| [2017] FWC 3669 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Veronica Bennett
v
Colin Joss & Co Pty Limited T/A Joss Facility Management
(U2017/1880)
COMMISSIONER CAMBRIDGE |
SYDNEY, 14 JULY 2017 |
Unfair dismissal - dismissal based upon alleged inability of employee to undertake the inherent requirements of position - manifestly erroneous factual basis for dismissal - no valid reason for dismissal - significant procedural deficiencies - harsh, unjust and unreasonable dismissal - reinstatement Ordered.
[1] This Decision involves an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made by Veronica Bennett (the applicant). The respondent employer is Colin Joss & Co Pty Limited T/A Joss Facility Management (ABN 73 003 538 583) (the employer or Joss).
[2] The application was filed on 21 February 2017, and the applicant has been represented by United Voice (the Union).
[3] The application indicated that the date the applicant’s dismissal took effect was 6 February 2017. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
[4] The matter was not resolved at conciliation and it has proceeded to arbitration before the Commission in a Hearing conducted at Sydney on 16 June 2017.
[5] At the Hearing, Mr H Pararajasingham and Ms N D’Souza from the Union appeared for the applicant. The applicant was the only witness called to provide evidence in support of the claim.
[6] The employer was represented by Ms F Thompson, the employer’s Internal Legal Counsel, and Ms Thompson was assisted by the employer’s HR Manager, Ms D Martin. Ms Thompson introduced evidence from one witness, Mr G Cusack. Ms Martin then called Ms Thompson as a witness, and she provided further evidence on behalf of the employer.
[7] The applicant is a woman of some 56 years of age and she had worked for the employer for about 5 ½ years. The applicant worked as a cleaner engaged on a permanent part-time basis. The applicant performed cleaning work at three sites which were all located in the New South Wales regional town of Blayney.
[8] The employer conducts a commercial contract cleaning and maintenance business which includes services provided to the New South Wales government under contract, as well as private, commercial cleaning and maintenance operations. Relevantly, the employer was contractually engaged to undertake cleaning work at, inter alia, the Blayney Public School, the Blayney Courthouse and the Blayney Country Energy premises. The applicant performed cleaning work at these three sites in Blayney.
[9] Although the applicant worked at three different sites in Blayney, the substantial amount of her work time was devoted to cleaning at the Public School. Prior to the employer obtaining the contract for cleaning of the Public School, the applicant had been engaged by predecessor contract cleaning companies such that she had provided cleaning services at the Public School for over 23 years.
[10] In 2014, the applicant was absent from work on unpaid sick leave for a period of about 2 ½ months. This sick leave absence arose from surgery and the associated recovery from an operation to remove spurs from her right ankle.
[11] In August 2016, the applicant commenced another period of unpaid sick leave when she had a further medical procedure to remove spurs from her left foot and ankle. This operation was more complex than the one that had been performed on the applicant’s right ankle in 2014, and a longer recovery period followed the surgery. During the period of the applicant’s recovery she provided on-going medical certificates from her treating Doctor which advised that the applicant was unfit for work for various fixed periods of time.
[12] During what became an extended period of absence, the employer’s return to work coordinator, Mr Cusack, had various telephone conversations with the applicant in relation to her anticipated return to work. In December 2016, Mr Cusack telephoned the applicant and enquired as to her medical condition, and her prospect for return to work. Mr Cusack sent the applicant documentation including a Functional Job Description which he requested that the applicant have her treating Doctor complete and forward to the employer. The applicant agreed to the request made by Mr Cusack, and she made an appointment with her Doctor in order to have the employer’s documentation completed by her treating Doctor.
[13] On 3 January 2017, the applicant attended the appointment with her Doctor, and the Doctor completed a Certification of Capacity form which was included in the Functional Job Description documentation. The Certification of Capacity form confirmed that the applicant was not fit to return to her pre-injury duties, and the Doctor provided a further medical certificate which stated that the applicant would be unfit for her normal work from Wednesday, 18 January 2017, to Monday, 13 February 2017 inclusive.
[14] On 16 January 2017, Mr Cusack telephoned the applicant and he had a further discussion with her about her state of health and the potential for her to return to work. The applicant told Mr Cusack that she had a further appointment with her Doctor scheduled for 10 February 2017, at which time the applicant anticipated that some clarity about the potential for her return to work may materialise. Mr Cusack was content with this arrangement and asked the applicant to “keep me updated.”
[15] On 6 February 2017, the applicant received a telephone call from Ms Fleur Thompson, the employer’s Injury Department Manager and Internal Legal Counsel. Ms Thompson identified herself and introduced herself to the applicant and enquired about her medical condition, and her extended absence from work. Although there was significant factual contest about the details of the telephone conversation between Ms Thompson and the applicant, there was discussion about the applicant’s scheduled Doctor’s appointment for later that week, (10 February).
[16] During the course of the telephone conversation, Ms Thompson formed the view that the applicant could no longer perform the inherent requirements of her position, and she further advised the applicant that her employment was terminated accordingly. The applicant was surprised that her employment had been terminated, and she handed the telephone to her husband who engaged Ms Thompson in what in any estimation was a disagreeable discourse.
[17] On the following day, 7 February 2017, the employer sent the applicant a written letter which confirmed her dismissal as had been advised during the telephone conversation with Ms Thompson. Relevantly, the letter of dismissal confirmed that the applicant’s employment “…had been terminated effective immediately due to you being unable to undertake the inherent requirements of your position of a Cleaner…”
[18] The applicant attended her scheduled Doctor’s appointment three days later on 10 February 2017, and her Doctor provided her with a certificate of fitness to resume her normal duties from the following Tuesday, 14 February 2017.
[19] Following the dismissal the applicant made attempts to find alternative employment. In early April 2017, the applicant obtained further part-time work as a cleaner.
[20] Mr Pararajasingham from the Union appeared for the applicant and he made verbal submissions in addition to documentary material that had been filed. Mr Pararajasingham submitted that the applicant’s unfair dismissal application was advanced upon three grounds; firstly, that there was no valid reason for the applicant’s dismissal; secondly, the applicant was not properly notified of the purported reason for dismissal or given an opportunity to respond to the purported reason for dismissal; and, thirdly, the decision to dismiss the applicant was particularly harsh.
[21] Mr Pararajasingham submitted that the applicant was dismissed on the basis that the employer formed the view that she was unable to undertake the inherent requirements of her position as a cleaner. According to the submissions made by Mr Pararajasingham, the reason for the applicant’s dismissal could not be valid because the employer was always aware of the applicant’s intention to obtain a further medical certificate on 10 February 2017, and this confirmed that the applicant was fit to return to her work as a cleaner from 14 February.
[22] Mr Pararajasingham acknowledged that there was significant conflict in the evidence about the detail of the telephone conversation between the applicant and Ms Thompson on 6 February. However, according to the submissions made by Mr Pararajasingham, the applicant’s recollection of the conversation should generally be preferred over the evidence provided by Ms Thompson. Mr Pararajasingham submitted that Ms Thompson was aware that the applicant had a further Doctor’s appointment scheduled for 10 February, and rather than await the outcome of that medical review, Ms Thompson decided to make her own medical determination when she could have, and should have, based any determination upon proper medical opinion. Mr Pararajasingham submitted that Ms Thompson was acting in a hasty manner consistent with the applicant’s recollection of the telephone conversation of 6 February.
[23] Consequently, Mr Pararajasingham submitted that the employer’s factual finding as to the applicant’s future capacity for work was premature and ultimately proven to be incorrect. Therefore, Mr Pararajasingham said that there was no valid reason for the applicant’s termination.
[24] Mr Pararajasingham made further submissions which addressed the alleged absence of proper notification for the reason for dismissal. Mr Pararajasingham said that in this case the circumstances were exceptional as the employer had absolutely no regard for relevant procedural requirements. Mr Pararajasingham submitted that the very first time that the prospect for termination of the applicant’s employment was raised was during the telephone call of 6 February 2017, and that prior to that time, the applicant was understandably of the impression that her employment was on-going. In these circumstances, according to the submissions of Mr Pararajasingham, the applicant was provided with absolutely no opportunity to respond to the reason for dismissal.
[25] The submissions made by Mr Pararajasingham included stringent criticism of the notification of dismissal being conveyed during a telephone conversation, and without any opportunity for face-to-face conversation between the employer and the applicant. Mr Pararajasingham noted that the applicant had never previously had any communication with Ms Thompson, and he rejected the proposition that the applicant had consented to discussions regarding her on-going employment being conducted during the telephone conversation.
[26] In further submissions, Mr Pararajasingham addressed the various factors mentioned in s. 387 of the Act, and he noted that the employer was a large enterprise with approximately 800 full-time employees, and it had dedicated and experienced HR staff including Ms Thompson who asserted that she had over 20 years of experience in the “HR game”. Mr Pararajasingham said that the employer’s representative should be expected to properly comply with the fundamental procedural obligations established by s. 387 of the Act.
[27] Mr Pararajasingham also submitted that the dismissal of the applicant was particularly harsh. In this regard it was submitted that significant harshness arose from the employer’s unreasonable refusal to provide the applicant with an opportunity to produce medical documentation that would have clarified her capacity for work. In addition, according to the submissions made by Mr Pararajasingham, the dismissal was particularly harsh because of the applicant’s length of service at her principal place of employment, the Blayney Public School, where she had worked with an exceptional employment record for over 23 years. Further, Mr Pararajasingham said that particular harshness arose because of the applicant’s limited skill set, her advanced age, and the particular geographical location of the employment which made it difficult to find any suitable alternative employment.
[28] Further submissions made by Mr Pararajasingham addressed the question of the remedy sought by the applicant. Mr Pararajasingham submitted that the applicant should be provided with a remedy of reinstatement, an Order to maintain continuity, and an Order to restore lost pay. Mr Pararajasingham stressed that there was no evidence that reinstatement of the applicant was in anyway unsuitable, and such remedy was appropriate given that the applicant had been terminated for what has been established to be the employer’s false perception that she couldn’t attend to the inherent requirements of her role.
[29] In addition, Mr Pararajasingham made submissions which addressed the fact that the letter of dismissal provided to the applicant invited her to reapply for a cleaning position once she had obtained “full medical clearance”. Mr Pararajasingham acknowledged that the applicant had not made any approach to the employer in response to the invitation made in the dismissal letter despite being cleared to return to work by her Doctor on 10 February 2017. Mr Pararajasingham said that the applicant was understandably aggrieved by her dismissal and justifiably reluctant to make approaches to the employer about being considered for a cleaning position, as opposed to being reinstated into employment that she genuinely believed she had been unfairly dismissed from.
[30] Consequently, Mr Pararajasingham submitted that there should be no basis to have the applicant in any way financially impacted because she did not take up the employer’s invitation to apply for a cleaning position. Mr Pararajasingham submitted that the applicant had endeavoured to mitigate her loss, and she successfully obtained other employment and it was understandable that she would not respond to the employer’s invitation to be considered for a cleaning position as opposed to restoration of the position that she had worked in for over 23 years.
[31] In conclusion, Mr Pararajasingham summarised that the dismissal of the applicant was unfair as it had been based on a reason that was invalid, and it was a dismissal without any procedural fairness. Mr Pararajasingham urged that the Commission find that the dismissal of the applicant was unfair, and that it would be appropriate for the applicant to be reinstated to her former position, with no loss of continuity and payment of lost remuneration.
[32] The employer was represented by Ms Thompson, who submitted that the dismissal of the applicant was not unfair. Ms Thompson made verbal submissions which elaborated upon documentary material that had been filed on behalf of Joss.
[33] Ms Thompson commenced her submissions by stating that the dismissal of the applicant was valid. Ms Thompson made submissions which stressed that the applicant had been certified totally unfit for work since August 2016, and that in January 2017 the applicant’s treating Doctor had reviewed the Functional Job Description that the employer had provided and confirmed that the applicant was unfit. Ms Thompson submitted that the applicant had advised that she would not be certified fit for pre-injury duties at her next scheduled visit with her Doctor which had been arranged for 10 February 2017. Consequently, if the applicant had confirmed that she had been expected to be cleared then the paperwork would have been resent to the Doctor, and as per the employer’s policies, a medical assessment would have been arranged in preparation for the potential return to work.
[34] Ms Thompson said that she had extensive experience in matters of human relations and was extremely aware of obligations and legislation requirements in matters such as these. Ms Thompson stressed that she had asked the applicant whether it was appropriate to speak to her about employment related matters at the commencement of the telephone conversation on 6 February 2017. Ms Thompson submitted that, particularly because of the geographical difficulties, the procedure involving a telephone discussion that she adopted was appropriate.
[35] Ms Thompson acknowledged that the applicant had been a cleaner for a significant period of time and she stressed that the letter of dismissal indicated that once the applicant had been certified fit to return back to work, she was more than welcome to make an application. Ms Thompson made submissions which criticised the applicant for failing to advise the employer of her fitness to return to work and to make application for possible engagement. Ms Thompson said that the applicant made no attempts to make any contact with Joss to regain her employment.
[36] Ms Thompson made submissions which referred to Regulation 3.01 of the Fair Work Regulations 2009. In this regard, it was submitted that the employer was only required to keep the applicant’s position open for three months, and further, that this obligation only extended to an employee who was absent from work on pay. Further, Ms Thompson submitted that there was never a guarantee of a position being kept open at the same site indefinitely.
[37] The submissions made by Joss also asserted that it had no alternative but to terminate the applicant’s employment after it had reviewed the medical history and obtained an understanding of the applicant’s current medical position. Ms Thompson submitted that having regard for the length of absence and certain contractual and legislative requirements including financial costs, the employer acted appropriately in bringing the applicant’s employment to an end, noting in particular, the invitation made to the applicant to reapply for a cleaning position once she had received full medical clearance.
[38] Ms Thompson made further submissions which stressed that the applicant’s failure to reapply for a cleaning position in accordance with the invitation made in the letter of dismissal, represented a failure to mitigate her loss, and should be considered in the event that the Commission did Order any monetary compensation. Further, Ms Thompson made criticism of what she said was a delay before which the applicant demonstrated that she had made attempts to find other employment, and that this was a further demonstration of a failure to mitigate any financial loss.
[39] Ms Thompson also made submissions about an alleged overpayment made to the applicant. Ms Thompson said that it had been identified that the applicant had been overpaid by an amount of $872.00, and Joss had not sought to recover this overpayment. Ms Thompson submitted that this overpayment should be taken into consideration in the calculation of any financial compensation that the applicant may obtain.
[40] Part 3-2 of the Act contains provisions which deal with unfair dismissal, and one of those provisions, section 385, stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:
(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.
[41] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:
(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.
[42] In dealing with unfair dismissal claims over the past 20 years a handful of cases remain memorable because of their particular circumstances. In some instances, the case was remarkable because of the manifest absence of valid reason for dismissal, usually accompanied by deplorable procedural deficiencies. In other cases, the audacity of the employee to make complaint about their dismissal was consistent with a history of misconduct that provided unassailable valid reason for which the individual should have been dismissed much earlier. Unfortunately, this case will join the ranks of those elite few which forever remain ignominiously memorable.
[43] On the employer’s evidence, the decision to dismiss was actually made during the telephone conversation with the applicant 1 and as a result of the applicant suggesting that she may not be cleared by her Doctor to be fit to return to work for a few more weeks2. The employer formed the view that the applicant was unable to undertake the inherent requirements of her position without any medical opinion to support that conclusion. Amazingly, four days later the applicant was cleared to return to work.
[44] There was no proper basis upon which the employer formed the view that the applicant was unable to undertake the inherent requirements of her position. There was no medical opinion providing a prognosis for the applicant’s condition. The Certification of Capacity document issued by the applicant’s treating Doctor on 3 January 2017, was accompanied by a further medical certificate which covered the applicant’s absence until 13 February 2017. This medical certificate followed the pattern of earlier certificates each of which defined a fixed period of absence. These documents did not provide any medical opinion as to whether the applicant may have been unable to undertake the inherent requirements of her position on some permanent or long-term basis.
[45] The capricious falsity of the employer’s decision was blatantly exposed by the medical clearance to return to work provided four days after the dismissal. There was no explanation provided for the employer’s extraordinarily hasty and plainly erroneous decision. There was also no explanation as to why any decision about the employment of the applicant could not have been delayed a few days until after the outcome of the medical review of 10 February was obtained.
[46] Consequently, the reason for the dismissal of the applicant had no basis in fact, and it could not, on any construction, represent a valid reason for dismissal. The reason for dismissal was erroneous, capricious, unsound, unfounded, fanciful, ill-considered, illogical, intemperate, and devoid of compassion.
[47] The applicant was provided with notification of the reason for dismissal on the day after she was advised of her dismissal during the telephone conversation with Ms Thompson. In such circumstances, the notification of the reason for dismissal only provided confirmation of the decision to dismiss rather than notification that the dismissal was under contemplation.
[48] The absence of any prior notification to the applicant that the extended absence from work might be treated as an inability to undertake the inherent requirements of the position meant that the applicant had no opportunity to respond to the issue upon which the employer based its decision to dismiss. If the applicant had been given prior notification that the employer was contemplating dismissal because of the extended absence, she would have been able to obtain a prognosis from her treating medical practitioner.
[49] Consequently, the applicant was denied any opportunity to respond to the reason that the employer relied upon as the basis for dismissal. These circumstances demonstrate that procedural requirements are not simply matters of technical process, but important prerequisites designed to avoid erroneous decision making.
[50] The dismissal of the applicant involved very regrettable procedural deficiencies such that the applicant was not provided any opportunity to make out a defence before the decision to dismiss was made. The applicant was plainly denied natural justice.
[51] The manner in which the employer determined and then implemented the dismissal ensured that the applicant had no opportunity to have a support person assist her. Only in very unusual circumstances could there be some justification for providing advice of dismissal during a telephone conversation.
[52] Employees are human beings and not human resources. A machine or item of office equipment might be quickly discarded if it is broken or malfunctioning. However, an employee is entitled to be treated with basic human dignity, and advice of the termination of employment by telephone or other electronic means should be strenuously avoided so as to ensure that the dismissal of an employee is not conducted with the perfunctory dispassion of tossing out a dirty rag.
[53] This factor has no relevance in this instance.
[54] The size of the employer’s operation should have provided for a much higher standard of procedure to have been followed.
[55] The employer did have dedicated “HR specialists,” unfortunately the evidence revealed that such specialists may not have assisted in ensuring that both substantive and procedural fairness was provided to the applicant.
[56] There was no evidence that the employer considered either the length of service of the applicant, or her particular personal circumstances, and the impact that loss of employment would be likely to have on a person of her age, geographical location, and limited skills.
[57] The applicant was dismissed because the employer decided that she was unable to undertake the inherent requirements of her position. There was no medical prognosis or opinion upon which this decision of the employer could have been properly established. The reason for the applicant’s dismissal had no basis in fact, as was confirmed when four days after the dismissal the applicant was provided with a medical clearance to return to work.
[58] The procedure that the employer adopted, particularly involving the telephone discussion during which advice of the decision to dismiss was conveyed, was highly inappropriate, and did not provide a proper or realistic opportunity for the applicant to be heard or provide evidence as to her medical prognosis. Thus, the employer denied natural justice to the applicant.
[59] In summary, this case has involved a very regrettable absence of valid reason for the applicant’s dismissal. Further, it has been highly lamentable to observe the seriously flawed manner in which the employer first determined, and then conveyed the decision to dismiss the applicant. The circumstances of this case provide strong foundation for argument against any lessening of legislative protections for unfair dismissal, a proposition which seems to regularly resurface, and gain a level of publicity that is disconnected with reality.
[60] Regrettably, the dismissal of the applicant was harsh, unjust and unreasonable. Thankfully, the applicant is a person protected from unfair dismissal, and she is entitled to have the Commission provide an appropriate remedy.
[61] The applicant has sought reinstatement as remedy for her unfair dismissal.
[62] The question of remedy in respect of an unfair dismissal is the subject of Division 4 of Part 3-2 (ss.390 - 393) of the Act. Section 390 of the Act is relevant to consideration in this instance and is in the following terms:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(2) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[63] I have carefully considered whether it would be appropriate to make Orders for the reinstatement of the applicant.
[64] In the particular circumstances of this case, I have formed the view that an injustice of the highest order would stand if the applicant was not provided with the remedy that she has earnestly sought. Therefore, I have concluded that reinstatement would be appropriate in all of the circumstances of this case.
[65] Consequently, for the reasons stated above, I find that the dismissal of the applicant was unfair, and I am prepared to make Orders for the reinstatement of the applicant.
[66] Orders providing for the reinstatement of the applicant will be issued separately. In the event that the Parties are unable to agree on the amount to be paid to the applicant in accordance with Order 3, regarding an Order to restore lost pay, the application will be listed for further proceedings to enable the Commission to determine that amount. Any request for such further proceedings should be made within 21 days from the date of this Decision.
COMMISSIONER
Appearances:
Mr H Pararajasingham and Ms N D’Souza of United Voice appeared for the applicant.
Mr F Thompson and Ms D Martin appeared for the employer.
Hearing details:
2017.
Sydney:
June, 16.
1 Transcript @ PN525.
2 Transcript @ PN501, PN507 and PN524.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR594480>