[2022] FWC 2387

The attached document replaces the document previously issued with the above code on 20 September 2022.

Sophie Homes-Smith

Associate to Commissioner Bissett

Dated 14 December 2022

[2022] FWC 2387
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Sarah Davis
v
Aldi Stores (A Limited Partnership)
(U2022/2158)

COMMISSIONER BISSETT

MELBOURNE, 20 SEPTEMBER 2022

Application for an unfair dismissal remedy – no capacity to perform inherent requirements of position even with reasonable adjustments – valid reason for dismissal – no apparent breach of the Disability Discrimination Act 1992 (Cth) – dismissal not harsh, unjust or unreasonable – application dismissed.

[1] Mrs Sarah Davis (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) in which she seeks relief from unfair dismissal. The Applicant was dismissed from her employment with Aldi Stores (the Respondent) in February 2022 on the grounds that she could no longer fulfil the inherent requirements of her job as Store Manager.

[2] Prior to the hearing of the application I granted both the Applicant and the Respondent permission pursuant to s.596(2) of the FW Act to be represented by a lawyer.

[3] In accordance with the directions issued by me each party filed submissions and evidence.

[4] The Applicant gave evidence on her own behalf. Her General Practitioner, Dr Nayna Purchase, and her Psychologist, Ms Christiane Jaeger also gave evidence for the Applicant.

[5] Mr Philip Driscoll, Director of Store Operations and Ms Amme-Lee Barton, Area Manager gave evidence for the Respondent.

FACTUAL BACKGROUND

[6] Much of the background information in relation to this matter is not in dispute.

[7] The Applicant was employed by the Respondent in November 2018 as a Store Manager for a new store opening in early 2019. She had previously worked for about 10 years in the retail sector. She underwent training and, following a 3-week holiday, commenced at a new Aldi store which was due to open in April 2019.

[8] In her role the Applicant reported to the Area Manager. The Applicant was contracted to work a 45-hour week and her duties were set out in a Job Description. Around the time of the opening of the store in April of 2019 it is not disputed that the Applicant worked hours well in excess of her contracted hours. By May 2019 her hours appear to have settled down to around about her contracted hours although occasionally she seems to have worked in excess of these hours. 1

[9] In November 2019, while pregnant with her third child, the Applicant suffered a family tragedy resulting in the death of her husband (the tragedy). She remained off work, including on parental leave until February 2021. She was diagnosed with PTSD as a result of the tragedy.

[10] On 5 April 2021, while the Applicant was at work, a man collapsed in the store. 2 While an ambulance was called the man eventually left with his friend. This incident however triggered the Applicant’s PTSD and on 9 April 2021 she provided a medical certificate indicating she would not be fit for work from 10 April 2021 to 9 May 2021. The Applicant continued to be certified as having no capacity for work until a certificate of capacity was issued by Dr Purchase on 12 November 2021 for the period 8 November 2021 to 8 February 20223.

[11] At the time of this incident the Applicant came under the care of Dr Purchase and Ms Jaeger.

[12] The Applicant has not returned to work since this incident.

[13] On 27 September 2021 Mr Driscoll and Rachel Pocklington of the Respondent met with the Applicant. 4 Mr Driscoll advised the Applicant that the purpose of the meeting was to discuss a requirement for her to undergo a Psychological Assessment of Capacity. This was to be conducted by Mr Paul Marsh, an Occupational Therapist. The Applicant was told the assessment outcome would be used to “better understand [her] Medical Condition, work requirements and overall suitability to complete the inherent requirements of her role” and to “arrive at a decision whether any other roles or accommodations to [her] current role may be appropriate given her Medical Condition.”5

[14] Mr Marsh provided his report to the Respondent on 11 October 2021 6.

[15] Following the receipt of the report of Mr Marsh, the Respondent sought a report from Dr Purchase 7 and Ms Jaeger.8 Ms Jaeger provided her report on 2 November 20219 and Dr Purchase provided her report on 2 December 2021.10

[16] On 20 December 2021 Mr Driscoll wrote to the Applicant and directed her to attend a meeting with him on 22 December 2021 11 “to discuss your ability to perform the inherent requirements of your role as a Store Manager in light of the professional opinions and assessments given by your treating practitioners and Mr Paul Marsh, Occupational Therapist.” Further, the letter said that the meeting was necessary “not only to discuss the recent medical information ALDI Stores have received to date regarding your PTSD, but also to seek your responses and comments as to your capacity.” The letter concluded:

If we do not hear back from you, ALDI Stores will have no choice but to proceed in deciding whether you are able to remain employed by ALDI Stores and to conduct internal enquiries as to suitable redeployment opportunities for you and the reasonable adjustments it could make to your role.

[17] That meeting was held on 22 December 2021 and was attended by the Applicant, Mr Driscoll and Ms Courtney Snook who took minutes of the meeting. 12

[18] At that meeting Mr Driscoll outlined the findings in the three medical reports and sought feedback from the Applicant on those reports. Mr Driscoll advised the Applicant that:

In view of the above, the outcome of the Assessment does align with the responses and opinions of Dr Purchase and Ms Jaeger. We also note that neither of the three health professionals were able to determine whether, or if, you would be able to perform your pre-injury duties in the foreseeable future. In fact, Ms Jaeger went so far as to recommend that you do not return to work at ALDI Stores in any role.

[19] Mr Driscoll sought further comment from the Applicant and then advised her that:

ALDI stores will consider whether there are any ways that you may continue to be employed given the findings of Mr Marsh and your treating health professionals. In order to do so, ALDI Stores will also take into account your views about this. I am therefore now giving you an opportunity to provide any suggestions which might enable you to remain employed by ALDI Stores in any role. This means you should think of any reasonable adjustments that may be able to be accommodated by ALDI Stores to allow you to safely perform the inherent requirements of your role as a Store Manager; and any other roles you may safely be redeployed to having regard to your skills, experience, and qualifications.

[underlining added]

[20] Mr Driscoll invited the Applicant to put any suggestions she may have in writing by 30 December 2021. The contents of this meeting were put in writing to the Applicant on 23 December 2021. 13

[21] The Applicant provided her proposals to the Respondent on 2 January 2022. In summary, these were:

[22] Mr Driscoll met with the Applicant on 31 January 2022 and discussed with her the Respondent’s response to her proposals. 15 After a short break Mr Driscoll advised the Applicant that her employment would be terminated. He provided her with a letter which said:

[23] On 7 February 2022 Mr Driscoll sent a further letter to the Applicant in which he “set out… details regarding relevant matters discussed at our meeting with you on 31 January 2022 and the earlier meeting that we held with you on 22 December 2021”.  17

[24] The letter confirmed that the Applicant’s employment was terminated because:

[25] On 27 September 2021, following a meeting regarding the Applicant's medical capacity, the Applicant raised a number of issues with Mr Driscoll. She expressed her concerns in relation to staffing in the Aldi store, how she felt she was not being given adequate support and that these concerns should be investigated. Mr Driscoll asked the Applicant to detail the issues in writing so that they might be addressed. 18

[26] Mr Driscoll met with the Applicant about these matters on 7 October 2021. The Applicant spoke of staffing levels and said this had been an ongoing problem under all three Area Managers (Kristen, Rick and Amme-Lee Barton). The Applicant raised particular concerns in relation to Ms Barton’s lack of experience in dealing with staff and her failure to recruit enough staff in advance of the actual need arising. The Applicant also raised concerns about working 10 days straight and then having her half day off on Saturday cancelled in March 2021. 19 The Applicant also provided Mr Driscoll with emails she had drafted in relation to the staffing issues at the store.

[27] Following an investigation which included interviews with the named managers, a review of working hours and staff allocations to the store, Mr Driscoll sent a formal reply to the Applicant on 1 November 2021 in which he advised that the Applicant had been provided with reasonable support within the store and that it was not the case that the store was short staffed. 20

CAPACITY ASSESSMENTS

Mr Paul Marsh

[28] On 28 September 2021 the Applicant was directed by letter of the requirement to attend a psychological capacity assessment to be conducted by Mr Marsh. 21 Mr Marsh was provided with relevant information including her job description and medical information held by the Respondent.

[29] The Applicant attended the assessment on 6 October 2021 and Mr Marsh produced a report dated 11 October 2021.

[30] As part of the evaluation the Applicant undertook a Depression Anxiety Stress Scale (DASS) assessment and completed a Kessler Psychological Distress Scale (K10) questionnaire. As a result of this Mr Marsh said the Applicant was, at that time, “experiencing normal symptoms in relation to depression, anxiety and stress” and “is likely to be well from a mental health perspective.”

[31] Mr Marsh agreed with Dr Purchase’s opinion, in her 18 August 2021 certificate of capacity, that the Applicant was unfit to return to work. In reaching this conclusion he considered the Applicant “had a significant mental health condition…yet to be managed to a level where she can safely return to work.” Mr Marsh did not consider the Applicant had any work capacity and “would be at significant risk of aggravating or accelerating her mental health condition should she attempt any form of return to work”. Mr Marsh agreed with the assessment of Dr Purchase (as included in the certificates of capacity issued by Dr Purchase) that the Applicant was experiencing “exacerbation of PTSD by work-place stressors and lack of support.” He said that, regardless of whether theses stressors and lack of support were real, it was his opinion that the Applicant “would be at significant risk of aggravating or accelerating her mental health conditions if she attempted any form of return to work” with the Respondent. Mr Marsh was unable to conclude if the Applicant would be able to return to her role in its entirety within the next 6 to 12 months and considered that, even then, she was at risk of accelerating her pre-existing mental health condition. Mr Marsh did not consider that the Applicant’s mental health condition had been “managed to a level where she can safely return to the workplace.”. He further noted that the Applicant “herself reported that she does not feel she can return to work with ALDI stores now or in the foreseeable future.”

[32] Mr Marsh said, in his summary and recommendations:

Based upon the results of the Assessment of Capacity (including the DASS and K10 assessment tools) and review of the aforementioned reports and documentation, it is my opinion that [the Applicant] does not have the capacity to safely perform the Store Manager role without significant risk to her on-going health and without further risk of injury.

[The Applicant] would benefit from supports to assist her to engage in the workplace, however given her current presentation and occupational performance over the past 20 months, it is unable to be conclusively confirmed if these supports would enable [the Applicant] to effectively and safely perform her role in its entirety, and even with these supports she may be at significant risk of aggravating or accelerating her mental health condition.

[33] Mr Marsh concluded that the Applicant “does not have the functional capacity to meet the inherent requirements of her role”.

[34] Following the receipt of the report of Mr Marsh, the Respondent sought a report from Dr Purchase and Ms Jaeger. Each of these requests was in the same form. They set out some background information and requested a response to the following:

[35] Enclosed with the letter were a number of documents Mr Marsh had been provided (including certificates of capacity, incident reports and a Workers injury claim form) and the report of Mr Marsh.

Ms Christiane Jaeger

[36] Ms Jaeger provided her report on 2 November 2021. Ms Jaeger said that, in her opinion the Applicant “suffers from PTSD and Prolonged Grief Disorder” and that she becomes “easily emotionally triggered into intense Loss & Grief and PTSD states.” She added that poor sleep “as an aspect of her mental health is likely to affect her attention, concentration and judgement.” Further, Ms Jaeger considered that some memories of traumatic childhood events “are triggered by [the Applicant’s] experience of lack of support” from her managers.

[37] Ms Jaeger’s opinion was that the Applicant “will be easily triggered into PTSD states, if continuing to work” for the Respondent and that the Applicant “will be at significant risk of aggravating her PTSD symptoms and being set back in resolving her Prolonged Grief Disorder.” Ms Jaeger said that the PTSD and Prolonged Grief Disorder place the Applicant at “significant risk of experiencing long-term deteriorating mental health”.

[38] In her summary and recommendation Ms Jaeger said:

[39] Ms Jaeger recommended that:

Doctor Nayna Purchase

[40] Dr Purchase provided her report on 2 December 2021. In her report Dr Purchase said that the Applicant has a PTSD diagnosis arising from the tragedy in 2019 “for which she is seeking support” with “associated features including anxiety and depression.” Dr Purchase first saw the Applicant after the 5 April 2021 incident and noted that, in addition to this incident, the Applicant “did not feel supported by the work environment”.

[41] Dr Purchase said that

It is apparent that the goal of ALDI is to facilitate Sarah’s return to work and ensure she is not ‘exposed to risks’ that may exacerbate her condition whilst performing her duties. In the context of PTSD, exposure of an individual to ‘triggers’ can be regarded as a risk. As you can imagine, these triggers are subjective and depend upon the individual. Sarah reports that the incident in the workplace triggered her PTSD. Whilst this acute trigger was removed, there appears to be an ongoing association with the work environment. The perceived lack of support offered by the work environment is not necessarily a trigger, but does not help Sarah’s condition.

[42] Dr Purchase observed that the Applicant’s condition “affects her attention, concentration and memory” and that her anxiety and depression “can impact upon the most basic of day-to-day functions (e.g. getting out of bed, showering).” She said that the Applicant’s condition has been impacted by external factors but does not impact upon her physical capacity although her mental health “may impair her from [optimally] conducting” more administrative tasks.

[43] Dr Purchase did not consider that any medical restrictions needed to be put in place to reduce the risk of the Applicant “exacerbating, aggravating or accelerating her condition” but considered the Applicant required “additional levels of flexibility and support” from the Respondent which may include “reduced working hours, the ability to share/delegate tasks, and formation of a crisis management plan if she experiences any exacerbations of her condition in the work environment.”

[44] Dr Purchase said that the Applicant’s condition “can be exacerbated by triggers” and the Applicant “perceives the work environment (ALDI) as a trigger”. The “perceived level of stress associated with work contributes to this”. Dr Purchase believes that, at the time of writing, “a return to ALDI will mean that [the Applicant] is at 'significant risk' of aggravating her underlying condition” and while this may be addressed with time, this would depend on the Applicant and the environment. Dr Purchase did not believe that the Applicant was “capable of returning to her full pre-injury hours and duties without changes being made to the work environment.”

Evidence in relation to the reports

[45] In her evidence Dr Purchase agreed that the Applicant met the criteria for PTSD (although had not done the specific diagnosis herself) and that the work environment is a “trigger” for the Applicant but said that it is not a constant. She also said that the work environment contributes towards the Applicant’s wellbeing but was not a trigger.

[46] Dr Purchase agreed with Ms Jaeger that the Applicant continuing to work at Aldi would “elicit memories of those events, thoughts and feelings” (in relation to the tragedy and feelings of guilt) but did not agree that they would “impede her healing”. 22 Dr Purchase did not agree with the proposition put to her that someone who had experienced an event, such as that on 5 April 2021, that resulted in significant exacerbation of the Applicant’s condition such that she could not return to work for 7 months was “at least at risk of a return to that environment impeding her healing towards a mentally healthy life”.23

[47] Dr Purchase disagreed with Ms Jaeger’s opinion that the Applicant “will be easily triggered into PTSD states, if continuing to work at ALDI stores” or that “memories of events, emotions and thoughts relating to her employment at ALDI stores at the time of [the tragedy] are potentially being elicited with detrimental impact on her mental health.” Dr Purchase did agree, however, that it is not an unreasonable view to take of a person who presented as the Applicant did. 24

[48] Dr Purchase agreed with Ms Jaeger’s opinion that the Applicant would “be at significant risk of aggravating her PTSD symptoms” [if she returned to work at Aldi] but did not consider this to be a setback in resolving the Applicant’s disorder.

[49] Dr Purchase issued a certificate of capacity on 12 November 2021 which declared the Applicant had capacity for suitable employment from 8 November 2021 to 8 February 2022. In relation to the certificate, Dr Purchase said she “probably” consulted Ms Jaeger and the Applicant's psychiatrist “through [the Applicant].”

[50] Ms Jaeger gave evidence that she was surprised at the results recorded in Mr Marsh’s report on the Applicant on the DASS and K10 tests because the Applicant seemed more unwell than those scores indicate when Ms Jaeger saw her.

[51] Ms Jaeger said that when she saw the Applicant in November 2021, the Applicant was “mostly functioning doing daily living. She had decided it would be good for her to work…However there were still incidents when she was triggered by feeling let down by people.” 25

[52] Ms Jaeger was taken to Mr Marsh’s report and said that his indication that the Applicant has a significant mental health condition and would be at significant risk of aggravating or accelerating her condition (if she returned to work at Aldi) confirmed her assessment although said that the Applicant was able to work if in a supportive environment. 26 Ms Jaeger also said that, based on what the Applicant told her, and although the work issue was tangential to what she was treating the Applicant for, the “only way for her to go back to Aldi was if there was a complete change in…how staff are treated.”27

[53] Mr Marsh was not called to give evidence.

Submissions
[54] In submissions the Applicant said that the report of Mr Marsh should not be given any weight by the Commission as the Respondent had not called Mr Marsh to give evidence. As Mr Marsh was not called, it was not possible to assess his qualifications to make the observations he made or to test the validity of his conclusions. To the extent that the Applicant submits the Commission should not have regard to Mr Marsh’s report, she says I should also disregard any opinion expressed by Dr Purchase or Ms Jaeger of that report.

[55] The Respondent submits that in opening submissions the Applicant said that “the decision of an employer to dismiss an employee on capacity grounds is to be assessed on the material available to the employer at the time of the dismissal.” 28 It was on this basis that the Respondent ran its case. In this respect anything that might have been obtained from Mr Marsh had he been called and subject to cross examination would not have been “material available to the employer at the time of the dismissal”. The Respondent concedes that, likewise, clarification or correction of reports of Dr Purchase and Ms Jaeger in evidence was of “peripheral relevance”.

[56] The Respondent submits that, while it did confirm with the Commission that it did not seek to rely on Mr Marsh’s witness statement, it continued to rely on his report. 29 The report was, in any event, attached to the statement of Mr Driscoll, the Form F3 – Employer response to the application and to the Applicant’s written submissions of 22 May 2022.

[57] The Respondent therefore submits that the criticisms of Mr Marsh’s report at paragraphs 1(III) – 1(IX) of the Applicant’s final written submission, to the extent they might be valid, can be considered on the face of the report with “cross-examination…unlikely to have taken those issues any further.” The Respondent further submits that the force of the Applicant’s criticism is undermined by the “absence of any substantive support for them” from the Applicant’s own witnesses.

[58] The Respondent submits that, as the rules of evidence do not apply to proceedings in the Commission full weight should be given to the report of Mr Marsh.

[59] I have determined that I should have regard to the report prepared by Mr Marsh. It was material that was available to the Respondent at the time it made its decision as to the Applicant’s employment and was provided to the Applicant, Dr Purchase and Ms Jaeger. Further, it was included in the material filed by the Applicant and was attached to the witness statement of Mr Driscoll.

[60] There are some observations in Mr Marsh’s report to which I have not had regard as it is not apparent how these came about. In particular, I have not had regard to his statement that the Applicant had a “number of cognitive deficits identified” to the extent it may go beyond the known and identified conditions of the Applicant. I am also wary of his statement in relation to the Applicant’s capacity to return to work within the next 6 to 12 months, again because the basis of this conclusion, beyond her known condition, is not clear.

[61] I accept that, at the time of his report, Mr Marsh obviously did not have access to Dr Purchase’s 12 November 2021 certificate of capacity. The particulars in this certificate of capacity are that:

[62] “Capacity for suitable employment” was not expanded on further by Dr Purchase in her certificate of capacity. Otherwise there seems little, if anything, in the 12 November 2021 certificate of capacity that varies from the certificate of capacity Mr Marsh had which would alter his conclusions.

[63] Mr Marsh agreed with the assessment of Dr Purchase that the Applicant was experiencing an “exacerbation of PTSD by work-place stressors and lack of support.” He observed that the Applicant “advised with the current staffing structure in place at the Mildura Store and the deterioration of her relationship with Aldi Stores management [meant] she would be at significant risk of aggravating or accelerating her mental health condition should she return to work in any capacity.” 31 It appears that, on these grounds, he concluded that she would be at risk of aggravating or accelerating her mental health condition should she attempt a return to work for the Respondent.

[64] Mr Marsh’s report is not at odds with that of Ms Jaeger. I have also had regard to the evidence of Ms Jaeger that the DAS and K10 are not diagnostic tools. Mr Marsh was therefore not relying on them to diagnose any condition in the Applicant.

[65] It is in this context that I have determined I should have regard to the report of Mr Marsh but with the limitations I have identified.

PRELIMINARY MATTERS

[66] I am satisfied that the Applicant has made her application within the time limit prescribed by the FW Act, that the Respondent is not a small business such that the Small Business Fair Dismissal Code does not apply, and that the termination of her employment was not a matter of redundancy.

[67] Further, I am satisfied that the Applicant is protected from unfair dismissal.

[68] The only matter left to determine is if the Applicant’s dismissal was harsh, unjust or unreasonable. In doing so it is necessary to consider each of the factors in s.387 of the FW Act:

387  Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(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; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(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; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

WAS THE DISMISSAL HARSH, UNJUST OR UNREASONABLE?

Section 387(a) – was there a valid reason for the dismissal based on the capacity or conduct of the Applicant?

[69] In order for a reason for dismissal to be a valid reason it must be “sound, defensible or well founded” 32 and should not be “capricious, fanciful, spiteful or prejudiced.”33 The “reason for termination must be defensible or justified on an objective analysis of the relevant facts”34 in the case. However, the Commission will not “stand in the shoes of the employer and determine” what the Commission would do if it was in the position of the employer.35

[70] The Applicant was dismissed because she could no longer perform the inherent requirements of her job. The Respondent made its decision based on the reports of Mr Marsh, Ms Jaeger and Dr Purchase. The Applicant disputes that the conclusion of Mr Driscoll that she could no longer perform the inherent requirements of her job could reasonably be reached based on those reports.

The Applicant’s capacity

[71] The Applicant gave evidence that the incident on 5 April 2021 involved a customer in the Aldi store who was affected by drugs and alcohol. This brought back issues in relation to the tragedy which had also involved drugs and alcohol. She says she was “stuck on the tills” and could not support the customer. This then triggered her PTSD. In the weeks and months that followed she “was feeling like my real trigger within the workplace, apart from that particular one-off incident…was the lack of support and the lack of staffing which had always been there the entire time I worked at Aldi.” 36 Her evidence is that she “always wanted to return to work” but wanted to ensure it was a safe place where she was supported and where the correct staffing was in place.

[72] The Applicant said that at the time she was dismissed she could have returned to work on reduced hours and undertaken the work she suggested in the correspondence of 2 January 2022. 37

[73] The Applicant gave evidence that the Respondent could have provided aid to her through sufficient staffing, regular check-ins, a care plan and open communication. She was critical in her evidence of her Area Manager (at the time of the April incident) who she said was “inexperienced” with “probably no care factor” and who was “struggling in her role” 38 so was probably unable to offer the Applicant the support she needed.

[74] The Full Bench of Fair Work Australia considered the operation of the incapacity provisions in s.387(a) of the FW Act in J Boag and Son Brewing Pty Ltd v Allan Button 39 (Boag and Son) and concluded as follows:

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

[23] In X v Commonwealth the High Court was concerned with an allegation of discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992 (Cth) by a solider who had been dismissed from the army on account of being HIV positive. Section 15(4) of that Act contains an exemption from liability if the person “would be unable to carry out the inherent requirements of the particular employment”. Gummow and Haynes JJ addressed the notion of “inherent” requirements:

“[102] The reference to ‘inherent’ requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. …[T]he requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.”

[24] Although the High Court was concerned with the meaning of the expression “inherent requirements” in a statute, this analysis is equally applicable to a consideration of what constitutes the “inherent requirements” of a position as a valid reason for dismissal…

[25] In Qantas Airways Ltd v Christie Gaudron J, with whom Brennan CJ agreed, noted that the expression “inherent requirements”, in its natural and ordinary meaning “directs attention to the essential features or defining characteristics of the position in question.”…

[Footnotes omitted, underlining added] 

[75] In CSL Pty Ltd (t/as CSL Behring) v Papaioannou 40 the Full Bench of the Commission said

[76] The question before me to determine is therefore if the Applicant could fulfil the inherent requirements of her job as Store Manager – not a modified or adjusted role – at the time she was dismissed and based on the evidence before me.

[77] I accept that there is some conflict between the reports of Mr Marsh, Ms Jaeger and Dr Purchase – the most obvious being the assessment of Mr Marsh and Ms Jaeger that the Applicant did not have capacity to return to work and the opinion of Dr Purchase that she did have such capacity (albeit on a gradual return to work and with changes in the work environment). I should emphasise that the assessment of Mr Marsh and Ms Jaeger is not to suggest that the Applicant does not have the necessary skills or physical capacity to undertake the work in which she was employed but rather that a return to work at Aldi – at least without substantial changes in the workplace 42 – would exacerbate her mental health.

[78] I do not consider that Mr Marsh’s assessment of the Applicant against the DASS or K10 are of concern or in some way discredit his findings. As was confirmed by Ms Jaeger these are “screening tools, they’re not diagnostic tools” 43 and she could not comment on another person’s assessment as the DASS is only relevant for 7 or so days.44

[79] In reaching my conclusion I have considered the three medical reports, the unchanged diagnosis in the certificates of capacity issued by Dr Purchase over an extended period in 2021 and the adjustments the Applicant requested to her work arrangements in order to enable her to return to work in January 2022.

[80] On the question as to whether the Applicant could fulfil the role of Store Manager I do not consider that there is any substantive conflict in the reports of Mr Marsh, Ms Jaeger and Dr Purchase. None of the three considered the Applicant could return to her role as Store Manager. Dr Purchase, who had the more positive view of the Applicant’s ability to return to the workplace, said this could only occur through modification or through “additional levels of support”. I also take account that the Applicant did not consider she could return without modifications to her duties and hours and the engagement of additional staff.

[81] Considering the scope of the inquiry the Commission is required to undertake as established in Boag and Son, I am satisfied, on the evidence before me, that the Applicant could not fulfil the inherent requirements of her role as Store Manager.

Breach of Disability Discrimination Act

[82] The Applicant submits that the Respondent’s actions breach the Disability Discrimination Act 1992 (Cth) (DDA) and, as such, cannot provide a “sound, defensible and well founded” reason for dismissal and hence cannot be valid.

[83] The Applicant submits that the Applicant’s mental health and PTSD amounted to a disability under s.4 of the DDA and that the Respondent abrogated its responsibilities under the DDA. Further, the Applicant submits that the Respondent failed to engage with Dr Purchase about adjustments that might be made in the workplace when it received her report which said that the Applicant would require additional levels of support to facilitate a return to work. Further, it says the Applicant put forward some proposals for reasonable adjustments in her email on 2 January 2022.

[84] The Applicant submits that the DDA places a positive obligation on the employer to make adjustments for a person with a disability and that the obligation was on the Respondent to make all adjustments which did not otherwise cause the Respondent unjustifiable hardship. The failure of the Respondent to make the adjustments had the effect that the Applicant was treated less favourably than a person without a disability would have been treated in materially similar circumstances. In this regard the Applicant says that the appropriate comparator is a store manager who is experiencing a condition that prevents them working on a full-time basis and requires a graduated return to work.

[85] The Respondent says that a consideration of the DDA is misplaced as the inquiry before the Commission is whether or not the Applicant could perform the inherent requirements of her job at the time she was dismissed. Further, the Respondent submits the DDA provides an exemption from liability if a person cannot fulfil the inherent requirements of a job.

[86] The Respondent submits that it did consider the suggested accommodations of the Applicant. It also considered redeployment options and did not make a final decision until all adjustments and redeployment possibilities had been considered.

[87] I accept that a dismissal for a reason that is apparently unlawful would render that reason for dismissal not valid.

[88] A reference to the High Court decision in X v Commonwealth 45 is set out above in Boag and Son as it goes to the consideration of what the inherent requirements of a job may be. The DDA has been varied since the time of the decision in X v Commonwealth. Section 21A of the DDA relevantly states:

(1) This Division does not render it unlawful for a person (the discriminator) to discriminate against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

(2) For the purposes of paragraph (1)(b), the following factors are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work:

[89] Section 21A(1)(b) of the DDA says that it will not be a matter of discrimination if the aggrieved person cannot fulfil the inherent requirements of the work even if reasonable adjustments are made. In making this determination those matters in s.21A(2) are to be taken into account. Section 21B of the DDA however provides that it is not unlawful to discriminate against a person on the grounds of their disability “if avoiding the discrimination would impose an unjustifiable hardship on the discriminator.” I am satisfied that this exception includes hardship brought about by any requested adjustments . 46

[90] The first question to be determined is whether the adjustments sought by the Applicant were reasonable. If they were then consideration must be given to whether, with these adjustments, the Applicant could have fulfilled the inherent requirements of her job.

[91] I am satisfied that the Respondent carefully and fully considered those matters put forward by the Applicant as adjustments she considered would enable her to return to the workplace, albeit on a reduced hours basis. 47 I accept that the Respondent did also investigate redeployment opportunities for the Applicant but that no suitable roles could be identified.

[92] I am satisfied that the Respondent had taken, and continued to take, steps to fill vacant positions in the store. I accept that the Respondent could not control employees deciding to cease working for the Respondent for any reason. Mr Driscoll gave evidence that, at the time the Applicant’s employment was terminated, there were 3 managers in the store (1 being the store manager). I note that the Applicant did not accept these numbers, being concerned that one or other of the managers would soon leave the store. I also accept that the Applicant’s concerns in relation to staffing levels were investigated by the Respondent in late 2021 and it determined that her concerns were unfounded and that the store had an appropriate level of staff. Even allowing for vacancies to be filled to meet the requirements of the Applicant, the Respondent could not guarantee that this position would be maintained at all times.

[93] As to other matters identified by the Applicant in her email of 2 January 2022, I accept that the Respondent considered each of these adjustments. This was done in the context of the medial information, in particular that of Mr Marsh and Ms Jaeger, both of whom indicated that the Applicant’s mental health may be adversely affected by any return to work. 48 While the Respondent had a flexible work policy and could accommodate less than full time work and while there was no physical limitation of the Applicant performing the proposed work (building specials and alcohol top-ups) there was a concern on the effect of a return to the workplace on the Applicant’s mental health.49

[94] Having considered a range of adjustments and alternatives put forward by the Applicant the Respondent concluded that these could not be accommodated without risk to the Applicant’s mental health and were therefore not reasonable in the circumstances. Mr Driscoll, in his evidence, did not move from his assessment and I accept it as reasonable.

[95] I have also taken into account that, whilst some of the adjustments sought by the Applicant related to the tasks she could perform, others were more intangible such as what the Applicant considered to be the appropriate staffing level in the store and what Dr Purchase described as a more supportive environment. The “intangibles” it seems were subjective views held by the Applicant. The ability of the Respondent to provide support to meet the subjective expectations of the Applicant would be very difficult.

[96] I would also observe that, while the Applicant posited the appropriate comparator, she did not expand on this in submissions. Any assessment of whether the Applicant had been discriminated against would therefore not be possible. Given my findings on reasonable adjustment it is not, however, necessary for me to consider this further.

Conclusion as to valid reason

[97] Given my findings I am satisfied that there was a valid reason for the termination of the Applicant’s employment that went to her capacity to fulfil the inherent requirements of her job. Further, to the extent it is relevant I am also satisfied that the Respondent considered, but could not accommodate, adjustments to the Applicant’s role as she proposed.

Sections 387(b) & (c) – whether the Applicant was advised of this reason and given a reasonable opportunity to respond

[98] These two matters go to the question of procedural fairness. Procedural fairness in this context requires that the Applicant be advised of the valid reason (in this case the inability to perform the inherent requirements of her job) and that she be given an opportunity to respond to this prior to a final decision being made as to her employment.

[99] On 22 December 2021, following receipt of the reports of Dr Purchase and Ms Jaeger (and having already received the report of Mr Marsh), Mr Driscoll arranged a meeting with the Applicant. Mr Driscoll opened the meeting by advising the Applicant that the purpose of the meeting was to discuss the outcome of the assessment undertaken by Mr Marsh, the reports of Dr Purchase and Ms Jaeger and, the Applicant’s “ability to perform the inherent requirements of her role as Store Manager.” 50 The reports were discussed with the Applicant and her feedback given. At the conclusion of the meeting Mr Driscoll said that “ALDI stores would consider whether there are any ways that [the Applicant] may continue to be employed given the findings of Mr Marsh and [her] treating health professionals.” Mr Driscoll also said that he was “now giving [the Applicant] an opportunity to provide any suggestions which might enable [her] to remain employed by ALDI Stores in any role.” The Applicant took no issue in her evidence with the accuracy of the minutes of the meeting of 22 December 2021. For this reason I am satisfied that I can rely on their content as accurately reflecting what occurred in the meeting.

[100] The Applicant undertook to, and did, provide a response in writing to Mr Driscoll.

[101] The meeting was followed up by a letter from the Respondent to the Applicant on 23 December 2021. 51 That letter detailed the outcomes of the medical assessments that had been undertaken. In conclusion the letter said:

[102] While I accept it could have been put in simpler language, I am satisfied that the Applicant was aware, from the meeting on 22 December 2021 and the subsequent letter of 23 December 2021 that the Respondent was considering terminating her employment unless a way for her to return to work could be found. This much can be seen in the language used by Mr Driscoll.

[103] The next meeting held with the Applicant was on 31 January 2022. In opening the meeting Mr Driscoll said that at the conclusion of the meeting on 22 December 2021 “I gave you the opportunity to provide any suggestions which might enable you to remain employed by ALDI”. During that meeting Mr Driscoll responded to the Applicant’s suggestions of adjustments that she considered could be made to allow her to return to work. Near the end of the meeting Mr Driscoll asked the Applicant if there were any other roles she thought might be suitable to which the Applicant replied “more of the roles that don’t require, the less stressful roles…I don’t feel like I should lose my job because I’ve had a tragedy in my life…I don’t think losing my job would be the right thing to do.” 52

[104] At this point Mr Driscoll took a break and returned about 15 minutes later. On his return he advised the Applicant that the Respondent had “made a determination that [the Applicant was] unable to return to [her] pre-injury duties” and that the Respondent did not consider that there were any alternative duties suitable for her as they may expose the Applicant to exacerbation of her condition.

[105] The Applicant was provided with a letter that confirmed the termination of employment.

[106] The language of Mr Driscoll on 22 December 2021 and in the letter of 23 December 2021, taken with the Applicant’s apparent acknowledgement on 31 January 2022 that she knew her job was at risk (and prior to Mr Driscoll taking a break to consider the response of the Applicant) at that meeting, supports a conclusion that the Applicant was advised of the reason for her dismissal and was given an adequate opportunity to respond prior to the decision to dismiss her being made by the Respondent.

[107] I do not accept that the Applicant was not aware of the “inherent requirements” of her job. I do not consider that the term “inherent” carries any meaning other than its ordinary meaning – that is, that which makes the job of a Store Manager as opposed to an assistant, a trainee store manager or a store assistant. The use of the term did not limit the ability of the Applicant to respond.

[108] For these reasons I am satisfied that the Applicant was advised of the reason for dismissal and given an opportunity to respond to those reasons prior to a decision being made about her employment. As I said, it could have been put in more clear terms, but I am satisfied that the Applicant was aware of these matters.

Section 387(d) – access to a support person

[109] The Respondent did not at any time unreasonably refuse the Applicant access to a support person. The Respondent took positive steps to remind the Applicant that she could have a support person present and indicated it would stop meetings if the Applicant decided she did need a support person present.

Section 387(e) – warned of unsatisfactory performance

[110] The Applicant’s employment was not terminated for performance reasons. This is therefore not a relevant consideration.

Sections 387(f) & (g) – degree to which the size of the employer’s enterprise and access to dedicated human resource specialists or expertise would have impacted the procedures followed

[111] The Respondent is a business of substantial size. It has access to human resources specialists and expertise.

Section 387(h) – other matters

[112] While not raised in written submissions, at the conclusion of the meeting on 27 September 2021 the Applicant raised with Mr Driscoll a number of issues in relation to the lack of support she had received in store and staffing issues. 53 These issues were then subject to a separate meeting with the Applicant on 7 October 202154 and investigation by the Respondent.55 A letter of outcomes of the grievance was issued to the Applicant on 1 November 2021.56

[113] While the Applicant may not have felt satisfied as to the outcome of her grievance as conveyed in the letter of 1 November 2021, I am satisfied that the matters raised were taken seriously by the Respondent and investigated. It is not my role in this decision to determine the correctness of the outcome.

[114] The Applicant also raised in her evidence matters in relation to the hours she was required to work. On review of the evidence before the Commission it is apparent that, at the time of the store opening in 2019, the Applicant was working extraordinarily excessive hours. I am satisfied, on the evidence, that after the rush of the opening of the store the Applicant’s hours reduced to a much more acceptable level although from time to time did increase to in excess of 10 hours per day.

[115] The Applicant submits that she is a widowed mother of three young children, one with special needs. The impact of the loss of employment on her economically has been high.

Was the dismissal harsh, unjust or unreasonable?

[116] It is not always the case that because a person may have been denied procedural fairness the dismissal was harsh, unjust or unreasonable. In this matter, I have carefully considered the totality of the statements made to the Applicant by the Respondent, correspondence sent to her and her apparent acknowledgement that her job was on the line. I have concluded that, while it could have been put in clearer terms, the Applicant was aware that the Respondent was considering her continued employment unless a basis could be found on which she could safely return to work.

[117] In relation to the adjustments to the Applicant’s work, I note the criticism of Dr Purchase that she thought the Respondent should have engaged with her in relation to any necessary adjustments, but I am satisfied the Respondent clearly sought such information from the Applicant. There was nothing in that request to stop the Applicant seeking assistance from Dr Purchase in providing her reply. There was nothing to stop the Applicant seeking more time from the Respondent to do this. Further, there was nothing to stop Dr Purchase, in consultation with the Applicant, in providing more detailed information on how a return to work might be accommodated in the certificates of capacity.

[118] In considering these circumstances and the competing reports provided to the Respondent and before the Commission I have concluded that, in these circumstances, the dismissal was not harsh, unjust or unreasonable.

CONCLUSION

[119] I am therefore satisfied that the dismissal of the Applicant from her employment with the Respondent was not unfair. The application is dismissed. An order 57 to this effect will be issued with this decision.

Seal of the Fair Work Commission with member's signtaure.

COMMISSIONER

Appearances:

D. Boon for the Applicant.

R O’Neill of counsel for the Respondent

Hearing details:

2022.

Melbourne by Microsoft Teams Video

July 25.

Printed by authority of the Commonwealth Government Printer

<PR745614>

 1   Exhibit R1

 2   There is some dispute as to whether the man collapsed or lay down on the floor. He was, however, attended to by store staff. While the Applicant says he was affected by drugs and alcohol there is no evidence as to his condition

 3   Court Book (CB) page 82. The Applicant did not provide this certificate of capacity to the Respondent until 7 January 2022, transcript PN 928-929

 4   Exhibit R2

 5   Ibid

 6   CB page 35

 7   Exhibit R6

 8   Exhibit R14

 9   CB page 44

 10   CB page 42

 11   CB page 58

 12   Exhibit R3

 13   CB page 51

 14   CB page 55-57

 15   Exhibit A7

 16   CB page 131

 17   CB page 29

 18   Exhibit R2

 19   Exhibit R4

 20   Exhibit R15

 21   CB page 47

 22   Transcript PN222 and PN223

 23   Transcript PN 224-225

 24   Transcript PN 236 and 238

 25   Transcript PN761. See also transcript PN 627

 26   Transcript PN 627

 27   Transcript PN 633

 28   The Applicant’s written submission 10 May 2022 paragraph [23], CB page

 29   Transcript PN1091

 30   Applicant’s written submissions 10 May 2022, appendix 4

 31   CB Page 40

 32   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

 33   Ibid

 34   Rode v Burwood Mitsubishi Print R4471 [19]

 35   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685 

 36   Transcript PN328

 37   Transcript PN330

 38   Transcript PN331

 39   (2010) 195 IR 292

 40   (2018) 273 IR 168

 41   The reference to Jetstar is to the Full Bench decision in Jetstar Airways Ltd v Neeteson-Lemkes (2013) 239 IR 1

 42   Evidence of Ms Jaeger, transcript PN717

 43   Transcript PN743

 44   Transcript PN624

 45   (1999) 200 CLR 177

 46   See s.4 of the Disability Discrimination Act 1992 – definition of “reasonable adjustment”.

 47   The Respondent also considered and dismissed some redeployment proposals these proposals for reasons set out in its letter of 7 February 2022

 48   Transcript PN 1967

 49   See report of Dr Purchase, paragraph (e) CB page 43

 50   Exhibit R3

 51   Witness statement of Philip Driscoll, Annexure R-10

 52   Exhibit A4

 53   Exhibit R2

 54   Exhibit R4

 55   Exhibits R11 and R16

 56   Exhibit R15

 57   PR745615