letter sets out that the Applicant had been deemed unfit to perform her role.  I am satisfied that the Applicant was on notice of the reasons the Respondent was considering dismissing her, and was notified of the reasons for her dismissal being on the grounds of incapacity at a meeting on 18 January 2023 and also in correspondence that day. 

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

1. The Applicant has submitted she was denied an opportunity to obtain a second medical opinion.  Mr Walker’s email to the Applicant and her husband of 15 December 2022, attaching Dr Jetnikoff’s Report expressly tells the Applicant that the Report has made a determination about her fitness for work, and she is also asked to attend a show cause meeting where she will be provided an opportunity to respond to the Reports findings.  On reading the Report, it is clear Dr Jetnikoff had concluded that the Applicant was permanently unfit to work for the Respondent in any capacity.  It should have been clear to the Applicant that her ongoing employment was in jeopardy, and she was required to respond by 20 December, which was then delayed until 12 January 2023.  It was open from 15 December for the Applicant to have asked the Respondent to confer with another of her treating medical practitioners or to ask for more time to seek another opinion.   The Applicant’s response to either the 15 December 2022 email of Mr Walker, or the show cause letter of 12 January 2023 did neither of these things.

1. The Applicant also submitted that Dr Jetnikoff’s Report does not raise the issue of the Applicant having a ‘malignant resentment’ toward the Respondent.   Whilst it is true that the expression, ‘malignant resentment’ does not appear in the Jetnikoff Report, Dr Jetnikoff was clear in his evidence that he did not claim the expression was a medical diagnosis but was instead a symptom of one.  The actual diagnosis in the Report made clear Dr Jetnikoff’s believed that the Applicant would be unable to return to work in any role, and the reasons why he believed that to be the case.  On that basis I do not accept that the Applicant was not on notice of his clinical assessment of her medical condition, and the reasons for it. 

1. The Applicant has also complained that both herself, and Dr Jetnikoff were not made aware that Mr Bayntun and Mr Walker would no longer be at the workplace from February 2023.  The Respondent submitted given Dr Jetnikoff’s conclusions it is immaterial whether Mr Bayntun and Mr Walker would be present or not, however Mr Brook would  still be present and the Applicant made no submissions on that issue despite the Applicant in her reply statement claiming that Mr Brook was part of the issue with returning to work.   As I have accepted the conclusions in Dr Jetnikoff’s Report, I also accept that the issue of whether the Applicant and Dr Jetnikoff not being aware of this information, is immaterial. 

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

1. The Respondent did not refuse to allow the Applicant to have a support person.  This is a neutral consideration. 

(e) Was the Applicant warned about unsatisfactory performance before dismissal

1. The termination was not related to the Applicant’s performance.  This is a neutral consideration. 

(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

1. The Respondent is a large employer.  This is a neutral consideration. 

(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

1. The Respondent has dedicated human resources staff.  This is a neutral consideration. 

(h) Any other matters that the FWC considers relevant

1. The Applicant submitted that the Respondent’s failure to follow its own process, and the Applicant not having been given an opportunity to respond in relation to the ‘malignant resentment’ opinion are relevant matters, and further that Mr Bayntun and Mr Walker would no longer be at the worksite.  The Applicant submitted that it is plausible that she could have been fit to return to work and this could have been explored.  I have already addressed these issues above and for reasons set out above do not accept that they are a basis to concluded that the dismissal was unfair. 

1. The Applicant has claimed that the Respondent failed to support her whilst she remained employed throughout the period of her illness.  The evidence is that the Applicant made clear she did not wish to engage with the Respondent directly throughout the process.  There was also some evidence that a number of staff from the Respondent had reached out to the Applicant through her husband. The Applicant was permitted to exhaust all of her accrued sick leave and annual leave, and then take a further period of a month and half of unpaid leave before being asked for the first time by the Respondent to attend an appointment with her own treating practitioner to provide more information to the Respondent concerning her medical condition than the medical certificates provided up to that point that did not give any specific information, or indicate a potential return to work.   When the first report provided by the Applicant’s own treating medical practitioner did not assist in clarifying the Applicant’s situation, the Respondent then asked for a second report from the Applicant’s own treating medical practitioner before taking the next step.  In all of the circumstances the Respondent’s approach was reasonable. 

1. In the course of submissions it has been clarified that the Applicant has been receiving, and continues to receive income protection insurance at a rate of 75% of her income since her termination and this does to some extent ameliorate the financial impact of her loss of employment. 

CONCLUSION

1. I have weighed each of the considerations under section 387 of the Act. Having concluded that the Respondent had a valid reason for the termination of the Applicant’s employment, and despite there being some minor issues concerning compliance with the PPI Procedure, overall, the procedure followed by the Respondent was fair, I have determined that the termination of Ms Frizell’s employment was not harsh, unjust or unreasonable. On that basis the application for unfair dismissal remedy is dismissed. An order to this effect will be issued separately and concurrently with this decision.

COMMISSIONER

Appearances:

Mr Troy Spence of Counsel instructed by Ms Angela Fortt of Mackey Wales Law for the Applicant.

Mr James McLean of Counsel instructed by Ms Leyla Dixon of MinterEllison for the Respondent.

Hearing details:

2023
By Microsoft Teams Video
31 May and 1 June

Final written submissions:

19 June 2023

[1] SB-2

[2] LexisNexis Australia, Cross on Evidence (online at 1 May 2023), Chapter 15 Opinion, Section 2 Expert

Opinion Evidence [29045].

[3] Walton v Mermaid Dry Cleaners Pty Limited [1996] IRCA 267.

[4] [2020] FWCFB 6046.

[5] Ibid at [28].

[6] Frizell Statement, exhibit LF21.

[7] Ibid, exhibit LF19.

[8] Ibid, exhibit LF19.

[9] [2011] FWA 8576.

[10] [2012] FWAFB 1616.

[11] Pettifer v MODEC Management Services Pty Ltd [2016] FWCFB 5243, 261 IR 439 at [37] cited in DA v Baptist Care SA [2020] FWCFB 6046.

[12] J Boag & Son Brewing Pty Ltd v Button [2010] FWAFB 4022 at [22].

[13] X v Commonwealth [1999] HCA 63 at [102].

[14] Re Crozier [2001] FCA 1031 at [150] and [152]-[153].

[15] J Boag and Son Brewing Pty Ltd v Button[2010] FWAFB 4022 para 22.

[16] Hail Creek v CFMEU[2004] AIRC 670 para  125.

[17] [2017] FWCFB 1714.

[18] (1995) 62 IR 371 at 373.

Printed by authority of the Commonwealth Government Printer

<PR765050>