[2017] FWC 922


Fair Work Act 2009

s.394—Unfair dismissal

Jia Qi Yan
Spotless Facility Services Pty Ltd T/A Spotless



Application for relief from unfair dismissal. Fitness for work, valid reason re: inherent requirements of the position, procedural fairness.

[1] Ms Jia Qi Yan (the applicant) has made an application seeking a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Yan’s employment was terminated by Spotless Services Australia Ltd (the respondent) on 30 March 2016.

[2] In her originating application Ms Yan sought reinstatement and compensation for loss of wages as the remedy for her claim of unfair dismissal. There is no dispute that Ms Yan is a person protected from unfair dismissal as per s.382 of the Act.

[3] The matter was the subject of a conciliation conference on 27 May 2016; however the parties were unable to reach a resolution. The matter was subsequently referred to me for determination and was initially listed for hearing on 25 July 2016.

[4] The matter was heard on the following days:

[5] Mr Brendan Edghill, Senior Industrial Officer from the Health Services Union NSW (HSU) (for the applicant) and Mr David Bray, NSW Manager – Workplace Relations at the Australian Industry Group (AIG) (for the respondent), were granted leave to appear pursuant to s.596(2)(a) of the Act.


[6] Spotless Services Australia Ltd (Spotless) provides a variety of facility management services to organisations in a variety of industry sectors. The services provided include catering management services.

[7] In January 2016, Spotless commenced providing catering and other services to the Rehabilitation and Disability Support Network operating the Royal Rehab facility at Morrison Road in Ryde, Sydney.

[8] The applicant commenced employment as a Personal Food Assistant for Royal Rehab on 3 March 1998.

[9] On 13 October 2014, the applicant injured her elbow while at work; however she continued to perform her full range of duties until November 2015, when some restrictions were placed on the duties she could perform.

[10] On 30 January 2016, the applicant’s employment was transferred to the respondent. 1 The applicant was engaged as a Catering Assistant – Care Service Assistant Grade 1 (Support Stream). On 1 February 2016, the respondent stood down Ms Yan and directed her to undertake a ‘functionality assessment’ by a physiotherapist.2

[11] Correspondence sent to the applicant by Mr Brett Burns, Integrated Service Contract Manager for Spotless Royal Rehab on 1 February 2016 stated that the physical requirements of a Kitchen Assistant at Royal Rehab “include pushing and pulling of trolleys lifting food containers of up to 10kgs. As we are the new provider we need to assess what your full capabilities are before you can start work.” 3

[12] The result of the functionality assessment was a finding that Ms Yan was unable to perform her pre injury duties.

[13] On Friday 18 March 2016, a letter was sent by Mr Burns to the applicant. The letter, titled “Re: Concerns as to Continued Employment”, stated that the respondent held concerns that the applicant was unable to perform the inherent requirements of her position as a Food Services Assistant. The correspondence referred to the Functional Assessment Report (the Warda Report) 4 completed by physiotherapist John Warda and dated 9 March 2016.5 The Warda Report indicated that the applicant would not be able to return to her pre-injury duties at least for the foreseeable future without a risk of re-aggravation. A copy of the Warda Report was attached to the letter.

[14] The letter indicated that a decision may be made to terminate the applicant’s employment. However prior to this decision being made Spotless sought to meet with the applicant to ascertain her fitness for duty. The letter to Ms Yan stated that a meeting would be held on 22 March 2016 in the Spotless contract manager’s office. The letter stated that the applicant should bring any evidence which she may have as to her current medical condition, including any reports from treating medical practitioner(s).

[15] On 22 March 2016, the applicant attended the meeting with Mr Burns. The applicant was accompanied by her son. The applicant’s claim involves what was said at this meeting, with both parties expressing contrary understandings of the context of the meeting.

[16] Following this meeting the respondent concluded that the applicant was not likely to ever be able to return to her pre-injury duties. On 30 March 2016, the respondent terminated the applicant’s employment. The termination letter provided to the applicant was in the following terms:

[17] The applicant claims her termination was harsh, unjust and unreasonable.

[18] The respondent denies that the applicant was unfairly dismissed.

Applicant’s submissions

[19] On behalf of the applicant, Mr Edghill submitted that the applicant’s case concerned whether Ms Yan was able to perform the inherent requirements of her position as a Food Assistant with Spotless, which she had done since 1988 albeit with the previous employer Royal Rehab.

[20] The Applicant’s case was advanced on three bases.

[21] Firstly, it was put that there was no valid reason for the dismissal to occur as Ms Yan was able to perform the inherent requirements of her position. Ms Yan relies on the medical evidence of her treating doctor and an independent doctor to support the proposition that she was fit to perform her work.

[22] Mr Edghill stated that the evidence of the medical professionals outweigh the contrary evidence of physiotherapist Mr Warda whose opinion Spotless relied upon in making the decision to terminate Ms Yan’s employment.

[23] Secondly, it was put that even with the limited work restrictions placed on Ms Yan in Mr Warda’s Report, she could continue to perform the inherent requirements of her job with minimal adjustment and, that no reliable finding was made that Ms Yan was unable to return to work within a reasonable period of time.

[24] Thirdly, it was argued that Ms Yan was not properly informed prior to her dismissal nor was she provided with a proper opportunity to respond to the reasons for her dismissal. Prior to the meeting to advise of her possible termination Ms Yan had not viewed the Warda Report that Spotless was relying upon. At the meeting Ms Yan was told that the decision to terminate her employment had already been made. Following the meeting, between 22 March and 30 of March 2016, Ms Yan made several attempts to contact the decision maker Mr Burns by telephone however her telephone calls were not returned.

Evidence of Ms Yan

[25] Ms Yan prepared three witness statements in this matter which are dated:

[26] Ms Yan required the assistance of an interpreter as her verbal and written English language skills were limited. Ms Yan advised that she usually relied upon her son, Stephen Tian, to assist when she experienced difficulty understanding correspondence in English. Ms Yan gave oral evidence, assisted by the interpreter, and was subject to cross examination by Mr Bray on behalf of the respondent.

[27] Ms Yan stated she injured herself at work on 13 October 2014, while pushing a trolley loaded with meals across a road to another building known as the Weemala Ward. While pushing open a fire door with her left hand she felt pain in her left elbow. She did not take any time off as a result of the injury. Ms Yan’s doctor advised her to see a physiotherapist but he did not put her off work. She worked as normal until April 2015 when she went on a period of leave. During that time she provided doctor’s certificates to Royal Rehab (who she was employed by at that time) stating that she could work her normal hours and days but could only lift and carry 5kg in weight, and could only push and pull up to 5kg.

[28] On 1 February 2016, Ms Yan was advised by Mr Burns that she needed to undertake a functional assessment, which she attended on 17 February 2016. Ms Yan advised that she did not experience any pain while the functional assessment was being undertaken.

[29] Ms Yan stated that her work duties were not discussed at the assessment. While the physiotherapist determined that she was unable to lift more than 10.6kg, she was not required to lift such an amount as part of her job.

[30] After the assessment she received a phone call from the physiotherapist’s receptionist and when asked whether she was in any pain following the assessment she advised that she was not.

[31] On 10 March 2016, Ms Yan spoke to Mr Burns to ask when she could return to work and he advised this would occur once the Report had been completed. 7

[32] On the morning of 22 March 2016, at around 9:30am, Ms Yan attended a workers’ compensation case conference with Dr Julia Kusuma, her treating doctor, and Ms Patricia Murray, Return to Work & Manual Handling Coordinator from Royal Rehab. An interpreter was also present. A representative from Royal Rehab’s insurer, QBE, was on the telephone. Ms Yan states that during the conference Dr Kusuma provided her with a full medical clearance certifying that she was fit for pre-injury duties. A copy of the certificate of capacity was tendered by Ms Yan. 8 The clearance to return to pre-injury duties signed by Dr Kusuma was dated 22 March 2016.

[33] Ms Yan’s evidence was that she was told by Ms Murray during the conference that she was to have a meeting with Mr Burns at 1.30pm that afternoon. Ms Yan stated that it was the first time she was advised of the meeting and that she was not informed of the subject matter of the meeting. Ms Yan stated that at the end of the workers’ compensation case conference Ms Murray took a copy of the medical clearance certificate to provide to Mr Burns.

[34] On the afternoon of 22 March 2016, a meeting was conducted by Spotless. Ms Yan states that she was not asked any questions at this meeting. Ms Yan disagreed with the version of the meeting as described by Mr Burns who was in attendance on behalf of Spotless. In particular Ms Yan denies that she was asked at the meeting whether she could produce any medical evidence that she could perform her job. Ms Yan states that she told Mr Burns that she had attended a doctor’s appointment in the morning and had a medical certificate. 9

[35] Ms Yan initially stated that there was no discussion regarding alternative positions that she may be able to work in. 10 She stated that, following the meeting, she telephoned Mr Burns on a number of occasions but her calls were not returned. An example of this occurred on 29 February 2016 when Ms Yan left a voicemail message requesting Mr Burns to call her back.

[36] Ms Yan advised that her job required her to take food to a residential building, the Weemala Ward, and to return with the dirty dishes. She was required to push a trolley that weighed more than 25kg. She also had to clear away dishes in the dining room. 11

[37] Due to her injured elbow she had no work capacity between 26 August 2015 and 6 October 2015 and returned to work in early November 2016.

[38] Ms Yan stated that Mr Warda did not ask at any stage during the functional assessment what her actual duties were as a Catering Assistant. 12

[39] In cross-examination Ms Yan had difficulty remembering a number of events and was slow to respond to what appeared to be straight forward questions. Ms Yan advised that she had travelled to China in 2016 for a period of approximately two weeks but could not recall exactly when it had occurred. 13 When directed to telephone calls made to Centrelink and other government bodies Ms Yan could not recall having made any phone calls to these bodies and proffered that her son was also living in her house.14

[40] Ms Yan acknowledged that she was only doing a very small part of her job in November 2015. Ms Yan’s certificate of capacity from Dr Kusuma dated 16 March 2016, stated she was unable to push or pull any weight, perform any duties which require repetitive bending of her elbows, or lift anything over 5kg with both hands.

[41] When taken to the section of the Warda Report where she is reported to have made comments in respect of the degree of pain experienced during the assessment, Ms Yan stated she never made any comments about experiencing pain and she disagreed with the comments in the Report at page 10.

[42] Ms Yan produced extracts of her telephone records to support the proposition that she had attempted to contact Mr Burns before and after the meeting on 22 March 2016.

[43] Ms Yan agreed that when leaving the rooms of Dr Kusuma on the morning of 22 March 2016, she did have a copy of the medical certificate provided by Dr Kusuma with her, although she did not bring the certificate to the meeting with Mr Burns later the same day. She advised Mr Burns that Ms Murray would provide him with a copy. 15

[44] Ms Yan was adamant that during the meeting with Mr Burns he simply read from a piece of paper advising that she would be terminated. Ms Yan could not recall exactly what Mr Burns said only that he read from a letter, which he did not provide a copy of, and advised that she had been terminated. Ms Yan insisted that Mr Burns either did not read to her from the Warda Report or that she could not remember him having done so. Under cross examination Ms Yan said (contrary to her evidence in-chief) that there was a discussion about her performing other jobs as a result of a question asked by her son however there was no offer of any alternative positions. 16

[45] Ms Yan could not recall whether Mr Burns went through any medical reports or said anything about not being able to return to work.

[46] Ms Yan initially advised that she has not worked since 1 February 2016; however on 21 November 2016 Mr Edghill advised that she had secured a casual position for a three month period.

Evidence of Steven Tian

[47] Mr Tian, the applicant’s son, prepared a witness statement 17 dated 25 June 2016, and provided oral evidence and was subject to cross examination by Mr Bray.

[48] Mr Tian attended the meeting with his mother at her request on 22 March 2016. Mr Burns and Ms Michaela Fackrell were also in attendance. Mr Tian recalled that his mother went to an appointment with her doctor that morning and at lunch time asked him to attend a meeting with her that afternoon. Mr Tian was unable to confirm in detail what was said at that meeting, stating that it was a long time ago, and difficult to remember.

[49] In Mr Tian’s recollection, the meeting commenced with Mr Burns reading from a letter and informing Ms Yan that because of her inability to perform the requirements of the job, her employment was being terminated.

[50] Mr Tian could not say if the Warda Report was provided to Ms Yan, or if Mr Burns asked Ms Yan if she could provide any evidence that she was able to perform her job.

[51] Mr Tian refuted that Mr Burns asked Ms Yan if she believed she could do her job, but stated that Ms Yan informed Mr Burns that she was in possession of a medical certificate attesting that she was fit to work. 18

[52] Mr Tian stated that he asked whether there were any other roles in the business that Ms Yan could perform which would not require Ms Yan to move her elbow. Mr Tian refuted that Mr Burns raised the matter concerning alternative employment. Mr Tian stated that when he asked the question Mr Burns said there were no alternative opportunities for Ms Yan. Much of Mr Tian’s evidence is encapsulated at PN 1206:

[53] Under cross examination Mr Tian was not swayed from his description of what occurred.

Respondent’s submissions

[54] The respondent submitted that Ms Yan’s termination was due to her inability to perform the inherent requirements of her position. The respondent tendered the Work Capacity Assessment Report dated 9 March 2016, from physiotherapist, Mr Warda.

[55] Mr Bray, on behalf of the respondent, submitted that there were a number of difficulties in this case as the Royal Rehab Centre and the respondent are two different employers.

[56] Due to privacy concerns, this resulted in an inability to fully share information regarding the applicant. This contributed to the respondent not being aware of the medical clearance provided by Dr Kusuma on 22 March 2016. It was, in the respondent’s submission, an unfortunate coincidence that Ms Yan’s meeting with her medical practitioner and her employer were held on the same day.

[57] It was submitted that the manager responsible for the client site, Mr Burns, wrote to the applicant regarding the Warda Report identifying the opinion that she was unlikely to ever return to her pre-injury duties and providing her with the opportunity to provide any contrary medical opinion. At the meeting held on 22 March 2016, the respondent contends the applicant provided no contrary medical evidence and Mr Burns concluded that the applicant was not likely to ever return to her pre-injury position and that there were no other positions into which the applicant could move within Spotless. The respondent states that this position was accepted by Ms Yan at the 22 March 2016 meeting.

[58] Spotless state that it was unknown to them that the workers’ compensation insurer for the client was conducting its own medical review. They state that review, which led to the applicant’s treating doctor providing a full clearance to return to work, was never brought to the attention of the respondent.

[59] The respondent called two witnesses, Mr Burns and Ms Fackrell who was present as a witness to the meeting on 22 March 2016. No witness evidence of any medical practitioner was presented behalf of the respondent.

Evidence of Mr Brett Burns

[60] Mr Burns is the Integrated Services Contract Manager for Spotless Services Australia, managing the Royal Rehab contract. There were 16 employees, including the applicant, who worked in the kitchen and who transferred from Royal Rehab to Spotless in January 2016. The applicant was the only employee with an existing workers’ compensation claim, which was the reason that a functional assessment was organised by the Spotless Human Resources Department.

[61] On 18 March 2016, Mr Burns sent a copy of the Warda Report and a meeting invitation for 22 March 2016 to Ms Yan by express post. Mr Burns stated that at the 22 March meeting Ms Yan advised that she had received the correspondence. He went through his 18 March letter and the Warda Report. He advised Ms Yan that there were no other suitable jobs for her to perform.

[62] While not contained in Mr Burns’ witness statement, in cross examination he stated that Ms Yan advised she had been to see her doctor that morning. Mr Burns stated that he did not ask Ms Yan anything about her medical appointment that morning. 19 Mr Burns stated that there was a lot of translation occurring between Ms Yan and her son and that Ms Yan did not actually say much during the meeting, although he recalled her conceding she could not perform her job.

[63] At the conclusion of the meeting he advised Ms Yan that she could contact him at any time.

[64] Mr Burns stated that he did not talk to Ms Murray following the 22 March meeting although he knew that Ms Yan had a meeting with Ms Murray earlier that day.

[65] Mr Burns concluded, after speaking with his Manager and Human Resources, that the applicant was not likely to ever be able to return to her pre-injury duties and it was agreed that Ms Yan’s employment should be terminated.

Evidence of Michaela Fackrell

[66] Ms Fackrell was employed by the respondent as a Contract Administrator from 20 January 2016 to 6 May 2016. Ms Fackrell was asked by Mr Burns to be present as a witness at the meeting on 22 March 2016.

[67] Ms Fackrell prepared a witness statement dated 18 July 2016. 20 She gave oral evidence and was subject to cross examination by Mr Edghill. Ms Fackrell stated that she understood the 22 March meeting was to discuss the applicant’s on-going inability to do her job as a catering assistant. She made no contribution to the discussions. Ms Fackrell understood that Mr Burns went through a letter and a medical Report and that Ms Yan appeared to accept what was contained in the Report. Ms Fackrell recalled that Mr Burns did most of the talking at the meeting. The parties concluded that there was no other suitable work for her, and Ms Yan did not suggest that she was fit to return to position.

[68] While Ms Fackrell stated she had some issues with her memory due to an illness, I do not accept, as put by Mr Edghill, that Ms Fackrell’s evidence was discredited during cross examination. That fact that she could only remember parts of a meeting that occurred five months earlier is unsurprising. There was nothing in the manner in which Ms Fackrell gave her evidence that would lead to a conclusion other than she was relaying to the best of her ability what she could recall.

Ms Patricia Murray

[69] Ms Murray was the Return to Work & Manual Handling Coordinator for Royal Rehab. Ms Murray was aware that Ms Yan had a full medical clearance on 22 March 2016, as she took a copy of the medical clearance. Ms Murray was not called by the respondent to give evidence on the basis that she was no longer an employee of the Royal Rehab Centre and her new contact details could not be ascertained. Mr Bray stated that Ms Murray had been uncooperative in providing any further assistance with the case other than her initial witness statement. 21 However, by consent of the parties, the witness statement of Ms Murray22 was admitted with the weight given to its contents to be determined by the Commission.

[70] Much of Ms Yan’s evidence was uncontested. Where it was contested with respect to the witness statement of Ms Murray, I accept Ms Yan’s evidence as Ms Murray did not make herself available to provide her evidence under oath and be subject to cross examination.


[71] This matter involves the termination of Ms Yan who had been employed on a long term basis with Royal Rehab since March 1998, until the respondent took over catering services at Royal Rehab in January 2016, at which time the applicant’s employment was transferred to Spotless. Subsequently, the respondent stood Ms Yan down from her duties to enable a work capacity assessment to be undertaken. The result was a finding that Ms Yan was unable to perform the inherent requirements of her position.

[72] The evidence before the Commission resulted in a number of events where conflicting statements were made by witnesses for each party.

[73] Mr Burns was adamant that, in addition to posting the Warda Report by express post on Friday 18 March 2016 (which he alleges Ms Yan stated she had received), he also provided Ms Yan with a copy at the meeting on Tuesday 22 March 2016. 23 This last assertion was not contained in Mr Burns’ witness statement but adduced in cross examination.24

[74] Ms Yan however, alleged that she had not received a copy of the Warda Report until she returned home on the afternoon of 22 March 2016. Ms Yan’s position was that she was not provided with a copy by Mr Burns at the 22 March meeting, but that Mr Burns read aloud a letter advising of her termination of employment. This was confirmed in the evidence of her son Mr Tian who was in attendance at the 22 March meeting.

[75] Mr Burns states that at the 22 March meeting Ms Yan made no reference to having seen Dr Kusuma earlier that morning or that she had been given a full medical clearance to return to her pre-injury duties. Ms Yan’s evidence was that she advised Mr Burns that she had received a medical clearance that morning, but Mr Burns was not interested, stating that ‘the decision has been made’. Mr Tian’s evidence confirmed the position put by his mother.

[76] Ms Fackrell, who was present at the meeting as an observer, gave evidence that Ms Yan did not advise that she had received a medical clearance earlier that day.

[77] This obvious and serious conflict in the evidence, while difficult to reconcile, is not in my view essential to determine one way or the other.


[78] The phrase ‘harsh, unreasonable or unjust’ was examined in the High Court in Byrne & Frew v Australian Airlines Ltd (‘Byrne’), 25 where McHugh and Gummow JJ ascribed an industrial meaning to each of the words in the phrase as follows:

[79] Section 387 of the Act lists a number of factors that the Commission must take into account in determining whether a dismissal was harsh, unjust, or unreasonable. I will consider these factors separately; the first being whether there was a valid reason for the dismissal based on the person's capacity or conduct.

(a) Valid reason

[80] In order for a reason for termination to be a “valid reason” within the meaning of the Act, the reason must be sound, defensible, or well founded; and a reason which is capricious, fanciful, spiteful, or prejudiced, is unlikely to be a valid reason.26

[81] Determining whether a reason is valid requires an objective analysis of the facts. It is not the role of the Commission to substitute its own view for that of the employer, but to assess whether the employer had a valid reason.

[82] As the Full Bench held in Department of Social Security v Uink27

[83] It is generally the case that a valid reason for dismissal exists where an employee is unable to perform the inherent requirements of their position. In Michael Smith v Capral Aluminium,28 Lawler VP cited a number of authorities and summarised these in the following manner:

[84] In Smith and Kimball v Moore Paragon Australia Ltd, 30 a Full Bench of the Australian Industrial Relations Commission said:

[85] In J Boag and Son Brewing Pty Ltd v Allan John Button, 31 a Full Bench of Fair Work Australia said at paras [22] and [29]:

[86] Ongoing incapacity to perform the inherent requirements of an employee’s job may be a ‘valid’ reason for the termination of the employee’s employment. In this case, the incapacity to fulfil the inherent requirement of the position of Catering Assistant is said by the respondent to arise due to the applicant’s incapacity to perform the inherent requirements of the position.

[87] A crucial matter for determination is whether the medical evidence available to the employer establishes that there was a valid reason for the applicant’s termination of employment.

[88] The Commission’s role in establishing whether a valid reason exists for the termination of an employee is not to simply consider whether the employer had reasonable grounds to terminate. It is not sufficient that the employer believed, based on the medical evidence before it, that it had a valid reason for the dismissal. 32 The Commission must itself be satisfied that there is a valid reason for the dismissal based on the evidence that is before the Commission.33

[89] The Warda Report concludes that Ms Yan’s ability to work is subject to some limitations.

[90] The Report concludes that Ms Yan would be able to work within the following capabilities:

[91] With respect to limitations, the Report stated that Ms Yan’s physical limitations include the following:

[92] Under the heading Recommendations the Report states that Mr Warda did not believe Ms Yan would be able to complete full duties in her pre-injury role without risk of further aggravation.

[93] Correspondence then sent to Ms Yan on 18 March 2016, stated that the employer cannot continue to accommodate Ms Yan’s medical condition having regard to the risks it poses to Ms Yan and the employer. To avoid being terminated the correspondence stated that the employer would need to be satisfied that Ms Yan was able to carry out the inherent requirements of her position and that no reasonable accommodation could be made having regard to her work limitations.

Inherent job requirements

[94] What is missing from this advice to Ms Yan is any identification of the inherent requirements of Ms Yan’s position and what, if any, accommodation could or could not be made to allow Ms Yan to perform the inherent requirements of her position having regard to her physical limitations identified in the Warda Report.

[95] As was stated by a Full Bench in Lion Dairy and Drinks Milk Limited v Peter Norman (Lion Dairy)  34:

[96] In Hail Creek Coal Pty Ltd v CFMEU  35 a Full Bench noted:

[97] In Airflite Pty Ltd v Goyal, 36 an appeal before the Western Australian Supreme Court dealing with s.66Q(1) of the Equal Opportunity Act 1984 (WA), Pullin J observed at paragraph 15:

[98] With respect to the inherent job requirements there has not been a clear finding by Mr Warda that Ms Yan cannot perform the inherent requirements of her position. The Warda Report does not address the inherent requirements of the position and requirements of the position are not referred to in the Warda Report.

[99] With respect to the lifting restrictions placed on Ms Yan by Mr Warda, being that she could not lift more than 10.6kgs and carry more than 9.1kgs, there is no identifiable duty that Ms Yan is required to perform where this limitation results in Ms Yan not being able to perform a particular task. This was acknowledged by Mr Burns under cross-examination. 37

[100] Mr Warda’s Report of itself does not support any proposition that Ms Yan cannot fulfil the inherent requirements of her role.

[101] The respondent did not call Mr Warda to give evidence in defence of the unfair dismissal application.

[102] Even accepting the Warda Report as the most current medical evidence available to the respondent, there is no evidence that the work restrictions identified by the Warda Report prevent Ms Yan from completing the inherent requirements of her position or even if they do, that some minor adjustment to her duties could not reasonably be accommodated by the employer. There was no evidence Mr Warda had considered the inherent requirements of Ms Yan’s position thus allowing the employer to conclude that Ms Yan could not undertake the inherent requirements of her position.

[103] I am unable to conclude that a valid reason existed for Ms Yan’s termination of employment based on her not being able to undertake the inherent requirements of her position as this evidence was not put before the Commission. Neither Mr Warda nor Ms Murray appeared in the proceedings.

[104] Having found a valid reason does not exist under s.387(a) of the Act does not alleviate the necessity to complete the exercise the Commission is required to undertake in determining whether a dismissal is harsh, unjust, or unreasonable. Further, a failure to consider the balance of the criteria under s.387 or to concentrate solely on whether a valid reason exists would be an erroneous application of s.387 as described by Cowdroy J in Coal v Allied Mining Services Pty Ltd v Lawler.38

(b) and (c) Was the person notified of that reason and given an opportunity to respond to any reason related to the capacity or conduct of the person?

[105] In considering whether the applicant was notified of the reason for her termination, it is clear that on 22 March 2016, Ms Yan was told either that she was dismissed or about to be dismissed. I accept Ms Yan’s evidence that she did not receive the respondent’s letter dated 18 March advising her of the 22 March meeting until after the meeting had been conducted due to the sending of the letter on a Friday and the meeting being held the following Tuesday.

[106] Ms Yan’s dismissal was advised of in writing and effective some six days later on 30 March 2016.

Procedural fairness

[107] The applicant argues that in effecting the termination, Spotless did not apply procedural fairness.

[108] In the High Court decision of Byrne and Frew v Australian Airlines Pty Ltd,39 McHugh and Gummow JJ state:

[109] The above is to be considered in the light of what was also said by the Western Australian Industrial Appeal Court in the Shire of Esperance v Mouritz, 40 which stated in regard to the procedural fairness of a dismissal:

[110] Ms Yan’s evidence was that she attended the 22 March meeting because she was advised earlier that day by Ms Murray of the meeting. Ms Yan was adamant that she did not receive any correspondence advising her of the meeting. Mr Burns conceded that having only sent the letter advising of the meeting on the Friday prior to the Tuesday meeting, despite being sent by express post, it may not have given Ms Yan enough time to have considered her response. Mr Burns was not in position to know whether the letter was actually delivered to Ms Yan prior to the afternoon of 22 March. Ms Yan stated she did not see the letter until she returned home that afternoon. Having heard the evidence of Ms Yan and her son, I accept that Ms Yan did not receive the correspondence regarding the meeting until she returned home after the meeting on the afternoon of 22 March. She was therefore placed at a distinct disadvantage due to not knowing what the meeting was about and hearing for the first time Mr Warda’s conclusions at the meeting.

[111] Ms Yan’s evidence was that she was advised that her employment was to be terminated at the 22 March meeting. This was corroborated by her son who also attended the meeting. Whether Mr Burns actually told Ms Yan that her employment was terminated or not, it is clear that this is the understanding that Ms Yan had when the meeting finished. This is evidenced by her correspondence to Ms Murray that evening which stated:

[112] Ms Murray did not respond to this email until 31 March, the day after Ms Yan’s termination. Ms Murray’s response simply stated that her situation had been discussed with QBE who advised that she should contact Centrelink to discuss her entitlements and/or job seeking opportunities.

[113] On 22 March 2016, the medical evidence in existence lifted any restrictions previously imposed on Ms Yan’s working capacity and provided a full clearance for Ms Yan to carry out her pre-injury duties. The respondent argues that it was unaware of this evidence and, although Ms Murray was aware of this, it was not passed on to the respondent by Ms Murray.

[114] The evidence in this matter demonstrated that Ms Yan’s attempts to communicate with Mr Burns on a number of occasions via telephone were unsuccessful due to Mr Burns’ failure to return her calls. The telephone calls made after the 22 March 2016 meeting and before the 30 March termination are relevant to whether a genuine opportunity to provide any medical evidence demonstrating that Ms Yan was fit for her full duties was actually provided.

[115] Mr Burns’ witness statement at [33] states that at the end of the 22 March meeting he stated to Ms Yan:

[116] Mr Burns’ witness statement states that since the 22 March meeting he did not hear from Ms Yan. Following receipt of this statement Ms Yan was able to provide phone records that demonstrated that she had in fact made a number of telephone calls to Mr Burns’ office number and mobile number. It is Ms Yan’s evidence that she left a number of voicemail messages and on each occasion the call was not returned. 41 There were four telephone calls made after 22 March, which went unanswered.42 Ms Yan’s evidence was that she wished to discuss with Mr Burns her ability to return to work.

[117] Mr Burns’ acknowledged that, contrary to his witness statement, 43 Ms Yan made four telephone calls to his direct line or mobile which he did not answer and the length of the calls indicated that at least a message had been left for three of the calls. When asked why he did not call Ms Yan back, his response was that he probably deleted the messages. Mr Burns was unable to say why he did not return Ms Yan’s phone calls, particularly the one made on 24 March two days after the meeting where he had asked Ms Yan to contact him if she wanted to speak to him further.44

[118] The irresistible inference to be drawn from the evidence is that the respondent, on receipt of the Warda Report, determined that Ms Yan’s employment should be terminated and despite the correspondence between the parties and the meeting on 22 March, that view was not going to change. Simply going through the motions of giving an employee an opportunity to deal with the issues relating to the applicant’s fitness for work, when in substance a firm decision to terminate had already been made, does not constitute procedural fairness. 45

[119] It is hardly an example of procedural fairness or natural justice to invite an employee to contact the employer prior to making a decision to terminate, and on receipt of that contact not answer the telephone calls made to the decision-maker’s direct numbers nor respond to any messages left and provide no answer as to why return calls were not made. At the same time, prior to being made aware of telephone records that Ms Yan held, Mr Burns’ evidence was that no such contact had been made.

[120] Having found that the applicant was not informed of the 22 March meeting in writing and thus not having had an opportunity to review the Warda Report prior to the meeting, Ms Yan was denied procedural fairness which seriously prejudiced the outcome of the meeting.

[121] The evidence demonstrated that Ms Yan was in possession of a complete work clearance from a medical practitioner on 22 March 2016. That clearance was provided to her by her doctor and a copy provided to her Return to Work Coordinator Ms Murray, who declined to make herself available to give evidence.

[122] A meeting was held on 22 March where the employer advised Ms Yan that they were considering terminating her employment and advising Ms Yan to contact the employer should she wish to. The opportunity for the employee to contact the employer prior to the decision to terminate being taken was fictional, as the employer’s representative, Mr Burns, without justification failed to make himself available to consider any further representation from Ms Yan, despite her attempts to contact him. The denial of the opportunity to respond to the employer’s proposed course of action makes the employer’s decision unreasonable.

[123] These reasons demonstrate that the decision to terminate Ms Yan’s employment was unfair based on the failure to provide Ms Yan a genuine opportunity to refute the respondent’s conclusion that she was unfit to perform the inherent requirements of her position.

(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

[124] Ms Yan attended the 22 March meeting with her son who provided translation services.

(e) If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal.

[125] Ms Yan’s termination of employment was not related to her work performance.

(f and) (g) 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 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.

[126] Spotless stated that they employ 28,278 employees in the Spotless Group. There was no suggestion that a lack of human resource management impacted on any deficiencies in the decision to terminate. Mr Burns stated that he acted on the advice of the respondent’s Human Resources Department. Albeit that Human Resources was located in Melbourne the procedure followed in effecting the dismissal was not impacted upon due to the size of the employer.

(h) Any other matters that FWC considers relevant

[127] No other matters have been considered.

[128] On the basis of my conclusions in this matter, Ms Yan’s application is upheld with a finding that her employment was terminated unfairly based on it being harsh, unjust, and unreasonable.


[129] The principal remedy for a finding of unfair dismissal is reinstatement; 46 compensation alone is not to be awarded unless the Commission is satisfied that reinstatement is inappropriate. There was little evidence put forward by the respondent as to why Ms Yan could not return to her position. Mr Burns gave no evidence satisfying why Ms Yan could not return to work. I am not satisfied that the employment relationship has broken down to the extent that it cannot be reinstated. Trust and confidence issues were in my view appropriately not raised by the respondent.

[130] I am satisfied that the working relationship between Ms Yan and Spotless is sound enough to allow Ms Yan to be reinstated. This is despite the fact that Spotless were of the view that a valid reason existed Ms Yan’s termination.

[131] I accept the submission from Mr Bray that the applicant’s evidence in respect of finding alternate employment since her termination was less than impressive. The only evidence provided by Ms Yan about efforts to find work was adduced in cross examination when she stated she tried to ring a company but couldn’t remember their name 47 and she had sought employment at some Chinese nursing homes.

[132] During the hearing Mr Edghill advised the Commission that the applicant had secured a three month casual job, however no detail of any income earned was provided. 48

[133] I will order that Ms Yan be reinstated pursuant to s.391 of the Act to the position she was employed in immediately prior to her dismissal within seven days of the date of the Order.

[134] Ms Yan also seeks an order for lost wages. Section 391(3) of the Act allows the Commission to make such an order where it considers it appropriate to do so and s.391(4) requires the Commission to take into account the amount of remuneration earned since the dismissal and the amount of any remuneration likely to be earned during the period of making the order for reinstatement and the actual reinstatement.

[135] Section 391(3) provides that an order in respect of lost remuneration ‘may’ be made if the Commission ‘considers it appropriate to do so’ thus it is a discretionary exercise to be undertaken by the Commission.

[136] A considerable period of time has elapsed since Ms Yan’s termination, however I do not consider it appropriate to award Ms Yan an amount for the total remuneration lost. Ms Yan was paid five weeks pay in lieu of notice and on her own evidence made limited attempts to find alternate work. Ms Yan had obtained at the beginning of November 2016, a three month casual job. On the basis that Ms Yan’s efforts to find alternate work were minimal I will order that Ms Yan be awarded the equivalent of twelve weeks’ wages less tax.

[137] The applicant’s claim that she was unfairly dismissed is upheld. An Order for reinstatement with continuity of service together with an amount of twelve weeks’ salary less tax will issue. The reinstatement and order for lost salary will come into effect seven days from the date of the Order.

al of the Fair Work Commission with member's signature



Mr Edghill of the HSU on behalf of Ms Yan

Mr Bray Ai Group on behalf of Spotless Services Australia Ltd

Hearing details


22 August

21 November

7 December

 1   Exhibit B2 Tab A

 2   Exhibit B2 Tab E

 3   Ibid

 4   Exhibit B2 Tab F

 5   The correspondence from Mr Burns to Ms Yan states that the Warda Report is dated 17 February 2016, however the Report is dated 9 March 2016 with the assessment occurring on 17 February

 6   Exhibits A1, A2, A3

 7   Mr Burns did not receive the physiotherapist report dated 9 March 2016 until 16 March 2016

 8   Witness Statement A1 attachment JY 14

 9   Witness Statement A1 at [46]

 10   PN213

 11   Ms Yan's duties as per the Position Description are described on page 2 of the Return to Work Plan to dated 27 November 2014 attachment JY 3 of exhibit A1

 12   PN130-131

 13   PN418 - 423 and PN 1010. See also contradiction at PN241 and PN244

 14   PN757

 15   PN942

 16   PN213

 17   Exhibit A4

 18   PN 1228

 19   PN 1717-1725

 20   Exhibit B1

 21   PN 2406

 22   Exhibit B4

 23   PN 1736

 24   PN 1737

 25   [1995] HCA 24

26 Selvachandran v Petron Plastics Pty Ltd (1995) 62 IR 371 at 373

 27   (1997) 77 IR 244 at 256, See also comments of the Full Bench in J.P. Dundovich v P&O Ports [2002] PR923358 at 75 and Jetstar Airways Pty Limited v Ms Monique Neeteson-Lemkes [2013] FWCFB 9075 at 55

28 [2004] PR944238 (U2003/110)

29 A reference to workers’ compensation

 30   PR942856 [2004] AIRC 57

 31   [2010] FWAFB 4022

 32   See Full Bench decision in Pearljit Singh v Metro T/A Metro Trains Melbourne [2015] FWCFB 6711 at [26]

 33   Lion Dairy and Drinks Milk Limited v Peter Norman [2016] FWCFB 4218 at [80]

 34   [2016] FWCFB 4218 at [25]

 35   (2004) 143 IR 354 at [124]

 36   [2003] WASCA 45

 37   PN 2229

38 [2011] FCAFC 54

39 (1995)185 CLR 411 at 468

 40   71 WAIG 899

 41   PN 357

 42   PN 2049 It is noted that of the three calls made on 29 March one was for 8 seconds only.

 43   Exhibit B2 at [34]

 44   PN 2094-2099

 45   See Sharon Leigh Wadey v the Y.W.C.A. Canberra ACTI 1265 of 95 at p14

 46   See Explanatory Memorandum at item 1555

 47   PN 998

 48   PN 1552, PN 2783

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