Robert Price v Police Department (Vic)
[2024] FWC 2484
•13 SEPTEMBER 2024
| [2024] FWC 2484 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Price
v
Police Department (Vic)
(U2024/106)
| COMMISSIONER YILMAZ | MELBOURNE, 13 SEPTEMBER 2024 |
Application for relief from unfair dismissal.
On 3 January 2024, Mr Robert Price (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Police Department (Vic) (the Respondent).
Mr Price was suspended from duties in August 2021. At the end of the suspension, Mr Price took a period of personal leave from 31 January 2022 until his workers compensation claim was accepted around 15 March 2022. In June 2023, the Respondent inquired into Mr Price’s capacity to perform the inherent requirements of his role and on 31 August 2023 a show cause process commenced. The Respondent contends that an inability to perform the inherent requirements of the role was a valid reason for the dismissal and the dismissal process was fair.
At the hearing Mr Price gave sworn evidence and the Respondent called three witnesses:
· Ms Jezebel Yool, Acting Director Business Partnering and Workplace Relations
· Mr Daron Hulls, Inspector
· Dr Scott Hall, Consultant Psychiatrist
Mr Price is seeking reinstatement to his pre-injury duties, a process of mediation before he returns to the workplace and where necessary any reasonable adjustments to be made to accommodate his return.
It is not in dispute that Mr Price’s application satisfies the requirement of minimum employment period and coverage under an enterprise agreement pursuant to s.382 of the Act. There are no jurisdictional matters applicable.
This application experienced a number of delays in the Commission due to concerns over Mr Price’s fitness and a number of conciliation conferences were held to settle the dispute. Despite the efforts from both parties, an agreed settlement could not be reached.
Background
Mr Price commenced employment as a trainee Police Custody Officer on 16 January 2017 at the Mildura Police Station. On completing his training, he worked as a Police Custody Officer (PCO) from 10 March 2017. On 18 October 2018, Mr Price was promoted to Senior Police Custody Officer.
Mr Price submits that he experienced conflict and tension with PCOs after his promotion. Conflict over his rostering of PCOs and because he simultaneously conducted his blind business caused workplace tension. He submits that the working environment was further confounded after an allegation was made that he assisted a PCO to record and share footage of a prisoner. This allegation was investigated by Professional Standards Command and was later put on hold. In July 2021 an anonymous complaint against Mr Price was lodged about administering the wrong medication to a prisoner. This complaint was externally investigated, and Mr Price was suspended from duties on 2 August 2021.
Mr Price submits he was unfairly targeted by his coworkers and unsupported by management. His superiors became concerned over his open criticism of police and his suspicions, which they determined were unsubstantiated.
The conclusion of the external investigation resulted in Mr Price’s demotion to PCO on 25 January 2022 and he remained in that position until his dismissal on 19 December 2023, but at no point did he return to work after his suspension.
A WorkCover claim for anxiety and depression was lodged on 8 February 2022. Due to Mr Price’s absence from duty, in June 2023 the Respondent commenced a process to assess his capacity to perform the inherent requirements of the job.
Submissions of the Applicant
Mr Price submits that the Respondent’s reliance on the report of Dr Hall to terminate his employment was selective cherry picking and unjustified.[1] He submits that two responses from Dr Hall were taken out of context to suit the Respondent’s desired outcome to terminate his employment.
He maintains that with mediation he could return to work and therefore the dismissal was premature. In addition, Mr Price raises objections to how his superiors managed what he describes as bullying and harassment from his co-workers which is the basis of his workers compensation claim and he further criticises the conduct of Officers in the management of his claim. In relation to the alleged efforts to arrange a return to work, Mr Price submits that the efforts were disingenuous. Mr Price relies on his treating medical practitioner and treating psychologist to suggest mediation was a reasonable requirement to return to duties which the Respondent unreasonably refused to consider.[2]
Mr Price also critiques the suggestion that the show cause process was fair on the basis that he was not immediately given a copy of the independent report of Dr Hall and the timelines for him to respond were unreasonable. In support of his submissions, Mr Price submitted a report from his treating psychologist dated 1 January 2024.
Mr Price seeks an order for the Respondent to conduct mediation sessions to support a return to work and to make all reasonable adjustments to facilitate his return to work.
Submissions of the Respondent
The Respondent submits that Mr Price’s employment was terminated because he was medically unfit to perform the inherent requirements of his role as PCO. It submits that this decision was made following a thorough assessment of his medical capacity and receipt of medical advice from the Consultant Psychiatrist.
The Respondent submits that in March and May 2022 unsuccessful attempts were made to return Mr Price to work in his pre-injury duties. In December 2022, the Respondent submits a further unsuccessful attempt to return Mr Price to work was made through IPAR Rehabilitation.
To assess Mr Price’s capacity to return to work, in June 2023 the Respondent sent a list of independent medical practitioners for Mr Price to select from. As Mr Price did not respond, the Respondent arranged an appointment with Dr Scott Hall, Consultant Psychiatrist and independent registered practitioner.
On 2 August Mr Price attended the appointment. A report was subsequently sent to the Respondent and some weeks later sent to Mr Price. The Respondent determined on the medical advice of Dr Hall that Mr Price cannot perform his role. A show cause process was then commenced resulting in the dismissal.
The letter sent to Mr Price on 14 September 2023 asked him to show cause why his employment should not be dismissed. The CPSU requested an extension to reply which was granted. On 13 October 2023, the CPSU replied raising matters unrelated to Mr Price’s capacity to perform his role as PCO at the Mildura police station.
On 27 October 2023, the Respondent wrote to the CPSU providing a further time until 2 November to respond to the show cause letter. Instead of a response, a further extension was requested by the CPSU because of the unexpected unavailability of Mr Price’s treating psychologist. This extension was granted by the Respondent. Before deciding to terminate Mr Price’s employment, the Respondent submits that it considered the responses from the CPSU and potential redeployment options at another location.
Ms Yool gave evidence regarding her role in the show cause process and termination of employment of Mr Price. She contends that the Respondent met its 52 weeks legal obligations under WorkCover to provide suitable duties and accident make-up pay. In June 2023 Mr Price was instructed to attend an independent medical examination, but it was not until 2 August 2023 that Mr Price attended a medical appointment with the independent medical practitioner. She gave evidence of the matters taken in consideration from Dr Hall’s medical report dated 15 August 2023. Ms Yool states that the material relied on for her decision to dismiss Mr Price were the following:
· The extended absence from work since 8 February 2022,
· Dr Hall’s prognosis that Mr Price cannot perform his role because of his anxiety and its impact on his concentration and his lack of confidence to deal with situations due to the prolonged absence,
· In response to the show cause letter no additional medical information was provided regarding his capacity to perform the inherent requirements of the job in the foreseeable future, and
· Despite not having an express obligation to redeploy Mr Price, the Respondent considered the closest police station in Swan Hill which was 2.5-3 hours away was not reasonable.[3]
Ms Yool states that she did not consider the report of Mr Price’s treating psychologist as it was provided after the show cause process.
Inspector Daron Hulls[4] gave evidence of his recollections while Mr Price’s superior in Mildura from September 2019. As Officer in Charge, Inspector Hulls recalled the events leading to the conduct allegations made against Mr Price and his behaviour displayed in the workplace. He further addressed some of the allegations of bullying and victimisation made by Mr Price including the removal of duties of rostering PCOs. Inspector Hulls gave evidence that Mr Price believed he was targeted by uniformed police officers despite evidence to the contrary, he further gave evidence of attempts made to return Mr Price to work and following a phone call, Mr Price instructed to only be contacted by email which was honoured from December 2021.
Dr Scott Hall, Psychiatrist and independent medical specialist gave evidence of his psychological assessment and report on Mr Price’s capacity to perform his job. In preparing his report, he states that he had permission and did contact Mr Price’s medical practitioner, and despite numerous attempts to contact his psychologist he was unsuccessful. He states that he formed the view that Mr Price was not able to fulfil the duties of a PCO as per the job description on the basis that his ability to assess persons in custody was impaired, his anxiety symptoms and prolonged avoidance of interpersonal situations and low self-esteem was not conducive to taking control of unpredictable situations. He further gave evidence that when under stress Mr Price ‘s concentration and attention are impaired, but the main limiting factor to return to work is his relationship with colleagues and his psychological response to them. Based on the assessment, Dr Hall concluded that Mr Price could not return for six months and in the longer term (9-12 months) he should be able to make a graded return. However, to meet these timeframes he added that Mr Price required intensive psychological therapy together with his own steps to avoid harmful use of alcohol. He observed as a relevant factor Mr Price’s unwillingness to accept steps that he himself could take to improve his situation. Dr Hall did include the advice that mediation may assist to tackle the conflict that Mr Price perceived, but he made clear that this would be of benefit only if Mr Price engaged with his other conclusions (intense therapy and personal steps to improve his situation). Dr Hall also considered the impact of relocation and appointment of a mentor but concluded that Mr Price was unable to return to work, as there was a significant likelihood that if he returned to Mildura Police Station that his mental health would deteriorate due to his conflicted relationship with his colleagues.[5]
Based on the medical advice before it, the Respondent submits that the termination of employment was valid, it was not harsh, and it was justified and reasonable. The Respondent rejects reinstatement and mediation as an outcome sought by Mr Price in these proceedings.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, I must take into account:
“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.”
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[6]
Consideration
Whether there was a valid reason
The Respondent submits that Mr Price was absent from work on WorkCover from 8 February 2022 due to anxiety and/or depression until his dismissal on 19 December 2023 (a period of approximately 22 months). It submits that the medical evidence supports the view that Mr Price would not be able to return to his duties in the Mildura Police station in the foreseeable future.[7] In making its decision it relies on the evidence of Dr Hall, that Mr Price lacked the medical capacity to return to work.
Mr Price contends that the decision to terminate his employment on the basis of capacity is not valid. In relation to Dr Hall’s report, Mr Price contends that the advice is that with mediation and medical treatment he could return to work but the Respondent ignored this advice as it also allegedly failed to accept responsibility for his injury.
The medical evidence on which the Respondent relied was extensive and not as simplistic as contended by Mr Price. In addition, in proceedings, Mr Price relied on a report from his treating psychologist to contend that the purported reason for dismissal was not valid because mediation was an appropriate course of action which the Respondent did not consider. In relation to the report that Mr Price relies, I make the following observations:
· The report from Debra Deacon, psychologist is dated 1 January 2024, this is well after the show cause process and after the dismissal of Mr Price,
· The report is in response to Dr Hall’s report dated 15 August 2024, of which there is agreement with Dr Hall’s diagnosis except in two respects. Ms Deacon states that Mr Price no longer uses alcohol as a coping mechanism, and she proposes an alternative diagnosis of Social Anxiety Disorder.
· Ms Deacon further explains that Mr Price avoids social situations, and his anxiety arises from mistrust of his colleagues rather than working with the prisoner population.
· Ms Deacon did not respond to Dr Hall’s contact during his diagnosis of Mr Price on 2 August 2023.
· Ms Deacon did not give evidence in these proceedings.
· Even if Ms Deacon’s diagnosis is correct, her statement is that Mr Price maintains a distrust of his colleagues and police management which is a limitation to his return to work. In terms of the suggestion that he has no issue with the prisoner population, she does not address in her short report the consequences of Mr Price’s anxiety in dealing with potentially volatile and unpredictable situations that may arise and in situations where he does not perform his duties in isolation from his coworkers.
· Ms Deacon’s report does not challenge the medical evidence on which the Respondent relied when it determined that Mr Price was not likely to return to work in the foreseeable future.
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well-founded.”[8] Further it is the role of the Commission to consider the employer’s reasoning to determine whether that reasoning is valid.[9]
On the evidence, it is reasonable to conclude that the Respondent dismissed Mr Price due to his incapacity to return to work in the foreseeable future. The basis for this decision is supported by the report of Dr Hall. Dr Hall presented to give witness evidence which was consistent with his report of August 2023. No other evidence was before the Respondent to challenge the diagnosis of Dr Hall at the time it was considering whether it ought to dismiss Mr Price. Also absent was persuasive evidence in support of Mr Price’s submissions that the Respondent had other reasons to dismiss him. Of further relevance was the witness evidence from Mr Price that his certificates of capacity that he continues to submit to the insurer state that he has no capacity to perform his duties. This demonstrates that despite the long absence from work that there has been no change to Mr Price’s incapacity to perform the inherent requirements of his role at the time of the hearing. Accordingly, I find that the Respondent had a valid reason to dismiss Mr Price after an absence of some 22 months.
Whether the person was notified of that reason
It is not contested that Mr Price was notified of the reason for dismissal, that being his capacity to perform the inherent requirements of his duties as PCO at the Mildura Police Station, despite his challenge that it was a valid reason.
The Respondent commenced a show cause process after receipt of the independent medical examination report. The show cause process clearly communicated the preliminary reasons being considered for dismissal in the context of the medical advice. While there may have been a delay in providing Dr Hall’s report to Mr Price,[10] he nevertheless had the benefit of the report together with the opportunity to consider it (for a period of at least 3 months), well before any final decision was made by the Respondent. For these reasons, this consideration does not weigh in Mr Price’s favour.
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[11]
Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[12]
Conduct is not a relevant consideration, rather the reason is based on capacity to perform the job. Mr Price submits that he was not given a reasonable opportunity to respond, although while cross examined he conceded that he was given an opportunity to respond and that extensions to the show cause process was granted three times. The show cause process commenced on 31 August 2023, with further correspondence on 14 September 2023 advising Mr Price of the Respondent’s proposal to terminate his employment. The reason for the proposal to dismiss was clear and unambiguous and a copy of Dr Hall’s report was sent to Mr Price. Following correspondence from the CPSU on 28 September an extension to the show cause process was made until 13 October 2023. Then on 13 October instead of a response on 13 October other information from the CPSU was provided to the Respondent. In consideration of this response, the Respondent offered a further extension until 1 November 2023. Subsequently a further extension request was granted after the CPSU requested an opportunity for Ms Deacon to provide a response to Dr Hall’s report on her return after an unexpectedly absence.
While giving evidence Mr Price stated that he regularly met with Ms Deacon at least monthly or every 2-3 weeks. Despite the possession of Dr Hall’s report and the show cause correspondence, no reasonable explanation was offered as to why no response was made to the show cause letter proposing termination of employment. Ultimately no response was received from either the CPSU, Ms Deacon or Mr Price by the agreed due date in November which prompted the letter of termination on 19 December 2023. The show cause process lasted some four months, which is not an unreasonable period. Rather the period was generous for a response to the show cause why the Respondent ought not terminate Mr Price’s employment.
Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
There is no dispute that Mr Price accessed support and there is no evidence of a denial to have a support person.
If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
This consideration is not relevant in this matter.
The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
Size of the enterprise had no impact on the process. Evidence of all correspondence was tendered into evidence which demonstrates a formal and generous period in the procedure to effect the dismissal. Further evidence of Ms Yool and Inspector Hulls in relation to process was consistent with the documentary evidence and of persuasive weight concerning fair process.
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
The Respondent has dedicated human resource specialists therefore this consideration is not relevant to this matter.
Any other matters that the FWC considers relevant
Mr Price raised a number of other grievances including his criticism that the Respondent did not genuinely engage in a return-to-work process, that it did not conduct welfare checks and uniformed police officers delivered correspondence by hand to cause embarrassment or distress among other matters. Each of these issues were addressed during the proceedings and either there was a valid explanation for the conduct, I do not consider relevant to the above considerations or the conduct carries little weight to effect either the findings regarding valid reason or in consideration of fairness in the procedural process.
Harsh, unjust or unreasonable?
I have considered each matter specified in s.387, against the evidence before me, I have considered whether the dismissal was harsh, unjust or unreasonable. I have weighed up all of the circumstances of the case.
I have found the Respondent had a valid reason, the evidence of incapacity to perform the inherent requirements of the job into the foreseeable future was compelling. There was no evidence that the Respondent unfairly dismissed Mr Price. The evidence in respect of each of the requirements under s.387 did not weigh in Mr Price’s favour.
I am satisfied that all of the circumstances do not weigh in favour of finding that the dismissal was harsh, unjust or unreasonable.
Conclusion
Having considered all the relevant factors, I am not satisfied that the dismissal was harsh, unjust or unreasonable. I am not satisfied that Mr Price was unfairly dismissed within the meaning of s.385 of the Act.
As the dismissal was not unfair, I am not required to consider remedy.
Mr Price’s application for an unfair dismissal remedy is therefore dismissed.
COMMISSIONER
Appearances:
R Price, Applicant
S Knight with K Bhinder, C Logue, S Dhanasheker and L Piscioneri for the Respondent
Hearing details:
2024.
Melbourne (hybrid):
July 1, 2
Final written submissions:
Applicant, 6 June 2024
Respondent, 30 May 2024
[1] Applicant’s Outline of Argument, [3c] and [6d].
[2] Applicant’s Response to the Respondent’s Outline of Submissions.
[3] Exhibit R1, Witness Statement of Ms J Yool, [30].
[4] Exhibit R2, Witness Statement of Inspector D Hulls.
[5] Exhibit R3, Witness Statement of Dr Hall; Oral evidence of Dr Hall.
[6] Sayer v Melsteel Pty Ltd(2011) FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd [2002] AIRC 317, [69].
[7] Respondent’s Outline of Submissions, [12] – [13].
[8] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[9] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
[10] Mr Price gave evidence that receipt of Dr Hall’s report was delayed by 16 days. Ms Yool confirmed the report was sent following the appropriate authorities were secured.
[11] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 75.
[12] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
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