[2014] FWC 2855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lenka Sukloska
v
Serco Sodexo Defence Services Pty Ltd T/A Serco Sodexo
(U2013/15493)

COMMISSIONER DEEGAN

CANBERRA, 5 MAY 2014

Application for unfair dismissal remedy.

[1] On 17 October 2013 Mrs Lenka Sukloska (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment with Serco Sodexo Defence Services Pty Ltd trading as Serco Sodexo (the respondent) was unfair.

Background

[2] The applicant commenced employment with the respondent as a cleaner on 23 October 2007. Her employment was terminated with effect from 3 October 2013.

[3] On 18 August 2008 the applicant suffered an injury at work when she tripped while negotiating stairs in the workplace. On 12 January 2009 the applicant suffered an injury when she lost control of her vehicle while driving to work. Both claims for workers compensation were accepted.

[4] During the period of her rehabilitation from August 2008 until 3 October 2013, the ‘applicant’s hours and restrictions varied considerably’ 1.

[5] On 28 June 2013 the respondent’s National Health and Wellbeing Manager sought a report from Dr Stephen Moulding as to the applicant’s future capacity for work and her capacity to return to her pre-injury duties.

[6] The report received from Dr Moulding formed part of an operational review conducted by the respondent of the applicant’s case. The review was conducted over August and September of 2013.

[7] On 3 October 2013 the respondent’s representatives met with the applicant and informed her of the outcome of the review. The applicant was given a letter of termination stating that “recent medical reports and fitness for work certification show that you will not resume your pre-injury duties with (the respondent) in the foreseeable future’ 2. As a consequence the applicant was provided with 5 weeks pay in lieu of notice and her employment ceased that day.

The Applicant’s Case

[8] The applicant filed a witness statement 3 setting out her work history with the respondent. She noted the varying number of hours that she had worked over the period 2008 until 2013 as a consequence of the restrictions placed on her return to work after her injuries. She noted that from June to August 2013 she worked approximately 4 hours per day. In May 2013 she had been working five hours per day at Duntroon Hospital but when she was moved to the Duntroon House in June, the workload was too heavy and she had to drop back to 4 hours per day.

[9] It was the applicant’s evidence that a new return to work (RTW) plan 4 was constructed for her in late August 2013. This plan was designed so that she would gradually increase her daily hours until she was working 8 hours each day by late September 2013. As well as increasing her work hours the new RTW plan also lifted some of the restrictions that had applied to her so that she would be able to do some mopping and sweeping in her duties.

[10] The applicant was unable to fully comply with the RTW plan as she developed a chest infection on 16 September 2013 and was certified as unfit to work until 20 September. When she returned to work after that time the respondent did not supply her with the eight hours per day work allowed by the RTW plan. Her employment was terminated on 3 October.

[11] The applicant was not cross-examined on her evidence.

[12] The applicant’s daughter, Ms Sonia Sukloska, filed a statement of evidence 5. Ms Sukloska had supported her mother throughout her employment with the respondent as English was her mother’s second language. In this role she attended most workplace meetings with her mother and often contacted the employer on her mother’s behalf.

[13] It was the evidence of Ms Sukloska that during September 2013 she attempted to contact Ms Anita Post on her mother’s behalf to determine whether her mother would be able to work the additional hours allowed under the RTW plan. She also wished to discuss a letter 6 her mother had received on 17 September 2013 from Ms Churchill, the respondent’s National Health and Wellbeing Manager. The letter requested her mother to attend a meeting with Ms Churchill and Andrew Claridge, a People Relations Advisor of the respondent, on 19 September 2013 “to discuss (her) fitness to perform the inherent requirements of (her) work and subsequent ongoing employment status”.

[14] According to Ms Sukloska the meeting was delayed until 3 October 2013. She had believed the meeting was about the RTW plan and was unaware that her mother’s employment was at risk. On 3 October she attended the meeting with her mother and her mother’s employment was terminated.

[15] Under cross-examination Ms Sukloska reiterated that she had believed the meeting was about the RTW plan despite the letter of 17 September stating that it concerned her mother’s ongoing employment.

[16] It was also Ms Sukloska’s evidence that Dr Moulding had signed the RTW Plan prepared for her mother in late August 2013.

The Respondent’s case

[17] Mr Andrew Claridge, People Relations Advisor for the respondent filed a statement of evidence 7. His evidence described the various RTW plans that the applicant had been subject to and the various sites at which she worked during her employment. He noted that at all times during her rehabilitation the respondent had accommodated the applicant’s needs as set out in the various RTW plans. It was also his evidence that, on a number of occasions, the applicant had failed to comply with the RTW plans and the restrictions set by them. He had issued a warning8 to the applicant on 10 September 2013 after a report that she had been cleaning at Duntroon Hospital at the weekend without permission.

[18] Mr Claridge was present at the meeting on 3 October when the applicant’s employment was terminated. It was his evidence that at the meeting the applicant was provided with an opportunity to provide further information and have that reviewed.

[19] Under cross-examination Mr Claridge agreed that in the final two weeks of the applicant’s employment Ms Sukloska had attempted to contact him and he had returned her calls but they never seemed to connect. He also stated that he had called the applicant but she had not returned his call.

[20] Mr Claridge agreed that he had facilitated the RTW plan but did not have anything to do with the medical side of it. He said that he had monitored the applicant’s compliance with the RTW plan through her manager. It was his evidence that there was never any suggestion that the applicant was doing fewer hours than called for by the RTW plan. According to Mr Claridge the applicant was only supposed to be working Monday to Friday but was observed working on a weekend assisting another employee in the hospital. It was his view that by working the additional hours the applicant was putting herself at risk, which was a serious concern. He conceded that the occasion he referred to was the only one upon which the applicant was observed working additional hours.

[21] Ms Nicola Churchill, National Health and Wellbeing Manager of the respondent, filed a statement of evidence 9 in support of the respondent’s position.

[22] According to her evidence Ms Churchill held a BAppSc (Occupational Therapy) and had over 10 years experience in occupational rehabilitation. Ms Churchill’s evidence outlined the applicant’s employment history with the respondent, detailed the two injuries suffered by the applicant and attached detailed logs 10 of the restrictions mandated by medical certificates relating to the two injuries, for the three year period preceding the termination. The witness described the process that was adopted when she decided that a functional capacity and prognosis analysis of the applicant was to be undertaken by Dr Moulding. She noted that Dr Moulding’s report included the following assessment of the applicant’s capabilities:

[23] Ms Churchill reviewed the report sent by Dr Moulding over July and August 2013 and, based on the medical evidence, reached the conclusion that it was unlikely that the applicant would, in the near future, return to all the duties of her position. She also determined that the continued operational modifications that were needed to accommodate the applicant’s restricted duties could not reasonably be sustained by the respondent. Finally she concluded that due to the fluctuation in the rehabilitation duties there was a real risk of re-injury by the applicant.

[24] The witness described her attempts, in early September, to contact the applicant to arrange a discussion about the prognosis. She noted that the meeting finally occurred on 3 October 2013, when after some discussion, the applicant’s employment was terminated. She noted that during that discussion, which was attended by the applicant and her daughter, the applicant was advised that should she have medical information that differed from that of Dr Moulding, Ms Churchill would be happy to review it. No such information was provided.

[25] Under cross-examination Ms Churchill agreed that she was familiar with the applicant’s most recent RTW plan and agreed that there was a gradual increase to the applicant’s duties during the period of that plan but that the hours and duties fluctuated. She also noted that the respondent needed to cross-reference two medical certificates given that the applicant had suffered two separate injuries, one to the right patella as well as an injury to the neck and shoulder. She agreed that prior to the last RTW plan the applicant was working two hours a day, five days a week which increased to six hours a day five days a week by early September. She also confirmed that the applicant was on sick leave in the third week of September.

[26] When asked why the respondent had not terminated the applicant’s employment at an earlier time, Ms Churchill responded that the rehabilitation period at times can be extensive depending on medical treatment and events that may transpire. In the applicant's case there was a number of instances where surgery was waiting approval from insurers and the respondent took the view that the applicant was not medically stable. No prognosis was available concerning the applicant’s return to pre-injury duties until Dr Moulding’s reply was received on 17 July 2013. Ms Churchill denied that by waiting four years to terminate the applicant’s employment, the respondent may have led her to believe that she would not be dismissed for lack of capacity.

[27] It was Ms Churchill’s evidence that she had been working in the field of occupational health and safety for 15 years and that, in her experience, each individual responds differently to pain and treatment, both of which are factors in recovery. Accordingly there is no set timeframe for how long an individual will be given to recover from a specific injury. The respondent had examples of employees who had recovered quickly and others who had taken years to get to the point where the doctor had decided that the vocational goal no longer looks achievable.

[28] Ms Churchill was questioned about the table of duties attached to Dr Moulding’s letter of 17 July 2013. She agreed that the duties set out in the table were considered inherent to the role of a cleaner. It was put to her that there seemed to be an inconsistency between Dr Moulding’s opinion on 17 July 2013 that the applicant could not undertake any ‘mopping’ and the suggestion on page 4 of the RTW plan, which had been approved by Dr Moulding in late August 2013, that the applicant would be able to carry out some mopping by that stage of the plan. Ms Churchill noted that the aspirations for progress set out in the RTW plan would be overridden by the medical certificates issued on a regular basis by Dr Moulding. She also noted that RTW plan would be reviewed each week to ensure that the pre- injury duties proposed in it could be sustained. Further it had been Dr Moulding’s view, on 17 July that the applicant would not return to pre-injury duties.

[29] When it was put to Ms Churchill that, by the end of the final RTW plan the applicant may have been able to carry out some mopping, which was one of her pre-injury duties, the witness agreed but stated that, despite this, her conclusion that the applicant could not safely perform and sustain the inherent requirements of her contract of employment would not have changed. As a result, the decision to terminate the applicant’s employment would have been the same. She noted that consideration had been given to capacity and reasonable modification, but the full range of tasks expected of the applicant were such that the inclusion of mopping as an additional duty would not have made a difference to the decision. Ms Churchill was also concerned that a limited range of permitted duties did not allow for task rotation and put the worker at increased risk of injury. She confirmed that all cleaners were expected to carry out all tasks within the terms of their contracts but that reasonable modifications would be considered based on individual circumstances.

[30] In answer to a question from the Commission the witness stated that the RTW plan was to be reviewed each week. Despite the RTW plan which was a ‘proposal,’ the applicant had to adhere to medical restrictions and notify any feelings of discomfort or pain and request assistance of co-workers where necessary. The RTW plan could be modified at any time after a discussion with the case worker. Further throughout the RTW the applicant was required to have a 15 minute breaks every hour.

Submissions

[31] Representatives of the applicant and respondent provided written submissions in advance of the hearing and expanded on these at the hearing.

[32] The written submissions for the applicant outlined the factual basis of the matter. Relying on s.104 of the Worker’s Compensation Act 1951 (ACT) (the WCA) the applicant submitted that the employer was required to return the applicant to pre-injury employment not pre-injury duties. Section 105 of the WCA was then invoked for the proposition that ‘the employer must provide employment to the worker that is, so far as is reasonably practicable the same as or equivalent to the employment in which the worker was employed at the time of the injury or otherwise suitable employment for the worker’.

[33] The applicant’s argument appeared to be that the WCA imposed an obligation on the respondent to provide suitable employment for the applicant and, as such, any termination of the applicant’s employment would be in breach of the WCA. It was put that as the applicant was a full time worker who had requested that work be provided within 6 months of the injury, the terms of the WCA mandated that the employer provide equivalent or otherwise suitable employment and that there was no limitation on the time for which such work must be provided. Further it was submitted that to terminate the applicant’s employment in breach of this requirement of the WCA is a criminal offence.

[34] It was further put for the applicant that termination in breach of the WCA could never provide a valid reason for the purposes of s.387(a) of the Act.

[35] It was also argued for the applicant that the dismissal was unfair because there had been no further deterioration in the applicant’s condition and, in fact, the RTW plan commenced in September 2013 was showing progress in the applicant’s ability to work additional hours.

[36] Essentially it was submitted that the respondent had available suitable work which the applicant was capable of performing and was therefore required to provide the applicant with that work.

[37] In his oral submissions the applicant’s representative pressed his interpretation of s.105 of the WCA and made an alternative submission that the dismissal was unfair because the applicant had been permitted by the respondent to perform the modified duties for such a long period that an expectation had been created that she would be permitted to continue to do so. The argument appeared to be that for the employer to create such an expectation and then terminate the applicant for incapacity rendered the dismissal harsh.

[38] The respondent’s written submissions outlined the factual basis of the matter and submitted that there was a valid reason for the termination of the applicant’s employment based on the applicant’s capacity to perform work. The respondent relied on the following paragraphs of the decision in J Boag and Son Brewing Pty Ltd v Allan John Button 11 (Boag) arguing that the proper approach to be taken by the Commission in determining whether there is a valid reason based on the employee’s incapacity to perform the inherent requirements of the job:

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

...

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

[39] It was argued that the applicant’s employment was terminated as she was unable to perform the inherent requirements of her substantive position.

[40] The respondent submitted that the termination of the applicant’s employment was not in breach of the WCA. It was put that the WCA did not require an employer to create a new position to employ an injured employee in the event that the employee could return to work in some capacity. Further it was argued that the WCA required an employer to provide suitable work during the six month period from the date at which the applicant became entitled to weekly compensation and that this was not a continuing obligation. In this respect it was noted that the applicant was provided with suitable employment for a period in excess of four years from the date of her second injury.

[41] Relying on the prognosis provided by Dr Moulding the respondent submitted that there was, in all the circumstances, a valid reason for the termination as it was unlikely that the applicant would be able to perform the inherent requirements of her job in the foreseeable future. The respondent also noted the risk of re-injury to the applicant and the cost to the employer of providing modified duties for such a sustained period. So far as the other matters set out in s.387 of the Act are concerned the respondent’s submissions dealt with these in detail, in essence submitting that the termination was procedurally fair and that there were no matters that would otherwise render the dismissal unfair.

[42] At the hearing the respondent reiterated its understanding that s.105 of the WCA, consistent with all workers compensation legislation across the country, required an employer to provide suitable employment for a period of 6 months and that there was no ongoing requirement for employment to be provided where the employee was unable to return to pre-injury duties.

[43] The applicant filed a written submission in reply to the respondent’s written submissions. Relying on the decision in RMIT v Asher 12 it was argued for the applicant that under the regime for dismissals implemented by s.387 of the Act, the employer must notify an employee of any concerns it may have about that employee’s capacity and then grant the employee an opportunity to address those concerns. It was put that as the applicant was not notified of the respondent’s concerns about her capacity until the date of the termination the applicant was not afforded an opportunity to address the respondent’s concerns until after the termination had taken effect. It was the submission of the applicant that as a result of the respondent’s failure to allow her an opportunity to address its concerns about her capacity, the dismissal was rendered unreasonable, and thus unfair.

Consideration

[44] Section 387 of the Act provides:

“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.”

[45] The decision in Boag 13 is authority for the proposition that an employer is not required to create a position that an injured employee is capable of performing. The employee must be able to perform substantially the same duties that the employee was required to perform prior to the injury. The test of the ability of an employee to perform the inherent requirements of the job is thus assessed against the duties of the substantive position that the employee was engaged in, as distinct from any modification to duties necessitated by injury or illness. The respondent in this case had allowed the applicant a reasonable period of time to recover from her injuries. The applicant was given every assistance in her return to work so as to allow her to gradually build her capacity to perform her duties at her pre-injury level. Unfortunately this did not occur, and almost four years after the second injury, action was taken to determine whether the applicant was likely to reach a full return to work. It was found that in the foreseeable future she would be unable to do so. In all the circumstances I am unable to find that the respondent acted unreasonably in taking this step after such a prolonged period of rehabilitation.

[46] The applicant claimed that there was no valid reason for the dismissal. In this respect reliance was placed on the following statement in Boag:

“An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event” 14.

[47] It was the applicant’s argument that the dismissal was in breach of s.105 of the WCA.

[48] Section 105 of the WCA provides as follows:

“105 Employer must provide suitable work for full-time, part-time

and casual workers

(1) This section applies if—

(a) a full-time, part-time or casual worker has been totally or

partially incapacitated for work because of an injury; and

(b) the worker can return to work, whether on a full-time or part-time

basis, and whether or not to the worker’s previous

employment; and

(c) within 6 months after the day the worker became entitled to

weekly compensation, the worker asks the employer liable to

pay the compensation to provide employment for the worker.

(2) The employer must provide employment to the worker that is—

(a) so far as reasonably practical, the same as, or equivalent to, the

employment in which the worker was employed at the time of

the injury; and

(b) otherwise suitable employment for the worker.

Maximum penalty: 10 penalty units.

(3) An offence against this section is a strict liability offence.

(4) This section does not apply if—

(a) the worker voluntarily left the employment of the employer

after the injury happened (whether before or after the

beginning of the incapacity for work); or

(b) the employer ended the worker’s employment after the injury

happened, for a reason other than because the worker was not

fit for employment because of the injury; or

(c) the employer is a non-business employer; or

(d) the employer cannot provide suitable employment”

[49] Section 105 was inserted in the WCA in 2001 15. At the note to s.105 of the amending Act it was stated:

“Note For comparison, a number of sections of this Act contain bracketed

notes in their headings drawing attention to equivalent or comparable

(though not necessarily identical) provisions of other Acts.

Abbreviations in the notes include the following:

...

NSW WIMWCA: Workplace Injury Management and Workers

Compensation Act 1998 (NSW).”

[50] At the time of the introduction of new section 10ZA (which was subsequently renumbered s.105) a bracketed note drew attention to s.49 of the NSW WIMWCA. Section 49 of the NSW WIMWCA at that time provided:

“49 Employer must provide suitable work

(1) If a worker who has been totally or partially incapacitated for work as a result of an injury is able to return to work (whether on a full-time or part-time basis and whether or not to his or her previous employment), the employer liable to pay compensation to the worker under this Act in respect of the injury must at the request of the worker provide suitable employment for the worker.

Maximum penalty: 50 penalty units.

(2) The employment that the employer must provide is employment that is both suitable employment (as defined in section 32A of the 1987 Act) and (subject to that qualification) so far as reasonably practicable the same as, or equivalent to, the employment in which the worker was at the time of the injury.

(3) This section does not apply if:

(a) it is not reasonably practicable to provide employment in accordance with this section, or

(b) the worker voluntarily left the employment of that employer after the injury happened (whether before or after the commencement of the incapacity for work), or

(c) the employer terminated the worker’s employment after the injury happened, other than for the reason that the worker was not fit for employment as a result of the injury.

Note : See also Part 7 Chapter 2 of the Industrial Relations Act 1996 for provisions for protection of employment of injured workers.”

[51] The provisions of Part 7 Chapter 2 of the Industrial Relations Act 1996 (NSW) (the Industrial Relations Act) that provided the protection for injured workers included the following:

“99 Dismissal within 6 months of injury an offence

(1) An employer of an injured employee who dismisses the employee is guilty of an offence if:

(a) the employee is dismissed because the employee is not fit for employment as a result of the injury, and

(b) the employee is dismissed during the relevant period after the employee first became unfit for employment.

Maximum penalty: 100 penalty units.

(1A) For the purposes of subsection (1), the
"relevant period" is:

(a) the period of 6 months after the employee first became unfit for employment, except as provided by paragraph (b), or

(b) if the employee is entitled under a Commonwealth or State industrial instrument to accident pay as a result of the injury for a period exceeding that period of 6 months—the period during which the employee is entitled to accident pay.

Accident pay is an entitlement of the employee to payment by the employer, while the employee is unfit for employment, that is described as accident pay in the relevant industrial instrument.

(2) It is a defence to a prosecution for an offence under this section if the employer satisfies the court that:

(a) at the time of dismissal, the employee would not undergo a medical examination reasonably required to determine fitness for employment, or

(b) at the time of dismissal, the employer believed on reasonable grounds that the employee was not an injured employee within the meaning of this Part.

(3) The prosecution may establish that an injured employee was dismissed because the employee was not fit for employment as a result of the injury if the prosecution establishes that the injury was a substantial and operative cause of the dismissal.

(4) This section applies even if the employee became unfit for employment before the commencement of this section.”

[52] In my view to accept the interpretation of s.105 pressed for the applicant would be to give a meaning to that provision which would provide the absurd result that any injured worker who was able to return to work within the relevant period, even on a very limited basis, could never be dismissed from employment on the ground that the employee’s injury rendered them unfit for the work for which they were employed.

[53] Having regard to s.49 of the WIMWCA and those provisions dealing with security of employment in the Industrial Relations Act, I am not satisfied that the intention of s.105 of the WCA is to require employers of injured workers in the ACT to provide work for those employees in circumstances where it can be established that the injured worker is unable to perform the inherent requirements of their job. Furthermore, s.49 of the WIMWCA is in almost identical terms to s.105 of the WCA but, when read in conjunction with s.99 of the Industrial Relations Act, it is clear that employers who dismissed an employee within the first six months of an employee first becoming unfit for employment, would do so unlawfully.

[54] In the absence of any authoritative decision to the contrary, on this question I am unable to find that the applicant’s dismissal was in breach of the WCA.

[55] While there is no doubt that there is an obligation on employers in certain circumstances to provide modified duties for injured employees for a reasonable amount of time to enable the employee to recover from their injury or illness, what will be construed as a ‘reasonable amount of time’ will vary from case to case. Clearly in the circumstances of this case, the respondent had supported the applicant in allowing her to perform modified duties for four years in an attempt to facilitate her rehabilitation to performance of her pre injury duties. Despite this support, the respondent received a clear indication from a medical practitioner that ongoing support would be required into the future. I am satisfied that in these circumstances there is a valid reason for termination.

[56] The applicant was notified of the reasons for her termination. A letter was sent to the applicant in mid September requesting a meeting to discuss her ‘fitness to perform the inherent requirements of (her) work duties and subsequent ongoing employment status’. In my view the letter was sufficiently clear to indicate that the employer was giving consideration to the question of whether the applicant’s fitness was such that her employment would continue.

[57] The applicant was given an opportunity to respond to the reasons for the termination at the meeting of 3 October. While I accept that the decision to terminate appears to have been made prior to that meeting on the basis of the medical evidence, the applicant was clearly advised that if she had other medical evidence which indicated a prognosis different to that provided by Dr Moulding, she should bring it to the respondent’s attention for review. No such medical evidence was brought to the respondent’s attention. The reason for termination in this matter was not related to some aspect of the applicant’s capacity to perform work that was within her control. The doctor had provided the respondent his prognosis on the basis of his assessment of the applicant’s physical condition. There was no evidence to suggest that there was other medical evidence available to the applicant which was different to that of Dr Moulding. Certainly no such evidence was produced, despite an opportunity to do so being provided.

[58] The applicant had a support person present for the meeting on 3 October and it was the evidence of all the witnesses that this facility was afforded to the applicant in relation to most, if not all, of her meetings with her managers and case workers during her employment.

[59] The reason for termination did not relate to the applicant’s performance but to her capacity to perform the inherent requirements of her position. Section 387 (e) has no application.

[60] It was the respondent’s submission, which I accept, that the respondent has detailed policies and procedures which were followed in effecting the termination. I do not believe the size of the respondent or any lack of human resources expertise in any way impacted on the procedures adopted in effecting the dismissal.

[61] In considering this matter I have taken into account the four year period of rehabilitation provided by the respondent to the applicant. I note that over that period the applicant appeared to be performing only a very small number of all of the duties of the position, and those that she was carrying out were also subject to some restriction. Even though her hours were increasing in her last month of employment the applicant’s duties were not significantly expanded. She was still subject to a 15 minute rest every hour and walking limitations. It was clear from the medical certificates that post dated the termination, and were included in the logs, that the applicant’s condition was, if anything, deteriorating by January 2014. In all the circumstances I consider that the employer’s reasons for termination was ‘sound and defensible’ 16 and that the procedures adopted in determining to dismiss the applicant were fair and considerate.

[62] If I am wrong in my interpretation of s.105 of the WCA and there is no valid reason for the dismissal such that it is rendered unfair, then I would not have considered reinstatement appropriate and I would not have awarded any remedy in the way of compensation, given that the applicant’s workers compensation claim has been settled and compensation paid in respect of her loss of employment and her future economic loss 17.

Conclusion

[63] Given my findings in relation to those matters set out in s.387 of the Act I am satisfied that the applicant’s dismissal was not harsh, unjust or unreasonable. As the dismissal was not unfair, the application is dismissed.

Appearances:

Mr Stefan Russell-Uren, of United Voice, for the applicant.

Ms Nicola Churchill for the respondent.

Hearing details:

2014.

Canberra:

March 12.