Fair Work Act 2009
s.604 - Appeal of decisions

Appeal against decision [[2014] FWC 3188] of Deputy President Gostencnik at Canberra on 22 May 2014 in matter number U2013/14236 – extension of time declined – permission to appeal refused as grounds would not succeed if time was extended – the appeal dismissed – not persuaded decision of Deputy President Gostencnik reflects error of law or of fact – permission to appeal is not warranted in the public interest – would refuse permission to appeal and dismiss appeal if lodged in time.

[1] On 4 October 2013, Ms L Burns (the Appellant) lodged an unfair dismissal remedy application under s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by Sacred Heart Mission Inc (the Respondent). The application was determined by Deputy President Gostencnik in a decision of 22 May 2014, 1 in which he found that the dismissal of the Appellant was not harsh, unjust nor unreasonable and dismissed her application.

[2] On 4 July 2014, the Appellant lodged an appeal against Deputy President Gostencnik’s decision under s.604 of the Act.

[3] The appeal was lodged 43 days after the publication of Deputy President Gostencnik’s decision, 22 days beyond the period prescribed in Rule 56(2)(a) of the Fair Work Commission Rules 2013 (the Rules). Accordingly, it is necessary to determine whether an extension of time for the lodging of the appeal should be granted under Rule 56(2)(c), having regard to:

● whether there was a satisfactory reason for the delay;
● the length of the delay;
● the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and
● any prejudice to the Respondent if time were extended. 2

[4] The grounds of appeal were limited. As a result, we indicated that we would hear all submissions – going to both an extension of time and the substantive appeal – together at the commencement of the appeal hearing.

[5] The relevant principles in regard to an appeal from an unfair dismissal decision are set out in the recent decision by the Full Bench of the Fair Work Commission in Technical and Further Education Commission T/A TAFE NSW v Pykett:

“[4] An appeal under s 604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. There is no right to appeal, rather an appeal may only be made with the permission of the Commission.

[5] The decision subject to appeal was made under Part 3.2 – Unfair Dismissal – of the FW Act. Section 400 (1) provides that permission to appeal must not be granted from a decision made under that part unless the Commission considers that it is in the public interest to do so. Further, in such matters appeals on a question of fact may only be made on the ground that the decision involved a ‘significant error of fact’ (s 400(2)). In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as ‘a stringent one’. The Commission must not grant permission to appeal unless it considers that it is ‘in the public interest to do so’.

[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

‘. . . the public interest might be attracted where a matter raises issue[s] of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.’”  3 [citations removed]

The Decision of Deputy President Gostencnik

[6] In his decision, Deputy President Gostencnik carefully assessed and made findings in relation to evidence in respect of the circumstances leading to the termination of the Appellant’s employment. 4

[7] The appeal grounds do not challenge the findings of facts of Deputy President Gostencnik. As a result, the background to the termination can be very briefly recounted for the purposes of this decision.

[8] The Appellant was employed as an After Hours Support Worker, in a crisis accommodation and case management service of the Respondent.

[9] The Respondent’s management became concerned about the health and well-being of the Appellant and for the Respondent’s clients as a result of statements made by the Appellant about the continuing impact of a traumatic client event in 2010 and its observations of her emotional state during a supervision meeting on 20 May 2013. The Respondent proposed a change of the Appellant’s shift and a meeting to discuss that possibility, which did not proceed because the Appellant subsequently requested that any proposed changes in her position be communicated in writing.

[10] On 2 July 2013, the Respondent sent a letter to the Appellant, suspending her on full pay because of its concern for the health and well-being of the Appellant and for its clients, advising of a meeting on 4 July 2013 to facilitate discussion. At that meeting, the Appellant was directed 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, on 6 August 2013, although the real concern that the Respondent had was that there may be a risk to the health and well-being of the Appellant and to the clients, rather than a concern about the Appellant’s physical or mental capacity to perform the role. The true nature of the concern was subsequently communicated clearly to the Appellant. The direction to attend the 6 August 2013 appointment was confirmed in writing.

[11] Prior to that meeting solicitors for the Appellant served on the Respondent an application pursuant to s.372 of the Act in relation to the suspension pending the medical examination. Her union also made representations on her behalf. On 5 August 2013, the Appellant’s solicitors wrote to the Respondent requesting that it withdraw its direction and attached a medical certificate dated 2 August 2013 certifying that the Appellant was fit for full-time work. The Respondent replied stating that the medical certificate by a general practitioner was not sufficient to satisfy it that the Appellant could safely undertake her duties and reiterated the direction to attend the medical assessment on 6 August 2013. The Appellant did not attend the scheduled medical assessment and did not provide any explanation for her failure to do so.

[12] On 13 August 2013, the Appellant was directed to attend a meeting with the Respondent on 20 August 2013. The Appellant did not attend the meeting as directed nor did she provide any explanation for her failure to do so. As a consequence of the Appellant’s failure to attend the meeting as directed and her earlier failure to attend the medical assessment, the Respondent issued to the Appellant a “first and final warning” in writing by letter dated 21 August 2013. The letter also advised the Appellant 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 2013, directing her to attend a meeting on 26 August 2013. The Appellant did not attend the 26 August 2013 meeting and provided no explanation of her failure to do so to the Respondent.

[13] On 3 September 2013, the Respondent wrote to the Appellant about her failure to attend the meetings that had been scheduled for 20 and 26 August 2013 despite being directed to do so. The letter noted that the Respondent regarded the Appellant’s failure to attend the meetings and failure to provide any satisfactory explanation as serious misconduct. The Appellant was directed to attend a meeting 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, advising that if the Appellant failed to attend the 9 September 2013 meeting without reasonable excuse or if she failed to show good cause why her employment should not be terminated, that the employment would be terminated on the ground of serious misconduct. The Appellant 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.

[14] On 12 August 2013, solicitors for the Appellant wrote to the Respondent attaching a further medical certificate dated 8 August 2013 in which the doctor certified that the Appellant had no psychological or physical illness that made it unsafe for her to work. The Respondent replied on 19 August 2013, stating that the medical certificate did not provide an appropriate assessment, that an independent assessment by the occupational physician was required and in light of the failure of the Appellant to attend the scheduled appointment on 6 August 2013, a further appointment had been scheduled on 24 September 2013. On 20 August 2013 the Respondent sent a written direction to the Appellant, instructing her to attend that further medical assessment, cautioning that failure to attend may result in disciplinary action.

[15] By letter dated 11 September 2013, the Respondent terminated the Appellant’s employment on the basis that the Appellant had engaged in serious misconduct by failing to attend the medical assessment scheduled for 6 August 2013 without reasonable explanation, by failing to comply with its written directions to attend a meeting with it on 20 August 2013 and 26 August 2013 and show cause in failing to attend the meeting on 9 September 2013.

[16] Having regard to the evidence and his findings on the evidence, Deputy President Gostencnik found:

● The directions of the Respondent to the Appellant to attend the medical examination with the occupational physician and to attend the various meetings were lawful 5 and reasonable.6

The Respondent had a valid reason for the Appellant’s dismissal which related to her conduct. 7

The Appellant was notified of the reason for the dismissal before dismissal took place. 8

The Respondent provided the Appellant with an opportunity to respond to the reasons for termination and did so before the Respondent made a decision to dismiss the Appellant. 9

Throughout the whole process, the Respondent had made clear to the Appellant that she could bring a support person with her to each of the meetings that the Respondent had arranged and allowed her to do so in those meetings which the Appellant chose to attend. 10

[17] Findings were also made by Deputy President Gostencnik in relation to ss.387(e)–(h) of the Act.

[18] After taking into account each of the matters within s.387 of the Act, Deputy President Gostencnik found that the dismissal of the Appellant was not harsh, unjust nor unreasonable.

The Appeal Grounds and our decision in relation to them

[19] In her notice of appeal, the Appellant identified four alleged errors of facts in the decision of Deputy President Gostencnik. Two of them, concerning the location of the occupational physician’s practice and the operation of the dispute procedure in an “2006–2008 Award”, were not elaborated upon in the written or oral submissions of the Appellant and, as they are recorded in the Notice of Appeal, do not identify any error in the decision. The remaining grounds, concerned Equal Opportunity, Occupational Health and Safety and Accident Compensation legislation were addressed in the written and oral submissions of the Appellant and are considered below.

[20] The Appellant’s written and oral submission raised the following appeal grounds:

1. In his decision Deputy President Gostencnik did not acknowledge that on 4 July 2013, the Appellant presented the Respondent with a medical certificate which stated she was “fit for duties” and this was not accepted by the Respondent.

[21] There is evidence that on 4 July 2013 the Appellant did provide a medical certificate dated 2 July 2013 to the Respondent declaring that she was “physically and mentally well”. 11 It did not cause the Respondent to reconsider its decision to refer the Appellant to the occupational physician to address the concerns of the Respondent arising from the supervisory meeting.12

[22] Deputy President Gostencnik did not specifically record the provision of the 2 July 2013 medical certificate to the Respondent on 4 July 2013 in his decision. It was the matter of some discussion in the hearing and admitted as an Exhibit. 13 We doubt that Deputy President Gostencnik did not have regard to the 2 July 2013 medical certificate. Even if Deputy President Gostencnik had no regard to the 2 July 2013 medical certificate, it would not have materially affected the Deputy President’s decision. The 2 July 2013 medical certificate was of the same nature and effect as the two later certificates provided on behalf of the Appellant; the 2 and 12 August 2013 medical certificates, which were considered in the decision.14 Each medical certificate was provided by a general practitioner certifying that the Appellant was “physically and mentally well”, “fit for full-time work” or the Appellant had “no psychological or physical illness that make it unsafe for her to work”.

[23] Having considered case law in relation to the lawfulness and reasonableness of directions by an employer to attend a medical examination, 15 Deputy President Gostencnik considered the circumstances of the case before him, which included the medical certificates provided by the Appellant to the Respondent. He found that the Respondent’s concern was not one of the capacity of general fitness of the Appellant to undertake her duties but one of “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”,16 with the Respondent “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” .17

[24] That conclusion was available to Deputy President Gostencnik notwithstanding the medical certificates of 2 July 2013 and 2 and 12 August 2013 provided by the Appellant to the Respondent. The failure to refer to the 2 July 2013 certificate in his decision does not affect the conclusion and does not establish error on the part of Deputy President Gostencnik.

2. There was no lawful reason for the Respondent to require the Appellant to undertake an independent medical examination by the occupational physician because she was not incapacitated.

[25] Deputy President Gostencnik found that the decision of the Respondent to direct the Appellant to undertake the medical examination was lawful and reasonable in the circumstances of the matter, including its concerns for the Appellant’s “welfare, her ability to respond effectively in a crisis and the potential impact of any further trauma in the workplace” on the Appellant’s “mental health and on the safety of clients”, 18 in meeting its obligation under occupational health and safety legislation to provide the Appellant with a “working environment that is without risk to health or safety, or at least one in which that risk is minimised”.19 Such an obligation is a continuing one. That finding was available to the Deputy President on the evidence before him and discloses no error on his part.

3. Deputy President Gostencnik erred in not finding that “health” is a protected attribute and the health of the Appellant should have been “off the table and was not allowed to be discussed”.

[26] This appeal ground rests on the proposition that provisions of the Fair Work Act 2009 (Cth), the Accident Compensation Act 1985 (Vic), the Disability Discrimination Act 1992 (Cth), the Equal Opportunity Act 2010 (Vic) and/or the Occupational Health and Safety Act 2004 (Vic) prevent an employer discussing an employee’s health or directing an employee to undertake a medical examination. The Appellant was not able to direct us to any provision of the various Acts which supports the proposition that “health” is a protected attribute and was not allowed to be discussed. She pointed only to s.21 of the Occupational Health and Safety Act 2004 (Vic) which includes no such provisions. We are not aware of a provision within those Acts which would prevent a reasonable and lawful direction to an employee where an employer has concerns about the health and safety of an employee in performing their duties in the workplace. Section 21 of the Occupational Health and Safety Act 2004 (Vic) places an obligation on an employer to “provide and maintain for employees of the employer a working environment that is safe and without risks to health”. That obligation would support an employer making a direction to an employee to undertake an independent medical examination where reasonably based concerns about the impact of the working environment on an employee’s health exist.

[27] The Appellant’s contentions based on the legislation relied upon are unsubstantiated and disclose no error on the part of Deputy President Gostencnik. The Appellant’s submissions provide no basis for doubting the Deputy President’s analysis of the case law in relation to the lawfulness and reasonableness of directions by an employer to attend a medical examination, 20 nor his conclusions upon applying the case law to the circumstances disclosed by the evidence in the matter before him.

[28] The Appellant contended that it was in the public interest to grant permission to appeal because the decision of Deputy President Gostencnik was based on and endorsed the proposition that an employer could direct an employee to attend an independent medical examination in any circumstances. This contention is without basis: the decision of Deputy President Gostencnik does not reflect such a proposition. Rather, it advances the proposition that an employer could direct an employee to attend an independent medical examination where such a direction is lawful and reasonable and whether it is “reasonable for an employer to request an employee to attend a medical examination will always be a question of fact” 21 in the particular circumstances of a matter.

[29] We are not persuaded that there is any public interest basis for granting permission to appeal.

Conclusion

[30] The appeal was lodged beyond the period prescribed in Rule 56(2)(a) of the Rules. In light of our assessment of the appeal grounds brought, we decline to extend the time for the lodgement of the appeal on the basis that the nature of the grounds of appeal and our conclusion that permission to appeal should be refused and that none of the grounds would succeed if time was extended. The appeal is dismissed on that basis.

[31] In any case, we are not persuaded that the decision of Deputy President Gostencnik reflects any error of law or of fact. Permission to appeal is not warranted in the public interest. In those circumstances, we would refuse to grant permission to appeal and dismiss the appeal if it were lodged in time.

SENIOR DEPUTY PRESIDENT

Appearances:

L Burns on her own behalf (via telephone).

A Roy on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

September 17.

 1   [2014] FWC 3188.

 2   See for example: Stevenson-Helmer v Epworth Hospital, Print T2277, 19 October 2000; SPC Ardmona Operations Ltd v Esam and Organ (2005) 141 IR 338.

 3   [2014] FWCFB 714.

 4   [2014] FWC 3188, at paras 5–55.

 5   [2014] FWC 3188, at para 74.

 6   [2014] FWC 3188, at paras 75–76.

 7   [2014] FWC 3188, at para 79.

 8   [2014] FWC 3188, at para 84.

 9   [2014] FWC 3188, at para 86.

 10   [2014] FWC 3188, at para 89.

 11   Transcript at paras 2436–2439 and Exhibit A3, Statutory Declarations of 11 November 2013 before Deputy President Gostencnik.

 12   Transcript at paras 2443–2444 before Deputy President Gostencnik.

 13   Transcript at paras 2457–2491 and Exhibit A5 before Deputy President Gostencnik.

 14   [2014] FWC 3188, at paras 40 and 52.

 15   [2014] FWC 3188, at paras 69–71.

 16   [2014] FWC 3188, at para 72.

 17   [2014] FWC 3188, at para 74.

 18   [2014] FWC 3188, at para 72.

 19   [2014] FWC 3188, at para 73.

 20   [2014] FWC 3188, at paras 69–71.

 21   [2014] FWC 3188, at para 70.

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