Ms Monir Mottaghi v Adelaide Community Healthcare Alliance Incorporated T/A the Memorial Hospital

[2013] FWC 5389

[2013] FWC 5389

FAIR WORK COMMISSION

DECISION

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

Ms Monir Mottaghi
v
Adelaide Community Healthcare Alliance Incorporated T/A The Memorial Hospital
(U2012/439)

COMMISSIONER STEEL ADELAIDE, 6 AUGUST 2013

Termination of employment - Remedy.

Introduction

[1] In decision issued on 27 March 2013 the Commission found the applicant Ms Mottaghi had been unfairly dismissed by the respondent. 1 The Commission delayed consideration of the appropriate remedy pending further submissions from the parties.

[2] The decision stated:

“[215] Taking into consideration the evidence of the circumstances of the applicant as well as the evidence and actions of the respondent, the Commission has concluded that the applicant’s role prior to dismissal, determined by the respondent, was not “temporary or modified” work but were substantive duties forming part of her contracted role.

[216] The Commission finds therefore the respondent does not have a valid reason for dismissal within the requirements of the Act and hence does not conform to the requirements of s.387(a) of the Act.

...

[227] For all the foregoing reasons the Commission finds a distinct lack of procedural fairness and responsible conduct by the respondent in the dismissal of the applicant. In that respect the Commission finds that the conduct of the respondent was deficient and does not meet the requirements of section s.387(b), (c), (d) and (e) of the Act. S.387(f) has no effect on the consideration of this matter. The Commission finds that the applicant was unfairly dismissed.

[228] Having found that the applicant was unfairly dismissed, the question of remedy is to be considered. The applicant is seeking reinstatement, the primary remedy under the Act. The consideration of the Commission in this respect are within s.390 of the Act and the emphasis of consideration is on the determination as to the appropriateness or otherwise of such reinstatement.

[229] Since the evidence in this matter is that the applicant may have a subsequent workers compensation claim or medical restrictions of some sort evolving from the events of the dismissal, the Commission has decided to hear further from the parties on the matter of remedy before making final orders in this matter. 2

[3] This decision is in respect to the appropriate remedy.

The Law

[4] S.390 of the Fair Work Act 2009 (the Act) states:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[5] The Commission has made findings in respect to ss.390(1) and (2) and is now determining the consideration in regard to s.390(3) as to whether reinstatement or compensation is appropriate in the circumstances of the case.

Applicant’s Submissions

[6] Mr Dean for the applicant submitted the following.

[7] In the above decision the Commission found the applicant was engaged in the “doctor’s duties” prior to her dismissal. Those duties comprised her substantive duties. The applicant was capable of performing those duties up to the time of her dismissal.

[8] The applicant as a consequence of her dismissal by the respondent made a further worker’s compensation claim. However she did not allege in that claim that she had suffered any injury, or further injury or any new restrictions which would pose a barrier to her reinstatement.

[9] Further, there is no evidence that the applicant’s capacities have decreased. In contrast there is medical evidence from Ms Secombe and Dr Jennings (provided previously) that indicates she can perform her role and she should improve over time.

[10] Further, all parties are now aware that a range of aids was designated to assist the applicant by Ms Secombe, but not implemented. Hence it is open for such aids to be supplied to assist the applicant further on reinstatement.

[11] Reinstatement is the primary remedy under the Act and compensation is not available unless the Commission considers reinstatement impracticable. If not found to be impracticable reinstatement is the remedy.

[12] In regard to the respondent’s assertions that a restructuring has occurred in the kitchen, the applicant considers this a distraction in that the applicant has been found to have performed her role before dismissal.

[13] Mr Dean relies upon the decision of a full bench of the Australian Industrial Relations Commission in the matter Smith v Moore Paragon Ltd 3 which addressed the consideration of reinstatement being appropriate where the employee has an ongoing illness or injury.

[14] The full bench stated:

“The weight to be accorded to ongoing incapacity on the part of an employee when considering whether reinstatement pursuant to s.170CH(3) is appropriate will depend upon all the circumstances of the case. However, when considering whether reinstatement is appropriate for an employee who has an ongoing incapacity arising from illness or injury, the guiding principle ought be that generally reinstatement of a materially incapacitated employee will not be appropriate where:

● further performance of the employee’s contractual obligations in the future would either be impossible or would be a thing radically different from that undertaken by him or her and accepted by the employer under the agreed terms of his or her contract of employment;

● reinstatement would involve imposing a material future productivity burden or some other unreasonable burden on the employer; or

● reinstatement would impose an unreasonable burden on other employees.”

(footnotes removed)

[15] In regard to the above tests the applicant asserts that she has been found by the Commission to have been performing in her substantive position, there being no evidence of her being engaged in light duties or tasks at the time of her dismissal and hence her role was her standard one. Given the applicant’s condition has not deteriorated further, there can be no conclusion that the applicant is unable to perform her obligations or that her performance would be radically different from the agreed performance in circumstances where the Commission has already found she could perform her substantive duties.

[16] In regard to whether reinstatement would impose a material productivity burden on the respondent in that the applicant cannot be fully or substantially fully productive within the employee’s substantive position. Given that the Commission has made a clear finding that the applicant could perform her substantive role and that there was no clear evidence in the matter as to impact upon the respondent’s operations from the applicant’s role, there can be no conclusion that the applicant would impose a material productivity burden on the respondent.

[17] The respondent did not provide any evidence as to a productivity burden if the applicant was reinstated. The applicant submits the Commission in these circumstances is entitled to draw the inference there is no evidence of such an issue and that the respondent has failed the evidentiary burden.

[18] In regard to subjective views of the respondent that the applicant asserts the respondent is maintaining an inappropriate position in that they continue to assert the applicant is not fit to do the work in face of the legitimate findings of the Commission that the respondent terminated her employment unfairly and that she was in fact performing her substantive duties.

[19] In regard to exceptional circumstances the applicant asserts they apply in this case as the respondent has clear responsibilities under ss.58B and 58C of the Workers Rehabilitation and Compensation Act 1986, she has significant service with the respondent, is of mature age and possesses limited English skills. Reinstatement is the appropriate remedy in this matter and the Commission should provide for continuity of employment and lost wages.

[20] Further, the applicant has not engaged in impropriety and is blameless in the scenario hence she should not be penalised given there has been findings of serious procedural and substantive deficiencies in regard to her termination. Her reinstatement should proceed.

[21] Further, the absence of eighteen months from the workplace in face of the findings is partly due to the course by the respondent to challenge jurisdiction as well as a substantive hearing on the dismissal. Thus the delay should not be applied against the applicant in the form of hesitation to not reinstating her role. The employer should be required to reinstate employment when the problem is of their own making.

[22] In regard to the concept of lost pay pursuant to s.391(4) of the Act, the amount of money lost by the applicant. The applicant asserts she has mitigated her loss by successfully pursuing payment under the Workers Rehabilitation and Compensation Act 1986. However those payments have decreased overtime as per the provisions of that Act. The applicant should be compensated for such decrease.

Respondent’s Submissions

[23] Mr Addison for the respondent submitted that reinstatement is inappropriate and the appropriate remedy in the circumstances of the case is compensation.

[24] In practical terms he submitted that the applicant has been absent from the workplace for eighteen months and the organisation of the kitchen has changed. All the duties the applicant had previously performed are now part of the duties of a qualified chef or trainee chef. The kitchen duties have been restructured and the former position occupied by the applicant no longer exists. Mr Addison relies (among other authorities) on the decision of Simpson C in Ho v AP Eagers Ltd 4 where it was found to be inappropriate to reinstate where a position no longer exists.

[25] Mr Addison further relied upon the medical information available to the respondent and that the respondent adopted the view that they needed “to be satisfied of the capacity of any employee that the respondent put on the job and that the respondent needs to be satisfied that the safety issues are covered off.” 5 The responsibility of the respondent commensurate with Occupational Health Safety and Welfare laws cannot be compromised.

[26] Further he submitted “it would be incredibly difficult not only for the respondent but also for the applicant in the event that an order for reinstatement was issued and a proper medical investigation found that the employee was incapable of taking up the reinstated duties.” 6

[27] Reinstatement of the applicant would require the re-establishment of a role which was at best a modified role the applicant was performing prior to the termination.

[28] The respondent submitted that the medical evidence is not certain as to the applicant’s condition. The respondent’s medical advice from Dr Tschirn from December 2011 clearly indicates the applicant is not fit to carry out even the modified duties. In those circumstances the respondent is bound to ensure that the applicant, even with a reinstatement order, is capable of carrying out the work that will be assigned to her in a safe manner for herself and for other employees.

[29] The respondent also relied upon the authority for reinstatement of an employee with an incapacity being Smith and contended that the future productivity burden on the respondent was material and evident in the circumstances of this matter.

[30] The respondent does not resist an order for compensation and accepts the applicant has mitigated her loss and that there was no misconduct on her part.

Consideration

[31] The Commission relies on its findings in the merit decision. The applicant’s dismissal was unfair and illustrated a lack of valid reason and substantive lack of procedural fairness and responsible conduct by the respondent.

[32] The Commission is not persuaded in the circumstances of this case that a significant restructuring of the workforce has occurred such as to prevent the applicant having duties available to her. A potential burden may accrue to the employer in these circumstances as it does to all employers where they have to reorganise their workforce. However the employer has a large workforce and there has only been a superficial reference that the work the applicant was involved in, her substantive duties, have been reallocated or disappeared.

[33] The Commission reiterates that the findings in the merit decision are that the duties the applicant was involved in prior to her dismissal and for a substantial period of time previous to that date were her substantive duties. The Commission rejects the repeated submissions in this matter that those duties were, at best, modified duties.

[34] The Commission determined a view on the available medical evidence previously and indicated the limitations on the briefing given to Dr Tschirn 7 and the tension between Dr Tschirn’s report and that of Ms Secombe.8. The Commission stated that the respondent had conflicting advice on the applicant’s condition and that:

“They decided such a statement (by Dr Tschirn) was sufficient to dismiss the applicant, even though the doctor had not provided a specific opinion on such an occurrence.” 9

[35] The respondent’s submissions on the practical problems that would occur in relation to the applicant’s medical status should she be reinstated are not accepted. The Commission does not accept those submissions as posing a practical issue to restrict consideration of reinstatement. In any event, the Commission cannot restrict such rights of an employer post a reinstatement remedy order. It is noted that the submissions refer to further rigorous medical examinations to determine physical capacity. In the prevailing circumstances such actions will obviously provide full consideration to the applicant and transparency of approach and hence the applicant’s rights are fully available to her.

[36] In regard to the authority as to reinstatement of incapacitated employees referenced by both parties (Smith) and the tests referred to within that decision, the Commission refers to the view of the full bench as previously stated within this decision. 10

[37] The Commission does not accept the respondent’s submissions. The applicant was capable of adequate performance in her role prior to dismissal, was observed by management, was tested by an OT, was prescribed aids which were not provided and still continued in the role required without disturbance by management. There is no evidence of a productivity burden given the past scenario and this does not translate on reinstatement to a significant productivity burden or unreasonable burden on the employer. Significantly the respondent did not evidence such a case at the merit hearing, nor subsequently in these proceedings.

[38] The Commission, on the evidence and the balance of probabilities, does not identify an imposition of an unreasonable burden on the employer caused by reinstating the applicant.

Remedy

[39] The Commission orders as follows:

1. That the applicant is to be reinstated by the respondent within 14 days of this order to the position she was employed in immediately prior to her dismissal.

2. That the applicant shall be provided with full continuity of employment and her employment accumulations adjusted after her employment is reinstated. The parties are free to negotiate or otherwise mutually arrange alternatives in regard to financial payments made in relation to previously paid out employee entitlements.

3. That the respondent shall pay to the applicant the amount in respect to her ordinary pay lost as a consequence of the dismissal up until the date of her reinstatement. Such amount shall be reduced by the amount of funds the applicant has received as a consequence of her subsequent workers compensation claim and from other employment sources or Government welfare sources during the period in question.

COMMISSIONER

Appearances:

Mr P Dean for the applicant

Mr M Addison for the respondent

Hearing details:

2013:

Adelaide

21 June

 1   [2013] FWC 1906

 2   Ibid, [215]-[216], [227]-[229]

 3 (2004) 130 IR 446 at 465

 4 (2010) 203 IR 376

 5   PN 3288

 6   PN 3290

 7   [2013] FWC 1906 at [206]-[207]

 8   Ibid at [208]-[210]

 9   Ibid at [210]

 10 (2004) 130 IR 446 at 465

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