[2014] FWC 3188 [Note: An appeal pursuant to s.604 (C2014/5268) was lodged against this decision - refer to Full Bench decision dated 26 September 2014 [[2014] FWCFB 6612] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lynette Burns
v
Sacred Heart Mission Inc
(U2013/14236)

DEPUTY PRESIDENT GOSTENCNIK

CANBERRA, 22 MAY 2014

Application for relief from unfair dismissal; refusal to attend medical assessment as directed; refusal to attend meetings with employer as directed; directions were lawful and reasonable; dismissal for serious misconduct; reason for dismissal was a valid reason; dismissal was not harsh, unjust or unreasonable; application for relief dismissed.

Introduction

[1] Lynette Burns (Applicant) was employed by Sacred Heart Mission Inc (Respondent) in the position of an After Hours Support Worker, Homefront Crisis Accommodation (Homefront) until her employment was terminated by the Respondent, which is said to have taken effect on 11 September 2013 1.

[2] Although the Applicant’s dismissal is said to have taken effect on 11 September 2013 it is common ground that the Applicant was not notified of her dismissal until 18 September 2013 2. The termination of the Applicant’s employment cannot have taken effect before the Applicant was notified of the termination. Since that did not occur until 18 September 2013 it is that date, which is the date on which the dismissal took effect. The Respondent’s reason for the Applicant’s dismissal was that she had engaged in serious misconduct by failing to attend a previously arranged medical assessment and by failing to attend a number of meetings with the Respondent despite being directed to do so3. On 8 October 2013 the Applicant lodged an unfair dismissal remedy application under section 394 of the Fair Work Act 2009 (Act).

Though the Respondent claimed to have terminated the Applicant’s employment summarily, in dismissing the Applicant it nevertheless paid to the Applicant an amount in lieu of notice 4.

[3] I have decided that the Applicant’s dismissal was not harsh, unjust or unreasonable and these are my reasons for that conclusion. Consequently there will be an order dismissing the application.

Factual context

The Applicant’s employment

[4] The Applicant began employment with the Respondent in or about March 2007 5. The Applicant occupied the position of After Hours Support Worker, Homefront Crisis Accommodation since February 20106 until her dismissal. In that position, since January 2012, the Applicant reported to Ms Leanne Lewis, the manager of women’s services at the Respondent through another employee Ms Jo Di Pietro7. The role of After Hours Support Worker is both sensitive and challenging because an employee performing that role works alone and the women in accommodation at Homefront will often exhibit challenging behaviour8.

Homefront Crisis Accommodation

[5] Homefront is a crisis accommodation facility for women aged over 25 years without accompanying children or dependents 9. It takes state wide referrals and is able to provide approximately 6 weeks of crisis accommodation to eligible women10. Homefront is a facility that is able to accommodate 11 women in self-contained units and also to provide outreach services to approximately 15 women who are in transitional housing11. Homefront presents as a high-risk environment for both employees and the women to whom accommodation and outreach services are provided12.

The 2010 incident

[6] In 2010 the Applicant was involved in an incident which concerned the death of a client in another of the Respondent’s facilities (2010 incident). There is no suggestion of any wrongdoing on the Applicant’s part in relation to the 2010 incident 13. The 2010 incident is tangentially relevant in these proceedings because it was raised in discussions between Ms Lewis and the Applicant on 20 May 2013, reference to which will shortly be made.

[7] Following the 2010 incident the Applicant received both internal and external briefings, was given two weeks off work on full pay and was referred by the Respondent to its employee assistance program for counselling 14. The Applicant disputes some of this but it is not necessary for me to make any findings to resolve that dispute. The Respondent suggested to the Applicant at the time of the 2010 incident that she consider making a WorkCover claim however the Applicant did not do so15.

Supervision meeting on 20 May 2013

[8] As a consequence of some performance issues which had arisen in February 2013, about which it is unnecessary to make any findings, the Applicant was directed to attend supervision meetings with Ms Lewis instead of Ms Di Pietro for a limited period 16. Supervision meetings were conducted between Ms Lewis and the Applicant on 29 April 2013 (which was incomplete), on 6 May 2013 which the Applicant described as a “positive supportive and task focused session” and on 20 May 201317

[9] It is not disputed that the Applicant attended a supervision meeting with Ms Lewis on 20 May 2013 18. There is significant disputation between the Applicant and Ms Lewis about the content of that discussion and in particular which of the two attendees raised the 2010 incident19. Ms Lewis gave evidence that during the supervision meeting on 20 May 2013 the Applicant had raised the 2010 incident in the context of explaining to Ms Lewis that she remained in the employ of the Respondent because she had no choice and would not be able to obtain alternative employment because of the 2010 incident20. Ms Lewis said that at this point the Applicant became tearful21 and later the Applicant had said to Ms Lewis that the Applicant could not get another job because she was concerned about “having a trigger”, which Ms Lewis believed made the Applicant susceptible if she were to experience another workplace incident thereby creating a risk of adverse health consequences to the Applicant22.

[10] Ms Lewis also gave evidence that the Applicant had, during this supervision meeting, told her that following the 2010 incident the Applicant believed she had not been given enough support, that she should not have been “forced back to work” nor should she have been expected to work as a sole worker and that she has a workplace injury and was a risk 23.

[11] The Applicant gave evidence that it was Ms Lewis who had raised the 2010 incident during this supervision meeting on 20 May 2013. 24 The Applicant said that she told Ms Lewis that she did not have issues and that it was her understanding that the 2010 incident was not to have been raised by her managers unless the Applicant had an issue with it25. According to the Applicant Ms Lewis pressed on in her discussion of the 2010 incident and disregarded the Applicant’s views on the matter26. During cross-examination the Applicant maintained her version of events as they concern the raising of the 2010 incident27.

[12] Strictly speaking it is unnecessary for me to resolve the controversy of who had raised the 2010 incident during this supervision meeting on 20 May 2013. This is because ultimately whether the Applicant had raised the 2010 incident did not form part of the reason for the Applicant’s dismissal. Ultimately it is not in dispute that the 2010 incident was the subject of discussion during the supervision meeting on 20 May 2013. Moreover it was Ms Lewis’s observations of the Applicant during the supervision meeting, about which I make findings below, which was the catalyst for the events that followed 28 and to which I will shortly refer.

[13] However as a great deal of time was spent during proceedings on this issue I make the following finding in relation to it. I am satisfied that the 2010 incident was raised by the Applicant during the supervision meeting on 20 May 2013. I also accept the account of the supervision meeting given by Ms Lewis. I have come to this conclusion for the following reasons. First, based on my observations of the Applicant and her demeanour during the time she gave evidence and also during the conduct of the proceedings more generally, I found the Applicant to be an unreliable witness who was prone to exaggeration, was argumentative and often provided answers which sought to avoid questions that were put to her rather than giving direct answers 29. This rendered much of her evidence concerning the supervision meeting on 20 May 2013 when it conflicted with that given by Ms Lewis difficult to accept without additional corroboration.

[14] Secondly, Ms Lewis made a contemporaneous note of the supervision meeting 30 which accords with her version of events. Thirdly, Ms Lewis communicated the substance of her discussion with the Applicant about the 2010 incident to Ms Amanda Roy, the Respondent’s human resources manager soon after the meeting and this is confirmed by Ms Roy in her evidence31. This is evidence of a contemporaneous utterance and is consistent with the evidence of Ms Lewis. Fourthly, notes prepared by Ms Roy in preparation for a meeting with Ms Burns scheduled for 4 July 2013 record that two of the points for discussion were that:

“In our supervision of 20 May 2013, you stated to me that you were still impacted by a traumatic client event that occurred in 2010” and

“You stated at that meeting that you had a workplace injury and were at ‘risk’. You stated that you were forced back to work when you are not ready and that you feel unable to leave SHM to pull him due to concerns about having a ‘trigger’” 32

[15] This has a tendency to corroborate the evidence given by Ms Lewis about the content of the supervision meeting. Moreover, Ms Roy’s evidence was that the items for discussion contained in the document prepared for the meeting on 4 July 2013 were raised by Ms Lewis in that meeting 33. The minutes of the meeting on 4 July 2013 record that this was so and Ms Roy gave evidence that she prepared the minutes on 5 July 2013 and that she believed the minutes to be accurate34. This also has a tendency to corroborate the evidence given by Ms Lewis about the content of the supervision meeting.

Meeting on 22 May 2013

[16] Ms Lewis gave evidence that on 21 May 2013 she telephoned the Applicant to enquire about her well-being and to suggest a further meeting on 22 May 2013 to discuss how the Respondent could support the Applicant 35. Ms Lewis said that at the meeting on 22 May 2013 she told the Applicant that she had concerns about that which the Applicant had disclosed to her during supervision meeting and about the risk that the Applicant might be exposed to a further traumatic event36. Ms Lewis also said that at the meeting on 22 May 2013 she had suggested to the Applicant that the Applicant may be better supported by working day shift and that the Applicant had agreed to a further discussion about that issue with Ms Lewis and the General Manager of the Respondent Ms Mary Bartlett on 24 May 201337. However the meeting with Ms Bartlett did not proceed because the Applicant had subsequently requested that any proposed changes to role would need to be communicated in writing38. Ms Lewis said that she also prepared a contemporaneous note of the meeting held on 22 May 201339.

[17] The Applicant gave evidence that she believes the meeting had occurred on the 23 May 2013 not 22 May 2013 40, although her evidence of this point was somewhat confused. The Applicant was more certain of the day of the week on which this meeting had occurred, namely a Wednesday rather than date of the meeting41. The 22nd of May 2013 was a Wednesday. I accept that the meeting occurred on 22 May 2013 because that date fell on a Wednesday, and further Ms Lewis says that she prepared the contemporaneous note immediately after the meeting was held on 22 May 201342. Although not strictly in evidence the Respondent produced a computer screen dump in relation to the notes of 22 May 201343 which shows that the document along with the notes of the supervision meeting were both created at different times on 22 May 2013.

[18] The screen dump was produced by the Respondent because the Applicant had earlier claimed that Ms Lewis’s notes may not have been contemporaneously made but rather had a more recent progeny 44, a claim which was no longer pursued once the screen dump had been produced45. I accept the note of the meeting on 22 May 2010 was contemporaneously made.

[19] The Applicant also took issue with much of Ms Lewis’s account of the meeting held on 22 May 2013 46. It is unnecessary for me to resolve the differing accounts of the content of the discussion during the meeting on 22 May 2013 because it is ultimately a matter which is not material to any question that I need to decide. However if it were necessary for me to do so I prefer Ms Lewis’s account, which is consistent with the contemporaneous note she made, of the meeting on 22 May 2013 and for substantially the same reasons that I gave earlier I do not accept the Applicant’s account of the meeting where it is in conflict with Ms Lewis’ account.

The suspension

[20] Ms Lewis gave evidence that she was concerned about Applicant’s mental health because of what the Applicant had told her during the supervision meeting 47. Ms Lewis said that the Applicant had presented as distressed and vulnerable and exhibited episodes of highly elevated behaviour which appeared to Ms Lewis to indicate a risk to the Applicant’s capacity to make sound judgements48. The Applicant accepts that during the supervision meeting she did become upset, “a little bit” tearful49 and that she had asked Ms Lewis whether Ms Lewis was recording the conversation50. I accept Ms Lewis’s evidence about her concern and about her observations of the Applicant during the supervision meeting.

[21] Ms Lewis gave evidence that she was also concerned that there was a high potential for events relating to the delivery of client services to be a trigger for some of the elevated behaviour that she had observed the Applicant display 51. She said that as the Applicant was a sole worker, this required her to make sound assessments and judgements in response to critical events52. Ms Lewis said that she was concerned, given the discussion at the supervision meeting and the Applicant’s behaviour that she had observed, about the Applicant’s ability to respond effectively in a crisis and the potential impact of any further trauma on the Applicant’s mental health53.

[22] Ms Lewis gave evidence that as the Applicant had declined the opportunity to discuss the option of moving onto day shift, and after taking advice, the Respondent decided to stand down the Applicant on full pay pending the outcome of an independent medical assessment of the Applicant’s capacity to safely perform her duties 54. Although the precise time at which a move to day shift was canvassed and the circumstances in which it was canvassed is in dispute, the Applicant accepts that there was a proposal that she move to day shift55. The notes of the meeting held with the Applicant held on 4 July 2013, reference to which was earlier made, contained the following notation about matters that were discussed:

“LL had requested that given her concern for LB, that LB move to day shift so that further support could be provided”; and

“LB refused to move to day shift” 56.

[23] The reference in the note to “LL” is to Ms Lewis and “LB” is to the Applicant. The note is consistent with the evidence given by Ms Lewis and I accept Ms Lewis’ evidence about the move to day shift. I also accept Ms Lewis’ evidence about her motivation for initiating the stand down of the Applicant.

[24] Ultimately Ms Lewis sent a letter to the Applicant on 2 July 2013 but dated 1 July 2013 advising the Applicant that she was stood down on full pay, that she was not required to attend for work until she was able to meet with the Respondent regarding her health, that a meeting to facilitate discussion had been scheduled for 4 July 2013 and that she could bring a support person to the meeting 57.

[25] Although there was some delay between the supervision meeting from which arose the Respondent’s concerns, and the decision to suspend, in my view, the action taken to suspend the Applicant on full pay in the circumstances was reasonable. The suspension was on full pay. It was implemented because of a genuinely held concern for the health and wellbeing of the Applicant and for the clients of Homefront. The delay was occasioned by the Respondent’s need to take advice and to consult internally before acting 58. Further, even though the Respondent did not give the Applicant an opportunity to comment on the proposed suspension before the decision was made59, that omission did not in the circumstances render the suspension unreasonable.

4 July 2013 meeting

[26] As directed by Ms Lewis in her correspondence to the Applicant dated 1 July 2013, the Applicant attended a meeting with the Respondent on 4 July 2013 60. The Applicant was supported at the meeting by a representative of the Australian Services Union (ASU) while the Respondent was represented by Ms Lewis and Ms Roy61. According to Ms Lewis’ evidence, which I accept, Ms Lewis discussed with the Applicant that Ms Lewis had concerns arising from the statements that the Applicant had made during the supervision meeting and the meeting on 22 May 2013 and as a consequence, Ms Lewis held concerns about the risks to the Applicant and to clients of Homefront 62.

[27] Ms Lewis informed the Applicant that she would be required to attend an appointment with an occupational physician to enable an independent medical assessment to be undertaken of her capacity to fulfil the inherent requirements of the position and that an appointment had been made for her at 4.00 pm on 6 August 2013 63. Ms Lewis gave a direction to the Applicant to attend the appointment64. Ms Roy corroborated Ms Lewis’ evidence in this regard65. Ms Roy also prepared minutes of that meeting which are consistent with the evidence given by Ms Lewis66. The Applicant was to remain stood down on full pay pending the medical assessment.67

[28] At this point I digress to make some observations about by the Respondent’s use of the phrase “capacity to fulfil the inherent requirements of the position” to describe the concerns held by Ms Lewis arising from her supervision meeting with the Applicant on 20 May 2013.

[29] It seems to me that there was no basis for the Respondent to have concerns about the Applicant’s capacity to fulfil the inherent requirements of her position. The use of the phrase designed to describe a concern in one context is apt to confuse when used in an entirely different context. The real concern that the Respondent had was that there may be a risk to the health and well-being of the Applicant and to the clients of Homefront. It was not a concern about the Applicant’s physical or mental capacity to perform the role. This much was accepted by Ms Humphreys as is evident from the exchange recorded in transcript and reproduced below:

Was there anything done from 20 May to 1 July?---So between the time in which I was notified of the concerns which was on or about 21 and 24 May the line manager and general manager Mary Bartlett and Leanne Lewis and, I believe, Amanda Roy undertook to get advice from Jobs Australia. Unfortunately they don’t have a hotline to us so these things do take time so I understand some discussion was happening around advice and making decisions around the best way to proceed. So whilst there might have not been any direct action with yourself, there were some things happening in terms of determining the best approach to take in response to the disclosures at that supervision meeting.

THE DEPUTY PRESIDENT: Ms Humphrey, can I put something to you? The notion of whether a person has the capacity to perform the inherent requirements of a position usually arises in circumstances where there’s a diagnosed physical or mental inability and usually the question most often arises in the context of discrimination complaints, whether somebody was dismissed because of an injury and the defence says, “Well, they couldn’t perform the inherent requirements of the position”?---Yes.

Here based on the notes of the meeting on 20 May there’s no diagnosis. There’s no apparent diagnosed injury or illness which prevented Ms Burns from performing her duties and, indeed, prior to that time she had been performing her duties at least satisfactorily on the basis of the evidence. You gave evidence earlier that you were concerned about the risk of triggers might arise as a consequence of the work and as a consequence of exposure to other women who are suffering trauma. Can I put this to you: was the nub of what you were really trying to get at by sending Ms Burns to Dr Bloom not an assessment of whether or not she could perform her job but whether or not she in fact had an injury?---That may have occurred as a result of the assessment but that wasn’t our set intention.

But you had no information before you which suggested that Ms Burns was not performing her job or the inherent requirements of her role. You were concerned about the risk?---We were concerned that she had raised the incident that occurred in 2010 and that, as a result of that incident, that was continuing to have triggers for her and within that we had identified a risk that that might be leading to being incapable of doing her job because - - -

It would lead to a risk of an episode occurring?---Yes.

Yes?---Because she works as - - -

Which might then lead to her not performing her job?---Yes.

But the fact that this - whatever the diagnosis be wasn’t as a matter of fact at that time - - -?---No.

- - - preventing her from performing her job?---The difficulty in determining that is Lyn worked alone as a worker so larger unsupervised and so the risk for us is that we were not able to determine by being present in the workplace when Lynette was working if the risk was real or not. So we needed to have some assessment - - -

The risk of an episode?---Yes.

The risk of a trigger?---Yes.

Yes, but did you have any information which suggested that she was not then performing the inherent requirements of her job?---No. 68

[30] It seems clear that the phrase was used by the Respondent after consulting an external agency. The phrase is not well suited to describing the concern held by the Respondent. It doubtless caused some confusion in the mind of the Applicant. Nevertheless I am satisfied that the Respondent adequately communicated its real concern to the Applicant and to Dr Bloom who was to undertake the assessment. First the letter of referral to Dr Bloom dated 3 July 2012 69, provided as follows:

Our employee has expressed to us that she’s still impacted by a traumatic client event that occurred in 2010. We are therefore concerned about her capacity to respond effectively in crisis situations and the potential risk due to her unresolved trauma.

We seek Dr Bloom’s recommendation to assist us in providing a safe working environment for our employee . . . the environment in which our employee works is complex and requires a high degree of emotional resilience. Currently we have serious concerns regarding how employee’s mental health status and ability to demonstrate emotional resilience.

[31] Secondly, in a letter to the ASU dated 30 July 2013 70, the Respondent advised the ASU acting on behalf of the Applicant as follows:

The grounds for directing Lynette to attend an independent medical assessment relate to a supervision meeting conducted with Lynette on 20 May 2013. In that meeting Lynette stated she was still impacted by a traumatic client event that occurred in 2010. Lynette stated at the meeting that she was a “risk”. I confirm that the Lynette was advised of our concerns regarding these statements at a meeting conducted with her and Dean Dando of the ASU on 4 July 2013. This comment is taken very seriously as we have a duty of care to Lynette as an employee.

[32] Thirdly, in correspondence to the Applicant’s solicitors dated 2 August 2013 71, the Respondent advised the Applicant’s solicitors as follows:

Lynette Burns has been requested to attend an independent medical assessment with Dr Bloom who is an Occupational Physician skilled in assessing a person’s ability to perform the inherent requirements of their role as per their position description. This request has been made in response to comments that Lynette Burns made to her Manager during a supervision meeting held on 20 May 2013, indicating that she was still impacted by a traumatic client event that she was involved in during 2010.

As Lynette Burn’s (sic) employer we are required by Occupational Health and Safety legislation to provide a safe working environment. Lynette burns works independently in a crisis accommodation facility for women, many of whom have challenging behaviours. We will be happy to welcome Lynette back to work, when we have been satisfied that she is able to perform the inherent requirements of her role without risk of exacerbating the concerns that she expressed to us. We will endeavour to accommodate any recommendations that Dr Bloom may suggest in order to facilitate Lynette Burn’s (sic) return to work.

[33] Fourthly, in correspondence to the Applicant’s solicitors dated 6 August 2013 72, the Respondent advised the Applicant’s solicitors as follows:

As stated in our previous letter to you dated 2 August 2013, and as reiterated over the phone, this matter gives rise to potentially serious Occupational Health & Safety issues. As Lynette’s employer, Sacred Heart Mission is concerned to provide her with a safe working environment and to ensure that Lynette can safely carry out the inherent requirements of her role.

[34] When the use by the Respondent of the phrase “capacity to fulfil the inherent requirements of the position” is understood in the context of the Respondent’s motivation and having regard to clear explanation given to the Applicant’s representatives reproduced above, its use is not fatal and did not render the Respondent’s direction to attend the medical assessment unreasonable.

[35] Further, in the context of the clear explanation reproduced above, the Respondent’s use of an inappropriate phrase to describe Respondent’s concern and any resultant confusion did not, in my view, give licence to the Applicant to ignore, disregard or to fail to follow the directions that were given about attending a medical assessment or about attending meetings with the Respondent subsequently arranged.

Direction to attend a medical assessment scheduled for 6 August 2013

[36] Until the Applicant attended the scheduled medical examination the Applicant would continue to be stood down from her employment on full pay 73. The instruction to attend a medical examination was confirmed in writing in a letter prepared and signed by Ms Roy incorrectly dated 3 July 2013, but which should have been dated 4 July 201374. The letter was handed to the Applicant at the meeting on 4 July 201375. The Applicant accepted that she had received that letter76. The letter put the Applicant on notice that if she fails to attend the appointment she may be subjected to disciplinary action.

[37] Separate correspondence to Dr Michael Bloom setting up the appointment also sets out the assessment that is to be undertaken and was sent by Ms Roy on 3 July 2013 (although the letter is incorrectly dated 3 July 2012) 77. On 22 July 2013 Ms Roy sent a letter to the Applicant reminding her that she was instructed to attend an independent medical assessment with Dr Michael Bloom at 4.00 pm on 6 August 201378. The Applicant acknowledged that she had received that letter and that it also put the Applicant on notice that if she failed to attend the appointment disciplinary action may result79.

[38] By letter dated 25 of July 2013 solicitors acting for the Applicant served on the Respondent an application pursuant to section 372 of the Act (a non-dismissal related general protections dispute) in which the Applicant alleged, inter alia, that the suspension pending a medical assessment was adverse action taken in contravention of Part 3-1 of the Act. 80 As events transpired, the Respondent did not consent to participate in a conference before the Commission81, which under the Act was the Respondent’s prerogative and I do not draw any adverse inference from that decision.

[39] By letter dated 26 July 2013 the ASU wrote to the Respondent about the direction to the Applicant that she attend a medical assessment 82. In that letter the ASU said that the Applicant had sought its advice on the issue and it asked the Respondent to provide answers to a number of questions83. Ms Roy provided a response by letter dated 30 July 201384. By letter dated 5 August 2013 solicitors acting for the Applicant wrote to the Respondent requesting the Respondent to withdraw its direction to the Applicant to attend a medical examination85. Attached to that correspondence with a medical certificate dated 2 August 2013 certifying that the Applicant was fit for full time work86.

[40] Ms Roy responded by letter dated 6 August 2013 in which she made the point that the general practitioner certificate was not a sufficient basis to satisfy the Respondent that the Applicant could safely carry out her duties, and reiterated the Respondent’s direction to the Applicant that she attend the medical assessment appointment with Dr Bloom 87. According to Ms Roy the letter was sent following an earlier telephone discussion with the solicitor representing the Applicant, during which, Ms Roy confirmed that the Applicant was required to attend the appointment with Dr Bloom88. The substance of the communication between Ms Roy and the Applicant’s solicitors and the correspondence that followed thereafter were communicated to the Applicant by her solicitors89.

[41] The Applicant did not attend the scheduled medical assessment with Dr Bloom on 6 August 2013, nor did she contact the Respondent to provide any explanation for her failure to attend that appointment 90.

Direction to attend a meeting with the Respondent on 20 August 2013

[42] The Respondent wrote to the Applicant by letter dated 13 August 2013 in which it set out some of the history which led to its direction to the Applicant that she attend a medical assessment with Dr Bloom. The letter also provided that the Applicant had apparently failed to attend and directed the Applicant to attend a meeting at the Respondent’s premises at 11.00 am on 20 August 2013 for the purposes of responding to the allegation that she had failed to attend the appointment with Dr Bloom 91. The letter advised the Applicant that she could bring a support person to the meeting92.

[43] The Applicant did not attend the meeting as directed nor did she provide any explanation for her failure to do so 93. The Applicant accepted that she had received the Respondent’s letter dated 13 August 201394. The Applicant also accepted that she did not attend the meeting on 20 August 201395. The Applicant attempted to arrange a separate meeting with Ms Roy but when this was declined by Ms Roy, the Applicant provided no explanation to the Respondent for her non-attendance nor did she tell the Respondent that she would not be attending that meeting96.

[44] As a consequence of the Applicant’s failure to attend the meeting as directed and her earlier failure to attend the medical assessment, the Respondent issued to the Applicant a “first and final warning” in writing by letter dated 21 August 2013 97. The letter also advised the Applicant that she would be given a further opportunity to provide a satisfactory explanation for her failure to attend the earlier medical assessment and the meeting on 20 August 201398. Consequently the Respondent directed the Applicant to attend a meeting with it on 26 August 2013 and advised her that she could bring a support person to the meeting.99

[45] The Applicant acknowledged receiving this letter but suggested that she decided not to attend that meeting because of the general protections complaint that she had earlier made which were still on foot 100. In her evidence the Applicant alleged that she had communicated this explanation for her non-attendance to the Respondent by email, but when asked to produce the email she was unable to do so101. I am satisfied that the Applicant did not provide any explanation to the Respondent about her intention not to attend the meeting on 20 August 2013.

Direction to attend a meeting with the Respondent on 26 August 2013

[46] As indicated above the Applicant was directed to attend a further meeting with the Respondent on 26 August 2013. The Applicant did not attend the meeting on 26 August 2013 as directed and she did not provide the Respondent with any explanation for her failure to attend 102. The Applicant acknowledged that she did not attend that meeting and said it was because her general protections application was still on foot103. This reason was not communicated to the Respondent by the Applicant.

Direction to attend show cause meeting on 9 September 2013

[47] By letter dated 9 September 2013 Ms Roy wrote to the Applicant about her failure to attend the meetings that had been scheduled for 20 and 26 August 2013 despite being directed to do so 104. In the letter Ms Roy explains that directions to attend these meetings were given, that the Respondent regarded the directions as lawful and reasonable, that the Applicant did not attend the meetings and had failed to provide any satisfactory explanation for her failure to attend105. Ms Roy also wrote that the conduct is regarded as serious misconduct, and directed the Applicant to attend a meeting at 1.00 pm on 9 September 2013 where she would be given an opportunity to show cause why the Respondent should not proceed to terminate her employment for serious misconduct. The letter advises the Applicant that she could bring a support person to the meeting106. Ms Roy concludes the letter by cautioning the Applicant that if she failed to attend that meeting without reasonable excuse or if she failed to show good cause why her employment should not be terminated, that the employment will be terminated on the ground of serious misconduct107.

[48] The Applicant did not attend the meeting scheduled on 9 September 2013 and did not provide the Respondent with any explanation for her failure to attend that meeting  108. The Applicant accepts that she did not attend that meeting but said that it was because her general protections application remained on foot.109 This reason was not communicated to the Respondent by the Applicant.

[49] The Applicant was cross-examined about whether she understood from the correspondence that had been sent to her that her employment was very much at risk. The relevant cross-examination as recorded in the transcript is reproduced below:

Now, could you turn to AR16? I’m looking at the second paragraph down there which is a sentence. You failed to attend the meeting on the 20th and this is titled a “Show Cause” letter. Correct?---That’s correct.

In the second paragraph there, “You failed to attend the meeting on 20 August,” and then looking at the fourth sentence down there, “You failed to attend the meeting on 26 August 2013.” So you didn’t attend the meeting on 26 August in relation to a disciplinary process, did you?---No, I didn’t because the general protections was still open.

Now, you understood at this point that your employment was very much at risk, didn’t you?---I wouldn’t say that I understood. I was still waiting and, as I say – and I know everybody’s saying it’s irrelevant but if you’re an employer and you’re waiting to have a matter heard in the Fair Work Commission, it was my understanding that at some stage Sacred Heart Mission would attend the Fair Work Commission and conciliation hearing.

If you look at the fifth paragraph down the - - -?---What was prescribed to me in letters I understood the wording. I understood what they were saying. However, I was hopeful that they would attend the Fair Work Commission to have the matter heard.

If you go to the fourth paragraph from the bottom, your employer is very clear here:

Sacred Heart Mission believes you have been given every reasonable opportunity to respond to the allegations made against you and to offer satisfactory explanation for your failure to attend meetings as directed by Sacred Heart Mission.

The next paragraph goes on:

This conduct constitutes serious misconduct and in the circumstances Sacred Heart Mission considers it has no other option but to terminate your employment.

That successfully communicates to you that they are seriously considering the termination of your employment, doesn’t it?---That’s what’s written, yes, correct.

Then the following paragraph:

You’re directed to meet with me –

that being Amanda Roy –

on 9 September for the purpose of showing cause as to why Sacred Heart Mission should not now proceed to implement its decision to terminate your employment for serious misconduct. You may bring a support person.

So you understood the purpose of the meeting was to give you an opportunity to tell them any unusual factor or reason that they weren’t aware of as to why they should not terminate your employment. That’s what the purpose of the show-cause meeting scheduled for 9 September was, wasn’t it?---I understand and as I can read:

It is very important that you participate in this meeting. If you fail to attend without reasonable lawful excuse or you fail to show good cause why your employment should not be terminated, your employment with Sacred Heart Mission will be terminated on the grounds of serious misconduct. Notwithstanding that we consider your conduct to be serious misconduct, should our decision -

“To terminate your employment”?---”- - - to terminate your employment be implemented, we have the decision to pay you four weeks’ pay in lieu of notice,” which articulates to me pretty much the decision was made on 9 September. However, that’s less questionable.

The final sentence there says, “If you have any queries regarding anything in this letter, including the allegations in this letter, you should contact me immediately,” on a mobile number. That’s Amanda Roy?---Yes.

But you didn’t contact her, did you, prior to 9 September?---I may have. I don’t recall.

You didn’t turn up to the meeting on the 9th - - -?---No, I didn’t turn up to the meeting.

The show-cause meeting on 9 September, did you?---No, and, as I say again, the general protections and adverse action case was still open.

So if you flick to the last attachment there, A17, it’s a termination letter dated 11 September 2013 from Ms Roy to you?---Correct.

The first paragraph of that letter informs you that you have failed to comply with lawful directions. There are four lawful directions numbered there, the first being the medical appointment you didn’t attend on 6 August, then the three disciplinary meetings on 20 and 26 August and 9 September. So you understood that was the reason that - it was your failure to obey the direction to attend those meetings that was the reason that the employer terminated your employment. You understood that from this letter, didn’t you?---I obtained a prescribed copy of it, correct.

Yes, and you understood the reasons for the termination of employment?---Again I will say that I received a prescribed copy of the letter.

And you understand that Sacred Heart took the position that they’d lost trust and confidence in you as an employee as a result of your continuing failure to follow directions?---I can read that in that letter, correct.

THE DEPUTY PRESIDENT: Ms Burns, I’m not sure what you’re hoping to achieve by the manner in which you’re answering the questions. The question is a simply one. It asks you what you understood. It didn’t ask you whether you agreed with their reason. It asks you whether you understood that when you read it. Did you understand that the matters in paragraphs 1, 2, 3 and 4 in the letter of termination were what the hospital were saying was the reason it was relying upon for terminating your employment?---Was what Sacred Heart Mission - - -

Yes; not whether you agree it, do you understand that that’s what they were saying?---I understand from reading it, yes. 110

[50] The manner in which the Applicant sought to answer questions as disclosed in the above extract is consistent with the approach that she adopted throughout much of the cross examination. It was unhelpful and did little to bolster her credibility. I am satisfied that the Applicant well understood that her employment was at risk if she failed to attend the show cause meeting and the earlier meetings, and that she decided not to attend knowing full well that there may be consequences for her employment and that termination thereof may well be the result. That the Applicant maintained that she did not attend these meetings because she had a general protections application on foot, provides neither a reasonable nor plausible explanation for her failure to attend or for her failure to communicate this reason to the Respondent.

Direction to attend a medical assessment scheduled for 24 September 2013

[51] By letter dated 12 August 2013, solicitors for the Applicant wrote to the Respondent attaching a further medical certificate obtained by the Applicant dated 8 August 2013 in which the doctor certifies that the Applicant has no psychological or physical illness that make it unsafe for her to work 111. Ms Roy provided a response by letter dated 19 August 2013, in which she maintained that the medical certificate did not provide an appropriate assessment, that an independent assessment by Dr Bloom was required by the Respondent and that as the Applicant had failed to attend the scheduled appointment on 6 August 2013 a further appointment had been scheduled with Dr Bloom on 24 September 2013112. The Applicant acknowledged that she had received a copy of that letter from her solicitor113.

[52] By letter dated the 20 August 2013 to the Applicant, Ms Roy instructs the Applicant to attend a further assessment with Dr Bloom at 11:30 am on 24 September 2013 and cautions the Applicant that a failure to attend may result in disciplinary action 114. The Applicant acknowledged that she had received this letter115. Ultimately as events transpired the Applicant’s employment was terminated before the date for attendance at this appointment arrived.

Termination of the Applicant’s employment

[53] The Applicant’s employment was terminated by letter dated 11 September 2013 116, although as I have indicated earlier in these reasons, it seems common ground that the Applicant did not receive this letter until 18 September 2013 and it is on that date, the termination of the Applicant’s employment took effect. The decision to terminate the Applicant’s employment was made by Ms Catherine Humphrey the Chief Executive Officer of the Respondent117.

[54] Ms Humphrey gave evidence that the reason for the dismissal was that the Applicant had engaged in serious misconduct by failing to attend the medical assessment scheduled for 6 August 2013 without providing a reasonable explanation, by failing to comply with the Respondent’s written direction to attend a meeting with it on 20 August 2013, by failing to comply with the Respondent’s written direction to attend a meeting with it on 26 August 2013 and by failing to comply with the Respondent’s written direction that she attend a meeting with the Respondent 3 September 2013 to show cause why her employment should not be terminated 118. The letter advising the Applicant of the termination of employment sets out these reasons119.

Consideration and application of the statutory framework

Protection from Unfair Dismissal

[55] An order for reinstatement or compensation may only be made if I am satisfied the Applicant was, at the date of her dismissal, protected from unfair dismissal under the Act.

[56] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[57] There is no dispute, and I am satisfied, the Applicant was, on 18 September 2013, protected from unfair dismissal within the meaning of s.382.

Was the dismissal unfair?

[58] The Applicant’s dismissal will have been unfair if I am satisfied, on the evidence, that all of the circumstances set out at s.385 of the Act existed. Section 385 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.”

[59] There is no dispute that the Applicant was dismissed at the Respondent’s initiative within the meaning of s.386 of the Act, that the Small Business Fair Dismissal Code did not apply to the Respondent or that the dismissal of the Applicant was not for reasons of redundancy and I am satisfied of these matters.

Harsh, unjust or unreasonable

[60] It remains therefore, for me to consider whether the Applicant’s dismissal was harsh, unjust or unreasonable. The matters that must be account into account in assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the 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.”

[61] I am obliged to consider each of these matters in reaching my conclusion and I do so below. 120

[62] The ambit of matters that may fall within the words ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 121 by McHugh and Gummow JJ as follows:

“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[63] The substance of the Applicant’s argument 122 that her dismissal was harsh, unjust or unreasonable is summarised below. It is clear from the way in which the Applicant constructs her argument that she fails to appreciate the reason for dismissal as she concentrates substantially on the capacity to perform work rather than the reason relied on by the Respondent namely the Applicant’s failure to attend an assessment and a number of meetings as directed by it. The Applicant submitted that:

● there was no factual basis upon which Ms Lewis could have concluded that the Applicant was not able to perform their duties and the Applicant had provided evidence by way of medical certificates that she was fit to perform duties;
● the Applicant was notified of the Respondent’s concerns about her health, but these were based on only hearsay evidence;
● the Applicant had offered to meet with Ms Roy on 9 September 2013 but Ms Roy had insisted that the Applicant meet with both Ms Roy and Ms Lewis. The Applicant had attempted to meet with Ms Roy on an earlier occasion (16 August 2013) but this was refused;
● the show cause meeting appeared to the Applicant to be an attempt by the Respondent to “go through the motions” and the Applicant did not attend because “after seven exhaustive attempts to have Sacred Heart Mission provide an opportunity to have her views heard a meeting to show cause at this stage of the plan in Ms Lynette Burns view would not have changed the outcome or the directive that had been put to her”;
● there was no allegation of unsatisfactory performance and no basis to dismiss on that account;
● the size of the Respondent’s enterprise did not impact upon the procedure that the Respondent should have followed in effecting the Applicant’s dismissal;
● the Applicant had dedicated human resources specialists and these were deployed by it to affect the Applicant’s dismissal;
● the Applicant had been employed for a significant period by the Respondent during which she showed a capacity to maintain positive relationships, had an unblemished work record and was a dedicated, committed and flexible employee.

[64] The Respondent submitted that its dismissal of the Applicant was not harsh, unjust or unreasonable and its argument 123 is summarised below:

● the Respondent was entitled to direct the Applicant to attend a medical assessment and that direction was lawful and reasonable;
● the Respondent was entitled to select the doctor from whom the medical assessment would be obtained;
● the Applicant did not attend for a medical assessment as directed;
● the Respondent was entitled to direct the Applicant to attend meetings with it and did so on three occasions;
● on each occasion the Applicant did not attend the scheduled meeting;
● the failure to attend for a medical assessment as directed and the failures to attend meetings with the Respondent as directed constituted serious misconduct;
● that was the reason for the Applicant’s dismissal;
● that reason was a valid reason;
● the Applicant was notified of that reason;
● the Applicant was given an opportunity to respond to the reason for her dismissal before the dismissal but she did not take up the opportunity;
● the Applicant was given an opportunity to attend each of the meetings that had been arranged with the Respondent in company with a support person;
● the Applicant was warned that a failure to comply with the directions to attend the various meetings may result in the termination of her employment.

[65] I have considered the competing submissions in the context of my earlier findings and in my consideration of each of the criteria in s.387 of the Act below.

Valid reason - s.387(a)

[66] There must have been a valid reason for the dismissal of the Applicant related to the Applicant’s capacity of conduct, although it need not be the reason given to the Applicant at the time of the dismissal. 124 The reason should be “sound, defensible and well founded”125 and should not be “capricious, fanciful, spiteful or prejudiced.”126 Where, as in the present case, the Respondent relies on conduct of the Applicant to justify its decision to terminate her employment, I must be satisfied that the conduct as alleged by the Respondent occurred.127 A mere suspicion of conduct does not amount to a valid reason.128

[67] In the context of the present case, whether the reason for dismissal was a sound, defensible well founded reason depends in part on whether the Respondent was entitled to give the directions that it did.

[68] It seems clear that an employer is entitled to direct an employee to obtain a medical report if that direction is reasonable 129. That entitlement may arise from the implied term in the contract of employment that each party will do all such things as are necessary to enable the other to have the benefit of the contract130 or as a consequence of the employer’s duty under occupational health and safety legislation131, or it seems to me from the corollary to that duty, the duty imposed on an employee under occupational health and safety legislation that an employee cooperate with his or her employer with respect to any action taken by the employer to comply with a requirement imposed by that legislation132. The entitlement might also arise from an employer’s duty implied into the employment contract to take reasonable care for its employees.

[69] A direction to obtain a medical report may be reasonable if there is a genuine indication of the need for it 133, or if there is a requirement to affirm an employee’s continuing fitness for work134, or if there is a concern about meeting an obligation or duty imposed by applicable occupational health and safety legislation135. Ultimately the question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as well a question of what reasonable terms should be applied to a requirement to undertake the medical examination136.

[70] It seems to me that in many cases an employer’s right to require the provision of a medical report will be accompanied by a right to choose the medical practitioner who will provide a report 137. It is unnecessary to recite all of the circumstances in which that will be so. It is sufficient to observe that an employer will likely have that right when it seeks to so direct in furtherance of its obligations under occupational health and safety legislation. But as with all such matters, much will depend on whether that direction was reasonable, so for example, a direction to attend a particular medical practitioner might be a lawful direction but might be rendered unreasonable if the employer requires an employee to pay for that examination.

[71] Turning then to the circumstances of this case. I have earlier concluded that I accept the evidence of Ms Lewis about the Applicant’s words, conduct and demeanour during the supervision meeting on 20 May 2013 and these combined to cause Ms Lewis to have concerns for the Applicant’s welfare, her ability to respond effectively in a crisis and the potential impact of any further trauma in the workplace on the Applicant’s mental health and on the safety of clients of Homefront. It was on this basis that the decision to suspend the Applicant on pay pending a medical assessment was made.

[72] It seems clear from the evidence that the Respondent was seeking to discharge its obligation to provide to the Applicant a working environment that is without risk to health or safety, or at least one in which that risk is minimised. Such an obligation is a continuing one and is one that is imposed on the Respondent by occupational health and safety legislation 138. A similar obligation is implied by law into the contract of employment that existed between the Applicant and Respondent.

[73] In the circumstances I am satisfied that in directing the Applicant to attend for a medical assessment with Dr Bloom arranged by and paid for by the Respondent, the Respondent was seeking to comply with its obligations under occupational health and safety legislation and that the Applicant was under a duty to cooperate with that endeavour. The direction was lawful.

[74] In my view a direction given in these circumstances against the backdrop of the concerns about which Ms Lewis gave evidence, was also reasonable. The Respondent was therefore entitled to give the direction that it gave. That the Applicant disputed there was any risk and maintained that she was fit for work or that the Respondent used a description which did not clearly communicated its concerns, does not in my view alter the reasonableness of the directions given. It follows that in failing to attend the medical assessment as directed, the Applicant failed to comply with a lawful and reasonable direction of her employer.

[75] Further, the Respondent was entitled in the circumstances faced by it to require the Applicant to attend meetings with it to explain why she had not followed the direction to attend a medical assessment and to explain why she had not followed directions to attend meetings. Each of the directions to attend meetings, which I discussed earlier in these reasons, was lawful. Each of the directions was underpinned by a sound reason and was made in circumstances which were eminently reasonable and which showed a high degree of patience with the Applicant and her earlier disregard of directions. Each direction to attend a meeting was reasonable. The suspension of the Applicant on full pay did not relieve the Applicant of her contractual obligation to obey lawful and reasonable directions of her employer. It follows that in failing to attend meetings with the Respondent as directed the Applicant failed to comply with a lawful and reasonable direction of her employer on each such occasion.

[76] Further, although I accept that the Applicant had made a general protections application, that fact provides no basis for her refusal to attend meetings as directed. This is even more so the case when that reason was not communicated by the Applicant to the Respondent, despite the Applicant having been given every opportunity to explain. It is apparent from the evidence that the Applicant’s failure to attend the meetings as directed was a deliberate act rather than mere inadvertence.

[77] The evidence clearly establishes that the Applicant engaged in the conduct as set out in the Respondent’s letter of termination date 11 September 2013 and I am satisfied that the conduct as alleged was engaged in by the Applicant. The Applicant’s repeated, persistent and deliberate refusals to comply with lawful and reasonable directions of the Respondent is apt to be described as serious misconduct, and I am satisfied that when viewed in its totality, the Applicant engaged in wilful disobedience of the Respondent’s directions and so engaged in serious misconduct.

[78] In my view there can be little doubt that the Respondent had a valid reason for the Applicant’s dismissal related to the Applicant’s conduct and I so find.

Notification of the valid reason - s.387(b)

[79] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 139 in explicit terms140 and in plain and clear terms.141 In Crozier v Palazzo Corporation Pty Ltd142 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 143

[80] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason in s.387(c), involves consideration of whether procedural fairness was afforded the Applicant before her dismissal was effected.

[81] Satisfaction of the notification requirement will usually require a straightforward factual inquiry to be made, namely: what was the Applicant told about the reason for the dismissal, before the dismissal took place?

[82] A review of the correspondence sent by Ms Roy to the Applicant and to her various representatives clearly establishes that the Respondent required the Applicant to comply with directions to attend a medical assessment, and later to attend meetings with the Respondent, and that the Applicant was advised that a failure to do so may, in earlier correspondence result in disciplinary action, and in later correspondence may, and still later, will likely, result in the termination of her employment.

[83] In my view the Respondent could not have been clearer and the Applicant was told in very direct terms that she would likely be dismissed if she failed to comply with the Respondent’s direction. The Applicant was therefore clearly notified of the reason for the dismissal before dismissal took place.

Opportunity to respond - s.387(c)

[84] An employee protected from unfair dismissal should be given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. The consideration of whether and to what extent that opportunity was given is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 144 Recently in Pitts v AGC Industries Pty Ltd145 a Full Bench of the Commission said:

“In considering whether the Commissioner was satisfied that the dismissal of the Appellant was harsh, unjust or unreasonable the Commissioner was required to take into account, inter alia, whether the Appellant was given an opportunity to respond to any reason related to his capacity or conduct. This opportunity must have been afforded to the Appellant before a decision to dismiss is made. The process involved in providing the Appellant with such an opportunity does not require formality and is to be applied in a common sense way, to ensure that the Appellant has been treated fairly. In this regard we reject so much of the Appellant’s submissions which asserts that this requires an employer to conduct a meeting with the employee to inform the employee of the reasons for the proposed dismissal or otherwise provide the employee with an opportunity to address the concerns in writing.” 146 (Citations omitted)

[85] One can lead a horse to water but one cannot make it drink. So it is that the Respondent provided the Applicant with ample opportunity to respond to the reason for dismissal but the Applicant did not take up that opportunity. The chain of correspondence passing from the Respondent to the Applicant 147 and the meetings that the Respondent had arranged with the Applicant provided her with such an opportunity and did so before the Respondent made a decision to dismiss the Applicant. The evidence establishes that the Applicant did not respond to the correspondence, did not attend the meetings that the Respondent had arranged, did not provide any explanation for her failure to attend and did not provide any response to the Respondent. I am satisfied that the Applicant was given an opportunity to respond to the reason for her dismissal. That opportunity was provided before the Respondent made its decision to dismiss the Applicant but the Applicant failed to take up the opportunity given.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[86] If an employee protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse to allow that person to be present.

[87] It is clear from the plain language of s.387(d) that this consideration is directed to an employer’s unreasonable refusal to allow a support person to be present. It is not concerned with whether an employer offered the employee such an opportunity. In most cases, the section will be engaged if the employee asks for a support person to be present and the employer refuses the request. 148 It may well be appropriate in some cases to consider the overall circumstances in which meetings to discuss an employee’s performance, capacity and conduct or dismissal occurred to properly determine whether there was an unreasonable refusal by the employer to allow the employee to have a support person present. This is not such a case.

[88] Throughout this whole process, the Respondent had made clear to the Applicant that she could bring a support person with her to each of the meetings that the Respondent had arranged 149. The Applicant was supported by a representative of the ASU in the meeting of 4 July 2013 at which the Applicant’s suspension on full pay was effected. Thereafter the Applicant did not attend any other meeting with the Respondent, however it is clear that the Respondent would not only have allowed the Applicant to have a support person in attendance at those meetings, but to took steps to advise the Applicant in writing that she could bring a support person to each of the meetings that had been arranged by the Respondent.

Warnings regarding unsatisfactory performance - s.387(e)

[89] If an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employee about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 150 For the reasons given earlier in this decision I am satisfied that the Respondent dismissed the Applicant for reasons relating to conduct and not her performance. The Respondent did not rely on, and did not make any submission to the effect that the Applicant’s dismissal related to, her performance. It follows that in the circumstances of this case, this factor is not a material consideration. I will deal with the warning related to her conduct dated 21 August 2013 later in these reasons.

Impact of the size of the Respondent on procedures followed - s.387(f)

[90] The size of the Respondent’s enterprise did not impact on the procedures followed by the Respondent in effecting the dismissal. Nor was any submission made by either party which would suggest that this factor is a material consideration in the context of this case.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[91] The absence of dedicated human resource management or expertise in an employer’s enterprise may also impact on the procedures followed by an employer in effecting a dismissal. The evidence in this case so far as it relates to this consideration is uncontroversial. It is clear that the Respondent not only had access to dedicated human resources expertise but that it is used that expertise in the form of Amanda Roy. The Respondent was well served, in my opinion, by Ms Roy’s input into the procedure that it undertook and which ultimately resulted in the termination of the Applicant’s employment.

Other relevant matters - s.387(h)

[92] Section 387(h) provides the Commission with broad scope to consider any other matters it considers relevant. I take into account the following matters. Firstly, it seems to me clear that the Applicant may have been a little confused about what it was that the Respondent required and the purpose for which it required the Applicant to undertake their medical assessment. This might explain her initial reluctance to comply with the direction to attend a medical assessment. This early confusion has the effect of reducing the seriousness with which the initial refusal to attend the medical assessment should be viewed.

[93] The impact of that confusion is later mitigated by the various steps that the Respondent took to communicate its expectations and its directions (including the reasons for them) to the Applicant in writing. It did this through the Applicant’s ASU representatives and through her solicitors. It seems to me clear that for a significant period of between 1 July 2013 and the date of the Applicant’s ultimate dismissal, the Applicant had access to advice and was represented by the ASU and by her solicitors in some of the her dealings with the Respondent.

[94] Secondly, I take into account the Applicant’s length of service which was not insignificant, that the Applicant had a good work record, and from all accounts had a work history with the Respondent that showed diligence to the work and a commitment to the services provided by the Respondent.

[95] Thirdly, I take into account the fact that the Respondent decided on 21 August 2013, that notwithstanding the Applicant’s failure to comply with a direction that she attend a medical assessment and the Applicant’s failure to comply with the direction to attend the meeting with the Respondent on 20 August 2013, that it issued her with a “first and final warning” instead of electing to summarily dismissed the Applicant, which was an option that was clearly open.

[96] Fourthly, I take into account the fact that the Respondent decided on 3 September 2013 that notwithstanding the Applicant’s failure to comply with the direction to attend a meeting with the Respondent on 26 August 2013, to issue the Respondent with a show cause letter providing her with a further opportunity to explain her conduct instead of electing to summarily dismiss the Applicant, an option that was clearly open.

Conclusion

[97] Taking into account each of the matters discussed above I have come to the conclusion dismissal of the Applicant was not harsh, unjust nor unreasonable. In my view, the Respondent’s conduct throughout the process showed a great deal of empathy towards, and patience with the Applicant and her consistent refusal to comply with the Respondent’s lawful and reasonable directions. The Applicant has no one to blame but herself for the predicament in which she found herself on 18 September 2013. The Respondent’s conduct was a considered and measured response to the circumstances that it faced. It did not act hastily or rashly. In all of the circumstances it acted lawfully, reasonably and fairly.

[98] The application for an unfair dismissal remedy is dismissed. An order to that effect is issued separately in PR550937.

DEPUTY PRESIDENT

Appearances:

L. Burns on her own behalf

J. Hooper of Counsel for Sacred Heart Mission

Hearing details:

Melbourne.

2014

3, 4, 5 March.

Final written submissions:

Applicant 18 March 2014 and 7 April 2014

Respondent 1 April 2014

 1   Exhibit R1 at [2]

 2   See form F2 (application for unfair dismissal remedy) answer to question 1 and form F3 (Employer’s response to application for unfair dismissal remedy) answer to question 1

 3   Exhibit R4, attachment AR – 17

 4   Ibid

 5   Form F3 (Employer’s response to application for unfair dismissal remedy) answer to question 1

 6   Exhibit R 1 at [2]

 7   Ibid at [1] – [2]

 8   Transcript PN 494 – PN 500

 9   Exhibit R4, attachment AR – 1 at page 1

 10   Ibid

 11   Ibid

 12   Transcript PN 492

 13   Exhibit R1 at [5]

 14   Ibid at [8]

 15   Ibid at [7]; See also Transcript PN 514 - PN512

 16   Exhibit R 1 at [2]

 17   Exhibit A3 second a statutory declaration at [3] – [5]; See also Transcript PN 1176 - PN1186

 18   See exhibit A3 first statutory declaration at [1] and Exhibit R1 at [3]

 19   See exhibit A3 first statutory declaration at [2] and Exhibit R1 at [5] – [6]

 20   Exhibit R1 at [5]

 21   Ibid

 22   Ibid at [6]

 23   Ibid

 24   Exhibit A3 first statutory declaration at [2]

 25   Ibid

 26   Ibid

 27   Transcript PN 548 – PN 555

 28   Exhibit R1 at [12]

 29   See for example Transcript PN614 – PN 716

 30   Exhibit R2; Transcript PN1081 – PN 1107

 31   Exhibit R4 at [3]

 32   Exhibit R5 items 3 and 4; Transcript PN1565 – PN 1570

 33   Transcript PN1565 – PN 1570

 34   Exhibit R6 at item 2; Transcript PN1579-PN1581

 35   Exhibit R1 at [9]

 36   Ibid at [10]

 37   Ibid at [11]

 38   Ibid

 39   Exhibit R3; Transcript PN1130 – PN 1132

 40   Exhibit A3 first statutory declaration at [3]; Transcript of PN 577 - PN580

 41   Transcript PN 605 – PN 613

 42   Transcript PN 1132

 43   See MFI 1

 44   The transcript PN 658 – PN662

 45   Transcript PN1517 – PN1532

 46   See transcript PN714 – PN772

 47   Exhibit R1 at [12]

 48   Ibid

 49   Transcript PN559 –PN560

 50   Transcript PN 567 – PN569

 51   Exhibit R1 at [12]

 52   Ibid

 53   Ibid

 54   Exhibit R1 at [13]

 55   Transcript PN 592 – PN 604

 56   Exhibit R6 items 28 and 29

 57   Exhibit R1 at [14], Attachment LB – 1

 58   Exhibit R1 at [13]; Transcript PN 2205-2206

 59   Transcript PN2254

 60   Exhibit A3 third statutory declaration at [2]; Exhibit R1 at [14]; Exhibit R4 at [7]

 61   Exhibit R1 at [14]

 62   Ibid

 63   Ibid

 64   Ibid

 65   Exhibit R4 at [7]

 66   Exhibit R6

 67   Exhibit R4 at [7]

 68   Transcript PN2190 – PN2201

 69   Exhibit R4, Attachment AR – 3

 70   Ibid, Attachment AR-7 at [2]

 71   Ibid, Attachment AR – 8

 72   Ibid, Attachment AR-10

 73   Exhibit R4 at [7]

 74   Ibid at [8], Attachment AR – 2

 75   Transcript PN 816 – PN 818

 76   Transcript PN 818 – PN 826

 77   Exhibit R4 at [9], Attachment AR – 3

 78   Ibid at [10], Attachment A R – 4

 79   Transcript PN 832 – PN 33

 80   Exhibit R4 at [11], Attachment AR – 5

 81   See correspondence to Applicant’s solicitors dated 6 August 2013 at Attachment AR - 10 to Exhibit R4

 82   Exhibit R4 at [13], Attachment AR – 6

 83   Ibid

 84   Ibid at [14], Attachment AR – 7

 85   Ibid at [16], Attachment AR – 9

 86   Ibid

 87   Ibid at [17], Attachment AR – 10

 88   Ibid

 89   Transcript PN 870 – PN 875

 90   Exhibit AR4 at [18]

 91  Ibid at [20], Attachment AR – 12

 92   Ibid

 93   Ibid at [23]

 94   Transcript PN884 – PN 887

 95   Transcript PN 909

 96   Transcript PN at 937 – PN 943

 97   Exhibit R4 at [24], Attachment AR-15

 98   Ibid

 99   Ibid

 100   Transcript PN 956 – PN 962

 101   Transcript PN 963 – PN 993

 102   Exhibit R4 at [25]

 103   Transcript PN998

 104   Exhibit R4, Attachment AR – 16

 105   Ibid

 106   Ibid

 107   Ibid

 108   Ibid at [27]

 109   Transcript PN1015 – PN 1016

 110   Transcript PN997 – PN1022

 111   Exhibit R4 at [19], Attachment AR – 11

 112   Ibid at [21], Attachment AR – 13

 113   Transcript PN 894

 114   Exhibit R4 at [22], Attachment AR - 14

 115   Transcript PN 903 – PN 905

 116   Exhibit R4 at [28], Attachment AR – 17

 117   Exhibit R7 at [2]

 118   Ibid

 119   Exhibit R4, Attachment AR – 17

 120   Sayer v Melsteel [2011] FWAFB 7498

 121   (1995) 185 CLR 410 at 465

 122   See Final Submissions of the Applicant and Final Submissions in reply

 123   See Respondent's Final Submissions and Respondent’s outline of submissions

 124   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378

 125   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373

 126   Ibid

 127   King v Freshmore (Vic) Pty Ltd, Full Bench AIRC, 17 March 2000, (Print S4213)

 128   Australian Meat Holdings Pty Ltd v McLauchlan (1998) 88 IR 1

 129   See for example Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 at [61]; Thompson v IGT (Aust) Pty Ltd (2008) 173 IR 395 at [48] - [49]; Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395

 130   Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 at [66]

 131   Ibid at [67]

 132   See for example s. 25(1)(c) of the Occupational Health & Safety Act 2004 (Vic)

 133   Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395

 134   Ibid

 135   Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32

 136   Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395 at [68]; Thompson v IGT (Aust) Pty Ltd (2008) 173 IR 395

 137   See for example Grant v BHP Coal Pty Ltd [2014] FWC 1712 and Burdon v Huon Valley Mushrooms [2007] AIRC 395

 138   See s. 21 of the Occupational Health & Safety Act 2004 (Vic)

 139   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 140   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151

 141   Previsic v Australian Quarantine Inspection Services Print Q3730

 142   (2000) 98 IR 137

 143   (2000) 98 IR 137 at 151

 144   RMIT v Asher (2010) 194 IR 1 at 14-15

 145   [2013] FWCFB 9196

 146   Ibid at [4]

 147   See exhibit R4, Attachments AR – 12, AR– 14 and AR – 16

 148   See also Explanatory Memorandum to the Fair Work Bill 2008 at [1542]

 149   See exhibit R1, Attachment LB – 1; exhibit R4, Attachments AR – 12, AR – 14 and AR – 16

 150   Annetta v Ansett Australia (2000) 98 IR 233 at 237

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