Nelitha Vather v Serco Australia Pty Ltd T/A Serco
[2016] FWC 5983
•25 AUGUST 2016
| [2016] FWC 5983 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nelitha Vather
v
Serco Australia Pty Ltd T/A Serco
(U2016/7283)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 25 AUGUST 2016 |
Application for relief from unfair dismissal – incapacity to perform inherent requirements of the job.
[1] On 30 May 2016 Ms Vather lodged an unfair dismissal application, pursuant to s.394 of the Fair Work Act 2009 (the FW Act), in relation to the termination of her employment with Serco Australia Pty Ltd (Serco).
[2] Ms Vather’s application was the subject of a hearing in Perth on 22 August 2016. At this hearing Ms Vather represented herself and Serco was represented by Mr Graham.
[3] There is little significant dispute about the background to this matter. Serco operate a number of immigration detention centres throughout Australia. Ms Vather worked as a Detainee Service Office (a DSO) from November 2011. She was initially posted to work at the Curtin Immigration Centre in north-west Western Australia. She later transferred to the Yongah Hills Detention Centre, in Northam, Western Australia. Whilst Ms Vather raised a number of grievances whilst working at Yongah Hills, no disciplinary action relative to performance or conduct issues, were identified.
[4] Ms Vather had a number of absences from work from 7 May 2015 as a consequence of back problems. She appears to have lodged two workers compensation claims. The first of these was refused and the second, substantially later claim, was the subject of an agreed settlement. Ms Vather returned to work from 13 May 2015 and worked to 28 June 2015. She did not work for Serco after that date. She provided Serco with medical certificates confirming her incapacity to undertake any work. For the duration of her absence, Ms Vather returned to her home in Wollongong, New South Wales.
[5] In November 2015 Serco advised Ms Vather that it required her to undertake a fitness for work assessment. Ms Weston, the Serco People and Culture Manager at Yongah Hills, conferred with Ms Vather about a date and location convenient to her. This was deferred for reasons relating to Mr Vather’s health and her leave arrangements. It was ultimately arranged that this assessment would be undertaken after she had taken pre-arranged leave over the Christmas-New Year period. Ultimately the fitness for work assessment was undertaken on 31 March 2016 at a time and place agreed with Ms Vather. The assessment was undertaken by a Dr McGroder, a Consultant Occupational Health Physician. Prior to this assessment, Serco provided Dr McGroder with position descriptions, task analyses and summaries of job demands for Client Service Officer and Security Officer positions within its facilities, together with a medical certificate made out by Dr Carney on 1 March 2016. Dr Carney was Ms Vather’s treating doctor. This Certificate confirmed that Ms Vather was unfit for work until 8 April 2016. Serco also confirmed its instructions to Dr McGroder regarding this fitness for work assessment. Serco also requested that Ms Vather take to this appointment, any previous medical reports and scans which supported her current medical condition. 1
[6] Dr McGroder’s assessment was provided to Serco on, or around, 6 April 2016. In that report Dr McGroder 2 indicated that Ms Vather:
● would not be returning to work, at least in the near future and demonstrated significant pain behaviour,
● could not undertake the tasks identified by Serco,
● had an incapacity and work restrictions of an unknown duration,
● would not be able to remain in a fixed position for more than 15 or 20 minutes and hence could not travel to a remote location,
● could not be otherwise assisted by Serco at the present time.
[7] Ms Weston forwarded a copy of this report to Ms Vather on 13 April 2016. In this correspondence she advised that Serco considered that there was sufficient specialist medical opinion regarding an indefinite incapacity for Ms Vather to undertake the inherent requirements of the DSO role or a modification thereof with no immediate prospect or timeframe for a return to work. Ms Vather was required to show cause, within 10 days, as to why Serco should not terminate her employment.
[8] Within this 10 day period, Ms Vather responded with a series of advices variously sent to Ms Weston, and to Mr Horseman, the Manager of the Yongah Hills Centre. This information included:
● Confirmation that she sought to retain her employment with Serco.
● A report from the physiotherapist responsible for a hydrotherapy programme in which Ms Vather had participated and which was due to conclude on 22 April 2016.
● A report from a Dr Lawrence of the Wollongong Medical Centre asserting that there was no basis for Dr McGroder’s conclusions that she could not return to work or undertake travel and anticipating that she would be fit to return to her duties by the end of May 2016.
● A detailed critique of the assessment process followed by Dr McGroder which went to the extent to which his examination embarrassed her and criticised his reliance on information which was out of date. In this advice, Ms Vather confirmed that her treating doctor, Dr Carney was away but would be returning on 23 April 2016. She advised that she would be seeing Dr Carney on her return to arrange for a return to work in May 2016. Ms Vather also advised that she was prepared to undertake another physical test at her expense to prove that she was capable of returning to work.
● An annotated version of Dr McGroder’s report 3 in which she detailed her specific differences about his conclusions.
[9] Whilst Mr Horseman confirmed receipt of at least some of this information, and advised that it would be considered in due course, there is no dispute that the material provided by Ms Vather was received by Serco.
[10] On 21 April 2016 Ms Vather confirmed to Serco that she was seeing Dr Carney on 23 April 2016 for an assessment for her return to work. On 23 April 2016 she forwarded a further email in the following terms:
“Dear Shaun and Jody,
Please find attached the Doctor’s Certificate stating that I will return to work on the 14/05/2016 to full duties once my physiotherapy treatment is completed.
Please take this into consideration.
With kind regards
Nelitha” 4
[11] Ms Vather also provided Dr Carney’s certificate which was in the following terms:
“Medical Certificate
THIS IS TO CERTIFY THAT
Ms Nelitha Vather has a medical condition – lumbar pain secondary to disc protrusion at L5/S1 which commenced after a fall at work on 29th April 2015.
She will return to full duties on 14th May 2016 after her physiotherapy course is complete.
This certificate was completed on 23rd April 2016.” 5
[12] On 4 May 2016 Ms Vather forwarded an email to Ms Weston and Mr Horseman in the following terms:
----Original Message-----
From: Vather, Nelitha (Serco Immigration Services)
Sent: Wednesday, 4 May 2016 1:28 PM
To: Horseman, Shaun (Serco Immigiation Services); Weston, Jody (Serco Immigration Services) Cc: Southerton, Ian (Serco Immigration Services)
Subject: RE: Return to work
Importance:High
Dear Shaun and Jody,
As you are aware that I have been cleared to return to work. Please can you inform Rosters to add my name to the Roster starting from the 16th May 2016. I work on the Yellow line and the Yellow Line have RDOs on the 14th and 15th May 2016. Please do not change my line as I rent a room with a Colleague in Goomalling and I travel to work with him.
Furthermore, I will be needing to do my Refresher training and the renewal of my First Aid certificate. Please can you organize this for me on my return. I am also due for new uniforms. Please can you e-mail the forms to me so that I can place my order.
Thanking you in advance. With. kind regards
Nelitha 6
[13] Ms Weston responded by advising that Serco would determine a position by 9 May 2016. On 10 May 2016 Ms Weston forwarded a letter, dated 9 May, and signed by Mr Horseman, to Ms Vather, advising her of the termination of her employment with 4 weeks’ notice. 7 This letter advised that Mr Horseman considered that the Certificate provided by Dr Carney specified a return to work date which was dependent on Ms Vather’s completion of a Physiotherapy course. The letter referred to Dr McGroder’s report and concluded:
“Taking into consideration all reports and medical evidence available, it is determined that you cannot now or for an indefinite period fulfil the inherent requirements of a Detainee Service Officer role located at the Western Australian Northam YHIDC site.” 8
The Submissions regarding unfairness
[14] Ms Vather asserts that the termination of her employment was harsh, unjust and unreasonable. She seeks reinstatement, the payment of income forgone and payment of witness fees and travel expenses.
[15] Ms Vather asserts that the evidence is such that I should draw an inference that the termination of her employment was unfairly related to the complaints she made and issues she had whilst working at Yongah Hills. She also asserts that Serco unfairly and unreasonably relied on Dr McGroder’s report despite the criticisms which she made of that report and that Serco unfairly discounted the other medical evidence which she provided, indicating that she was fit for work. Ms Vather asserts that the termination of employment decision should not have been taken until, at a minimum, she had been given the opportunity to access a further occupational fitness for work assessment. Ms Vather asserts that there is no evidence of the factors which the decision maker, Mr Horseman took into account in deciding to terminate her employment.
[16] The Serco position is that it was entitled to rely on the expert evidence of Dr McGroder, who was the only medical practitioner with information relating to the actual work arrangements applicable to Ms Vather. Further, that Dr McGroder’s assessment confirmed that Ms Vather was unable to undertake the inherent requirements of the job, even with modifications and that this would be the case for the indefinite future. Serco assert that it provided Ms Vather with a fair opportunity to respond to the possibility of the termination of her employment and adopted a procedurally fair approach. Serco assert that whilst Mr Horseman was the final decision maker, its processes were such that he relied on the advice of Ms Weston and its corporate headquarters.
The Evidence
[17] A significant quantity of material has been provided to me in this matter. I have taken all of this material into account in reaching my conclusions. I have briefly summarised the witness evidence in the following terms.
[18] Ms Vather’s evidence went to her employment history with Serco, her absences from work and the steps she took to establish that she was able to return to work. Ms Vather confirmed the basis for her concerns about the manner of her consultation with Dr McGroder and the extent to which she considered his conclusions were incorrect. She confirmed the steps she took to bring these concerns to the attention of Serco. Her evidence went to her efforts to gain alternative employment after her dismissal and the nature of the remedies that she sought.
[19] Mr Krauth and Mr Fehlaur worked with Ms Vather. Their uncontested evidence went to the working relationship which they had with her and their understanding of her back injury. Both these witnesses gave positive evidence about Ms Vather’s character.
[20] Ms Weston gave evidence about the basis of Serco’s concerns over Ms Vather’s long absence and uncertainty over her return to work. She detailed the steps taken to arrange the consultation with Dr McGroder and her consideration, in concert with Serco corporate personnel, and Mr Horseman, of that report and the information provided by Ms Vather. She detailed the basis upon which she concluded that Ms Vather should be dismissed because she was incapable of performing the essential requirements of her position, and her participation, with Mr Horseman, in the final decision making process.
Findings
[21] I have concluded that Ms Vather was not dismissed because of any issues that arose whilst she was employed with Serco. There is simply no evidence which suggests that the matters she raised whilst working at Yongah Hills were taken into account in the employment termination process. Further, the evidence of Ms Weston confirms that the termination considerations were not related to Ms Vather’s workers compensation claims. 9
[22] Ms Vather was dismissed because Serco concluded that she was unable to perform the inherent requirements of her job. I have concluded that, whilst the final termination of employment decision was made by Mr Horseman, Ms Weston’s evidence confirms that she proposed that termination decision to him and participated with him, in discussions with corporate Human Resources staff, so as to conclude that termination of employment was appropriate. 10
[23] Having made this finding I have then considered the extent to which the termination of Ms Vather’s employment was, in all the circumstances, harsh, unjust or unreasonable.
[24] Section 387 of the FW Act states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[25] I have considered Ms Vather’s circumstances in the context of each of these factors.
Valid Reason
[26] Notwithstanding subsequent legislative changes, the concept of a valid reason adopted by Northrop J in Selvachandran v Peterson Plastics Pty Ltd,11 as “sound, defensible or well founded” remains apposite.
[27] In Ms Vather’s case the issue of a valid reason relating to her conduct does not arise and it is only necessary to determine whether there was a valid reason relating to her capacity.
[28] In Lion Dairy and Drinks Milk Limited 12 (Lion Dairy) a Full Bench recently reviewed the concept of capacity to fulfil the inherent requirements of a job. Having reviewed a substantial range of decisions13 dealing with this issue, the Full Bench stated:
“[25] It is possible to extract the following principles from the above cases:
- Capacity cases based on medical opinions are different to misconduct cases. In capacity cases the employer is usually required to have regard to an expert opinion or opinions – not to make an independent assessment of what is essentially a medical question. In misconduct cases, an employer is required to make a finding of whether the employee engaged in the conduct concerned.
- In an unfair dismissal case the relevant factual matrix must be considered by the Commission. In a case where the reason for dismissal is misconduct the Commission must consider whether the conduct occurred based on the evidence before the Commission. In a case where the reason for dismissal relates to capacity, the Commission should have regard to the medical opinions at the time of the decision to dismiss.
- The existence of a valid reason for termination based on capacity depends on whether the reason was sound, defensible and well founded – and not capricious, fanciful, spiteful or prejudiced - considered in the context of the object of ensuring a ‘fair go all round’.
- It is appropriate to have regard to medical assessments that relate to the capacity to perform the full duties of the position.
- It is also appropriate to have regard to whether reasonable adjustments may be made to a person’s role in order to accommodate any current or future incapacity. However such consideration of what may be reasonable adjustments will be within the context of the substantive position or role, not as it may be modified or restricted in order to accommodate the employee’s injury.
- The absence of a clear finding by an appropriate medical practitioner that the employee cannot perform the inherent requirements of the job will suggest that there is not a valid reason for termination based on capacity.
- A decision based on the existence of a medical opinion that an employee cannot perform the inherent requirements of a job is suggestive of a valid reason because such a decision is sound, defensible and well founded.”
[29] I have reviewed the evidence before me in the context of these principles.
[30] I am satisfied that Serco made the decision to terminate Ms Vather’s employment on the basis of the advice provided by Dr McGroder rather than on the basis of its own assessment of her circumstances.
[31] Ms Weston’s evidence established that Serco identified to Ms Vather that it wanted an expert fitness for work assessment to be undertaken, even before Dr McGroder was asked to undertake this. 14 The evidence establishes that Serco selected Dr McGroder substantially on the basis that it sought an expert occupational health physician in a location suitable to accommodate Ms Vather’s restricted travel capacity.15 Ms Weston provided substantial informational Dr McGroder. Ms Weston’s evidence was that:
“37. Ms Vather’s medical assessment was arranged for 31 March 2016 with Dr McGroder, a Consultant Occupational Health Physician. On 16 March 2016, I sent Dr McGroder the following documents along with the request for a medical assessment for Ms Vather:
(a) position description – Client Service Officer – Compound;
(b) position description – Client Service Officer – Security;
(c) task analysis – Client Service Officer – Compound;
(d) task analysis – Client Service Officer – Security;
(e) summary of job demands – Client Service Officer – Compound;
(f) summary of job demands – Client Service Officer – Security;
(g) medical certificate from Dr Helen Carney (Wollongong Medical Centre completed on 1 March 2016); and
(h) a letter from Serco dated 16 March 2016 regarding a medical assessment of Ms Vather.
(the Supporting Documentation). Prior to sending this information to Dr McGroder I sent Dr McGroder an email on 15 March 2016 regarding the fitness for work assessment of Ms Vather. A copy of the Supporting Documentation and the emails I exchanged with Dr McGroder on 15 and 16 March 2016 are attached to this statement and marked Annexure “JW24”. The document described as the position description is a document created by an external consultant in consultation with Serco to be given to a health professional to fully understand the physical requirements and environment of the DSO role.
38. Prior to forwarding this material to Dr McGroder I recall having a brief telephone conversation with Dr McGroder on 15 March 2016. During this conversation I recall introducing myself and saying words to the following effect: “We have an employee who is on extended leave due to lumbar spine facetal and neve root pain. This employee remains unfit on a medical certificate up to 8 April 2016. We would like you to conduct a fitness for work assessment to determine whether this employee can safely perform the inherent requirements of her position as a Client Service Officer. I will send an email to you confirming our discussion and post the documentation to you”. (sic)
[32] I have concluded that Serco objectively briefed Dr McGroder with respect to the functions undertaken by Ms Vather and other functions which she could be asked to undertake. Ms Weston’s evidence was that Serco had limited restricted duties which could be made available to Ms Vather. 16
[33] In terms of the medical opinions which Serco took into account, the termination of employment letter confirms the extent to which Serco relied on Dr McGroder’s report as the basis for its conclusion that Ms Vather could not, as at 9 May 2016, or for an indefinite period, “fulfil the inherent requirements” of the DSO position at Yongah Hills. 17
[34] Ms Vather’s concerns about Dr McGroder’s report raise three related issues. Firstly, she identified to Serco, her concerns about how he conducted that assessment. In this respect, Ms Weston’s evidence establishes that, with one significant exception, Serco considered the extent to which Ms Vather found Dr McGroder’s examination and conclusions to be deficient. Ms Weston confirmed that, given the extent to which Dr McGroder had been provided with detailed information about Ms Vather’s job and had provided definitive advice, this was to be preferred over the subsequent advices provided by Drs Carney and Dr Lawrence, who did not have that information, or, necessarily, that occupational physician speciality. I have concluded that Serco was entitled to prefer Dr McGroder’s advice on this basis. Whilst I accept Ms Weston understood that the certificate provided by Dr Carney could be read as conditional on Ms Vather’s completion of her Physiotherapy program, I think it clearly specified a return to work date on the basis of Dr Carney’s assessment and have viewed it in this light. I am not satisfied that Dr Lawrence’s apparent criticisms of the conclusions reached by Dr McGroder were not made with the benefit of direct information about the work to be performed by Ms Vather. Finally, in this regard, I do not consider that Serco was obliged to discount Dr McGroder’s assessment when Ms Vather advised that she had been cleared for a return to work. Whilst it was open to Serco to obtain a further fitness for work assessment, the absence of specific work related detail around the clearance given by Dr Carney means that Serco had a legitimate basis upon which to prefer Dr McGroder’s assessment.
[35] Secondly, I have considered the extent to which, on or around 16 April 2016 Ms Vather sent to Ms Weston, a further criticism of Dr McGroder’s report in the form of an annotated version of that report. 18 Ms Weston’s evidence19 confirms that she did not read this. There is nothing to indicate that this was due to anything other than an oversight, but I have considered whether the information Ms Vather included in this annotated report was of a nature that Serco’s failure to consider it undermined the extent to which its ultimate conclusion was sound, defensible and well founded. I have concluded that this was not the case. In this annotated version, Ms Vather refutes various of the observations in the report. I am not satisfied that these criticisms undermine the basis of the medical assessment undertaken by Dr McGroder.
[36] Thirdly, I have considered the extent to which Serco did not agree to Ms Vather’s request that she be permitted to undertake a further fitness for work assessment at her own cost. Again, whilst it was open to Serco to accept this proposal, it must be regarded as problematic, if only to the extent to which a conclusion which was different to that of Dr McGroder would then imply that a third assessment would need to be undertaken. I consider that proposition exposes Serco to substantial costs and potentially puts it in a position where contradictory specialist opinions need to be unreasonably balanced.
[37] Consequently, in terms of the principles set out in Lion Dairy, I am satisfied that there was a legitimate basis for Serco’s conclusion that, after a very lengthy absence, Dr McGroder’s report established that Ms Vather was incapable of undertaking the inherent requirements of her job.
[38] I have considered the advices provided by Dr McGroder, Dr Carney and Dr Lawrence. Only Dr McGroder’s advice demonstrates consideration of Ms Vather’s capacity against the full duties of her position.
[39] Additionally, Dr McGroder’s advice was made in the context of a contemporary and future assessment of Ms Vather’s circumstances. In his report he repeatedly confirms his conclusion that Ms Vather was not able to return to work in the foreseeable future. Further, that assessment was made in the context that Serco provided him with information about alternative duties which (presumably) could be made available. Dr McGroder discounts that option on the basis of his medical assessment. To the extent that Ms Vather asserts that Serco should have deployed her to other jobs, Ms Weston’s evidence went to limitations on Serco’s capacity to provide modified duties. She explained this further in the context that, even security duties required a capacity for the employee to be active on occasion. 20
[40] For these reasons, I have concluded that there was a valid reason for the termination of Ms Vather’s employment on the basis of her incapacity to undertake the inherent requirements of her job. There is no doubt that other courses of action were open to Serco but the existence of those other options does not detract from the extent to which there was a valid reason for Ms Vather’s dismissal or make the Serco decision inherently unfair.
Notification of the reason
[41] The letter advising Ms Vather of the termination of her employment detailed the reason for Ms Vather’s dismissal. Further, the “show cause” letter of 13 April 2016 made clear the possibility of employment termination and the reasons for the Serco position in this regard.
Opportunity to respond
[42] Ms Vather was clearly given the opportunity to respond to the 13 April 2016 “show cause” letter. Whilst she was given 10 days in which to do so, it is clear that Serco considered information which she provided some time after the expiry of that 10 day period.
Unreasonable refusal of a support person request
[43] There were no discussions relative to the proposed termination of Ms Vather’s employment and it is clear from the sequence of events that Ms Vather was able to gain support for her position from various people over the period in question.
Warnings relative to unsatisfactory performance
[44] Ms Vather was not dismissed because of performance considerations.
Size of the Serco enterprise - policies and procedures and access to human resources expertise
[45] Serco is a very large business. The material before me demonstrates sophisticated policies and procedures which were applied and the active involvement of human resources expertise.
Other matters considered relevant.
[46] Notwithstanding my conclusion that there was a valid reason for the termination of Ms Vather’s employment, I have considered whether the approach adopted by Serco was inherently unfair in the context of Ms Vather’s doctors’ assertions that she was able to return to work.
[47] I do not consider this to be the case in that the detailed information provided to Dr McGroder as the expert occupational physician represented the only definitive evidence available to Serco.
[48] I have also considered the extent to which the termination of Ms Vather’s employment created hardship for her. Whilst I have no doubt that this was the case, that hardship is consistent with any employment termination of this nature and must be balanced against Ms Vather’s long period of absence from work and the obligations on Serco.
Conclusion
[49] Having considered all of the factors in s.387 I have concluded that the termination of Ms Vather’s employment cannot be considered to be harsh, unjust or unreasonable. Ms Vather’s application must be dismissed accordingly. An Order (PR584587) to this effect will be issued.
Appearances:
N Vather on her own behalf.
C Graham for the respondent.
Hearing details:
2016.
Perth:
August 22.
1 Exhibit S2, Attachment JW25
2 Exhibit S2, Attachment JW28
3 Exhibit V3, Attachment W
4 Exhibit S2, Attachment JW33
5 Exhibit S2, Attachment JW33
6 Exhibit S2, Attachment JW34
7 Exhibit S2, Attachment JW35
8 Exhibit S2, Attachment JW35, second last para on first page
9 see, for example, Exhibit S2, paras 68 - 72
10 Transcript Audio, 22 August 2016, 13.54pm
11 (1995) 62 IR 371 at 373
12 [2016] FWCFB 4218
13 [2016] FWCFB 4218, paras 10 - 24
14 Exhibit S2, para 20
15 Exhibit S2, para 26 and Exhibit S2, Attachment JW22
16 Transcript Audio, 22 August 2016, 14.07pm and 14.10pm
17 Exhibit S2, Attachment JW35
18 Exhibit V3, Attachment W
19 Transcript Audio, 22 August 2016, 14.15pm
20 Transcript Audio, 22 August 2016, 13.31pm
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