[2020] FWC 3684

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sophia Montgomery
v
Essential Energy
(U2020/2530)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 14 JULY 2020

Application for an unfair dismissal remedy – valid reason – incapacity to perform the inherent requirements of a position – dismissal not harsh, unjust or unreasonable – application dismissed.

[1] Ms Sophia Montgomery was absent from work on personal leave in the period from 9 May 2019 until her dismissal on 13 February 2020. Essential Energy terminated Ms Montgomery’s employment by a letter dated 13 February 2020, on the basis that she was unable to return to work.

[2] On about 4 March 2020, Ms Montgomery’s union, the Electrical Trade Union (ETU), lodged an application in the Fair Work Commission (Commission) on her behalf pursuant to s 394 of the Fair Work Act 2009 (Act), alleging that the termination of her employment with Essential Energy was harsh, unjust and unreasonable. Essential Energy denies those allegations.

Hearing

[3] I conducted a hearing in relation to the matter, by video conference, on 29 and 30 June 2020.

[4] Ms Montgomery gave evidence in support of her claim. Essential Energy adduced evidence in support of its case from Ms Bambi Russell, Human Resources Business Partner, Mr Craig Thomson, Chief Human Resources Officer, and Mr John O’Neill, Employee Relations Operations Manager.

Initial matters to be considered

[5] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of Ms Montgomery’s application.

[6] There is no dispute between the parties and I am satisfied on the evidence that:

(a) Ms Montgomery’s application was made within the period required in s 394(2) of the Act;

(b) Ms Montgomery was a person protected from unfair dismissal;

(c) Essential Energy was not a “small business employer” as defined in s 23 of the Act, so the Small Business Fair Dismissal Code does not apply to the dismissal; and

(d) Ms Montgomery’s dismissal was not a case of genuine redundancy.

Was Ms Montgomery’s dismissal unfair?

[7] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Ms Montgomery’s dismissal was harsh, unjust or unreasonable. I will address each of these matters in turn below.

Was there a valid reason for Ms Montgomery’s dismissal (s 387(a))?

Legal principles

[8] The employer must have a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 1 The reason for the dismissal should be “sound, defensible and well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3

[9] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 4 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).⁵

[10] In J Boag and Son Brewing Pty Ltd v Allan John Button 6a Full Bench of the Commission set out the proper approach to be taken in determining whether there is a valid reason based on the employee’s incapacity to perform the inherent requirements of the job:

“[22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.

...

[29] It is well established that a valid reason is one which is “sound, defensible or well founded”, but not “capricious, fanciful, spiteful or prejudiced”. An inability to perform the inherent requirements of a position will generally provide a valid reason for the dismissal. But this will not be invariably so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event. Further, a dismissal based on a capacity to perform the inherent requirements of a position may not be a valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job. But again, there may be circumstances where such an incapacity does not constitute a valid reason in the relevant sense.”

[11] In Jetstar Airways Pty Ltd v Neeteson-Lemkes, 7 a Full Bench of the Commission held (at [53]-[59]) as follows (references omitted):

“[53] …Consideration of the validity of that reason [related to capacity] requires three interconnected elements to be considered: firstly, whether Ms Neeteson-Lemkes was capable of performing the inherent requirements of her role as at the date of dismissal; secondly, whether Ms Neeteson-Lemkes would be able to perform the inherent requirements of her role at some time in the future; and thirdly, whether there was some reasonable adjustment which could be made to her role to accommodate any current or future incapacity. In accordance with the reasoning of the Full Bench in J Boag and Son Brewing Pty Ltd v Allan John Button, a reason for dismissal based upon an injured employee’s incapacity to perform the inherent requirements of his or her position or role must be assessed against the requirements of the substantive position or role, not as it may be modified or restricted in order to accommodate the employee’s injury…

…

[55] …On one view, those post-dismissal expert opinions, if accepted, would demonstrate that at the time of the dismissal Ms Neeteson-Lemkes did have a future capacity to return to her full role, and to that extent Jetstar did not have a valid reason to dismiss her based upon a prediction otherwise. However, it is well-established that, although the validity of a reason for dismissal may be determined by reference to facts discovered after the dismissal, those facts must have existed at the time of dismissal. Thus in Dundovich v P&O Ports - a case which concerned the dismissal of an injured employee who was dismissed because, for the foreseeable future, he would not be able to perform all the duties of his position - a Full Bench of the Commission found that it was necessary to take into account a court judgment that the employee’s injury was work related, even though that judgment post-dated the dismissal, because the judgment was declaratory of facts and legal rights in existence at the time of dismissal. Applying this principle, we do not consider it permissible to take into account the expert opinions to which we have referred in assessing the validity of Jetstar’s reason for dismissal because they were clearly founded upon a factual situation which came into existence well after the date of Ms Neeteson-Lemkes’s dismissal, namely her state of health at the time she was assessed. The validity of that part of Jetstar’s reason for dismissal which concerned her future capacity to perform her duties must be assessed by reference to her state of health, and the expert opinions expressed as to her state of health, as they were at the time of her dismissal.

[56] The evidence does not demonstrate that any health professional had positively expressed the view that Ms Neeteson-Lemkes, based upon her state of health at or before the dismissal, would be able to return to full duties at a future time. Dr Walker’s view, to which we have earlier referred, was that she was permanently incapable of returning to her full duties. His opinion was of course contested at the hearing, but even those practitioners who took a contrary view concerning Ms Neeteson-Lemkes’s diagnosis and prognosis had not at the time of dismissal advanced the position that, based on her state of health at that time, she would be able to perform her full role at some future time. As earlier stated, the “Psychological/Counselling Management Plan” prepared by Mr McKinley in about February 2013, shortly after the dismissal, stated that in his opinion Ms Neeteson-Lemkes would not have the capacity to return to “pre-injury activity”, although of course by the time of the hearing before the Commissioner he had changed his opinion based upon a later assessment of Ms Neeteson-Lemkes. Dr Saunders had recommended a return to work based on restricted hours, with “gradual increase in hours when certified”, but never gave a positive prognosis for a full return to work prior to the dismissal. Dr Farago did not see Ms Neeteson-Lemkes between 2011 and 2013, and Mr Cohen did not see her before 2013. Therefore it can at least be said that Jetstar’s view at the time of dismissal that Ms Neeteson-Lemkes would not be able to return to work her full duties as a Jetstar flight attendant was not contrary to any medical opinion in existence at or about that time.

[57] The evidence did not identify that there was any reasonable modification to the role of a full-time flight attendant that could be made to facilitate Ms Neeteson-Lemkes’s return to that role. It was the emergency and safety-critical aspects of that role which were of most concern given Ms Neeteson-Lemkes’s work and medical history, and there was no suggestion that any modification in that area was possible.

[58] Therefore we are satisfied that Jetstar had a valid reason for the dismissal of Ms Neeteson-Lemkes based upon the medical advice it had received or which existed at the time of the dismissal. We note that in J Boag and Son Brewing Pty Ltd, the Full Bench said:

“An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so.”

[59] That proposition was not expressed as a hard and fast rule for every case, because as the Full Bench went on to acknowledge there may be particular facts in particular cases which dictate a different conclusion. The nature of the unfair dismissal jurisdiction is such that it is generally not appropriate to try to express binding rules about what conclusions should be reached in respect of the s.387 matters in relation to generalised factual scenarios. That having been said, we consider that the Full Bench’s proposition in J Boag and Son Brewing Pty Ltd can reasonably be applied to the facts of this case.”

Valid reason contended for by Essential Energy

[12] Essential Energy submits that it had a valid reason for Ms Montgomery’s dismissal because she was unable to perform the inherent requirements of her role.

Summary of relevant facts

[13] Ms Montgomery commenced employment with Essential Energy in about February 2000 as a Business Continuity Manager. In about 2014 her title changed to Risk and Business Continuity Manager. In that role Ms Montgomery was responsible for:

• setting up, maintaining and implementing the business continuity framework. For example, pandemic testing and simulations; and

• assisting the Chief Risk Officer, or equivalent, in maintaining and implementing the enterprise risk management framework including risk assessments, emerging risk reporting and incident reviews.

[14] Ms Montgomery has a particular interest in corruption. In mid-2018, Ms Montgomery was awarded a first-class Bachelor of Business Honours degree from Charles Sturt University, researching ICAC corruption case studies.

[15] Ms Montgomery reported to Mr Dean Saunders, Chief Risk Officer.

[16] Prior to late 2018, Ms Montgomery did not have any issues or concerns raised with her in relation to her performance or conduct in connection with her employment with Essential Energy.

[17] From June to October 2018, about ten Essential Energy employees spoke to Ms Montgomery on a confidential basis about a number of allegations and concerns in relation to senior employees of Essential Energy and other alleged wrongdoing within Essential Energy. In accordance with the steps in Essential Energy’s Code of Conduct, Ms Montgomery raised these allegations and concerns with Mr Saunders and disclosure officers within Essential Energy.

[18] On 22 October 2018, Ms Montgomery had a meeting with Mr Saunders in which she said, among other things:

“Dean I recommend that you commission an independent review on the integrity of the investigations process and I advise you that I am making a file note of this discussion.”

[19] On about 22 or 23 October 2018, Ms Montgomery made anonymous public interest disclosures to ICAC and iPART about alleged corruption and wrongdoing within Essential Energy. Ms Montgomery also raised concerns with the Ombudsman (New South Wales) in relation to alleged activities at Essential Energy. Each of those external agencies subsequently informed Ms Montgomery that they had made a decision not to pursue or take any further action in relation to the matters raised by her. Ms Montgomery has sought, or intends in the future to seek, a review or appeal of the decision by a number of those external agencies not to pursue or take any further action in relation to the matters disclosed by Ms Montgomery.

[20] In the period leading up to November 2018, Ms Montgomery was concerned because other Essential Energy employees who had been involved in raising concerns or making disclosures were being performance managed or having their emails monitored. On 5 November 2018, Ms Montgomery met with Mr Saunders and said words to the effect:

“I no longer feel safe to raise risk issues because Ron is being performance managed by David Salisbury for raising concerns.”

[21] On 19 November 2018, Ms Montgomery was stood down on full pay while an investigation was conducted into alleged breaches of Essential Energy’s Code of Conduct. Ms Montgomery was informed of the fact that she was being stood down in a meeting on 19 November 2018 with Ms Russell and Mr David Nardi, Acting Chief Human Resources Officer. Prior to that meeting, Ms Montgomery had been attending a morning tea to celebrate her birthday with work colleagues. When Ms Montgomery was told that a complaint had been made against her in relation to a serious breach of Essential Energy’s Code of Conduct, I accept that Ms Montgomery said words to the following effect:

“Do you know that I am a whistleblower? I think that what you are doing is reprisal and is illegal according to the Public Interest Disclosure Act. After this meeting I am going to advise ICAC.”

[22] Ms Montgomery was told that she was not allowed to talk to anyone about the matter and Ms Montgomery’s work colleagues were instructed not to communicate with her during the investigation. Following her meeting with Ms Russell and Mr Nardi on 19 November 2018, Ms Montgomery was escorted by Ms Russell to her desk to collect some personal belongings and then out on to street level outside Essential Energy’s office.

[23] From 20 November 2018, Ms Montgomery began to see her treating general practitioner, Dr Bowen, and treating psychologist, Mr Rudd de Bakker, on a monthly basis. In June 2019, Mr de Bakker diagnosed Ms Montgomery with “severe stress symptoms due to her work position”. Mr de Bakker’s diagnosis was “depressive disorder, generalized anxiety disorder with severe PTSD symptoms…”

[24] On about 18 December 2018, Ms Montgomery received a letter from Essential Energy setting out the allegations against her. Those allegations included breaching Essential Energy’s Code of Conduct by disclosing particular information to work colleagues and thereby not protecting the confidentiality of information made available to Ms Montgomery.

[25] On about 9 January 2019, Ms Montgomery attended an investigation interview with an external investigator. Ms Montgomery described the interview as a “deeply traumatic” experience.

[26] On about 18 February 2019, Ms Montgomery made a complaint to Essential Energy about Mr Phil Hoskin and Mr Saunders. Ms Montgomery alleged that Mr Hoskin had not kept details of Essential Energy’s investigation into Ms Montgomery’s alleged breach of the Code of Conduct confidential. Ms Montgomery alleged that Mr Saunders had failed to take any action to stop gossip in the workplace in relation to Ms Montgomery. Neither Mr Hoskin nor Mr Saunders were stood down while Essential Energy considered the allegations made by Ms Montgomery against them. Essential Energy engaged an external investigator to investigate the allegations made by Ms Montgomery against Mr Saunders and Mr Hoskin.

[27] On about 1 April 2019, Ms Montgomery made a written complaint to Essential Energy in relation to how it had managed the investigation into allegations against her. In that email Ms Montgomery also sought the following six ‘adjustments’:

• an independent review into the investigation;

• a plan for the restoration of her reputation;

• a plan for a psychologically safe workplace where there was no risk of reprisal against Ms Montgomery;

• agreement that Essential Energy would not issue any warnings until such time as an independent review had taken place on the investigation;

• an opportunity to work with a Code of Conduct expert on how the Code of Conduct can be improved to better cater for the protection of whistleblowers, particularly so that confidentiality and surveillance are not weaponised against them; and

• an apology for the damage done to Ms Montgomery’s welfare, livelihood, psychological health and societal standing.

[28] Essential Energy did not discuss Ms Montgomery’s six proposed ‘adjustments’ with her.

[29] On about 9 April 2019, Ms Montgomery received a letter from Essential Energy in which she was informed that:

• most of the allegations made against her had been sustained while others had not;

• it was Essential Energy’s preliminary view that it would be appropriate for her to be given a written warning and required to undergo refresher training on the Code of Conduct;

• she was to provide any further information she wished for Essential Energy to consider; and

• once she was notified of Essential Energy’s final decision, she would be required to return to her position of Risk and Continuity Manager as soon as reasonably practicable.

[30] On about 16 April 2019, Dr Bowen issued a certificate of capacity for Ms Montgomery with the diagnosis of “traumatic stress and anxiety” due to “persistent workplace bullying, harassment discrimination”. The certificate also stated that Ms Montgomery was “fit to carry out lecturing, pro bono work and PhD work but not face to face time in essential energy offices” and she had “capacity for some type of work from 16/4/2019 to 14/5/2019 for 8 hours/day 3 days/week”. The certificate completed by Dr Bowen and provided to Essential Energy stated that it was “for use with workers compensation and Compulsory Third Party (CTP) motor accident injury claims”.

[31] Ms Russell provided a copy of Dr Bowen’s certificate dated 16 April 2019 to Ms Vicki Bates, Health and Injury Management Officer within Essential Energy’s workers’ compensation team. On 29 April 2019, Ms Bates informed Ms Russell that the insurer had advised Essential Energy that Ms Montgomery did not wish to pursue a workers’ compensation claim.

[32] By letter dated 8 May 2019, Essential Energy responded to a number of matters raised by Ms Montgomery in relation to the investigation of the allegations against her and informed Ms Montgomery of the final outcome of the investigation. Ms Montgomery was informed in the letter that Ms Russell would liaise with her in relation to her return to work. The letter concluded as follows:

“… I am satisfied that the investigation undertaken with respect to the allegations of serious misconduct made as against you was both comprehensive and fair.

I therefore confirm that my decision is to issue you with a Written Warning and require that you undergo refresher training on Essential Energy’s Code of Conduct, and specifically your obligations with respect to maintaining confidentiality.”

[33] It is apparent from the correspondence sent to Ms Montgomery in April and May 2019 that she remained stood down, on full pay, in the period from 19 November 2018 until 8 May 2019.

[34] There is no dispute that Ms Montgomery commenced personal leave on 9 May 2019 and remained on personal leave until her dismissal on 13 February 2020.

[35] Part of Ms Russell’s role was to facilitate Ms Montgomery’s return to work following the conclusion of the investigation and stand down period. Ms Russell said that she did so in accordance with Essential Energy’s Personal and Carer’s Leave Procedure, 8 which includes a statement that Essential Energy’s “injury management policy is to rehabilitate employees regardless of whether the absence is due to workers compensation or personal leave”.

[36] Ms Russell made contact with Ms Montgomery after she received the letter from Essential Energy on 8 May 2019, with a view to discussing her return to work. Ms Montgomery informed Ms Russell that she was anxious and was due to see her doctor again on 14 May 2019.

[37] On 15 May 2019, Ms Russell received a text message from Ms Montgomery in the following terms:

“Hi Bambi. Doc has signed me off for another month. ETU will send u certificate. In certificate Doc has asked EE to liaise w ETU rather than me directly. It’s too traumatic at this stage. Thanks for your understanding.”

[38] The ETU provided Essential Energy with a certificate from Dr Bowen in respect of the period from 15 May to 11 June 2019. That certificate stated that Ms Montgomery was “fit to carry out lecturing, pro bono work and PhD work but not face to face time in Essential Energy offices. Getting direct contact esp via phone calls from Essential Energy – patient finds this very distressing. I recommend contact between Essential Energy and Sophia be made through the Union (ETU)” and Ms Montgomery had “capacity for some type of work from 15/5/2019 to 11/6/2019 for 8 hours/day 3 days/week”.

[39] From 15 May 2019 onwards, Essential Energy communicated directly with the ETU in relation to Ms Montgomery.

[40] By letter dated 17 May 2019, Essential Energy informed Ms Montgomery that the allegations she made against Mr Hoskin and Mr Saunders had not been sustained.

[41] The ETU provided Essential Energy with a certificate from Dr Bowen in respect of the period from 11 June to 9 July 2019. That certificate stated that Ms Montgomery was “fit to carry out lecturing, pro bono work and PhD work but not face to face time in Essential Energy offices. Getting direct contact esp via phone calls from Essential Energy – patient finds this very distressing. I recommend contact between Essential Energy and Sophia be made through the Union (ETU)” and Ms Montgomery had “capacity for some type of work from 11/6/2019 to 9/7/2019 for 8 hours/day 3 days/week”.

[42] Because Ms Montgomery’s medical certificates stated that she was fit to undertake some work but not at Essential Energy’s offices, on 20 June 2019 Ms Russell asked the ETU to facilitate a discussion between Ms Montgomery and Ms Shelley Lang, Essential Energy’s Health and Injury Management Specialist.

[43] On 24 June 2019, the ETU responded as follows to Ms Russell’s request for Ms Montgomery to participate in a discussion with Ms Lang:

“The medical certificate provided by Sophia’s Doctor was very clear. In the Management Plan it clearly states – “Off Work”. In the comments part it clearly states – “is fit to carry out lecturing, pro bono work and PhD work but not face to face time in Essential Energy Offices”. The Medical advice does not contemplate a return to work at Essential Energy at this stage nor does it mention suitable duties within Essential Energy.

If you require further understanding of Sophia’s capacity to work, please put it to us in writing and we will consult with Sophia’s doctor and provide a response. If Essential Energy wishes to provide proposed suitable duties we will also provide to Sophia’s doctor for advice.”

[44] Essential Energy did not propose any suitable duties to the ETU for consideration by Ms Montgomery’s doctor.

[45] The ETU provided Essential Energy with a certificate from Dr Bowen in respect of the period from 9 July 2019 to 6 August 2019. That certificate stated that Ms Montgomery was “fit to carry out lecturing and pro bono work and PhD work but no work for Essential Energy. Getting direct contact esp via phone calls from Essential Energy – patient finds this very distressing. I recommend contact between Essential Energy and Sophia be made through the Union (ETU)” and Ms Montgomery had “capacity for some type of work from 9/7/2019 to 6/8/2019 for 8 hours/day 3 days/week”. This certificate was different from those hitherto provided by Dr Bowen in that it stated Ms Montgomery was “fit to carry out lecturing … but no work for Essential Energy”, whereas the earlier certificates stated that Ms Montgomery was “fit to carry out lecturing … but not face to face time in Essential Energy offices” [emphasis added].

[46] On 6 August 2019, Ms Russell sent an email to the ETU in which she stated, inter alia:

“Essential Energy is conscious of its obligations to return ill or injured employees to work and communicate with employees to identify options to facilitate their recovery, and is also aware of Sophia’s preference for contact to be facilitated directly through yourself.

In this regard, please note that Essential Energy approved secondary employment not in conflict with Sophia’s usual duties and working hours for a period of 12 weeks commencing on 6 March 2019 (refer attached the Secondary Employment Form approved on 27 February 2019). Essential Energy has not had a subsequent request from Sophia regarding secondary employment from June 2019 onwards, but would be open to considering any requests in consultation with her, or other options including any suitable alternate duties and workplace arrangements that the relevant medical and injury management professionals deem appropriate.”

[47] Ms Russell did not receive a response to her offer to consult with Ms Montgomery in relation to suitable alternate duties and workplace arrangements, notwithstanding Ms Russell’s numerous attempts to obtain such a response from the ETU in August 2019. 9

[48] The ETU provided Essential Energy with a certificate from Dr Bowen in respect of the period from 6 August 2019 to 3 September 2019. That certificate stated that Ms Montgomery was “fit to carry out pro bono work and PhD work but no work for Essential Energy. Getting direct contact esp via phone calls from Essential Energy – patient finds this very distressing. I recommend contact between Essential Energy and Sophia be made through the Union (ETU)” and Ms Montgomery had “capacity for some type of work from 6/8/2019 to 3/9/2019 for 8 hours/day 3 days/week”.

[49] The ETU provided Essential Energy with a certificate from Dr Bowen in respect of the period from 3 September 2019 to 4 October 2019. That certificate stated that Ms Montgomery was “fit to carry out pro bono work and PhD work but no work for Essential Energy. Getting direct contact esp via phone calls from Essential Energy – patient finds this very distressing. I recommend contact between Essential Energy and Sophia be made through the Union (ETU)” and Ms Montgomery had “capacity for some type of work from 3/9/2019 to 4/10/2019 for 8 hours/day 3 days/week”.

[50] On 13 September 2019, Ms Russell sent an email to the ETU in which she stated:

“Notwithstanding the current Certificate of Capacity, Essential Energy remains open to engage with Sophia, her medical professionals and the union in relation to exploring any alternative options in relation to any potential return to work.

Ben, if you could please communicate this through to Sophia and advise if Sophia would like to engage on that basis.”

[51] Ms Russell did not receive a response to this email or her suggestion of exploring alternative options for a potential return to work by Ms Montgomery.

[52] The ETU provided Essential Energy with a certificate from Dr Bowen in respect of the period from 3 October 2019 to 31 October 2019. That certificate stated that Ms Montgomery was “fit to carry out pro bono work, lecturing and PhD work but no work for Essential Energy. Getting direct contact esp via phone calls from Essential Energy – patient finds this very distressing. I recommend contact between Essential Energy and Sophia be made through the Union (ETU)” and Ms Montgomery had “capacity for some type of work from 3/10/2019 to 31/10/2019 for 8 hours/day 3 days/week”.

[53] The ETU provided Essential Energy with a certificate from Dr Bowen in respect of the period from 31 October 2019 to 28 November 2019. That certificate stated that Ms Montgomery was “fit to carry out pro bono work, lecturing and PhD work but no work for Essential Energy. Getting direct contact esp via phone calls from Essential Energy – patient finds this very distressing. I recommend contact between Essential Energy and Sophia be made through the Union (ETU)” and Ms Montgomery had “capacity for some type of work from 31/10/2019 to 28/11/2019 for 8 hours/day 3 days/week”.

[54] On 27 November 2019, Ms Russell sent an email to the ETU in the following terms:

“I refer to the Certificate of Capacity received from you on behalf of Sophia Montgomery on 6 November 2019. The Certificate of Capacity is due to expire on 28 November 2019.

Due to Sophia having been absent for more than 6 months, Essential Energy wishes to further understand the nature of Sophia’s illness and her likelihood to return to work. Accordingly, Essential Energy seeks Sophia’s consent to consult with her treating medical practitioner for this purpose.

…

We would be grateful if you could please assist by arranging the following:

1. Sophia to sign the Authority to Obtain and/or Release Information and return this to us by close of business, Monday 2 December 2019; and

2. Sophia to attend an appointment with Dr Bowen, by no later than Friday 6 December 2019, for the purpose of a medical assessment and report as requested in the enclosed letter…

The fees associated with Sophia’s appointment with Dr Bowen will be paid for by Essential Energy…”

[55] The ETU did not provide Essential Energy with a copy of the Authority to Obtain and/or Release Information signed by Ms Montgomery nor any other authority or consent for Essential Energy to consult directly with Dr Bowen. However, the ETU did arrange for Ms Montgomery to communicate with Dr Bowen and for Dr Bowen to provide a report.

[56] The ETU provided Essential Energy with a certificate from Dr Bowen in respect of the period from 28 November 2019 to 9 January 2020. That certificate stated that Ms Montgomery was “fit to carry out pro bono work, lecturing and PhD work but no work for Essential Energy. Getting direct contact esp via phone calls from Essential Energy – patient finds this very distressing. I recommend contact between Essential Energy and Sophia be made through the Union (ETU)” and Ms Montgomery had “capacity for some type of work from 28/11/2019 to 9/1/2019 for 8 hours/day 3 days/week”.

[57] The ETU provided Essential Energy with a certificate from Dr Bowen in respect of the period from 9 January 2020 to 6 February 2020. That certificate stated that Ms Montgomery was “fit to carry out pro bono work, lecturing and PhD work but no work for Essential Energy. Getting direct contact esp via phone calls from Essential Energy – patient finds this very distressing. I recommend contact between Essential Energy and Sophia be made through the Union (ETU)” and Ms Montgomery had “capacity for some type of work from 9/1/2020 to 6/2/2020 for 8 hours/day 3 days/week”.

[58] On about 17 January 2020, Ms Russell received a copy of a medical report prepared by Dr Bowen and dated 10 January 2020. In that report Dr Bowen provided the following answers to the questions posed by Essential Energy:

1. In your opinion, what is Ms Montgomery’s current diagnosis?

In my opinion, Ms Montgomery’s current diagnosis is that of generalised anxiety disorder with post traumatic stress disorder symptoms.

2. In your opinion, what is the likelihood of Ms Montgomery returning to work in her substantive position of Risk and Business Continuity Manager?

The likelihood of Ms Montgomery returning to work in her substantive position of Risk and Business Continuity Manager is uncertain. It may be possible for her to return depending on her progress. It will also depend on Essential Energy’s workplace interventions as suggested in Q5. She is currently making some progress and continues to consult with Clinical psychologist, Rudd de Bakker, on a regular basis.

3. If Ms Montgomery is, in your opinion, likely to return to work in her substantive position of Risk and Business Continuity Manager, when do you consider she will be medically fit to return to work?

I am unsure when Ms Montgomery will be able to return to her substantive position. This will depend on her progress.

4. If Ms Montgomery is, in your opinion, unlikely to return to work in her substantive position of Risk and Business Continuity Manager, is she likely to return to work and perform particular duties? If so, what would those duties be? If so, could those be at Essential Energy in an alternate position?

N/A

5. If Ms Montgomery is fit to return to work in her substantive position of Risk and Business Continuity Manager, or any other alternate position, would any adjustments be required to enable Ms Montgomery to return to work? If so, what are the adjustments that would be required, and for how long will each adjustment be required?

Adjustments that would be required to enable Ms Montgomery to return to work include:

a- An apology regarding her treatment at work

b- Moves to restore her reputation

c- A psychologically safe workplace with approval by her Psychology practitioner.

Each of these adjustments will be ongoing.

6. If, in your opinion, Ms Montgomery is not in fact likely to return to work, can you provide confirmation that Ms Montgomery will be unable to return to work?

N/A

7. In your opinion, do you foresee any potential risks to Ms Montgomery’s diagnosis being aggravated or exacerbated through her work tasks?

I do not foresee any potential risks to Ms Montgomery’s diagnosis being exacerbated so long as Essential Energy effectively and genuinely follow the 3 recommendations in Q5.

8. In your opinion, what is the likely/necessary treatment required by Ms Montgomery to assist in improving her daily capacity and future work capacity?

The necessary treatment required to assist in improving her daily and future work capacity include ongoing psychology and workplace environment changes.

[59] The ETU provided Essential Energy with a certificate from Dr Bowen in respect of the period from 6 February 2020 to 5 March 2020. That certificate stated that Ms Montgomery was “fit to carry out pro bono work, lecturing and PhD work but no work for Essential Energy. Getting direct contact esp via phone calls from Essential Energy – patient finds this very distressing. I recommend contact between Essential Energy and Sophia be made through the Union (ETU)” and Ms Montgomery had “capacity for some type of work from 6/2/2020 to 5/3/2020 for 8 hours/day 3 days/week”.

[60] Ms Russell read Dr Bowen’s report on receipt of it. Ms Russell gave the following evidence in her witness statement concerning her views in relation to the report and what steps she then took:

“63. With respect to the request for an ‘apology’, I am not aware of any formal complaint made by Ms Montgomery to Essential Energy, and in my correspondence with the ETU, the ETU had not raised any treatment which would warrant an apology. Dr Bowen’s Report also did not raise any treatment which would form the basis for an apology to be provided by Essential Energy.

64. During my conversations with Ms Montgomery since 19 November 2018, I was aware that Ms Montgomery was disappointed and distressed that someone had raised a complaint against her, and by the fact that Essential Energy had investigated the complaint. On the basis of my discussions with Ms Montgomery I therefore understood this may have been the relevant ‘treatment’ for which Ms Montgomery required an apology from Essential Energy.

65. I recall Ms Montgomery had been particularly affronted by Essential Energy taking steps to investigate a complaint into her conduct as she was concerned that her ethics were being questioned. I recall this was apparent in her response to being stood down during the meeting on 19 November 2018 which is referred to above. I also recall Ms Montgomery’s response during a telephone discussion we had on 20 November 2018. Although I cannot recall the exact words said, I recall that she was taken aback by the fact that a complaint had been made against her. Although I cannot recall when, I also recall Ms Montgomery had said to me words such as “I have worked here for over 8 years” and “you can’t get anyone more ethical than me.”

66. From my experience as a HRBP, it was a common response for employees to be upset and to feel that their conduct was being called into question when employees were advised of a complaint that had been raised against them and that the complaint was being investigated.

67. From my attendance at the meeting on 19 November 2018 in my role as HRBP support and during the period that Ms Montgomery was stood down, based on my extensive period of employment with Essential Energy, in my view the decision to investigate complaints against Ms Montgomery was consistent with its usual procedure when workplace complaints are received by Essential Energy. I did not consider that an investigation into workplace complaints amounted to ‘treatment’ that would warrant an apology.

68. The second adjustment sought a move to ‘restore Ms Montgomery’s reputation’. In my correspondence with the ETU, the ETU never alleged that Ms Montgomery had suffered any reputational damage. In any event, her absence from work during the period of stand down and personal leave was managed discretely, nothing had been communicated to the workplace of which I was aware. I did not know what that adjustment was related to, or what actual steps were proposed.

69. The third and final adjustment was for Essential Energy to provide a psychologically safe workplace. I did not understand what specifically was intended by that, as I hadn’t received any information from her about why the workplace was not psychologically safe for her. For example there was no identification of any employees who it was considered that Ms Montgomery should not have to work with. There were no suggestions that her existing reporting relationships should be adjusted, or that particular responsibilities that formed part of her role should be adjusted or removed.

70. Dr Bowen’s Report also stated that the treatment to assist improving Ms Montgomery’s ‘daily and future work capacity’ included ‘ongoing psychology and work environment changes’. Dr Bowen’s Report did not identify any psychology or workplace environment changes, such as changes in her working location or reporting relationships. Neither Ms Montgomery nor the ETU had raised with me any workplace environment changes. I am also not aware of any proposed workplace environment changes being raised with anyone at Essential Energy.

71. In my view the adjustments were more properly described as the ‘outcomes’ which Ms Montgomery sought. However, Dr Bowen’s Report did not provide or refer to any factual basis upon which the ‘adjustments’ were based, nor did Dr Bowen’s Report provide any details as to the practical steps that were required to be undertaken by Essential Energy in order to ‘restore’ Ms Montgomery’s reputation and/or provide a ‘psychologically safe workplace’.

72. On this basis and for the reasons referred to in paragraphs 63 to 71 above, I considered the adjustments to be unwarranted.

73. Ms Montgomery had not provided to me written consent to liaise with Dr Bowen, despite my requests in my emails dated 27 November 2019 and 3 December 2019, which I refer to at paragraphs 51 and 55 above.

74. Subsequent to receiving Dr Bowen’s Report, Ms Montgomery provided a further medical certificate stating she was unfit to work for Essential Energy from 6 February 2020 to 5 March 2020. This reinforced my view referred to in paragraph 61 above. Located behind Tab 24of the Respondent’s Tender Bundle is a copy of that medical certificate.

Decision to terminate Ms Montgomery’s employment

75. Based on the medical certificates and Dr Bowen’s Report, I formed the view that Ms Montgomery was unable to return to work. Therefore, a decision was required with respect to Ms Montgomery’s employment.

76. In the circumstance outlined above and given the length of Ms Montgomery’s absence exceeding 6 months, I prepared a briefing note for Mr Craig Thomson, Chief Human Resources Officer, to provide him with the background to Ms Montgomery’s personal leave and request him to make a decision with respect to Ms Montgomery’s ongoing employment. In my position as HRBP I did not have the authority to make a decision with respect to another employee’s ongoing employment.

77. On 10 February 2020 I emailed to Mr Thomson a document entitled ‘Confidential Briefing for Decision’ and requested that he make a decision with respect to Ms Montgomery’s employment. Located behind Tab 8of the Respondent’s Tender Bundle is a copy of that email.

78. In paragraph 4.3 of the Briefing Note I referred to the adjustments that were identified in Dr Bowen’s Report and noted that Mr Thomson was asked to disregard these matters. This was on account of my view that, on the basis of the medical certificates and Dr Bowen’s Report, Ms Montgomery was unfit to work for Essential Energy and my assessment of the ‘adjustments’ as being ‘outcomes’ sought by Ms Montgomery for which no factual basis was provided as referred to above.

79. On 11 February 2020, I had a discussion with Mr Thomson, together with Mr John O’Neill, Employee Relations Operations Manager, during which Mr Thomson asked if we had followed ‘due diligence’ and we discussed what was in the Briefing Note.

80. After our discussion, I received an email from Mr Thomson informing me he had made a decision to terminate Ms Montgomery’s employment.”

[61] Mr Thomson made the decision to terminate Ms Montgomery’s employment with Essential Energy. He did so on the basis of the information contained in Ms Russell’s briefing note. The reason for termination, as expressed in the termination letter dated 13 February 2020, was Ms Montgomery’s inability to return to work following a long period of absence from the workplace. In accordance with clause 4.4.1 of the Essential Energy Enterprise Agreement 2018, Essential Energy paid Ms Montgomery almost 20 weeks’ pay on account of her being “unable to return to work”, in addition to four weeks’ pay in lieu of notice and her statutory entitlements. Ms Montgomery’s employment with Essential Energy came to an end on 13 February 2020.

[62] Shortly after her dismissal, Ms Montgomery made a workers’ compensation claim in respect of the injuries she contends she sustained from 19 November 2018. Ms Montgomery has been in receipt of weekly workers’ compensation payments since her dismissal. The agent appointed by Insurance and Care NSW to manage Ms Montgomery’s workers’ compensation claim has not yet made a final determination as to whether it will dispute liability in relation to the claim.

[63] Dr Bowen has continued to submit certificates of capacity in relation to Ms Montgomery in the period from her dismissal on 13 February 2020 to 23 July 2020. 10 Those certificates all state that Ms Montgomery “is fit to carry out pro bono work, lecturing and PhD work but no work for Essential Energy”.

Consideration

[64] I am satisfied on the evidence that Essential Energy’s decision to stand down Ms Montgomery, on full pay, while it investigated the allegations against her and its decision to terminate her employment were not acts of reprisal in response to Ms Montgomery’s conduct in making disclosures, raising issues and making complaints internally within Essential Energy and externally with various agencies. The evidence in support of the contention that these decisions were acts of reprisal did not rise much beyond conjecture on Ms Montgomery’s part. In contrast, the extensive medical evidence over a period of about 10 months leading up to 13 February 2020, together with Ms Montgomery’s absence from the workplace from 9 May 2019 on account of her incapacity to work for Essential Energy, supports the reason given by Essential Energy for deciding to terminate her employment. Similarly, the fact that allegations of some seriousness were made against Ms Montgomery in November 2018, an external investigator was engaged to investigate the allegations, findings were made that most allegations were made out but some were not, and a written warning was issued to Ms Montgomery support the bona fides of the decision to stand Ms Montgomery down, on full pay, during the investigation.

[65] I am also satisfied on the evidence that Ms Montgomery was not capable of performing the inherent requirements of her role at Essential Energy at the time her employment was terminated (13 February 2020). The medical capacity certificates provided by Dr Bowen in respect of the period from 9 January 2020 to 6 February 2020 and 6 February 2020 to 5 March 2020, together with Dr Bowen’s report dated 10 January 2020, support this finding, as does the fact that Ms Montgomery had been absent from the workplace on personal leave since 9 May 2019. This is not a case in which there needs to be a detailed analysis of the inherent requirements of Ms Montgomery’s role at Essential Energy, for Dr Bowen’s certificates state that Ms Montgomery was not fit for any work at Essential Energy.

[66] As to whether Ms Montgomery would be able to perform the inherent requirements of her role as a Risk and Business Continuity Manager at some time in the future, that must be assessed by reference to facts which existed at the time of the dismissal. It follows that the medical capacity certificates provided by Dr Bowen after Ms Montgomery’s dismissal cannot be taken into account in determining this question. Similarly, unlike the situation in Dundovich v P&O Ports, 11 where a workers’ compensation claim was made before the applicant in that case was dismissed, the fact that Ms Montgomery made a workers’ compensation claim after her dismissal is irrelevant to whether there was a valid reason for the termination of her employment.

[67] Dr Bowen expressed the opinion that the likelihood of Ms Montgomery returning to her substantive position at Essential Energy was “uncertain” and she was “unsure when Ms Montgomery will be able to return to her substantive duties”. Dr Bowen also expressed the opinion that “it may be possible for her to return depending on her progress. It will also depend on Essential Energy’s workplace interventions as suggested …” Having regard to Dr Bowen’s opinions, together with Ms Montgomery’s extensive period of person leave from 9 May 2019, I find that, at the time of Ms Montgomery’s dismissal (13 February 2020), there was a significant degree of uncertainty as to whether Ms Montgomery would be able to perform the inherent requirements of her role as a Risk and Business Continuity Manager at some time in the foreseeable future. In my assessment of the facts in existence at the time of the dismissal, it is more likely than not that Ms Montgomery would not have been able to perform the inherent requirements of her role as a Risk and Business Continuity Manager at some time in the foreseeable future.

[68] As to whether there was some reasonable adjustment which could be made to Ms Montgomery’s role of Risk and Business Continuity Manager to accommodate any current or future incapacity, I am satisfied on the evidence that there was not. First, I agree with Essential Energy’s submission that the ‘adjustments’ proposed by Dr Bowen were not in truth adjustments to Ms Montgomery’s role or the workplace; they were in the nature of ‘outcomes’ or generalised work environment changes which Ms Montgomery was seeking in connection with various workplace matters.

[69] Secondly, the third ‘adjustment’ proposed by Dr Bowen was no more than a restatement of an obligation which Essential Energy already owed to all its employees, including Ms Montgomery. An employer has an obligation to provide a safe workplace and that obligation encompasses both the physical premises and the (psychologically safe) environment in which work is to be undertaken.

[70] Thirdly, there was no factual basis that would render the ‘adjustments’ proposed by Dr Bowen as reasonable adjustments. Dr Bowen’s proposed ‘adjustments’ were premised on an account of events given by Ms Montgomery to Dr Bowen or Ms Montgomery’s psychologist (who communicated with Dr Bowen), but Ms Montgomery’s account of those events was not at the time, and has not since been, substantiated. For example, Dr Bowen says in her certificates of capacity relating to Ms Montgomery that there was “persistent workplace bullying, harassment and discrimination”, yet Ms Montgomery has not provided evidence to substantiate a finding of workplace bullying, harassment or discrimination. Ms Montgomery did give evidence that she no longer felt safe to “raise risk issues” because other employees were being performance managed or had their emails monitored, but that is not evidence of bullying, harassment or discrimination against her. I do not consider the way Ms Montgomery was treated on 19 November 2018 when she was told that allegations of breaches of the Code of Conduct had been made against her and she was then escorted to her desk and out of the office to commence her period of being stood down, on pay, constituted bullying, harassment or discrimination. Essential Energy exercised its discretion, which I consider was reasonably available to it, to stand Ms Montgomery down during the investigation. Ms Montgomery’s concerns about the way she was interviewed by the external investigator do not relate to any conduct by an employee of Essential Energy. It was not suggested by Ms Montgomery to any Essential Energy witness that Essential Energy instructed the external investigator to treat her in a particular way or conduct the interview in a particular manner. The written warning issued to Ms Montgomery by Essential Energy was a reasonably proportionate response to the findings made in the investigation into the allegations that Ms Montgomery had breached the Code of Conduct. Further, Essential Energy also arranged for an external investigator to investigate the complaints Ms Montgomery made to Mr Berryman and informed her of the outcome. The evidence adduced in these proceedings does not warrant a finding of bullying, harassment, discrimination, reputational damage to Ms Montgomery, or a psychologically unsafe workplace. In short, there was no basis provided by Dr Bowen in her report or by Ms Montgomery in these proceedings to warrant an apology, the correction of any reputational damage (which has not been established), or the correction of a psychologically unsafe workplace (which has not been established).

[71] I accept that Ms Montgomery has been suffering from the conditions identified by Dr Bowen, which is a most unfortunate situation, but I am not satisfied on the evidence that there were any reasonable adjustments which could have been made to Ms Montgomery’s role to accommodate any current or future incapacity.

[72] Submissions were made on behalf of Ms Montgomery that Essential Energy should have engaged in further communications with Dr Bowen to the extent that they did not understand her proposed ‘adjustments’ or believed they were ambiguous. That option was available to Essential Energy. In my view, however, given the difficulties with the proposed ‘adjustments’ to which I have pointed, I am satisfied that it was not unreasonable for Essential Energy to make its decision without first engaging with Dr Bowen about her proposed ‘adjustments’.

Conclusion on valid reason

[73] I am satisfied Essential Energy had a sound, defensible and well-founded reason to dismiss Ms Montgomery on 13 February 2020. In particular, Ms Montgomery was not capable on 13 February 2020 of performing the inherent requirements of her position, it was unlikely that Ms Montgomery would be able to return to her role in the foreseeable future, and there were no reasonable adjustments which could have been made to Ms Montgomery’s role to accommodate any current or future incapacity. I am therefore satisfied that Essential Energy had a valid reason to dismiss Ms Montgomery related to her capacity.

Notification of the reason for dismissal and given an opportunity to respond (s 387(b)&(c))

[74] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made 12, and in explicit13 and plain and clear terms.14 In Crozier v Palazzo Corporation Pty Ltd a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following (at [73]):

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for the termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[75] 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. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 15

[76] There is no dispute that Essential Energy did not, prior to making its decision to terminate Ms Montgomery’s employment, notify her of the reason for termination or give her the opportunity to respond to the reason for her termination. These matters weigh in support of Ms Montgomery’s contention that her dismissal was harsh, unjust and unreasonable. However, the weight to be accorded to these factors is reduced to some extent (but not completely) in circumstances where it is clear on the medical evidence from Dr Bowen that Ms Montgomery has remained unable to perform the inherent requirements of her role at Essential Energy at all times from her dismissal on 13 February 2020 until at least the hearing of this matter on 29 and 30 June 2020. Accordingly, even if Essential Energy had, prior to making its decision to terminate Ms Montgomery’s employment, notified her of the reason for its proposed termination and given her the opportunity to respond to the reason for her proposed termination, it is unlikely, in my view, that there would have been a different outcome. In this regard, it is important to appreciate that the ‘adjustments’ proposed by Dr Bowen, about which Ms Montgomery may have been able to provide further detail, clarity or suggestion, were not matters that would, even if adopted by Essential Energy, have necessarily resulted in her return to the workplace. Dr Bowen made clear in her 10 January 2020 report that Ms Montgomery’s ability to return to work was ‘uncertain’ and the possibility of her so returning depended both on Ms Montgomery’s ‘progress’ and the ‘adjustments’ proposed by Dr Bowen.

Any unreasonable refusal to allow Ms Montgomery to have a support person present (s 387(d))

[77] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[78] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”16

[79] There were no discussions held between Essential Energy and Ms Montgomery relating to her dismissal. Accordingly, Ms Montgomery did not have any occasion to request that a support person be present during any such discussions. It follows that there was no unreasonable refusal by Essential Energy to allow Ms Montgomery to have a support person present to assist at any discussions relating to her dismissal.

Warnings about unsatisfactory performance (s 387(e))

[80] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal.

[81] In this case, the reasons for dismissal related to Ms Montgomery’s capacity, rather than her performance, so this consideration is not relevant.

Impact of size of Essential Energy on procedures followed in effecting the dismissal (s 387(f))

[82] Essential Energy is a substantial enterprise. I do not consider that the size of Essential Energy’s enterprise would be likely to impact on the procedures followed in effecting Ms Montgomery’s dismissal.

Absence of dedicated human resource management specialists or expertise (s 387(g))

[83] Essential Energy employed a number of human resource employees at the time of Ms Montgomery’ dismissal, so this consideration is not relevant.

Other relevant matters (s 387(h))

[84] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[85] Ms Montgomery contends that Essential Energy breached its Personal and Carer’s Leave Procedure. Section 4.4 of the Personal and Carer’s Leave Procedure relevantly provides as follows:

“Where the employee has a long term illness or injury which has caused the employee to be absent for more than six (6) months in any twelve (12) month period Essential Energy will consult with the employee’s union and the employee’s medical adviser, or if required, refer the employee to a nominated medical practitioner to determine the likelihood of the employee returning to work.

**If it is clear that the medical prognosis is that the employee cannot return to work in their substantive or any other alternate position, Essential Energy may take the steps to terminate the employee’s service in accordance with the provisions set out in the relevant Enterprise Agreements (Clause 4.4).

**This shall take place only following a consultative process which usually shall have involved several meetings between the manager, the Workplace Relations Employee Support group and the employee and his/her representative with consideration having been given to alternate options of employment and all medical advice.”

[86] Ms Montgomery contends that the Personal and Carer’s Leave Procedure required Essential Energy, after it received Dr Bowen’s report dated 10 January 2020 but before it took steps to terminate her employment, to engage in a consultative process with her and other relevant persons and to consider in that process alternate options of employment and all medical advice. I agree. I also agree that Essential Energy did not comply with this obligation. Essential Energy moved directly from receipt of Dr Bowen’s report to consideration of whether or not to terminate Ms Montgomery’s employment. Essential Energy’s failure to comply with its own Personal and Carer’s Leave Procedure in this respect weighs in support of Ms Montgomery’s contention that her dismissal was harsh, unjust and unreasonable. However, the weight to be accorded to this breach of policy is reduced to some extent (but not completely) for the same reasons as are set out in paragraph [76] above.

[87] Ms Montgomery had 10 years’ service with Essential Energy. No issues were raised with her in relation to her performance or conduct prior to late 2018. Ms Montgomery is a single mother who has the care of her two children. I accept that the financial and personal consequences of the dismissal for Ms Montgomery are significant. This supports Ms Montgomery’s argument that her dismissal was harsh in its consequences for her personal and economic situation.

[88] As part of my consideration of whether a ‘fair go all round’ was accorded to both Ms Montgomery and Essential Energy, it is relevant to have regard to the steps Essential Energy took during Ms Montgomery’s period of lengthy absence from work on personal leave to seek to identify options to facilitate her recovery and return to the workplace. Those steps, which weigh in favour of Essential Energy’s contention that Ms Montgomery’s dismissal was not harsh, unjust or unreasonable, included complying with Ms Montgomery’s request that all communication go through her union, approving secondary employment for Ms Montgomery at Charles Sturt University while she was on personal leave, offering assistance to Ms Montgomery through Essential Energy’s employee assistance program, and making repeated requests to consult with Ms Montgomery, her union and her treating doctor to “explore any alternative options in relation to any potential return to work”. 17 Ms Montgomery did not take up the offer of consultation. Ms Montgomery, through her union, informed Essential Energy that they should put any proposed suitable duties to the ETU so they could obtain advice from Dr Bowen and if Essential Energy required any further understanding of Ms Montgomery’s capacity to work, they should put it in writing so that the ETU could consult with Dr Bowen and provide a response.18

[89] Mr Thomson is the person who made the decision to terminate Ms Montgomery’s employment. He was instructed not to take into account the ‘adjustments’ proposed by Dr Bowen and he did not do so in making his decision. Ordinarily a failure by a decision maker to take into account reasonable adjustments when making a decision to terminate the employment of an employee on account of their inability to perform the inherent requirements of the job would weigh in favour of a finding that the dismissal was unfair. However, in the present case, I am not satisfied, for the reasons set out above, that the ‘adjustments’ proposed by Dr Bowen were reasonable adjustments which could have been made to Ms Montgomery’s role to accommodate any current or future incapacity. Accordingly, in the circumstances of this case I consider the fact that Mr Thomson did not take into account the ‘adjustments’ proposed by Dr Bowen to be a neutral consideration in my evaluative assessment of the fairness of Ms Montgomery’s dismissal.

[90] Apart from the facts, matters and circumstances summarised in paragraphs [13] to [76] above and the matters to which I have referred in paragraphs [85] to [89] above, there are no other relevant matters.

Conclusion as to whether the dismissal was unfair

[91] Having considered and taken into account each of the matters specified in section 387 of the Act, my evaluative judgment is that Essential Energy’s dismissal of Ms Montgomery on 13 February 2020 was not harsh, unjust or unreasonable. Ms Montgomery was absent from work on personal leave for a significant period of time. She was not able to undertake any work for Essential Energy during that period. Essential Energy made numerous attempts to assist Ms Montgomery to get back to work. It is clear from the medical evidence from Ms Montgomery’s treating doctor that she did not have the capacity to do her job at the time she was dismissed and it was unlikely that Ms Montgomery would be able to return to her role in the foreseeable future. There were no reasonable adjustments which could have been made to Ms Montgomery’s role to accommodate any current or future incapacity. Although Essential Energy’s failure to notify Ms Montgomery of the reason for her termination, give her an opportunity to respond, and consult with her prior to making its decision to dismiss her weigh in favour of a conclusion that Ms Montgomery’s dismissal was unfair, as does the harshness of the dismissal in its consequences for Ms Montgomery’s personal and economic situation, the other relevant considerations discussed above have led me to conclude that Ms Montgomery’s dismissal was not unfair. The application for unfair dismissal is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

A. Jacka, Senior Industrial Officer, for the Applicant
S. Meehan, counsel, for the Respondent

Hearing details:

2020.
Newcastle:
29 and 30 June 2020 (by video conference).

Printed by authority of the Commonwealth Government Printer

1 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8

2 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

3 Ibid

4 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685

5 Ibid

6 [2010] FWAFB 4022

7 [2013] FWCFB 9075

8 Ex A4

9 Ex R1 at pp 249, 252 & 255

10 Ex R8

11 8 October 2002 (PR923358)

12 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

13 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

14 Previsic v Australian Quarantine Inspection Services Print Q3730

15 RMIT v Asher (2010) 194 IR 1 at 14-15

16 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542]

17 Ex R1 at p273

18 Ex R1 at p230

Sophia Montgomery v Essential Energy