Wildman v Imcd Australia Limited

Case [2021] FCCA 1161

FEDERAL CIRCUIT COURT OF AUSTRALIA

Wildman v IMCD Australia Limited [2021] FCCA 1161

File number(s): SYG 1844 of 2018
Judgment of: JUDGE BAIRD
Date of judgment: 23 June 2021

Catchwords:

INDUSTRIAL LAW – adverse action – coercion – workplace right to take paid personal leave under s 97 of the Fair Work Act 2009 (Cth) – applicant employee on paid personal leave for more than 3 months – where applicant submitted medical certificates – respondent asserted applicant did not provide evidence of requisite character that would satisfy a reasonable employer as to applicant’s unfitness for work under s 107 of the Act – where did not enliven right to take personal leave under s 97 of the Act – applicant on paid personal leave – applicant dismissed from employment whilst on paid personal leave – termination without notice or payment in lieu – legitimate exercise of employer’s power to direct respondent – employer issued directions to attend independent medical assessment, meetings with employer, and workplace whilst on paid personal leave – applicant refused – respondent asserted directions lawful and reasonable – whether applicant dismissed for a reason or reasons including his exercise of a workplace right – respondent alleged applicant engaged in serious misconduct – duty to co-operate at common law – held applicant dismissed for reasons including exercise of workplace right to paid personal leave, or to exercise leave in a particular way – held respondent’s conduct unlawful – held respondent’s conduct coercion – held medical certificates and evidence satisfied s 107 of the Act – held respondent’s directions not lawful – held respondent’s directions not reasonable – held duty to co-operate not breached – held respondent’s directions and conduct unlawful coercions – held adverse actions – held contraventions of Act established – application allowed – cross-claim for repayment of payments whilst on sick leave – cross-claim dismissed.
Legislation:

Fair Work Act 2009 (Cth), ss 12, 13, 14, 43, 44, 96 97, 107, 117, 123, 340, 341, 342, 343, 352, 360, 361

Fair Work Regulations 2009 (Cth) rr 1.07, 3.01
Cases cited:

Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32; (2014) 240 IR 342

Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196

Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347

Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603; (2002) 118 FCR 395

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500

Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48

Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34

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AGLC
Wildman v Imcd Australia Limited [2021] FCCA 1161
Case
[2021] FCCA 1161
Decision Date

CaseChat Overview and Summary

This case involved a dispute between Mr Kevin Wildman and his former employer, IMCD Australia Limited. Mr Wildman had been employed by Capitol Ingredients Australia Pty Ltd from 1995 until IMCD purchased the business in 2013, continuing his employment with IMCD until his termination. At the time of termination, Mr Wildman had over five years of continuous service and was over 45 years old. The central issue concerned the lawfulness of IMCD's directions to Mr Wildman during a period of sick leave, and whether his subsequent absence constituted an exercise of his workplace right to take personal leave. The matter was heard by Judge Baird.

The court was required to determine whether IMCD's directions to Mr Wildman, including requests for medical examinations, contact with his doctors, and attendance at the workplace despite medical certificates indicating unfitness, were lawful and reasonable. Specifically, the court had to consider whether these directions fell within the implied duty of cooperation at common law and the employer's obligation to provide a safe system of work, or whether they constituted unlawful coercion. A further issue was whether Mr Wildman's absence from work, supported by a series of medical certificates, constituted a temporary absence due to illness or injury, thereby entitling him to paid personal leave.

Judge Baird reasoned that while employers have a duty to cooperate and ensure the health and safety of their employees, these obligations must be exercised reasonably. The court found that IMCD's suspicions that Mr Wildman was abusing his sick leave entitlements were unfounded and not based on reasonable grounds. The medical certificates provided by Mr Wildman were considered sufficient evidence of his unfitness for work. The court distinguished the present case from authorities such as *Qantas* and *Swanson*, finding that IMCD's directions were not reasonable in the circumstances, particularly given Mr Wildman's medical condition and the advice from his doctors.

Ultimately, the court concluded that Mr Wildman was unfit for work due to personal illness and that his absence from 19 January 2018 to 4 May 2018 was a lawful exercise of his workplace right to take paid personal leave. The court found that IMCD's directions were not lawful or reasonable, and therefore, Mr Wildman's absence was not a breach of his employment obligations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At the date of termination, Mr Wildman had more than 5 years of continuous service with IMCD, and was over 45 years old.BACKGROUND FACTS Mr Wildman was employed by Capitol Ingredients Australia Pty Ltd from 22 February 1995 until 31 July 2013. Capitol Ingredients was an importer and distributor of raw materials for use in manufacturing various complementary medicines, healthcare, veterinary products personal care and household products. The final position he held with Capitol Ingredients was as General Manager. As General Manager, Mr Wildman oversaw the day to day operations of Capitol Ingredients, including sales costs analysis, and management of IT infrastructure, procurement, logistics, warehousing and inventory. Mr Wildman accumulated some 1,342.50 hours (approximately 149 days) of unused sick leave as at 15 August 2013. IMCD purchased the business of Capitol Ingredients in 2013, and IMCD offered Mr Wildman employment with IMCD. He accepted that offer on 11 July 2013, commenced on 1 August 2013, and facilitated the transition of the business to IMCD. He was employed in the position of ‘Commercial Manager - Capitol Ingredients’, involved in day to day management and office functions, with technical and regulatory personnel, and office receptionist reporting to him. Mr Wildman had a focus on regulatory affairs, and was to introduce the ISO quality system into the operations at the business’ Bella Vista site (previously the location of Capitol Ingredients’ business). He reported to the General Manager. In 2015, Mr Wildman was provided with a position description for his role as Commercial Manager – Bella Vista. His position description incorporated the role of Product Technical Specialist (although there is some dispute when he received a copy of the position description for this latter role, nothing turns on it). He was required to fulfil commercial business and site requirements of the Bella Vista office as directed by the site General Manager, or commercial managers of IMCD. His responsibilities encompassed commercial, product/technical, and management systems responsibilities. The position description reported to the General Manager, as before. Mr Wildman says his position description remained unchanged until late January 2018. Discussions took place from early 2017 over concerns with the state of sample storage and available resources for the processing of samples. The Capitol Ingredients samples were located at the Bella Vista office, and the process had remained separate to the IMCD system. Mr Wildman attests to the inadequate staffing, resources and housekeeping functions to keep the system organised. In July 2017, Mr Steven John Egan, at the time of the hearing the Joint Managing Director and Country Manager of IMCD and located at the Bella Vista site, instructed Mr Wildman to seek additional staff for a sample processing role, and additional staff were sought (although it appears IMCD head office did not approve their engagement).

Evidence

Evidence Before The Court

Mr Wildman states that it was not until Ms dela Fuente’s email of 12 January 2018 that he was advised he would have to “pick and pack” samples himself. THE EVIDENCE BEFORE THE COURT Mr Wildman relies on the following affidavits, exhibits and medical reports: (a)affidavit of Mr Kevin Wildman sworn 4 February 2019, and exhibit KW 1;(b)affidavit of Mr Kevin Wildman sworn 17 April 2019;(c)affidavit of Ms Lianne Wildman sworn 4 February 2019;(d)affidavit of Dr Jaspreet Singh affirmed 14 April 2019, and exhibits JS-1 and JS‑2, including expert report of Dr Singh dated 20 February 2019; and(e)affidavit of Dr Kim Pinnock, undated but handed up in Court on 23 July 2019; including expert report of Dr Pinnock dated 26 February 2019.At the hearing, I deferred formally ruling on a relevance objection to the medical evidence, and provisionally admitted the doctors’ evidence subject to relevance. Both doctors were cross‑examined. For the reasons I set out below, I consider their evidence relevant, and I formally admit that evidence. IMCD relies on the following affidavits and exhibits:(a)affidavit of Mr Lambert sworn 13 March 2019; and exhibit RL-1; (b)affidavit of Ms dela Fuente sworn 13 March 2019; and exhibit KF‑1; and(c)affidavit of Mr Egan sworn 13 March 2019. Much of the factual foundation of Mr Wildman’s claim is admitted on the pleadings. The correspondence, and medical certificates are in evidence. The background facts, Mr Wildman’s health, and the correspondence between the parties (and Mr Wildman’s solicitors) was not, ultimately, in contention. At the hearing before me all deponents were cross-examined. Both parties provided written outlines of opening submissions, and made oral submissions. IMCD also provided a short written outline of closing submissions. Transcript of the hearing was obtained. Regrettably, this judgment has been delayed well beyond any indicative time that may have been assumed by the parties at hearing. Necessarily, my capacity to draw credibility conclusions from the presentation of oral evidence alone is reduced by the passage of time, notwithstanding my contemporaneous note taking. Accordingly, my conclusions on the witnesses arise from my rereading of their written evidence, augmented by the transcript, and having regard to the disclosures in correspondence, and the evidence of other witnesses, particularly as among the IMCD witnesses. Further, the passage of time has enabled me to undertake a detailed review of the written evidence and its relationship with the transcript, obtain a clearer understanding of the chronology of events, and pay closer regard to the interplay between the correspondence, and the witnesses’ conduct and actions in chronological order. In addition, I have had the benefit of the principal authorities to which counsel drew my attention. MR WILDMAN’S HEALTH During his employment Mr Wildman had, at various times, taken short periods – usually no more than a few days - of sick leave.

Decision

Reasons for decision

I consider that the circumstances pertaining in each of Qantas, and Swanson are of a very different character, and distinguishable, in so far as they are called in aid by IMCD to support the argument that the fourth medical certificate (or any of the preceding medical certificates), is not evidence that would satisfy a reasonable person, for the reasons already stated. Conclusion For the above reasons, I have concluded that: (a)Mr Wildman was not fit for work because of a personal illness; (b)Mr Wildman met the evidence requirements of s 107(3) of the Act for each of the periods of the first, second, third, and fourth medical certificate, that is, for the period 19 January 2018 up to and including 4 May 2018 (the Period); (c)Mr Wildman’s absence from work for the Period was an exercise of his workplace right to take personal leave; (d)Mr Wildman met the requirements of regulation 3.01(2) and (4). It follows that for the Period up to 4 May 2018, Mr Wildman was on paid personal leave for a purpose mentioned in paragraph 97(a), and thus that sub-reg 3.01(5) does not apply to exclude Mr Wildman from being temporarily absent from work because of illness or injury. It follows that for s 352 of the Act, Mr Wildman was temporarily absent from work because of illness of a kind prescribed by the Regulations. Were the directions by IMCD lawful?The parties’ submissions I accept IMCD’s submissions that IMCD has an implied duty to provide employees with a safe system of work (see Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 253 CLR 169 at [40]), and that Mr Wildman has an obligation to co‑operate at common law. Mr Rinaldi submits that IMCD’s attempts to ascertain the nature of the illness were to determine whether the illness was legitimate, and also to satisfy the employer by evidence that would satisfy a reasonable person (see inter alia, at [160] above); they were lawful and reasonable in accordance with s 107(3) and the implied term referred to in Blackadder. (IMCD’s attempts included directly approaching Dr Pinnock, and enquiring of her clinic whether Mr Wildman had attended consultations, to be informed that he had done so.) IMCD further submits that the directions (identified in [138] above), including that provided in the final warning letter of 23 April 2018 from Mr Lambert to Mr Wildman to attend the workplace (the pleaded 8th coercion), were lawful and reasonable because they were pursuant to the implied term in employment contracts referred to in Blackadder at [67]-[69] that employers ensure the health and safety of all employees, particularly at [68]. Mr Rinaldi submits Qantas at [64] and [72] demonstrates that asking an employee to come in for a meeting, notwithstanding that a doctor has stated he is unfit to do so (Dr Pinnock’s advice of 19 April 2018), is both lawful and reasonable in the circumstances. The employer’s lawful entitlements allows the employer to request evidence that would satisfy a reasonable person.

Ratio Decidendi

Legal Principle Established

Mr Miles accepts that return to work does give rise to an obligation, and accepts that particularly with mental health issues, in terms of how that return is to be structured and communicated is a matter that would need to be carefully managed, particularly in the light of both the work health and safety obligations, and the obligation to provide reasonable adjustments under the Disability Discrimination Act 1992 (Cth). However, Mr Wildman was not at the point where he was seeking to return to work, but was on sick leave. Further, in this case IMCD had no idea of the nature of Mr Wildman’s illness. Consideration I have concluded that the medical certificates were evidence that would satisfy a reasonable person, and in respect of the third and fourth medical certificates, also the additional evidence I have identified. The correspondence and other evidence demonstrated IMCD had formed its views that Mr Wildman was abusing his sick leave entitlements from the first medical certificate. For the above reasons I find, those views were not views of a reasonable person. I accept however that the duty to co-operate at common law may arise, notwithstanding that the requirements of s 107(3) are satisfied. I have concluded that Mr Wildman was not abusing his sick leave entitlements. Mr Lambert’s suspicion was unfounded. Ms dela Fuente’s views were similarly unfounded. IMCD, through Mr Lambert, also expressed a desire to ascertain what IMCD could do to assist Mr Wildman return to work. He explained his request and directions were also to ensure the ongoing health and safety of IMCD’s other employees, who were being required to perform Mr Wildman’s functions in his absence. I have earlier considered Mr Lambert’s explanation. For the reasons I there stated, I am not persuaded by IMCD’s submission that IMCD’s directions to attend medical examinations, to allow contact with doctors, and to attend meetings are lawful and reasonable in the circumstances. The evidence does not demonstrate a genuine indication of any need for the medical examinations, or provision of medical information (the Health Information), or for Mr Wildman to attend the workplace notwithstanding his doctor’s advice, and his medical certificates and evidence (c.f., Qantas). I do not consider it is correct to say (if IMCD does say) that there is a duty of cooperation that by the simple fact of the duty, therefore extends to any requirement of the employee to submit to whatever it is that the employer wishes to ask the employee’s doctor, or to submit to an examination by a general practitioner, without any guidance or disclosure as to what that general practitioner has been instructed to consider, or the basis upon which that has been instructed. As Judge Jones said in Swanson at [53], directions issued by employers must also be reasonable. What is reasonable in any given circumstances will depend on the particular type of employment. I do not accept that IMCD’s directions identified as the coercions (see [39] and [138] above) fall within the duty of co‑operation, or pursuant to the implied terms of employment contracts of the kind identified in Blackadder, Qantas and Swanson. I accept that the circumstances of those cases are very different, and that the duty of co-operation /implied term is qualified as I have identified and emphasised in my discussion of those decisions earlier in these reasons. IMCD’s circumstances are distinguishable. Mr Wildman’s employment by IMCD was not such that its directions were reasonable.