Sophia (Marttea) Baker v Bodhicorp Pty Ltd ATF the Gadens Service Trust No 2 T/A Gadens Lawyers Brisbane
[2024] FWC 2503
•16 SEPTEMBER 2024
| [2024] FWC 2503 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sophia (Marttea) Baker
v
Bodhicorp Pty Ltd ATF The Gadens Service Trust No 2 T/A Gadens Lawyers Brisbane
(U2018/10767)
| DEPUTY PRESIDENT LAKE | BRISBANE, 16 SEPTEMBER 2024 |
Application for an unfair dismissal remedy – failure to follow lawful and reasonable direction – independent medical examination – failure to attend – dismissal not unfair – application dismissed.
The proceedings of this matter have been explained in [2024] FWC 924. Since then, Ms Marttea Baker (the Applicant) has submitted the following:
162 pages for her written submissions along with 178 documents in support of her submissions on 7 May 2024
A medical certificate dated 7 May 2024 regarding her capacity
158 pages for her written submissions in reply on 8 July 2024
16 pages in response to the hearing transcript on 28 August 2024
The Applicant also sought an order to produce documents from the Respondent as to the contents of the Independent Medical Examination (IME). This was rejected as they were not relevant to the reasons for dismissal. The Applicant sought a confidentiality order. Although the confidentiality order is rejected, the Applicant’s medical condition will not be disclosed in the decision.
The matter was listed for an in-person hearing on 22 April 2024. The Applicant did not attend, alleging incapacity. Mr Ross Wilson appeared for Gadens Lawyers Brisbane as the Respondent (the Respondent). I have accepted and considered all the materials provided.
Section 396 of the Act requires that I be satisfied of four matters before considering the merits of the Applicant’s application. I am satisfied that the Applicant made her application within the 21-day period required by s.394(2) of the Act, that she was a person protected from unfair dismissal, that her dismissal was not a case of genuine redundancy and that the Respondent is not a small business to whom the Small Business Dismissal Code applies.
Background
The Applicant was employed as a Legal Secretary since 2006 with MacGillivray’s law firm. This firm was merged with the Respondent on 2 April 2013. The Respondent had concerns regarding the Applicant’s ability to perform her inherent requirements of the role.
The Applicant’s last working day with the Respondent was on 9 June 2017. The Applicant continually provided medical certificates until her termination date on 26 September 2018.
Mr Christopher Spence (Manager, People and Performance) with the Respondent followed up with the Applicant’s condition on 31 January 2018.
Mr Spence also followed up on 23 April 2018 and 3 May 2018 requesting details of the Applicant’s treating medical specialist to produce a consent form allowing the Respondent to speak with the specialist regarding Ms Baker’s injury. The Applicant did not respond to these requests.
On 12 June 2018, the Respondent requested Ms Baker to attend an IME on 19 June 2018 at the Respondent’s expense. The Applicant did not confirm she would attend, and this was cancelled.
On 18 June 2018, the Respondent requested Ms Baker to attend an IME on 27 June 2018 at the Respondent’s expense. The Applicant was required to confirm on 21 June 2018. The Applicant did not attend.
On 26 June 2018, the Respondent requested the details of the Applicant’s treating medical professionals to draft a consent form. Dr Stuart Reece’s details were provided. Dr Reece had been providing Ms Baker with medical certificates in adjourning this matter. The Applicant did not provide a response.
On 10 July 2018, the Respondent requested Ms Baker to attend a medical appointment with her treating medical practitioner, Dr Reece on 12 July 2018, despite not being a medical specialist. The Respondent requested Dr Reece to undertake the IME of the Applicant, providing the list of relevant questions.
The Applicant did attend the IME on 12 July 2018. However, the IME was not completed. Dr Reece requested additional information from the Respondent about the physical requirements of the Applicant’s duties.
On 13 July 2018, the Respondent was not satisfied with the outcome of Dr Reece’s assessment, stating that Ms Baker would need specialist assessment and was directed to attend an IME on 25 July 2018. The Applicant was warned that the failure to follow this direction could result in disciplinary action.
On 24 July 2018, the Respondent paid Dr Reece’s invoice for Ms Baker’s examination even though it was incomplete as the Applicant did not provide consent for discussion or release regarding her diagnosis.
The Applicant was warned via email that she was to attend an IME scheduled on 25 July 2018.
On 27 July 2018, the Respondent provided the Applicant a written warning for failure to follow reasonable management directions in relation to non-attendance at 3 IME appointments. The Applicant was directed to attend an IME on 10 August 2018 and was requested to confirm her attendance on 7 August 2024. The Applicant did not attend.
On 14 August 2018, the Respondent sent the Applicant a show cause letter as to why she should not be subject to disciplinary action. On 29 August 2018, the Applicant responded to the show cause letter.
Upon this response, the Respondent requested the Applicant to attend an IME on 26 September 2018 and also provided an IME request to Dr Reece. The Applicant did not attend, and her employment was terminated on the same day.
Was the Applicant unfairly dismissed?
Section 387 of the Fair Work Act 2009 (Cth) (the Act) provides that, in considering whether a dismissal was harsh, unjust or unreasonable, the Commission 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);
(b) whether the person was notified of that reason;
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
(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;
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;
(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;
(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 Commission considers relevant.
a)valid reason for the dismissal;
It is well established that the factual basis for the reason for dismissal will not of itself demonstrate the existence of a valid reason.[1] It must, as s.387(a) makes clear, be a valid reason for dismissal. To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[2] and should not be “capricious, fanciful, spiteful or prejudiced.”[3] As summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a “dismissal must be a justifiable response to the relevant conduct or issue of capacity”.[4] The Commission must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.[5]
The reason for the Applicant’s dismissal was the failure to attend multiple independent medical examinations which was a reasonable direction. This was a valid reason of dismissal given that the Respondent was enquiring about the Applicant’s capacity to work after being absent for over a year. If the Respondent is unable to assess the capacity of an employee after a long absence, then it will be assumed that the employee will not have the ability to complete the inherent requirements of the role.
There was a valid reason for dismissal.
(b) Notification of reason and (c) Opportunity to respond:
The Applicant was given warnings on 13 July 2018, 17 July 2018, 22 August 2018 and 19 September 2018 that the consequences of not attending an IME may result in disciplinary action. The Respondent gave the Applicant an opportunity to respond on 22 August 2018. The Respondent gave the Applicant a final opportunity to attend an IME, while also consulting with her treating doctor.
The Applicant was notified of the reason for dismissal and given an opportunity to respond.
(d) Unreasonable refusal by the employer to allow the Applicant a support person:
There is no positive obligation on an employer to offer an employee the opportunity to have a support person and is only relevant when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses.[6] I do not consider this to be a relevant factor in this case in determining whether the dismissal was harsh, unjust or unreasonable.
(f) Size of employer’s enterprise, and (g) impact on procedures caused by absence of dedicated human resources:
The procedures undertaken by the Respondent went above what would have been required for the Applicant’s dismissal when an employee is not capable of doing the inherent requirements of the role.
(e) Warning of unsatisfactory performance before the dismissal:
There were no issues of performance raised by the Respondent prior to dismissal.
(h) any other matters that the FWC considers relevant
There are no additional matters provided before me which I consider relevant in determining this matter.
Conclusion
Ms Baker kept repeating ‘she didn't understand and were not in clear easy to understand language.’ In very simple terms, Ms Baker has not been unfairly dismissed.
The Applicant could not work, nor was willing to assist the Respondent in assessing her condition. The Respondent was incredibly patient in accommodating the Applicant’s circumstances waiting over a year and was mindful of her circumstances. The Applicant did not cooperate with the Respondent.
This matter has been pursued by the Applicant for an extraordinary period of time. The delays in the matter have been caused by the Applicant who has sought a numerous number of adjournments. It seems to me that the Applicant has undertaken a determined and spiteful campaign against the Respondent and her correspondence with the Commission is evidence of this.
This Application is dismissed.
DEPUTY PRESIDENT
Appearances:
No appearances for the Applicant
R. Wilson for the Respondent
Hearing details:
22 April 2024
Hearing via Telephone
Brisbane
Final written submissions:
28 August 2024
[1] Raj Bista v Group Pty Ltd t/a Glad Commercial Cleaning[2016] FWC 3009.
[2] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[3] Ibid.
[4] [2021] FWC 4 at 118.
[5] Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185, [46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.
[6] Explanatory Memorandum to Fair Work Bill 2008 at para. 1542.
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