| [2022] FWC 2001 [Note: An appeal pursuant to s.604 (C2022/5695) was lodged against this decision.] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Karina Zelesco
v
Australian Postal Corporation
(U2021/11105)
DEPUTY PRESIDENT MILLHOUSE |
MELBOURNE, 28 JULY 2022 |
Application for an unfair dismissal remedy – incapacity to perform the inherent requirements of a position – whether dismissal harsh, unjust or unreasonable
[1] This decision concerns an application made by the applicant for an unfair dismissal remedy under s 394(1) of the Fair Work Act 2009 (Cth) (Act).
[2] The applicant was employed by Australian Postal Corporation (Australia Post) as a Mail Officer at the Dandenong Letter Centre. She was “medically retired” within the meaning of the Australia Post Enterprise Agreement 2017 1 (Agreement) with effect on 15 September 2021.
[3] The applicant contends that she was unfairly dismissed. Australia Post’s position is that it had a valid reason for medically retiring the applicant, who had been absent from work on leave for eight months beyond the 78-week continuous absence period provided by the Agreement. It submits that the decision to medically retire the applicant was not harsh, unjust or unreasonable in light of the medical evidence which does not support her return to work.
[4] For the reasons that follow, I have concluded that the applicant’s dismissal was not harsh, unjust or unreasonable. Accordingly, the application for an unfair dismissal remedy is dismissed.
[5] The application proceeded by way of a hearing. 2 The applicant gave evidence on her own behalf. Australia Post led evidence from the Head of myHR at Australia Post, Mr Sokratis Kokonis, the Manager of Non-Work Related Medical Support Services Unit, myHR, Mr Scott Allison, and a psychiatrist responsible for assessing the applicant’s fitness for work, Dr Erin Redmond. Australia Post was legally represented, with permission.3
[6] Section 396 of the Act sets out four matters which I am required to determine before I consider the merits of the application. As to the first matter, the applicant’s unfair dismissal application was not made within the timeframe prescribed by s 394(2) of the Act. On 5 April 2022, the Commission granted an extension of time for the lodgement of the unfair dismissal application to 2 December 2021, being the date that the application was actually made. 4
[7] As to the balance of the matters, there is no dispute between the parties, and I am satisfied that the applicant was protected from unfair dismissal within the meaning of s 382 of the Act; the Small Business Fair Dismissal Code did not apply to the applicant’s dismissal; and the dismissal was not a case of genuine redundancy.
[8] On 20 May 2022, the applicant made an application for her name, certain medical evidence and personal details to be kept confidential and not published on the public record. The applicant was invited to particularise her request and provided supplementary information by way of three emails dated 23 May 2022, oral submissions at the hearing and further written submissions by way of an email dated 29 May 2022.
[9] Having regard to the applicant’s submissions, I understand that the applicant also seeks that the names of doctors and medical specialists, as well as information she shared with them, to be anonymised in the decision. Further, the applicant seeks that the names of certain third parties be anonymised and other information such as her workplace and “IQ” only be briefly mentioned.
[10] I understand that the confidentiality application is made pursuant to ss 594(1)(b) and 594(1)(c) of the Act. In deciding whether to grant the application, I must balance the principle of open justice against the effects of identification on the applicant and the nominated persons. 5 Australia Post submits that the threshold for making a confidentiality order has not been made out.6
[11] The applicant has not pointed to a sufficient reason in support of her application to anonymise her name in the decision. Mere embarrassment, distress or damage by publicity is not a sufficient basis to grant an application for a confidentiality order. 7 Relevantly, there is a published decision in respect of the extension of time proceedings that is not anonymised, and no request has been made for a confidentiality order in respect of it. Nor am I persuaded that there is any sound basis for anonymising the names of the treating medical practitioners that would outweigh the principle of open justice. I cannot identify any harm that will come from the limited identification of third parties in this decision. I therefore decline the applicant’s request for her name and that of her treating practitioners or third parties to be anonymised or altered pursuant to s 594(1)(b) of the Act.
[12] This is a case that turns upon the content of medical evidence. The applicant accepts that there are aspects of this evidence that are important in determining the outcome of her application. 8 In these circumstances, I do not consider it appropriate for the medical evidence to be treated as confidential and not published in this decision pursuant to s 594(1)(c) of the Act. However, I am persuaded that it is appropriate to limit access to a copy of the medical evidence received by the Commission in this matter to a person who is a party to this proceeding and for the limited purposes of the proceedings only. A confidentiality order in these terms is issued with this decision.9
[13] The applicant commenced employment with Australia Post on a permanent basis on 28 November 2011. She worked as a Mail Officer at the Dandenong Letters Centre, 10 a position which she remained in until her medical retirement.
[14] On 15 February 2019, the applicant was involved in an incident at her workplace leading to her suspension on 18 February 2019. 11 The incident involved the applicant raising a large wooden stick capped by a metal hook towards her colleagues.12 Through the incident response procedures, the applicant attended a violence assessment on 26 February 2019.13 The consultant concluded that the applicant was able to participate in Australia Post’s disciplinary investigation but stated that the applicant may be suffering from an underlying mental health condition.14
[15] The applicant participated in an interview on 20 March 2019 in relation to the 15 February 2019 incident. 15 A disciplinary inquiry report was handed down on 8 April 2019.16 It recommended that the applicant be dismissed from her employment,17 but Australia Post did not act on this recommendation.
[16] Rather, the applicant was referred for a psychiatric assessment which took place on 16 May 2019. 18 In a report dated 7 June 2019 the psychiatrist, Dr Kevin O’Daly, recommended that the applicant remain on sick leave until she underwent a neuropsychological and cognitive assessment, and a diagnosis could be confirmed.19
[17] The applicant remained suspended with pay until 9 June 2019. Between 10 June and 5 July 2019, the applicant used her accrued annual leave and purchased leave entitlements. 20 Between 6 July 2019 and 28 August 2021, the applicant was on paid sick leave. From 28 August 2021, the applicant was partly on sick leave without pay.21 In the pay period commencing 5 September 2019 until the dismissal, the applicant was on unpaid sick leave.22
[18] The applicant attended an assessment with neuropsychologist Mr Martin Jackson on 20 August 2019. By way of report dated 13 September 2019, 23 the neuropsychologist raised the possibility that the applicant had a “Non-Verbal Learning Disability.” The neuropsychologist determined that the applicant was capable of returning to her role subject to “the one restriction of being able to focus on doing one job at a time. No other restrictions are required. This restriction is permanent.”24
[19] Following consideration of Mr Jackson’s report, Australia Post determined that it could not accommodate the requirement that the applicant perform only one job at a time. It concluded that it would not be possible for the applicant to only use one machine without rotating duties having regard to (a) the nature of the role which involved receiving multiple instructions at once; and (b) the increased risk to the applicant’s health and safety arising from repetitive actions, and others in the workplace who would need to increase their workload. 25
[20] Australia Post maintained contact with the applicant through Mr Allison, who gave evidence in the proceeding. At a meeting with the applicant on 13 March 2020, Mr Allison informed the applicant of Australia Post’s decision not to accommodate her with the restrictions advised by Mr Jackson. 26 Consideration was given to moving the applicant into another role.27
[21] On 1 July 2020, Mr Allison spoke with the applicant by telephone. The applicant informed Mr Allison that she had increased symptoms of depression and anxiety. Mr Allison advised the applicant that a recruitment freeze was in place which may make it difficult to identify vacancies in alternative positions. Mr Allison also raised with the applicant orally and in writing that under the Australia Post Enterprise Agreement 2017 28 (Agreement) a person continuously absent for more than 78 weeks can be medically retired on incapacity grounds.29 Mr Allison detailed the contents of this conversation by email to the applicant on 13 July 2020.30
[22] In or about September 2020, the applicant provided a certificate from Centrelink stating that she was unfit for work. Mr Allison’s position is that the applicant made it clear that she was not looking at returning to the workplace at that time, 31 however this certificate is not in evidence.
[23] On 19 March 2021, Mr Allison wrote to the applicant stating that it was Australia Post’s intention to medically retire her subject to any further information provided by the applicant. 32 The applicant sought further time to provide her response and raised concerns that no attempts had been made by Australia Post to medically assess her for over a year.33 Mr Allison sent a follow up letter to the applicant on 20 April 2021 in which the applicant was invited to provide any new medical information she believes warrants consideration.34
[24] On 28 April 2021, the applicant’s general practitioner issued a medical certificate stating that the applicant was suffering from a medical condition but that she had recovered and was “fit for her normal work” from 3 May 2021. 35 The applicant provided Mr Allison a copy of this certificate on 4 May 2021.36 Australia Post suspended the medical retirement process on the basis of this advice and referred the applicant to Mr Jackson, the neuropsychologist, for a further assessment.37
[25] The applicant’s further assessment with the neuropsychologist, Mr Jackson took place on 25 May 2021. Mr Jackson’s supplementary report dated 15 June 2021 38 advised that while the applicant did not have any particular learning disability, her cognitive functions were in the low to average, and borderline range. Mr Jackson determined that the applicant was fit to return to work with no restrictions. However, this advice did not take into account matters beyond Mr Jackson’s area of expertise, and it was advised by Mr Jackson that the applicant’s “personality or psychological issues” be further assessed.39
[26] Australia Post advised the applicant of the outcome of Mr Jackson’s assessment on 24 June 2021. The letter to the applicant explained that due to the inconclusive nature of Mr Jackson’s report, the applicant would be sent for a fitness for duty assessment with consultant psychiatrist, Dr Redmond. 40 Also on 24 June 2021, the applicant sent an email to Mr Allison’s colleague Ms Karen Shelton, her union representative and a member of parliament stating amongst other things, that “full time would be too much for me.”41
[27] The applicant’s assessment by Dr Redmond took place on 14 July 2021. 42 Dr Redmond’s report dated 3 August 202143 advised that the applicant was fit to return to work gradually, perhaps undertaking alternative duties, and advised against medical retirement.44
[28] Mr Allison wrote to the applicant on 12 August 2021 45 advising that Australia Post would not proceed with medical retirement based on the medical reports. Rather, Australia Post would commence the process of gradually returning the applicant to work. The applicant was to contact Mr Rod Hoober, Facility Manager at the Dandenong Letters Centre, and arrange to meet to discuss her return.46
[29] At or about this time, the applicant had commenced sending a series of text messages and emails to various Australia Post employees. 47 Facility Manager, Mr Hoober, was contacted by the applicant over 20 times in one weekend. A senior Australia Post executive received ten emails despite not being involved in the applicant’s case. The volume and content of these communications led to Australia Post arranging a further report from Dr Redmond. The only additional information available to Dr Redmond was the text messages and emails.48
[30] During a telephone conference with Australia Post and Mr Jackson on 23 August 2021, Dr Redmond provided an updated recommendation that the applicant was not fit for work, was unlikely to ever be, and recommended that Australia Post should “medically retire” the applicant. 49
[31] On 29 August 2021, the applicant sent an email to Mr Hoober in which she disclosed that she had brought a knife to work in February 2019. Mr Allison provided Dr Redmond with a copy of this email. 50
[32] Dr Redmond provided a supplementary report dated 31 August 2021 confirming her modified diagnosis (Supplementary Report). 51 The Supplementary Report advised that the applicant was unfit to return to work, that her mental illness was permanent in nature and that the process of medical retirement should proceed. Dr Redmond diagnosed the applicant with “a disorder in the paranoid spectrum” noting that “one might even consider that she had a low grade psychotic illness...”52
[33] A letter dated 1 September 2021 was sent from Mr Kokonis, Head of myHR, People and Culture, to the applicant as notification that she would be medically retired on 15 September 2021 (Medical Retirement Letter).
[34] The Medical Retirement Letter provides that the letter constitutes “Notification of retirement on the medical grounds of incapacity.” 53 It relevantly states as follows:
“It is noted that you have been on continuous absence since 6 July 2019 suffering from adjustment disorder, anxiety and depression.
Under the Australia Post Enterprise Agreement 2017 staff may avail of up to 78 weeks continuous absence. You reached that timeframe of 78 weeks continuous absence on 2 January 2021.
You were sent an advice dated 19 March 2021 from Mr Scott Allison in which you were invited to submit any further information for consideration, prior to Australia Post proceeding to medically retire you. You were given until Tuesday 6 April 2021 to submit any such information. However, if you had no further information, there was no requirement for you to take any further action. It is noted that you sent a letter to Mr Allison dated 26 March 2021 requesting you be granted an extension which was approved, but you did not actually submit any further information at that time. As such a notification of medical retirement dated 20 April 2021 was forwarded to you.
Following this you did send through a certificate from your GP, Dr Wu, dated 28 April 2021 in which she supported you to resume duty stating you were now fit to return to work.
Arrangements were then made for you to be scheduled to attend a medical assessment with an Australia Post nominated psychiatrist. This assessment was delayed for a variety of reasons and you eventually attended this assessment on 14 July 2021 with Dr Erin Redmond and at this stage Dr Redmond cleared you to resume duty.
Mr Allison then wrote to you in an advice dated 12 August 2021 and confirmed you were now considered fit to resume duty. He requested you make contact with Mr Rod Hoober to arrange a meeting to discuss this resumption.
Following this you proceeded to send through various communication via email to a number of different parties within Australia Post. Some of the content of these communications concerned Australia Post deeply and raised further concerns as to your health and wellbeing and your capacity to resume duty.
As such, arrangements were made to seek further advice and recommendations from Dr Redmond and after a discussion between Dr Redmond and Mr Allison, Dr Redmond has provided a further supplementary report. Dr Redmond has now advised that you are not fit for duty and furthermore, she recommends that medical retirement is now appropriate.
I have now reviewed your whole situation including your period of continued absence; the additional timeframe granted to you in excess of 78 weeks, approximately 8 months; along with your further advice to Mr Allison of 26 March 2021; the further communications you sent to various parties within Australia Post; the subsequent further views from Dr Redmond; and after consideration of all such factors I now wish to advise that medical retirement on the grounds of incapacity will proceed.
Therefore, we will now proceed to medically retire you on the grounds of incapacity. This will be with effect from close of business 15 September 2021. The decision is made pursuant to clause 3 of the Australia Post Principal Determination.
You have a right to request a review of the decision to incapacity retire you on medical grounds by a Board of Reference Chairman, pursuant to clause 5 – Grievances of the Australia Post Principal Determination, if you consider the decision to be harsh, unreasonable, unjust or unfair...”
[35] The applicant lodged an internal appeal of the decision on 11 September 2021. 54 The Board of Reference conducted a hearing in respect of the appeal on 16 November 2021. On 18 November 2021, the Board of Reference handed down its decision, finding that the decision to medically retire the applicant was not “harsh, unjust or unreasonable.”55
The medical evidence
[36] The following provides a relevant summary of the medical evidence before the Commission.
[37] The applicant attended a psychiatric assessment conducted by Dr O’Daly on 16 May 2019. Dr O’Daly’s report of 7 June 2019 56 advised that the applicant meets the diagnostic criteria for the conditions of:
(a) adjustment disorder with mixed anxiety and depression;
(b) paranoid, borderline, avoidant and dependent personality traits; and
(c) mild intellectual disability.
[38] Dr O’Daly advised that the applicant should remain absent from the workplace until she underwent a neuropsychology/IQ assessment. Dr O’Daly noted that the applicant was not in receipt of any appropriate treatment. His impression was that while the applicant’s short-term prognosis is poor, the long-term prognosis could improve with treatment, therapy and counselling. Dr O’Daly concluded that the applicant was not fit to perform the inherent requirements of her role as a Mail Officer and presented a safety risk to herself and others. Further, he opined that the applicant was not fit to continue participating in disciplinary discussions regarding the 15 February 2019 incident. Dr O’Daly recommended that treatment occur over a three-month period before further review.
[39] The applicant attended a neuropsychological assessment conducted by consultant clinical neuropsychologist Mr Jackson on 20 August 2019. Mr Jackson’s report of 13 September 2019 57 advised that:
(a) the applicant’s verbal and intellectual abilities, perceptual intellectual abilities, basic processing speed, memory, language skills, verbal skills, organisation and planning skills were within the low average range;
(b) some skills such as delayed information recall fell into the extremely low range;
(c) letter fluency was high average;
(d) the applicant did not present with overt symptoms of a mood, psychotic or behavioural disorder; and
(e) the applicant’s results indicated a mild impairment in the areas of some aspects of perceptual intellectual abilities, high level attention, some perceptual executive skills and complex visual memory.
[40] Mr Jackson concluded that the applicant may fit the criteria for a diagnosis of a “Non-Verbal Learning Disability.” Mr Jackson expressed concern over the applicant’s capacity to do multiple things at the same time. He concluded that the applicant had the ability to perform the inherent requirements of her position as a Mail Officer with the restriction of doing one job at a time. He regarded this restriction to be permanent.
[41] On 28 April 2021, the applicant’s general practitioner, Dr Wu, issued a medical certificate stating that the applicant was suffering from a medical condition but that she had recovered and was “fit for her normal work” from 3 May 2021. 58
[42] Mr Jackson conducted a further neuropsychological assessment of the applicant on 25 May 2021. Mr Jackson’s further report of 15 June 2021 59 noted that:
(a) Australia Post had determined it was not possible to permit the applicant to perform her role on the basis of the restriction he earlier identified;
(b) due to a lack of any suitable vacancies combined with the applicant’s inability or unwillingness to participate in a process of security other possible roles, the applicant remained on sick leave;
(c) the applicant has not provided any medical certificates or reports indicating she is fit to resume duty;
(d) the applicant did not attend a psychologist appointment for about a year after Mr Jackson conducted his first assessment; and
(e) the only new medical record before him was that of the applicant’s general practitioner which advised that the applicant had “recovered” and was fit for her normal duties from 3 May 2021.
[43] Mr Jackson stated that the applicant’s subsequent neuropsychological assessment disclosed similar outcomes to those of her earlier assessment, with the exception that the applicant’s capacity for making errors had reduced and her ability to remember more complex verbal information had improved.
[44] Mr Jackson concluded that these matters demonstrated that the applicant held the ability to learn and remember new skills, such that any issues in the workplace were no longer cognitive but personality related. Mr Jackson stated that it was beyond the scope of his report to assess the applicant’s personality, mood or behaviours, which would require assessment from a clinical psychologist. Subject to such an assessment, Mr Jackson regarded the applicant as fit to perform the inherent requirements of her position and the restrictions he had earlier stated in his first report of to be “permanent in nature” were no longer necessary.
[45] The applicant was assessed by consultant psychiatrist Dr Redmond on 14 July 2021. Dr Redmond’s report dated 3 August 2021 60 found that the applicant, who had been seeing a psychologist, had the capacity to return to work as a Mail Officer but “she is clear that she would prefer to return to a different area of Australia Post and is not interested to return to her nominal role.” Dr Redmond considered a role in a different department would be more appropriate, including in the “Parcel area.” Dr Redmond suggested a gradual return to work over a 12-week period, noting that the applicant was “unsure herself whether she can manage full time duties.”61
[46] Dr Redmond concluded that “I do not believe that medical retirement on the grounds of her incapacity to perform her nominal role is appropriate at this stage.” 62
[47] Dr Redmond produced her Supplementary Report on 31 August 2021 following receipt of the emails summarised at [55]-[56] of this decision. The Supplementary Report relevantly stated: 63
(a) after being advised by Australia Post of her return to work in her nominal role, the applicant began “sending very odd emails to multiple and inappropriate recipients. The emails contained quite significant persecutory content as well as denying her responsibility for the incident at work that caused so much concern originally. Her comments in the emails suggested that she was very ambivalent about returning to work. She admitted she was very happy at home and thought perhaps she could work one day a week”;
(b) “over the next few days the number and odd content of her emails escalated. She sent them to many inappropriate people and from the content of these emails, I considered that her mental state was deteriorating simply at the thought of returning to work”; and
(c) “it is therefore my opinion that an attempt to return to work is no longer appropriate.”
[48] Dr Redmond concluded that the applicant “has some underlying paranoid disorder…along the lines of either a delusional disorder or paranoid personality style.” Dr Redmond diagnosed the applicant with a disorder in the paranoid spectrum or “one may even consider that she had a low grade psychotic illness with loosening of associations, odd affect, marked ambivalence, and ‘autisim’…” Dr Redmond considered the applicant to be unfit to return to work and may benefit from low dose antipsychotic medication. Dr Redmond stated that it appeared that the thought of returning to work led to a deterioration in the applicant’s mental state. Dr Redmond said “Thus, I believe while her mental state may improve a little, the symptoms of her underlying illness have been exacerbated by the stressor of the reality of returning to work. Thus, I consider mental illness is permanent in nature and I do not consider she has a capacity to return to work.” 64
[49] Dr Redmond concluded that she regarded it to be appropriate that the applicant’s medical retirement proceed.
[50] Australia Post called Dr Redmond to give evidence at the hearing. Dr Redmond spoke to her 20-year history of work as a consultant psychologist and affirmed the content of the Supplementary Report.
[51] Dr Redmond explained that following her in-person assessment with the applicant on 14 July 2021, Dr Redmond did not feel she could assert that the applicant had an underlying psychotic illness in her first report of 3 August 2021. This was notwithstanding there were “hints of it” in the applicant’s demeanour during the assessment. 65 Dr Redmond said that she had concerns about the applicant’s capacity and had initially thought “it was a bit lineball” as to whether the applicant should return to work at all. However, the applicant seemed very keen to return to work and Dr Redmond felt it was appropriate she be given a chance to attempt this.66
[52] Three weeks after issuing her first report, Dr Redmond was provided with copies of various emails that were sent by the applicant after Australia Post had informed the applicant of its process for her return to work. Dr Redmond described the emails as “disordered” and “one email that was of huge concern,” which involved the applicant bringing a knife to work. Dr Redmond also noted that the applicant “was also expressing concerns about whether she really did want to return to work, and she expressed some concerns maybe she shouldn’t go back to work.” Dr Redmond regarded the applicant to be “profoundly ambivalent” about this which, together with the “oddness of her affect,” led Dr Redmond to conclude that the applicant had “simple schizophrenia.” 67
[53] Dr Redmond said that “even the notion of returning to work made [the applicant] become even less well” and that it is very common for persons with psychotic illnesses to be “okay when they’re at home and in a good routine” but as soon as demands from employment are placed upon them “they will start to exhibit odd behaviour, more florid sort of persecutory thoughts.” Dr Redmond concluded that the applicant “was not going to stand up to the rigors of a return to work process.” 68
[54] Dr Redmond concluded that it was not necessary for her to see the applicant in person again before issuing her Supplementary Report. Dr Redmond said that it was clear to her after reading the emails that a further in person review was not necessary. The content of the emails was sufficient for Dr Redmond to determine that the applicant was not sufficiently well to return to work. 69
The emails
[55] Only a selection of the emails to which Dr Redmond refers and summarised at [52] of this decision are in evidence. 70 It is not in dispute that the emails were sent by the applicant to Australia Post employees, including a senior executive.71 I do not consider it necessary to set out their content in detail. Suffice to say that I am satisfied that Dr Redmond’s description of them as “disordered” is apt. Indeed, the applicant accepts that it is possible that her emails “would not have made much sense” to those who received them.72 Relevantly, in relation to the prospect of returning to work, the emails variously state that:
(a) the applicant “didn’t want to go back to [Dandenong Letters Centre]”; 73
(b) “my life has been so much better since leaving [Dandenong Letters Centre] I’m not sure if I can ever come back to tell you the truth”; 74 and
(c) “these part-time hours are way too long for me. It is way too much for me and really overwhelming.” 75
[56] Also before Dr Redmond was an email that the applicant sent to Mr Hoober on 29 August 2021. In the email, the applicant explains how angry and upset she felt and disclosed that she bought a knife to work in or about February 2019. While the applicant did not use the knife to “threaten, upset anyone” and took it home at the end of the day, the applicant said she told herself “no matter how awful, hurt and terrible I was feeling not to ever bring it in again to work” despite sometimes feeling “as angry as hell.” The applicant explained that she was breaking her silence about the knife because it was “how I was feeling in my mind at the time.” 76
[57] The applicant submits that she did not produce any alternative medical evidence because her specialist “has chosen not to write anything, so no one is sure what her opinion is…” 77 In the absence of any other evidence, Dr Redmond’s Supplementary Report is the only medical opinion before the Commission which establishes the applicant’s capacity at the time of her medical retirement.
The Agreement, Principal Determination and Medical Restrictions Policy
[58] It is not in dispute that the Agreement applied to the applicant at the time of her dismissal. Clause 21 of Agreement deals with personal leave. Clause 21.16 states that “An employee who has exhausted all leave allowable with pay may be granted leave without pay, provided that: … leave with and without pay must not exceed 78 weeks.”
[59] Where an employee has been dismissed by Australia Post and the employee considers the dismissal to be harsh, unjust or unreasonable, the employee may submit an application for review of the decision by a Board of Reference pursuant to clause 36.7 of the Agreement.
[60] The Agreement operates in conjunction with s 89 of the Australian Postal Corporation Act 1989 (Cth) (APC Act). 78 The Australia Post Principal Determination (Principal Determination) is made pursuant to s 89 of the APC Act. Clause 3 of the Principal Determination provides as follows:
“INEFFICIENT/INCOMPETENT EMPLOYEES
Where an employee is found to be inefficient or incompetent, or unable to discharge or incapable of discharging the duties applicable to the employee’s position, the employee may be: … (c) retired from the Corporation.”
[61] The Non-Work Related Medical Restrictions Policy (Medical Restrictions Policy) 79 applies to Australia Post employees with non-work related medical restrictions. Amongst other things, the Medical Restrictions Policy establishes a process for assessing whether an employee is able to perform the inherent requirements of their role in the context of medical retirement under the Agreement, including with any reasonable adjustment, based on current, clear and complete medical information.80
[62] The jurisdictional facts relevant to the determination that a person has been unfairly dismissed are set out in s 385 of the Act, which provides:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[63] It is not in contest that the medical retirement of the applicant meets the definition of a “dismissal” within the meaning of s 386 of the Act. As earlier stated, the issue of compliance with the Small Business Fair Dismissal Code does not arise, and it is not contended that the dismissal was a case of genuine redundancy. The only issue in contention is whether the dismissal was “harsh, unjust or unreasonable” (s 385(b)).
[64] The matters that must be taken into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out in s 387 of the Act at paragraphs (a) to (h). Before I turn to consider each of these matters, I make some initial observations about the material before the Commission and the applicant’s case.
[65] Notwithstanding that the applicant was represented by the Communication Workers’ Union during the extension of time proceedings, the applicant appeared on her own behalf at the merits hearing. The applicant filed an extensive amount of material that she had prepared in support of her application. This material was supplemented by the applicant’s oral submissions and evidence at the hearing. Given the breadth of the material advanced, the applicant received the reasonable assistance of the Commission in focussing on issues of relevance. Having regard to the written materials and the matters raised by the applicant during the hearing, I understand the applicant’s primary concerns to be as follows:
(a) The applicant was not afforded an opportunity to provide a response to the 15 February 2019 incident that led to her suspension.
(b) The applicant was not afforded an opportunity to provide a response to the disciplinary inquiry report.
(c) The applicant was not afforded an opportunity to respond or provide an explanation for sending the texts and emails in August 2021, which made the Supplementary Report unfair. 81
[66] Where the balance of the applicant’s submissions and evidence raise material considerations related to whether the dismissal was harsh, unjust or unreasonable, I have addressed them in my consideration of s 387 of the Act, which follows.
[67] The principles that are relevant to the consideration of whether there was a valid reason for the dismissal related to an employee’s capacity or conduct are well established. A valid reason is one that is “sound, defensible or well founded” 82 and should not be “capricious, fanciful, spiteful or prejudiced.”83
[68] The Commission does not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer. 84 The question the Commission must address is whether there is a valid reason, in the sense both that it was a good reason and a substantiated reason.
[69] A reason will be “related to the capacity” of the employee where the reason is associated or connected with the ability of the employee to do the job. 85
[70] Where an employer relies upon an employee’s incapacity to perform the inherent requirements of the 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. 86 The phrase “inherent requirements” means something that is essential to the position. Determination of the inherent requirements requires an examination of the tasks performed87 and directs attention to the essential features or defining characteristics of the position in question.88
[71] Where a dismissal relates to an employee's capacity, s 387(a) of the Act requires the Commission to consider and make findings as to whether, at the time of the dismissal, the applicant suffered from the alleged incapacity based on the relevant medical and other evidence before the Commission. 89 Consideration of the validity of that reason as a reason for the dismissal requires three interconnected elements to be considered:90
(a) whether the applicant was capable of performing the inherent requirements of her role as at the date of her dismissal;
(b) whether the applicant would be able to perform the inherent requirements of the role at some time in the future; and
(c) whether there was any reasonable adjustment which could be made to the applicant's role to accommodate her incapacity.
[72] The validity of the decision to dismiss an employee on the ground of incapacity is to be assessed on the material available to the employer at the time of dismissal. 91
[73] It is noted that while medical retirement under the Agreement is engaged upon an employee accumulating a 78-week continuous absence period with and without pay, the decision to medically retire the applicant was unquestionably one relating to capacity. Relevantly, the three elements identified at [71] of this decision are expressed in the Medical Restrictions Policy. In this respect the Medical Restrictions Policy states that “[t]he sole criterion for deciding to recommend the retirement of an employee who has a long term injury or illness should be the likelihood of the employee being able to fulfil the ‘inherent requirements’ of the employee’s nominal position (even with reasonable adjustment) within a ‘reasonable’ timeframe.” 92 For the reasons that follow, I am satisfied that the sole criterion was applied in the decision to medically retire the applicant.
[74] It is not in dispute and I am satisfied that the applicant had been on leave “with and without pay” pursuant to clause 21.16 of the Agreement and at the time of her medical retirement her period of absence had exceeded 78 weeks by approximately eight months. 93
[75] I am satisfied, in light of the expert medical evidence that existed at the time of the applicant’s dismissal, and which establishes the state of the applicant’s health at that time, that the applicant was unable to perform the inherent requirements of her role, being that of a full time Mail Officer. Dr Redmond’s Supplementary Report, issued shortly before the applicant was notified of her medical retirement made it clear that Dr Redmond did not consider that the applicant was fit to return to work because the applicant has a “disorder in the paranoid spectrum” 94 or even “a low grade psychotic illness.”95 A detailed analysis of the inherent requirements of the applicant’s role at Australia Post is unnecessary in the circumstances. This is because Dr Redmond’s Supplementary Report states that the applicant was not fit for any work at Australia Post. Indeed, the applicant accepts in her submissions that she was not capable of performing the inherent requirements of her role as at the date of her dismissal.96
[76] As to whether the applicant would be able to perform the inherent requirements of her role as a full time Mail Officer at some time in the future, the applicant submits that “I can definitely say there can never be a certain no to this question.” 97 Notwithstanding the applicant’s position, the applicant did not produce to Australia Post an alternative medical opinion, despite having taken steps to do so on 28 April 2021 through the provision of a medical certificate from the applicant’s general practitioner. Dr Redmond’s Supplementary Report provides that the applicant was unfit to return to work without qualification. In response to a specific question as to whether Dr Redmond regards the applicant’s capacity to change in the foreseeable future, Dr Redmond states, “[t]hus, I consider mental illness is permanent in nature and I do not consider she has a capacity to return to work.”98
[77] Having regard to Dr Redmond’s medical opinion, I find that the facts in existence at the time of the applicant’s dismissal support a conclusion that the applicant would not have been able to perform the inherent requirements of her role at some time in the foreseeable future.
[78] In so finding, I have taken into account the fact that the conclusion contained in Dr Redmond’s Supplementary Report is contrary to her earlier report of 3 August 2021 in which Dr Redmond advised that the applicant could gradually return to work. However, I accept that Dr Redmond’s expert opinion changed upon reviewing the emails sent by the applicant in August 2021. When pressed on this point during the hearing, Dr Redmond’s evidence was that there was a “significant change” in the applicant’s state of health, evidenced by the applicant’s “very disturbing and quite disorganised emails” which “increased in frequency.” During cross examination, Dr Redmond said to the applicant that “it was clear to me that the idea of returning to work was very stressful for you and it would not – it would be detrimental to your mental state to return to work, and possibly detrimental to your colleagues given that you didn't seem to have good relationships with them and you had taken a knife to work.” 99 I accept Dr Redmond’s expert opinion that the content of the emails gave rise to a significantly revised diagnosis.
[79] I turn now to consider the question of whether there was any reasonable adjustment which could be made to the applicant's role to accommodate her incapacity. The applicant contends that Australia Post made no attempt to give her “a chance to return to the working environment not even to come and watch the telly like they have with other employees in the past who have returned from injuries.” 100 I do not accept this contention, which is contrary to the evidence before the Commission.
[80] The applicant’s submission overlooks the fact that Australia Post had written to the applicant on 12 August 2021 advising that, based on the medical evidence before it at that time, Australia Post would commence the process of gradually returning the applicant to work at the Dandenong Letters Centre. Dr Redmond’s Supplementary Report opines that it was this prospect of returning to work which led to the applicant sending the emails which culminated in the revised diagnosis in Dr Redmond’s Supplementary Report. The applicant submits that Australia Post targeted her “unfairly and continuously” by asking her to return to the workplace such that “I could not sleep and I was dreaming about it and suffering severe nightmares.” 101 This position is at odds with the applicant’s criticism that “no attempts were really made by Australia Post to slowly introduce me back into the working environment.”102 I consider that Australia Post’s 12 August 2021 letter, which invited the applicant to contact Mr Hoober to arrange a meeting to discuss her return to work, constitutes a slow reintroduction to the workplace and I do not accept the applicant’s contention that Australia Post made no attempt to do this.
[81] The Supplementary Report found that the applicant was not capable of returning to work at Australia Post in any capacity at all. Accordingly, I find that the medical evidence that existed at the time of the applicant’s dismissal did not identify that there was any reasonable modification to the applicant’s role that could be made to facilitate the applicant’s return to that position. Indeed, the evidence points to a contrary conclusion, being that the prospect of a return to work exacerbated the applicant’s state of health and it was appropriate, given the permanent nature of the applicant’s mental illness, that she did not return to work in any capacity.
[82] I am therefore satisfied that Australia Post had a valid reason for the applicant’s dismissal based on the expert medical advice of Dr Redmond, which existed at the time Australia Post determined to medically retire the applicant from her employment. The applicant was not capable as at the time she was dismissed of performing the inherent requirements of her position and this was regarded as permanent in nature, such that the applicant was unable to return to her role in the foreseeable future. There were no reasonable adjustments which could have been made to accommodate any current or future incapacity. While the applicant submits that she is able to “both physically and mentally perform many of the jobs of my position of Mail Officer,” 103 there is no medical evidence which provides support for this position. The inability to perform the inherent requirements of her role provides a valid reason for Australia Post’s dismissal of the applicant related to her capacity by way of medical retirement in accordance with the Medical Restrictions Policy.
[83] For completeness, I turn now to address the applicant’s submission with respect to whether there was a valid reason for her dismissal. The applicant contends that the reasons she was given for her dismissal are as follows: 104
(a) initially, for breaching Australia Post’s code of ethics for which she was suspended; and
(b) as a result of a disciplinary report which followed an investigation into her conduct during the incident on 15 February 2019.
[84] The applicant’s submission that she was dismissed for the reasons identified at [83](a) and (b) find no support in the material before the Commission. Contrary to the applicant’s stated position, her employment was not terminated on account of the incident on 15 February 2019 for which she was suspended. I earlier set out the content of the Medical Retirement Letter, which makes it clear that the sole reason for the applicant’s medical retirement was on the ground of incapacity.
[85] Further, Australia Post’s correspondence to the applicant dated 12 August 2021 makes it clear that Australia Post was putting in place a facility for the applicant’s return to work in light of Dr Redmond’s 3 August 2021 report which regarded the applicant as fit to resume duty. Australia Post’s conduct in this respect is entirely at odds with a conclusion that it had dismissed the applicant for any reason associated with the incident on 15 February 2019, and I reject the contention.
[86] In conclusion, having regard to my findings and for the reasons given, I am satisfied that there was a sound, defensible and well-founded reason for the applicant’s dismissal. Accordingly, there was a valid reason for the applicant’s dismissal within the meaning of s 387(a) of the Act.
Section 387(b) – Was the applicant notified of that reason?
[87] Section 387(b) requires the Commission to take into account whether an employee has been notified of “that reason” – that is, the reason for dismissal relating to the capacity or conduct of the applicant found to be valid under s 387(a). Notification of a valid reason for termination must be given before the decision is made, in explicit 105 and in plain and clear terms.106
[88] Australia Post’s position, which I accept, is that the applicant was informed of the reason for her dismissal in the Medical Retirement Letter. 107 The Medical Retirement Letter notified the applicant of the diagnosis in Dr Redmond’s Supplementary Report and her recommendation that the applicant be medically retired. The Medical Retirement Letter states that “medical retirement on the grounds of incapacity will proceed” and that this will be “with effect from close of business 15 September 2021,” being two weeks from the date of notification. It advises the applicant of her right to request “a review of the decision to incapacity retire you” pursuant to the Principal Determination.
[89] Noting that the Medical Retirement Letter invites an internal review of the “decision,” 108 it is apparent that the applicant was not notified of “that reason” before the decision to dismiss was made, as required.109
[90] Pursuant to s 387(c), 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. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 110
[91] As I have found at [89], the applicant was notified of the reason for her dismissal at the same time the decision was communicated by way of the Medical Retirement Letter. It follows that Australia Post did not afford the applicant an opportunity to respond to the reason for her dismissal related to her capacity prior to this decision being made.
[92] Further, in the context of a dismissal on the ground of incapacity it was necessary for the applicant to be given a reasonable opportunity to rebut Dr Redmond’s diagnosis and prognosis. Realistically the applicant could only do that if she had a copy of Dr Redmond’s Supplementary Report and the opportunity to obtain the opinion of another medical specialist in response. A “bare denial” by the applicant is insufficient to displace a diagnosis by a psychiatrist. 111
[93] In determining whether the applicant was provided with a copy of Dr Redmond’s Supplementary Report, I have considered the following matters.
[94] Mr Allison’s evidence is that following receipt of Mr Jackson’s report dated 13 September 2012 in which Mr Jackson opined that the applicant had a “Non-Verbal Learning Disability,” Mr Allison sought the support of the applicant’s general practitioner, Dr Wu, to assist in discussing the contents of both the reports of Mr Jackson and Dr O’Daly. 112 Mr Allison says that he felt it inappropriate to advise the applicant directly of the matters in these reports as the applicant may find it distressing. Mr Allison says he wrote to Dr Wu on 17 October 2019 with this purpose in mind, while also sending the reports of Dr O’Daly and Mr Jackson.113
[95] In support of Mr Allison’s position, the materials disclose that Mr Allison spoke with the applicant directly about providing at least Mr Jackson’s report to Dr Wu. 114 Further, Mr Allison encouraged the applicant to make an appointment to see Dr Wu following his provision to Dr Wu of Mr Jackson’s report.115
[96] Australia Post’s approach of providing the specialist medical reports to the applicant via Dr Wu is consistent with the content of Dr Redmond’s 3 August 2021 report, which recommended the applicant’s return to work, and contains the following statement:
“Releasing this Report to the Examinee:
I request a copy of this report only be released to [the applicant] via her treating practitioner, Dr Eva Wu.” 116
[97] Consistent with this, Mr Allison wrote to the applicant on 12 August 2021 advising the applicant of the outcome of Dr Redmond’s 3 August 2021 report and concluded by stating, “I will arrange for a copy of this report to be forwarded to Dr Wu in due course.” 117
[98] The applicant gave evidence that at an appointment with Dr Wu on 10 May 2022, Dr Wu stated to the applicant that Mr Allison “only sent Dr Wu reports and did not write anything to Dr Wu.” 118 I understand from this submission that the applicant contests Mr Allison’s evidence that he wrote letters to Dr Wu. Relevantly however, the applicant does not contend that Australia Post did not provide Dr Wu with a copy of any of the specialist medical reports, including Dr Redmond’s Supplementary Report.
[99] Dr Redmond’s Supplementary Report is dated 31 August 2021 and was provided to Australia Post on this date. 119 There is no direct evidence that the Supplementary Report was provided by Australia Post to Dr Wu (or directly to the applicant) prior to the issuance of the Medical Retirement Letter on 1 September 2021. While the Supplementary Report specifies that Dr Redmond discussed the applicant’s condition “with her GP, Dr Wu,”120 it appears that this discussion was in relation to the matters addressed in Dr Redmond’s 3 August 2021 report. I have reached this conclusion on the basis that Dr Redmond proceeds to describe that Dr Wu was supportive of the applicant’s attempt to return to work at the time of Dr Redmond’s 3 August 2021 report.121
[100] Having regard to Mr Allison’s evidence, the material to which I have referred which supports Mr Allison’s evidence, and noting that the applicant does not contend otherwise, I find that Australia Post provided the specialist medical reports to the applicant via her general practitioner, Dr Wu.
[101] However, there is insufficient material before the Commission to conclude that Australia Post provided Dr Wu with a copy of Dr Redmond’s Supplementary Report prior to issuing the Medical Retirement Letter, noting that the Supplementary Report was issued on 31 August 2021 and the Medical Retirement Letter was provided to the applicant the following day. Accordingly, there is no evidence of the applicant being given an opportunity to respond to the Supplementary Report before a decision was taken to medically retire her.
[102] It is relevant to note that the Medical Retirement Letter provided the applicant with a period of two weeks before the medical retirement would “proceed” on 15 September 2021. The applicant did not respond to that letter by, for example, requesting further time or providing alternative medical evidence as she had done previously (see the discussion at [103] of this decision). Rather, the applicant sought to challenge the medical retirement decision by lodging an internal review pursuant to clause 5 – Grievances of the Principal Determination. 122 More is said about this later in this decision.
[103] The material discloses that the applicant had previously produced a medical opinion as part of her response to an earlier decision of Australia Post to medically retire her, which did not proceed. On 19 March 2021, Australia Post advised the applicant that it was considering her medical retirement and requested her response to the matter by 6 April 2021. The applicant did not provide a response by this deadline. Accordingly, Australia Post made a decision to proceed with the applicant’s medical retirement with effect from close of business on 4 May 2021. The letter which advised the applicant of this decision was in substantially the same terms as the Medical Retirement Letter. 123 The applicant responded to this by producing a medical certificate from her general practitioner, Dr Wu. This led to Australia Post halting the medical retirement process and referring the applicant for further assessment. Despite taking this step previously, the applicant did not adopt a similar process and produce any medical evidence to rebut Dr Redmond’s diagnosis and prognosis following receipt of the Medical Retirement Letter.
[104] The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly. 124 Where the employee is aware of the precise nature of the employer’s concern and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.125 However these steps need to be taken before the decision to dismiss is made.
[105] For the purposes of s 387(c), I therefore find that the applicant was not given an opportunity to respond to any reason related to her capacity before a decision was taken to medically retire her on 1 September 2021. Rather, as I have noted, the applicant was provided with a two-week period before the decision took effect on 15 September 2021 to provide any responsive views or medical evidence, as she had done previously. The applicant did not avail herself of this opportunity on this occasion. As described in my consideration pertaining to s 387(h) of the Act, the applicant lodged an internal review of the decision on 11 September 2021.
[106] There is a lengthy history of discussions between Mr Allison and the applicant relating to the applicant’s capacity, including the prospect of returning to work and the operation 78-week continuous absence period specified in clause 21.16(b) of the Agreement. The applicant accepts that any requests she made to have the union present were granted. 126
[107] As there were no discussions held with the applicant that specifically related to Dr Redmond’s Supplementary Report and the reasons for her dismissal, I find that the matter identified in s 387(d) as to whether there was any unreasonable refusal to have a support person present does not arise for consideration.
[108] It is uncontested that the applicant’s dismissal did not relate to unsatisfactory performance. Accordingly, the matter identified in s 387(e) is not relevant.
[109] Australia Post is a large employer with a dedicated human resources function. The applicant did not make any submissions about these factors, and I am satisfied that the matters at ss 387(f) and (g) are not relevant considerations. 127
[110] Section 387(h) provides the Commission with broad scope to consider any other relevant matters. Australia Post submits that there are no other factors sufficient to render the applicant’s dismissal harsh, unjust or unreasonable. 128
[111] It is well accepted at a dismissal may be harsh, unjust or unreasonable despite the existence of a valid reason for the dismissal. 129 Accordingly, I have had regard to the following.
[112] At [65] of this decision, I identified the following matters which I understand to be applicant’s primary concerns in this application:
(a) The applicant was not afforded an opportunity to provide a response to the 15 February 2019 incident that led to her suspension.
(b) The applicant was not afforded an opportunity to provide a response to the disciplinary inquiry report.
(c) The applicant was not afforded an opportunity to respond or provide an explanation for sending the texts and emails in August 2021 which made the Supplementary Report unfair. 130
[113] While the 15 February 2019 incident did not form a reason for the dismissal, I have addressed the matters identified at [112](a) and (b) in the consideration that follows, given my understanding that these matters form part of the applicant’s primary concerns.
[114] I turn now to consider these matters, and any other matters I consider to be relevant.
Opportunity to respond to the 15 February 2019 incident
[115] The applicant provided a detailed written and oral summary of the events of the afternoon of 15 February 2019 to explain the circumstances that led to the incident which resulted in the applicant’s suspension. 131 The applicant describes the events as an “out of character act” that came about because she was feeling that she was “part of an inescapable life circle,” “feeling unsafe, insecure, tired, sore, manipulated and bullied in my job…”132
[116] While I have reviewed the applicant’s submissions in relation to the incident of 15 February 2019, it is unnecessary for me in the circumstances of this case to make findings in respect of the incident. This is because the 15 February 2019 incident did not form a reason for the applicant’s dismissal.
[117] With respect to the specific contention made by the applicant that she was not given an opportunity to respond to the 15 February 2019 incident, the material before the Commission does not bear this out.
[118] On 19 February 2019, four days after the incident, the applicant was referred to a violence assessment which took place on 26 February 2019. The Violence Risk Assessment Report dated 27 February 2019 notes, at section 2, that the applicant “provided a very detailed account of the events leading up to the incident and then the incident itself.” 133 The report identified “underlying mental health concerns” but concluded that the applicant was well enough to participate in a disciplinary investigation in relation to the incident.134
[119] Accordingly, a disciplinary inquiry was conducted by Australia Post in relation to the 15 February 2019 incident on 20 March 2019. The applicant was assisted by the Communication Workers’ Union. 135 The disciplinary inquiry report dated 8 April 2019 sets out detailed responses given by the applicant to the inquiry officer in respect of each of the three allegations of misconduct, being as follows:136
Allegation 1: On 15 February 2019 at approximately 3.40pm, you walked around the Bar Code Sorter (BAR CODE S) 8 machine banging a large wooden pole with a metal hook attached on its end on the ground in a threatening [sic] aggressive manner.
Allegation 2: On 15 February 2019 at approximately 3.40pm you frightened another employee… with a large wooden pole with a metal hook attached on its end. You walked back and forth in front of her banging the pole on the ground in a threatening aggressive manner whilst yelling: I hate this place; I hate the way people treat me; I hate this place; I hate the people.
Allegation 3: On 15 February 2019, at approximately 3:45pm you threatened another employee… with a large wooden pole with a metal hook attached on its end. You did this by moving the pole backwards and forwards whilst in an upright position whilst walking towards [the employee] in a threatening manner. You then followed [the employee] around with the pole whilst screaming at [the employee]: I am sick of people treating me this way; You are a bad person; I hate you; Nobody cares about me; Everyone treats me like shit; I don’t want to be at work; I am always working on the BAR CODE Sorter.
[120] The disciplinary inquiry report considered the applicant’s responses to each allegation, the statements given by witnesses to the incident, a series of mitigating factors, and the content of the Violence Risk Assessment Report in the process of determining whether the allegations were proven. It is apparent from the content of the disciplinary inquiry report, and I am satisfied, that the applicant was given a fulsome opportunity to respond to each of the three allegations concerning the 15 February 2019 incident, with the assistance of the Communication Workers’ Union. I therefore reject the applicant’s contention that she was not afforded an opportunity to provide a response to the incident.
Opportunity to respond to the disciplinary inquiry report
[121] The disciplinary inquiry report concluded that each of the three allegations were proven, that the applicant’s behaviour constituted serious and wilful misconduct and breached Australia Post’s Our Ethics policy. 137 The report noted that the applicant did not provide any current medical information for consideration to mitigate her behaviour and recommended that the applicant be dismissed from her employment.138
[122] It is apparent from the evidence that Australia Post did not act on this recommendation. 139 Rather, Australia Post referred the applicant to consultant psychiatrist, Dr O’Daly who assessed the applicant on 16 May 2019 and, by way of his report dated 7 June 2019, concluded that the applicant was not fit to continue participating in disciplinary discussions regarding the incident.140
[123] In these circumstances, I accept Mr Allison’s evidence that Australia Post delayed finalisation of the disciplinary process while appropriate specialist medical assessments took place to determine the applicant’s state of health. 141 In light of this, I am satisfied that Australia Post did not act upon the recommendation in the disciplinary inquiry report and accordingly, the applicant was not denied an opportunity to respond to its content as contended.
[124] I further note the applicant’s submission that the disciplinary inquiry report specifies that the applicant “is mentally well enough to participate in the current investigation.” The applicant contends “yet my question is why did I go through a violence assessment and then a disciplinary process before being told I could no longer participate in the Disciplinary Process and was placed on sick leave without pay until being medically retired from Australia Post?” 142
[125] The following addresses the applicant’s submission in this respect. The Violence Risk Assessment Report of 27 February 2019 concluded that the applicant was sufficiently well to participate in a disciplinary investigation in relation to the incident. 143 The disciplinary inquiry proceeded on this basis and a report was issued on 8 April 2019. In the intervening period, Mr Allison determined that it was appropriate for the applicant to undergo a medical assessment before finalising the disciplinary process.144 The first of these assessments, with Dr O’Daly, took place on 16 May 2019. Dr O’Daly’s report of 7 June 2019, as stated at [122] of this decision, concluded that the applicant was not fit to continue participating in the disciplinary process. Accordingly, the disciplinary process did not proceed.
[126] The applicant seeks to make corrections to the content of the disciplinary inquiry report. The nature of the corrections go to statements made about an event that occurred during the applicant’s childhood. 145 I accept that the applicant considers it is important to correct the record. However, any inaccuracy in the disciplinary inquiry report in this respect does not bear upon my finding as to whether there was a valid reason for the applicant’s dismissal related to her capacity. This is because the applicant was not dismissed on account of any findings made in the disciplinary inquiry report or in accordance with the recommendation it contains.
Opportunity to respond to the emails
[127] The applicant submits that she was not given the opportunity to explain any of the emails that she sent in August 2021 “or explain my thoughts or feeling to the psychiatrist for an appropriate assessment.” 146 The applicant says that she should be sent “to another psychiatrist for another opinion and to be examined and asked and questioned about my emails and why I wrote them and when I did write them.”147
[128] In support of her position, the applicant submits that the timing of the emails is important, which were “sent on certain days when I was told I could return to work.” The applicant contends that she was not given “time to make a more informed decision or even given a window to try and return to a workplace environment.” 148 The applicant submits that she was stressed about the timing of her return to work and concerned that she had not arranged a meeting with Mr Hoober by 20 August 2021 as specified in the 12 August 2021 correspondence from Mr Allison.149
[129] The applicant submits that in the absence of being given an opportunity to explain the emails that she sent in August 2021 during a further assessment, Dr Redmond’s Supplementary Report should be regarded as inconclusive. 150
[130] As stated at [50] of this decision, Dr Redmond gave evidence at the hearing. Dr Redmond conducted an in-person assessment of the applicant prior to issuing her 3 August 2021 report. While Dr Redmond had concerns about the applicant’s capacity at that time, Dr Redmond felt it was appropriate that the applicant be given an opportunity to return to work in the absence of any conclusion by Dr Redmond that the applicant had an underlying psychotic illness.
[131] The emails that the applicant sent in August 2019 were provided to Dr Redmond only three weeks after Dr Redmond issued her 3 August 2021 report. During cross-examination, the applicant queried why Dr Redmond did not give her an opportunity to explain the emails before revising her diagnosis in the Supplementary Report. Dr Redmond’s evidence is that she was satisfied given her 30-year experience as a psychiatrist, together with her in-person assessment of the applicant, that the emails disclosed that the applicant “viewed the world through a paranoid lens.” Dr Redmond’s understanding of the effects of psychosis made it clear to her that the applicant’s mental state had deteriorated on account of the prospect of returning to the work environment. The “very disturbing and quite disorganised emails” which had “increased in frequency” made it clear to Dr Redmond that it would be detrimental to the applicant’s mental state to return to work, and possibly a danger to her colleagues. 151
[132] I accept Dr Redmond’s evidence that it was not necessary for her, from a medical perspective, to see the applicant or obtain a specific response to the emails before making her diagnosis, noting (a) Dr Redmond’s extensive professional experience as a qualified psychiatrist (b) her in-person assessment with the applicant on 14 July 2021, (c) the cogent evidence Dr Redmond gave in support of her approach to making a diagnosis, and (d) the absence of any medical evidence to the contrary. Dr Redmond said that it was clear to her after reading the emails that a further in person review was not necessary. The content of the emails was sufficient for Dr Redmond to determine that the applicant was not sufficiently well to return to work. 152 In light of Dr Redmond’s evidence, which I accept, I do not accept the contention that Dr Redmond’s Supplementary Report should be regarded as inconclusive.
[133] In these circumstances, I am satisfied that it was open to Australia Post to rely upon Dr Redmond’s expert diagnosis in relation to the applicant’s August 2021 emails, without separately inviting the applicant’s response to them (noting that the applicant was dismissed on the ground of capacity and not for misconduct concerning the August 2021 emails or otherwise).
Dr O’Daly and Mr Jackson’s reports
[134] The applicant contends that she was not reassessed after a period of three months as recommended by Dr O’Daly. 153 Accordingly, the applicant says it was not open to Australia Post to medically retire her.154 However, this submission overlooks the fact that Mr Allison sent a referral letter to consultant clinical neuropsychologist, Mr Jackson, on 9 August 2019. The applicant’s assessment with Mr Jackson took place on 20 August 2019, approximately two months after Dr O’Daly’s report. The evidence makes it clear that the applicant was reassessed within a three-month period, and I reject the applicant’s contention otherwise. Mr Jackson’s report in respect of this assessment was issued on 13 September 2019.
[135] The applicant raises a further concern that she remained on sick leave, which “goes against” the advice in Mr Jackson’s 13 September 2019 report. The applicant submits that she should have been put on a non-work related duties program doing one job at a time pursuant to the Non-Work Related Medical Restrictions Policy. 155 The basis for this submission is that, as noted at [40] of this decision, Mr Jackson’s 13 September 2019 report specifies that the applicant may have a “Non-Verbal Learning Disability” and while the applicant had the ability to perform the inherent requirements of her position as a Mail Officer at that time, this was subject to the restriction of doing one job at a time.
[136] As my factual findings at [19] of this decision identify, Australia Post determined that it could not accommodate the requirement that the applicant perform only one job at a time. Australia Post concluded that it would not be possible for the applicant to only use one machine without rotating duties having regard to (a) the nature of the role which involved receiving multiple instructions at once; and (b) the increased risk to the applicant’s health and safety arising from repetitive actions, and others in the workplace who would need to increase their workload. 156 I have accepted this evidence having regard to the nature of the applicant’s role as a Mail Officer and the duties associated with the position.157
The knife
[137] The applicant submits that the evidence regarding the applicant bringing a knife to work in or about February 2019 is “irrelevant” because the applicant “had no intention whatsoever of using it, [she] just was feeling so hurt, upset and angry.” 158 The email sent by the applicant to Mr Hoober on 29 August 2021 regarding the knife forms part of the materials considered by Dr Redmond in her Supplementary Report.
[138] The applicant contends that she brought the knife to work to cut up fruit. 159 I have approached this evidence with caution. The 29 August 2021 email from the applicant to Mr Hoober discloses the following matters, which are relevant when considering the applicant’s conduct:160
(a) “I was feeling so angry at one point in pain and suffering with all the jobs everyone was asking me to do and feeling so fed up and upset…”
(b) “I think in that week I brought a knife in a blue plastic container and put it in the fridge and left it there. I was feeling so angry and upset.”
(c) “I didn’t even use it. It stayed in the fridge the entire time. I took it home at the end of the day and then I told myself no matter how awful, hurt and terrible I was feeling not to ever bring it in again to work.”
(d) It was “how I was feeling in my mind at the time.”
(e) “I regretted the thoughts later and changed my mind.”
[139] It is unnecessary for me to make a finding as to the reason the applicant took the knife to work in the determination of this application. However, the 29 August 2021 email is demonstrative of the matters occupying the applicant’s mind in August 2021 following advice from Australia Post that it would support the applicant’s return to her Mail Officer role. On a fair reading of this email, it is apparent that the applicant took a knife to work at least in part because of the hurt she was feeling at work. In this respect, I do not accept the applicant’s contention that the evidence concerning the knife is “irrelevant.” On the contrary, the 29 August 2021 email regarding the knife was a matter considered by Dr Redmond and which informed the diagnosis in the Supplementary Report.
The Board of Reference review
[140] As noted at [104] of this decision, the applicant lodged an internal review of the decision taken to medically retire her on 11 September 2021 pursuant to clause 5 of the Principal Determination.
[141] Clause 5 of the Principal Determination is titled “Grievances.” 161 It addresses the procedures to be followed if an employee has a complaint arising out of a decision or action taken in relation to the employee. Relevantly, by clause 5(b)(iv), an employee “may submit an application for review by a Board of Reference” within 14 days. Where a Board of Reference is of the opinion that the matter should be reconsidered by Australia Post, it may recommend accordingly “and advise of the action it considers appropriate based on the merits of the application” (clause 5(b)(v)). Upon receipt of such recommendation or advice, “Australia Post shall give further consideration to the matter, and may confirm the decision previously made or take such other action as it considers appropriate in the light of the recommendation of the Board of Reference” (clause 5(b)(vi)).
[142] The Board of Reference hearing took place on 16 November 2021. The applicant was represented by the Communication Workers’ Union. The applicant contends that she was of the belief that she could contest the decision to medically retire her at the Board of Reference hearing and only upon the conclusion of this process would a decision be made to medically retire her. 162
[143] It is apparent from the Board of Reference decision that the applicant’s primary submission was that she should be given the opportunity for a further medical assessment. Specifically, it was submitted that the objective would be to identify a suitable alternative role for the applicant at a location other than the Dandenong Letters Centre. 163 The Board of Reference rejected this submission in light of Dr Redmond’s Supplementary Report which identified that (a) the applicant’s underlying illness has been exacerbated by the stressor of the reality of returning to work; and (b) the applicant’s mental illness is permanent in nature. Relevantly, the applicant did not produce any contrary medical evidence to the Board of Reference to which it could have regard.
[144] I have made findings in relation to each matter specified in s 387 of the Act. In considering whether the dismissal of the applicant was harsh, unjust or unreasonable, I must consider and give due weight to each matter. 164
[145] There was a valid reason for the dismissal. Australia Post’s decision to medically retire the applicant was entirely consistent with the medical evidence available at the time. The applicant was not notified of the valid reason prior to a decision being taken to medically retire her and nor was she afforded an opportunity to respond to Dr Redmond’s Supplementary Report and the reasons for the dismissal before the Medical Retirement Letter was issued on 1 September 2021. The applicant did not respond directly to the decision in the two-week period prior to the dismissal taking effect. Rather, the applicant lodged an internal review of the decision. The internal review, conducted by a Board of Reference, convened a hearing at which the applicant made submissions in support of her position with the assistance of the Communication Workers’ Union.
[146] The fact that Australia Post did not provide the applicant with an opportunity to respond to any reason related to her capacity before a decision was taken to medically retire her does not automatically render the dismissal harsh, unjust or unreasonable. As noted by the Full Bench in Etienne v FMG Personnel Services:
“… s.387(c) is not a ‘criterion’. It is not the case that a person must be provided with an opportunity to respond to any reason related to conduct or performance. Rather, s.387(c) is a consideration to which the Commission must have regard in its analysis of whether a termination is harsh, unjust or unreasonable…”165
[147] At no stage has the applicant produced any medical evidence to rebut the Supplementary Report. Accordingly, even if Australia Post had given the applicant an opportunity to respond prior to issuing the Medical Retirement Letter, I do not consider that the applicant would have produced any responsive medical evidence to displace Dr Redmond’s diagnosis and prognosis. A “bare denial” by the applicant is insufficient to displace a diagnosis by a psychiatrist. 166
[148] I therefore find that Australia Post’s non-compliance with ss 387(b) and (c) in the circumstances of this case does not render the dismissal harsh, unjust or unreasonable. This is because I am not persuaded that the applicant was deprived of the possibility of a different outcome in terms of avoiding her dismissal. 167 Nor does the non-compliance outweigh the valid reason for the applicant’s dismissal.
[149] I have taken into account the applicant’s concerns, including in respect of the processes adopted by Australia Post following the 15 February 2019 incident which led to the applicant’s suspension, the disciplinary inquiry report and the opportunity afforded to the applicant to respond to the emails sent by her in August 2021. For the reasons given I do not regard these matters, or the other considerations that I have identified in my assessment of s 397(h) of the Act, to weigh in favour of a conclusion that the dismissal was harsh, unjust or unreasonable. 168
[150] Having considered each of the matters specified in s 387 of the Act, taking into account all of the evidence and my factual findings, I am satisfied that the dismissal of the applicant was not harsh, unjust or unreasonable. Accordingly, I find that the dismissal was not unfair within the meaning of s 385 of the Act.
Disposition
[151] The application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
The applicant appeared on her own behalf
Mr W Spargo on behalf of the respondent
Hearing details:
4 May 2022, by Microsoft Teams
Final written submissions:
1 June 2022
Printed by authority of the Commonwealth Government Printer
<PR744280>
1 AE425065; Court Book (CB) 1571-1654
2 Section 399(1) of the Act.
3 Email to parties dated 26 May 2022
4 Karina Zelesco v Australian Postal Corporation [2022] FWC 761
5 Amie Mac v Bank of Queensland Limited & Ors [2015] FWC 774 at [6]-[13] and the cases cited therein
6 Transcript at [58]
7 Moncreiff Fabrications Labour Services P/L Certified Agreement 2002 PR925178 (29 November 2002); Corfield [2014] FWC 4887
8 Transcript at [52]
10 Court Book (CB) 7
11 Exhibit A2 at p.5
12 CB 1726
13 CB 1724
14 CB 1731; CB 1699 at [11]
15 Exhibit A2 at p.5
16 Exhibit A2
17 Exhibit A2 at p.21
18 CB 1732
19 CB 1732-1746; CB 1699 at [13]
20 CB 1700 at [17]
21 CB 461
22 CB 462-532
23 CB 1747-1763; CB 1835-1851
24 CB 1850
25 CB 1700 at [17]
26 CB 1701 at [19]
27 CB 1764-1765; CB 1701 at [19]
28 AE425065
29 CB 1765; CB 1701 at [20]
30 CB 1701 at [21]; CB 1764
31 CB 1702 at [22]
32 CB 1766; CB 1702 at [23]
33 CB 1767; CB 18; CB 1702 at [24]
34 CB 1769; CB 1702 at [25]
35 CB 808; CB 1791-1792; CB 1774-1775; CB 1922
36 CB 1702 at [27]
37 CB 1702 at [28]
38 CB 1771-1787
39 CB 1788; CB 1702 at [29]
40 CB 1703 at [30]; CB 1788
41 CB 1703 at [31]; CB 1790
42 CB 1882; CB 1922
43 CB 1882-1893
44 CB 1892; CB 1703 at [36]
45 CB 1894-1895
46 CB 1894-1895; CB 1704 at [37]
47 CB 1704 at [39]; CB 1896-1909
48 CB 1704-1705 at [39]-[41]; CB 1896-1909
49 CB 1705 at [43]
50 CB 1705 at [45]; CB 1910-1911
51 CB 1912-1914; CB 1705-1706 at [46]
52 CB 1913-1914
53 CB 1657-1658
54 CB 1706 at [50]; CB 1919
55 CB 1925-1931; CB 1706 at [52]
56 CB 1732
57 CB 1747
58 CB 808; CB 1791-1792; CB 1774-1775; CB 1922
59 CB 1771
60 CB 1882-1893
61 CB 1889
62 CB 1892
63 CB 1912-1914
64 Ibid
65 Transcript [198]
66 Transcript [201]
67 Transcript [203]
68 Transcript [204]
69 Transcript [208]
70 CB 1896
71 CB 692
72 Ibid
73 CB 1897
74 CB 1898
75 CB 1899
76 CB 1911
77 CB 856
78 Clause 1
79 CB 1707-1723
80 CB 1712
81 CB 853 at [25]; CB 856
82 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373
83 Ibid
84 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685
85 Crozier v AIRC [2001] FCA 1031 at [14]
86 J Boag and Son Brewing Pty Ltd v Allan John Button [2010] FWAFB 4022 at [22]
87 Ibid at [24]; Hail Creek Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2004) 143 IR 354 at [124]
88 Ibid; Qantas Airways Ltd v Christie (1998) 193 CLR 28 at 295 at 304
89 CSL Limited v Chris Papaioannou [2018] FWCFB 1005; 273 IR 168 at [50], [77]; Jetstar Airways Pty Limited v Neeteson-Lemkes [2013] FWCFB 9075; 239 IR 1 at [45]
90 Jetstar Airways Pty Limited v Neeteson-Lemkes [2013] FWCFB 9075; 239 IR 1 at [53]
91 Ibid at [55]
92 CB 1720
93 CB 47; CB 70; CB 568; CB 665; CB 1924; CB 1928
94 CB 1930
95 CB 1931
96 CB 855
97 Ibid
98 CB 1931
99 Transcript [227]
100 CB 855
101 CB 855-856
102 CB 857
103 CB 847
104 CB 23 at [3c]; CB 850
105 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at [75]
106 Valentine Previsic v Australian Quarantine Inspection Services [1998] AIRC 1371
107 CB 1562 at [40]
108 See also CB 1569 at [24]
109 Mark Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services [2020] FWCFB 6429 at [19] and [21]
110 Ibid; Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137 at [75]
111 Jetstar Airways Pty Limited v Neeteson-Lemkes [2013] FWCFB 9075; 239 IR 1 at [63]
112 CB 1700 at [18]
113 Ibid
114 CB 1881
115 Ibid
116 CB 1883
117 CB 1895
118 CB 573; CB 688; CB 870
119 CB 1704 at [37] and CB 1894
120 CB 1930
121 Ibid
122 CB 1663-1664
123 CB 1655-1656
124 RMIT v Asher (2010) 194 IR 1 at 14-15
125 Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7
126 CB 27 at [6b]-[6c]; see also CB 1703 at [31]
127 CB 1563 at [49]
128 CB 1564 at [50]
129 B v Australian Postal Corporation (2013) 238 IR 1 at [41]
130 CB 853 at [25]
131 CB 27-32; CB 56-61
132 CB 28
133 CB 1726
134 CB 1731
135 Exhibit A2 at p.5
136 Exhibit A2 at p.4
137 Exhibit A2 at pp.19-21
138 Ibid
139 CB 1557 at [9]
140 CB 1746
141 CB 1699 at [12]
142 CB 25 at [3c]
143 CB 1731
144 CB 1699 at [12]
145 CB 25 at [3c]
146 CB 857
147 CB 856
148 CB 854
149 CB 857; CB 70
150 CB 859; Transcript at [160]; CB 858
151 Transcript at [218], [219], [222], [227], [233]-[234]
152 Transcript [208]
153 CB 568
154 CB 69-70
155 CB 851; CB 1707
156 CB 1700 at [17]
157 CB 1049-1051
158 CB 692; CB 874
159 CB 1529-1530
160 CB 1911
164 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), PR915674 at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]-[7]
165 Etienne v FMG Personnel Services [2017] FWCFB 3864 at [33]
166 Jetstar Airways Pty Limited v Neeteson-Lemkes [2013] FWCFB 9075; 239 IR 1 at [63]
167 Mark Bartlett v Ingleburn Bus Services Pty Ltd t/as Interline Bus Services [2020] FWCFB 6429 at [19](4)
168 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410