Shobhana Sirdesai v Eastern Health

[2015] FWC 8691

[2015] FWC 8691

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shobhana Sirdesai
v
Eastern Health
(U2015/9908)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 18 DECEMBER 2015

Application for relief from unfair dismissal.

[1] Mrs Shobhana Sirdesai was employed by Eastern Health as a sleep scientist from 26 August 2012. She says her employment was terminated unfairly on 14 July 2015. Eastern Health submitted that as Mrs Sirdesai had been absent from work for over seven months, the dismissal was not unfair.

Background

[2] On 30 September 2014, a complaint was received from a patient about Mrs Sirdesai. 1 Mrs Sirdesai was advised of this complaint on 16 October 2014 and was required to attend a meeting with Dr Denise O’Driscoll, her supervisor and Ms Marnie McKiernan, a Human Resources Advisor with Eastern Health. At all times Mrs Sirdesai disputed the basis of the complaint.

[3] On 27 October 2014, Mrs Sirdesai was issued with a first written warning. 2 Mrs Sirdesai sent an email to Ms McKiernan on 29 October 2014 and objected to receiving the letter of warning and asked Ms McKiernan to investigate the incident.3 Mrs Sirdesai asked Ms McKiernan to organise another meeting with her and Dr O’Driscoll to watch the video; have a look at the original paperwork; and the complaint. She also asked to meet with the complainant. She made a number of complaints about Dr O’Driscoll and advised that she was finding work very stressful and she was concerned for her future.

[4] On 13 November 2014, Ms McKiernan advised Mrs Sirdesai that she had reviewed the warning and was satisfied that procedural fairness had been afforded to her. Ms McKiernan did not advise Mrs Sirdesai that she had been involved in the decision making and had drafted the letter of warning to Dr O’Driscoll to sign. 4 Mrs Sirdesai was advised that Ms McKiernan did not consider that Dr O’Driscoll was managing her in an unreasonable manner, but she was advised that Eastern Health had a grievance procedure that was available on the intranet. She was advised that she should read it and follow it if she had concerns. Ms McKiernan advised Mrs Sirdesai that the warning would remain on her file for twelve months and if there was no further disciplinary action in that time, the warning would lapse and be removed from the file. Ms McKiernan said that she [trusts] that this closes this matter.”5

[5] Mrs Sirdesai formed the view that she was being told that the issue of the warning was closed and that she could use the grievance procedure in relation to her other complaints about Dr O’Driscoll. 6

[6] On 15 November 2014, Mrs Sirdesai went to see Dr Prakash Kamath a consulting psychiatrist. Dr Kamath issued a letter in which he advised that Mrs Sirdesai was suffering anxiety in the context of workplace harassment and he advised that:

“Given the matter has not yet been fully resolved, continuing stress may increase her anxiety and hence I support Mrs Sirdesai taking some time off work.” 7

[7] On 16 November 2014, Mrs Sirdesai commenced leave and did not return to work.

[8] On 18 November 2014, Mrs Sirdesai sent an email to Ms McKiernan in which she advised that she did not consider that the matter had been resolved in a fair and just manner. It is clear from this email that Mrs Sirdesai understood that Eastern Health had closed her complaint about the letter of warning. She advised that she was anxious about returning to work as she believed there would be a reoccurrence of the unfair and unjust treatment and advised that she planned to take the issue to Fair Work Commission for resolution. She requested that she be allowed to take annual leave and if necessary leave without pay, until the Commission delivered the decision. She enclosed a medical certificate to support her leave application. 8 The medical certificate she referred to was the letter issued by Dr Kamath.

[9] Mrs Sirdesai completed a leave application form on the same date and advised that “she was applying for annual leave on medical grounds. Medical certificate enclosed. Once annual leave balance is used, I request to continue as leave without pay.” In relation to the resumption date she stated that it would be advised. 9

[10] On 20 November 2014, Ms McKiernan sent an email to Mrs Sirdesai acknowledging her intention to escalate this matter to Fair Work. Ms McKiernan acknowledged that this was her right. Ms McKiernan said she had considered the request for unpaid leave and annual leave and that “as [she was] accessing leave due to medical grounds you will need to exhaust all of your sick leave entitlements prior to accessing any annual leave. Unpaid personal leave will only be considered once all other paid leave entitlements have been fully utilised. The medical certificate you have provided is not able to be accepted as evidence of your absence from work. The certificate cannot be open ended, it needs to state the date the doctor expects you will be fit to resume work. The certificate also needs to state that you are actually unfit to undertake your normal duties. Please arrange for a revised medical certificate to be provided asap to support your continued absence.” 10

[11] Ms McKiernan further advised that there had been another patient complaint but that they would provide details of that complaint and an opportunity for her to respond when she was able to return to work. 11

[12] Mrs Sirdesai replied on 21 November 2014 stating that she was accessing her annual leave because she felt victimised and that she did not have “a general medical condition that prevent[ed] [her] from working in general but it is related completely to a specific workplace environment. Therefore, I am asking for annual leave. I would request that you honour this.”

[13] Mrs Sirdesai advised that she had taken steps to resolve the dispute by accessing Fair Work. She said “it is reasonable to assume that the once matter is resolved at Fair Work, I will return to work.” She advised that it is not possible for the doctor to indicate when she would be able to return to work. In relation to the subsequent complaint Mrs Sirdesai expressed her suspicion about the timing of the complaint and advised that Eastern Health could forward the details of that complaint to her. She further advised that she would be willing to attend a meeting to discuss the complaint but asked the meeting be recorded. 12

[14] On 26 November 2014, Ms McKiernan replied that, given she had provided a medical certificate and that she was applying for annual leave on medical grounds, she believed what she needed to access was personal leave. Ms McKiernan accepted that as her unfitness to work only related to circumstances at Eastern Health she was able to work in her other position at Monash Health while she was on sick leave from Eastern Health. However she advised that a medical certificate needed to be provided to ensure there were no issues with her pay. She advised that given the reasons set out in the medical certificate she did not consider it appropriate to meet with her while she was absent from work. She further advised that any meeting would not be recorded. 13

[15] Mrs Sirdesai replied on 1 December 2014 and stated that Dr Kamath was clear that she could not be medically unwell at one place and not another. She reiterated her request to be placed on annual leave. 14

[16] On 4 December 2014, Dr O’Driscoll sent Mrs Sirdesai a letter outlining three patient complaints. Dr O’Driscoll advised that the complaints related to matters over the last 16 months but the patients had only recently complained. 15

[17] On 29 December 2014, in response to a complaint by Mrs Sirdesai, WorkSafe attended the site to investigate her complaint that internal procedures were not being followed and that human resources did not view all the evidence. The WorkSafe inspector did not substantiate the complaint. 16

[18] On 13 January 2015, Ms McKiernan sent Mrs Sirdesai a letter 17 in which she noted that no dispute had been lodged with the Fair Work Commission; a complaint had been lodged with WorkSafe which had dismissed the complaint; and that she had exhausted all her paid leave entitlements and was currently on unpaid personal leave.

[19] She was told that the situation could not go on indefinitely. She was asked to advise Eastern Health by 16 January 2015 about when she planned to lodge her application with the Fair Work Commission about her continued absence from work. She was advised that if she was still medically unfit to attend work she was required to provide a new medical certificate which clearly stated the dates she was unfit to attend work.

[20] On 19 January 2015, Mrs Sirdesai sent an email advising that she was currently in India and that she would not be able to reply until she returned to Australia. 18 On 30 January 2015, Mrs Sirdesai advised that she had returned to Australia but that she was making contact with WorkSafe before she decided her next actions.19

[21] On 10 February 2015, Ms McKiernan sent Mrs Sirdesai a further email advising that she had not provided a valid medical certificate to support her continued absence from work. She was further advised that Eastern Health had not approved her unpaid leave because it was not supported by a valid medical certificate. She was directed to advise them of her intentions and the time frame around a return to work and any new medical certificate by 13 February 2015. Alternatively she was told that it was Eastern Health’s expectation that she return to work. She was told that if she did not, Eastern Health would need to consider her ability to meet the requirements of her ongoing employment contract. 20

[22] On 13 February 2015, Mrs Sirdesai advised that she was fearful of returning to work with the possibility of unfair harassment continuing. Mrs Sirdesai invoked the internal dispute resolution process because she was dissatisfied with the disciplinary action taken by Eastern Health. She asked Ms McKiernan to invoke the dispute resolution process on an urgent basis. 21 Mrs Sirdesai sent a copy of that email to Mr Dean Jones.

[23] That request was repeated on 20 February 2015. 22

[24] On 25 February 2015, Ms McKiernan replied and attached a copy of the Eastern Health grievance policy and told her that she needed to direct her grievance to Mr Jones and Ms Julie Lucid. She further directed Mrs Sirdesai to either return to work or produce a valid medical certificate to support her absence. Further she was advised that Eastern Health required a report from her treating psychiatrist which detailed the timeframe in which she expected her to have a capacity to perform the inherent requirements of the position. This information was required by 3 March 2015. She was further advised that if she did not do either of those things and continued to be absent without approval she was required to provide a written response to show cause why she believed Eastern Health should not terminate her employment. This was required within 14 days. 23

[25] On 2 March 2015, Mrs Sirdesai sent an email to Ms McKiernan, Mr Jones and Ms Lucid invoking the dispute resolution procedure. She further advised that had Eastern Health provided her with appropriate alternative work during this time she could have continued to work. 24

[26] On 3 March 2015, Ms Lucid emailed Mrs Sirdesai and advised that she was arranging to meet with Mr Jones so that an independent review of the matter could take place. She was advised that she would receive formal notification of the outcome of the review. 25

[27] On 5 March 2015, Mrs Sirdesai advised Ms Lucid that she did not consider an internal review to be the equivalent of the grievance/dispute resolution procedure. However she did indicate that she would like to be present during the meeting proposed by Ms Lucid. She also said that Dr O’Driscoll needed to be present at the meeting as well. 26

[28] On 17 March 2015, Mrs Sirdesai sent an email to Ms Lucid noting she had not received any response about the formal internal resolution process/grievance procedure. Again on 30 March 2015, Mrs Sirdesai complained about the delay and asked that while she awaits the internal dispute resolution process that she be allowed to do appropriate alternative work. 27

[29] On 14 April 2015, Mrs Sirdesai lodged a complaint with VCAT.

[30] On 24 June 2015, Ms McKiernan sent Mrs Sirdesai a letter in which she was invited to attend a disciplinary meeting on 2 July 2015 to respond to allegations that she had been absent from work for an extended period on unauthorised leave and that she had failed to either return to work as directed or to provide a valid medical certificate to support her ongoing absence. She was told that if the allegation was substantiated her employment may be terminated. Accordingly she was invited to provide a response to show cause why she believed that Eastern Health should not terminate her employment on the basis of the alleged conduct. If she did not wish to attend the meeting she was invited to provide a response in writing by 2 July 2015 and she was advised that if she failed to do either of these two options then Eastern Health would still determine the matter and that may lead to the termination of her employment. 28

[31] On 1 July 2015, Mrs Sirdesai replied to that correspondence and relied on the medical certificate provided by Dr Kamath. She further noted that the dispute resolution procedure should have been activated within ten days of her complaint and that this had not happened despite numerous requests. She contended that the delays in her return to work were caused by Eastern Health’s refusal to follow the procedures. She proposed that they await the decision of VCAT. 29

[32] On 13 July 2015, Eastern Health terminated Mrs Sirdesai’s employment because she had been absent from work for over seven months without a valid medical certificate and because she had refused to return to work without a reasonable explanation.

The conduct of the hearing

[33] Mrs Sirdesai raised a number of issues about the decision to issue her with the warning issued on 16 October 2014 and the events that led to the warning. After a discussion with the parties Mr Harrington, Counsel for Eastern Health, advised that he was instructed to put the following:

“Accepting as we say the parties ought, or particularly the applicant ought, that there was a Chandler mission complaint made, which is Court book page 140 – I don’t think its seriously contested that that didn’t occur, as in it did occur – and accepting that the applicant had the allegations from the Chandler complaint put to her in the letter dated 16 October 2014, which is Court book page 142, and was given an opportunity to respond to them – in that context, Eastern Health concedes for the purpose of this proceeding that a first warning ought not to have issued as a disciplinary outcome arising out of the Chandler patient complaint. It will call no evidence on that issue.” 30

[34] Dr Shreerang Sirdesai, on behalf of Mrs Sirdesai, indicated that she was happy to proceed along those lines. Accordingly evidence which had been filed in relation to events that occurred prior to the letter of warning was not before me.

[35] I should note that it was agreed that I would first consider whether the dismissal was unfair and a separate hearing if necessary would consider remedy.

Was the termination of employment harsh, unjust or unreasonable?

[36] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following:

s387(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);

[37] In this matter Eastern Health rely upon Mrs Sirdesai’s conduct in failing to provide a medical certificate or to return to work. In determining whether there was a valid reason for the termination of Mrs Sirdesai’s employment, I must be satisfied that the conduct occurred.

[38] Dr Sirdesai submitted that while the direction given by Eastern Health may have been lawful, it was not reasonable having regard to the context in which it occurred. 31

[39] I accept the submissions of Mrs Sirdesai that Eastern Health did not follow the dispute resolution procedure and/or grievance procedure in either its policy or enterprise agreement. While it finally acknowledged her grievance in March 2015 it clearly was not acted upon. Ms Lucid who responded to the grievance by advising that she was organising a further investigation was not following either procedure. After that advice no further action was taken by Eastern Health.

[40] The grievance procedure 32 provides for a stepped procedure which sees the dispute escalated from a local level to more senior management. Whilst not express, it envisages a meeting between relevant personnel to see if the dispute can be resolved. If it is not resolved by this process, it may be referred to the appropriate reference body for decision which must be accepted by the parties. Until the grievance is determined, work must continue normally in accordance with the custom or practice existing before the grievance arose while discussions take place. Health and safety matters are exempted from this final requirement.

[41] The enterprise agreement provides for a disciplinary procedure. Any dispute over the disciplinary procedure is dealt with in accordance with the dispute settling procedure in the agreement. This procedure also provides for a stepped process. It provides that if a dispute or grievance has been referred to the internal dispute or grievance process then it must be dealt with in accordance with that process but if it is not settled by that process it can be dealt with under the dispute resolution procedure. If a dispute is not able to be resolved at the workplace it may be referred to the Fair Work Commission for conciliation and if that does not resolve the dispute it may be arbitrated by the Commission.

[42] In this matter Eastern Health failed to follow its own policies and its own agreement. Ms McKiernan explained that there was no action taken after Ms Lucid’s email because there was a change of personnel and she was only dealing with Mrs Sirdesai’s absence. This is unacceptable. Eastern Health is not a small business. One of its employees had invoked its grievance procedure. That it chose to focus on the disciplinary consequences which flowed from Mrs Sirdesai’s absence from work rather than addressing the underlying cause of her absence was unacceptable.

[43] In doing so, it contributed to the situation that Mrs Sirdesai found herself in.

[44] However Mrs Sirdesai is not blameless in this matter. I accept that Mrs Sirdesai initially felt she could not invoke the grievance procedure about the letter of warning because she understood that Eastern Health had closed that matter. However the email sent by Ms McKiernan did not say she had closed the matter. She said she trusted it closed the matter.

[45] Mrs Sirdesai was aware of and had told Eastern health that she was going to take the matter to the Fair Work Commission. Unfortunately she did not. She was given legal advice in February 2015 that she could use the grievance procedure 33 however when Eastern Health failed to comply she did not take the grievance further. Even when advised clearly that her employment was at risk she did not escalate the dispute.

[46] Mrs Sirdesai was directed on a number of occasions to either provide a medical certificate or return to work. An employee is required to attend work unless the employee is absent on approved paid or unpaid leave. After Mrs Sirdesai exhausted her sick leave, she was on unauthorised leave. I accept that Mrs Sirdesai applied for annual leave and relied upon Dr Kamath’s letter to support being granted annual leave despite not giving the required notice. However her application for annual leave was not approved and she was placed on personal leave. She had also sought leave without pay until the dispute was resolved and that was also not approved.

[47] I accept Mrs Sirdesai’s submissions that she could not be required to provide a medical certificate if she was not unwell. I do not accept her submission that her medical practitioner was not able to provide a certificate that advised when she would return to work. It is clear that Mrs Sirdesai only saw Dr Kamath once. She did not return to him or her general practitioner when Eastern Health sought a further certificate. Eastern Health were entitled to request further medical evidence to support Mrs Sirdesai’s absence.

[48] Mrs Sirdesai gave a number of reasons for not providing an additional medical certificate. She submitted that she could not ask a doctor to predict when she would be fit for work. I did not accept this submission. Medical practitioners are able to give medical certificates with an end date which they then review and extend if necessary. So much was accepted by Dr Sirdesai.

[49] Mrs Sirdesai also gave evidence that it was not appropriate to have a medical certificate for one workplace when she was fit to perform work at her other workplace. Mrs Sirdesai did not consult her doctors again so it is difficult to understand how she formed a view that she could not have a medical certificate for one job whilst attending work at another job. Be that as it may, any confusion about that was cleared up when Eastern Health advised her that she could be unfit for her position at Eastern Health and fit for her position at Monash Health but she still needed to provide an appropriate medical certificate. Mrs Sirdesai did not provide such a medical certificate.

[50] Mrs Sirdesai also relied upon Dr Kamath’s letter. I do not accept that this was a medical certificate. Dr Kamath was asked to provide a letter to support Mrs Sirdesai’s application for annual leave. He was not asked to provide a medical certificate. Even if it was a medical certificate, Eastern Health was entitled to ask for additional information. Given that Mrs Sirdesai was not medical unfit to perform her duties, the non-provision of the medical certificate did not provide Eastern Health with a valid reason to terminate Mrs Sirdesai’s employment.

[51] However in these circumstances, given Mrs Sirdesai’s evidence that she was fit to return to work, that was not the only direction given to Mrs Sirdesai. If she was not medically unfit she was directed to return to work. Mrs Sirdesai did not return to work because she felt that “subsequent unfair allegations would be raised against her and this would lead to the termination of her employment. 34

[52] It was submitted the direction to return to work was lawful but not reasonable. I do not agree.

[53] Eastern Health was entitled to direct Mrs Sirdesai to return to work if she was medically fit to do so. It was not obliged to give her leave without pay until her dispute with Eastern Health was resolved.

[54] Mrs Sirdesai advised that she was anxious about continuing to work but there was no evidence or submission that Mrs Sirdesai had a reasonable concern about an imminent risk to her health or safety. 35 Mrs Sirdesai was required by the enterprise agreement and the grievance procedure to continue to perform work. Her failure to comply with that direction provided Eastern Health with a valid reason to terminate her employment.

s387(b) whether Mrs Sirdesai was notified of that reason;

[55] Mrs Sirdesai was notified of the reason for her dismissal prior to the decision being taken.

s387(c) whether Mrs Sirdesai was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[56] Mrs Sirdesai was given an opportunity to respond to the reasons.

s387(d) any unreasonable refusal by the employer to allow Mrs Sirdesai to have a support person present to assist at any discussions relating to dismissal;

[57] Mrs Sirdesai was not denied the opportunity to have a support person.

s387(e) if the dismissal related to unsatisfactory performance by the person—whether Mrs Sirdesai had been warned about that unsatisfactory performance before the dismissal;

[58] The dismissal did not relate to unsatisfactory performance.

s387(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;

[59] The size of the enterprise did not impact on the procedures followed in effecting the dismissal.

s387(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;

[60] Eastern Health had dedicated human resource management.

s387(h) any other matters that the Fair Work Commission considers relevant.

[61] It was submitted that Eastern Health created a situation where Mrs Sirdesai faced a choice between being sacked for not coming to work or being terminated for professional misconduct. 36 I do not accept that this was the choice Mrs Sirdesai faced. I have accepted that Eastern Health contributed to what Mr Harrington described as a stand-off. I consider that given that Eastern Health is a large public health institution with dedicated human resources personnel, that it should have followed the grievance procedure and its failure to do so in large part created the situation Mrs Sirdesai found herself in. I have had regard to this in assessing whether the termination of Mrs Sirdesai was harsh.

Conclusion

[62] Eastern Health had a valid reason to terminate Mrs Sirdesai’s employment because she refused to follow a lawful and reasonable direction to perform work. She was afforded procedural fairness.

[63] I accept that the dismissal was not unreasonable or unjust.

[64] I am unable reach that conclusion that the dismissal was harsh. In the end Mrs Sirdesai was absent from work since 16 November 2014 without authorisation. She was not willing to perform work until her dispute was resolved. That position was contrary to the enterprise agreement. She was not entitled to adopt that position unless there was an imminent risk to her health and safety. A fear that there would be unsubstantiated complaints is not enough. She was obliged to attend work and if such complaints were made she would have had remedies under her enterprise agreement. I accept her submission that this matter may have been resolved if the dispute resolution procedure had been followed, I do not consider that makes the dismissal was harsh.

[65] I find that Mrs Sirdesai was not unfairly dismissed and therefore her application is dismissed.

DEPUTY PRESIDENT

Appearances:

S. Sirdesai for the Applicant.

N. Harrington for the Respondent.

Hearing details:

2015.

Melbourne:

19 and 20 December.

 1   Court Book at page 140

 2   Ibid at page 146

 3   Ibid at page 195

 4   Ibid at page 160

 5   Ibid at page 200

 6   Transcript PN 929

 7   Court Book at page 204

 8   Attachment SS25 in Applicant Submissions

 9   Court Book at page 212

 10   Ibid at page 206

 11   Ibid at page 214

 12   Ibid at pages 213-214

 13   Ibid at pages 212-213

 14   Ibid at page 212

 15   Ibid at page 220

 16   Ibid at page 222

 17   Ibid at page 226

 18   Ibid at page 228

 19   Ibid at page 233

 20   Ibid at page 232

 21   Ibid at page 232

 22   Ibid at page 231

 23   Ibid at page 239

 24   Ibid at pages 236-238

 25   Ibid at page 236

 26   Ibid

 27   Ibid at page 242

 28   Ibid at page 260

 29   Ibid at pages 261-262

 30   Transcript PN 335

 31   Ibid at PN 1528

 32   Court Book at page 180

 33   Transcript PN 668

 34   Ibid at PN 1384

 35   Court Book at page 287 clause 8.2.2

 36   Transcript PN 1699

Printed by authority of the Commonwealth Government Printer

<Price code C, PR575102>