[2015] FWC 8432
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Emma Sidney
v
Employsure Pty Ltd
(U2015/6453)

COMMISSIONER BISSETT

MELBOURNE, 11 DECEMBER 2015

Application for relief from unfair dismissal.

[1] Ms Emma Sidney has made an application to the Commission seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). She was employed by Employsure Pty Ltd (Employsure). Her employment was terminated with effect from 24 June 2015.

[2] Ms Sidney commenced with Employsure in July 2012 in a full time capacity as a Business Development Manager (BDM). In this role Ms Sidney was expected to canvass new business which included driving to and visiting prospective clients with the aim of converting them into an ongoing client.

Background

[3] The factual circumstances surrounding Ms Sidney’s injury and return to work are not controversial (although there are some critical matters in relation to timing).

[4] In November 2014 Ms Sidney injured her back at work. She returned to work for a short period of time in mid-December but then was off work with the injury until March 2015 when she returned to work on a return to work (RTW) plan.

[5] On 5 January 2015 Ms Sidney’s doctor issued a certificate of capacity which indicated that she could drive no more than 10km from home, she should avoid sitting for more than 30 minutes at a time, she should take regular rest breaks and avoid excessive forward flexion. 1 The medical certificate indicated that the limited capacity would exist until 31 January 2015.

As part of her injury management Ms Sidney’s home office was assessed and modifications made to enable her to work safely.

[6] On 30 January 2015 Ms Sidney advised Mr Steven Hoyle, Head of Sales for Employsure that she had completed some work. He in turn advised her on 2 February that she was still on personal leave and that until the RTW plan was finalised she should not be undertaking any work. Ms Hoyle replied that she was recovering well and wanted a RTW plan finalised quickly. 2

[7] On 23 February 2015 a proposed RTW was provided to Ms Sidney. 3 It indicated a return to work of 3 days per week at 4 hours per day (the February RTW plan) commencing 16 February 2015. The February RTW plan does not appear to have been signed off by Ms Sidney or her doctor.

[8] In March 2015 a further RTW plan was presented. 4 This provided for Ms Sidney to work 8 hours per week for the first two weeks and then 12 hours per week (the March RTW plan). This was to commence 30 March 2015.

[9] On or about 1 April 2015 Ms Sidney returned to work on the March RTW plan. On 6 May 2015 she was given adjusted Key Performance Indicators (KPIs) for her role. On 15 May 2015 Ms Sidney wrote to Ms Ciara Burke, the Business Development Coordinator for Employsure about access to the data base and, in particular, ‘warm’ leads (which I understand to be leads for new business generated through direct contact to Employsure by the potential client).

[10] On 3 June 2015 a meeting was held by phone between Ms Sidney and Mr Hoyle and Mr Michael Morris, the Talent Manager (an alternative title for HR manager) of Employsure. Ms Sidney gave evidence that she could not recall if her KPIs were mentioned or her medical capacity was discussed. Mr Hoyle says that at this time Ms Sidney was on RTW plan with pro-rata targets. He says that in May she missed the targets set. He says the purpose of the meeting was to talk to Ms Sidney about her on-going capacity to fulfil the role. He says that in this meeting he did discuss with her the issues she had raised with Ms Burke about access to warn leads.

[11] On Monday 22 June 2015 Mr Morris sent an email to Ms Sidney in which he said:

[12] The meeting on 24 June 2015 was attended by Ms Sidney, Mr Morris and Ms Testa who took notes of the meeting. 6 The notes of the meeting taken by Ms Testa indicate that there was general discussion around Ms Sidney’s history with the company, her injury and WorkCover claim and challenges she may have faced in returning to work from the injury.

[13] During the meeting Ms Sidney indicated that her physiotherapist had indicated that her rehabilitation should take no longer than a further 12 weeks. However he had indicated that to reduce the likelihood of the injury recurring three things needed to be addressed, these were excessive travelling, long periods of sitting and excessive stress. Ms Sidney indicated that if accommodations were made around these matters she could return on a staggered basis up to full time within 12 weeks.

[14] Towards the end of the meeting Ms Sidney asked what the purpose of the meeting was to which Mr Morris said it was to ‘[determine] her capability to do the role long term’. 7

[15] That evening Ms Sidney received a letter from Mr Morris 8 by email. That letter:

[16] The letter went on:

[17] Ms Sidney subsequently made this application.

Was Sidney unfairly dismissed?

[18] I am satisfied that Ms Sidney is protected from unfair dismissal. Her dismissal was not due to redundancy and Employsure is not a small business.

[19] In determining if Ms Sidney was unfairly dismissed it is necessary to consider if her dismissal was harsh, unjust or unreasonable. In making this assessment it is necessary to consider the criteria in s.387 of the Act.

Section 387(a) – a valid reason

[20] Ms Sidney was dismissed because of her capacity to fulfil the inherent requirements of her position.

[21] Mr Morris reached the conclusion that Ms Sidney could not meet the inherent requirements of her position after he had spoken to Ms Sidney’s physiotherapist and following the meeting he had with Ms Sidney on 24 June 2015. Mr Morris’ evidence is that he did attempt to speak to Ms Sidney’s doctor but was referred by her doctor to her physiotherapist. 9

[22] Mr Morris agreed that he received no written report from Ms Sidney’s GP or her physiotherapist (beyond certificates of capacity from the GP) as to Ms Sidney’s capacity to perform the inherent requirements of her position. Under cross examination Mr Morris was asked:

[23] In speaking to her physiotherapist Mr Morris agreed that the physiotherapist was not the treating medical practitioner who signed off on Ms Sidney’s certificates of capacity – that this was undertaken by her GP. Mr Morris did not provide the notes he says he took of his conversation with the physiotherapist.

[24] Mr Morris says that Ms Sidney confirmed, in the meeting on 24 June 2015, what the physiotherapist had told him. He says this is documented in the notes of that meeting. 11

In making the decision to dismiss Ms Sidney, Mr Morris said:

[25] Ms Sidney’s evidence is that the advice from her physiotherapist was that she should be fit to return to full time work (she was working part time on her return to work plan) on a graduated basis within 12 weeks. It does not appear to be contentious that her physiotherapist also suggested some ongoing changes at work were required in order to maintain her on-going capacity – these were not driving for long periods, rest breaks from sitting and a reduction in stress.

[26] For a reason to be valid it must be ‘sound, defensible and well-founded.’ 13

[27] In this case Ms Sidney was dismissed because she could not perform the inherent requirements of her position. The reason she could not do so related to an injury she had sustained to her back.

[28] Ms Sidney eventually returned to work on a graduated RTW plan in about early April. There were unexplained delays in finalising and signing off on a RTW plan in February and March. I also note that Mr Hoyle instructed Ms Sidney not to return until such a plan was completed. These delays may well have had an impact on the time by which Ms Sidney may have been back at work on a full time basis.

[29] Mr Morris is the Talent Manager. He made an assessment of Ms Sidney’s capacity on the basis of her certificates of capacity, a discussion with her physiotherapist and undefined information sources. His evidence is that he is not a medical practitioner. 14

[30] Whilst capacity to fulfil the inherent requirements of a position may provide a valid reason for the dismissal of an employee but I am not convinced, in this case that the reason is sound, defensible or well founded.

[31] Ms Sidney was dismissed because of a medical incapacity. Mr Morris – who is not a trained medical profession – made a decision about her injury, prognosis and capacity to do her work without any formal medical assessment being made of Ms Sidney by an appropriately qualified medical practitioner. His judgement is not sound or defensible. The limited medical information he did have – her certificates of capacity and one discussion with the physiotherapist – is not the basis on which a well-founded judgement can be made. Neither is a reference to vague ‘information sources.’

[32] Had Ms Sidney’s physiotherapist been aware that the conversation he was having with Mr Morris would form the basis of a decision to dismiss Ms Sidney he may well have provided a more considered or circumspect response. On the evidence of Mr Morris the physiotherapist was not asked to provide an assessment of Ms Sidney’s capacity to fulfil the inherent requirements of the position.

[33] It may well be that Ms Sidney’s ability to return to her role as a BDM on a full time basis was limited because of the demands of the position but there was very little ground on which Mr Morris could make that assessment with any confidence. There is certainly no substantiated medical or other evidence before the Commission that would enable such an assessment to be made.

[34] For these reasons I find that there was no valid reason for the dismissal of Ms Sidney.

Section 387(b) – whether the person was notified of the reason

[35] Mr Morris evidence is that he had the meeting with Ms Sidney on 24 June 2015 and that later that day made the decision to terminate her employment and then sent her the termination letter. He says that he did not consult anyone between the meeting and the decision to terminate her employment. 15

[36] Mr Morris agreed in cross examination that he at no stage advised Ms Sidney that he was considering termination of her employment. He said, in evidence,that he ‘was coming to have a conversation with Emma to determine her capacity to do the role of the BDM.’ 16

[37] The possibility that Ms Sidney’s employment could be terminated arising from the meeting on 25 June 2015 was obliquely referred to at best when Ms Sidney asked, towards the end of the meeting, what the purpose of the meeting was and Mr Morris replied that it was to determine ‘her capability to do the role long term.’ 17 (There is no dispute that this part of the conversation is properly recorded in the notes.) At no stage did Mr Morris say to Ms Sidney that the purpose of the meeting was to consider her on-going employment and that termination of her employment was a possible outcome of the meeting.

[38] Further, Ms Sidney was not advised, when invited to the meeting of 25 June 2013 that the purpose of the meeting was to consider her on-going employment with Employsure. 18 In her evidence Ms Sidney said she thought the invitation might be for the ‘first of several meetings to actually where there might have been a letter actually disciplining me or suggesting that there might be a possibility of termination’19

[39] Mr Hoyle, in his evidence said he understood that ‘Michael Morris sent through a letter of invitation where he highlighted the discussion of medical capacity, along with highlighting a potential dismissal within there, I believe.’ 20 The evidence shows that Mr Hoyle was clearly incorrect in his belief.

[40] I am not satisfied that Ms Sidney was notified of the reason for her dismissal. Despite Employsure’s submissions to the contrary an employee has a right to clarity as to the purpose of the meeting where termination of employment is a possible outcome. Ms Sidney had been on a return to work plan for some time. A reference to a discussion of her ‘capacity to do the role, the current accommodations that Employsure has made as well as some of the actions that you raised’ 21 is not advice of the reason for her dismissal prior to the decision being taken.

Section 387(c) whether the person was given an opportunity to respond

[41] Again, there is no evidence that Ms Sidney was given any opportunity to respond to the reason for her dismissal before the decision was made to terminate her dismissal.

[42] Mr Morris agreed in evidence that he did not explicitly tell Ms Sidney that a decision may be taken to dismiss her arising from the meeting on 25 June 2015 and that he, following the meeting, was going to consider if that was an outcome. Whilst he apparently did say he was going to contact Ms Sydney following the meeting on ‘how we move forward’ there was no indication that this may involve dismissal.

[43] Had Ms Sidney known that her employment might be terminated because of her incapacity to perform the inherent requirements of her job because of her medical limitations she may well have sought more detailed medical information for the employer or engaged in some discussion with the employer on alternate roles within the organisation while she recovered from her injury or provided some other basis on which she believed she could and should be retained in employment.

[44] Because she was not aware that she was to be dismissed Ms Sidney was denied this opportunity.

[45] Employsure submitted that there was:

[46] This submission supports my finding. The discussion was about her capacity to do the role – not about her on-going employment with Employsure. The distinction might be nuanced but it is important.

[47] It is common courtesy to advise a person of the reasons for a meeting. In this case the reason for the meeting was to consider Ms Sidney’s on-going employment with Employsure but this was never put to her. I am astounded that an employer would not display such courtesy to one of its employees and be honest about the potential consequences of the meeting.

[48] The failure to provide such advice meant that Ms Sidney did not have a reasonable opportunity to respond.

Section 387(d) unreasonable refusal to allow a support person be present to assist in discussion about dismissal

[49] At one level, as there was no discussion about dismissal, Employsure did not unreasonably refuse a support person for Ms Sidney to assist in such discussion.

[50] Ms Sidney agrees that she did not ask for a support person because she ‘didn’t actually think I would need one because I didn’t know the nature of the meeting at the time.’ 23

[51] Given the failure to properly advise Ms Sidney of the purpose of the meeting it was not possible for her, had she wished, to have a support person present if she so chose to did so. By not advising Ms Sidney of the purpose of the meeting, even during the meeting itself I am satisfied that Employsure did unreasonably refuse Ms Sidney a support person.

Section 387(e) warned about unsatisfactory performance

[52] There were some discussions between Ms Sidney and Mr Hoyle and Mr Morris about Ms Sidney’s achievement of KPIs set for her although this is not given as the reason for her dismissal.

[53] Mr Hoyle’s evidence is that he had a meeting with Ms Sidney by phone on 3 June 2015. At that meeting some concerns she had raised about her access to leads etc (detailed in an email to Ms Ciara Burke in May 2015) were discussed along with her performance against her (adjusted) KPIs. He says, further, that her medical capacity was also discussed at that meeting. He says, particularly, that ‘it was also discussed about we would be assessing…her ongoing medical capacity in relation to her role as a BDM.’ 24

[54] The submissions of Employsure would suggest that Ms Sidney’s employment was not terminated because of performance although it says that in determining her capacity to fulfil the inherent requirements of the position one of the things it did consider was her capacity to achieve the targets required of her.

[55] Even if performance was a reason for dismissal there is no doubt that Ms Sidney was not warned of unsatisfactory performance prior to dismissal.

Section 387(f) the impact of the size of the employer’s enterprise on the procedures effecting dismissal and section 387(g) the impact of the absence of HR expertise on the procedures effecting dismissal

[56] Employsure is a large business with 240 employees. It has access to human resource expertise and legal resources.

[57] I note that Employsure markets itself as a ‘workplace relations specialist’. It provides advice to employers in relation to employment matters including termination of employment matters. Employsure has access to human resource and legal experts. The types of errors in process and decision making identified in this case should not be expected, particularly when it is the human resource (or Talent) area of the business (as opposed to perhaps not quite as knowledgeable line management) effecting the dismissal.

[58] It is reasonable to have expected better from Employsure.

Section 387(h) any other matter

[59] There are no other matters.

Conclusion

[60] For all of these reason I find that Ms Sidney’s dismissal was harsh, unjust or unreasonable. I therefore find that she was unfairly dismissed.

Remedy

[61] Ms Sidney indicated to the Commission that she was not seeking reinstatement. I am satisfied, on that basis, that reinstatement would be inappropriate.

[62] During the hearing of the application it became evident that the parties were not ready to address the Commission on compensation. I therefore indicated during proceedings that, should I find Ms Sidney had been unfairly dismissed I would issue direction for the filing of submissions and evidence as to compensation.

[63] Directions for the filing of submissions will be issued in the near future.

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

COMMISSIONER

Appearances:

E Sidney the applicant.

E Fry, M Morris and S Hoyle from the respondent.

Hearing details:

2015.

Melbourne:

November 19.

 1   Exhibit A5.

 2   Exhibit A6.

 3   Exhibit A11.

 4   Exhibit A12.

 5   Exhibit R5.

 6   Exhibit R1 (and exhibit A3.4).

 7   Exhibit R1, last page.

 8   Exhibit A3.3

 9   Transcript PN876.

 10   Transcript PN892.

 11   Exhibit R1

 12   Transcript PN999.

 13   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 14   Transcript PN892.

 15   Transcript PN912-3.

 16   Transcript 789.

 17   Exhibit R1, page 4.

 18   Exhibit R5.

 19   Transcript PN287.

 20   Transcript PN611.

 21   Exhibit R3 (and exhibit A3.6).

 22   Transcript PN1201.

 23   Transcript PN240.

 24   Transcript PN368.

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