Pariya Masroor v Coles Supermarkets Australia Pty Ltd
[2025] FWC 1825
•26 JUNE 2025
| [2025] FWC 1825 |
| FAIR WORK COMMISSION |
| DECISION AND ORDER |
Fair Work Act 2009
s.394—Unfair dismissal
Pariya Masroor
v
Coles Supermarkets Australia Pty Ltd
(U2024/11662)
| DEPUTY PRESIDENT EASTON | SYDNEY, 26 JUNE 2025 |
Application for relief from unfair dismissal – prolonged absence from work – failure to comply with a reasonable request to provide medical information – valid reason found – procedural fairness found - dismissal was not harsh, unjust or unreasonable – application dismissed.
On 30 September 2024 Ms Masroor made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth), alleging that she had been unfairly dismissed from her employment with Coles Supermarkets Australia Pty Ltd. Ms Masroor seeks reinstatement to her former position.
Ms Masroor was employed with Coles Supermarkets from 15 March 2017 until 10 September 2024. Ms Masroor was employed on a full-time basis from 6 April 2020 as a Delicatessen Manager and later as a Bakery Manager.
In January 2021 Ms Masroor was transferred from the Oatley store in Sydney to the nearby Hurstville store. Ms Masroor worked at the Hurstville store for only a matter of weeks before she raised matters related to food handling practices which led to her taking stress leave before resuming work at third store. Ms Masroor worked as the Bakery Manager at Chullora from 28 June 2021. Ms Masroor said that when she worked at the Chullora store as the Bakery Manager she was also instructed to manage the Deli.
In January and February 2022 Ms Masroor experienced seizures at work. In February 2022 Ms Masroor commenced a period of leave and did not return to work before her dismissal in September 2024.
Ms Masroor’s evidence focused on the events of 2021 and 2022 that preceded her long absence. Those events are significant to Ms Masroor however they are not centrally relevant to the matters to be decided in her unfair dismissal claim. By the time Coles Supermarkets came to consider dismissing Ms Masroor from her employment in 2024, the cause of Ms Masroor’s illness or absence was not Coles Supermarkets’ central focus. Quite properly, Coles Supermarkets was concerned about Ms Masroor’s fitness for employment in 2023 and 2024 and whether there were reasonable adjustments that could be made to allow Ms Masroor to return to work. As such, it is not necessary to make any factual findings about the events of 2021 and 2022, or to describe the evidence about those events in any detail in this decision.
In 2022 Ms Masroor made allegations against the manager of the Chullora store. Those allegations were investigated and in April 2022 Ms Masroor was advised that her allegations were not substantiated.
While Ms Masroor’s allegations were being investigated Ms Masroor provided medical evidence that indicated that she was fit to work for Coles Supermarkets but not at the Chullora store. After Ms Masroor was advised that her allegations were not substantiated the medical evidence she provided indicated that she was not fit to work for Coles Supermarkets at any store.
Over the period of Ms Masroor’s absence from 27 April 2022 until 10 September 2024 Ms Masroor provided medical certificates for some periods of absence but not for all. The latest period of absence covered by a medical certificate was 17 January 2023 to 17 March 2023. No medical certificates were provided for the last eighteen months of Ms Masroor’s employment.
As Ms Masroor’s absence continued Coles Supermarkets began pressing her to provide medical evidence about her fitness and the likelihood that she would return to work. Coles Supermarkets issued separate written requests for information on 1 September 2022, 21 September 2022, 22 February 2022, 19 April 2023, 28 June 2023 and 12 July 2023.
Coles Supermarkets was appropriately specific about the information it sought from Ms Masroor’s treating practitioner. For example in its letter of 21 September 2022 Coles Supermarkets asked Ms Masroor’s treating doctor the following questions:
“… To enable us to understand Pariya’s capacity to safely perform her contracted duties, we request that you prepare a brief written medical opinion that addresses the following specific questions:
1. You have previously stated that Pariya’s has been diagnosed with stress and anxiety and the prognosis was temporary. Has there been any change to this medical opinion?
2. Has Pariya been diagnosed with any other medical condition which may impact her ability to perform her contracted position? If so, what is the prognosis of this/these conditions?
3. Please describe the nature of the medical treatment undertaken by Pariya to date.
4. As part of Pariya’s role it may be necessary for her to deal with unexpected situations e.g. demanding customers, high pressure situations, times of heavy trade. Is there any medical/psychological basis to suggest that Pariya cannot manage such a situation?
a. If yes, please explain the medical basis of this limitation.
5. In your opinion, is Pariya currently fit to undertake the inherent requirements of her pre-illness role as Baker Manager, including rostered hours? If no,
a. When is Pariya likely to be able to return to pre-illness role in the foreseeable future?
i. 0-3 months
ii. 4-6 months
iii. 7-12 months
iv. Over 12 months
b. Are there any adjustments or measures which could be taken to enable Pariya to safely carry out all of the inherent requirements of her contracted position?
c. What is the risk of re-aggravation or exacerbation of Pariya’s condition if she returns to work?
d. Are there any other suitable duties that Pariya can safely undertake in the workplace?
6. Pariya has had multiple seizures over the past month whilst at work, and previously you stated that a stressful work environment may trigger a seizure. Are there any further triggers in the workplace that the business needs to be aware of?
7. Are there any warning signs that Coles needs to be aware of which may indicate that Pariya may have a seizure eg feeling light headed?
8. Provide any other information that may be relevant to Pariya’s work in the context of her illness.
If you need to visit Pariya’s place of work in order to prepare this opinion please contact me and arrangements will be made to facilitate this.”
Ms Masroor did not ever provide medical information about her capacity to return to work.
Ms Masroor fell on hard times during her absence and she said that there were periods when she did not have access to email or a convenient mailing address. Ms Masroor referred to these difficulties in order to suggest that not all of Coles Supermarkets’ correspondence found its way to her.
Even if this was the case for some of Coles Supermarkets’ attempts to reach Ms Masroor, I am satisfied that:
(a)Ms Masroor knew from at least September 2022 onwards that Coles Supermarkets wanted her to provide information about her future fitness to work; and
(b)Ms Masroor knew from at least November 2022 when she received the first show cause letter, that her employment could be terminated if she did not provide the information sought.
Coles Supermarkets’ efforts to understand Ms Masroor’s fitness for work and adjustment requirements over a very long period of time were confounded by Ms Masroor’s responses.
Coles Supermarkets relied on evidence from Ms Lisa Zammit, who is employed as a Health and Well-Being Advisor. Ms Zammit described her return-to-work attempts and requests for information as follows:
“I set out below the records of my interactions with Ms Masroor which I specifically remember and which I have identified through my records. In summary, I made many attempts to contact Ms Masroor to discuss her return to work and seek medical information, more than I have been able to specifically recall below.
Most of the time, Ms Masroor did not answer my calls or otherwise respond to me. When she did respond, it was usually at or just after a deadline I set for the provision of information had passed. Ms Masroor would indicate that the information was forthcoming but that she needed more time. Ultimately, Ms Masroor never provided any of the medical information requested, just repeated certificates indicating that she had no capacity to work…”
At different times Ms Masroor told Coles Supermarkets that she had misplaced the questionnaire, or that the information would be forthcoming, or Ms Masroor’s solicitors asked for more time, or Ms Masroor asked Coles Supermarkets to pay her doctor’s invoice but then did not provide the invoice.
There was a contest in the evidence about who was to pay for the medical advice. Ms Masroor said that she was prepared to provide the medical advice sought by Coles Supermarkets but was prevented from doing so because she could not afford to pay her treating doctor to prepare a report. This evidence was not satisfactory and was contradicted by Coles Supermarkets’ correspondence to Ms Masroor’s treating doctor that included undertakings such as:
“The Company requests that your report is provided to us by 4th October 2022. The reasonable cost of your assessment will be met by the Company on provision of your invoice to [details provided]”
Coles Supermarkets’ correspondence to Ms Masroor was clear about the consequences if she did not provide the information sought.
In November 2022 Coles Supermarkets issued the first of four show cause letters. This letter included the following:
“Dear Pariya,
As an employee of Coles Supermarkets, you have an obligation to co-operate with its reasonable requests to obtain medical information relating to your return to work, and occupational health and safety matters generally. However, to date, you have not responded to our requests for medical information in our letters to you dated 01.09.22 and 21.09.22.
The request for this medical information is a reasonable and lawful direction, as this information is required to assess your capacity to return to work or whether or not any reasonable accommodations can be made to enable you to do so.
As you have failed to provide the requested medical information, Coles Supermarkets may be left with no alternative but to make a decision regarding your future employment based on the available information. This may result in the termination of your employment on the basis that:
• You have failed to comply with the Company’s lawful and reasonable directions to provide medical information to ascertain your capacity to return to work, given your duty to co- operate with Coles in relation to health and safety matters; and/or
• According to the available information, there is no reasonable prospect of you resuming your pre-injury duties in the near future.
Please contact me on … by … if you wish to provide any information as to why your employment should not be terminated.
It is important to note that if you fail to contact me by X the Company will have no alternative but to make a decision regarding your future employment based on the available information, without your further input. This may result in the termination of your employment.”
Coles Supermarkets’ written submissions outlined what happened after each show cause letter was sent:
“The Respondent did not proceed with the Applicant's dismissal following the correspondence in 2022 and 2023:
(a) in respect of the show cause correspondence of 16 November 2022, the Applicant requested further time to provide the requested information, which was agreed to by the Respondent although the information was never provided;
(b) in respect of the show cause correspondence of 12 July 2023, the
Applicant:(i) requested that the Respondent pay or prepay the treating practitioners' invoice, which the Respondent agreed to;
(ii) the Applicant, through her solicitors, provided a medical report, but it did not deal with the requested information …;
(c) in respect of the show cause correspondence of 17 November 2023, the Applicant's solicitors requested further time, which the Respondent agreed to, albeit that again the information was never provided.
The Respondent then decided not to progress any disciplinary action against the Applicant while she appealed the rejection of her workers' compensation claim. The appeal was rejected in July 2024.”
On 22 July 2024 Coles Supermarkets sent a final show cause letter. This letter was sent to the email address from which Ms Masroor had been communicating with Coles Supermarkets, as well as by standard post and registered post.
The final show cause letter included the following:
“As an employee of Coles Supermarkets, you have an obligation to co-operate with its reasonable requests to obtain medical information relating to your return to work, and occupational health and safety matters generally.
You have failed to provide the medical information which was requested on 01 September 2022 and 21 September 2022 and then again on 22 February 2023, 19 April 2023, 28 June 2023, 12 July 2023 and 17 November 2023.
The request for this medical information is a reasonable and lawful direction, as this information is required to assess your capacity to return to work or whether or not any reasonable accommodations can be made to enable you to do so.
As you have failed to provide the requested medical information, Coles Supermarkets may be left with no alternative but to make a decision regarding your future employment based on the available information. This may result in the termination of your employment on the basis that:
You have failed to comply with the Company s lawful and reasonable directions to provide medical information to ascertain your capacity to return to work, given your duty to co-operate with Coles in relation to health and safety matters; and/or
According to the available information, there is no reasonable prospect of you resuming your pre-injury duties in the near future.
Please contact me on … by 5th Aug 2024 if you wish to provide any information as to why your employment should not be terminated.
It is important to note that if you fail to contact me by 5th Aug 2024 the Company will have no alternative but to make a decision regarding your future employment based on the available information, without your further input. This may result in the termination of your employment.”
Ms Masroor did not respond to the final show cause letter by the deadline of 5 August 2024.
On 6 August 2024 the new store manager for Chullora, Ms Samira Daoud, sent a text message to Ms Masroor in the following terms:
“Hi Pariya, an email was sent to you on the 22 July for your urgent attention. You need to contact me within 24 hours. Thank you Samira”
There was then a brief telephone conversation between Ms Masroor and Ms Daoud. There is little commonality between each person’s account of this conversation. Ms Masroor described the conversation as follows:
“On or about 6 August 2024, Ms Samira Daoud, the new store manager of Chullora Coles, contacted me via telephone requesting an appointment to meet and discuss what
medical information I was required to provide Coles with so that I may either transition in my current role or otherwise be redeployed within Coles. The Appointment was set for 7 August 2024 the next day and agreed between us.”
Ms Daoud described the conversation as follows:
“… I explained who I was and asked if Ms Masroor could tell me when she would be returning from leave and respond to Coles' requests for information. Ms Masroor said "I cannot discuss any further. We can discuss this during a meeting with our lawyers". She refused to give me any information at all. I said I would go back to the business before coming back to her again.”
If there was an agreement in the phone call to meet the next day, the following text messages sent the same evening indicate that no meeting took place on 7 August 2024:
Ms Masroor said:
“Hello Samira.
Nice talking to you,
I just spoke to my lawyer and he will be available for having a conference call with you tomorrow at 11 am.
Hope you have a nice evening
Pariya Masroor
Thanks for your support.”Ms Daoud said:
“Hi Pariya
can you please send me your email address and postal address also update on my hub.
We won’t be able to make a conference call tomorrow.Kind regards
Samira Daoud”Ms Masroor said:
“Hi Samira
Sure, I’ll send you the required information tomorrow as soon as possible.
Thanks for updating me
Pariya”
Ms Daoud followed up on the morning of 13 August 2024 with a further text message:
“Hi Pariya
I refer to text message you sent to on 7 August. As requested please confirm your email and postal address is a priority.
Kind regards
Samira Daoud”Ms Masroor responded the same morning with a text message:
“Good morning Samira.
I spoke to my lawyer and he said he’ll be in touch with you, and I shouldn’t do anything, this is his number, please be in touch with him:
Behrouz Ehsani
+61 [redacted]”On 13 August 2024 Mr Angelo Correia made the decision to dismiss Ms Masroor from her employment. Mr Correia described his reasoning as follows:
“… As at 13 August 2024, Coles had not received a response to the show cause letter from Ms Masroor other indicating that her solicitors would be in contact.
On 13 August 2024, I made the decision to terminate Ms Masroor's employment with Coles for two reasons.
First, as at 13 August 2024, Ms Masroor was unfit for any work and had been since 27 April 2022, and therefore she was unfit to perform the inherent requirements of her role. There was also no indication that Ms Masroor would be fit for any work in the future.
In this respect, Coles requested medical information on many occasions over the course of approximately 2.5 years to ascertain Ms Masroor's current and future fitness for work. Coles did not receive any such medical information.
Secondly, as at 13 August 2024, Ms Masroor had failed to respond to Coles' requests for medical information and, more generally, she failed to engage with Coles about her return to work over a protracted period of time.
I considered the contact made by Ms Masroor between 22 July and 13 August 2024 indicating that her solicitors would be in contact with Coles. I did not consider that this was sufficient to delay the decision to terminate. Ms Masroor, personally or through her solicitors, had been afforded ample opportunity to engage with Coles on many occasions. There had been a pattern of stalling and asking for more time. Despite this, none of the requested information about Ms Masroor's condition or prognosis was ever provided to Coles.”
A letter of termination was sent to Ms Masroor on 13 August 2024 that included the following:
“We refer to our request for you to provide medical information in previous letters including a 'show cause’ letter asking you to provide reasons why your employment should not be terminated. You provided no additional medical information to the Company in response to this request.
Based on this medical information Coles believes that
b.in the reasonably foreseeable future you will not be able to carry out all of the inherent requirements of your pre-injury duties; and
c.there are no reasonable adjustments which the Company can make to enable you to perform all of the inherent requirements of your pre-injury duties.
Accordingly, Coles has made the decision to terminate your employment. This letter provides you with 4 weeks' notice of the termination of your employment. Please note that this notice is unpaid. Accordingly, your employment will cease on 10 September 2024…”
There was further correspondence between Ms Masroor’s solicitors and Coles Supermarkets after the dismissal had taken effect. That correspondence is not material to the fairness of the dismissal on 10 September 2024.
Two weeks after the dismissal took effect Ms Masroor provided a medical certificate to Coles Supermarkets dated 21 September 2024 stating:
“Pariya is fit to return to pre injury duties. I will be happy to assist with facilitation of return to work plan if necessary.”
Consideration
In determining whether Ms Masroor’s dismissal was harsh, unjust or unreasonable s.387 of the Fair Work Act 2009 (Cth) (FW Act) requires me to take into account the following matters:
(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.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct (s.387(a))?
To be a valid reason, the reason for the dismissal should be sound, defensible or well founded and should not be capricious, fanciful, spiteful or prejudiced. In assessing the validity of the reason(s) for dismissal the Commission will not stand in the shoes of the employer and determine what the Commission would have done in the same position.
Ms Masroor was dismissed on the grounds that:
(a)she had been absent for two years and three months and had maintained since April 2022 that she had no capacity to work; and
(b)she failed to comply with Coles Supermarkets’ repeated reasonable directions to provide information about her condition and prognosis so it could consider her fitness for work.
By the time Ms Masroor was dismissed she had been absent from the workplace for more than two years. The latest medical information provided by Ms Masroor was more than 18 months old. Ms Masroor’s workers compensation claim had been denied and Ms Masroor’s appeal of that decision was unsuccessful.
The fourth and final show cause letter was sent on 22 July 2024. At this point in time Ms Masroor had engaged a solicitor for at least her workers compensation proceedings and Ms Masroor had been on notice for almost two years that if she did not provide medical information about her fitness for work then her employment was at risk.
The show cause letter asked for a response by 5 August 2024. Neither Ms Masroor nor her solicitor provided a response by this date.
There was brief contact with the store manager at the Chullora’s store over the next week however there was still no attempt by Ms Masroor or her solicitor to address the matters squarely raised in the final show cause letter.
Coles Supermarkets’ requests for information were lawful, reasonable and respectful. Coles Supermarkets had been patient with Ms Masroor for a very long time.
Ms Masroor’s failure to provide the information sought was a valid reason for the dismissal.
Was the Applicant notified of the valid reason (s.387(b))?
Section 387(b) requires me to take into account whether the employee “was notified of that reason.” Sections 387(b) and (c) direct the FWC’s inquiry to matters of procedural fairness. In general terms a person should not exercise legal power over another, to that person’s disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case (per Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 [70] citing FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Kioa v West (1985) 159 CLR 550; Annetts v McCann and others (1990) 170 CLR 596).
In context, the inquiry to be made under s.387(b) is whether the employee was “notified” of that reason before the employer made the decision to terminate (per Sydney Trains v Trevor Cahill[2021] FWCFB 1137 at [60]). The reference to “that reason” is a reference to the valid reason(s) found to exist under s.387(a) and the reference to being “notified” is a reference to explicitly putting the reasons to the employee in plain and clear terms (per Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]).
The show cause letter issued on 22 July 2024 explicitly put the reasons for dismissal to Ms Masroor (see [22] above).
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct (s.387(c))?
The opportunity to respond to which s.387(c) refers is an opportunity to respond to the reason for which the employee may be about to be dismissed.
Ms Masroor was given a proper opportunity to respond to the allegations against her. For whatever reason, Ms Masroor chose not to respond to the final show cause notice.
Other factors – s.387(f)-(h)
Coles Supermarkets did not have discussions with Ms Masroor relating to the dismissal, although it did invite such discussions. The parties communicated by email and SMS and so the absence of a support person in these communications (s.387(d)) does not affect the fairness of the dismissal in this matter.
As the dismissal did not relate to unsatisfactory performance, the fact that Ms Masroor was not warned about unsatisfactory performance (s.387(e)) does not affect the fairness of the dismissal.
Similarly, the size of Coles Supermarkets’ enterprise (s.387(f)) and the availability of dedicated human resource management expertise (s.387(g)) do not affect the fairness of the dismissal.
There are no other relevant matters (s.387(h)) that impact upon the fairness of the dismissal of Ms Masroor.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
I find that the dismissal of Ms Masroor was not harsh, unjust or unreasonable.
Coles Supermarkets gave Ms Masroor numerous opportunities to show that there was a possibility that she could return to work in the foreseeable future. Although Ms Masroor did engage with Coles Supermarkets over the period of her absence to a limited degree, she did not properly engage with Coles Supermarkets’ attempts to either (1) understand her physical and mental condition and (2) explore with her ways in which she might be able to return to work.
After a long period of absence Coles Supermarkets, quite reasonably, assumed that Ms Masroor could not return to work in the foreseeable future, but gave her repeated opportunities to provide medical evidence to the contrary. Ms Masroor either could not or would not provide evidence to the contrary.
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of Ms Masroor was not unfair. I make the following order:
A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Masroor on 30 September 2024 dismissed.
DEPUTY PRESIDENT
Appearances:
A Ehsani for the Applicant
W Spargo for the Respondent
Hearing details:
2025.
Sydney
February 18.
Printed by authority of the Commonwealth Government Printer
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