1
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.
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DECISION
E AUSTRALIA FairWork Commission
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[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.
Background
[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
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[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).
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[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…”
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[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.
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[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
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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.
Evidence and submissions of the Applicant
[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
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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
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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
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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
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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.
Consideration
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
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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.
Was the dismissal harsh, unjust or unreasonable?
[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
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(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’.i A reason that is ‘capricious, fanciful, spiteful or prejudiced’ cannot be a valid
reason’.ii It is also accepted that a valid reason may relate to either the conductiii or capacityiv
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.v
[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.vi 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 Ltdvii 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.viii
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[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.ix
[93] In Grant v BHP Coal Pty Ltdx 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.xi
[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.”
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[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.xii Mr Wilkinson provided evidence that at the time of arranging the IMA, he
understood that the Applicant did have a car.xiii
[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;xiv
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
[2019] FWC 4947
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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 absencexv
and that the Applicant had an implied duty to cooperate with his employer to meet the
requirements of his employmentxvi. 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.xvii
[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.xviii 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 Ombudsmanxix 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”’.xx
[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.xxi 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
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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.
[2019] FWC 4947
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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.xxii Having regard to the test as to
whether a reason is a valid reason for dismissal articulated in Salvachandran v Peteron
Plastics Pty Ltdxxiii 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 Australiaxxiv 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.”xxv
[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.xxvi
[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:
[2019] FWC 4947
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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.
Whether the Applicant was notified of that reason – s. 387(b)
[122] The Act requires that the reason an employee is to be notified of is the valid reason for
dismissal.xxvii That notification is required to be:
provided before a decision to terminate is made;xxviii
in explicit termsxxix; and
in plain and clear terms.xxx
[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.
[2019] FWC 4947
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[127] In Crozier v Palazzo Corporation Pty Ltd T/A Noble Park Storage and Transportxxxi,
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.”xxxii
[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]…’.xxxiii
[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.
Opportunity to respond to the allegations related to conduct – s. 387(c)
[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.xxxiv 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.xxxv
[132] In Gibson v Bosmac Pty Limitedxxxvi 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’.xxxvii
[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
[2019] FWC 4947
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be terminated and to discuss any written response you provide’xxxviii. 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.xxxix
[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”xl
[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
[2019] FWC 4947
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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.” xli
[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.
Presence of support person in discussions relating to dismissal – s. 387(d)
[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.
Warnings regarding unsatisfactory performance - s.387(e)
[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 relevantxlii. 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.
Impact of the size of the Respondent on procedures followed - s.387(f); and
Absence of dedicated human resources management specialist/expertise on procedures
followed - s.387(g)
[2019] FWC 4947
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[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’.xliii
[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.
Other relevant matters - s.387(h)
[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 Statementxliv and at hearingxlv, 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
commentsxlvi 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:
[2019] FWC 4947
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“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
[2019] FWC 4947
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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’xlvii 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’.xlviii 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.
Conclusion
[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.
[2019] FWC 4947
26
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
i Salvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.
ii Ibid.
iii Grant v BHP Coal Pty Ltd [2014] FWCFB 3027.
iv See Walton v Mermaid Dry Cleaners Pty Limited [1996] IRCA 267; Webb v RMIT University [2011] FWAFB 8336.
v Adami v Maion de Luxe Ltd (1924) 35 CLR 143 at [151].
vi Applicant’s written submissions at [6]; Respondent’s final submissions at [43].
vii [2002] FCA 603.
viii [2002] FCA 603 at [23].
ix Applicant’s written submissions at [3].
x [2014] FWCFB 3027.
xi [2014] FWCFB 3027 at [123]-[129].
xii Transcript, 5 June 2019 – PN2870.
xiii Witness Statement of David Wilkinson at [132(b)].
xiv Annexure DW-29 to the Witness Statement of David Wilkinson.
xv Lavianio v Fair Work Ombudsman [2017] FCCA 197 at [31].
xvi Regulski v State of Victoria [2015] FCA 206 at [211].
xvii Annexure 4 to the Witness Statement of Vivienne Robinson at pg. 64-5.
xviii Witness Statement of Melissa Bostock at [11]-[12] and annexure MB-1.
WORK MISSION THE FAIR THE SEAL OF
[2019] FWC 4947
27
xix [2017] FCCA 197 at [29].
xx Ibid.
xxi Transcript, 11 July 2019, PN92 – PN95.
xxii Grant v BHP Coal Pty Ltd [2014] FWCFB 3027.
xxiii Salvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333.
xxiv [2016] FWC 1166.
xxv [2016] FWC 1166 at [57].
xxvi [2016] FWC 1166 at [3]-[4].
xxvii Chubb Security Australia Pty Ltd v Thomas, Print S2679 at [41].
xxviii Crozier v Palazzo Corporation Pty Limited t/a Noble Park Storage and Transport, Print S5897 at [70]-[73].
xxix Previsic v Australian Quarantine Inspection Services, Print Q3730.
xxx Ibid.
xxxi 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.
xxxii Crozier v Palazzo Corporation Pty Ltd T/A Noble Park Storage and Tranport, Print S5897 at [73].
xxxiii Applicant’s Written Submissions at [84].
xxxiv Crozier v Palazzo Corporation Pty Ltd T/A Noble Park Storage and Tranport, Print S5897 at [75].
xxxv RMIT v Asher (2010) 194 ER 1 at [26] citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at [7].
xxxvi (1995) 60 IR 1.
xxxvii Gibson v Bosmac Pty Limited (1995) 60 IR 1 at [7].
xxxviii Show Cause Letter dated 6 December 2016.
xxxix 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.
xl Transcript Wednesday, 5 June 2019 at PN2605-PN2607.
xli Witness Statement of David Shuker at [39]-[40].
xlii Anetta v Ansett Australia Ltd, Print S6824.
xliii Williams v The Chuang Family Trust T/A Top Hair Design [2012] FWA 9517.
xliv Witness Statement of David Wilkinson at [111].
xlv Transcript Wednesday, 5 June 2019 at PN2607.
xlvi Witness Statement of David Wilkinson at [123].
xlvii Applicant’s Written Submissions at [182].
xlviii Applicant’s Written Submissions at [183].
