DECISION

Fair Work Act 2009
s394 - Application for unfair dismissal remedy

Mr George Samuel
v
Inner South-West Community Development Organisation T/A ISWCDO
(U2016/9663)

Termination of employment – application for an unfair dismissal remedy – employer a small business – whether Small Business Fair Dismissal Code complied with – applicant absent from work for 14 months – allegations of bullying – application for anti-bullying orders dismissed – workers’ compensation claims – applicant’s medical condition prevents contact with supervisor – no reasonable adjustments able to be made by small business – applicant unable to indicate being able to return to work on normal duties – unable to fulfil the inherent requirements of the job – warnings and opportunity to respond – dismissal Code compliant – no unfair dismissal – application dismissed.

BACKGROUND

[1] Mr George Samuel commenced employment with the Inner South West Community Development Organisation t/a ISWCDO (‘ISWCDO’) on 26 October 2011. He was employed on a part-time basis (3 days a week) as a Home and Community Care Development Officer. Mr Samuel’s employment was brought to an end on 1 July 2016 following a protracted period (14 months) in which he had not been at work. This absence commenced on 16 April 2015 when Mr Samuel submitted a WorkCover NSW Medical Certificate stating he was unfit for work because of depression and anxiety. Throughout the ensuing 14 month period, Mr Samuel provided medical certificates repeating his unfitness for work; the latest medical certificate dated 1 June 2016.

[2] It would appear that Mr Samuel was unable to contemplate a return to work, if he was required to work under the direct supervision of his manager, Ms Asha Ramzan (or even to be in the same room as Ms Ramzan). Given the employer is a small community based organisation with 9 employees, ISWCDO’s President, Mr Paul Falzon advised him on 16 June 2016, inter alia;

‘Based upon the medical certification provided it appears you are not fit to perform the inherent requirements of your role with ISWCDO and that you are not likely to be fit to perform the inherent requirements of your role at any time in the foreseeable future.

As you know, ISWCDO is a very small community organisation. Prolonged absence of key personnel cause significant operational difficulties to the organisation as temporary arrangements have to be made for the organisation’s key functions to continue to be performed. Prolonged absences cannot be accommodated indefinitely.

I therefore place you on notice that the ISWCDO Board will be formally considering your ongoing employment with the organisation. If it is determined that you are not fit to perform the inherent requirements of your role, and that the operational requirements of the organisation are such that the role is required to be filled, then the termination of your employment is one of the possible outcomes of the Board’s consideration.’

[3] Mr Samuel’s employment was subsequently terminated on 1 July 2016 (see letter from Mr Falzon marked Annexure A). As a consequence, Mr Samuel (hereafter referred to as the ‘applicant’) filed an unfair dismissal application pursuant to s394 of the Fair Work Act 2009 (the ‘Act’). He seeks reinstatement and compensation in respect to his alleged unfair dismissal. ISWCDO (hereafter referred to as the ‘respondent’) filed a response (F3) denying the applicant had been unfairly dismissed and objecting to the application on the basis that as small business, the applicant’s dismissal was consistent with the Small Business Fair Dismissal Code (the ‘Code’). There is no dispute that the respondent is a small business, as defined. I shall come back to the provisions and application of the Code in due course.

[4] Two attempts were made at conciliating a settlement of the matter; but both proved unsuccessful. Accordingly, on 9 September 2016, I issued directions for the filing and service of outlines of submissions and evidence and the matter was listed for hearing on 11 November 2016. Until 30 August 2016, the applicant had been represented by the Australian Services Union NSW/ACT. At the hearing, the applicant represented himself and Mr Gambian, Secretary of the respondent appeared with Mr Falzon, and Ms Ramzan, Executive Officer. Both Mr Falzon and Ms Ramzan provided written and oral evidence in the proceeding, as did the applicant.

[5] It is relevant background to note that from around August 2014, the applicant has initiated various legal proceedings and made numerous complaints against the respondent in respect to his employment. These include the following:

• In April 2015, while on annual leave, the applicant lodged a workers’ compensation claim for psychological injury, as a result of a claim of workplace bullying in 2014. While the claim was initially contested, he was declared unfit for work and was paid weekly benefits from 27 August 2014. The workers’ compensation claim was settled by consent orders issued by the NSW Workers’ Compensation Commission on 9 October 2015.
• The applicant returned to work briefly for one day on 11 November 2015 and claimed to have been reinjured and was declared unfit to return to work.
• On 22 June 2016, the applicant lodged a complaint with the Australian Human Rights Commission (AHRC) alleging discrimination on the grounds of his psychological disability. The complaint was withdrawn by the applicant on 14 July 2016.
• In February 2015, the applicant lodged a complaint with the Australian Securities and Investments Commission (ASIC) alleging breaches of the Corporations Act 2001 in respect to the respondent’s Board minutes concerning his bullying claims.
• On 16 April 2015, the applicant made an application under s789FC of the Fair Work Act seeking a stop bullying order against the respondent. This application was heard and determined on 10 June 2016 by Cambridge C: [2016] FWC 3550. The Commissioner found that there was no evidence the applicant was bullied at work by anyone, let alone Ms Ramzan and dismissed the application. There was no appeal from that decision. The relevant conclusions of the Commissioner are set out at paragraphs 39-40 and 43-44 of his decision which I set out hereunder:

‘The third event involved Ms Ramzan politely and diplomatically advising the applicant of deficiencies in the draft submission that he had provided. An examination of the relevant communication to the applicant indicated that Ms Ramzan took considerable time and effort to provide a positive approach to the manner in which she identified the deficiencies in the applicant’s submission document. Once again, these actions were entirely inconsistent with conduct of an employer who was behaving unreasonably towards an employee.

On any objective analysis of the evidence that was provided about the alleged bullying behaviour of Ms Ramzan, there could be no finding made that she acted unreasonably towards the applicant. Ms Ramzan could not grant the applicant’s request for additional hours of work, and although this clearly frustrated and displeased the applicant, it did not represent unreasonable conduct. Similarly, it was reasonable for Ms Ramzan to reject what she believed to be a deficient report, indeed it was her responsibility as the employer’s Executive Officer, to exercise a final determination over any material that would be submitted to third parties or otherwise published in the name of the employer…

This matter has involved an application for a stop bullying Order. The Commission has been required to examine and evaluate all of the evidence so as to determine whether or not the applicant was a worker bullied at work.

Having regard for the terms contained in s. 789FD of the Act, a careful and detailed consideration of all of the evidence has not provided for any basis to find that the employer or Ms Ramzan specifically, repeatedly behaved unreasonably towards the applicant, and that that behaviour created a risk to health and safety. Consequently, the Commission has not been satisfied that the applicant was a worker that had been bullied at work.’

• The applicant foreshadowed an application to the Industrial Relations Commission of NSW seeking reinstatement of an injured worker, pursuant to Pt 8 of the Workers Compensation Act 1987 (NSW).

The respondent and the Code

[6] The respondent has its offices at Bardwell Park in NSW and is a small not-for profit organisation which works with local community groups in the Inner West, St George and Sutherland areas of Sydney. The respondent works with these communities on key social justice and sustainability issues and concerns. Its values are social justice, community development, social inclusion, cultural diversity and environmental sustainability.

[7] The respondent employs six permanent part time employees, two casual employees and the full time Executive Officer, Ms Ramzan. Ms Ramzan reports to a Board of Directors (the Board comprises seven volunteer directors).

[8] The respondent objects to the applicant’s unfair dismissal application on the grounds that it is a small business and in dismissing the applicant, it had complied with the Code. At this juncture, I set out the full terms of the Code below:

The Code

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

THE EVIDENCE

Mr George Samuel

[9] The applicant believed the respondent was bound by the workers’ compensation settlement of October 2015 to accept his return to work. However, he claimed the respondent never accepted his return to work and when he tried to do so in November 2015, he was ‘deliberately injured’ in order to prevent him from returning and then dismissed when he was discussing a return to work (‘RTW’) plan with his rehabilitation provider. The applicant insisted that the respondent’s letter of 16 June 2016; see: para 2 above, was not an invitation to participate in RTW discussions, but a threat to terminate his employment, which it did. He said the respondent had his prognosis for a RTW prior to his dismissal, but ignored it.

[10] The applicant insisted that he had a right to participate in RTW discussions. However, these discussions had taken place without his involvement and he was then dismissed, without being given an opportunity to improve. The applicant believed his capacity was linked to the respondent’s failure to provide him with suitable duties, given that liability had been accepted by the insurer and he was still certified totally unfit for work. The applicant said he has been waiting to be involved in a genuine discussion of how his role could be performed in the workplace, since he first made complaints to the Board in August 2014 in line with Grade 6 under the Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100].

[11] The applicant claimed the employer offered 16 reasons for his dismissal; none of which were valid or lawful. Rather, he had been unfairly dismissed because the respondent had difficulties in returning a person with disabilities to work. It had not complied with the Code.

[12] The applicant stated ‘I should win because of whistle-blower protections’ and said he had blown the whistle on workplace safety, a failure to comply with industry standards and the employer’s funding agreement and the Board not acting in good faith.

[13] The applicant put that his medical certification did not identify any restriction that he was to have no contact with Ms Ramzan. Therefore, the respondent was mistaken in dismissing him for this reason and in any event, the respondent had invalidated this reason when Ms Ramzan rang him two weeks later.

[14] Further, the applicant claimed he was dismissed for exercising a workplace right by complaining to SafeWork NSW about safety breaches (bullying). SafeWork’s inquiries are continuing. The Commission’s anti-bullying decision was irrelevant because SafeWork operates under different statutory provisions. He alleged Cambridge C had breached the fair hearing rules by not giving him an opportunity to provide a statement, had allowed his application to be ‘hijacked’ by the respondent and should not have allowed him to return to work, which is a State matter. The applicant claimed that the insurer had accepted there was a bullying perpetrator (Ms Ramzan), because it had accepted liability. In any event, he put that the Commissioner’s decision was irrelevant to an unfair dismissal matter.

[15] The applicant submitted that the fact the respondent had no HR Department was irrelevant and in any event, the respondent’s President is a lawyer, other Board members were associated with lawyers and they should have ‘done the right thing’ if they were interested in doing so.

[16] In respect to his capacity, the applicant alleged the respondent:

(a) did not conduct an adequate investigation into his capacity;
(b) did not cooperate in his RTW;
(c) refused him suitable duties;
(d) excluded him from RTW conversations;
(e) misinterpreted the rehabilitation provider’s suggestions;
(f) ignored his Award classification and job description;
(g) made no effort to provide reasonable adjustments to ensure he worked in a safe environment;
(h) ignored his longstanding complaints of overwork (which Cambridge C had accepted);
(i) ‘stonewalled’ his RTW by insisting that funding only allowed a 3 day week and then over working him and refusing to discuss longer hours;
(j) ignored the changes in work since the job descriptions were written;
(k) was wrong to put in the letter of 16 June 2016 that the Board believed he would not return to work in the ‘foreseeable future’. By that time, negotiations had commenced with the insurer and by 1 July 2016, the respondent was aware he would be returning to work in 2 months’ time after a prognosis from his treating doctor.

[17] The applicant engaged in a discussion of what inherent requirements are, and what they are not. He said that inherent requirements are influenced by position descriptions, the employer’s policies, procedures and work practices. They are dependent on work health and safety laws and must be reasonable. The applicant insisted that the issue of supervision by Ms Ramzan as a ‘recognised perpetrator of bullying’, is not an issue of capacity, but a duty of care that he be provided with a safe workplace. In any event, the respondent had previously removed this ‘roadblock’ to his RTW.

[18] The applicant submitted that his ‘unfit medical certificates’ was a ‘flawed basis for arguing lack of capacity’. He returned to work for regular duties, after being directed to do so, and was reinjured on 11 November 2015 after the respondent refused him any duties. The insurer, the doctor, psychologist, rehabilitation provider and SafeWork are all waiting for the respondent to stop refusing him duties.

[19] The applicant rejected the sole reason for his dismissal as being his ‘capacity’. He relied on the Protection of Injured Workers provisions of the State Industrial Relations Act 1996 and the General Protections provisions of this Act.

[20] The applicant insisted that the respondent had not complied with the Code - simply filling in the tick sheet is not enough. He submitted that:

• he was denied a support person and the respondent refused to participate in the AHRC conciliation;
• the employer refused to provide him with any duties and reinjured him for which liability had been accepted;
• he was not dismissed for conduct or performance;
• he was not given a reasonable time to improve;
• he had not been given an opportunity to respond to the 16 reasons given for his dismissal; and
• the respondent misunderstood its obligations under the Workers Compensation Act 1987, by refusing to hold his position open.

[21] The applicant advised the Commission that he had terminated the services of the rehabilitation provider, because he believed they did not do their job and had simply accepted the employer’s assertion that no duties were available. He criticised the rehabilitation provider for attending a meeting with his treating Doctor and Ms Ramzan, without his knowledge. The notes of the meeting contradicted the medical certificates.

[22] Notwithstanding his earlier submission that Cambridge C’s decision was irrelevant, he questioned the Commissioner’s comments about contact with Ms Ramzan. He claimed that everything said by the respondent’s lawyer about the medical certificates was ‘washed away’ by the insurer accepting liability for his injury.

[23] The applicant said he was cleared to return to work, he did so and was reinjured when Ms Ramzan entered the room in breach of the medical certificate (which was also accepted by the insurer). There was no ‘road-block’ to his return to work. Rather, the employer had ‘hijacked’ his anti-bullying application. The applicant claimed that his medical certificate did not have any restriction on him being supervised.

[24] The applicant asserted that the respondent was liable and culpable. There is no such thing as liability without admission. An acceptance of liability means the respondent has a ‘perpetrator’ in the workplace. His RTW is substantially a work health and safety issue, not just an industrial issue. The employer must provide a safe workplace at all times. It is the employer who must deal with an ‘acknowledged perpetrator’. The applicant insisted he had a right to participate in RTW conversations. He suggested that in arranging for his RTW, the respondent may not need to make any adjustments at all.

[25] The applicant said he made a complaint to the AHRC because the respondent threatened to terminate his employment, unless his disability disappeared within the period of capacity certificate. This was a clear breach of his human rights as a person with a disability. The respondent had refused to participate in conciliation and he discontinued the application.

[26] The applicant claimed he was a victim of retaliation for exercising his workplace rights as follows:

(a) For making complaints about bullying to the Board;
(b) Discriminating against him by making him do the same job in three days as a full time employee;
(c) For complaining to the Union;
(d) Initiating a SafeWork investigation; and
(e) Lodging a complaint to the AHRC.

He stated that the onus is on the respondent to prove it was for another reason, which it cannot do.

[27] The applicant asserted he was a person protected because of his disability under the Disability Discrimination Act 1992. Two psychiatrists have reported a ‘degree’ of total permanent disability from psychological injury. Moreover, the actions of the respondent caused his condition to deteriorate.

[28] It was further asserted that he is a ‘whistle-blower’ under the Corporations Act 2001. He had made complaints to ASIC as to:

• the lack of quality documentation by the Board;
• a breach of the respondent’s funding agreement; and
• not acting in good faith when Mr Falzon and Ms Ramzan briefed the Board on his workers’ compensation claim, two days before it was actually lodged.

As he has made a ‘protected disclosure’, his employment cannot be terminated.

For the respondent

Ms Asha Ramzan

[29] Ms Ramzan commenced employment as the respondent’s Executive Officer on 1 December 2008. She is a trained General and Psychiatric Nurse with a Bachelor of Arts and a number of related post graduate qualifications. She has worked in the non-government community sector since 1989, including in management roles for small to medium sized regional community organisations.

[30] The applicant had reported to Ms Ramzan since he commenced employment in October 2011. He had worked three days a week in a role funded by the Federal Department of Health (67%) and the NSW Department of Family and Community Services.

[31] Ms Ramzan said that the applicant was dismissed by the Board on 28 June 2016 following a prolonged and ongoing absence and with him providing no indication of when he would be returning to work after being invited to do so in the letter of 16 June 2016 from Mr Falzon.

[32] Ms Ramzan maintained that the applicant was not dismissed because of his injury, but because of his ongoing incapacity to return to work since April 2015. This reason was made clear to him in the letter of 16 June 2016 and again in his termination letter dated 10 July 2016. Ms Ramzan stressed that under s248 of the Workers Compensation Act 1987 (NSW), the employer must keep an injured worker’s role open for six months from the date of injury (27 August 2014). The respondent has well and truly met that obligation. Ms Ramzan said the applicant continues to be declared unfit to return to pre injury duties, or at all. As the letter of 16 June 2016 set out, it was not possible for the respondent to continue to hold his role open. He was advised to provide any new or additional information as to his likely RTW. He did not do so and the respondent had little choice, but to terminate his employment.

[33] Ms Ramzan explained how the respondent dealt with the applicant’s extended absence and its effect on her and the organisation. The applicant first lodged a WorkCover medical certificate while on annual leave for the birth of his first child in April 2015. The certificate stated the applicant was suffering from a ‘chronic adjustment disorder’ due to workplace bullying by his supervisor (herself). Ms Ramzan said that in the first six months, the respondent covered the applicant’s role with existing staff resources working extra hours. This placed strain on herself and the other staff. As the situation eventually became untenable and risked funding obligations, in September 2015, a suitably qualified and experienced casual employee was engaged and has remained employed to fill the applicant’s role.

[34] Ms Ramzan deposed that since April 2015 to 1 June 2016, every WorkCover certificate and the applicant’s treating Doctor, Dr Maung have indicated the applicant’s RTW can only occur if he has no contact with her, as his manager. In a small office with 4.8 full-time equivalent employees, this was impractical and unreasonable. Suitable alternative duties were discussed with the applicant’s case manager Ms Georgie Lazaridis, but no suitable duties could be identified.

[35] On 17 May 2016, Ms Ramzan met with Ms Lazaridis and Mr Gambian (the then President) at Ms Lazaridis’ request. The applicant was not present. Another meeting was held with Ms Ramzan, Ms Lazaridis and Mr Falzon on 2 June 2016. Ms Lazaridis emailed her notes of a follow up conference between herself, the applicant and his treating Doctor, Dr Maung. As the applicant made much of these notes in the hearing, I set out the email in full below:

Hi Asha,

I haven’t been in contact with Dr Maung since the Case Conference. If this helps I have copied my notes from the Case Conference below:

‘NTD case conference 7/6/16

Present RC, IW and Dr Maung (NTD)

-IW seeing Psych Rolph Reed ph:4782 4915

-IW advised he has made complaint to WIRO re: no SD’s and they said they will send inspector to investigate

-RC advised since no SD’s and this workplace causes IW such distress maybe best to look for new job elsewhere and will be supported by RC.

-IW refused on principle

-NTD advised that IW could RTW if counselling goes well in apprx 2 months

-NTD advised that bullying must stop and then IW can have contact with Asha

-NTD advised a RTW at that workplace will take a long time due to the complex issues involved with IW’s anxiety

-IW on anti-depressants – Lezapro

-NTD advised that it appears IW needs to get some closure from this situation emotionally and that’s why not ready to move into a new job. NTD advised he doesn’t think iw can move into a new job until he has closure

-NTD advised a RTW at that workplace would be possible if IW has no contact with Asha. GL’

Further, Asha, I have spoken with Jean from GIO, the new case manager, and she has agreed that proceeding to a vocational assessment given that there are no suitable duties appears reasonable. I have asked George to schedule a date but my understanding is he is waiting for the outcome of the Inspector’s investigation.

Hope this helps

Kind Regards,

Ms Georgie Lazaridis (my emphasis)

[36] In oral evidence, Ms Ramzan described what occurred when the applicant briefly returned to work on 11 November 2015. It was Ms Ramzan’s first day back after two weeks off for surgery and she was out of the office in the morning. Other staff had texted and phoned her to say that the applicant had turned up for work unannounced and they didn’t know what to do. Ms Ramzan told them to make him feel welcome. She phoned Mr Gambian to discuss what to do. She was concerned that after such a long absence, the respondent would need to know the ‘clear guidelines’ for his RTW. She returned to the office, walked past the applicant’s office, acknowledged him, with no response. She and Mr Gambian agreed to meet the applicant in private with a support person, if requested. He refused and left the office.

[37] In cross examination, Ms Ramzan was asked about a letter dated 9 November 2015 to the applicant from the respondent’s solicitor, HWL Ebsworth requiring him to attend for work immediately, if he was not covered by a medical certificate. Ms Ramzan agreed she knew of the letter, but when it was sent she was on sick leave. She and Mr Gambian were both surprised that the applicant had turned up for work on 11 November 2016, without any notice or warning.

[38] Ms Ramzan agreed that in the applicant’s response to the 16 June 2016 letter, he reminded the respondent of its obligations under the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998. The applicant asked Ms Ramzan about sections of these Acts and his belief that the employer had to keep his role open for two years. She could not answer because he did not provide her with a copy of the Acts. She did say that his replacement was by a casual employee.

[39] Ms Ramzan was asked about the applicant’s separation certificate and other documents which were sent to him by registered post, returned and then resent by email. Ms Ramzan agreed she did not send the applicant a reference. However, this was because the respondent does not provide references. He asked Ms Ramzan in light of no performance issues with him, if this was out of ‘spite’. Ms Ramzan reiterated that there is no requirement for employers to provide references for employees. Ms Ramzan was asked about the Board minutes of 14 April 2015 and why a note says ‘Workers Compensation Matter’ was included when it was two days before he had actually lodged his claim.

[40] In re-examination, Ms Ramzan said the HWL Ebsworth letter of 9 November 2015, arose in the context of ‘lawyer to lawyer’ communications and the doubtful authenticity of a medical certificate which included an attachment of ‘unimplementable and preposterous’ conditions. The Doctor’s certificate was incomplete and unsigned and when the respondent checked with the Doctor she had retracted it and said the attachment had been written by the applicant himself and he had told her to include them with the certificate. Ms Ramzan said this meant the applicant was not covered by a medical certificate for November and this was consistent with the direction to RTW in the HWL Ebsworth letter. The applicant had turned up for work (11 November 2015) on a day he would be ordinarily rostered off and without any communication beforehand. She also said it was agreed that he would need to be inducted back to work and in the context of him having no contact at all with her, it was necessary to have a discussion about how this condition would work. He refused to do so. A further meeting was held involving the Union. The applicant would not discuss transitioning back to work, unless he had no contact with her.

[41] In further cross examination, Ms Ramzan denied the applicant was working from home after 1 April 2015. There were numerous letters from WorkCover indicating the claim had been denied, but ultimately a ‘pragmatic’ decision was made to settle the matter. Up until the settlement, liability had been consistently denied. Ms Ramzan acknowledged that she was aware liability had been accepted, before the applicant was dismissed.

Mr Paul Falzon

[42] Much of Mr Falzon’s statement evidence repeated agreed factual matters and the evidence of Ms Ramzan. To that extent I do not repeat it here. However, he added the following.

[43] Mr Falzon confirmed the discussions he had with Ms Lazaridis and Ms Ramzan on 2 June 2016, in which Ms Lazaridis made clear that the applicant’s treating Doctor had said he cannot be supervised by Ms Ramzan. This was not practical, as Ms Ramzan is the only manager in the workplace. Nor could the applicant be relocated.

[44] Mr Falzon deposed that when the Commission’s anti-bullying matter had been finalised, he formed the following views based on discussions with Ms Lazaridis and Ms Ramzan:

(a) Mr Samuel was not likely to return to work. Ms Lazaridis said at the 2 June 2016 meeting that he will not return to work to be supervised by Ms Ramzan;
(b) All Mr Samuel’s medical certificates over the past 14 months had said he was unfit for work on medical grounds and had no capacity;
(c) Mr Samuel was receiving weekly payments from GIO;
(d) Mr Samuel was supported by GIO to find alternative employment, if required;
(e) The Board decided to write to Mr Samuel to satisfy ourselves as to whether he was able to return to work and give him an opportunity to respond.

[45] This was followed up by Mr Falzon’s letter of 16 June 2016 and the applicant’s response. His response:

(a) offered no new or additional information;
(b) did not advise of when he would be returning to work;
(c) did not assert he was fit to return to work; and
(d) continued to claim he was being bullied at work, despite the claim being rejected by the Commission.

Mr Falzon then sent the Board’s letter terminating the applicant’s employment (Annexure A).

[46] In further oral evidence, Mr Falzon denied that the Board had already come to a decision before he sent the 16 June 2016 letter. Ultimately, the Board didn’t really know what was ‘going on with Mr Samuel’. After 14 months and the anti-bullying case; numerous medical certificates declaring him unfit for work; discussions with the rehabilitation provider; workers’ compensation and other claims; the applicant’s continuing false assertion that Ms Ramzan was a ‘perpetrator’; and consideration of other alternatives, the Board had no choice. Mr Falzon noted that the applicant had two weeks to respond.

[47] In cross examination, the applicant asked Mr Falzon if the last Doctor’s certificate mentioned him not being supervised by Ms Ramzan. Mr Falzon said that as he was still alleging Ms Ramzan was the ‘perpetrator’, the Doctor’s reference to the ‘bullying needs to stop, including face to face harassment’ could only have meant Ms Ramzan.

[48] Mr Falzon said he spent three and a half hours carefully writing the termination letter, not to mention the time he had taken consulting with the Board and researching legislation which the applicant had referred to, because he (Mr Falzon) was a family law lawyer, and not an employment lawyer.

[49] Mr Falzon agreed he had no contact with the applicant since his first grievance of 23 March 2015 and his warning letter of 16 June 2016 (466 days). However, during this time, the applicant had made a number of claims, including for stop bullying orders and was off work for 14 months on workers’ compensation. It was therefore not appropriate to contact him while these matters were progressing. In any event, Mr Falzon said he was a voluntary director and he was paid nothing for this work.

[50] As to the applicant’s first complaint, Mr Falzon said he had referred it to the highest level in the organisation, but other matters overtook it. As to the AHRC complaint, Mr Falzon understood that a person could not have two complaints in separate proceedings and the applicant had decided to discontinue the AHRC complaint. At the same time, the respondent was working with the insurer and was faced with the applicant’s false claims to SafeWork, which had prompted two inspectors visiting the workplace and giving the organisation a ‘full bill of health’. Mr Falzon understood that the applicant had contacted SafeWork again on multiple occasions and a further review is continuing.

[51] Mr Falzon was asked about a notation on Mr Lazaridis’ notes of the meeting on 2 June 2016 in which it was said ‘NTD advised that IW could RTW if counselling goes well in apprx 2 months’. However, Mr Falzon observed that the notes go on to say that there was to be no contact with Ms Ramzan. This was impractical and unreasonable and could not be agreed to.

[52] In further questioning, Mr Falzon understood that because the applicant had lodged an anti-bullying application, the respondent was preventing from talking to him, lest it aggravate his injury. Mr Falzon said it was not the respondent’s duty to speak to the applicant between 16 June and 1 July 2016, when his treating Doctor had again said he was unfit to RTW. In any event, any RTW was still conditional on him having no contact with Ms Ramzan.

SUBMISSIONS

For the respondent

[53] As ISWCDO is a small business, with 9 employees, the Small Business Fair Dismissal Code applies to it as:

a) it has fewer than 15 employees;

b) the applicant was employed on a part-time basis;

c) the applicant was given a reason why he was at risk of being dismissed, which was based on his capacity to perform the inherent requirements of the job he was employed to do;

d) the applicant was given the opportunity to respond to the respondent’s warning that he was at risk of being dismissed, and to provide evidence that he had some reasonable capacity to RTW; and

e) the applicant failed to provide any evidence or assurance that he could RTW within a reasonable timeframe.

[54] The respondent submitted that it had complied with the Code when it dismissed the applicant and on this basis, his unfair dismissal application should be dismissed. In the alternative, the respondent submitted that should the Commission not accept that the applicant’s dismissal complied with the Code, then the dismissal was not unfair, unjust or unreasonable.

For the applicant

[55] Submitting on his own behalf, the applicant said that the respondent did not comply with the Code when it dismissed him. He submitted it is not a matter of merely complying with the Code, but that the reasons for dismissal need to be ‘sound’, ‘defensible’ or ‘well founded’ and not ‘capricious’, ‘fanciful’, ‘spiteful’ or ‘prejudiced’. He maintained the reasons given to him for his dismissal were not valid and were unlawful, capricious, fanciful, spiteful and prejudiced. He claimed there were 16 reasons given for his dismissal, and he was not provided with any opportunity to respond to any of them.

[56] The applicant rationalised that it was evident that one of the reasons for his dismissal - that he is unable to work with Ms Ramzan - was shown to be invalid because the respondent had requested Ms Ramzan to contact him two weeks after his dismissal and by also having her present during conferences before the Commission.

[57] The applicant submitted that the respondent was aware, at the time of his dismissal, that he would be able to return within a reasonable timeframe. He asserted that the respondent did not conduct a reasonable inquiry into his capacity and that it did not adequately review the medical evidence he had provided. He also submitted that the respondent did not make sufficient reasonable adjustments it could have made to enable his return to his role.

[58] The applicant said that after he had made a complaint to the AHRC, the respondent had refused to participate in a conciliation. He claimed that by refusing to participate in this conciliation, it equated to not being offered a support person in any situation where termination was possible.

[59] The applicant submitted that should the Commission find that the respondent did not comply with the Code, his dismissal was ‘harsh, unjust and unreasonable’ because there were no valid reasons for his dismissal, and returning to work to recover is more difficult when not employed.

[60] In the alternative, the applicant submitted that the employer was legally prevented from terminating him, as he is a ‘whistle-blower’. In doing so, the respondent had committed an offence, punishable by imprisonment.

For the respondent (in reply)

[61] The respondent again rejected the assertion that the applicant was unfairly dismissed. It reaffirmed that the reason for termination was the applicant’s inability to perform the inherent requirements of his role, including the requirement that he attend his usual place of work and that he be supervised by his manager, Ms Ramzan. The respondent also rejected the claim that the applicant was provided with 16 different reasons for dismissal.

[62] The respondent had provided the applicant with an opportunity to respond to the reason why he was at risk of being terminated. He took up this opportunity on 30 June 2016 by way of an email to the CEO and the Board. This response did not provide any new evidence or an assurance as to when he could return in a reasonable timeframe, without the imposition of unrealistic and unacceptable conditions.

[63] The respondent further submitted that, at the time of filing submissions, it is still not aware of any current medical evidence which shows no restriction on the applicant’s capacity to perform the inherent requirements of his role, including that he be supervised by Ms Ramzan. If such evidence exists, the applicant ought to have provided it to the respondent at the time of his dismissal. He did not.

[64] The respondent rejected the applicant’s submission that it refused to participate in a conciliation before the AHRC. Rather, the applicant had withdrawn his complaint, which was agreed to by the AHRC. The respondent also rejected the notion that the applicant is a ‘whistle-blower’.

CONSIDERATION

Statutory Provisions

[65] Section 385 of the Act defines an unfair dismissal in the following way:

‘385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.’

[66] Section 396 of the Act sets out the matters the Commission is required to determine before considering the merits of an unfair dismissal application; merits being whether the dismissal was ‘harsh, unjust or unreasonable’ within the meaning of s387 of the Act. Section 396 reads as follows:

‘396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.’

[67] There is no dispute that the applicant was dismissed by letter dated 1 July 2016 from the respondent’s President Mr Falzon (s385(a)). He filed this application within the requisite time period in subsection 394(2). As this is not a case of genuine redundancy, s385(d) and s396(d) are not relevant.

[68] The only consideration applicable at this stage of the proceedings is whether the applicant’s dismissal was consistent with the Code. It must be stressed that if one or more of the criteria set out in s385(a)-(d) are not met, then the person has not been unfairly dismissed. More particularly, if the initial matters to be determined in this case, being whether the applicant’s dismissal was Code compliant is satisfied, the applicant cannot have been unfairly dismissed and his application must be dismissed. I shall return to these considerations in due course.

Conduct of proceedings

[69] While the applicant was unrepresented, he certainly was not a typical unrepresented litigant, unfamiliar with the provisions of the Act and the Commission’s processes. He relied on various Commonwealth and State statutes and argued his position forcefully and with conviction. I am satisfied the applicant was afforded every opportunity to put whatever he wished in support of his case, (as he perceived it), and that he availed himself of those opportunities. Regrettably, however, for a person studying law, his statement evidence was not evidence at all. It was a farrago of misleading, exaggerated or misconceived commentary about the complaints he had made, how poorly his complaints had been handled and his critical opinions of the outcomes. His evidence was little more than a long, convoluted, out of sequence and incomplete submission; albeit neatly and dutifully set out.

[70] It is obvious from the applicant’s materials and submissions that unless he gets his own way, anyone who calls him out or questions his judgement or conduct, is wrong, biased or ill-informed. Throughout the last two years, anyone who has disagreed with him, or who had merely sought relevant and/or appropriate information, was either acting unlawfully, unfairly or both. When anyone reacted to him or questioned him, he twisted the circumstances and looked for some spurious, unconnected basis to challenge their motivation.

[71] The many confusing non-sequiturs in the applicant’s submissions were no better illustrated than by his approach to the decision of Cambridge C in his anti-bullying application. At one point, he claimed the Commissioner was wrong (by not having found him to have been bullied at work) because the insurer had accepted liability for his workplace injury. At another point, he said the Commissioner’s decision was irrelevant, because it was decided under the Fair Work Act, whereas his injury was found to exist under State workers’ compensation laws. Oddly, he later relied on the Commissioner’s decision which he claimed had established he was injured from ‘overwork’. Putting aside these contradictions, from any fair reading of the Commissioner’s decision, it is clear that Cambridge C made no such finding.

[72] It is necessary to add that despite the Commission’s forbearance, and the latitude given to the applicant during his cross-examination of Ms Ramzan and Mr Falzon, his questions were mostly irrelevant or insignificant distractions about semantic word meanings or omissions that were, at best, related to the applicant’s own misconceived perception that Ms Ramzan and the Board were involved in a conspiracy to continue bullying him with the aim of ultimately getting rid of him.

[73] One further matter requires comment at this point. The applicant believed he had stumbled on a ‘smoking gun’ which ‘blew away’ the respondent’s primary argument that it did not have any information concerning his possible RTW. This was found in the notes of Ms Lazaridis meeting with the applicant’s treating Doctor on 2 June 2016; see: para 35 above. The comment he relied on, attributed to his treating Doctor, was ‘NTD advised that IW could RTW if counselling goes well in approx. 2 months.’

[74] Viewed in isolation, the applicant might well have had a legitimate point. However, the Doctor’s comment was hardly definitive, but more importantly it was conditional on what the applicant has always claimed and which was unacceptable to the respondent; that was he could have no contact with Ms Ramzan; let alone be supervised by her. Moreover, later in the same notes the Doctor says ‘NTD advised a RTW at that workplace if IW has no contact with Asha.’

Reasons for dismissal and the Code

[75] Given the arguments and submissions of the applicant and how the proceedings unfolded, it seems to me that the Commission must firstly resolve two preliminary questions, before considering whether the Code has been complied with in respect to the applicant’s dismissal. These questions are:

1. What was the reason for the applicant’s dismissal?; and
2. Is the reason for the applicant’s dismissal comprehended by the provisions of the Code?

[76] In respect to the first question, the parties were obviously at odds as to the reason for the applicant’s termination of employment. The respondent argued that the applicant’s dismissal was not because he was injured, but rather because he was, in substance, unable to fulfil the inherent requirements of his position (capacity) and could not provide the respondent with any surety as to his RTW after an absence of 14 months. On the other hand, the applicant claimed a number of reasons for his dismissal, primarily because of his injury, but also submitted that the respondent’s letter of 16 June 2016 had identified 16 invalid and/or unlawful reasons for his dismissal. Further, his dismissal was out of ‘spite’ because of his workplace complaints to various Government bodies, such as SafeWork, AHRC and ASIC.

[77] In my view, the applicant’s claims are entirely misconceived. The applicant was not dismissed because of his injury, but because the respondent, having gone well beyond all its legal obligations to an injured employee, formed the ultimate view that all of the historic and contemporary medical evidence supported the conclusions that:

(a) the applicant could not give any indication of when he would be returning to work, after an absence of 14 months (I shall return to the notes of the meeting of 2 June 2016 later); and
(b) the fundamental precondition of the applicant’s return to work was that he was not to be supervised by Ms Ramzan, or indeed have any contact with her. This was an unrealistic, impractical and unreasonable condition.

[78] In this later respect, I refer to the Full Bench of the Commission in J Boags and Son Brewing Pty Ltd v Allan John Button [2010] FWAFB 4022 (‘James Boags’) at paragraph 22 where it was said:

‘When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.’

[79] In my assessment, what the applicant’s medical restriction required (no contact with his supervisor) was not a RTW to his substantive position, but to a wholly modified role, with unworkable restrictions as to being supervised in his duties. The same characterisation also applies in respect to his suggestion he work from home. This too, was not a RTW to his substantive position.

[80] In my opinion, the above conclusions; see: para 77 above, were reasonably open to the respondent. There was no basis to contend, as the applicant persistently did, that the respondent was acting illegally by not returning him to a safe work environment. At this point, I observe that there are a number of protections for injured workers under this Act and other legislation. For example, under s352 of the Act, an employer must not dismiss an employee because of the employee’s temporary absence from work due to illness or injury. Temporary absence is defined in Regulation 3.01 of the Fair Work Regulations 2009(Cth) as a period of no more than three months in a 12 month period (exclusive of paid personal/carers leave). Similarly, s772 of the Act makes it unlawful for an employer to dismiss an employee for reasons of temporary absence from work because of illness or injury of a kind prescribed by the Regulations (as above).

[81] In addition, under State workers’ compensation laws, an employer cannot dismiss a worker who is not fit for employment as a result of a workplace injury within a period of six months after the worker first became unfit for employment (s248 of the Workers Compensation Act 1987). Under ss241 and 242 of this Act there are certain other reinstatement rights available to injured workers within two years after the workers’ dismissal. Indeed, the applicant has in fact foreshadowed his intention to pursue these rights under ss241 and 242 of the State workers’ compensation legislation.

[82] At this point, I note that the interaction of workers’ compensation legislation with termination of employment applications was considered in Smith, Arthur and Kimball, Brett and Moore Paragon Australia Ltd [PR942856], albeit under s 170CE of the Workplace Relations Act 1996. There the Full Bench of the Australian Industrial Relations Commission (AIRC) (as the Commission was then styled) said at paragraph 44:

‘The present case provides an illustration. As the First Full Bench found, where the reason for termination is that an employee has a WorkCover history, that reason without more will not be a valid reason for termination. It would not of itself provide any basis for opposing an order for reinstatement. However, under the general law an employer may lawfully terminate, or perhaps treat as frustrated, the contract of employment of an employee who, by reason of illness or injury, does not have an ongoing capacity to perform the duties of the position in which he or she is employed. Hence the need for provisions in workers' compensation legislation protecting an injured employee for a period following the injury and a provision such as s.170CK(2) in the Workplace Relations Act 1996. However, ongoing incapacity arising from illness or injury can certainly be a valid reason for termination of employment within the meaning of s.170CG(3)’ (my emphasis)

[83] The applicant is under a misguided apprehension that unless he participates in RTW discussions and agrees to RTW conditions which the employer must provide, (no matter what the unworkable workplace implications), then it must hold his job open until he secures this outcome, even in the face of a total incapacity to RTW. Further, the applicant claimed the employer did not adequately investigate his incapacity or provide reasonable adjustments for his RTW. This submission entirely ignores the fact that the applicant continued to provide medical certificates disclosing he was totally unfit for any work. Given this prognosis there was nothing to investigate and nothing for the respondent to provide in respect to reasonable adjustments.

[84] When the applicant challenged the ‘capacity’ reason for his dismissal, he firstly, relied on the protection of injured workers’ legislation in NSW concerning the reverse presumption of proof, and how employers can be fined if they don’t rehire injured workers. He claimed the respondent was already in breach of that legislation. Secondly, he said that the respondent had itself identified 16 reasons for his dismissal, most of which were adverse action taken as a result of him exercising his workplace rights.

[85] At the risk of adopting the applicant’s own logic posited in other parts of his submissions, reliance on the provisions of the State Act and on a completely different statutory regime (General Protections) under this Act, do not assist the applicant’s case. This application is based on the statutory provisions for an unfair dismissal application under Part 3.2 of the Act.

[86] In a rather curious contorted contention, the applicant claimed that his medical certificates did not have any restriction on him being supervised. However, the certificates (the last dated 5 July 2016) said ‘no current work ongoing from 5 July 2016 to 2 August 2016 and ‘factor delaying recovery – bullying needs to stop (including non-face to face harassment)’. Given the applicant had no clearance to return to any duties, what was the point of claiming there was no restriction on him being supervised? His further submission was that the bullying ‘needs to stop’ reference did not name Ms Ramzan and therefore gave him clearance to RTW, was semantic nonsense. Ms Ramzan was the only person the applicant claimed was the ‘bullying perpetrator’. Obviously, the reference to bullying could not have meant anyone other than her. As she was the only person in a small team who could supervise the applicant, he had no ‘capacity’ to RTW. There was no obligation on the respondent to implement some unreasonable, impractical arrangement to satisfy the applicant’s unreasonable conditions. In any event, Ms Ramzan was not found to have bullied the applicant at all.

[87] In another bizarre submission, the applicant reiterated that the insurer’s liability is an ‘admission’ that there is a ‘perpetrator’ in the workplace. This is utter nonsense. Liability may simply mean the employee has an injury which he/she believes is caused by bullying; not that it is true. It is not proof of the fact of bullying, but proof of the existence of a belief of the applicant leading to an injury - no matter how misguided or incorrect the belief is.

[88] I also refer to Ms Ramzan’s evidence about the nature of the original claim and settlement; see: para 41 above. In addition, Commissioner Cambridge is recorded in the transcript of the proceedings of 28 October 2015, (which the applicant tendered in his own case), as informing him that acceptance of liability is not an admission of liability (particularly if this forms part of a settlement). Despite this, the applicant persists with this entirely mischaracterisation. I must add this cautionary comment: the applicant risks legal action being taken against him, if he persists in falsely accusing Ms Ramzan of being a ‘bullying perpetrator’. Apart from being offensive and reprehensible, he should very carefully consider perpetuating this disproved allegation, particularly considering he is undertaking legal studies, presumably with the intention of becoming a lawyer.

[89] Moreover, the applicant does not come to the Commission with ‘clean hands’. Let me explain. In what was a clumsy, but deliberate attempt to deceive the respondent in October 2015, he provided an incomplete medical certificate with an attached list of RTW conditions, purportedly from Dr Okumura. The attached document, dated 13 October 2015, had in fact been penned by the applicant himself with the intention, in my view, of giving the impression the Doctor had authorised, or at the very least, agreed with the purported RTW conditions; particularly as it was expressed in the third person and in one copy was on the Medical Centre letterhead. Unsurprisingly, the respondent made enquiries of the Doctor as to what appeared to be a suspicious certificate as it contained detailed workplace information, unreasonable conditions and used the term ‘perpetrator, Asha Ramzan’ - comments unlikely to have been made by a doctor. The Doctor denied being the author of the RTW conditions and withdrew the medical certificate. The applicant claimed the respondent bullied the Doctor to do so. Not only was this claim implausible, it was errant nonsense. Given the applicant’s botched attempt to use the Doctor to deceive the employer, it is little wonder she withdrew the medical certificate.

[90] This incident highlights a strange coincidence. For the first time in months, the applicant had penned these false RTW conditions around 13 October 2015 and the Doctor’s certificate disclosed a ‘capacity for some type of employment’ from 12 October (the day before) until 12 November 2015. Remembering, one day before the expiry of this period (11 November 2015), the applicant returned to work, unannounced and without any notice to the respondent and immediately claimed to have been reinjured because Ms Ramzan was in the office. He did not return to work, or have any clearance to do so, at any time after that point.

[91] Given all these circumstances, far from being in breach of any of its legal obligations, the respondent, as a small community based organisation, in my view, adopted commendable patience and restraint in accommodating the dislocation to its operations by the applicant’s continued absence. Accordingly, I find that the reason for the applicant’s dismissal was because of his incapacity to perform his duties and the inherent requirements of his position.

[92] As to the second question, it is necessary to say something generally about the Code and its application to dismissals in the small business sector. It is clear the Code differentiates between compliance obligations on the employer in two different dismissal scenarios. That is, where the employee is dismissed because the employer has reasonable grounds for believing the employee is guilty of misconduct and secondly, where the dismissal arises from performance or capacity reasons.

[93] In the Macquarie Dictionary, ‘capacity’ in this context is defined as ‘power, ability or possibility of doing something.’

[94] In Crozier v Palazzo Corporation Pty Ltd [2001] FCA 1031, the Full Court of the Federal Court considered ‘capacity’ in the context of a valid reason and said the word ‘capacity’ means:

‘the employee's ability to do the work he or she is employed to do. A reason will be "related to the capacity" of the employee where the reason is associated or connected with the ability of the employee to do his or her job. The terms of s 170CG(3)(a) provide no support for Mr Crozier's contention that there can be no "valid reason ... related to the capacity ... of the employee" where an employee is working to his or her personal best, even though this personal best is less than what is required to do the job for which he or she is employed. Plainly, there can be a valid reason for the termination of an employee's employment where he or she simply does not have the capacity (or ability) to do the job.’ (my emphasis)

[95] It is clear that there is no express reference to a dismissal arising from the rather unusual circumstances of this case. While there appears to be no definitive authority of the Commission (certainly not at Full Bench level) directly on point to this case, it seems to me that the legislature intended to capture all small business dismissals, where the dismissal is brought about by the initiative of the employer, notwithstanding as has been observed by the Full Bench in Ryman v Thrash Pty Ltd [2015] FWCFB 5264 (Ryman v Thrash), that the Code is rather ‘poorly drafted’. It does not seem logical that the legislature would have contemplated denying a small business employer the less stringent unfair dismissal rules in the circumstances of a case such as this. Indeed, if such a dismissal is not covered by the Code, it begs the question of where it would sit within the unfair dismissal jurisdiction of the Act. Ryman v Thrash also gives guidance on this issue. In explaining the application of the summary dismissal provisions in the Code, the Full Bench said at paragraph 41:

‘In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:

(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.

(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.’ (my emphasis)

[96] Accordingly, I am satisfied that this case comfortably sits within the legislative framework in Part 3-2 of the Act and, in particular, by reference to the meaning of ‘capacity’ in the Code. In my view, the use of the word ‘capacity’ as a reason for an employee’s dismissal is clearly contemplated in circumstances where an injured worker is unable to perform the inherent requirements of his/her role. Of course, this does not mean that such a dismissal might not otherwise be unfair if the requirements of the Code are not met. It is that matter which I now turn.

Did the respondent comply with the Code?

[97] Although not forming part of the Code, there is an accompanying ‘Checklist’ document intended to serve as a tool to assist the employer with ensuring compliance with the Code. This Checklist was provided by the respondent in this case and, on its face, demonstrates compliance with the Code. However, merely answering the questions in the Checklist, for the most part by ticking a box, does not mean the Code has, in fact, been complied with. I turn now to the question of whether the respondent complied with the Code when terminating the applicant’s employment. This requires the Commission being satisfied as to the following matters, which I shall deal with seriatim.

[98] The small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. An important consideration in dismissals of this kind (and indeed in all other cases of unfair dismissal) is whether the reason given by the employer for the employee’s dismissal is a valid one.

[99] In James Boags the Full Bench said at paragraph 29:

‘It is well established that a valid reason is one which is “sound, defensible or well founded”, but not “capricious, fanciful, spiteful or prejudiced”.  An inability to perform the inherent requirements of a position will generally provide a valid reason for dismissal. But this will not invariably be so. For example, the dismissal may be prohibited by State workers compensation legislation or otherwise unlawful. It is highly likely, bordering on certain, that there could be no valid reason for the dismissal in that event. Further, a dismissal based on an incapacity to perform the inherent requirements of a position may not be valid reason for dismissal if the employee has a capacity to perform the inherent requirements of their job. Plainly, there can be a valid reason for the dismissal of an employee where he or she simply does not have the capacity (or ability) to do their job. But, again, there may be circumstances where such incapacity does not constitute a valid reason in the relevant sense.’

See also; Charanjit Singh Birdi v Rail Corporation New South Wales T/A RailCorp [2011] FWA 7728; Michael Harte v Forbes Australia Pty Ltd T/A Hunt Boilers [2011] FWA 6948; Meenakshi Callychurn v Australia and New Zealand Banking Group T/A ANZ [2016] FWC 526; and Ian Hobbs v Capricorn Coal Management Pty Ltd [2001] AIRC 408.

[100] More recently, the Full Bench (by majority) in Lion Dairy and Drinks Milk Limited v Peter Norman [2016] FWCFB 4218 summarised the relevant case law on ‘capacity’ in unfair dismissal cases and summarised the approach which I intend to apply in this matter. At paragraphs 15-25 the Full Bench said in a lengthy dialogue:

[15] A number of Full Benches of the Commission and its predecessor have considered the approach to considering whether a valid reason relating to capacity exists in a given case. In Dundovich v P&O Ports a Full Bench was not satisfied that there was a valid reason for termination because the employee, who was absent on workers compensation, was not assisted enough to return to work. The Full Bench said that the employer acted too quickly in moving to terminate and was not persuaded by the reasons advanced by the employer as to why it acted when it did.

[16] Other cases have considered the question when there was conflicting medical evidence. Senior Deputy President Cartwright in Ermilov v Qantas Flight Catering Limited said the following:

“[29] In my view there was a valid reason for the termination related to the capacity of the Applicant (s.170CG(3)(a)). That reason was that the Applicant was assessed unable to perform the duties of his contracted position as an ASO Level and the Respondent was not able to create a new role for him.

[30] Under the NSW Workplace Injury Management and Workers Compensation Act 1998, an employer liable to pay compensation to an injured worker is obliged to provide "suitable employment", unless it "is not reasonably practicable." "Suitable employment" is defined as "work for which the worker is suited, having regard to..." a number of factors, including (among others) the nature of the worker's incapacity and pre-injury employment, and the details in the medical certificate supplied by the worker. When Allianz denied workers compensation liability in respect of the Applicant's third injury (which the Applicant did not contest), the Respondent was no longer obliged to provide the Applicant "suitable duties". It applied a policy that ASO Level 2 employees are required to perform all the duties of the role and that the Applicant was to be capable to rotate through the various tasks within all sections of the Wash Department. I am satisfied that this was a reasonable policy in deciding how to run its business and no argument has been put that the Respondent was precluded from making such a decision. Rather, the Respondent was faced with an apparent conflict in the medical opinion about whether the Applicant could perform the duties of the role.

[31] As a result of the inconsistency between the medical information and responses of the Applicant's doctors, Mr Sharratt preferred the reports of Dr Ng and Ms Martin. He gave evidence that, having the information of the Applicant's doctors, Allianz, WorkFocus and Dr Ng, he had to "consider all of the information that was put in front of me and make a considered opinion based on all the information." When asked about Dr Kuzmanovski's response, Mr Sharratt said that Dr Kuzmanovski dismissed the WorkFocus report and "failed to comment on the nature of the work that was required" which was the focus of QFCL's concerns. Given the medical and occupational therapist's reports and the fact that the Applicant had sustained a third injury to his lower back whilst performing work in the ASO Level 2 position in the context of the determination from the District Court of NSW of a 26% impairment to the Applicant's lower back, Mr Sharratt determined with Ms Stephens that the Applicant's employment was to be terminated.

[32] The Applicant argued that the Respondent should have preferred the later opinions of the Applicant's treating doctors, Dr Kuzmanovski and Dr Loefler. The Applicant also argued that the Respondent should have found suitable duties for him or that he should have been given a trial to demonstrate his capacity to work. In my view, it was reasonable for the Respondent to have concerns about the Applicant's capacity to do the full duties of an ASO Level 2 in the Wash Department and to resolve the apparent conflict in medical opinion in the manner it did. Dr Loefler's assessment was contained in a single medical certificate and the brief report made available on 31 July, while Dr Kuzmanovski's response on 29 July 2003 was, in my view, difficult to prefer over Dr Ng's reports. It was argumentative and did not address the content of the WorkFocus report to which QFCL sought a response or comment on the nature of the work. In the light of all the reports, the Respondent did not believe that a trial was appropriate to determine whether the Applicant was physically able to perform the work. On the basis of Ms Martin's reports, it determined it had no other role which matched the Applicant's capacity. In the circumstances of this case, it cannot be said that the reason for termination of the Applicant's employment was capricious, fanciful, spiteful or prejudicial. In my view, it was sound, defensible or well founded. That view is not changed with the benefit of the additional evidence available to the Commission from the medical practitioners called in this case. I find that there was a valid reason for the termination related to the capacity of the Applicant.”

[17] An appeal against His Honour’s decision was unsuccessful. The Full Bench concluded:

“[40] In an appeal against the exercise of a discretion the question is whether the decision is materially affected by error. Grounds 2 to 6 each allege that the decision was made in error by reason of the fact that the Commission failed to make a particular finding either about the nature of the appellant's job or about the appellant's ability to perform the job. We find these grounds less than compelling.

[41] The Senior Deputy President had evidence before him regarding the nature of the duties the appellant was expected to perform as well as his capacity to perform them. The Senior Deputy President heard evidence from a number of doctors, much of it conflicting and some of it inconsistent, consultants and company officers. He decided that there was a valid reason for the termination of the appellant's employment based on his incapacity to do the job required of him. He found that the respondent's policy of rotating all of the employees in the wash department through the various tasks in all of the sections of the department was a reasonable one and that the appellant was not able to do all of those tasks. Notwithstanding the submission on appeal, those findings are adequately supported by the evidence to which we were referred by Ms Mckenzie. Nothing put to us in relation to grounds 2 to 6 raises a sufficiently arguable case of error in the decision.”

[18] In the case of Ms V v Ambulance Victoria, Commissioner Smith (as he then was) decided that there was not a valid reason for termination based on capacity. He said:

“[40] I turn firstly to consider 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).

[41] The termination of employment related directly to the capacity of Ms V. Ambulance Victoria reached the conclusion that Ms V could not perform the inherent requirements of her role and that her ongoing condition is unlikely to imminently resolve.

[42] This conclusion was said to be based upon the medical evidence. This is not the state of the medical evidence, as it is less certain than that stated by Ambulance Victoria. Whilst Dr McDonough was concerned about a continuing ‘poor mental state’ his conclusion was that a slow, partial return to some duties may be possible. Dr McDonough was of the view that Ms V was not fit to return to full operational duties without restrictions. Those restrictions related to right knee arthritis and the potential for additional stressful workplace situations overwhelming her. The findings of Associate Professor Mendelson are more positive. He concluded that Ms V should resume duties on a gradual basis following an appropriate period of training and under a period of supervision. He further stated that there was no indication of any diagnosable mental disorder. However Associate Professor Mendelson did express some caution as to whether or not she would be particularly sensitive or vulnerable to the usual stressors working as an ambulance paramedic.

[43] This has been a difficult matter for all concerned. I have no doubt that Ambulance Victoria seeks to make the right decision to protect its employees and the public it serves.

[44] However I have not been persuaded that there was a valid reason for the termination of Ms V.

[45] I do so for these reasons:

• There has not been a clear finding that Ms V cannot perform the inherent requirements of the job by the independent medical practitioners;

• There is no finding by the independent medical practitioners that any concerns they expressed will not imminently resolve;

• Ms V has on several occasions, since her accident, returned to operational work without incident; and

• The reason she was suspended from duty (the use of methadone) and from which she didn’t immediately seek to return, was not finally found by Dr Gijbers (sic) as an inhibiting factor to the normal performance of her duties.”

[19] The decision was upheld on appeal. The Full Bench said:

“[16] Having regard to the reasons of Commissioner Smith in relation to the medical evidence, read as a whole, we are not persuaded that his conclusion that “There has not been a clear finding that Ms V cannot perform the inherent requirements of the job by the independent medical practitioners” can be characterised as the application by him of an erroneous test in determining whether there was a valid reason for the termination.

[17] It is evident from the Commissioner’s reasons, read as a whole, that the issue arising out of the medical evidence was whether the evidence supported a finding that the respondent could not perform the inherent requirements of her role. He assessed the medical evidence, noting that one specialist was concerned about a continuing “poor mental state”, whilst the other found that that there was no indication of any diagnosable mental disorder. He noted that whilst one found that the respondent was not fit to return to full operational duties without restrictions but that a slow, partial return to some duties may be possible, the other concluded that the respondent should resume duties on a gradual basis following an appropriate period of training and under a period of supervision. Having assessed the medical evidence, the Commissioner was not persuaded that it supported a finding that there was a valid reason for the termination for a number of reasons stated and having regard to the processes which the appellant implemented for managing the resumption of normal operational duties of an employee returning to work after an extended absence. The finding challenged by the appellant is one of the conclusions drawn from the evidence by the Commissioner which supported his finding that there was no valid reason for the termination, rather than a separate and determinative test.”

[20] In J Boag and Son Brewing Pty Ltd v Button a Full Bench said:

“[22] When an employer relies upon an employee’s incapacity to perform the inherent requirements of his position or role, it is the substantive position or role of the employee that must be considered and not some modified, restricted duties or temporary alternative position that must be considered.

[23] In X v Commonwealth the High Court was concerned with an allegation of discrimination on the grounds of disability contrary to the Disability Discrimination Act 1992 (Cth) by a soldier who had been dismissed from the army on account of being HIV positive. Section 15(4) of that Act contains an exemption from liability if the person “would be unable to carry out the inherent requirements of the particular employment”. Gummow and Haynes JJ addressed the notion of “inherent” requirements:

“[102] The reference to "inherent" requirements invites attention to what are the characteristic or essential requirements of the employment as opposed to those requirements that might be described as peripheral. …[T]he requirements that are to be considered are the requirements of the particular employment, not the requirements of employment of some identified type or some different employment modified to meet the needs of a disabled employee or applicant for work.”

[24] Although the High Court was concerned with the meaning of the expression “inherent requirements” in a statute, this analysis is equally applicable to a consideration of what constitutes the “inherent requirements” of a position as a valid reason for dismissal. Thus, in Hail Creek Coal Pty Ltd v CFMEU a Full Bench noted:

“[124] The phrase "inherent requirements" has been judicially considered to mean something that is essential to the position. [See generally X v The Commonwealth (1999) 200 CLR 177] To determine what are the inherent requirements of a particular position usually requires an examination of the tasks performed, because it is the capacity to perform those tasks which is an inherent requirement of the particular position. [Qantas Airways Ltd v Christie (1998) 193 CLR 280 at 304 per McHugh J] As her Honour Gaudron J said in Qantas Airways Ltd v Christie: "A practical method of determining whether or not a requirement is an inherent requirement, in the ordinary sense of that expression, is to ask whether the position would be essentially the same if that requirement were dispensed with."’

[25] In Qantas Airways Ltd v Christie Gaudron J, with whom Brennan CJ agreed, noted that the expression “inherent requirements”, in its natural and ordinary meaning “directs attention to the essential features or defining characteristics of the position in question.” Her Honour noted:

“[33] There may be many situations in which the inherent requirements of a particular position are properly identified as the characteristic tasks or skills required for the work done in that position. But that is not always so. In the present case, the position in question is that of captain of B747-400 aircraft flying on Qantas' international routes, a matter as to which there is no real dispute between the parties. To identify the inherent requirements of that position as "the characteristic tasks or skills required in being a pilot", as did Marshall J in the Full Court, is to overlook its international character.

[34] Moreover, the international character of the position occupied by Mr Christie cannot be treated as irrelevant simply because it derives from his contract of employment or from the terms and conditions of the industrial agreements which have, from time to time, governed his employment with Qantas. It is correct to say, as did Gray J in the Full Court, that an inherent requirement is something that is essential to the position. And certainly, an employer cannot create an inherent requirement for the purposes of s 170DF(2) by stipulating for something that is not essential or, even, by stipulating for qualifications or skills which are disproportionately high when related to the work to be done. But if a requirement is, in truth, essential, it is irrelevant that it derives from the terms of the employment contract or from the conditions governing the employment relationship.”’ (footnotes omitted)

[101] The notion of ‘valid reason’ was considered in the oft quoted case in Selvachandran v Peteron Plastics Pty Ltd [1995] 62 IR 371  where it was said that a ‘valid reason’ must be ‘sound, defensible and well founded’ and not ‘fanciful, capricious, spiteful or prejudiced’. The applicant invited me to adopt the later group of adjectives to describe his dismissal.

[102] In my view, the reason for the applicant’s dismissal did not fall under any of these later adjectives and rather, given the circumstances, the reason for his dismissal was an entirely sound basis for the employer to end the employment relationship. It was defensible and well founded. I come to this conclusion based on the following factors:

• The applicant had been absent from work for 14 months;
• The applicant could provide no firm indication, or even a likely date for his return to work;
• The respondent relied on the applicant’s own medical evidence, as recently as 1 June 2016, which indicated the applicant was unfit for any duties, with no indication of a likely RTW date;
• The medical evidence and the applicant’s personal view is that he could not RTW, at all, if he was to be supervised by Ms Ramzan. This was inconsistent with the anti-bullying decision of Commissioner Cambridge which had unequivocally rejected the applicant’s claim that he had been bullied at work, by Ms Ramzan or anyone else.
• The respondent had met all its legal and moral obligations to the applicant under workers’ compensation legislation and in fact, went further than its strict legal obligations required.

When viewed in this way, the Commission is well satisfied that there was a valid reason for the applicant’s dismissal, relating to his capacity. The decision was ‘sound, defensible and well founded’.

[103] There is no dispute that the respondent advised the applicant in writing on 16 June 2016, that his employment was at risk, as he had provided no evidence of being able to perform the inherent requirements of his role. However, prior to making any final decision, he was invited to provide any further material to the Board by COB 1 July 2016.

[104] Accordingly, these sections of the Code were complied with.

[105] The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations. As just mentioned, the applicant was invited to respond to the risk of him being dismissed and given two weeks to do so. On 30 June 2016, he replied to Mr Falzon by reiterating his unfitness for work, and advising of his RTW being in the ‘hands’ of his treating Doctor and counsellor and insisting that the employer comply with its obligations under workers’ compensation legislation. This was a non-responsive, argumentative rejoinder. There is no doubt that the applicant knew and understood what was expected of him in replying to Mr Falzon’s letter of 16 June 2016. He failed to do so. No purpose would be served in offering further training in circumstances where he was unfit for any work.

[106] This section of the Code was complied with.

[107] In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity. There were no face to face discussions between the applicant and the respondent about his possible dismissal, as he remained unfit for duty and had previously left the workplace when Ms Ramzan was present. There was no evidence that the applicant sought to discuss his possible dismissal or have a meeting in which he could have a support person present.

[108] This section of the Code is not relevant.

[109] A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal ... Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements. The respondent completed the Checklist. It is consistent with the other evidence the Commission has received and considered in this case. Numerous other documents corroborate the respondent’s answers to the Checklist’s questions.

[110] This section of the Code was complied with.

[111] For the above reasons, there can be no doubt the applicant’s termination of employment was Code-compliant. It follows that the applicant’s dismissal on 1 July 2016 was not an unfair dismissal and the application must be dismissed. An order to that effect will be issued simultaneously with this decision.

[112] Lastly, the documents attached to the respondent’s F3 indicate the applicant did not receive any payment in lieu of notice, in accordance with s117(3)(a) of the Act. This is also clear from Mr Falzon’s letter of 1 July 2016, when he said ‘we hereby give you notice effective today...’. While neither party raised this issue during the proceeding, if this is correct, Mr Samuel has a prima facie entitlement of four weeks pay, given he was not dismissed for misconduct.

Postscript

[113] On 11 January 2017, prior to the publication of my decision in this matter, the applicant emailed my Chambers requesting that the Commission take into account a letter he had received from Ms Gemma Hawkins, Manager - Customer Care SafeWork dated 9 January 2017. He submitted that this letter was new evidence supportive of his arguments in this case. The applicant relied on two complaints he had raised with SafeWork which were upheld by Ms Hawkins. I will return to the two complaints shortly.

[114] Given this request, I allowed the applicant to put further submissions on the significance of this evidence and directed the respondent to reply by 17 January 2017. I have taken both parties short submissions into account in finalising this matter and make the following observations of Ms Hawkins’ letter.

[115] While the applicant was quick to pounce on any shred of evidence which he believes supports his case, consideration of Ms Hawkins’ letter of 9 January 2017 does not alter my fundamental conclusions in this matter.

[116] As I understand it, the applicant relies on two upheld complaints of the numerous complaints he has made to SafeWork, the insurer and employer concerning the handling of his workers’ compensation matter/s. The first upheld complaint relates to SafeWork itself and the self-evident proposition that it must act within its statutory framework. It is not a complaint about the employer, or the anti-bullying decision of Commissioner Cambridge. The second upheld complaint concerned the respondent allowing Ms Ramzan, on one occasion (11 November 2015), to be in the same room as the applicant, contrary to his medical advice. Plainly, this was not a significant issue for SafeWork, given its only reaction was to reinforce to the respondent its own anti-bullying policy.

[117] These complaints are about the handling of the applicant’s workers’ compensation claims. As the applicant himself acknowledges when he said ‘The FWC is not looking at the same thing as SWNSW’, they are irrelevant to the reason for his dismissal and the basis of his unfair dismissal application; namely, that he was unable to perform the inherent requirements of his job for a period of 14 months and was unable to provide any indication of when he would be able to do so.

[118] In any event, following SafeWork’s inspection of the workplace on 27 June 2016 and a report from Principal Inspector, Ms Alison Bernhardt, dated 20 December, 2016, it would appear that the complaints of the applicant have been resolved to the satisfaction of SafeWork and no further action is contemplated by that agency. In Ms Bernhardt’s letter, she said, inter alia:

‘Safework NSW has concluded its enquiries relating to Mr George Samuel’s allegation concerning workplace bullying and harassment and provides the below advice.

I can confirm that SafeWork has reviewed your organisation’s Bullying Policy and has determined that it is adequate and consistent with legislative requirements…

SafeWork NSW is satisfied with this outcome and no further action will be taken.’

[119] For all the above reasons, as the applicant’s dismissal was Code-compliant, he was not unfairly dismissed, within the meaning of s385 of the Act. Accordingly, his application for a remedy for unfair dismissal must be dismissed. These proceedings are now concluded.

DEPUTY PRESIDENT

Appearances:

Mr G Samuel, for himself.

Mr P G Gambian, Secretary of the ISWCDO on behalf of the respondent.

Hearing details:

11 November 2016

Further submissions:

For the applicant

11 January 2017

For the respondent

16 January 2017

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