Note: An appeal pursuant to s.604 (C2012/6342) was lodged against this decision - refer to Full Bench decision dated 29 April 2013 [[2013] FWCFB 2390] for result of appeal.
[2012] FWA 10220 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ulla-Maija Dunkerley
v
Department of Industry, Innovation, Science, Research and Tertiary Education
(U2012/10723)
COMMISSIONER DEEGAN |
CANBERRA, 4 DECEMBER 2012 |
Application for unfair dismissal remedy, jurisdictional objection, alleged no dismissal at the initiative of the employer - abandonment of employment, jurisdictional objection and substantive application heard together, no abandonment of employment, no unfair dismissal, application dismissed.
[1] This decision concerns an application lodged under s394 of the Fair Work Act 2009 (the FW Act) by Ms Ulla-Maija Dunkerley (the applicant) in relation to the alleged termination of her employment by the Department of Industry, Innovation, Science, Research and Tertiary Education (the Department).
[2] The application was lodged on 21 June 2012 and was the subject of an unsuccessful conciliation conference on 10 July 2012. A Directions Hearing was conducted on 23 July 2012 and directions issued for the filing of witness statements and outlines of submissions.
[3] The Department raised a jurisdictional objection to the application. It was the position of the Department that FWA did not have the jurisdiction to deal with the matter as there had been no termination at the initiative of the employer as the applicant had abandoned her employment. The jurisdictional objection was heard together with the substantive application. The parties were advised that the decision as to jurisdiction would be made prior to any decision as to the merits of the substantive application.
The Facts
[4] Many of the important facts of the matter were not seriously in dispute between the parties. It is convenient to deal with the facts in the form of a chronology setting out the manner in which the events unfolded.
The Chronology
June 2007
2008
10 June 2009
July 2009
October 2009
November 2010
January 2011
February 2011
June 2011
August 2011
February 2012
March 2012
April 2012
May 2012
June 2012
August 2012
The Applicant
[5] The applicant was self-represented in the proceedings. On 30 July 2012 she filed a written submission 1 in support of her case. That submission included material in the nature of evidence. On 14 September 2012 the applicant filed another submission2 in response to the Department’s statements of evidence. Again this document included material in the nature of submissions and also evidence. The applicant relied on these written submissions and also tendered a copy of the first return to work plan3. She offered no further evidence in chief at the hearing.
[6] It was the applicant’s case that she had been unfairly dismissed by the Department largely because she had been unable to return to a workplace which she considered hazardous to her health in circumstances where the Department unreasonably refused to alter the arrangements at the workplace so as to allow her to return.
[7] In essence the applicant claimed that:
[8] Under cross-examination the applicant agreed that she returned to work in accordance with the first return to work plan in around December 2009 to January 2010. When asked when she had returned to work full-time in accordance with that plan she stated that it had been 17 January 2011, which was the same day that she had discovered that Mr Schwager had been appointed as her Division Head.
[9] It was the applicant’s evidence that since the termination of her employment she had not accessed her superannuation, received any money from the Government, or taken up any other employment.
[10] It was put to the applicant that despite the fact she had taken annual and long service leave between February and August 2011 she had continued to provide her employer with medical certificates. She denied that she had done so for the purpose of having that leave converted should her appeal against the rejection of her Comcare claim be successful. She conceded however, that she was not required to provide the certificates as the Safety Health and Rehabilitation Act had no application once her claim had been rejected. She agreed that her claim was rejected by both the AAT and the Federal Court and that on 7 September 2011 she had sent an email to her employer advising that she would be taking leave without pay when her paid leave was exhausted, but that if her Comcare claim was accepted she would be taking “Comcare leave” 4.
[11] The applicant also agreed that on 26 August 2009 she was advised by her case worker, Ms Staltari, that her Comcare incapacity payments would be reduced to 75% of her salary from 17 August 2009 as she had reached the 45 week limit under the legislation. The applicant raised the matter of the reduction with Comcare and also queried whether she could take personal leave to avoid having her salary reduced. Comcare provided the applicant with a copy of a publication directed at assisting her understanding of the processes surrounding workers’ compensation claims. The applicant denied that she had the requested the information because, as at 28 August, she was giving consideration to lodging a new claim in relation to Mr Schwager’s comments to her on 20 July 2009. She conceded however that it was her belief that if a new claim were accepted the 45 week period would recommence 5.
[12] The applicant was then questioned about the circumstances surrounding her lodgement of the claim concerning Mr Schwager. It was put to the applicant that she had attended work on 31 August 2009, despite having a medical certificate to the effect that she was not to attend, and had sought a meeting with Ms Staltari in order to make arrangements for the lodgement of the claim. The applicant denied this version of events, claiming that she had been directed by Ms Staltari to attend the workplace and to fill out a new claim form. She stated that she had not wished to complete the new form but was convinced by Ms Staltari to do so 6.
[13] When the applicant was challenged about her version of these events she initially claimed not to be able to remember but then insisted that her version of the events was the correct one. The applicant was shown the Comcare claim form 7 and agreed that she had completed and signed the employee portion of that form. She reiterated, however, that she had been “forced” to sign the form8. Shown two emails dated 3 September 20099 between herself and Ms Staltari the applicant agreed that it appeared she was the author of one of them but denied that the reference to her having sent “the paperwork” to Ms Staltari was a reference to the Comcare claim form10. The applicant reiterated her claim that she had signed the claim form in Ms Staltari’s office and was unable to recall what paperwork she had been referring to11.
[14] It was put to the applicant that on 3 September 2009 she had asked Ms Staltari to advise her psychologist of the information required for the applicant to make a claim of aggravation of injury in relation to the 20 July incident. The applicant was unable to recall that request.
[15] The applicant agreed that the second part of the email referred to a conversation she had had with her psychologist about the evidence necessary to support her claim for aggravation of the existing injury. When referred to an email from Ms Staltari to her psychologist 12 that appeared to have been copied to her, the applicant claimed she had not seen the email, suggesting that she had changed providers around that time and this had caused some difficulties. The applicant maintained this claim despite being advised that the latter email had been sent only minutes after she had sent one to Ms Staltari from the same email address13.
[16] After some further questioning about the claim made in relation to the 20 July 2009 incident the applicant agreed that she had at no time in her evidence, whether to the AAT or to the Federal Court, claimed that she had been directed by Ms Staltari to fill out the claim form in relation to that incident.
[17] The applicant was questioned about her actions around 17 January 2011when she was informed that Mr Schwager had been appointed as her Division Head. She agreed that on 24 January she decided that she would only remain at work if the Department met nine demands she made in an email of that date. She agreed that those demands were unreasonable, stating that it is a symptom of her condition that when she gets stressed she gets aggressive. The applicant also agreed that on 8 February 2011 in a meeting with Mr Byron and Ms Staltari she had said that she was hoping Mr Byron would say he could not do anything about her list of demands as that would make her decision to leave the workplace easier 14. The applicant conceded that one of her demands was that Mr Schwager be moved.
[18] The applicant agreed that the same day the applicant informed Mr Byron that he should disregard her wish list she also advised him she would concentrate her fight in the courts. According to the applicant, on 11 February the applicant further advised Mr Byron that she would utilise her annual and long service leave until August, and that her case was to be heard in the Federal Court on 27 June 2011.
[19] At the expiration of her paid leave the applicant provided the department with a medical certificate stating that she was fit for work in a “workplace without stressors”. She conceded that she provided no clarification as to the particular “stressors”. She was advised that she would be on unpaid unauthorised leave until she provided a medical certificate which clarified the term “stressor”.
[20] The applicant agreed that by February 2012 she was aware of the Federal Court decision dismissing her workers compensation claim with a finding that Mr Schwager’s actions in July 2009 were reasonable. She also conceded that it on 13 February 2012 that her general practitioner certified her as fit for work without any restrictions but claimed that the reference to ‘suitable duties” on the certificate constituted a restriction on the work she could perform.
[21] The Department arranged for the applicant to meet with Ms Croker to develop an Initial Needs Assessment to facilitate the applicant’s return to work. The applicant informed Ms Croker that she would not return to work unless the Department met her “list of demands” including mediation between herself, Mr Schwager and Ms Staltari. She withdrew the demand for mediation some days later as she stated that she would not work with Mr Schwager 15.
[22] The applicant agreed that although she had refused to return to work on the basis that her workplace was unsafe she had not provided any further medical evidence to support this claim, despite having been requested to do so and having been given a number of opportunities to do so between August 2011 and May 2012. It was the applicant’s evidence that she didn’t know what evidence the Department required and that it was for this reason that she did not proffer further evidence when directed to do so by Mr Byron on 20 April 2012 and 7 May 2012 16.
[23] The applicant conceded that she had not provided any evidence despite Mr Byron informing her on 28 May 2012 that he had reached a preliminary view that she had abandoned her employment 17.
[24] The applicant denied that the reason she refused to return to work or to provide any further medical evidence for her absence was because she was awaiting the outcome of her appeal against the denial of her Comcare claim but conceded that she had no medical reason not to participate in the development of a return to work plan.
[25] It was put to the applicant that despite Mr Byron stating in his letters to her that she had been on unauthorised leave since 23 August 2012 she did not bring to Mr Byron’s attention the email she had received, dated 9 February 2012, which stated that her leave had been authorised. The applicant agreed that she had complained to the Fair Work Ombudsman that the Department had placed her on “unauthorised leave without pay”, a category which she did not believe existed. It was also her evidence that although she had been told in early August that her paid leave would run out before the end of August she did not submit a further application for leave. She agreed that she had received an email from the Department dated 23 August 2012 in the following terms
“In the department’s email to you dated 23 August 2011 you were advised that the department was unable to consider the restriction which required you to be placed in a position without a stressor, and that you would be placed on unauthorised leave without pay until such time you either returned to duty or provided medical evidence that you were unfit for duty” 18
[26] The applicant agreed that she had not “put up much of a fight” in relation to Mr Byron’s preliminary decision to terminate her employment and had actually requested that the decision be expedited so that she could access unemployment benefits 19. The applicant agreed that she had not at any time asked Mr Byron not to terminate her employment or suggested that such a termination would be unfair.20 She also conceded that she had not challenged with Mr Byron his decision of 18 June to terminate her employment but had always intended to challenge it once made and had done so on the date the termination took effect.
The Department
[27] Elizabeth Staltari, Injury Prevention and Management Advisor with the Department, filed a witness statement 21 and was cross-examined at the hearing.
[28] Ms Staltari’s evidence covered her dealings with the applicant as her rehabilitation case manager. She noted that she had engaged a rehabilitation provider to assist the applicant to return to full time work following a period of extended leave that the applicant had taken as a consequence of the incident with Mr Schwager in July 2009.
[29] It was Ms Staltari’s evidence that, having returned to work in January 2011, the applicant had sent her an email expressing concern about Mr Schwager being appointed as her Division Head and stating that she could not work with him. Ms Staltari had advised the applicant to discuss the matter with her rehabilitation provider but the applicant had advised her that she would apply for leave and await the outcome of the Federal Court Appeal from the AAT decision to refuse her Comcare claim concerning Mr Schwager.
[30] When cross-examined Ms Staltari stated that the applicant had made it clear that she would not return to the Department unless “we got rid of Mr Schwager” and that was not going to happen 22. According to Ms Staltari offers were made to move the applicant elsewhere in the Department but the applicant would not return to work.
[31] Ms Staltari was also questioned about the leave the applicant was on from 23 August 2011 until February 2012. It was her evidence that although she had not processed the applicant’s leave it was her understanding that as the applicant had not applied for leave and had exhausted her paid leave she was on “unauthorised leave without pay”. In August 2011 she had informed the applicant that this would be the case unless the applicant provided an acceptable medical certificate explaining her absence. The applicant’s medical certificate stated that she was fit to return to the workplace without a stressor. Ms Staltari advised the applicant that the Department would need additional evidence as to the nature of the “stressor” in order to determine whether the applicant’s leave was supported by the medical certificate 23. The applicant did not supply any additional evidence despite being requested to do so.
[32] Carol Ann Crocker is the principal of an injury management and rehabilitation organisation. The primary focus of Ms Crocker’s work is workplace rehabilitation. According to her statement 24, Ms Crocker provides her services to a large number of Commonwealth Departments and Agencies.
[33] Ms Crocker was contracted by the Department to provide a return to work service in respect of the applicant. She met with Ms Staltari, the applicant’s case manager, on 15 February and was given a brief overview of the applicant’s requirements and asked to carry out an initial needs assessment (INA) as recommended by the applicant’s general practitioner. Ms Crocker detailed the steps she had taken to perform the INA including discussions with the applicant, and discussions held with the applicant’s supervisors concerning suitable duties for the applicant.
[34] Ms Crocker had continued in her attempts to prepare the INA in preparation for the development of a return to work program for the applicant but the applicant refused to discuss the matter further following her first interview. The applicant had informed Ms Crocker of her demands indicating that unless the Department met these demands she would not return to work.
[35] Under cross-examination Ms Crocker explained that she had not contacted the applicant’s GP for the purposes of the INA as she had sufficient medical evidence for the INA. She noted that she would have contacted medical practitioners when preparing the return to work plan but because the applicant would not take part in the preparation of the plan the occasion did not arise. Ms Crocker also stated that in the interview she conducted with the applicant it was her view that the applicant understood the process and answered the questions clearly and without confusion.
[36] Ms Crocker reiterated that, at the conclusion of the first interview, the applicant had given her a list of requirements that the Department would need to meet prior to any further steps being taken in relation to the preparation of the return to work plan. Ms Crocker had told the applicant that she thought it unlikely that the Department would meet those demands. She understood that the Department subsequently wrote a letter to that effect, so that there was no basis upon which she could continue the assessment to its conclusion.
[37] Richard Byron is the General Manager, Human Resources with the Department. Mr Byron filed a witness statement 25 setting out the history of his interaction with the applicant and the manner in which the termination of the applicant’s employment occurred.
[38] It was Mr Byron’s evidence that he had met with the applicant in February 2011 to discuss her concerns about working with Mr Schwager. He had made a number of offers to the applicant concerning ways in which any concerns she may have had could be allayed. These offers were not accepted as the applicant indicated that she would prefer to take leave and await the outcome of her appeal on her Comcare claim.
[39] Mr Byron’s evidence also covered the letters he had sent to the applicant following her refusal, in March 2012, to continue participation in the development of a return to work plan. He had on two occasions directed her to return to the workplace. When the applicant refused, Mr Byron issued a “show cause” letter. The applicant provided no further evidence or explanation as a consequence of the letter. The applicant also requested that he make his decision about termination of her employment without delay so as to permit her access to unemployment benefits or superannuation payments 26.
[40] Under cross-examination Mr Byron denied that his letter to the applicant of 20 April 2012 had advised her that if she did not return to work her position would be terminated, noting that he had issued two directions to the applicant, one on 20 April and a second on 7 May, each requiring her to return to work on a specified date.
[41] It was put to Mr Byron that the applicant had responded to the 20 April direction on 26 and 29 April 2012, stating that she had decided not to return to work as the workplace was not safe. Mr Byron noted that he had outlined, in his preliminary decision concerning the applicant’s dismissal, the reasons why he believed the workplace to be safe and had also provided a further opportunity for the applicant to put any other material before him. No additional material was provided
[42] In response to a question concerning the Department’s failure to accept the applicant’s offer to undergo a further medical assessment Mr Byron stated that he had a medical certificate, dated 13 February, from the applicant’s treating doctor saying that the applicant was fit to return to duty with a needs assessment report to be undertaken. The Department had complied with that certificate.
[43] Mr Byron’s evidence was that while the applicant had initiated a number of matters concerning Mr Schwager he was aware that the Court had upheld Mr Schwager’s conduct to have been reasonable. He noted that, as Mr Schwager’s position was that of Division Head, he was removed from the applicant in the hierarchy with some four reporting positions between the applicant and Mr Schwager. Mr Byron had also proposed a meeting be held with the applicant’s EL2 and EL1, and had offered to speak to Mr Schwager about any contact he would have with the applicant 27. On that basis, he believed there were sufficient safeguards to be assured that the workplace was safe.
[44] When cross-examined about the status of the applicant’s leave between 23 August 2011 and February 2012 it was Mr Byron’s view that the applicant was on unauthorised leave even though there had been a breakdown in the communications within the Department about the leave 28. He was aware that Ms Staltari had advised the applicant that she was on unauthorised leave from 23 August.
[45] When it was put to Mr Byron that his claim that the applicant had refused to participate in the return to work program was wrong, he conceded that the applicant had taken part in the INA but only in the initial stages.
[46] When asked why the Department had not agreed to mediation between the applicant and Mr Schwager Mr Byron noted that the applicant had withdrawn the request for mediation on 30 March 2012 when she had stated in an email, “I no longer request mediation with Michael Schwager. I will not work with him” 29.
Applicant’s Submissions
[47] The applicant submitted that, given the evidence about her interaction with the Department leading up to the termination of her employment, she could not be found to have abandoned her employment. She had a reasonable explanation for her absence which had been backed up by medical certificates. It as the applicant’s claim that the Department’s directions to return to work were not lawful as she was still covered by the return to work plan agreed in late 2009 and her return, in the circumstances, would have been in breach of that plan.
[48] The applicant noted that she had responded to all the correspondence sent to her by the Department, an activity inconsistent with her having abandoned her employment. It was also her submission that it was she who had initiated the return to work by providing the Department with the medical certificate in February 2012. She claimed that she had not applied for leave after 3 April 2012 because she was unaware that authorised leave had been granted by the Department only for the “first part of the initial needs assessment and return-to-work process, and for the final part of the process she would be deemed to be on unauthorised absence” 30. She claimed however that her medical certificate covered her until August 2012, the nominated review date.
[49] The applicant noted that the Department was claiming that she had been advised that she could attempt to provide a reasonable explanation or further medical evidence for her non-attendance so as to satisfy Mr Byron. It was her submission that she had already provided sufficient explanation and medical evidence that would have been accepted by a reasonable person or a person without bias. It was contended that Mr Byron was biased and determined to terminate the applicant’s employment.
[50] The applicant argued that the employer did not investigate the matter of the ‘stressor’ and therefore had failed to establish whether the workplace was safe. Further, it was put that she had not been on unauthorised leave from August 2011 as claimed by the Department, as the payroll records showed that her leave had been recorded as authorised leave without pay.
[51] It was submitted by the applicant that she had explained her absence from 23 August 2011 and had provided medical certificates for that purpose. In addition, it was put that the applicant was unable to comply with the directions of 20 April 2012 and 7 May 2012 as she considered the directions not to be lawful because it would have resulted in her deliberately breaching her return-to-work obligations under the Safety Rehabilitation and Compensation Act. The applicant contended that the Department’s actions were harsh, unjust and unreasonable, given that the Department failed to recognise that the matter was a health issue and was required to treat her fairly because of her disability.
[52] The applicant disputed the Department’s contentions that she should have provided further information concerning her medical condition and informed Mr Byron that her leave had been incorrectly described. It was the applicant’s position that it was for the Department to do a proper investigation and that all the necessary information was available to the Department had an effort been made to find it.
The Department’s Submissions
[53] The Department filed written submissions on 24 September 2012. The majority of the submissions dealt with the background of the matter and the Department’s jurisdictional objection. So far as the question of whether the dismissal was unfair was concerned the Department submitted that the applicant’s employment was terminated only after she had evinced an intention not to be bound by her employment contract and had abandoned her employment. It was put that there was a valid reason for the termination of the applicant’s employment and that the reasons were set out in the letter and attachments sent to the applicant by Mr Byron on 18 June 2012.
[54] In response to a number of matters put by the applicant the Department submitted that:
[55] The Department relied on a 2010 decision 31 of FWA for the proposition that a belief held by an employee that they don’t have to comply with a direction on safety grounds is not sufficient justification to not comply with a direction.
[56] It was the contention of the Department that at all times in her interactions with the Department the applicant was engaging in delaying tactics in the hope that her employment would continue until she succeeded in the Comcare litigation, at which time she would proceed on compensation leave indefinitely.
[57] It was noted in this respect that, despite the applicant’s assertions that she did not know what other evidence she could provide to the department to support her claims that her absence was justified, Mr Byron had informed her clearly in his letter of 7 May 2012 what evidence was necessary for her to make out a claim for personal leave.
[58] Further, it was put for the Department that the applicant deliberately did nothing to challenge Mr Byron’s preliminary decision to terminate her employment. Rather she had invited it and asked him to get on with it and then, on the day her termination took effect, the applicant lodged her unfair dismissal claim.
[59] It was the Department’s position that there was a safe workplace to which the applicant could return to and her employer had taken numerous steps to provide her with a safe workplace. All she had to do was to continue the discussions with Ms Croker but she freely chose not to do so.
[60] The Department contended that the applicant had given no cogent evidence as to why her dismissal was unfair. The applicant was aware that it was her own actions which had brought about the termination of her employment and she had informed Ms Croker that she would be terminated on 27 April 2012 despite the fact that she was not due to meet with the Department until 30 April 2012.
[61] It was also the contention of the Department that the applicant had only recently fabricated the story that she developed during her evidence that she had been coerced by Ms Staltari into lodging her Comcare claim in early September 2009. She had apparently reached a view that to make such a claim would assist her, despite never having suggested such a thing in her litigation over the matter in the preceding two years. The applicant had maintained this claim despite the denials of Ms Staltari and the fact that the objective evidence did not support it. It was put for the Department that this claim demonstrated the inconsistent and unreliable nature of the applicant’s evidence. It was submitted that the applicant was prepared to tailor her version of events in whatever way she considers would be favourable to her.
[62] Finally it was noted that the applicant did not seek reinstatement but compensation. In this respect it was put that under s.392 of the Act a factor for consideration by the tribunal in determining compensation was the remuneration that the applicant would have received had she remained in employment. It was the Department’s submission that the applicant would not have received any remuneration because she refused to attend work and was not on any form of leave. In addition to this, it was contended that the tribunal must have regard to the efforts of the applicant to mitigate her loss and it was the applicant’s evidence that she had made no such effort to mitigate her loss.
Applicant in response
[63] The applicant submitted that she had been unable to seek employment since her position was terminated as she was suffering an anxiety disorder.
[64] It was also put by the applicant that her dealings with the Department had been difficult, in particular her communications with them had been affected by the underlying stress.
[65] Finally it was the applicant’s submission that her condition accounted for any irrational, unusual, or inconsistent decisions she may have made.
Jurisdiction
Was there a termination at the initiative of the employer?
[66] It was the position of the Department that in this case there was no termination of the applicant’s employment at the initiative of the employer but that the applicant had, in fact, abandoned her employment.
[67] I am satisfied that although the applicant refused to return to work she had not, in fact, abandoned her employment. She remained in contact with her employer and despite failing to obey the Department’s directions to return to the workplace her actions were not consistent with those of an employee who “abandons” their employment.
[68] Abandonment of employment was considered by Vice President Watson in Lazar v Inghams Enterprises Pty Ltd 32
[12].... I consider that the law is adequately stated in the Full Bench decision of Searle v Moly Mines Limited 33 (the Searle Case), as applied in various other cases, including the case of Sharpe v MCG Group Pty Ltd34 (the Sharpe Case), a decision of Commissioner Asbury of 22 March 2010. The relevant law arising from those decisions is that an abandonment of employment does not in itself terminate the contract of employment or the employment relationship, that when an abandonment of employment occurs, the employer has an option of accepting a repudiation and bringing the employment relationship to an end or considering the reasons for the absence and allowing the employment relationship to remain on foot.
...
...[15] Nevertheless, the Full Bench in the Searle Case found that the abandonment of employment did not terminate the employment, that it allowed the employer to waive or accept the repudiation and that a further action was required by the employer to terminate the employment which it found had occurred in that case contrary to the findings of the Commissioner at first instance. Commissioner Asbury in the Sharpe Case applied that approach and although she did note a decision of Commissioner Simmonds which appears to be to the contrary effect, 35 ultimately applied the same principle and found that the abandonment of employment did not terminate the employment, the subsequent action of the employer amounted to the termination of employment and relevantly provided jurisdiction for an unfair dismissal remedy in that case.36
[69] I find that the applicant’s employment was terminated at the initiative of the employer as a consequence of her failure to return to the workplace as directed by the employer.
[70] The applicant was dismissed within the meaning of the term in s.394 of the Act.
Was the dismissal unfair?
[71] In determining this matter I have had regard to the factors set out in s.387 of the Act.
(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)
[72] I am satisfied that there was a valid reason for the applicant’s dismissal. Her wilful refusal to abide by her employer’s directives to attend the workplace or to offer any proper medical evidence for her failure to do so was a valid reason for the termination.
(b) whether the person was notified of that reason
[73] The applicant was notified of the reason for her dismissal.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[74] The applicant was given an opportunity to respond to the employer’s reasons for terminating her employment. Mr Byron had informed the applicant that her termination was imminent, and the reasons why her termination was imminent. The applicant was provided with the opportunity to respond this information prior to her termination, though repeatedly elected not to.
(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
[75] This criteria has no application to this matter as there were no discussions concerning the dismissal as the applicant refused to attend at the workplace.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[76] The dismissal related solely to the applicant’s refusal to return to work in circumstances where she had provided no medical reason for her failure to do so.
(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
[77] The Department is a large Commonwealth government agency and, as such, it is unlikely that the size of the agency would impact on the procedures followed in effecting the dismissal. It is likely that the agency would have followed its own policies and procedures in this regard together with those that apply more generally to the Commonwealth public service.
(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
[78] The Department has dedicated human resource management expertise and it is clear that this expertise was accessed for the purposes of effecting the dismissal.
(h) any other matters that FWA considers relevant.
[79] I have taken into account the history of the applicant’s compensation claims against the Department and her former employer in reaching my conclusions in this matter. The applicant was successful in her appeal against the refusal of her claim against her previous Department. She was unsuccessful in her appeals against the refusal of her claim against the Department. At the time she persisted in her refusal to return to work her claim had been dismissed but she had appealed the decision. The decision rejecting that appeal was not made until her employment had been terminated. I am satisfied, on the evidence, that the applicant’s refusal to return to work was largely motivated by her expectation that she would be successful in her appeal and would be awarded compensation which covered the period for which she was absent.
[80] I have also taken into account the applicant’s expressions of concern that the workplace was unsafe. I do not accept that this was a reasonable concern in all the circumstances. If there was validity to this claim then the applicant should have responded to repeated requests by her employer for her to provide medical advice to this effect. She refused to do so, claiming during the hearing that she was unaware of the nature of the evidence required by the Department. I am satisfied that, given the history of the applicant’s compensation claims, she was well aware of the nature of the medical evidence that was required to legitimise her absence.
Conclusion
[81] Having heard all the evidence in this matter and having observed the applicant in the witness box and in her cross-examination of the Department’s witnesses, I am satisfied that the Department gave the applicant every reasonable opportunity to return to work and did not act with undue haste in reaching the conclusion that the applicant’s employment should be terminated. I also accept that, at all material times, the applicant believed that her leave from 23 August 2011 had not been authorised. I am satisfied that a mistake was made in recording the type of leave and that it was not properly authorised. In my view that period that is most important in providing the valid reason for the termination commenced in late March 2012 when the applicant made it clear that she would not participate in the return to work process.
[82] Every opportunity was given to the applicant to arrange a proper return to work program but she refused to take part in the process. She made unreasonable demands of the Department and put as many obstacles in the way of her return to work as she could muster. The Department acted properly in all its dealings with the applicant, who was clearly a difficult employee who necessitated the application of a disproportionate amount of Departmental resources.
[83] The applicant made no effort to prevent the termination of her employment or even to contest it in any way until the decision had taken effect.
[84] I am satisfied that the applicant’s dismissal was not harsh, unjust or unreasonable. As the dismissal was not unfair the application is dismissed.
COMMISSIONER
Appearances:
The Applicant in person
Ms S Wright with Ms T Williams, of the Australian Government Solicitor, for the Respondent
Hearing details:
2012.
Canberra:
October 2, 3
1 Exhibit D1
2 Exhibit D2
3 Exhibit D3
4 Exhibit W4 Attachment 9
5 Transcript PN138
6 Transcript PN144
7 Exhibit W1
8 Transcript PN165
9 Exhibit W2
10 Transcript PN178
11 Transcript PN178
12 Exhibit W3
13 Transcript PN192
14 Transcript PN229
15 Transcript PN 306
16 Transcript PN318
17 Transcript PN322
18 Transcript PN375
19 Transcript PN393
20 Transcript PN396
21 Exhibit W4
22 Transcript PN933
23 Transcript PN925
24 Exhibit W6
25 Exhibit W7
26 Transcript PN1939
27 Transcript PN1984
28 Transcript PN1639
29 Transcript PN1983
30 Transcript PN1887
31 Darvell v Australia Post [2009] FWA1406 at [97]
32 [2012]FWA8815
35 Georgevski v Caroma Industries Limited [2001] AIRC 1135.
Printed by authority of the Commonwealth Government Printer
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