| [2019] FWC 4947 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Chris Ingall
v
Virgin Australia Airlines Pty Ltd T/A Virgin Australia
(U2017/775)
DEPUTY PRESIDENT LAKE |
BRISBANE, 3 SEPTEMBER 2019 |
Application for an unfair dismissal remedy – refusal to attend an Independent Medical Assessment – refusal to follow a lawful and reasonable direction – direction lawful and reasonable – termination was not harsh, unjust or unreasonable – application dismissed.
Introduction
[1] On 25 January 2017 Mr Chris Ingall (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for unfair dismissal by his former employer Virgin Australia Airlines Pty Ltd T/A Virgin Australia (the Respondent) which took effect on 5 January 2017.
[2] Attempts were made at conciliating the matter. It was unable to be resolved. Consequently the matter was listed for hearing.
[3] There were a number of requests for extensions of time to file material made by the Applicant on medical grounds in 2017 and an extension was granted by Deputy President Clancy around that time. Deputy President Clancy considered the circumstances, having regard to not placing the Applicant under undue pressure where there were questions regarding the Applicant’s medical capacity and fitness to participate in the arbitration process. Deputy President Clancy determined that no further directions be issued and no hearing date set until the Applicant’s capacity to prepare for and participate in a hearing was appropriately confirmed.
[4] The application was subsequently referred to me on 17 May 2019 for determination and the matter was listed for hearing on 3, 4 and 5 June 2019 before me in Brisbane after the Applicant’s circumstances had improved.
[5] Prior to the matter being allocated to me, the Applicant had filed written submission in the Commission on 15 April 2019. The Respondent filed written submissions in the Commission on 22 May 2019, shortly after the matter was allocated to me.
[6] There are no jurisdictional issues for me to determine. I am satisfied that Mr Ingall is a person protected from unfair dismissal pursuant to s.382 of the Act. Mr Ingall’s application was made within the 21-day statutory time limit.
[7] The Commission granted permission for the parties to be represented pursuant to s.596 of the Act being satisfied that legal representation would enable the matter to be dealt with more efficiently taking into account the complexity of the matter (pursuant to s.596(2)(a)) of the Act). At the hearing the Applicant was represented by Mr T A Spence of Counsel, instructed by Saines Legal, while Mr G Fredericks of Counsel represented the Respondent.
[8] For the Applicant, evidence by way of witness statements was received from Mr Chris Ingall on his own behalf, Dr Melquiadez Pulongbarit DeCastro, the Applicant’s General Practitioner, and Ms Brooke Fletcher, Administrative Officer at Saines Legal.
[9] Mr Fredericks called upon the following witnesses to give evidence for the Respondent and each filed a witness statement in this proceeding:
• Mr David Edward Wilkinson, Security Operations Specialist, Virgin Australia Airlines Pty Ltd;
• Mr Yin Yap, Information Security Analyst, Virgin Australia Airlines Pty Ltd;
• Vivienne Robinson, People Partner, Virgin Australia Airlines Pty Ltd; and
• David Leslie Shuker, Manager, Regional and International Airport, Virgin Australia Airlines Pty Ltd.
[10] In advance of the hearing the parties had filed submissions, witness statements and other documents. After the conclusion of the hearing the parties were given an opportunity to provide oral closing submissions. These oral closing submissions were heard on 11 July 2019 in Brisbane.
[11] Whilst not all of the submissions and evidence are referred to in this decision, all submissions and evidence have been considered.
[12] The Applicant had been employed by the Respondent as Pit Crew/Ground Crew at Brisbane Airport since on or about 16 April 2012.
[13] The Applicant resides in Tweed Heads South, NSW.
[14] The Applicant commenced personal leave on 1 March 2016 and never returned to work. The Respondent submitted that the Applicant did not at any time, on or after 1 March 2016, provide information in relation to the nature of his medical condition or when he was likely to be able to return to work.
Independent Medical Assessment (IMA) on 7 September 2016
[15] On 15 August 2016, the Respondent sent the Applicant a letter which required him to attend an IMA on 7 September 2016.
[16] The Applicant submitted that he received the letter on 18 August 2016 and the letter required the Applicant to return the attached authority by Monday 22 August 2016 to the Respondent.
[17] On 19 August 2016, the Applicant sent the Respondent a medical certificate which stated the he was ‘unable to attend appointments up to and beyond 7 September’. The Respondent submitted that it received this communication on 29 August 2016.
Request to contact Applicant’s treating medical practitioner
[18] On 6 September 2016, the Respondent sent the Applicant a letter which requested that the Applicant provide consent for the Respondent to contact the Applicant’s treating medical practitioner to seek information about the nature of the Applicant’s illness or injury and his capacity to attend an IMA. The letter requested that the Applicant sign and return a consent form which was enclosed with this letter by 5.00pm on 12 September 2016.
[19] The Applicant submitted that he received the letter dated 6 September 2016 on 13 September 2016 and sent a reply by post on the same day stating that he wished to comply with all reasonable requests but would like to seek legal advice before consenting to the Respondent contacting his treating practitioner.
[20] The Respondent submitted that it received this letter by post on 13 September 2016.
[21] On 20 September 2016, the Respondent sent the Applicant a letter which confirmed that he would be provided with an extension of time until 5.00pm on 29 September 2016 to seek legal advice before signing and returning the consent form. The Applicant confirmed receipt of this letter from the Respondent on 23 September 2016.
[22] On 29 September 2016, the Applicant sent the Respondent a letter stating:
“ … I do not give consent for Virgin Australia to access medical records directly from my personal practitioner. I’m prepared to compromise and will attend for assessment with an independent specialist located on the Gold Coast, preferable the southern end of Gold Coast ...”
[23] The Respondent submitted it received this communication on 5 October 2016.
IMA letter dated 12 October 2016
[24] On 12 October 2016, the Respondent sent the Applicant a letter which provided options of attending an IMA appointment:
• Option 1 at Maudsland Medical Centre in Maudsland on 3 November 2016 at 2.30pm with Dr Eric de Leacy (Pyschiatrist); and
• Option 2 at Bremer Specialist Centre in Booval on 16 November 2016 at 9.00am with Dr Prabal Kar (Psychiatrist).
[25] The Respondent also requested that the Applicant confirm his preferred appointment in writing by email or letter no later than 9.00am on 24 October 2016.
[26] This letter also outlined:
• that the Respondent was providing the Applicant with a final opportunity to attend an IMA;
• reasons why the IMA was necessary, and who would receive the IMA report; and
• that failure to attend that IMA would be considered a failure to comply with a lawful direction, which could result in disciplinary action up to and inclusive of the termination of the Applicant’s employment with the Respondent.
[27] The Applicant submitted that he received the letter on 21 October 2016.
[28] At 2:42pm on 24 October 2016, the Applicant emailed the Respondent to advise that he had posted a letter in response to the Respondent’s letter dated 12 October 2016. The Applicant submitted that postal tracking information indicated the Respondent received the letter on 27 October 2016. The Respondent submitted that it received this on 2 November 2016.
[29] On 25 October 2016, the Respondent submitted that it sent an email to the Applicant stating:
“… we require your response by 9.00am, Monday 24 October 2016 to allow us to confirm with relevant Practitioner…we have not received this in the required timeframe you are required to provide your response and preferred appointment also by email or call me on the number below by 11.00am Wednesday 26 October 2016…please ensure that if you choose to respond in writing by post, you make every attempt to respond within required timeframes…”
Direction to attend IMA on 3 November 2016
[30] On 26 October 2016, the Respondent sent a direction to the Applicant by email on the basis of failing to respond within specified timeframes, requiring the Applicant to attend an IMA on 3 November 2016 at Maudsland Medical Centre at 2.30pm with Dr Eric De Leacy (Psychiatrist). The Applicant was required to return an authority letter by 9.00am on 1 November 2016.
[31] The email on 26 October 2016 from the Respondent to the Applicant also stated the following:
“… if you do not attend the assessment, Virgin Australia will consider your non-attendance to be a failure to comply with a lawful direction of Virgin Australia which may result in disciplinary action up to and including termination of your employment. Further, Virgin Australia will be required to assess your ability to perform the role, and determine Virgin Australia’s obligations, based on the information currently available to it…”
[32] This direction was also posted by the Respondent to the Applicant on 1 November 2016. The Respondent submitted that postal tracking information confirmed the Applicant received the letter on 2 November 2016. The Applicant submitted receipt of this direction on 3 November 2016.
[33] On the morning of 3 November 2016, the Respondent sent an email to the Applicant noting the Applicant’s concern that the Doctor is approximately 45 minutes to an hour from the Applicant’s residential address and that the Respondent will reimburse the cost of the Applicant’s transport to and from the appointment to facilitate the Applicant’s attendance.
[34] In the afternoon of 3 November 2016, the Applicant sent an email to the Respondent to advise that he had posted a letter in response to the Respondent’s letter dated 1 November 2016. The email also stated the following:
‘… I would like to reiterate a direction from the Fair Work Commission that all communication be via post which you have continually disregarded…appropriateness of your interaction and others has been raised to the relevant departments with regards to the ‘Application for an order to stop bullying’ to the Fair Work Commission, lodged against yourself. I expect to receive a response from the relevant Departments before any further communication is conducted with yourself and or all mentioned in the ‘Application for an order to stop Bulling’…’
[35] The Applicant’s email on 3 November 2016 was also sent by post to the Respondent. The Respondent submitted that it received this letter on 17 November 2016.
Letter of Allegation dated 9 November 2016
[36] On 9 November 2016, the Respondent sent the Applicant a Letter of Allegation stating, among other things, that: “… Virgin Australia is currently conducting an investigation into your conduct on 3 November 2016…”.
[37] The Respondent alleged in the letter of Allegation tthat the Applicant’s conduct on 3 November 2016 was in breach of Virgin Australia Code of Conduct and Contract of Employment dated 17 April 2012. In particular, the Respondent stated that the Applicant was provided with reasonable management directions to attend an IMA on 15 August 2016, 12 October 2016 and 3 November 2016 and the Applicant did not attend these IMA’s.
[38] The Letter of Allegation required the Applicant to provide a written response by email or post by 12.00pm on 16 November 2016. The Respondent noted that if the Applicant preferred to respond by post that the Applicant is required to ensure the postal response is received by 12.00pm on 16 November 2016.
[39] The Applicant was also invited to attend a meeting at Brisbane Airport Management Office at 1.00pm on 17 November 2016 to provide the Applicant a further opportunity to respond to any concerns raised, including any written response the Applicant wanted to provide.
[40] The Applicant submitted receipt of the Letter of Allegation on 14 November 2016.
[41] On 15 November 2016, the Applicant sent an email to the Respondent to advise that he had posted a letter in response to the Respondent’s letter dated 9 November 2016. The letter had a medical certificate dated 15 November 2016 from the Applicant’s treating practitioner Dr De Castro stating the following:
“… Mr Chris Ingall is unable to attend to all work related duties, appointments, meetings, the workplace etc., in any capacity (no exception) due to a medical illness until such time that he is fit to resume duties and this will be advised.’
[42] The Respondent submitted receipt of this letter on 18 November 2016.
[43] On 16 November 2016, the Respondent sent an email to the Applicant stating the following:
“ … I have received your below email, stating you have posted a response to the Letter of Allegation on 15 November 2016.
…your written response was required by 12.00pm, Wednesday 16 November 2016…you were required to ensure your postal response was received by this time…I note that you have access to email and a computer given your correspondence to date…I request that you also provide this response by email.
The letter also invites you to attend a meeting on Thursday, 17 November 2016, 1.00pm at Brisbane Airport… Given I have not received your posted response, I request that you confirm prior to the scheduled meeting, via email or phone call, if you will be attending.
I remind you, as also stated in the letter, if you do not provide a written response and/or attend the meeting, I will make findings based on the information I have before me …”
Notice to Show Cause by 13 December 2016
[44] On 6 December 2016, the Respondent sent the Applicant a Notice to Show Cause Letter which outlined the findings of the investigation (outlined in the Letter of Allegation) and that Virgin Australia is considering terminating the Applicant’s employment because of the Applicant’s failure to follow a lawful and reasonable direction and because the Applicant is no longer able to perform the inherent requirements of his role.
[45] The letter required the Applicant to show cause as to why his employment should not be terminated by 13 December 2016 by email or by post where the Applicant is required to ensure the postal response is received by 15 December 2016.
[46] The letter also invited the Applicant to attend a meeting at the Respondent’s Brisbane Airport Management Office at 1:00pm on 19 December 2016 and stated that the Applicant was entitled to bring a support person or representative of his choice to this meeting.
[47] The Applicant submitted receipt of the letter on 9 December 2016 and posted a response on 12 December 2016 with a medical certificate dated 12 December 2016 reiterating the previous medical certificate dated 15 November 2016. The Respondent submitted to have never received this email. The Applicant submitted that postal tracking information confirmed the Respondent received the letter on 15 December 2016.
[48] On 14 December 2016, the Applicant sent the Respondent an email to advise he had posted a letter on 12 December 2016 in response to the Respondent’s letter dated 6 December 2016. A subsequent email was sent by the Applicant to the Respondent advising that he would not have continuous access to the internet and will not have knowledge of emails sent by the Respondent.
Notice to Show Cause by 28 December 2016
[49] On 20 December 2016, the Respondent sent a letter by email and by post to the Applicant confirming no receipt of the Applicant’s response dated 12 December 2016.
[50] The Respondent also provided the Applicant a final opportunity to forward the response dated 12 December 2016 by 5:00pm on 28 December 2016. The Applicant submitted receipt of this letter on 23 December 2016.
[51] On 23 December 2016, the Applicant sent a letter to the Respondent in response to the Respondent’s letter dated 20 December 2016. The Applicant’s response to the letter dated 6 December 2016 and a medical certificate dated 12 December 2016 were also attached to this letter. The Respondent submitted receipt of this letter on 30 December 2016.
Termination Letter dated 6 January 2017
[52] On 5 January 2017, the Respondent sent the Applicant a letter by email and post confirming the Applicant’s employment with the Respondent was terminated for:
A. failing to comply with a reasonable and lawful direction to attend an independent medical assessment and this behaviour was in breach of contract of employment and relevant Virgin Australia policies and procedures; and
B. given that the applicant has been absent from work for approximately 10 months, based on the medical information that Virgin Australia has, Virgin Australia considers that the Applicant is unlikely to be able to return to work in the foreseeable future and therefore is no longer able to perform the inherent requirements of his role.
[53] The Applicant submitted that his dismissal was harsh, unjust and unreasonable on the following grounds:
• that the alleged misconduct regarding a failure to attend an Independent Medical Assessment (IMA), while being lawful, was not a reasonable direction. This was due to the proposed location of the IMA and the failure to give appropriate notice to attend as a consequence of delays associated with Australia Post; and
• that the Respondent had no cogent medical evidence to support its decision to terminate his employment on 5 January 2017 on the basis of the Applicant not being able to fulfil the inherent requirements of his role.
Reasonable and lawful direction
[54] The Applicant did not dispute an employer’s right to direct an employee to attend an IMA. Contention arose in regard to the requirement for such a request to be reasonable. The Applicant referred to a passage from Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603 at [69] that stated:
“The question whether it is reasonable for an employer to request an employee to attend a medical examination will always be a question of fact as will the question of what are reasonable terms for the undertaking of the medical examination.”
[55] The Applicant submitted that it was unreasonable for him to attend the proposed IMA as he did not have access to a vehicle and the proposed appointment was for a medical centre located in Booval, an area of Ipswich in Queensland, approximately 46 kilometres from Brisbane Airport, and 4 hours and 30 minutes from the Applicant’s home location (via public transport). The second proposed IMA was for Maudsland Medical Centre which is 2 hours and 45 minutes from the Applicant’s home location (via public transport). According to the Applicant, this was also unreasonable for him to attend.
[56] The Applicant asserted that at no stage did the Respondent make enquires as to whether or not he had access to a vehicle or means of attending this appointment.
[57] The Applicant further submitted that the timeframes provided to respond and attend the IMA’s were not reasonable given his circumstances. These circumstances included the Applicant’s limited access to a computer, smartphone and the internet, with his preferred means of contact being by post. The timeframes provided were considered onerous by the Applicant who claimed to often not receive documents until after a time that a response had been due from the Respondent. The Applicant also asserted that he was not provided with an opportunity to adequately respond to the reasons for his termination.
Medical evidence
[58] The Applicant submitted that the Respondent lacked sufficient medical evidence to reach the conclusion that the Applicant was incapable of fulfilling the inherent requirements of his role and for terminating his employment on this basis without the required evidence. This was asserted on the basis that the Applicant had not attended an IMA and as such the extent or character of his illness was not known by the Respondent.
[59] The Applicant argued that lacking this information, the Respondent was not capable of forming an accurate determination as to the Applicants fitness to work.
Procedural fairness
[60] The Applicant further submitted that he did not receive procedural fairness during the investigation by the Respondent. The Applicant alleged that Mr Wilkinson had already formed a prejudicial opinion of the Applicant based on factors unrelated to his non-attendance of the IMA on 3 November 2016.
[61] The Applicant referenced Mr Wilkinson’s witness statement where Mr Wilkinson had referred to the Applicants ‘pattern of behaviour’ when reaching a determination in his disciplinary process. The Applicant also referenced Mr Shuker stating “hooray” after the Respondent had sent the Show Cause letter to the Applicant. The Applicant suggested that such an expression demonstrated Mr Shuker’s role in the investigation was flawed from its inception due to his prejudicial opinion of the Applicant and could give rise to an apprehension of bias in the investigation process.
Evidence and submissions of the Respondent
[62] The Respondent submitted that the Applicant was dismissed for a valid reason pursuant to s.387(a) of the Act.
[63] The Respondent argued that the Applicant’s failure to comply with a lawful and reasonable direction and his medical incapacity to perform the inherent requirements of the role constituted a valid reason for dismissal.
[64] The Respondent drew reference to Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at [373] where it was noted that a valid reason is one that is “[s]ound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason.” The Respondent argued that its decision to terminate the Applicant was ‘sound, defensible and well founded’.
Failure to comply with a lawful and reasonable direction
[65] It is a well-established legal principle that an employer may give a lawful and reasonable direction, and an employee is obliged to obey the employer’s lawful and reasonable direction, per Australian Telecommunications Commission v Hart (1982) 65 FLR 41.
[66] A failure to follow an employer’s lawful and reasonable direction can constitute a valid reason for dismissal under the Act, as found in Grant v BHP Coal Pty Ltd (No 2) [2015] FCA 1374.
[67] The Respondent submitted that it is reasonable for an employer to direct an employee to obtain a medical report. It was argued that an express term within the employment contract can give rise to this entitlement.
[68] Section 2 of the Applicant’s employment contract states:
“If Virgin Australia has any concerns about your capacity to perform your duties due to illness or injury, or Virgin Australia considers in the circumstances it appropriate to ensure compliance with its workplace health and safety obligations, you must if requested by Virgin Australia:
• Sign an authority authorising Virgin Australia to seek from and/or provide to any treating health care professional, or relevant insurer (including workers compensation and any disability insurer) information about your medical condition or any past medical condition relating to your work;
• Attend and cooperate during an examination by a medical practitioner nominated by Virgin Australia.”
[69] It was further submitted that a direction to obtain a medical report or attend for medical examination is reasonable if there is:
• a genuine indication of need for it. For example, because of the general nature of the medical reports previously provided by the employee’s absence from work;
• a requirement to affirm an employee’s continuing fitness to work; and/or
• a concern about meeting an obligation or duty imposed by applicable occupational health and safety legislation.
[70] An employer’s right to require the provision of a medical report may be accompanied by a right to choose the medical practitioner who will provide the report. Grant v BHP Coal Pty Ltd [2014] FWC 1712.
[71] The Respondent argued that whilst taking personal leave is a workplace right; there is no workplace right to refuse to comply with lawful and reasonable directions while on personal leave. This means that there is no workplace right to refuse to attend an IMA where an employee is lawfully and reasonably directed to do so while on personal leave, per Swanson v Monash Health [2018] FCCA 538.
[72] The Respondent submitted that in the present case, the Applicant had been absent from work for 10 months, and there was no suggestion that reasonable adjustments could be made or that his capacity would change in the foreseeable future. For these reasons it was argued that the direction for the Applicant to attend an IMA was reasonable.
[73] The Respondent submitted that it made lawful and reasonable directions on 15 August 2016, 12 October 2016 and 26 October 2016 for the Applicant to attend IMA’s on 7 September 2016 and 3 November 2016 in order to determine the nature of the Applicant’s medical condition and his ability to return to the workplace in any capacity.
[74] The Respondent has disputed several of the Applicant’s assertions in relation to the unreasonableness of the direction to attend the IMA’s.
[75] The first dispute related to the Applicant’s claim that the Respondent was aware that the Applicant did not have access to a car. This is disputed by the Respondent, along with the claim that the IMA at Maudsland was 2 hours 45 minutes via public transport from the Applicant’s address, despite the Applicant referring to the appointment as only being “45 minutes to an hour away” in his letter to the Respondent dated 24 October 2016.
[76] The second disputed claim related to the Respondent being aware of any social or financial situation that would limit the Applicant’s ability to attend the IMA. The Respondent denies having any such knowledge and, further to this, when the Respondent was made aware of the Applicant’s lack of a car, the Respondent offered to reimburse the Applicant for any travel costs associated with attending the IMA.
[77] It is also disputed that the Applicant indicated that he would only attend an IMA on the southern end of the Gold Coast. In his letter from 29 September 2016 the Applicant merely stated that it would be “preferable” for the IMA to be held on the southern end of the Gold Coast, and did not assert that it was unreasonable to schedule an IMA that was not located on the southern end of the Gold Coast.
[78] The Respondent further disputed that it was made aware of the nature of the Applicant’s illness, or the effect that attending an IMA could have on the Applicant’s wellbeing. The Respondent asserts that the Applicant had in fact offered to attend an IMA in his letter dated 29 October 2016.
Inability to perform the inherent requirements of the role
[79] The Respondent submitted that it possessed sufficient information to make a determination that the Applicant was incapable of fulfilling the inherent requirements of the role. The Applicant had been absent from work for approximately ten months and had provided no indication on a possible return to work date when the Respondent formed the view that the Applicant was no longer able to fulfil the inherent requirements of the role.
[80] The Respondent submitted that an employee has an obligation to provide information to the employer to determine if the employee could undertake the inherent requirements of the role. This is consistent with the Commission’s finding in Columbine v GEO Group Australia Pty Ltd [2014] FWC 6604. In that particular case the Commission found that in the absence of any genuine engagement by the employee, the employer was left in a position where it could not properly assess the employee’s ability to perform the inherent requirements of the position. The Commission went on to find that the employer’s decision to dismiss the employee based on their inability to perform the inherent requirements of the position was reasonable in that particular case.
[81] The Respondent submitted that it made every effort to engage the Applicant to determine the nature of his medical condition and his capacity to return to work over an approximate ten month period. Throughout this extensive process of attempting to gather this information from the Applicant, the Applicant did not provide any evidence to suggest that he was able to return to work or that he would be able to return to work in the foreseeable future.
[82] The Respondent submitted that on this basis it was entitled to conclude that the Applicant was no longer able to perform the inherent requirements of his role.
Was the dismissal unfair?
[83] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
“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.”
[84] There is no dispute that the Applicant was dismissed and that subsections (c) and (d) do not apply.
[85] The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant”
Valid reason for dismissal per s.387(a)
[86] The Commission must consider whether there was a valid reason for the dismissal of the Applicant and it is well established that it need not be the reason given to the Applicant at the time of dismissal.
[87] The Respondent asserted that it had two valid reasons for dismissing the Applicant, being:
a) the Applicant’s failure to follow a reasonable and lawful direction; and
b) the Applicant’s inability to perform the inherent requirement of his employment.
[88] While each of these reasons will be examined separately, it is necessary first to traverse the underlying concepts relating to the question of what constitutes a valid reason for dismissal. In order to be a valid reason, the reason for dismissal must be ‘sound, defensible or well founded’. 1 A reason that is ‘capricious, fanciful, spiteful or prejudiced’ cannot be a valid reason’.2 It is also accepted that a valid reason may relate to either the conduct3 or capacity4 of the employee.
Failure to follow a reasonable and lawful direction
[89] It is generally acknowledged that employees have an obligation to obey lawful and reasonable directions from the employer, and failing to do so may constitute grounds for termination. 5
[90] It is common ground between the parties that the Respondent had the power under the contract of employment to direct the Applicant to attend an IMA. 6 I accept that the directions issued on 15 August 2016, 12 October 2016 and 26 October 2016 were lawful directions. The directions were relevant and essential to the Respondent’s ability to determine whether or not the Applicant would be capable of fulfilling the inherent requirement of his role. The questions for consideration in relation to the direction are:
a) was the direction to attend the IMA reasonable?
b) if it was reasonable, was it a valid reason for dismissal?
[91] The Respondent pointed to the matter of Blackadder v Ramsey Butchering Services Pty Ltd 7 for guidance on the question of the reasonableness of a direction to attend an IMA. That case confirmed the proposition that ‘an employer should, where there is a genuine indication of a need for it…be able to require an employee, on reasonable terms, to attend a medical examination to confirm his or her fitness.8
[92] The Applicant in this matter advanced two submissions as to why he said the direction to attend the IMA was not reasonable, those being the proposed location of the IMA and the failure to give appropriate notice to attend the IMA. 9
[93] In Grant v BHP Coal Pty Ltd 10 requiring an IMA in circumstances where the employee had a lengthy absence from the workplace and provided only generalised medical certificates which provided limited information as to the medical condition was considered a factor in finding a direction to attend an IMA reasonable. There being no evidence that the employer had exhibited any predetermined view of the employee’s state of health or revealed any malevolent intent in directing the employee to attend the IMA and the IMA being scheduled with the appropriate medical practitioner were also considered factors in support of the reasonableness of the direction given in Grant.11
[94] In this matter, it is uncontroversial that the Applicant undertook a period of unpaid sick leave from March 2016 until the termination of his employment on 5 January 2017. During that period, the Applicant provided a number of medical certificates on 19 August 2016, 15 November 2016 and 12 December 2016. These medical certificates provided generic statements as to the Applicant’s incapacity to attend work with little substance as to his condition or the likely period of his absence. Given this, it was reasonable for the Respondent to make enquiries as to the nature of the illness in order to make an accurate assessment as to his ability to perform the inherent requirements of his role. This position is supported by the Respondent’s correspondence to the Applicant on 15 August 2016 stating:
“Given that it is unclear to us when you may be able to return to work, we require you to attend an independent medical assessment to better understand the nature of the injury and/or illness that has prevented you from performing your role, and whether or not your will be fit to attend work in the near future.”
[95] While the underlying basis for requesting the IMA was reasonable, the question arises whether the manner in which the direction was issued, in relation to location and notice, was reasonable.
[96] There was no evidence before the Commission to indicate that the employer had exhibited any predetermined view of the Applicant’s state of health or revealed any malevolent intent in directing the employee to attend the IMA that may form part of the factual matrix in assessing whether the location and notice of the IMA was reasonable.
[97] In response to the Respondent’s request that the Applicant undertake an IMA, the Applicant provided a further non-specific medical certificate indicating that the Applicant could not attend ‘appointments’. In what appeared to be an attempt at compromise, the Respondent then sought (in correspondence of 6 September 2016) permission to obtain information on the Applicant’s health from the Applicant’s medical practitioner who had issued the generic medical certificates. It should be noted that in that correspondence, the Respondent foreshadowed that:
“However, depending on the nature of the information provided…we will reschedule this appointment and provide you with a further direction to attend an independent medical assessment.”
[98] The issue of location as a factor in the Applicant’s attendance at the IMA first arose in his correspondence to the Respondent on 29 September 2016 in which the Applicant refused to consent to information being obtained from the Applicant’s medical practitioner, but otherwise stated that:
“I’m prepared to compromise and will attend for assessment with an independent specialist located on the Gold Coast, preferable the southern end of the Gold Coast.
With respect to date/time of appointments, I request for options or alternative date/time to be provided regarding appointments to accommodate all parties thank you.”
[99] It is uncontroversial to suggest that a direction may be given to an employee which does not accord with their preferences. The question remains whether the direction was reasonable. A direction should not be considered unreasonable solely by reason of being a non-preferred option of the employee.
[100] In this matter, while the exact preferences of the Applicant may not have been complied with, it is clear that the Respondent had sought to accommodate the Applicant’s location by scheduling an appointment on the Gold Coast and offering to reimburse travel costs incurred in attending. The Applicant argued that his impecuniosity and his associated requirement to travel on public transport, which would take more than two hours each way, and his inability to cover the upfront costs to then be reimbursed by the Respondent are factors in finding that the direction was unreasonable. Neither of these factors were communicated to the Respondent in the Applicant’s correspondence of 24 October 2016 (his response to the two proposed IMA’s by the Respondent on 12 October 2016).
[101] The evidence of Ms Robinson was that she could not recall if she had requested for the specialist psychiatrist at the southern end of the Gold Coast when organising the appointment for the Applicant. 12 Mr Wilkinson provided evidence that at the time of arranging the IMA, he understood that the Applicant did have a car.13
[102] In circumstances where the Applicant:
• was provided two choices for the IMA location, one of which was within the area specified by the Applicant, that being ‘on the Gold Coast’ although not being within his preference of the southern end of the Gold Coast; and
• could have got to the appointment within 45 minutes (by driving) from the Applicant’s home location; and
• was offered to be reimbursed for transport costs to get to the appointment; 14
I find that requiring the Applicant to attend an IMA was as proposed, was not unreasonable, by virtue of the location of those appointments.
[103] I now turn to whether the direction was unreasonable by virtue of the notice provided to the Applicant to attend. This matter involved a series of communications between the period of 15 August 2016 and 3 November 2016 by both email and post. The repeated requests to attend an IMA were communicated to the Applicant by the Respondent and should be viewed as a collective attempt at gathering information regarding his medical status and his ability to return to work.
[104] The Respondent identified case law that supported its contention that the Applicant was required to be contactable and communicate with Virgin Australia during this absence 15 and that the Applicant had an implied duty to cooperate with his employer to meet the requirements of his employment16. Further it was submitted that the Applicant was under a contractual duty to cooperate with Virgin Australia in relation to issues concerning his employment and in relation to managing health issues.17
[105] In defence of the ‘only by post’ communication style that the Applicant adopted, the Applicant identified a Direction of Commissioner Simpson of the Fair Work Commission in a previous matter involving the parties which the Applicant submitted only permitted communication by the parties via post. That Direction stated:
“the Commissioner advises chambers will communicate with the parties by both post and email, and directs that the parties communicate with chambers and each other by post, and email where possible.” (emphasis added)
[106] I consider the Applicant’s decision to communicate predominately by post, in circumstances in which email is a reasonable and acceptable form of communication (and arguably preferable in circumstances in which information is required to be conveyed quickly), was not required but rather a choice undertaken by him. The fact that the method of communication used by the Applicant was a choice rather than a result of circumstance or a requirement imposed upon him is supported by the evidence. That evidence was that the Applicant sent nearly 300 emails from his work email address between 1 August 2016 and 5 January 2017. 18 The Respondent’s reliance on the Applicant’s use of email as a valid communication method is supported by the fact that the Applicant corresponded, at times, with the Respondent by email (for example on 21 August 2016) which might reasonably create an inference that the Applicant was using his work email during the period of scheduling the IMA. It is also supported by the fact that the Applicant did not communicate to the Respondent that he intended to communicate by post only. I am also of the view it was a choice given that Commissioner Simpson did not prohibit or restrict the parties from communicating by email in that previous matter, merely stating to communicate by email where possible. Further, I do not accept that Commissioner Simpson’s direction relating to means of communication applied beyond the confines of that matter.
[107] I agree with the proposition advanced by the Respondent, in accordance with the reasons in Laviano v Fair Work Ombudsman 19 that the Applicant unreasonably chose to adopt an impractical method of communications and now seeks to use his ignorance of his employer’s communications “not even as a shield but as a sword, in the present proceedings”’.20
[108] The Applicant’s representative advanced a submission that Laviano could be distinguished from the current matter as it involved a more serious failure to communicate and repeated refusals to follow directions. 21 While the circumstances in Laviano in relation to the inadequate communication by the employee may have been more extreme than the present matter, this does not mean that behaviour on an employee’s part that is less unreasonable, but still unreasonable, will render an employer’s direction unreasonable. Further, while the number of employer directions not complied with in Laviano may have contributed to a finding that the employer had a valid reasons for the dismissal, in relation to s.387(a) of the Act there is no requirement for more than a singular valid reason and that decision should not been seen as imposing some additional requirement/s for the failure to follow a lawful and reasonable direction to attend an IMA to be considered a valid reason for dismissal.
[109] The Applicant argued that there was no attempt by the Respondent to identify if the Applicant was using his emails in the period between 24 October 2016 and 3 November 2016 when the relevant direction was made, that there was no requirement for the Applicant to check his emails when not at work and that as the Applicant did not receive the direction on 26 October 2016 until the same day as the IMA was scheduled, there was insufficient notice for the direction to be reasonable.
[110] As I have stated, the Applicant created a reasonable inference that he was contactable by email by corresponding at times via email and by failing to inform the Respondent of his intention to correspond by post only. While the Applicant may not have considered to be obligated to check his emails regularly while not at work, he did have obligations under his contract of employment to cooperate with Virgin Australia in relation to issues concerning his employment and managing health related concerns. Further, I am inclined to agree with the Respondent’s submission that the Applicant should have been on notice that the Respondent may attempt to contact him in relation to matters of fundamental importance to his ongoing employment and that he therefore should have been actively monitoring potential communication methods, or at least provided notice to the Respondent that he was only going to be communicating by post (even though through his conduct it was clear that he was already communicating with the Respondent by email).
[111] Given that I consider the Applicant’s actions in choosing to correspond in an overly restrictive manner which appears to be inconsistent with his contractual duties, rather than considering whether the direction was unreasonable because of the notice provided in terms of when the Applicant in fact was notified, I intend to examine the issue of unreasonableness in relation to the notice provided from the perspective of the date of the provision of the direction.
[112] The Applicant was initially sent correspondence on 12 October 2016, which identified the appointment on 3 November 2016 as one of two options, and this document was received by the Applicant on 21 October 2016, 13 days prior to the relevant appointment. The Respondent sent the direction only by email on 26 October 2016 to the Applicant to attend the specific appointment on 3 November 2016 on the Gold Coast which is 8 days prior to the appointment. Australia Post records confirm that the 21 October 2016 letter was delivered to the Applicant on 2 November 2019, having being sent only by post 1 November 2016 by the Respondent, however, the Applicant indicated that he did in fact receive this letter on 3 November 2016. While the Applicant may or may not have received the correspondence prior to the appointment, I have determined that the Applicant acted unreasonably in choosing to correspond only by post during this time and by not checking his emails during this relevant period. If the Applicant did check his emails, it would have confirmed the direction was to attend the IMA on 3 November 2016. I have already discussed that it was the Applicant’s choice to communicate only by post during this time and he was under no obligation or requirement to do this. This conduct was entirely self-imposed.
[113] As such, I do not consider that the direction provided by the Respondent to attend the IMA on 3 November 2016 was unreasonable by virtue of the provision of insufficient notice. It was the Applicant’s responsibility to check his emails. In any event, I am unable to say on the evidence that the Applicant did not receive the post version of the 26 October 2016 letter prior to the appointment on 3 November 2016 either on 2 November 2016, or by the Applicant’s own admission, sometime in the morning of 3 November 2016. If the Applicant had received that letter (in the morning), it would have outlined the direction to attend the appointment for 2:30pm that day and that the Respondent had offered to pay for the cost of travel to get to that appointment. The Applicant could still have reasonably attended the appointment.
[114] In relation to the deadlines provided when responses were requested by the Respondent during the process of scheduling the IMA, the Respondent was required only to provide a reasonable and lawful direction and not required to follow any specific procedure to allow the Applicant a response to the proposed direction before it is made.
[115] Given that I have concluded that the direction was reasonable, it is necessary to consider whether the failure to attend an IMA where reasonably directed to do so is a valid reason for dismissal. There is case law to support the fact that the failure to follow a lawful and reasonable direction is a valid reason for dismissal. 22 Having regard to the test as to whether a reason is a valid reason for dismissal articulated in Salvachandran v Peteron Plastics Pty Ltd23 I consider that the failure to attend an IMA in circumstances in which the Applicant had significant time off work and provided little detail about the nature or likely continuation of his condition is a valid reason for dismissal.
Inability to undertake the inherent requirement of the employment
[116] The Respondent advanced the position that there was a lack of information contained in the medical certificates provided by the Applicant, particularly:
a) the specific nature of the injury or illness;
b) the likely length of his absence; or
c) proposals as to adjustments to duties or working environment to allow his return.
[117] In Cole v PQ Australia Ltd T/A PQ Australia 24 it was said that:
“Absent other evidence, there is no reason to conclude that a person is incapable of performing work as a packer whilst suffering from a depressive illness particularly when the employer is aware that the person is receiving treatment for the illness from a medical practitioner.” 25
[118] That matter can be distinguished from the present facts in that the employee in Cole had not had any lengthy or frequent absences and that the employee was stood down at the initiative of the employer. 26
[119] It was contended by the Respondent that it acted reasonably in making a number of attempts to obtain a proper understanding of the Applicant’s alleged illness and accordingly at the date of his dismissal, the understanding that the Respondent had (or could reasonably be expected to have had) based on the information provided by the Applicant himself was that:
a) The Applicant had been absent on sick leave for more than 9 months (most of which was unpaid)
;
b) The nature of the Applicant’s illness was unknown; and
c) The Applicant’s likely return date was unknown.
[120] The Applicant’s conduct in providing medical certificates that evidenced his inability to work but did not provide details as to why, created a reason to conclude he was incapable of performing the inherent requirements of his role for an unidentified period of time. I make this finding based on the Applicant’s own information and taking into account his resistance in obtaining an IMA which would have supported the Applicant if he was in fact able to undertake the inherent requirements of the role (in relation to his capacity) was a sound, defensible and well-founded reason.
[121] In coming to this conclusion, I note that the Respondent made reasonable attempts to obtain further medical evidence to clarify the issue of whether the Applicant was able to perform the inherent requirements of his role and that even as late as the hearing of this matter, the Applicant has still not produced any medical evidence to suggest that he is capable of performing the inherent requirements of the role.
[122] The Act requires that the reason an employee is to be notified of is the valid reason for dismissal. 27 That notification is required to be:
• provided before a decision to terminate is made; 28
• in explicit terms 29; and
• in plain and clear terms. 30
[123] The Applicant was provided with a letter of allegation on 9 November 2016. This letter detailed all of the allegations for which the Applicant was ultimately dismissed.
[124] A further show cause letter was sent to the Applicant on 6 December 2016. This letter reinforced the conduct outlined in the letter of allegation that was the subject of the disciplinary process.
[125] The termination letter was sent to the Applicant on 6 January 2016. This letter reaffirmed the reasons for the dismissal that were the same reasons specified in the letter of allegation and show cause letter.
[126] The Applicant raised a concern that there was a lack of procedural fairness afforded in the investigation and particularly that officers of the Respondent had predetermined the outcome. Although the issue of the requirement to provide procedural fairness under the Enterprise Agreement will be considered below under ‘other relevant matters’, it is necessary to examine here whether the Applicant was notified of the valid reason for dismissal before a decision to terminate was made.
[127] In Crozier v Palazzo Corporation Pty Ltd T/A Noble Park Storage and Transport 31, in relation to the requirement to provide notification of the reason before a decision to terminate is made, it was said that:
“As a matter of logic procedural fairness would require that an employee to be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. [Section 387(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 32
[128] As I have found that the reasons for termination were valid, I do not accept the argument made by the Applicant that ‘given the erroneous basis on which the allegations were made in the…[letter of allegations] of 9 November 2016, it is reasonable to assert that Mr Wilkinson had already formed a prejudicial opinion of Mr Ingall based on factors unrelated to his non-attendance at the IM[A]…’. 33
[129] The fact that a decision to terminate had not yet been made at the time of communicating the valid reason for dismissal to the Applicant is supported by the fact that the Respondent afforded the Applicant additional time to meet the deadlines to respond during the show cause process rather than proceeding to effect a predetermined dismissal.
[130] I am therefore satisfied that the reasons for the dismissal were communicated to the Applicant on these three separate occasions and were communicated before any decision to terminate was made.
[131] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. As with the provision of the reason, the opportunity to respond must be afforded before a decision to terminate is made. 34 This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.35
[132] In Gibson v Bosmac Pty Limited 36 it was said that ‘where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section’.37
[133] The Applicant had argued that he was not provided with an opportunity to respond to the allegations relating to his conduct as he considered the timeframes for responding to be onerous. I do not accept this argument. I find that the Applicant was provided with sufficient timeframes and multiple opportunities to respond to the allegations made against him. On three separate occasions following the Letter of Allegation of 9 November 2016, the Show Cause letter of 6 December 2016 and the letter of 20 December 2016 providing him with an extension of time to respond to the Show Cause letter, the Applicant was provided with opportunities to respond to the allegations made against him. The Applicant was invited to submit a response to the allegations via post, email or telephone and to attend meetings in order to provide him with ‘a further opportunity to outline why your employment should not be terminated and to discuss any written response you provide’ 38. As discussed in relation to valid reason, the difficulties associated with timeframes experienced by the Applicant were the result of his choice to correspond in the manner he did. I note that there is no question, as in relation to the Respondent’s notification of the IMA, as to whether the Applicant did in fact receive the Letter of Allegations and Show Cause Letter.39
[134] For the reasons traversed above, there is no evidence that the Respondent had made a decision to terminate the Applicant’s employment before affording him the opportunity to respond to the allegations made.
[135] The Applicant submitted that, in the context of the alleged procedural unfairness involved in the investigation, the Respondent relied on ‘a pattern of behaviour’ of the Applicant and did not put that to the Applicant to allow him to respond. The evidence relied upon to identify that the Respondent did in fact rely upon a pattern of behaviour was a the following exchange between Mr Spence and Mr Wilkinson during cross-examination that:
“[Clause 52.3 of the Enterprise Agreement] says that he is entitled to procedural fairness or, sorry, in accordance with the principles of natural justice, no final determination will be made? --- Correct.
But you already had a view that this was a stalling tactic, didn’t you?--- I had – that wasn’t the determination, it was a view, correct.
So you didn’t come to this with an unbiased mind, did you?---All matters are considered in final determination, but obviously you look at the pattern of behaviour that was occurring and, to me, that was a reasonable assumption in view of further information and evidence coming to hand” 40
[136] I do not accept that the ‘pattern of behaviour’ which the Respondent may have relied upon in issuing the Letter of Allegation and the Show Cause notice denied the Applicant procedural fairness in any way. If anything, the Applicant’s prior conduct enforced the need for the Respondent to be clear and decisive in their actions. In the past, the Respondent did not follow up or was indifferent to the Applicant’s continued absence from work.
[137] The Letter of Allegation and the Show Cause notice both unequivocally identified the failure to follow the reasonable and lawful direction to attend the IMA on 3 November 2016 as a reason for possible termination and both of those documents particularised the underlying factual matrix including the Applicant’s reticence to engage with the Respondent to arrange for the IMA.
[138] Further, the Applicant alleged that he had not had an opportunity to respond to the past conduct that Mr Shuker considered. The evidence of Mr Shuker in relation to that consideration was:
“In making the decision to show cause Mr Ingall, I considered all information I had at that time. Based on the materials provided, I considered it was reasonable to direct Mr Ingall to attend an IMA…
I also considered Mr Ingall’s medical certificates and assertions that he was unfit to participate in the process. I was aware from my own observations that those reported to me by my leadership team who were dealing with Mr Ingall on a regular basis that during Mr Ingall’s employment he had a history of responding inappropriately and disproportionately to management instruction. This behaviour including acting in an aggressive and argumentative manner towards the leadership team in response to directions provided then subsequently taking personal leave. Given my knowledge of Mr Ingall’s past behaviour and his behaviour during the period in which Mr Wilkinson was trying to have him attend an IMA, I considered it highly possible that he would not attend an IMA or that he would continue to raise concerns about the process in an attempt to delay having to attend and IMA.” 41
[139] It is clear from this evidence, that the purpose of this consideration was for Mr Shuker to decide what procedure to undertake after the investigation had concluded and that the reasons identified were reasons supporting the Show Cause procedure as the correct procedure to deal with the dispute (rather than, for example, issuing a further direction to attend an IMA) but those reasons where not the substantive reasons on which the Show Cause Letter was based.
[140] I am satisfied that the Applicant was aware of the precise nature of his employers concerns about his conduct and that he was provided with sufficient opportunity to respond to the allegations related to his conduct and was in full knowledge that termination of employment was a real possibility.
[141] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[142] The Applicant was not refused to have a support person present at any stage during the disciplinary process.
[143] This criterion is a neutral consideration.
[144] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal.
[145] This factor will not always be relevant 42. In this matter, as the reasons for dismissal were the failure to follow a reasonable and lawful direction and that the Applicant was unable to perform the inherent requirements of his role due to his health, this factor is not relevant and is therefore a neutral consideration although I do note that the Respondent did put the Applicant on notice that failure to attend the IMA would be considered a failure to follow a lawful and reasonable direction which may result in disciplinary action up to and including the termination of the Applicant’s employment.
[146] It is acknowledged that regardless of the size of business involved, the procedures to be followed in dismissing a person cannot be ‘devoid of fairness’. 43
[147] The Respondent is an organisation of considerable size and its size should have a significant, positive impact on the procedures it followed in effecting the termination. It is my view that the procedures followed by the Respondent were satisfactory.
[148] The Respondent has dedicated human resource management specialists and experts. As such, I do not consider that the degree to which the absence of dedicated human resource management specialist or experts would be likely to impact on the procedures followed in dismissing the Applicant is relevant.
[149] Clause 52.3 of the Virgin Australia Ground Crew Agreement 2013 (the EA) requires that ‘the rules of procedural fairness will apply in respect of any such investigation and team members will be entitled to representation throughout the process.’ The Applicant alleged that this procedural fairness was not afforded as a result of bias and a pre-determination of the outcome.
[150] As discussed above, I do not accept that a prior pattern of behaviour of failing to follow reasonable management direction relied upon in deciding to send the Letter of Allegation was not put to the Applicant for response (the history of the interactions of the parties between 15 August 2016 and 3 November 2016 was particularised in both the Letter of Allegations and Show Cause Letter) or that it evidences some bias or pre-determination of the outcome. On the evidence both in Mr Wilkinson’s Witness Statement 44 and at hearing45, he indicated that the pattern of behaviour was a factor in deciding to progress the investigation to a Letter of Allegation (in contrast, for example, to issuing a further direction to attend an IMA, which based on the Applicant’s past behaviour there may be an apprehension that he would again not comply) but that does not suggest it was a factor upon which any action taken by the Respondent against the Applicant was based. There is also nothing about Mr Wilkinson’s evidence in identifying a pattern of behaviour on the Applicant’s part that puts his contention that the Applicant had failed to follow a reasonable and lawful direction higher than an allegation to which the Applicant was afforded an opportunity to respond.
[151] I hold a similar view in relation to the Applicant’s contention that Mr Wilkinson’s comments 46 in relation to the provision of medical evidence by the Applicant as evidencing a prejudicial opinion of Mr Ingall. Mr Wilkinson’s views in relation to the medical evidence provided appeared to be a factor in deciding how to progress the investigation/show cause process. I consider it reasonable that he held some uncertainty about the medical certificates provided given their lack of particularity and that the Applicant had sought to use them in the past to preclude his attendance at an IMA. Mr Wilkinson holding those views did not amount to a prejudicial opinion of the Applicant and, overall, a denial of procedural fairness.
[152] The Applicant also raised a concern that the investigation by Mr Wilkinson and Mr Shuker was flawed as it relied upon erroneous information provided by Mr Wilkinson to Mr Shuker regarding the Applicant’s failure to respond to emails between the period of 24 October 2016 and 3 November 2016. The Applicant submitted that this error is identified by paragraph 3(g) of Mr Shuker’s Show Cause Letter on 6 December 2016 which states:
“The direction to you to attend a medical assessment has been clearly communicated to you on multiple occasions, including in Virgin Australia’s letters and emails to you dated 15 August 2016, 12 October 2016, 26 October 2016 and 1 November 2016.”
[153] It was contended that in circumstances in which the Applicant did not, in fact, receive any emails (in the sense of him reading them despite them being sent) between 24 October 2016 and 3 November 2016 and Mr Shuker was not aware that those emails had not been read by the Applicant but only knew that the emails had been sent and that no response had been received, to rely on that Applicant’s no response created procedural unfairness. Given my earlier comments in relation to the Applicant’s conduct in the relevant period, I do not consider the Applicant’s actual non-receipt of the emails during the period of 24 October 2016 to 3 November 2016, by virtue of his choice to communicate in the manner he did as relevant (as distinct from the fact that reasonable steps were taken by the Respondent to provide the communication). As such, I do not consider that the Applicant was denied procedural fairness by virtue of Mr Shuker’s reliance upon the Applicant’s non-response to email during the relevant period as a factor in issuing the Show Cause Notice despite being unaware of the fact that the Applicant did not in fact receive the emails.
[154] I also not consider that the expression of “Hooray!” in Mr Shuker’s email to Ms Robinson after he was notified by Ms Robinson that the Show Cause notice had been posted to the Applicant could be said to give a reasonable apprehension of bias in the matter. Under cross-examination, Mr Skuker indicated that this was just a “turn of phrase that he uses” and it is hard, without further context, to conclude how anything more can be read into this. Perhaps the use of the word “hooray” is regrettable, but must, in my view, be considered in context.
[155] The Respondent is entitled to consider other matters in making a decision on whether dismissal is warranted and in this matter, Mr Shuker gave evidence that:
“In coming to the decision to terminate Mr Ingall’s employment, I also considered the length of Mr Ingall’s employment with Virgin Australia, the warning that was issued to him on 12 May 2016 and his Virgin Australia Chronology. These were not considerations favourable to Mr Ingall and supported the decision to terminate.”
[156] On the evidence of Mr Shuker above, the decision to terminate the Applicant’s employment had already been made (that is, instead of directing a further IMA after the Letter of Allegation had been issued) and the Respondent viewed his past behaviour as congruent with that decision. That is to say, his past behaviour was not regarded to be of a positive character so as to mitigate the reasons provided for his dismissal.
[157] In relation to the impact that termination has had on the Applicant’s life, I am inclined to agree with the Respondent’s submission that the termination of employment would have a significant impact on most people. The Applicant has not shown, however, that these circumstances give rise to any particular unfairness or some impact over and above the ordinary.
[158] The Applicant also submitted that he is unlikely to find a job quickly following termination however no evidence or explanation has been provided as to why that may be. It was also submitted that the Applicant is an individual of ‘poor financial standing and the termination has had a significant economic impact on him’. This is also an ordinary result of the termination of one’s employment and does not identify any particular unfairness. I also note that the Applicant was not forthcoming in communicating his impecuniosity to the Respondent.
[159] A further matter said to be relevant was the Applicant’s ‘limited ability to be able to deal with stressful situations such as imminent termination of his employment’ 47 and that ‘it was irresponsible of the Respondent to impose such onerous timeframes, burdensome expectations and difficult circumstances of Mr Ingall’s mental state at that time’.48 While the Applicant has provided medical certificates, those have been general and vague as to the specific nature of the Applicant’s condition. As such, it is unreasonable to require the Respondent to take into account the specifics of the Applicant’s health in what was otherwise a relatively standard process for resolving allegations of misconduct or incapacity. In relation to the Applicant’s suggestion that the timeframe provided in that process were too onerous, I reiterate that it was as a result of the Applicant’s choice to communicate in the manner than he did that the difficulty in meeting the deadlines imposed was created. The Applicant’s conduct in how he chose to communicate cannot be attributed to the Respondent.
[160] After careful consideration of all the evidence, I have found that there was a valid reason for the dismissal and I am satisfied that the Applicant was afforded procedural fairness in the disciplinary process.
[161] The Commission is satisfied that the Applicant failed to comply with a lawful and reasonable direction from the Respondent. The Commission finds that the direction for the Applicant to attend an IMA was a reasonable direction and that reason for the dismissal was therefore a valid reason for the purposes of s.387(a). Further, the Commission finds that the reason for dismissal that the Applicant is unable to perform the inherent requirements of his role was sound, defensible and well-founded and as such was also a valid reason.
[162] The Commission is also satisfied that, in accordance with s.387(b) of the Act, the Respondent communicated those reasons to the Applicant and that pursuant to s.387(c) afforded him an opportunity to respond.
[163] The factors in ss.387(d) and (e) were considered neutral. Given the size of the Respondent and it’s employment of dedicated human resource specialists, the factors in ss.387(f) and (g) did not provide any reason for the Respondent to be excused from strictly complying the requirements of s.387 of the Act.
[164] In relation to other relevant matters under s.387(h), the Applicant raised a number of factors that were unsupported by evidence, not communicated to the Respondent or were the result of the Applicant’s actions and as such provide no compelling reason to find that the Applicant was unfairly dismissed in circumstances where it would otherwise be found that he was not.
[165] For these reasons the Commission finds that the Applicant’s dismissal was not harsh, unjust or unreasonable. The application is dismissed.
[166] An order to this effect will be issued separate to these reasons.
DEPUTY PRESIDENT
Appearances:
Mr T A Spence of Counsel, instructed by Saines Legal, for the Applicant.
Mr G Fredericks of Counsel, for the Respondent.
Hearing details:
Monday 3 June 2019, Tuesday 3 June 2019, Wednesday 5 June 2019 in Brisbane.
Final Oral Submissions:
11 July 2019 in Brisbane.
Printed by authority of the Commonwealth Government Printer
<PR710381>
1 Salvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.
2 Ibid.
3 Grant v BHP Coal Pty Ltd [2014] FWCFB 3027.
4 See Walton v Mermaid Dry Cleaners Pty Limited [1996] IRCA 267; Webb v RMIT University [2011] FWAFB 8336.
5 Adami v Maion de Luxe Ltd (1924) 35 CLR 143 at [151].
6 Applicant’s written submissions at [6]; Respondent’s final submissions at [43].
7 [2002] FCA 603.
8 [2002] FCA 603 at [23].
9 Applicant’s written submissions at [3].
11 [2014] FWCFB 3027 at [123]-[129].
12 Transcript, 5 June 2019 – PN2870.
13 Witness Statement of David Wilkinson at [132(b)].
14 Annexure DW-29 to the Witness Statement of David Wilkinson.
15 Lavianio v Fair Work Ombudsman [2017] FCCA 197 at [31].
16 Regulski v State of Victoria [2015] FCA 206 at [211].
17 Annexure 4 to the Witness Statement of Vivienne Robinson at pg. 64-5.
18 Witness Statement of Melissa Bostock at [11]-[12] and annexure MB-1.
19 [2017] FCCA 197 at [29].
20 Ibid.
21 Transcript, 11 July 2019, PN92 – PN95.
22 Grant v BHP Coal Pty Ltd [2014] FWCFB 3027.
23 Salvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.
25 [2016] FWC 1166 at [57].
26 [2016] FWC 1166 at [3]-[4].
27 Chubb Security Australia Pty Ltd v Thomas, Print S2679 at [41].
28 Crozier v Palazzo Corporation Pty Limited t/a Noble Park Storage and Transport, Print S5897 at [70]-[73].
29 Previsic v Australian Quarantine Inspection Services, Print Q3730.
30 Ibid.
31 Crozier v Palazzo Corporation Pty Ltd T/A Noble Park Storage and Tranport, Print S5897; For the application of the same principle in relation to the Fair Work Act 2009 see Gooch v Proware Pty Ltd T/A TSM (The Service Manager) [2012] FWA 10626.
32 Crozier v Palazzo Corporation Pty Ltd T/A Noble Park Storage and Tranport, Print S5897 at [73].
33 Applicant’s Written Submissions at [84].
34 Crozier v Palazzo Corporation Pty Ltd T/A Noble Park Storage and Tranport, Print S5897 at [75].
35 RMIT v Asher (2010) 194 ER 1 at [26] citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at [7].
36 (1995) 60 IR 1.
37 Gibson v Bosmac Pty Limited (1995) 60 IR 1 at [7].
38 Show Cause Letter dated 6 December 2016.
39 See Sabeto v Waterloo Car Centre Pty Ltd, PR930816 at [11]-[13] in which it was held that where an employee is not notified of the reason by virtue of the employee’s own actions in attempting to thwart an employer’s attempts to notify, a finding that the employee was not notified must be made if in fact the employee was not notified.
40 Transcript Wednesday, 5 June 2019 at PN2605-PN2607.
41 Witness Statement of David Shuker at [39]-[40].
42 Anetta v Ansett Australia Ltd, Print S6824.
43 Williams v The Chuang Family Trust T/A Top Hair Design [2012] FWA 9517.
44 Witness Statement of David Wilkinson at [111].
45 Transcript Wednesday, 5 June 2019 at PN2607.
46 Witness Statement of David Wilkinson at [123].
47 Applicant’s Written Submissions at [182].
48 Applicant’s Written Submissions at [183].