[2014] FWC 6604
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Nerolie Columbine
v
The GEO Group Australia Pty Ltd T/A GEO
(U2014/9738)

COMMISSIONER BISSETT

MELBOURNE, 2 OCTOBER 2014

Application for relief from unfair dismissal.

[1] Ms Nerolie Columbine has made an application to the Fair Work Commission alleging that she was unfairly dismissed (s.394 of the Fair Work Act 2009 (the Act). Ms Columbine was employed as a Correctional Officer (CO) with The GEO Group Australia Pty Ltd (GEO) at the Fulham Correctional Facility. Her employment was terminated on 29 May 2014.

[2] In September 2011 Ms Columbine injured her hip and, in a separate incident, her shoulder at work. Her claim for workers’ compensation for the injuries was accepted and for over two years Ms Columbine has been in receipt of workers’ compensation payments. During this time Ms Columbine did some work as a correctional officer - although not on a full time basis and normally as a super numerary officer on shift. She also undertook non-correctional officer roles with GEO on a full-time basis.

[3] In early March 2014 Ms Columbine was advised that the administrative position in which she had been working (under modified duties) was to end and there was no other position available in which she could work with her medical restrictions.

[4] On 1 May 2014 Ms Columbine advised GEO that she wished to return to work as a CO in a particular unit of the facility. 1

[5] On 5 May 2014 Ms Columbine produced a certificate of capacity (the first certificate) from Dr Burk, her general practitioner, advising that she could return to work for 4 hours a day as a CO with a 10 minute limitation on standing and 20 minute limitation on walking at any one time. This restriction would operate, according to the certificate, from 14 May - 11 June 2014.

[6] On 6 May 2014 GEO wrote to Ms Columbine advising that it was considering terminating her employment on the grounds that she was unable to fulfil the requirements of her position as a CO. The letter invited Ms Columbine to provide GEO with any relevant information it should consider prior to making a decision by 23 May 2014. 2

[7] On 13 May 2014 Ms Columbine sent an email to GEO indicating that she had ‘been given the all clear’. 3 A further letter was sent to Ms Columbine on 15 May 2014 advising that, in these circumstances, the information she should provide to GEO (as requested in its letter of 6 May 2014) should include a medical certificate indicating she was fit to perform the role of CO, a report from Dr Burk as to why his opinion had changed from the certificate issued on 9 May 2014 and an authority from Ms Columbine to allow GEO to correspond directly with Dr Burk. She was also advised that she may be sent for an independent medical assessment.4

[8] Ms Columbine provided a certificate from Dr Burk dated 19 May 2014 (the second certificate) stating that she was fit to perform her role as a CO, without restriction. On 22 May 2014 Dr Burk provided a brief report as to why his view of her fitness for work had changed so markedly since the issue of the first certificate.

[9] On 29 May 2014 GEO wrote to Ms Columbine and advised her that, given her failure to provide all of the information it sought in its letter of 15 May 2014 and that she was not prepared to engage with GEO in reasonable steps to ensure her health and safety and that of others at work, it had decided to terminate her employment.

The Issues

[10] GEO sought from Ms Columbine information that would assist it in determining if she could fulfil the inherent requirements of her job. In the letter of termination GEO said that it ‘proceeds on the basis that you have not provided by Friday 23 May 2014 the information required, and as identified in my letter to you of 15 May 2014 (and confirmed in subsequent correspondence with your union), and further that you are not prepared to cooperate with the Company in reasonable and sensible steps to address legitimate work health and safety concerns about not just your situation, but also how that might impact on others in the workplace.’ 5 Ms Columbine’s employment was terminated immediately with notice paid out.

[11] The provision of the information sought by GEO from Ms Columbine cannot be divorced from the overall assessment of her fitness for duty GEO wished to make. Whilst an assessment must be made as to whether or not Ms Columbine provided the information sought, the end purpose of that information cannot be ignored.

[12] The determination of whether or not Ms Columbine was unfairly dismissed requires a consideration of whether Ms Columbine did or did not provide the information sought by GEO. The issues therefore are:

Did Ms Columbine provide a medical certificate stating that she was fully fit to perform all of the duties of a correctional officer without restriction?

[13] Ms Columbine produced the second certificate from Dr Burk dated 19 May 2014 in which he states that:

[14] To this extent Ms Columbine did provide a medical certificate as required.

Did Ms Columbine provide a report from Dr Burk covering the required matters?

[15] The requirements of the medical report from Dr Burk are set out in the letter of 15 May 2014 and at paragraph [12] above.

[16] On 22 May 2014 Dr Burk sent a letter to GEO which said:

[17] This is the only report produced by Dr Burk that could be perceived to be in response to the request made of Ms Columbine by GEO.

[18] Whilst Dr Burk’s report states that the reason for his changed view from the first certificate is based on the WorkCover IME’s report and, presumably, the resultant scan, he does not explain the basis for his change of opinion.

[19] An MRI will not alleviate any pre-existing condition. Dr Burk does not explain how the scan changed his view. Had there been some indication that, subject to clearance through an MRI, Ms Columbine would be fit to resume full duties on 5 May 2014 then the MRI would be a basis for the change in certificates.

[20] In the first certificate of capacity Dr Burk specified the following work restrictions:

[21] There is no indication in this first certificate that Ms Columbine’s situation had improved and that her return to full duties was imminent, pending a final MRI to rule out any other injury. As GEO said in its letter of 6 May ‘the certificate provides for further review, but gives no further prognosis.’ 13

[22] Dr Burk stated in his report that he did not foresee any likelihood of recurrence or risk of further injury to Ms Columbine should she resume the duties of a correctional officer. He says no more on the issue. A statement is not a report. No explanation is given as to the basis of this opinion.

[23] Dr Burk was engaged in this process in his professional capacity as a doctor. There is nothing in the report that provides the basis on which he has reached this conclusion, particularly given the restrictions on Ms Columbine’s capacity for over two years. In a two week period she progressed from only being able to work four hours a day with severe limitations on standing and walking to be fully fit. Such a change of opinion by Dr Burk warrants a greater consideration than that provided in the report by him.

[24] I am satisfied that Ms Columbine provided a report from Dr Burk. Whilst that report did confirm that Ms Columbine was fit for work it did not set out the basis for Dr Burk’s changed opinion, nor did it satisfactorily explain why the risk of further injury had diminished. In the context of GEO justifiably trying to understand the sudden turnaround in her medical condition, the report did little to assist.

Did Ms Columbine provide an authority signed by her that the Company may speak and/or correspond directly with Dr Burk?

[25] Ms Columbine did not provide any authority that enabled GEO to speak to and/or correspond with Dr Burk about her condition or return to work.

[26] This decision of Ms Columbine to not provide such an authority was supported by the CPSU who, in a letter of 16 May 2014, stated that she ‘is under no legal obligation or compulsion to give a signed authority to GEO that the company speak and/or correspond directly with Dr Burk about her condition and any possible return to work.’ 14

[27] Ms Columbine did not respond in any other way to this aspect of GEO’s request. She did not advise GEO, for example, that Dr Burk was not happy with such a process such that GEO might reconsider its approach.

[28] In her oral evidence Ms Columbine says she did not have a problem with providing a signed authority for GEO to speak to Dr Burk and that she never denied GEO the right to do so.15 This does not explain the position taken on her behalf by the CPSU in its correspondence to GEO, or that she did not provide the signed authority. Her evidence directly contradicts the stance she took and, in this respect, should be rejected. It is, at this time, self serving.

[29] Whilst evidence was given as to why Dr Burk did not wish to talk to GEO none of this was provided to GEO or changes the fact that Ms Columbine did not provide the authority as requested.

[30] The circumstances confronting GEO were quite unusual. Ms Columbine’s situation had changed dramatically in quite a short space of time. GEO had a legitimate need to fully understand this sudden change. The report from Dr Burk did not assist. The return to work of Ms Columbine after an absence of over two years from duties as a CO had to be managed properly to ensure no risk to Ms Columbine, her co-workers and prisoners of Fulham. GEO has a duty of care and it was appropriate that it ensure it continued to meet this duty. It is unfortunate, in this respect, that Ms Columbine decided not to provide an authority to GEO.

Did Ms Columbine cooperate in addressing health and safety issues in relation to her return to work?

[31] In its letter of 15 May 2014 to Ms Columbine GEO says: 16

[32] In its letter to GEO of 16 May 2014 the CPSU indicates it was responding to the letters from GEO to Ms Columbine of 6 and 15 May 2014. The CPSU says in the letter that Ms Columbine was in the process of complying with the request for a medical certificate and report from Dr Burk and requested that no decision be taken with respect to the termination of her employment until GEO has received the updated medical opinion.

[33] In reference to the request to provide authority for GEO to speak to Dr Burk, the CPSU advised that Ms Columbine was under no legal obligation to do so. The CPSU also questioned the ‘right’ of GEO to have Ms Columbine examined by a doctor of the Company’s choice.

[34] Ms Columbine gives evidence that she was ‘happy to go to Dr Burk and have a medical examination or you could send me to an independent medical examiner’ 17 despite stating in her email of 13 May 2014 that she required an explanation for the authority on which GEO relies for an independent medical assessment.18

[35] Ms Columbine’s evidence is that she is aware of the GEO Code of Conduct and Ethical Behaviour. She agrees that she was directed to the code when she commenced employment and again when she was subject to a warning. 19 She gives evidence that she was aware of the requirements of the Code that she not unreasonably decline to see a medical practitioner as required by GEO. She says she has never declined a direction to meet with a medical practitioner identified by GEO as required by the Code.20

[36] In a literal sense Ms Columbine did not refuse to attend an independent medical assessment such that GEO could satisfy itself or her fitness for duty as part of its work, health and safety obligations as GEO never referred her for one. On a more practical level, by not allowing GEO to contact Dr Burk, or providing a reasonable explanation as to why this was not possible, Ms Columbine did close off an avenue by which GEO could ascertain her fitness for duty in circumstances where she had been unfit to resume her CO role for over two years and where this medical view had changed in the space of 2 weeks. She also indicates some resistance to an independent medical assessment in her email of 13 May 2014 and in the CPSU letter of 16 May 2014.

[37] Whilst Ms Columbine gives evidence that she was prepared to cooperate with GEO, her actions and response to GEO at the time it was considering her future employment do not support this. I am satisfied that, in the totality of her actions and her correspondence, Ms Columbine indicated she was not prepared to engage with GEO in steps to address any health and safety concerns in relation to her return to work.

Was Ms Columbine unfairly dismissed?

[38] I am satisfied that Ms Columbine is protected from unfair dismissal. The dismissal is not a redundancy and the Small Business Fair Dismissal Code does not apply.

[39] In order to determine if Ms Columbine was unfairly dismissed it is necessary first to determine if the dismissal was harsh, unjust or unreasonable. In order to do so I must consider those matters set out in s.387(a)-(h) of the Act.

(a) a valid reason

[40] For a reason for dismissal to be a valid reason it must be ‘sound, defensible or well founded’. 21

[41] Ms Columbine was dismissed from her employment because she did not comply with the request of GEO in its letters to her dated 6 and 15 May 2014. Ms Columbine’s non compliance adversely effected the ability of GEO to determine if Ms Columbine could fulfil the inherent requirements of her position.

[42] The CPSU submits that the request to Ms Columbine to provide authority for GEO to communicate with Dr Burk was not a lawful direction and hence non-compliance with it cannot be a valid reason for her dismissal.

[43] It is beyond doubt that GEO has an obligation to the health and safety of all of its employees. Ms Columbine gives evidence of COs working in pairs and of providing support and assistance to each other where necessary. Any question of Ms Columbine’s capacity to do her job has implications beyond her own health and safety and extends to her co-workers and to prisoners to whom GEO also has a duty.

[44] A request to Ms Columbine that she assist GEO in reaching the satisfaction necessary for it to be confident that her return to work would not create a health and safety risk to herself and others, in this context, cannot be construed as an unreasonable direction. Fulfilment of the direction would have enabled GEO to comply with its obligations under health and safety laws.22 The request to Ms Columbine to provide authority for GEO to correspond with Dr Burk is, in this context, a reasonable direction.

[45] Ms Columbine was advised that GEO wished to assess her fitness for work and that this was an essential part of its work, health and safety process. GEO made it clear what it needed in order to do this. Ms Columbine knew that GEO was considering terminating her employment on the grounds that she could not fulfil the inherent requirements of her position yet she appears to have failed to engage in any meaningful way with what was a reasonable request that would have enabled GEO to make a proper assessment.

[46] GEO was entitled to make the assessment it did on the basis of the information it had. Ms Columbine did not seek more time to respond or seek clarification of what was required or enquire as to the value or usefulness of what she had provided. To this end Ms Columbine seems to have become fixated on some specific requirements in the letter of 15 May 2014 and ignored the general request for information in the letter of 6 May 2014.

[47] Ultimately Ms Columbine chose not to engage fully with GEO with respect to its requests. GEO was entitled to conclude that there were health and safety issues involved in a return to full time CO duties given the sudden change in her medical status as indicated by the first and second medical certificates.

[48] In these circumstances I am satisfied that there was a valid reason for her dismissal.

(b) was she notified of the reason

[49] Ms Columbine was aware, by the letter from GEO dated 6 May 2014, that GEO was considering terminating her employment because she could not fulfil the inherent requirements of her job. This was confirmed in the letter of 15 May 2014. She was also aware, by this letter, of the information required of her in enable GEO to make that assessment.

[50] GEO dismissed Ms Columbine because she failed to provide the information it sought from Dr Burk, failed to sign an authority and failed to cooperate with GEO in steps to address its health and safety concerns of her return to work. To the extent that she was aware of what was required of her to enable GEO to make an assessment of her fitness for work she was aware of the reason for the termination of her employment.

[51] I am satisfied Ms Columbine was notified of the reason for her dismissal.

(c) an opportunity to respond

[52] Ms Columbine was given adequate opportunity to provide a report from Dr Burk as sought by GEO. No evidence was given that Ms Columbine discussed with Dr Burk the need for a report when she received the second certificate dated 19 May 2014. The only evidence that she attempted to get a report is an email she sent to Dr Burk late on 21 May 2014 - two days before she was due to respond to GEO (which is considered further below).

[53] Ms Columbine was given an opportunity to provide the authority to GEO to contact Dr Burk. Her union provided a response in which it said that it did not consider she was under any legal obligation or compulsion to provide such an authority to GEO. In a further email sent to GEO by the CPSU it said that it was at Ms Columbine’s ‘discretion’ if she chose to give authority. 23

[54] The provision of the information formed part of Ms Columbine’s opportunity to respond to the reason for her dismissal. She gave no satisfactory explanation for not providing to GEO what it sought.

[55] I am therefore satisfied that Ms Columbine was given an opportunity to respond. At her discretion she chose not to provide all those things sought by GEO.

(d) support person

[56] It appears that no meetings were held between Ms Columbine and GEO. I find this surprising, given the seriousness of the matter. In any event it appears that Ms Columbine did have access to support through her union. The union corresponded on her behalf with GEO and GEO responded.

[57] I am satisfied she was not denied access to a support person.

(e) performance issues

[58] The dismissal did not relate to performance issues. This is therefore not a relevant consideration.

(f)( & (g) size of the employer’s enterprise

[59] Nothing was put to me that suggests there is any necessary consideration in relation to the size of the employer in determining this application.

(h) any other matters

[60] Following her dismissal GEO discovered an email sent by Ms Columbine to Mr Brendan Halliwell’s email (her partner, also an employee of GEO) which is an email from Ms Columbine to Dr Burk. Attached to the email is a draft of the report Ms Columbine suggests Dr Burk send to GEO. 24 The email was sent to Dr Burk sometime on 21 May 2014. Her covering note says:

[61] Dr Burk gives evidence that he thinks he remembers seeing the email and that the report he wrote probably did follow from the receipt of the letter. 25 He also gives evidence that it was ‘quite possible’ that he just used the words drafted by Ms Columbine without taking the time to make his own judgement of what was required.26 Given this concession it would appear that the report produced, which is nearly identical to Ms Columbines draft, was not a considered report of Dr Burk.

[62] Whilst there is nothing untoward in a patient requesting a report from her doctor (and Ms Columbine had been requested to get a report) there are two things about this request that are relevant. Firstly, Ms Columbine was aware on 15 May 2014 that she needed to get a report from Dr Burk yet she left it until two days before the report was due to ask Dr Burk to provide it. Second, she does not tell Dr Burk what it is GEO need to know. She tells him what report to write but not the context within which the report is sought. She does not give Dr Burk a copy of the letter she received from GEO or even a contact at GEO with whom he might speak to understand GEO’s requirements. It would not be unreasonable to conclude that Dr Burk, in sending the report in the form sought by Ms Columbine, was responding to the emotional plea of Ms Columbine (I might lose my job) rather than the needs of GEO as expressed in its letter to Ms Columbine.

[63] GEO did not take any action to have Ms Columbine referred for an independent medical assessment to determine her capacity to undertake the role of CO. It is not clear why they did not do so. It would have quickly cleared up a number of issues, given that it did not have an authority from Ms Columbine to contact Dr Burk. I do note however that GEO was not aware that Dr Burk may have been reluctant to engage with GEO. If Ms Columbine knew this she did not pass it on to GEO.

[64] Ms Columbine’s actions in writing the report she wanted Dr Burk to send to GEO indicates an intention by her not to engage with GEO in ensuring it had the best information available on which to make its assessment. Ms Columbine does not appear to have understood the importance of the duty of care GEO has to her and her co-workers with respect to their health and safety at work.

[65] Whilst GEO was not aware of the email at the time it decided to terminate Ms Columbine’s employment, it is conduct discovered after the dismissal that was not available to it at the time, it can legitimately be considered in deciding if the dismissal was harsh, unjust or unreasonable.

[66] Ms Columbine had, at the time of her dismissal, worked with GEO since mid-2007. She had a reasonable employment history. She received a written warning in late 2010 in relation to internet usage but there appear to have been no other issues with conduct or performance. Ms Columbine did receive a substantial overpayment in mid 2012. For some inexplicable reason it took until April 2013 for this to be resolved.

[67] Ms Columbine has not been employed since the time of her dismissal.

Conclusion as to harsh, unjust or unreasonable

[68] In Byrne v Australian Airlines Ltd  27 it was held that:

[69] In reaching my conclusion on this matter I have carefully considered the conduct of Ms Columbine and GEO.

[70] Ms Columbine does not appear to have appreciated the seriousness of the correspondence she received from GEO on 6 and 15 May 2014. This is not the fault of GEO the correspondence was clear. GEO was considering terminating her employment. It wanted information from her to assist it in making a proper decision. This information was required by 23 May 2014.

[71] Ms Columbine had an opportunity to secure her return to full time work as a CO yet chose not to meet the demands of GEO.

[72] Ms Columbine, while obtaining a medical certificate from her treating doctor on 19 May 2014, did not raise with him the report GEO also wanted from him, instead she sends an email on 21 May 2014 outlining what she thinks he should provide.

[73] Ms Columbine’s conduct in how she sought the report from Dr Burk strengthens the view that she did not seriously engage with GEO in resolving its concerns in respect to her health and safety on a return to work. Ms Columbine has contributed to the current situation by her own actions and lack of attention to what her employer required of her.

[74] There was no evidence to suggest that GEO had set out on a definite path to terminate Ms Columbine’s employment by its letter of 6 May 2014. GEO had a legitimate concern about her ability to return to her occupation and sought further information.

[75] Whilst I am of the opinion that GEO could have done more to determine Ms Columbine’s fitness for duty; an obligation rested with Ms Columbine to provide GEO with information it required to determine if she could undertake the inherent requirements of her position.

[76] So much of the resolution of this matter rested with Ms Columbine. The steps she could have taken to meet the reasonable requirements of GEO were not onerous yet she chose not to engage with her employer.

[77] When considering the conduct of both GEO and Ms Columbine there is no basis on which to conclude the termination of Ms Columbine’s employment was harsh, unjust or unreasonable. The decision was justifiable and reasonable given the limited engagement in providing information to GEO on which it could properly assess her fitness for work and hence her capacity to fulfil the inherent requirements of her position.

Conclusion

[78] I find that Ms Columbine was not unfairly dismissed.

[79] Her application is dismissed.


COMMISSIONER

Appearances:

R. Rendell of CPSU for the Applicant.

K. Brotherson of Hall & Wilcox for the Respondent.

Hearing details:

2014.

Morwell:

11 September.

 1   Exhibit GEO12, annexure D.

 2   Exhibit GEO13, annexure D.

 3   Exhibit GEO12, annexure F.

 4   Exhibit GEO13, annexure F.

 5   Exhibit CPSU2, attachment G.

 6   Exhibit GEO13, annexure F, paragraph 3.

 7   Exhibit GEO13, annexure F, paragraph 3.

 8   Exhibit GEO13, annexure F, paragraph 3.

 9   Exhibit GEO13, annexure F, paragraph 5.

10 Exhibit GEO13, annexure I.

11 Exhibit GEO13, annexure J; Exhibit CPSU2, attachment E.

12 Exhibit GEO12, annexure E.

 13   Exhibit GEO13, annexure D.

 14   Exhibit GEO13, annexure G.

15 Transcript PN758-60.

 16   Exhibit GEO13, annexure F.

 17   Transcript PN723.

 18   Exhibit GEO12, annexure F.

 19   Transcript PN465.

 20   Transcript PN475-7.

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

22 Occupational Health and Safety Act 2004 (Vic) ss21-23.

 23   Exhibit CPSU2, attachment F.

 24   Exhibit GEO13, annexure L.

 25   Transcript PN213.

 26   Transcript PN227.

 27   (1995) 185 CLR 410.

 28   Ibid; 465.

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